R v Cooke[2004] QCA 28

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  The applicant was convicted after a trial on the 19th March 2003 of dangerous operation of a vehicle causing death and grievous bodily harm on 13 May 2002.  He was sentenced to two and a half years' imprisonment and was disqualified from holding or obtaining a driver's licence for three years.  He applies for an extension of time within which to apply for leave to appeal against that sentence on the basis that it is manifestly excessive when compared to the sentence imposed on his co-offender, Covington.  This application was filed on 27 October 2003, six months out of time. 

Affidavit material deposes that counsel for the applicant advised him after his sentence that he did not have any prospects of success in an application for leave to appeal and he initially accepted that advice.  The applicant's co-offender, however, later successfully appealed against his sentence: see R v Covington [2003] QCA 342; CA No 97 of 2003, 7 August 2003. The applicant then obtained fresh advice as to his prospects of success and after receiving positive written advice from counsel on 20 October 2003, lodged this application seven days later.

The facts of this matter are set out in R v Covington.  This applicant was jointly charged with Covington and Young.  Count 1 concerned the dangerous operation of a motor vehicle, a Ford utility, with circumstances of aggravation of causing both death and grievous bodily harm.  Count 2 was a count in similar terms but concerned the operation of a Gemini sedan.  Count 3 was an alternative count to count 2, relevant to Covington only, of dangerous interference with a motor vehicle with circumstances of aggravation.  Young was acquitted; this appellant was found guilty only of count 2 and Covington only of count 3.

Covington was sentenced to five years imprisonment and was disqualified from holding or obtaining a driver's licence for five years. He was also dealt with for a summary matter of driving whilst disqualified, to which he pleaded guilty and for which he was given no further punishment.

The offences occurred in this way.  On 13 May 2002 six young men, all friends, were driving in two vehicles on the Cunningham Highway near Ipswich.  Covington was the passenger in a utility driven by Young.  This applicant was driving a Gemini with three passengers, including the deceased, Matthew Forsyth, and Benjamin Lehmann, who suffered grievous bodily harm.

Rubbish was thrown from the driver's side of the Gemini towards the other vehicle.  The utility then passed the Gemini and Covington threw two or three plastic bottles back in the direction of the Gemini which was driven by this applicant, who veered to avoid the bottles in a manner that was unnecessary. 

He lost control and crashed the Gemini with tragic consequences.  His best friend, Matthew Forsyth, was killed. The applicant has undergone grief counselling.  He was a pall bearer at his friend's funeral and he was greatly remorseful about his death. 

The fatal accident was preceded by a lengthy period of driving commencing at the Dinmore Meatworks where this applicant and others in the group were employed.  The vehicles travelled at excessive speeds, swerved and fishtailed and together twice overtook another vehicle.

Mr Lehmann was treated initially at the Ipswich General Hospital and then the Royal Brisbane Hospital for brain injuries, a fractured shoulder, a bilateral wrist fracture and a deep laceration to his right ear.  He was in intensive care and underwent plastic surgery and orthopaedic surgical procedures.  He then undertook occupational speech and physiotherapy until his discharge on 29 May 2002 to the Ipswich Hospital pending a rehabilitation bed becoming available at the Princess Alexandra Hospital Brain Injury Rehabilitation Unit.

Victim impact statements tendered at sentence referred to the deep grief suffered by Matthew Forsyth's family and the significant and ongoing problems experienced by the family of Mr Lehmann, who will suffer the consequences of this accident for the rest of his life.

This applicant was 18 at the time of the offence and 19 at sentence, whereas Covington was 20 at the time of the offence and 21 at sentence.  Covington had a concerning history which included a previous conviction for dangerous operation of and interference with a vehicle in 2000, for which he was convicted and fined $500.  He also had an extensive traffic history commencing in 1998 and his licence had been cancelled through demerit points on four occasions.  Covington also committed subsequent offences after he was charged with the present offence on 14 February 2003, when he contravened a direction and failed to stop as directed at a random breath test, drove an unregistered and uninsured motor cycle without a licence and had a false or tampered label on the motor cycle.  This applicant on the other hand had no previous criminal convictions and only two relatively minor entries in his traffic history. 

The learned primary Judge sentenced this applicant on the basis that he undertook a deliberate course of dangerous driving and observed that none of those involved comprehended the danger of the situation they had caused or the seriousness of what they were doing.

The Crown Prosecutor at sentence submitted that the applicant was liable to a penalty between three and five years imprisonment and Covington to five years imprisonment.

In Covington, the applicant made the submission that there was a justifiable sense of grievance between the sentence imposed on the applicant in this appeal, who was the driver immediately responsible for the death and grievous bodily harm and the sentence imposed on Covington.

