R v Smith[2005] QCA 26

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J:  On 28 September 2004, the applicant pleaded guilty to an indictment which alleged that on 11 July 2003 at Park Ridge he dangerously operated a motor vehicle on the Mount Lindsay Highway causing grievous bodily harm to Kelly Jane Murray and Sarah Anne Murray.  The indictment further alleged that at the time the applicant was adversely affected by alcohol.  He was sentenced to a term of imprisonment of four and a half years and disqualified absolutely from holding or obtaining a driver's licence. 

The learned Judge who sentenced the applicant also dealt with four simple offences which the applicant admitted he had committed at the same time.  They were: driving while under the influence of liquor, driving without a licence, driving an unregistered vehicle and driving one which was also uninsured.  No separate penalty was imposed for the simple offences.

Perhaps it should be mentioned that the applicant was driving without a licence, not because it had been cancelled or suspended, but because it had expired and had not been renewed.

The facts reveal a very serious case of dangerous driving.  The relevant events occurred at 5.45 p.m. on 11 July 2003, a Friday.  The sky was overcast and light rain was falling.  The roadway was wet.  The applicant was the driver of a Ford Falcon sedan.  He was grossly drunk.  He had a blood alcohol concentration, expressed as a percentage, of 0.24.

The Mount Lindsay Highway is a major road.  At the relevant vicinity it runs generally in a north-south direction.  An unnamed service road joins the highway on its eastern side.  The service road runs in an east-west direction.  Its junction with the highway is at right angles.  A “give-way” sign facing traffic on the service road approaching the highway obliges motorists to yield to any traffic on the highway.  The speed limit on the highway is 70 kilometres per hour.  It is a two lane sealed road with gravel shoulders on each side of the sealed carriageway.  Opposing traffic lanes were separated by a continuous double white line.

The applicant approached the highway from the east via the service road.  He did not stop at the intersection but drove straight onto the highway disregarding the “give-way” sign.  He intended to turn left and travel south.  There was southbound traffic on his right but the drivers of these cars were obliged to take evasive action to avoid collision.

The applicant did not drive on the southbound lane.  He drove instead over the centre white lines into the northbound lane which was heavily trafficked.  The driver of a Pajero travelling north had to swerve violently to its left onto the gravel shoulder in an attempt to avoid a head-on collision.  He was only partly successful.  The applicant's sedan collided with the rear of the Pajero.  Two cars following the Pajero did manage to avoid a collision by swerving hard to the left onto the gravel.

The applicant continued to drive south in the northbound lane.  A fourth vehicle, a Ford Laser, driven by Mrs Murray, was hit head on.  She was severely injured, as was her daughter who was a passenger in the car.  A second child was also injured but, happily, not seriously.

Immediately after the collision the applicant accelerated the engine of his car causing the wheels to spin.  It may have been an attempt to escape or merely an inappropriate, drunken response.  In any event, a member of the public had the presence of mind to reach into the car, turn off the ignition and remove the keys.

Mrs Murray received multiple serious injuries.  One of her kneecaps was badly broken and she sustained multiple fractures to her right arm.  She suffered a broken nose and extensive facial lacerations as well as numerous soft tissue injuries to her legs.  Her three year old daughter suffered a perforated bowel and had to undergo surgery during which part of that organ was removed.

Mrs Murray has had significant ongoing difficulties.  She suffers continuous, severe pain.  She has undergone six major operations and will have to undergo more in the future.  She has extensive scarring and is significantly handicapped in performing household tasks.  Many of her former leisure pastimes are beyond her capacity.

The applicant has a minor criminal history for old offences.  More significantly, he has three convictions between 10 March 1995 and 27 December 2001 for driving under the influence of liquor.  On the last occasion, he was driving whilst unlicensed. 

The applicant is 40 years of age.  He was 39 at the time of the offence.  He has never married and has no children.  His family was described as a loving and caring one.  His parents are dead.  His father died about eight years ago.  This event is said to have initiated a degree of alcohol dependence in the applicant.  He found his father's death a sad event, as no doubt it was.  He turned to drink to ease his bereavement.

The applicant has a good work history but it is apparent that his heavy drinking was of concern to his employer.  In January 2003, he agreed with the employer that he would not consume any alcohol during the working week.  It is said that he adhered to the agreement.

The applicant complains that the sentence is manifestly excessive because the sentencing Judge did not suspend the sentence after 18 months or make any recommendation for post-prison release earlier than that prescribed by statute. 

The grounds advanced for the complaint are that:

(a)  The driving was the consequence of the applicant's enduring problem with alcohol;

(b)  The applicant had made some attempt to address the addiction, as demonstrated by the agreement with the employer;

(c)  The applicant was remorseful, as demonstrated by an early plea of guilty and full admissions made to the investigating police officers.

There is, in my opinion, no substance in any of these grounds.  Indeed, it is a matter of aggravation rather than mitigation that the applicant should drive a motor vehicle when he had, and knew he had, a propensity to consume excessive amounts of alcohol.  The applicant is not to be congratulated because, to obtain employment, he refrained from drinking during the working week.  He is to be condemned for not showing the same restraint when he knew he had to drive.  His action was, to a high degree, irresponsible and reckless.

One may sympathise with the applicant's bereavement.  One can understand why it might lead the applicant to drink excessively, but that circumstance does nothing to explain why the applicant should drive after he had been drinking, and it does not reduce the criminality of his conduct in any way.

We were referred to three decisions of this Court - R v Rowley CA 240 of 1998, R v Breckenridge [2001] QCA 448 and R v Hine [2002] QCA 212 - in all of which sentences of imprisonment of four or five years were accompanied by a suspension or recommendation for parole earlier than the statutory entitlement.  The cases do not establish that a sentence which does not contain such a recommendation is manifestly excessive. 

To make good that point, regard may be had to two other cases, the one first being R v Ibrahim [2003] QCA 386 in which, for a case of dangerous driving causing grievous bodily harm no more serious than the circumstances of this case, a sentence of six years' imprisonment was imposed without any recommendation for early release. The second case is R v Haydon CA No 396 of 1996 in which a term of imprisonment of five years was unaccompanied by any recommendation.  The facts of Haydon are roughly comparable to those of this case.             

No doubt the applicant deeply regrets the offence and the damage he has done to Mrs Murray's life and that of her family.  There is much to be said in the applicant's favour.  He is not a criminal in the conventional sense.  Nevertheless, he behaved with criminal irresponsibility with devastating consequences for others.  The Court, in my opinion, should not hold out any hope to motorists who drive dangerously, especially when drunk, that they will be treated leniently because they are otherwise decent, law abiding citizens.  Those who kill or maim others by driving dangerously when intoxicated commit a serious criminal offence and should expect to be punished severely.

In my opinion the sentence imposed here cannot be criticised.  The sentence of four and a half years adequately reflects the plea of guilty and evident remorse, as well as the appellant's poor history of traffic offences.  I would refuse the application.

THE PRESIDENT:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The application is refused.