R v Dingle[2003] QCA 7

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  Justice Williams will deliver his reasons first.

WILLIAMS JA:  This is an application for leave to appeal against sentence imposed after the applicant was convicted by the jury of the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol.  The sentence in fact imposed was imprisonment for six years.  Because the level of alcohol was .19, pursuant to section 328A of the Criminal Code the maximum penalty was 14 years imprisonment. 

The applicant has appeared in person in support of the application and most of the matters that he has raised, both in his brief written outline and orally, tend to go to the issue of conviction rather than the severity of the penalty.  I should say that the Court has perused briefly the parts of the transcript, including the photographic exhibits, about which some complaint has been made.

It seems that the case against the applicant was an overwhelming one.  There is nothing in the photographic evidence to cause this Court any concern.  The evidence establishes that the applicant had been drinking at the Queensland Hotel in Bundaberg until about 12.30 a.m. on 3 July 2001.  He then drove his motor vehicle some six or seven kilometres before turning into Kendall's Road.  At that point his vehicle collided with a cyclist.  The applicant conceded in this Court that he did not see the cyclist at all prior to the collision.  The investigation by the police indicated that the cyclist was struck approximately 95 centimetres from the lane edge.  The bicycle was fitted with front and rear lights and also had various reflectors affixed to it. 

The incident occurred at approximately 12.49 a.m. and it was at 1.22 a.m. that a breath specimen from the applicant was analysed and revealed a blood alcohol concentration of .19.  Police investigators at the scene observed and took photographs of a stubby of beer, Fourex beer, which was located on the roadway immediately to the rear of the applicant's motor vehicle. 

Attempts to fingerprint or obtain DNA samples from it were impossible because as the investigating police officer said, "It was wet on the outside."  In the course of argument prior to evidence being given before the jury at the trial, counsel for the applicant referred to the fact that there was condensation on the bottle. 

The only other relevant matter which need be recorded is that  the police investigations established that the applicant's vehicle had travelled for at least 70 metres past the point of impact.  There were 70 metres from where the deceased was lying on the roadway to where the vehicle came to rest. 
 

In the course of his sentencing remarks the learned District Court Judge said it was one of the clearest cases of dangerous driving; he also referred to the fact that the applicant was heavily intoxicated and driving with complete disregard for the interests of other road users.  He said that the applicant failed to keep a proper lookout, and was incapable of reacting to an emergency.  He also referred to the failure to stop as he should have been able to immediately after the collision.

The learned sentencing Judge then said, "I find also you were drinking from the stubby found on the side of the road as you had driven to the point of collision."  That is a matter which the applicant has challenged on the hearing of this application.  He denies that he was drinking from the stubby. 

Certainly there was material before the Court which would support the drawing of an inference that the applicant had been drinking from the stubby that was found there.  But it does seem to me that in the long run whether or not the applicant was drinking from the stubby was of little moment so far as the issue of sentence is concerned.

The learned sentencing Judge also referred to the absence of remorse and that seems to also be borne out by the material before the Court. 

In determining that a sentence of six years was appropriate and gave effect to the issue of general deterrence the learned sentencing Judge referred to the matters of Lennon and McKinnon.  Lennon, CA 26 of 1999, judgment 26 May 1999, involved an appeal from a sentence of eight years imprisonment with parole recommended after three and a half years for a guilty plea of dangerous driving causing grievous bodily harm where the blood alcohol reading was .275.

The Court of Appeal reduced the sentence to six years imprisonment.  In that case the blood alcohol reading was higher than here but it was a plea and also the driving occasioned grievous bodily harm rather than death. 

In McKinnon there was a plea of guilty to dangerous driving causing death.  The sentence was six years imprisonment with a parole recommendation after two and a half years.  The blood alcohol reading in that case was .219.  Again, the blood alcohol level was higher but there was a plea of guilty.

In my view those authorities do support a sentence of six years imprisonment.  Given all the circumstances of this case, in my view leave to appeal against sentence should be refused.

THE PRESIDENT:  I agree. 

CULLINANE J:  I also agree.

THE PRESIDENT:  The order is the application for leave to appeal against sentence is refused.  Thank you, Mr Dingle you can terminate the link now, thank you.