This Court noted that Covington's:

"conduct in deliberately throwing plastic containers at the vehicle driven by [this applicant] in circumstances where both vehicles were travelling  at very high speeds on a busy highway, makes him no less culpable than [this applicant], who reacted in an unsafe but nevertheless predictable manner, with tragic consequences.  Once it is accepted that [this applicant] and [Covington] were equally culpable there are reasons for imposing a more lenient penalty on [this applicant].  [This applicant] was younger and had a minor traffic history whilst [Covington] had an alarming traffic history and a previous conviction for a like offence, which should have been a timely warning to him about the potential consequences of dangerous conduct in vehicles on the roadway.  [Covington] did not learn his lesson from his previous error and even after the tragic consequences of his behaviour here, he continued to commit other traffic offences."

This Court noted that alcohol or drugs were not involved in this incident and that Covington's youth and immaturity were reflected in his conduct in the commission of this offence which, unlike this applicant, indirectly rather than directly caused the death and grievous bodily harm, and that because of Covington's youth, his rehabilitation remained a relevant factor.  After reviewing the comparable sentences, the Court reduced Covington's sentence to three years imprisonment, suspended after fifteen months with an operational period of four years, noting that the sentence imposed should remain a real deterrent to foolish young people who would behave so irresponsibly and dangerously with cars at high speed on a motorway.

The question now is whether the sentence as amended by this Court in Covington has the effect that the sentence imposed on this applicant is so disparate as to cause a justifiable sense of grievance.  The comparable cases are reviewed in Covington and I will not re-canvass them here.  As noted in Covington, this applicant and Covington were equally culpable, but this applicant, although the driver, was entitled to a slightly lesser sentence than Covington for the reasons already set out, in particular that he was even younger than Covington and had no prior criminal history and a much less concerning traffic history.

As their sentences presently stand, this applicant would be eligible to apply for release on parole after serving 15 months which may or may not be granted, a time at which Covington's sentence will definitely be suspended.  In those circumstances, this applicant can feel justifiably aggrieved when comparing his sentence to Covington's.  The cases referred to in Covington, when compared to all the facts here, support a sentence suspended after serving 12 months imprisonment.  Although this is only a relatively minor alteration to the sentence imposed at first instance, and is not one which would ordinarily be undertaken by a Court on appeal, it is necessary to make this adjustment to avoid the situation whereby this applicant, who was entitled to a lesser penalty than Covington, is at risk of serving a longer term of imprisonment.

If the applicant does not take up the opportunity to rehabilitate, he will have to serve the remainder of his suspended sentence, which would include an operational period of 40 months.  The applicant's counsel has indicated the applicant's willingness to accede to such a sentence, and does not contend that it is a more onerous sentence than at first instance.

To sentence an 18 year old first offender, who to some extent cooperated with the administration of justice, to 12 months actual detention with threat of an additional 18 months imprisonment if he commits further offences over a 40 month period, is to impose a significant deterrent penalty.  Of course, no sentence of imprisonment can bring back to life Matthew Forsyth or return Benjamin Lehmann to his preaccident good health.  Undoubtedly the greatest punishment for this applicant will be that for the rest of his life he must live with the knowledge that his actions in dangerously driving the Gemini directly caused the death of his best friend and serious permanent injuries to another mate.

I would grant the application for an extension of time, grant the application for leave to appeal against sentence and allow the appeal to the extent of ordering that the sentence imposed be suspended after 12 months with an operational period of 40 months.

McPHERSON JA:  I agree.

MACKENZIE J:  The decision in Covington established the benchmark for the sentences in this case.  In Covington's case, there was a suspension after 12 months of a head sentence of three years, with an operational period of four years.

In the present case, no complaint is made about the two and a half year head sentence, but complaint is made about the fact that as the sentence stands in Cooke's case, he faces the uncertainty of the post prison community based release system and will have to serve at least as much actual time in custody as Covington.

The basis upon which the sentence is being varied, as explained in the reasons of the President, is that in those circumstances, Cooke may have a legitimate sense of grievance.  The sentence is simply scaled down proportionately with a suspension instead of operation of the post prison community based release system.

Counsel for Cooke accepted that there were risks inherent in the variation that if the applicant reoffends, he may serve longer in prison as a result of activation of the suspended portion of the sentence than he may otherwise have done if the sentence against which he appeals had remained.

The reduction, in actual time in prison and the certainty of the time of release were thought to outweigh this, and the sentence was not therefore more onerous.

I agree with the orders proposed by the President.

THE PRESIDENT:  The orders are as I have set out.