Merrill v Attorney-General[2002] QCA 263

COURT OF APPEAL

DAVIES JA

WHITE J

WILSON J

CA No 86 of 2002

THE QUEEN

v.

BRISBANE

DATE 25/07/2002

JUDGMENT

WHITE J:  This is an appeal by the Attorney-General against a sentence of four years imprisonment with eligibility to apply for post-imprisonment release after serving nine months, and an absolute disqualification from holding a driver's licence imposed on the respondent after he pleaded guilty on ex officio indictment to the dangerous operation of a motor vehicle causing death while adversely affected by alcohol.

The respondent was aged 20 years at the time of the offence which occurred at about 7.30 p.m. on the 31st of May 2001 when the motor vehicle, which he was driving, came into collision with that driven by the deceased towards the foot of Crosby Hill at Buderim.  The respondent had an extensive record for breaches of the Traffic Act, including eight offences for driving in excess of the speed limit, some at least 30 kilometres per hour over the designated limit.

He had one offence of driving while under the influence of alcohol imposed on the 3rd of November 2000.  He was disqualified from driving for three months on 20 February 2001 after disobeying a restriction against driving after the consumption of alcohol.  That disqualification expired on 19 May 2001 and, as can be seen, that was just a short time before this offence.

On the day of the offence the respondent had drunk three to four schooners of full-strength beer and two to three shots of bourbon from about 4 o'clock in the afternoon.  He held, as I have said, a restricted licence which did not permit him to drive after drinking alcohol.  Nonetheless he drove three workmates from the hotel towards Buderim in a borrowed BMW motor vehicle.

From the outset he showed off, attempting to spin the wheels on leaving the hotel car-park and, according to the front passenger, reaching approximately 150 kilometres per hour going down the hill in an 80 kilometre hour zone.  The respondent was familiar with this part of the road.

He maintained that he was encouraged to speed by his passengers while the passengers maintained that they had sought to curb him.  It was unnecessary for the purpose of sentence for this conflict to be resolved.  The respondent's car failed to hold the road in a sweeping bend and slid across the road into a head-on collision in the middle of its incorrect lane with the car driven by the deceased, a young woman of 30, who was killed virtually instantly.

The respondent claimed to investigating and interviewing police that the deceased's vehicle was on its incorrect side of the road, but he later made admissions as to his culpability.  His blood alcohol reading was point 097.  The weather was fine and the road was dry.

The respondent received only superficial injuries whilst those sustained by his passengers were more serious.  This was not a case of momentary inattention.  The evidence suggests that the BMW had been on its incorrect side of the road for some 59 metres and, of course, the excessive speed was grossly dangerous. 

The Attorney-General contends that the sentence is manifestly inadequate in that it fails to reflect adequately the gravity of the offence generally and, in this case, it failed to take into account sufficiently the aspect of deterrence and that too much weight was given to factors going to mitigation, namely the respondent's youth and personality defects arising from aspects of his upbringing.

The prosecutor below submitted to the learned sentencing judge that the head sentence, "would be something in the order of four to six years."  And Mr Moynihan for the respondent before this Court contends that the Attorney is bound by that submission.  Mr Rutledge for the Attorney-General submits for a range of five to seven years with a sentence actually to be imposed of five years imprisonment.

The maximum term of imprisonment for this offence is 10 years if the concentration of alcohol in the offender's blood is under 150 milligrams of alcohol per 100 millilitres of blood.  Equal or over that amount of alcohol attracts a maximum penalty of 14 years.

The prosecutor below tendered a schedule of cases for dangerous driving causing death and grievous bodily harm whilst intoxicated.  Where death resulted, the cases show a penalty as high as nine years imprisonment for a particularly bad case in Vessey CA 453 of 1995, to six and a half years when two passengers were killed in Sanderson CA 134 of 1998 to three years suspended after nine months on an Attorney-General's appeal in Cusack CA 90 of 2000 to as low as two years in Tricklebank CA 143 of 1993, not disturbed on an Attorney-General's appeal.

Where the measured amount of alcohol was above point 15 and with past traffic offences, the penalty, not surprisingly, was higher, but lesser penalties were undisturbed even with significant drink-driving offences.  Thumm CA 186 of 1999 was referred to the learned sentencing judge and has been relied upon by Mr Rutledge before us.  That was an Attorney-General's appeal.  The sentence was one of four and a half years with parole after 15 months.

In that case the offender had been drinking for an extended period. An approximation of his blood alcohol level was point 18 per cent.  He drove his motor cycle in a suburban street at the speed of 90 to 100 kilometres per hour and swerved to avoid hitting a car turning into a driveway, lost control, mounted the footpath and killed a pedestrian.

