R v Hey; ex parte Attorney-General
[2006] QCA 23
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Hey; ex parte Attorney-General[2006] QCA 23
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R v Hey; ex parte Attorney-General[2006] QCA 23
R v Hey; ex parte Attorney-General[2006] QCA 23
SUPREME COURT OF QUEENSLAND
CITATION: | R v Hey; ex parte A-G (Qld) [2006] QCA 23 |
PARTIES: | R |
FILE NO/S: | CA No 271 of 2005 DC No 535 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | District Court at Ipswich |
DELIVERED ON: | 10 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 November 2005 |
JUDGES: | McMurdo P, Keane JA and Chesterman J Separate reasons for judgment of each member of the Court, McMurdo P and Keane JA concurring as to the order made, Chesterman J dissenting |
ORDER: | Sentence appeal by Attorney-General dismissed |
CATCHWORDS: | CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - respondent pleaded guilty to one count of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol - sentenced to six and a half years imprisonment with a recommendation for post-prison community-based release after two and a half years and licence disqualified absolutely - maximum penalty for offence 10 years imprisonment - respondent had been drinking alcohol with friends - failed to reduce speed at intersection with a "Give Way" sign and drove straight through intersection - police inspection showed motor vehicle in unsatisfactory mechanical condition with decreased braking efficiency - respondent claimed that he tried to slow down and that his brakes had become "weird" and "spongy" on the night of the offence - relatively minor but concerning criminal history - traffic history including five previous convictions for driving under the influence of alcohol, three previous convictions for disqualified driving and two convictions for careless driving - disqualified from driving at the time of the offence - early plea of guilty and co-operation with authorities - references tended attesting to respondent's genuine remorse - insight into alcohol addiction and stated desire to reform - whether sentence manifestly inadequate R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, cited R v Conquest; ex parte A-G (Qld) [1995] QCA 567; CA No 395 of 1995, 19 December 1995, considered R v Frost; ex parte A-G (Qld) [2004] QCA 309; CA No 142 of 2004, 27 August 2004, cited R v Gray [2005] QCA 280; CA No 129 of 2005, 12 August 2005, cited R v Hoad [2005] QCA 92; CA No 434 of 2004, 8 April 2005, cited R v Smith [2005] QCA 26; CA No 380 of 2004, 14 February 2005, cited R v Smout [2005] QCA 120; CA No 31 of 2005, 15 April 2005, cited R v Tabakovic [2005] QCA 90; CA No 3 of 2005, 8 April 2005, cited R v Vessey; ex parte A-G (Qld) [1996] QCA 11; CA No 453 of 1995, 16 February 1996, considered R v Wilde; ex parte A-G (Qld) [2002] QCA 501; CA No 283 of 2002, 19 November 2002, cited |
COUNSEL: | S G Bain for appellant A W Moynihan for respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for appellant Legal Aid Queensland for respondent |
- McMURDO P: Mr Hey pleaded guilty on 26 September 2005 in the District Court at Ipswich to one count of dangerous operation of a motor vehicle causing the death of Margaret Williamson whilst adversely affected by alcohol on 1 February 2004. He was sentenced to six and a half years imprisonment with a recommendation for post‑prison community-based release after two and a half years. His licence was disqualified absolutely. The appellant, the Attorney-General of Queensland, contends that the sentence imposed was manifestly inadequate.
- The maximum penalty for the offence charged was 10 years imprisonment.
- Mr Hey was 28 when he committed the offence and 29 at sentence. He has a relatively minor but nevertheless concerning criminal history commencing in 1993 for offences including supplying a weapon to another without a licence; stealing; wilful damage to property in the night-time; possession of dangerous drug; and assault occasioning bodily harm. He was sentenced to community-based orders in respect of these offences. In February 2002 he was dealt with for breach of a probation and community service order imposed on 26 April 2001 for disqualified driving. Of more direct relevance is his previous traffic history which suggests he has a significant alcohol problem. He has five previous convictions for driving under the influence of alcohol; three previous convictions for disqualified driving and two convictions for careless driving. He has also committed a number of speeding offences. He was disqualified from driving at the time of the offence the subject of this appeal and had committed his fifth offence for driving under the influence of liquor, which involved a blood alcohol concentration of .189, nine months earlier. Despite his dreadful traffic history he had not previously been sentenced to a term of imprisonment. He has not committed further driving offences since killing Mrs Williamson on 1 February 2004.
