R v Breckenridge[2001] QCA 448

COURT OF APPEAL

McMURDO P

DAVIES JA

AMBROSE J

CA No 194 of 2001

THE QUEEN

v.

COLIN ROBERT BRECKENRIDGE Applicant

BRISBANE

DATE 16/10/2001

JUDGMENT

AMBROSE J:  On 10 July 2001 the applicant pleaded guilty to a charge that on 24 October 1999 he dangerously operated a motor vehicle on a roadway causing grievous bodily harm and that at that time he committed that offence he had a blood alcohol concentration exceeding .15 per cent.

He also pleaded guilty to the summary offence of driving a motor vehicle whilst under the influence of liquor but having regard to the sentence imposed upon the indictable offence no further punishment was imposed.

He was sentenced on the indictable offence to imprisonment for five years to be suspended after serving two years and two months with an operational period of five years and he was disqualified absolutely from holding or obtaining a driving licence.

At the time of the offence the applicant was 40 years of age and when sentenced he was 42 years of age.  In 1980 and 1985 he had convictions for minor drug offences.  Between 1981 and 1997, a period ending about two years and 10 months prior to the commission of the offence for which he was sentenced, he had been convicted on six offences of driving a motor vehicle under the influence of alcohol and penalties were imposed with respect to each of those charges when convicted.  He had also been convicted of a number of traffic offences.  So he had a bad driving history.

When imposing sentence the learned sentencing Judge observed that at the time of the offence he had a concentration, in fact, of .235 per cent blood alcohol.  Prior to the commission of the offence it had been suggested to him, at the hotel, that he not drive because he was affected by alcohol.  However, he disregarded this advice.

The learned sentencing Judge pointed out that the maximum imprisonment for the offence to which he pleaded guilty, with the admitted circumstance of aggravation, was 14 years' imprisonment.  His Honour commented on the fact that his intoxication at the time of the offence might be partly explained by the fact that the applicant had a bipolar disorder, that is, a manic depression.  He observed that the applicant had not been taking his prescribed medication properly and that this perhaps was attributable to personal difficulties he was having at the time in Family Court proceedings with respect to access to his daughter.

His Honour commented on the fact that apart from the plea of guilty, which he took into account, the applicant seemed to express no remorse.  He commented that it was conceded by the Crown that a submission by his counsel that a sentence of imprisonment for five years would be appropriate although a longer period might also be appropriate.  He considered whether making an order for earlier eligibility for parole or the imposition of a suspended sentence was appropriate and was persuaded by the applicant's counsel that rehabilitation of the appellant from his bipolar disorder and from his addiction to alcohol might be more readily achieved by a suspended sentence than by imposition of a longer sentence with a recommendation for early eligibility for parole.

He reached this conclusion, I think, on the basis of the manner in which a person serving a sentence of imprisonment is categorised having regard to the date of suspension of that imprisonment.  His Honour remarked that the appropriate term for imprisonment was one of five years and that suspension of service of that imprisonment after two years and two months with an operational period of five years would be appropriate in the circumstances.

It is clear, therefore, that the learned sentencing Judge suspended the five year period of imprisonment imposed so that the applicant would be released from custody at a time four months earlier than he would have been eligible for release had his sentence not been ameliorated by a recommendation for an early eligibility for parole.  He desired to achieve this result to take into account the early plea which had been entered by the applicant and the manner in which he had cooperated with the police officers investigating the offence.

Although a significant period of time elapsed between the commission of the offence and his plea of guilty, it was not in issue that the applicant had fully co-operated with police officers investigating the matter and was in no way apparently responsible for the period of nearly one year and nine months which elapsed between the commission of the offence and his plea.

Although, unfortunately, the record of interview was not included in the appeal record, in the course of submissions on sentence counsel for the applicant described the bipolar problems from which the applicant had suffered as, "by no means overwhelming," and observed that those problems required self-cure.  He referred to the record of interview which was not tendered and made the following observation which apparently persuaded the sentencing Judge to impose the sentence which he did, substantially in accord with the submissions.  He said:

 "In the record of interview" -

that is, the applicant's record of interview -

 "he indicated that he had been diagnosed as suffering from a bipolar disorder.  He has been diagnosed and I am going to just put this on the record, your Honour, rather than burden you with the psychiatric report.  I've shown this to the Crown and I understand there is no issue.  He has suffered from manic depression and this bipolar disorder.  The critical thing is that his depression was in a sense exacerbated by an unfortunate and prolonged matter in the Family Court.  He clearly has an alcoholic problem.  After this matter, he started to get treatment by way of rehabilitation treatment and that occurred at the Logan/Beaudesert District Health Service, and I understand the Crown accept or are prepared to agree that in fact he has been getting treatment.  His instructions to me are that he had one outbreak where he went on a binge for some time but since the accident according to the treating psychiatrist he has proceeded in a constructive manner with a variety of tasks that they perceive to be essential to rehabilitation.  I would ask your Honour to accept for sentence purposes that he has attempted to self-rehabilitate and has been generally successful."

