R v Smout[2005] QCA 120

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  I would ask Justice Philippides to give the first judgment in this matter.

PHILIPPIDES J:  The applicant, Norman Henry Smout, was convicted on 4 February 2005 on his plea to a charge of dangerous operation of a vehicle causing the death of two persons whilst adversely affected by an intoxicating substance, namely alcohol, and the concentration of alcohol in his blood at the time exceeded 150 milligrams of alcohol per 100 millilitres of blood.

For that offence he was sentenced to six years’ imprisonment with a recommendation for post-prison community-based release after two and a half years.  The applicant was also disqualified from holding or obtaining a drivers licence for five years.  The applicant also pleaded to a summary offence of driving whilst under the influence of alcohol and for that offence a conviction was recorded and no further punishment imposed.

The applicant seeks leave to appeal against that sentence on the basis that it was manifestly excessive.  In support of that the applicant raised two matters.  Firstly, it was said that the family of the deceased did not blame him for the death of the two deceased and additionally it was said that the applicant's prior criminal history did not involve any term of imprisonment being imposed.

The applicant, who was born on 2 October 1960, was 43 years of age at the time of the offences and 44 at sentence.  The offence occurred on the 6th December 2003 at Delaney's Creek near D'Aguilar at about 5 p.m.  The vehicle driven by the applicant was involved in a collision with another vehicle.  The two passengers in the applicant's vehicle who were close friends of the applicant died as a result of injuries received in the collision.

The applicant had been seen drinking beer at the Caboolture RSL from about 10 a.m. on the day of the collision and was seen leaving the premises at some time between 2 p.m. and 2.45 p.m.  There is no evidence as to his state of intoxication at the time he left those premises.  However, late in the afternoon the applicant was seen at a hotel in D'Aguilar about 20 minutes drive from Caboolture.  He was there seen drinking with two other men, the two passengers who later died.

Shortly before all three men left the hotel, a friend of one of the deceased spoke with the applicant while he was in his car and as they were about to leave.  She could smell alcohol and said, "You guys are drunk."  The applicant replied, "No, we are all right."  When he said that she noticed a stronger smell of liquor.  She then said, "You really are drunk."  The applicant repeated, "No, we are right."  As they drove off she said to them, "Drive slowly.  I will pray for you to get home safely."

The fatal collision occurred shortly thereafter on a straight stretch of road.  The road at the time was moist from earlier rain but there was no rain at the time of the collision.  The police investigation revealed that the applicant's vehicle travelled off the straight stretch of bitumen on the left-hand side on to a grass or dirt verge.  It then over-corrected into the path of another vehicle driving towards it on a two-lane roadway.

The other vehicle was driven by Mr Lindsay and a Ms Turner as his passenger.  They both gave an account of their observations that is consistent with the state of part of the applicant's vehicle.  Neither noticed any excessive speed by the applicant.  Mr Lindsay braked as the applicant's vehicle came across their path but he was unable to avoid a collision.  Mr Lindsay suffered injuries and underwent x-rays for a possible cracked sternum.  He suffered back and chest pain which diminished over a period of four to five weeks.  Ms Turner suffered seat belt muscle strain, the consequences of which also resolved.  The applicant also suffered injuries.

The applicant was taken to hospital and a blood sample was taken at about 7.40 p.m. (that is outside the two-hour period from the time of the collision).  It revealed a blood alcohol concentration of .239 per cent.  That reading was subjected to a count back by the Government Medical Officer and it was ascertained that there was a blood alcohol concentration of .292 at the time of the collision.  The applicant took part in an interview on 3 March 2004.  He admitted to driving the vehicle but had no recollection of the day. 

The applicant has a criminal history although it is of some age.  The only entries are a conviction and fine in June 1979 for drink driving and a further conviction and fine for drink driving in October 1983.

In sentencing the applicant, the learned sentencing judge referred to the absence of evidence as to the applicant's condition when he left Caboolture and so the lack of evidence of a prolonged period of drink driving.  His Honour also took into account the applicant's early plea, his remorse, the references tendered, the fact that he had also sustained injuries and his other personal circumstances including his intellectual disability.