- The facts of that offence were placed before the learned primary judge by the prosecutor in these terms. On 1 February 2004 Mr Hey went to the Barellan home of his friend, Kerry Hill. He drove Mr Hill to the Glamorganvale Hotel where they drank beer or rum. Mr Hey then drove them to the Mihi Hotel at Brassall where they met up with Ms Krystal Huggins. She saw Mr Hey drink two cans of Bundaberg rum and cola at the hotel. All three left with Mr Hey driving his Toyota LandCruiser utility. They went briefly to Mr Hey's home, leaving there at about 5.10 pm to return to the Glamorganvale Hotel. Ms Huggins was seated in the middle of the front seat and Ms Hill was in the front passenger seat. All three were drinking from cans of rum and cola. Pine Mountain Road is a two-way bitumen road with no line markings and a speed limit of 100 kms per hour. Mr Hey was driving within the speed limit. Prior to its intersection with the Brisbane Valley Highway at Wanora there is a "Give Way" sign which required Mr Hey to give way to traffic on the Brisbane Valley Highway. Visibility at the intersection is restricted by long grass and shrubs. Mr Hey was intending to drive straight ahead across the intersection. Ms Huggins asked him if he was going to stop or slow down at the intersection. She thought he said "No", "Nah" or "Nup" and he continued through the "Give Way" sign without reducing his speed.
- The Brisbane Valley Highway is a two-lane sealed bitumen carriageway with a 100 kms per hour speed zone. Mr Keith Williamson, a 59-year-old farmer, and his wife of 34 years, Mrs Margaret Williamson, were travelling to the airport along the Brisbane Valley Highway to collect one of their four children. As he approached the intersection he suddenly saw Mr Hey's vehicle but did not have time to brake or avoid it. Mr Hey's vehicle struck Mr Williamson's vehicle on the front passenger side, effectively where Mrs Williamson was seated. Witnesses estimated that Mr Hey's vehicle was travelling at somewhere between 60 to 100 kms per hour. Mr Nolan who was driving behind Mr Williamson's vehicle thought Mr Hey was playing chicken. His vehicle did not slow down or take evasive action before impact which pushed Mr Williamson's vehicle into the air across the highway and over a fence, 10 metres into a paddock. Mr Hey's vehicle slammed into a corner post and turned on its side. It seems that Mrs Williamson was killed instantly. She was declared dead at the scene when an ambulance arrived.
- Mr Hey was injured and smelt of alcohol. A can of Bundaberg rum and cola was lying next to him on the ground. He was transported to the emergency department of the Ipswich Hospital. At 7.18 pm a specimen of blood was taken from him and was analysed over two hours after the incident at .061.
- A forensic medical officer calculated that at the time of the collision Mr Hey's blood alcohol level was likely to have been .1 so that he was statistically seven times more likely to be involved in motor vehicle crashes. There would be an increase in his reaction times, slowed reflexes, impairment of judgment and loss of gross and fine co-ordination and a degree of dis-inhibition. His capacity to safely control a motor vehicle would have been impaired.
- A mechanical examination of Mr Hey's vehicle revealed that it was in an unsatisfactory mechanical condition. The rear left and right drum brakes were contaminated with gear oil from weeping rear axle oil seals. This would have decreased the braking efficiency. Mr Williamson's motor vehicle was in a satisfactory mechanical condition.
