R v Plath[2003] QCA 567

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  The appellant was convicted after a trial in the District Court at Bundaberg of the offence of dangerous operation of a motor vehicle causing grievous bodily harm.  He was sentenced to 18 months imprisonment, suspended after six months, with an operational period of three years, and he was disqualified from holding a driving license for a period of five years.  By his notice of appeal he claimed that the conviction was unsafe and unsatisfactory, and the sentence manifestly excessive.  The appellant, who conducted his own case on appeal, was given leave to add particulars of the allegation that the verdict was unsafe and unsatisfactory, namely:

(i) There was a miscarriage of justice because the trial Judge failed to direct the jury on a defence that was fairly raised on the prosecution case, namely section 24 Mistake of Fact;

(ii) There was a miscarriage of justice because the jury should have been left with a reasonable doubt but the Judge unfairly influenced the jury by giving an unbalanced summing up against me and he undermined the defence case by unfairly being dismissive of the defence arguments;

(iii) There was a miscarriage of justice because the Judge failed to give the jury adequate and specific legal directions about how the jury could use my written statement.

[2] The incident in question occurred at about lunch time on 21 December 2001 when the weather was clear.  There was reasonably heavy traffic about, it being just before Christmas, and the incident occurred in a commercial part of the city of Bundaberg.  There is no doubt that a young woman, Kerri-Ann Reis, was struck by the appellant’s motor vehicle causing her grievous bodily harm.  On the prosecution case, supported by evidence from a number of witnesses, Ms Reis was standing stationary within a painted traffic island in the centre of the roadway when she was struck.  The prosecution case was that the appellant drove dangerously by failing to keep a proper lookout, by overtaking another vehicle when it was unsafe to do so, driving on the incorrect side of the roadway, and driving too close to the vehicle in front.

[3] The appellant did not give evidence at the trial but a statement he made about three months after the incident to an insurance loss assessor was received in evidence.  In his summing-up the learned trial judge told the jury that that statement, though not made under oath, was “evidence from him that you may and must take into account.”  It is clear that the appellant’s case at trial was that the incident occurred as described in that statement.  The learned trial judge read that statement to the jury in the course of his summing-up and he also pointed out that it was supported by the evidence of the passenger in the appellant’s car.

[4] According to the appellant in that statement he was following a green car which slowed down indicating an intention to turn left into a parking space.  Relevantly it went on:

“As it veered slowly in, I pulled out to the right.  I then accelerated from about 45 KPH to about 50 KPH to pass the vehicle when all of a sudden, a girl bolted out onto the road on the left in the front of the green car and into the middle of the road directly in front of my car.  When I first saw her, she was running across the line – across the white line on the right-hand side of the car parking space in which the green car had turned into, at about half a car length in front of me.”

[5] In the course of the summing-up the learned trial judge reminded the jury that the appellant had said to a number of persons at the scene that he did not see the girl, and he also reminded the jury that the driver of the other vehicle did not see the girl run in front of that vehicle.  They were observations which, in my view, the learned trial judge was entitled to make.  He told the jury on a number of occasions that his observations on the facts were in no way binding on them.

[6] The learned trial judge gave the jury a full and proper direction as to what constituted dangerous driving. 

[7] The submission by the appellant that the learned trial judge failed to leave a defence based on s 24 of the Criminal Code to the jury is without merit.  Section 24 has no application in a situation such as this.  The appellant’s contention is that he had an honest and reasonable belief that it was safe to go around the car ahead of him and that he honestly and reasonably believed that there was no pedestrian on the road.  Those matters go to the very heart of the issue whether or not there was dangerous driving.  One does not need to engage s 24 in order to make a reasonable belief held by the driver of the motor vehicle relevant when determining whether or not the vehicle was driven dangerously.  Attempting to direct on s 24 in the circumstances would only have confused the issue in the minds of the jury.

[8] As already noted the jury was clearly told that the appellant’s out of court statement admitted into evidence constituted evidence which they had to take into account when considering whether or not they were satisfied beyond reasonable doubt that the appellant’s driving was dangerous.  In consequence the appellant has not made out his contention that the jury were not told how they could use that written statement.