Before the learned sentencing judge, the prosecution had contended that the appropriate range was one in the vicinity of six years’ imprisonment with a recommendation.  The applicant's counsel had contended that the range was of five to six years coupled with a suspension after 18 months to two years if sentenced at the lower range and a recommendation if sentenced at the higher range.

Before this Court the respondent contented that the relevant range was one of six to seven years with an early recommendation.  Reliance was placed on R v McKinnon [1999] QCA 75, R v Dingle [2003] 7 and R v Smith [2005] QCA 26 as relevant comparatives.

The respondent contended that the sentence imposed by his Honour could not be said to be manifestly excessive in the circumstances of the present case.  The respondent emphasised that the case against the applicant was a strong one.  Emphasis was placed on the high level of intoxication which was said provided the sole explanation for the occurrence of the loss of control of the vehicle on a straight stretch of road.  Emphasis was also placed on the applicant's criminal history which, although dated, was of relevance given the nature of the prior offences.

The respondent further relied on the feature of the applicant's driving causing the death of two persons.  In this regard the respondent relied on section 9(4)(d) of the Penalties and Sentences Act 1992 (Qld) and the case of White v R [2003] WASCA 197, in contending that, although the appropriate penalty should not be multiplied by the number of victims, the sequel of the offence was clearly a relevant consideration. 

McKinnon was a case where the offender was sentenced to six years imprisonment with a recommendation for parole after two and a half years on his plea to an offence of dangerous driving causing death whilst under the influence of alcohol.  The death of a 54 year old passenger in the offender's vehicle occurred when the offender's vehicle collided with another vehicle which was parked on the side of the road.  There was evidence that the offender was driving on the incorrect side of the road prior to the accident and travelling at speeds between 80 and 100 kilometres an hour.  The offender's blood alcohol was assessed at .219 per cent one and a half hours after the accident.  The offender had a criminal history including various convictions and had previously been disqualified from driving whilst under the influence of alcohol.  The offender there had a more serious criminal history than as was the case here, but there was a common feature of a person cautioning against driving. 

Dingle is perhaps not of great assistance, in that the offender there was sentenced to six years imprisonment for the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol after trial.  The offender lacked the benefit of a plea.  He also showed no remorse.  However, the blood alcohol concentration there was of 0.19 per cent approximately half an hour after the collision which caused the death of a cyclist and therefore was considerably lower than in the present case.

There are two other cases which are of assistance, although involving sentences imposed for dangerous operation of a motor vehicle causing grievous bodily harm rather than death.  They indicate heavy sentences are attached where there is a high blood alcohol concentration.  One of them is the case of Smith.  There the offender was sentenced to four and a half years imprisonment and disqualified from holding or obtaining a drivers licence.  There were a number of summary offences also involved.  The accident there occurred whilst the offender was driving on the wrong side of the road in wet conditions and his vehicle collided head on with another vehicle causing injuries to the driver and two passengers in his vehicle.  The offender's blood alcohol level was assessed at .24 per cent.  The offender had a prior criminal history, which although dated, included 3 convictions for driving under the influence of alcohol.  The offender's alcohol dependence was noted as were his attempts at addressing that condition and his remorsefulness.  However, a distinguishing feature was that there was no caution given to the offender against driving which is a serious feature in the present case.

Also in this category is the case of R v Breckenridge [2001] QCA 448.  In Breckenridge the 42 year old offender was sentenced to five years imprisonment suspended after two years.  He had a prior criminal history which was worse than the present applicant and had a blood alcohol concentration of .235 per cent and had been cautioned not to drive prior to the incident giving rise to the offence.

Recently in R v Hoad [2005] QCA 92, the Court of Appeal reviewed cases involving sentences imposed for convictions for dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance.  Those cases clearly demonstrate that the sentence imposed in the present case was within the sentencing discretion.

Bearing in mind the high blood alcohol concentration, the prior relevant convictions, although dated, the applicant's disregarding of the advice not to drive immediately prior to the collision, the serious consequences which followed from that driving, and the need for deterrence in cases such as the present one, I do not consider that the sentence was manifestly excessive.  The learned sentencing judge appropriately took into account all relevant matters of mitigation in the sentence imposed.  I would dismiss the application.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

McPHERSON JA:  The order is the application for leave to appeal against sentence is dismissed.