- Mr Williamson suffered minor bruising and scratches. Ms Huggins suffered very bad bruising all over her body, lacerations to her arms and grazing to her face. She was released from hospital later that night. Mr Hill has no recollection after being at the Mihi Hotel before waking up in hospital. He had a lacerated right shoulder requiring stitches and was released from hospital a few days later.
- Mr Hey was interviewed at the hospital by police. He had no recollection other than trying to slow down and a sensation that his brakes were "weird" and "spongy" and had become so that night. He was unsure if he was wearing a seat-belt. He suffered significant injuries in the crash and expressed some dismay at Mrs Williamson's death.
- No victim impact statement was tendered at sentence, but undoubtedly Mrs Williamson's death has caused great sadness and loss to her husband and family.
- The prosecutor at sentence contended that the appropriate sentencing range was between seven and seven and a half years imprisonment with an earlier than usual recommendation for parole. He relied on the case of R v Vessey; ex parte A-G (Qld),[1] where a sentence of nine years imprisonment with a recommendation for parole after four years imprisonment was substituted on an Attorney's appeal instead of six and a half years imprisonment with a recommendation for parole after 26 months. The prosecutor conceded that the maximum penalty for Vessey's offence was 14, not 10, years imprisonment and that the circumstances of Vessey's offending were worse than in this case; Vessey had not only a persistent history of driving under the influence of liquor but also dangerous driving. It may be added that Mr Hey's complaint to police about his brakes, supported by the police mechanical inspection, did not make Mr Hey's conviction as inevitable as Vessey's.
- Mr Hey's counsel at sentence contended that a range of six years imprisonment with a recommendation for early parole was the appropriate sentence.
- Mr Hey pleaded guilty at an early stage and the committal proceedings were by way of tendered witness statements without examination. His counsel emphasized that Mr Hey had suffered serious injuries in the collision including a smashed clavicle, three broken ribs, bruising and abrasions, his right arm was almost amputated, he had a punctured lung and a plate inserted in his shoulder. He was initially hospitalized for two weeks and returned to hospital from time to time for further surgery. He continues to have neck, back and shoulder pain. There was some delay in prosecuting the case. Mr Hey was not charged for almost 12 months because the investigating police officer was ill; it was certainly not Mr Hey's fault. Mr Hey has three children whom he supports as he can but he is not the custodial parent. He has had past employment as a plumber and drainer but has recently been on sickness benefits because of his injuries. He instructed his counsel to accept that he was affected by alcohol and not to put that matter in issue because he wished to accept responsibility for the tragic consequences of his driving brought about by his problem with alcohol. He co‑operated with the police and gave them his account that he endeavoured to stop but there was a problem with his brakes. His criminal and traffic history and his personal and social problems all stem from his alcohol addiction about which he now has some insight and is addressing. His alcohol problem worsened after his father's death in 2001. A number of references were tendered on his behalf attesting to his genuine remorse at having been responsible for killing Mrs Williamson and suggesting that he does have significant redeeming features.
- The learned primary judge made clear in her sentencing remarks that she fully appreciated the very serious aspects of the offence, its traumatic impact on the Williamson family and Mr Hey's dreadful driving history, including his many previous convictions for drink-driving.
- Her Honour found that:
"Mr Williamson clearly had no chance of avoiding the accident because it seems that you were unable to slow down, either through the alcohol or lack of reaction or some problem with your car combined with your lack of reaction. It does not really matter at the end of the day, it seems to me, what the reason was. The fact is that you were driving in a state when you were unable to adjust your driving for what might have been spongy brakes."
- Her Honour plainly took a dim view of Mr Hey's persistent drink-driving which she rightly regarded as a pivotal cause of this offence. The judge also recognized Mr Hey's early plea of guilty, co-operation with the authorities, remorse, insight into his alcoholism and his stated desire to reform. Her Honour referred to a number of comparable sentences in determining the six and a half year sentence with a parole recommendation after two and a half years.
