Attorney-General v Thumm[1999] QCA 355

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No.  186 of 1999

Brisbane

[R v Thumm, ex parte A-G]

THE QUEEN

v

SHAWN EDWARD THUMM

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

McMurdo P

Derrington J

Mackenzie J

Judgment delivered 27 August 1999

Judgment of the Court

APPEAL ALLOWED TO THE EXTENT THAT THE ORDER BELOW IS VARIED BY SUBSTITUTING A PERIOD OF 21 MONTHS IN LIEU OF 15 MONTHS AS THE TIME AT WHICH THE RESPONDENT WILL BE ELIGIBLE TO APPLY FOR PAROLE.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 August 1999

1. This is an Attorney-General's appeal against sentence in a case of dangerous driving causing death with a circumstance of aggravation that at the time the respondent was adversely affected by alcohol.  He was sentenced to four and a half years imprisonment with a recommendation for eligibility for parole after 15 months and disqualified absolutely from holding or obtaining a drivers licence. 

2. The circumstances of the incident are relatively unusual and the consequences relatively severe since in addition to the emotional trauma inevitably caused to the victim's family it has had other serious consequences because the victim was a respected small business man, and the family business which depended on his expertise has been forced to close as a result of his death. 

3. At the time of the incident the victim and his daughter were walking for exercise along a footpath in their neighbourhood.  The road abutted by the footpath was generally straight and flat and carried one lane of traffic in each direction.  The speed limit was 60 k.p.h. On the side of the road where the incident happened there was no channelling and kerbing and vehicular access to premises was gained by driveways over a drainage depression between the footpath and the roadway.  It was said to be necessary for vehicles to slow to almost a complete stop to enter driveways.

4. Just when the victim and his daughter were about to cross a driveway outside one of the residences a person intending to enter the premises in her vehicle arrived.  The driver stopped her vehicle on the carriageway to allow them to pass.  After she had done so, she began to turn into the driveway.  The respondent's motor cycle which was an unregistered and uninsured 750cc Kawasaki struck the front driver's side of her vehicle.  The motor cycle went out of control, went onto the footpath, struck the victim and killed him.

5. The accounts in the various witness statements all suggested that the car's driver's side indicators had been activated prior to the collision but varied as to how long the indicator had been on.  The driver's account was that it had been activated at an appropriate distance from the driveway.  The victim's daughter was "90 per cent sure" that it was on.  A friend of the respondent who was in a following vehicle said that he believed it was activated only shortly before she began to turn after the respondent had commenced his overtaking manoeuvre. 

6. Defence counsel did not make any point of these variations in his submissions on sentence and the sentencing judge did not refer to them.  The prosecution case was that, regardless of that issue, the respondent was travelling at a greatly excessive speed on a powerful motor cycle while affected by alcohol.  The Crown Prosecutor described it as a case of deliberate reckless driving.  Neither the statement that the respondent had accelerated heavily and consistently over the 300 metres or so once he had entered the street, nor an estimate that he was travelling at 90 k.p.h. to 100 k.p.h. by the time he reached the point of collision were challenged.

7. He refused to provide a specimen of blood for analysis, but blood taken for diagnostic purposes using an alternative method of testing produced an approximation of .18 per cent  alcohol in his blood.  There was evidence that he had been drinking over an extended period during the day, before he and his friends decided to proceed to his home.  It was during this journey that this incident occurred.

8. Because the concentration of alcohol measured by the means used could not be guaranteed to be sufficiently accurate to prove beyond reasonable doubt that the concentration was equal to or exceeded .15%, the respondent was charged only with the offence of dangerous driving causing death with the circumstance of aggravation that while operating the vehicle he was adversely affected by an intoxicating substance.  The offence has a maximum penalty of 10 years imprisonment whereas an offence committed while the concentration equals or exceeds .15% is 14 years. 

9. The most favourable view of the incident from the respondent's point of view, since the unresolved question of the point at which the indicator was turned on should be considered on the most favourable basis to him, was that he had by driving far in excess of the speed limit while affected by alcohol, seriously limited his ability to observe that the vehicle was stationary preparatory to turning into the driveway and to react to the situation with which he was confronted. 

10. In addition, the respondent did not hold a licence to ride a motorcycle although he said he had been riding them for many years.  He had convictions arising from the one incident in  April 1995, for unlicensed driving and driving with a blood alcohol concentration of .142 per cent.  Those were his only convictions.  He had good references from employers despite a childhood with some difficult aspects.  In addition he suffered injuries which hospitalised him  for about a month, and left him with some permanent consequences. 

