R v Nielsen[2006] QCA 2

SUPREME COURT OF QUEENSLAND

THE PRESIDENT:  On 18 October 2005, the applicant pleaded guilty to three counts of doing a malicious act with intent to do grievous bodily harm.  The prosecution accepted those pleas of guilty in satisfaction of the indictment before the court which also charged in the first alternative three counts of attempted murder and in the third alternative two counts of assault occasioning bodily harm whilst armed and one count of common assault, and in addition a count of dangerous operation of a vehicle with a circumstance of aggravation.  The applicant was sentenced to six years imprisonment on each count of malicious act with intent.  He applies for leave to appeal against his sentence contending that it is manifestly excessive and that the learned sentencing judge erred in giving insufficient weight to his plea of guilty.  His counsel submits that a sentence of five years imprisonment suspended after serving 20 months should have been imposed. 

The maximum penalty for each offence of malicious act with intent under s 317 Criminal Code is life imprisonment.

The applicant's conduct constituting the offences was extraordinarily reprehensible.  The facts placed before the sentencing court were as follows.  One complainant, Ms Cullen, was waiting outside the Forest Lake Tavern in a group for some other friends at about 2.00 a.m. when the tavern was closing.  The applicant, who was not known to her, yelled out, "How could you let her walk home by herself?"  One person in her group asked the applicant what he was talking about and after receiving an unsatisfactory reply told the applicant, "You've had too much to drink, why don't you go home and leave us alone."  The applicant responded, "I will fucking stab you."  He did not however appear to be carrying a knife and a subsequent search by police later showed that he was not armed.

Another complainant, Mr Hill, who was also not known to the applicant, asked him, "How can you threaten girls with that sort of stuff?"  Mr Hill and the applicant argued.  This degenerated into a scuffle.  A security officer, Mr Brown, intervened and ended the scuffle.  Ms Cullen then walked with friends along Forest Lake Boulevard.  Mr Hill was walking in front of her group. 

Shortly afterwards, the applicant drove his green motor vehicle onto the footpath in front of the tavern, hitting the third complainant, a security officer, Mr Tippett.  Mr Tippett, the complainant security officer, was not involved in the initial altercation between Mr Hill and the applicant.  He saw the applicant's car approach him at about 40 kilometres an hour.  It seemed to swerve and aim at people, who ran and dived out of its path before it headed straight at him.  He ran to avoid it but the vehicle pursued him.  He put his arm up as the car struck his right leg above the knee and he rolled over the bonnet, perhaps hitting the windscreen, before landing in a garden bed.  The vehicle travelled about 60 metres along the footpath and swerved at least three times at different groups.  Mr Tippett at one time feared he had suffered a broken right leg below the knee, although a radiologist's report did not find any evidence of a fracture, but certainly confirmed bruising to the calf.  Mr Tippett also suffered some pain on his right elbow.

The applicant then pursued Ms Cullen.  His motor vehicle hit her on the right leg near the knee.  She landed on the roadway near the gutter.  She was winded and in shock and was concerned about the safety of others.  She went home without medical treatment but could not sleep because of pain.  She later consulted a medical practitioner but by the time of sentence she had fully recovered and did not wish to provide a victim impact statement.

The applicant's vehicle travelled back and forth from the road to the footpath on at least two, perhaps three, occasions.  Before crashing his vehicle, the applicant next aimed his vehicle at Mr Hill's group.  About 12 or 13 people dived and jumped to avoid being hit.  Mr Hill estimated that the car accelerated directly towards him at about 55 kilometres per hour.  Although he sidestepped, the car clipped his left leg.  The vehicle stopped when it collided with a pole.  The back of the vehicle lifted about half a metre from the ground upon impact.  The scene was chaotic and many bystanders were understandably angry at the applicant.

None of the complainants chose to provide victim impact statements and all three had fully recovered from the frightening episode by the time of sentence.

When police arrived the applicant was uncooperative.  He said, "I am going to get away with this because my brother is a cop."  He swore at and abused the police.  After initially providing a breath specimen which showed his blood alcohol level was about .211, over four times the lawful limit of someone in control of a motor vehicle, he later refused to provide a further specimen.  When asked by police, "Where were you driving from?" he replied, "Don't know, mate.  Don't know what you're talking about.  From Forest Lake into people."

The applicant was 25 at sentence and 23 at the time of the offences.  He had no relevant criminal or traffic history.  Two references tendered on his behalf attested to his good work ethic and his efforts to rehabilitate himself and to stop drinking alcohol since the offences.  He was remorseful and in employment as a maintenance technician.

The applicant's counsel at sentence submitted that the applicant had no recollection of his actions on the evening because of his gross intoxication.  He was initially charged with dangerous driving and traffic offences.  In May 2004 he was charged with an assortment of charges including counts of attempted murder.  He voluntarily presented himself at the police station to enable these further charges to be laid.  He was committed for trial in late October 2004.  Discussions between the legal representatives in March 2005 suggested that the applicant would be indicted only on three counts of assault occasioning bodily harm and one count of dangerous driving.  Mr Nielsen indicated his willingness to plead guilty to these counts.  As noted earlier, the indictment then presented in the Supreme Court contained three counts of attempted murder, in the first alternative three counts of doing a malicious act with intent, with the further alternative of two counts of assault occasioning bodily harm while armed and one count of common assault, and a further count of dangerous operation of a vehicle with a circumstance of aggravation.

