R v Hamilton[2000] QCA 286

SUPREME COURT OF QUEENSLAND

1. DAVIES and THOMAS JJA:  On 24 March this year the applicant pleaded guilty to the offence of dangerous operation of a motor vehicle causing grievous bodily harm on 23 June 1999.  He was sentenced to imprisonment for nine months suspended after one month with an operational period of 18 months.  He was born on 29 September 1981 so that he was 17 years of age at the time of commission of this offence but 18 by the time he was sentenced.  He seeks leave to appeal against that sentence.

2. The circumstances of the offence were as follows. At 11.10 pm on 23 June last year the applicant, who was alone in his vehicle, was driving south along Ipswich Road, Moorooka.  As he approached the intersection of that road with Beaudesert Road a red light was facing him.  He proceeded through that light and into collision with a taxi which had proceeded in accordance with a green light facing it.  Another vehicle was also damaged.

3. The driver of the taxi suffered serious injuries from which he could have died. His scalp was opened from the crown to the eyebrow, he suffered fractured ribs, pneumothorax and a comminuted fracture of his right femur. He spent the night in intensive care and a further three and a half weeks in hospital. He has been left with a steel rod in his leg and an inability to walk long distances. He walks with a limp and can no longer play golf. He has difficulty playing lawn bowls. He has had difficulty with his memory since the accident. It is unclear whether any of these disabilities is permanent.

4. On the other hand the victim said that he held no "bias" against the applicant. As he put it "He has to live with it too. It was a silly and a stupid thing he did. Let's hope he learns from his mistake and takes more care in the future".

5. Unfortunately it appears that the applicant did not learn from his mistake for, about two weeks after the commission of this offence he was found driving at 34 kms over the speed limit in a 100 km zone.

6. No satisfactory explanation was given for why the applicant drove through the red light. It was not put against him that he was attempting to beat the light. His speed was estimated to be at least 60 kms an hour which was at but not necessarily over the speed limit. His fault appears to have been a failure to observe the red light. This, though serious, did not involve a deliberate course of reckless driving. Nor does it appear that speed was a causative factor in what occurred.

7. The applicant had no prior convictions^[1] although he had some minor traffic convictions not apparently relevant to the safety of others.  He had a good work history and was, at the time of sentence, employed on a mechanical traineeship which he was due to finish in June this year.  However, because he was imprisoned for 11 days after the date of the sentence before he obtained bail pending this appeal, he lost that employment.  His employer at that time was, however, among a number of people who tendered favourable references.

8. The applicant exhibited remorse immediately. He apparently attempted to contact the taxi driver whilst he was in hospital in order to apologize to him but is uncertain as to whether his apology reached his victim. He also subsequently inquired after his progress and pleaded guilty at an early stage.

9. The main contention for the applicant in this Court is that the learned sentencing judge erred in requiring him to spend one month in actual custody before his sentence was suspended. His counsel submitted that either the sentence should have been wholly suspended or an intensive correction order or probation imposed. Before the learned sentencing judge counsel for the applicant had contended for probation and community service whilst the prosecutor had submitted in the following terms:

"What the Crown respectfully say is that the range here would be from a suspended sentence through to intensive correction order which may be particularly appropriate but it would also be open to your Honour to impose a short period of actual imprisonment."

10. That contention was made when, as it is now acknowledged, submissions had been made on an incorrect basis less favourable to the applicant than was permissible. When submissions were made upon application for resentence upon the correct basis the prosecutor contended that the above range would still be open but said:

"But clearly it would take more towards perhaps the intensive correction order option."

11. Three cases were put before this Court by way of comparison. They were Grant,^[2] Anderson^[3]  and Harris.^[4]  The second and third of these had been cited to the learned sentencing judge.  All three were Attorney's appeals against non-custodial sentences for dangerous driving causing death which were dismissed.  However they are relevant as decisions of primary judges, within the appropriate range, for offences more serious than this one.

12. The sentence imposed on Grant, who was the same age as the applicant at the time of commission of his offence, was 18 months imprisonment wholly suspended. Like the applicant here he drove through a red light at an intersection. He killed a passenger in the vehicle with which he collided.  Unlike this case, speed was a relevant factor, it being accepted that he was travelling at an excessive speed.  It was accepted that, like this case, it was not a deliberate course of dangerous driving.  Like this applicant he was convicted of speeding after the commission of the dangerous driving offence but unlike this applicant it occurred on three occasions.  Two months after the commission of this offence he was convicted of speeding by 30 to 40 kms over the speed limit; another two months later he was found speeding to the same extent and nine months later he was found speeding by 15 to 30 kms over the limit.  The court plainly thought that the case was a finely balanced one and it must be added that Grant was sentenced at a time when the court was required to consider all available sentences other than imprisonment and take into account the desirability of not imprisoning a young first offender.

13. Anderson was 18 years of age at the time of sentence.  However he had a blood alcohol concentration of .055 per cent and was driving a vehicle which was in an unsafe and unsatisfactory mechanical condition.  Its windscreen was very dirty and it was hard to see out of it particularly as the sun was glaring in from the front.  Moreover he was not licensed to drive having previously had his licence cancelled for traffic infringements.  He killed a young child who had escaped from her residence and was standing on the road.  The learned sentencing judge had imposed a probation order with community service.  The court accepted that a custodial sentence would have been within range.  However the majority thought that the mitigating factors in that case, the most important of which appears to have been the age of the respondent, had the effect that the sentence imposed was within the appropriate range.