11. The issue of delay in the matter being heard was touched on at sentencing.  The incident occurred on 3 November 1996 but proceedings were not commenced until 20 October 1997.  The committal occurred on 28 January 1998.  After that there had been three listings for trial.  The first date was vacated when the trial could not be reached.  The second was adjourned because of unavailability of a Crown witness.  The third was vacated because of an application by the defence for an adjournment to obtain further expert evidence.  Then, after a change of legal representation a plea of guilty was notified.  The Crown Prosecutor conceded that while there had been delays the case had been dealt with  expeditiously once the current legal advisors were involved. 

12. Defence counsel submitted at sentence that the plea should not be treated as a late plea.  He was somewhat critical of the previous advisors for not giving appropriate advice in  "the clearest of Crown cases" against the respondent, and said that despite the respondent having no recollection of the incident he had accepted advice to plead guilty once it was given and was genuinely remorseful.  It was also said that he was greatly affected by reading the victim impact statements supplied to him shortly before he was sentenced. 

13. Nevertheless, this protracted course does not sit easily with a desire on the respondent's part to have the matter finalised or concern for the feelings for the family of the victim, especially his daughter who observed her father's death, was cross-examined at committal and was to be a witness:  the family had to prepare themselves for the ordeal of a trial on three occasions.

14. It was submitted that since the respondent had no memory of the incident it was understandable that investigations concerning the cause of the accident would be carried out.  However, by no later than about the end of January 1998 the respondent must have been aware of the case against him and it is difficult to disagree with his counsel's description of the case as "the clearest of Crown cases" on that evidence.  The respondent was entitled to some credit for his plea of guilty but not as much as in a case where there has been a plea of guilty at the first opportunity. 

15. The Crown Prosecutor submitted in the sentencing proceedings that the sentence should be imposed within a range of four to six years, and that an appropriate sentence would be "somewhere towards the mid range of that mark at five years".  The head sentence imposed by the sentencing judge is not markedly different from that sought by the Crown Prosecutor.

16. Counsel for the Attorney-General nevertheless submitted that the head sentence should have been five years.  More importantly he submitted that the head sentence and the non-parole period of 15 months left the sentence outside the exercise of a sound judicial discretion for what he submitted was a case of deliberate reckless driving.  It was submitted that too much weight had been given to the plea of guilty and that the non-parole period, of less than one-third of the head sentence, was too short. 

17. In sentencing the respondent, the judge did not specifically refer to the weight he gave to the plea of guilty, but referred specifically to the physical and emotional consequences of the incident upon the respondent.  (There was a psychological report that he was suffering from post-traumatic stress disorder).  The sentencing judge also referred to the respondent overcoming a difficult childhood which included sexual abuse.  That was said to have heightened his fear of imprisonment.  He accepted that the respondent had genuine remorse. 

18. The head sentence of four and a half years for this particular offence cannot be said to be manifestly inadequate, although it falls at the bottom of the range which might have been imposed.  However, the thrust of the submission for the Attorney-General was that the combination of the head sentence and non-parole period was manifestly inadequate.

19. In R v Melano ex parte Attorney-General [1995] 2 Qd R 186, the question was said to be whether the sentence imposed was outside the scope of a proper sentencing discretion and it was said that the court should not allow an appeal under s 669A(1) unless it could be so described.  The mere fact that judges sitting on appeal may have imposed a more severe  sentence is insufficient.  Intervention will not occur on an Attorney-General's appeal unless the sentencing judge has erred in principle either because an error is discernible or is demonstrated by a manifest inadequacy of sentence.  It was also pointed out that due regard must be had to the fact that the sentencing judge has had the opportunity to see the accused.  Where the matter proceeds as a sentence, that advantage is, of course, not as great as in a case where the accused has given evidence. 

20. The non-parole period is unduly generous, notwithstanding the factors taken into account by the sentencing judge:  a non-parole period of 21 months more adequately recognizes both the seriousness of the respondent's conduct and the matters favourable to him.

21. The remaining issue is whether the level of the non-parole period demonstrates a manifest inadequacy which calls for correction, even though the alteration to the sentence would only result in increasing the non-parole period by six months.   Often, such variation would not be justified under the relevant principles.  Each case will depend on in its own facts.  In the present case we are driven to the conclusion that having regard to all of the circumstances, the sentencing judge imposed a sentence, the effect of which was outside a sound exercise of discretion.  We allow the appeal by the Attorney-General and vary the sentence below by substituting a period of 21 months in lieu of 15 months as the time at which the respondent  will be eligible to apply for parole.  Otherwise, we confirm the sentence imposed below.