R v Simpson[2001] QCA 109

COURT OF APPEAL

McMURDO P

MOYNIHAN J

DUTNEY J

BRISBANE

DATE 21/03/2001

JUDGMENT

MOYNIHAN J:  This is an application for leave against sentences imposed in respect to three driving offences, to which the applicant entered a timely plea of guilty.  She pleaded guilty to dangerous operation of a motor vehicle with a circumstance of aggravation, the circumstance of aggravation being that she had a blood alcohol content of .169 per cent when tested an hour or two after the incidents were observed.

For that offence she was sentenced to two years' imprisonment wholly suspended for four, fined $5000 payable within two years, and disqualified from having or holding a driver's licence for a period of five years.  She also pleaded guilty to two other offences, one being an unlicensed driver - it seems that her driver's licence had expired - and the second for driving under the influence of alcohol.  In the case of each of those offences, a conviction was recorded, but no other penalty was imposed.

The appeal is essentially against the imposition of the fine and the length of the period of disqualification.  The applicant was born on 18 November 1971.  She has no criminal history of consequence, but in April 1998, she had been convicted of driving with a blood alcohol concentration of .111 per cent.

On the afternoon of 4 May 1999, she was observed driving erratically along Kingsford Smith Drive and the Gateway Arterial road at Hamilton.  Her conduct caused other drivers to take evasive action, and her vehicle hit the kerb on both sides of the road on a number of occasions as she changed lanes erratically.  At one stage the vehicle hit the median strip and was lifted off one of its wheels.

This course of conduct was observed over a distance of about two kilometres, causing at least one witness to notify the police.  The conduct that I have so far described took place at about 3 o'clock.  At around about 3.30, the applicant was seen driving erratically and in excess of the speed limit in the vicinity of the Redland Bay exit from the Pacific Highway.  She overtook a number of vehicles, cut in front of vehicles causing them to brake heavily, veered into a concrete barrier, spun across the exit road and collided with the rear of another vehicle before coming to rest against the crash barrier.

The other vehicle, which was a station wagon occupied by a woman and two young children spun out of control and struck an oncoming cement truck.  The driver of that vehicle suffered soft tissue injuries and the aggravation of degenerative problems in her lumbar and cervical spines.  The two young children travelling in the vehicle were not injured.

Police arrived at the scene about 10 minutes later noticed evidence of intoxication.  She was taken to a police station.  The blood test which I have mentioned was taken and medical attention was sought for the applicant who seems to have fallen down.

It is of course well known that both Kingsford Smith Drive, the Gateway Arterial and the Pacific Highway are heavily trafficked roadways.  The applicant's explanation for the circumstances leading up to the events which I have just described was that she was taken to lunch by her new employer, and after lunch they went to a hotel, where apparently they continued drinking until she got into her vehicle and drove off and shortly after was observed on Kingsford Smith Drive in the way which I have mentioned.

It was, in other words, a serious case of the dangerous operation of a motor vehicle, and it might be thought that both the applicant and other road users were fortunate that the course of conduct for which the applicant was sentenced ended with relatively minor injury to one person.

The plea, as I have said, was a timely one.  The applicant, apart from the conviction to which I have referred and driving on an expired licence is a person of good character who was well thought of.  She was at the time she was sentenced a student in part-time employment.  It is material to note that in the course of the submissions on her behalf, it was submitted that among the options which might be invoked for sentencing was the imposition of a substantial fine.  That may explain why the issue of the applicant's ability to pay was not canvassed in extensive detail in the Court below.

The applicant, of course, was sentenced for a course of driving which extended over the duration of the journey which I have described.  The learned sentencing Judge, as he was entitled, took account of the whole course of conduct in respect of the imposition of the sentence in respect of the first of the counts on which he sentenced the applicant. I mention that because that consideration needs to be borne in mind in considering the sentence which was imposed.

It is true that the applicant may have been properly described as a hard working young woman with substantial talent.  She is now, the evidence before the sentencing Judge revealed, endeavouring to get her life back on track having appreciated the consequences of her conduct.  It was also drawn to the sentencing Judge's attention that she had written off some $25,000 which she had put towards the purchase of her vehicle, which was damaged in the accident.  That however is a frequent and foreseeable outcome of engaging in dangerous driving and the extent to which it might ameliorate any penalty must not be of any great weight.

I am not persuaded, having regard to the seriousness of the course of conduct, the roadways on which it took place, the period of time over which it extended, the fact that the applicant had not long before been convicted of the identical offence and the relatively minor consideration that she was driving with her licence expired; all those factors to my mind notwithstanding the factors that have been canvassed in support of a lower sentence demonstrate that the sentence imposed was within the range of a sound sentencing discretion.

That is not to say that for example a lesser period of suspension of the driver's licence may not also have been within the appropriate range available in the exercise of a sound sentencing discretion, but in the circumstances of this case, that factor, it seems to me, does not justify intervention by this Court.

Reference was made to a number of cases.  I do not propose dealing with them in detail.  They, as occurs in cases of this kind, have factors which weigh in favour of taking a lesser or a more stringent view of the sentence than the sentencing Judge took.  It is as I say, in my view a sentence within the exercise of a sound sentencing discretion given the characteristics of the activity which I have already mentioned.

I would therefore refuse leave to appeal.

THE PRESIDENT:  I agree.  The course of driving was serious, another road user suffered injury, her blood alcohol level was substantial, and the applicant had a prior conviction for a similar offence.

The sentence imposed was not manifestly excessive and I specifically join with Justice Moynihan and his comments as to the disqualification period.  I agree with the order proposed.

DUTNEY J:  I agree.  It is difficult to regard the imposition of a substantial fine on top of a suspended sentence of imprisonment as manifestly excessive having regard to the very high likelihood that driving of the type described by Justice Moynihan over a distance of at least three kilometres on a road as busy as Kingsford Smith Drive and on the Gateway Arterial road would result in injury as occurred, and perhaps serious injury to others with the misfortune to be in the vicinity at the time.

I do not consider a five year disqualification although high to be inappropriate in the circumstances of the applicant being a recent repeat offender.

THE PRESIDENT:  The order is the application for leave to appeal is refused.