Well, that was the essential submission made based upon the psychiatric report which was not tendered.  His counsel also referred to the type of problems from which the applicant suffered - that is, alcoholism and depression - and submitted that a suspended sentence would be more effective than a recommendation for early eligibility for parole.  He conceded the applicant's problem with alcohol and drugs and observed that he had an addictive personality.

The person suffering bodily harm as a consequence of the offence committed by the applicant was left with a shortened leg and no ankle movement. His serious injuries included comminuted fractures of bones in his right ankle area.  The learned sentencing Judge referred to the serious nature of the injuries the victim of the offence had suffered.

The Crown Prosecutor made submissions concerning the problems from which the applicant suffered as a result of both his consumption of alcohol and his bipolar disorder. 

The applicant appears before this Court without legal representation.  With respect to the comment of the sentencing Judge that he expressed no remorse for the offence, he complains that he was never asked by anybody if he had anything to say and that, indeed, he was truly sorry for the injury he'd caused to the victim of his offence.

He complains that between the time of the offence and the time of his sentence he had been successful in controlling his consumption of alcohol with the help of a rehabilitation counselling service and that this had not been mentioned at his sentencing.  It had, however, clearly been mentioned by his counsel. 

He complains that the sentencing Judge proceeded on the basis that the Family Court had denied him access to his daughter.  He said that this was incorrect and that consent orders were in force at the material time, that is, at the time of the offence.

The applicant's principal contention really is that on the date of the accident he was manic which was shown from the way he had spoken on the telephone to his parents and also to his case manager at the Beenleigh Mental Health Institution, a woman named Jackie Beauford.  He asserts that that case manager had, in fact, made contact with police officers to come and get him because of his mental condition which she had perceived in a telephone conversation she had had with him on the day of the offence.

He says that his understanding was that police officers had tried to make contact with him but had failed to do so.  He complains that these matters were not mentioned by his counsel in Court and he could not understand why.  He conceded, however, in his submissions, that his counsel may not have been aware of this matter and, indeed, that the psychiatrist who gave a report, which was not tendered but which was referred to by his counsel, may not have been aware of what the applicant understood Jacki Beauford, his case manager, would say.

Essentially he complains that a proper and adequate submission was not made by his counsel on his behalf at the time of sentencing concerning his mental condition and the part it played in his committing the offence.  He has exhibited to his outline of submissions a copy of the report from his psychiatrist, Dr Gynther, dated 22 December 2000.

That report was provided a little over 15 months subsequent to the commission to the offence and several months prior to the date of his sentence.  The report contains a detailed record of various psychiatric treatments that he received over the years but, most importantly, expresses this psychiatric opinion:

 "It is also possible that the period of mood instability present in the weeks prior to the accident was the result of the early stages of hypomanic relapse and that was diagnosed eight days after his admission.

 His anger together with the intoxication is likely to have contributed to his decision to drive while intoxicated.

The psychiatric opinion continues:

 "It is my understanding that if found guilty of the alleged offences Mr Breckenridge may receive a gaol sentence.  As gaol would delay him commencing work and obtaining access to his daughter, it is my opinion, that it would significantly impede his rehabilitation."

For obvious reasons the applicant would have preferred that that material be placed before the sentencing Judge.  However, his counsel, who was very experienced in matters of this kind, decided that it should not be tendered and he made this decision in the course of submitting that an appropriate sentence would be one of five years with an operative period of five years with a suspension after the service of 18 months or a little bit longer.

A further medical report dated 25 September 2001 is attached to the material the applicant has submitted to support his application. That report became available long after the imposition of the sentence.  It is unnecessary to analyse its content which really seems to comment upon the report of Dr Gynther of 22 December 2000.

A letter from a social worker dated 24 September 2001 - that is, again after the sentence of the applicant - makes certain comments as to his regular attendance for treatment at the health centre.  However, this is a matter which his counsel also indicated in his submissions to the sentencing Judge. 

In my view, the reference to the sentencing remarks of the learned sentencing Judge indicates that he took into account in substance the various matters to which reference was made in the psychiatric report which his counsel determined for forensic purposes, no doubt, not to tender.  There is no material as to what the lady, Jackie Beauford, would say if a statement were obtained from her.  There is no material to indicate whether she would be prepared to give a statement in terms of that suggested in the outline of submissions by the applicant.  If she did give that statement, there would obviously be problems of admissibility having regard to her experience and if she gave that statement it is far from clear to me that it would alter significantly the material upon which a proper sentencing discretion would be exercised.

