R v Neil[2001] QCA 41

COURT OF APPEAL

de JERSEY CJ

DAVIES JA

MULLINS J

Appeal No 363 of 2000

THE QUEEN

v.

SIMON ALEXANDER NEIL

BRISBANE

DATE 15/02/2001

JUDGMENT

MULLINS J:  This is an application for leave to appeal against the sentence of 18 months imprisonment suspended after four months for an operational period of two years that was imposed on the applicant who pleaded guilty to dangerous operation of a motor vehicle with circumstances of aggravation, namely that the applicant was adversely affected by an intoxicating substance.

The applicant was also disqualified from holding or obtaining a motor vehicle licence for two years.  The applicant submits that the appropriate sentence would have been to suspend the sentence after one month's imprisonment. 

The circumstances of the offence were that the applicant drove his van from a shopping centre onto the incorrect side of Gladstone Road, Highgate Hill.  This occurred at about 4.40 p.m. with a busy traffic flow in both directions.  An oncoming vehicle swerved to avoid the applicant's vehicle but was still struck on the side.

The applicant remained on the incorrect side of the road and then collided head on with a four wheel drive vehicle.  The occupants of each of the vehicles with which the applicant's vehicle collided suffered injuries.  The applicant's passenger was injured.  The applicant sustained the most severe injuries as he had a broken leg which required surgery and he was hospitalised for almost two weeks.

Immediately after the accident the applicant admitted to police that the accidents were his fault.  He also admitted that he had taken methadone that morning and had self administered some heroin which he had purchased.  A specimen of his blood was analysed which showed a concentration of morphine and a concentration of codeine at such a therapeutic level which, according to the medical evidence, could affect skills such as safely operating a motor vehicle.

The applicant was born on 27 March 1969 and was therefore 30 years old at the date of the offence.  His traffic history was extensive and relevantly included four convictions for driving with a prescribed concentration of alcohol which offences occurred between 1990 and 1995.

After being discharged from hospital the applicant immediately registered with the Roma Street Clinic of the Alcohol and Drug Service for treatment for drug dependence.  He has been compliant with all aspects of that program.  The applicant entered into an agreement with the insurer of the four wheel drive vehicle to repay the damage bill of $17,589 by way of $50 per month.

The applicant decided to go back to school and regularly attended classes during the year 2000 and completed the external senior examinations for four subjects to qualify for entry to university. 

The learned sentencing judge was referred to the decision of the Court of Appeal in Coake CA No 403 of 1998, 5 February 1999, where the offender pleaded guilty to one count of dangerous driving with a circumstance of aggravation, that he had a blood alcohol content of 0.201.  He was sentenced to two years imprisonment suspended after eight months with a two year operational period.  After an emotional upset the offender drank to excess and then drove his motor cycle when he was noticed by police and a chase ensued at speeds of up to 120 kilometres per hour in a 60 kilometres per hour zone.

The offender rode through a red light and other vehicles had to stop and take evasive action.  The offender was 33 years old with one conviction 12 years previously for driving under the influence of liquor.  The need for deterrence was emphasised in the judgment of the Court and the sentence was held to be within range.

The applicant's counsel submits that the circumstances of the applicant's offence are less serious than in Coake and relies on this Court's decision in Hamilton [2000] QCA 286, 21 July 2000.  That offender pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm.  On appeal a sentence of 12 months imprisonment to be served by way of intensive correction was imposed.

The offender was much younger than the applicant, being 17 years at the date of the offence.  He drove though a red light and collided with a taxi and the driver of the taxi suffered severe injuries.  There was no deliberate course of reckless driving.  The offender had failed to notice the red light.  There was no alcohol or drugs involved and the offender showed immediate remorse.

It is apparent that the circumstances of the applicant's offence can be distinguished from the factors which prevailed in the offender's favour in Hamilton.  Here the applicant was 30 years old, was reckless in driving after taking drugs and had a poor traffic history. 

The learned sentencing judge took into account the efforts that the applicant has made since committing the offence in endeavouring to overcome his drug addiction and turn his life around, but the learned sentencing judge also properly recognised the need for deterrence in relation to this type of offence.

There was no error of principle in the sentencing process.  In all the circumstances I cannot conclude that the sentence is manifestly excessive.  I would refuse the application.

THE CHIEF JUSTICE:  I agree.

DAVIES JA:  I agree.

THE CHIEF JUSTICE:  Yes, the application is refused.