The Prosecutor initially responsible indicated to the defence that the trial would be proceeding on the attempted murder charges but, as he did not have responsibility for the conduct of the trial, there was no point discussing the pleas further. 

As is all too common, when a new Prosecutor was appointed only shortly before the trial was due to proceed, discussions as to the appropriate charges continued between the legal representatives and resolution was obtained.  This late briefing does not assist in the speedy disposition of cases in the criminal justice system.  The new Prosecutor indicated, shortly before the listed trial was due to commence, that he would be prepared to accept the pleas of guilty ultimately entered by the applicant in full satisfaction of the indictment.

In sentencing the applicant, the learned judge noted that the fact that the complainants received only minor injuries was pure chance but, nevertheless, a relevant sentencing consideration.  As his Honour recognised, and as the respondent rightly concedes, the applicant was entitled to a lesser sentence here because the injuries he caused did not have serious long-term effects on the complainants. (Compare R v Amituanai (1995) 78 A Crim R 588).  His Honour considered that had there been actual grievous bodily harm caused to the complainants the range of sentence would have been seven to nine years.  His Honour regarded the case as a most serious example of striking with a vehicle with intent to do grievous bodily harm and expressed the view that had the matter proceeded to trial a sentence would have been imposed of between six and seven years imprisonment probably with a declaration that the offences were serious violent offences.

The applicant contends that this was an error and that the range in those circumstances was a sentence of four to six years imprisonment.  The applicant has not, however, put forward any truly comparable sentences to support that submission. 

His Honour noted that the applicant pleaded guilty at a later stage but very soon after the Crown indicated that it would not proceed with charges of attempted murder if pleas of guilty were entered to the present charges.  His Honour did not accept that this was anything other than a late plea of guilty because the guilty pleas entered did not demonstrate a willingness to cooperate early in the administration of justice.  The position would have been different, his Honour considered, had the applicant indicated his willingness to plead guilty to the present charges at an earlier time.  Nevertheless, the judge considered that some slight credit should be given for the late pleas of guilty.  His Honour reflected this credit by sentencing at the lower end of the appropriate scale and by not making a declaration that the offence was a serious violent offence.  His Honour specifically stated that he took into account the mitigating factors of the applicant's age, history and prospects of rehabilitation but considered that personal and general deterrence and community denunciation were significant factors in determining the appropriate sentence.

His Honour did not, in my view, err in his approach to the applicant's late plea of guilty.  This case is clearly distinguishable on its facts from Cameron v The Queen (2002) 209 CLR 339.  There was nothing to stop the applicant, through his counsel, from suggesting to the prosecution that the applicant may be prepared to plead guilty to the offences to which he ultimately pleaded guilty conditional upon the prosecution withdrawing the three counts of attempted murder and the dangerous driving count.  Had he done so, he would have been entitled to further credit for his cooperation with the administration of justice.  Such an offer to the prosecution would by no means constitute an unconditional plea of guilty which could have been used in evidence against him.  (Compare R v Hazeltine [1967] 2 QB 857).  Nor would it have offended s 598 Criminal Code which deals with pleas taken from an accused person in court.  It may be that the initial ranges of appropriate sentence stated by his Honour were somewhat too low, but this would depend on the relevant circumstances applicable in each case.

The particularly serious aspect of these persistent offences was that they contain the element of an intention to do grievous bodily harm to a complainant on three separate occasions.  That is why the maximum penalty on each count is life imprisonment whilst the maximum penalty for offences of dangerous operation of a vehicle whilst adversely affected by an intoxicating substance is but five years imprisonment.  The Legislature understandably considers that doing an act intending to seriously harm another ordinarily warrants a significant punishment.  The applicant drove his motor vehicle, using it as a weapon, deliberately aiming it at people in a public place intending to do each of the complainants serious harm.  Although it was amazingly fortunate for all concerned that no-one was seriously hurt, the applicant's grave, unlawful conduct is deserving of salutary punishment to deter both him and others who might contemplate behaving in such a manner.  Such antisocial behaviour must be discouraged by the imposition of significant deterrent penalties.

Most of the cases to which the applicant's counsel has referred as comparable are not ones where the offenders, unlike this applicant, were convicted of offences involving an intent to do grievous bodily harm to others, indeed to three complainants.  The case of R v Treptow [1995] QCA 582 (26 October 1995), which involved two counts of attempting to strike with a projectile to prevent lawful detention indeed supports the sentence imposed here.  The sentence was within the appropriate range.  It gives adequate recognition to the applicant's late plea of guilty and limited but nevertheless relevant cooperation with the administration of justice and to all other appropriate mitigating factors. 

The application for leave to appeal against sentence should be refused.

McPHERSON JA:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  That is the order of the Court.