No mention was made of her or what the applicant says she might have said to clarify matters at the time of sentence.

An application for leave to appeal against sentence is not in the nature of a hearing de novo of matters relevant to sentence where this Court will receive and give weight to evidence which experienced counsel in the sentencing process aware of its existence has elected not to place before that Court.  Where evidence is within the knowledge of an applicant for leave to appeal against sentence and that applicant fails to instruct his counsel or his legal representative of its existence or to take steps to bring it to the attention of the Court, then in my view it would only be in rare cases, if any, that this Court would receive such evidence upon an application of this kind.

Again, this Court will only in the most exceptional cases receive evidence which has come into existence subsequent to the date of sentence.

In the circumstances of this case, I am unpersuaded in any event that even if the additional evidence upon which the applicant seeks to rely were received upon sentence, it would demonstrate that the sentence imposed was manifestly excessive.  I would therefore refuse the application for leave to appeal.

McMURDO P:  I, too, would refuse the application for leave to appeal.  Some of the prior convictions for drink driving alleged against the applicant were disputed by him in this appeal.  Even disregarding those disputed convictions and taking into account the appellant's bi-polar disorder and his early plea of guilty, it cannot be said the sentence imposed was manifestly excessive, although a slightly earlier recommendation for parole could have been given.

The applicant committed a serious offence of dangerous driving causing grieving bodily harm while affected by alcohol with a concentration of 235 milligrams of alcohol per 100 millilitres of blood.  His vehicle hit the complainant's vehicle in the applicant's wrong side of the road in an area where the speed limit was 80 kilometres per hour. 

The complainant has been left with a quite serious permanent disability.  It is fortunate that there were not more serious consequences as a result of the appellant's drunken driving.

The appellant even on his own account has a dreadful prior record for drink driving.  It is true that apart from this record and his mental illness, he has in other ways been able to be a responsible citizen, a good worker and a good father, but this is not unusual in cases of this sort.  The applicant's most serious problem is his alcohol addiction. 

The sentence imposed was well within the range.  It was within the range suggested by the applicant's counsel at sentence and is consistent with the range established by cases such as R v Lennon, [1999] QCA 192, CA No 26 of 1999; 26 June 1999;  R v McKinnon [1999] QCA 75, CA No 356 of 1999; 17 March 1999;  and R v Haydon, [1996] QCA 503, CA No 396 of 1996; 13 November 1996.

I agree with Justice Ambrose that the application for leave to appeal must be refused.

DAVIES JA:   I agree also with what has been said.  The main complaint of the applicant here appears to have been that the suspension which he got in respect of his sentence was not at an earlier date. 

It is plain, as Mr Justice Ambrose has already mentioned, that the primary sentence which was imposed was that which was proposed by the applicant's experienced counsel, and I agree that when one looks at the comparable authorities there could be no basis for disputing that.

It is possible that an earlier suspension could have been granted, but I do not think that the suspension which was granted was outside the appropriate range. 

The medical evidence which the appellant sought to adduce before this Court and said should have been adduced before the learned sentencing judge, that is, from Dr Gynther, whose report we saw, did not support the contention which he sought to make here: that he was in a manic phase or had a bi-polar effective disorder when he committed the offence.  Dr Gynther was prepared to say no more, as Mr Justice Ambrose has pointed out, than that this was a possibility at the relevant time. 

The applicant also sought to make relevant a possible statement from a woman, Jackie Beauford, who was apparently a nurse whom he spoke to on the day in question.  But as Mr Justice Ambrose has already mentioned, at least in passing, it seems unlikely to me that that evidence, even if it could have been obtained and was favourable to the applicant, would have been relevant, because Beauford was not an expert.  Dr Gynther was the only one who had any expertise in this matter, and she was not a fact witness of anything particularly relevant.

The appellant's counsel at sentence had the report of Dr Gynther before him, but decided not to put it before the Court.  When one reads his report one can see very good reason tactically why it would have been inappropriate in the applicant's best interest to put the whole of that report before the learned sentencing judge.

In summary, therefore, I do not think there was anything in the points which the applicant, who appeared for himself and argued his case very well, said which entitled him to succeed in this appeal, nor do I think that the sentence as a whole was otherwise manifestly excessive.  I do not think it matters for this purpose that he in fact had six or merely five previous drink driving offences. 

I therefore agree that the application for leave to appeal against sentence should be refused.

THE PRESIDENT:   That's the order of the Court.  Mr Breckenridge, we haven't been able to help you, but when you are released and get this behind you, keep in touch with the mental health people that you've been in touch with and if you can stay off the alcohol, hopefully you'll be able to stay out of prison in the future.