R v McKinnon[1999] QCA 75

COURT OF APPEAL

McMURDO P

McPHERSON JA

MUIR J

CA No 356 of 1998

THE QUEEN

v.

MICHAEL JOHN McKINNONApplicant

BRISBANE

DATE 17/03/99

JUDGMENT

McPHERSON JA: The applicant for leave to appeal against sentence was convicted on his own plea of guilty in the District Court at Beenleigh of the offence of dangerous driving causing death, with the circumstance of aggravation that he was at the time under the influence of alcohol to a specified extent.

He was sentenced to imprisonment for a term of six years, with a recommendation for parole after he had served two and a half years of that sentence.

The circumstances of the offence can be summarised as follows. On 7 December 1997 the applicant drove his car at a time when he had a blood alcohol concentration in excess of .219 per cent. His ability to control the vehicle was substantially impaired, and he began dozing or napping at the wheel while he was driving.

He ultimately ran off the road and into a parked car killing the occupant. The applicant had been drinking beer with a friend. He had consumed about 13 cans of heavy beer in the five hours preceding the collision. What is more, although his friend suggested to him that it was inappropriate for him to drive in that condition, he was not dissuaded from doing so.

He drove along the Waterford/Tamborine Road at about 9 p.m.  It was a 100 km/h zone and a busy area. The applicant's car was observed by others before the accident occurred swerving completely into the incorrect lane while it was travelling at speeds of between 80 and 100 km/h.

One car had to slow down to avoid him.  On another occasion he crossed double centre lines while going up a hill in order to overtake two other cars. He fell asleep or dozed off on three occasions. After the first two episodes he was able to correct the vehicle, but on the third occasion he lost control and the car ploughed into a Hyundai sedan parked on the grass at the side of the road.

Paul Craig was sleeping in the car.  He died as a result of subdural haemorrhage and a broken back. He was 54 years old and a father of three. A victim impact statement signed by his widow and children speaks of the shattering of their lives by the sudden death of a loving and loved husband and father.

Returning to the incident itself, the applicant's breath was analysed one and a half hours after the collision. The blood alcohol concentration was, as I have said, .219 per cent. 

While he was not completely honest with the police at the roadside, he made full admissions in an interview that took place not long afterwards. 

His personal circumstances are these. He is, or at the time of the sentencing was, 29 years old, having been born on 6 April 1969.  He has some prior criminal history. Between 1987 and 1997 he sustained convictions for the offence of break, enter and steal; three charges of wilful damage; possession of a dangerous drug and a pipe; obstructing police; and on two occasions breaching a fine option order.

He has at least one blemish on his traffic history, that is to say, in October 1990 he was disqualified from driving for being in charge of a vehicle while his blood alcohol concentration was at the substantial figure of .310 per cent.

The grounds advanced in support of the application are, first of all, the sincere remorse shown by the applicant. There appears to be no doubt at all that the applicant is very remorseful about what he has done. 

He is sufficiently insightful to be able to compare the position of his wife and children with those of his victim; in saying that, I mean to say he compares his own position as being considerably better off than those of his victim's wife and children.

The committal did not involve calling evidence from family members of the deceased, but was confined to scientific and limited police evidence. The Crown were aware shortly after the committal that the matter would result in a plea of guilty.

There is a report from Dr Free dated 27 August 1997 referring to the genuine remorse of the applicant. That practitioner says that a gaol sentence would be harmful to the applicant, which may be so; but it scarcely need be said that the welfare of the offender is not the only consideration that arises on sentencing for an offence like this.

He has made an apology, which is no doubt genuine, to the victim's family. The long-term effects of the imprisonment are that the applicant's family will have to endure both present and future disadvantages that are no doubt serious; but I think the applicant himself has candidly conceded, or would do so, that the consequences for the victim's family are a great deal more serious.

In the end, Mr Williamson on behalf of the applicant said that he did not contest that a head sentence of approximately six years was within the appropriate tariff for an offence of this degree of seriousness.

The maximum penalty is of course 14 years, though in my experience it has seldom been imposed at that upper level. This is not a case where it would be appropriate to do so, having regard to some much more serious cases that come before the Courts.  The comparable range appears to be between about four and seven years, and six years appears to be approximately correct.

Accepting that the applicant has shown genuine remorse and will continue to feel serious pangs of guilt about this for the rest of his life, there are nevertheless some factors that seriously militate against a lower sentence, or an improved recommendation for parole in his case.

In the first place, he showed a complete disregard for other road users by driving on the occasion in question, the more so as his friend warned him that he should not do it. He also had some prior warning of his condition of fatigue, and he must have realised from what was happening as he drove that he was severely and significantly impaired by the influence of the alcohol upon him.

In the end he caused needless loss of a life, and it is difficult to see what more could be done other than giving him the recommendation for parole of a not very extensive kind in order to recognise the remorse that he undoubtedly feels.

In all the circumstances I see no reason for interfering with the sentence below, including the recommendation for parole that was granted, and I would accordingly refuse the application and dismiss it.

THE PRESIDENT: I agree.

MUIR J: I agree.

THE PRESIDENT: The order is the application is dismissed.