14. In Harris the penalty imposed was 12 months imprisonment to be served by way of an intensive correction order.  The respondent in that case was 20 years of age at the time of commission of the offence.  He held only a learner's permit and contrary to law was driving unsupervised.  He had a previous conviction for breaking and entering with intent.  The cause of the accident was substantial speed together with inadequate lookout.  The victims were a husband and wife travelling in another vehicle.  The majority thought that, notwithstanding the amendments to the Penalties and Sentences Act by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 the sentence imposed was within the appropriate range.  However it is fair to say that the court was influenced in reaching this conclusion by the decision in Anderson and the cautious approach necessary in Attorney's appeals.

15. Riddell,^[5] like Grant, was an appeal decided under the Penalties and Sentences Act before the 1997 amendment thereto and the appellant was an 18 year old first offender.  Nevertheless the offence was dangerous driving causing the death of two persons and the speed of the car driven by the appellant was excessive causing it to become airborne.  This Court allowed his appeal substituting for a sentence of 18 months imprisonment one of one year imprisonment to be served by way of an intensive correction order.

16. These cases are distinguishable from the recent decision of this Court in Cusak^[6] upholding an Attorney's appeal against a wholly suspended three year term for dangerous driving causing death and substituting one suspended after nine months.  There the respondent, who was 24 with a quite bad traffic history, had a blood alcohol reading of .17 per cent which was a circumstance of aggravation and had engaged in deliberate reckless driving in the knowledge that passengers, one of whom was killed when the vehicle overturned, were in a vulnerable position in the open tray of the utility motor vehicle.  The Court distinguished Anderson on the basis that it was a case limited to a failure to keep a proper lookout, with no excessive speed and alcohol was not a causative factor.

17. The major factors in the applicant's favour in this case are his youth and apparent general good character and the fact that the dangerousness of the applicant's driving was caused, not by a deliberate course of reckless driving, but by inattention. The question is whether these, together with his remorse and good work history and his victim's apparent goodwill towards him should have persuaded the learned sentencing judge to impose a sentence which did not involve the period of one month's actual custody in gaol.

18. Although the cases to which we have referred, other than Cusak, are ones in which non-custodial sentences were imposed for offences more serious than this one they do not necessarily show that a custodial term for this offence would have been excessive.

19. The period of one month's actual custody, which is extremely short, was imposed by the learned sentencing judge "to get home to the prisoner and as a matter of protection for the public, he needs to have a better appreciation of the danger of driving in the way that he has in the past". His Honour's reference to the driving was a reference not only to the driving in this case but to the speeding offence shortly after the commission of this offence. He had earlier described his decision to impose imprisonment as a need to give the applicant "a short sharp lesson". Clearly that could have been the only purpose of such a short term of imprisonment. It would be most unlikely to have any rehabilitative effect. On the other hand it is potentially harmful; it may introduce him to hardened criminals whom he might not otherwise meet and to hard drugs and it may subject him to the risk of injury or degrading conduct.^[7]

20. In our view the imprisonment imposed in this case was not a satisfactory means merely of imposing a short sharp lesson upon a youthful first offender, primarily because of the potential harm it may cause. That is not to say that offences of this seriousness can never justify the imposition of a term of imprisonment. But in our opinion the facts in this case did not justify the imposition of such a short term on this applicant for that purpose only and it seems to us a sentence of so short a term can have no other purpose.

21. The need of the community to see this applicant appropriately punished and others deterred and the public advantage, as well as that of the applicant, in best achieving his rehabilitation - the need to bring some discipline into his life - can best be achieved, in our opinion by a sentence of imprisonment to be imposed by way of intensive correction order.

22. We would therefore grant the application, allow the appeal, set aside the sentence imposed below and impose, in lieu, a sentence of imprisonment of 12 months to be served by way of intensive correction in the community. That order must of course contain the requirements referred to in s 114 of the Penalties and Sentences Act.  We would, like the learned primary judge, order that the applicant be disqualified from holding or obtaining a driver's licence for a period of four years.

23. McPHERSON JA:  Having regard to the consequences of this act of dangerous driving as well as the circumstances in which it was committed - going through a red traffic light in a built-up area at at least 60 kph - it is difficult to see why the applicant in this case should not have served a prison sentence of some months duration.  The complainant, who was badly injured and has had to give up working as a taxi driver, is a person of an unusually forgiving nature; but the applicant's conduct has had a seriously adverse impact on both his life and lifestyle and that of his family.  The applicant's offence was compounded by his conduct only a fortnight after this incident in driving at a speed of 134 kph in a 100 kph zone. This inevitably casts serious doubts on the genuineness of his remorse.

24. There has, however, been no appeal by the Attorney-General against the inadequacy of the sentence imposed. In those circumstances the only question now is whether a term of imprisonment as short as one month should be sustained. Impressions of the utility of short terms of imprisonment in the case of youthful offenders have fluctuated markedly over the years. One view, which influenced the learned sentencing judge in the present case, is that even a very short period of actual imprisonment serves as a warning to youthful offenders, which they are not likely to forget. The opposing view is that it subjects youthful offenders to the risk of corruption by the prison environment without any discernible advantage either to the offender or society.

25. It is not easy in circumstances like those here to make a confident choice between these two views of the matter; but in a case where the offender had already served 11 days of the sentence before being granted bail, there does not seem to me to be any identifiable benefit either to him or to society in returning him to prison, and there may well be some real disadvantages in doing so.  If a short period of detention was likely to have any impact on the applicant, he has already experienced it.  A further 19 days is not likely to effect any improvement in his outlook, and, apart from the administrative expense involved, may do some harm.

26. For these reasons, I agree with the order proposed by the other members of the Court.