He was aged 25, was unlicensed to drive and had previous convictions for unlicensed driving with a blood alcohol content of point 142 per cent.  The offender was accepted as showing general remorse.  He had made a late plea of guilty.  He suffered post-traumatic stress disorder after the event, as has the respondent here, and had episodes of sexual abuse in his childhood leaving him with an excessive fear of prison, as seems to be the case here as reflected in the psychiatric reports.

The prosecutor had contended for a four to six year range below in Thumm.  On appeal a five year term was sought.  The combination of a low head sentence and a very early recommendation was submitted to be manifestly inadequate.  The head sentence of four and a half years was said by the Court of Appeal to be at the bottom of the range which might be imposed for an offence of this kind.

However, combined with what the Court described as the unduly generous non-parole period, the sentence was said to demonstrate error and a non-parole period of 21 months was substituted for that of 15 months, but the sentence was otherwise left undisturbed.

Purcell CA 192 of 1999 was particularly referred to below as here, although it was a case of dangerous driving causing grievous bodily harm.  The Court reviewed extensively the cases and allowed an Attorney-General's appeal marking factors such as deterrence, the need for consistency in sentence, and the circumstances of a recent, previous charge of drink driving by that respondent. 

The Court noted the good work history of the offender which is often the case in offences of this kind and, again, that is the case with this respondent.  Mr Moynihan has referred to Cusack, an Attorney-General's appeal.  The sentencing Court had imposed a wholly suspended term of imprisonment of three years with an operational period of four years.  The issue, on appeal, was largely whether imposing a non-custodial sentence was within range.  The Court concluded that it was not and the offender was required to serve nine months of the suspended sentence, while the operational period was reduced to three years.

In that case a utility rolled over killing one of the passengers who was in the tray.  Speed, but not excessive speed was involved as well as alcohol and the intention, the Court accepted, had been to drive a very short distance at night in Mt Isa.  The offender had a bad traffic history.

Justice Thomas noted at page 5 of the reasons that over the years the attitude of the community and, in turn, the Courts had hardened towards offences of this kind.  Mr Moynihan also referred the Court to the recent decision of this Court in Hine CA 31 of 2002 where a 26 year old with relevant traffic history drove his vehicle at approximately 80 kilometres per hour whilst having a blood alcohol content of point 139 per cent down Logan Road through an intersection, through a red light and collided with the rear of the complainant's vehicle that was stationary at another red light.

The complainant suffered a closed head injury and had continuing effects from that accident.  A sentence of four years imprisonment with a recommendation of parole after 18 months was not disturbed. 

Here the contemptuous disregard for the users of the roads demonstrated by this respondent's previous traffic history, together with the serious warning given to him by the disqualification from driving after ingesting any alcohol, makes this a very bad case in my view.

There is no doubt about the remorse which was expressed by way of apology to the family of the deceased young woman, but then there usually is remorse in cases of these kinds where an innocent person has died or been seriously injured.  It was noted below and should be noted here, the generous attitude of the young woman's parents.

As the Court noted in Thumm, in R v. Melano ex parte Attorney-General [1995] 2 Queensland Reports 186, the question was said to be whether the sentence imposed was outside the scope of a proper sentencing discretion.  The Court should not allow an appeal under section 669A(1) unless it could be so described.

The mere fact that judges sitting on appeal may have imposed a more severe sentence is insufficient.  Intervention will not occur on an Attorney-General's appeal unless the sentencing judge has erred in principle, either because an error is discernible or is demonstrated by a manifest inadequacy of sentence.

In my view the combination of a sentence of four years with a parole recommendation after only nine months makes this sentence manifestly inadequate.  Too little regard seems to have been given to the respondent's very bad driving history.  But one must bear in mind his youth, his good work history, his clear expressions of remorse and his attempts at rehabilitation, particularly from excessive consumption of alcohol and also that restraint ought to be shown on an Attorney-General's appeal.  Had I been at liberty to set the sentence, I would have thought that five years was more apt for this conduct.  I propose that the head sentence not be altered, particularly bearing in mind the range that was put to the learned sentencing judge, and vary the order below to the extent of suspending the sentence after 15 months.

So I would allow the appeal and change the orders below only to the extent that the term of imprisonment be suspended after 15 months.

DAVIES JA:  I agree.

WILSON:  I agree.  The head sentence was within range but certainly towards the bottom of the range.  The non parole period cannot be supported.

DAVIES JA:  The orders are as indicated by Justice White.

MR MOYNIHAN:  Your Honours, I'm sorry, I may have misheard, but if - was the order that the sentence be suspended after 15 months?  If that was the order then there will be a need to be an operational period.

WHITE J:  With an operational period of four years, Mr Moynihan.

DAVIES JA:  Yes.

WHITE J:  That would be my‑‑‑‑‑

DAVIES JA:  Yes.  Yes, thank you.