[9] In the course of submissions the appellant referred to Edwards v The Queen (1993) 178 CLR 193.  The reasoning therein was not relevant to the circumstances here; the prosecution never relied on lies told by the appellant as evidencing consciousness of guilt.  At most the prosecution drew attention to inconsistencies between statements made by the appellant (particularly as to whether he saw the pedestrian before impact) and those inconsistencies were again referred to by the learned trial judge in his summing-up.  References to inconsistencies in that way did not necessitate the giving of an Edwards direction.

[10]  As already noted the learned trial judge did make some comments on the facts and endeavoured in the course of his summing-up to contrast the prosecution and defence cases.  The appellant contends that the learned trial judge in his summing-up was dismissive of arguments that the appellant’s barrister had made to the jury.  In consequence it was said that the summing-up was unfair and unbalanced.

[11]  Having read the summing-up that is not the impression that I was left with.  If contrasting the prosecution and defence cases left one with the impression that the prosecution case was stronger, that was merely because of weaknesses in the defence case.  Those weaknesses were not over-emphasised by the learned trial judge in his summing-up.  The summing-up was not unbalanced.

[12]  Having considered the evidence and the summing-up I am not satisfied that the verdict of guilty was unsafe and unsatisfactory.  The appeal against conviction should be dismissed.

[13]  The appellant was aged 24 at the time of the offence (he was born on 5 April 1977) and thus 26 when sentenced.  He had a not insignificant traffic history, and a criminal history containing a number of convictions for relatively minor offences since 1999.  His driver’s license had been cancelled in 1997 because of the number of demerit points accumulated, and he had a conviction for unlicensed driving in 1999 and for careless driving in 2002.  The criminal convictions had always resulted in a fine being imposed; this was the first occasion on which a sentence of imprisonment was imposed.

[14]  The learned trial judge made it clear he was sentencing the appellant on the basis of a momentary departure from the proper standard, constituted by failing to see the pedestrian until it was too late.  Because he had been following too closely behind the other vehicle he pulled out to overtake without being able to see what was ahead.  The learned judge on sentence also noted that the appellant had shown no remorse.

[15]  A review of the relevant authorities demonstrates that a sentence of 18 months imprisonment, suspended after six months, was well within the appropriate range for an offence of this type.  The appellant pointed out on appeal that there was no suggestion of alcohol involved, and that is true.  But as the evidence in this case demonstrates the consequences of dangerous driving are very severe for the victim and the community has an interest in seeing that persons who commit offences of this type are appropriately punished.

[16]  In the circumstances I am not persuaded that a sentence of 18 months suspended after six months with an operational period of three years was manifestly excessive.

[17]  The learned sentencing judge described the appellant’s traffic history as “deplorable”, and it certainly warrants such a description.  The final question is whether or not disqualification from holding a drivers license for a period of five years was warranted in the circumstances.

[18]  It appears that prior to the trial the appellant had been in reasonably regular employment, most recently as a tractor driver.  His other employment included work as a labourer, a field hand, and a groundsman at a local school.  Given the nature of his employment the inability to hold a drivers license would constitute a significant hardship.  The appellant is a young man and the community has an interest in seeing that he rehabilitates himself as quickly as possible after his release from prison.  That rehabilitation will to a large extent be dependent upon his finding gainful employment and becoming self-supporting. 

[19]  Whilst it is true that with a disqualification for five years the appellant could apply for the disqualification to be removed after two years pursuant to s 131(2) of the Transport Operations (Road Use Management) Act 1995, long term disqualification could well be a disincentive to him to rehabilitate himself.

[20]  In my view adding a five year disqualification to the sentence otherwise imposed makes the totality of the sentence manifestly excessive, and I would reduce the disqualification to a period of 12 months.  That means that the appellant would have to wait for six months after serving six months imprisonment before he could obtain a driver’s license.  Of course, were he to continue to breach the traffic laws any future loss of license would be for a significant period.  The gaol sentence and disqualification should provide an incentive to the appellant to improve his driving habits.

[21]  In the circumstances I would vary the sentence as indicated.

[22]  The orders of the court should therefore be:

(1) Appeal against conviction dismissed;

(2) Grant leave to appeal against sentence, and allow the appeal to the extent only of varying the period the appellant was disqualified from holding a drivers license from five years to 12 months.

[23]  CHESTERMAN J:  I agree with Williams JA.

[24]  McMURDO J:  I agree with the reasons of Williams JA and with the orders he proposes.