- In contending that the sentence is manifestly inadequate the appellant relies on the observations of McPherson JA and Thomas J in R v Conquest; ex parte A‑G (Qld):[2]
"The factors that would take a sentence further towards the maximum level would include the seriousness of the driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender's criminal record (with particular emphasis upon his driving history and his attitude to fellow citizens), and whether the offender has little prospect of rehabilitation".
The appellant emphasizes Mr Hey's shocking traffic history and that he deliberately chose not to slow down as he approached the intersection despite Ms Huggins' request.
- As to the latter contention, it is inconsistent with the findings of the learned primary judge set out above. Her Honour plainly rejected the view of Mr Nolan that Mr Hey was playing chicken and did not draw the inference from Ms Huggins' account that he drove into the intersection deliberately, ignoring her plea to slow down. These findings were open on the facts stated by counsel.
- The appellant concedes that the cases upon which it relies of R v Wilde; ex parte A‑G (Qld),[3] R v Frost; ex parte A-G (Qld)[4] and Vessey, referred to earlier, were all more serious examples of dangerous driving than this case and were punishable by up to 14 rather than 10 years imprisonment. Counsel for Mr Hey has referred the Court to a number of other comparable cases including R v Smith,[5] R v Hoad,[6] R v Tabakovic,[7] R v Smout,[8] R v Balic[9] and R v Gray[10] which, though not closely comparable, tend to support the sentence imposed here.
- The maximum penalty for this offence of dangerous driving causing death was 10 years imprisonment. He was not convicted of manslaughter or of an offence with an element of intent to harm: cf R v Nielsen.[11] Applying the observations set out earlier from Conquest, this was a serious example of dangerous driving in that Mr Hey was a recidivist drink-driver who repeatedly lacked concern for his fellow citizens in his continued re-offending, despite the leniency shown to him in the past by the courts. His dangerous driving resulted in Mrs Williamson's death, relatively minor injuries to his two passengers and quite serious injuries to himself. The judge found that the driving was dangerous in that he chose to drive whilst affected by alcohol so that his reactions were slowed and he was unable to slow down and adjust his driving to cope with the unsatisfactory brakes on his vehicle. The dangerous driving occurred over a short time period and distance at the intersection of Pine Mountain Road and the Brisbane Valley Highway. Mr Hey's co-operation with police, his early plea of guilty, demonstrated remorse, absence of subsequent criminal or traffic offences, references tendered on his behalf, age and stated intention to address his alcohol problem suggest that at last he has gained some insight into the dangers of drink-driving and that he has some genuine prospects of rehabilitation.
- These combined circumstances support the head sentence of six and a half years imprisonment with a recommendation for eligibility for release after two and a half years, slightly earlier than the statutory halfway point, to reflect the mitigating factors. The sentence imposed was not outside a sound exercise of the sentencing discretion.
- The appeal should be dismissed.
- KEANE JA: I agree with the reasons for judgment of the President and with the order proposed by her Honour.
- CHESTERMAN J: The facts relevant to this appeal by the Attorney-General against the inadequacy of the sentence imposed by the District Court on the respondent, who was convicted of dangerous driving causing death whilst adversely affected by alcohol, are set out in the reasons of the President.
- Some of the facts mentioned by her Honour deserve elaboration.
- On 13 May 1993 when the respondent was 17 his driver’s licence was cancelled because of an accumulation of demerit points awarded for driving in excess of the speed limit. Two weeks later, on 28 May 1993, he committed the offence of driving carelessly. He should not have been driving at all, because his licence had been cancelled, and he was dealt with for that offence as well. A year later, after he had obtained another driver’s licence, he was, on 7 June 1994, charged with careless driving. More seriously on 5 March 1997 he was charged with driving a motor vehicle whilst under the influence of alcohol. His blood alcohol concentration was 0.170 per cent. He was fined and disqualified from holding or obtaining a driver’s licence for twelve months. Two years later, on 14 March 1999, he was charged with driving whilst the prescribed concentration of alcohol in his blood exceeded the permitted maximum. It was in fact 0.122 per cent. On the same occasion he was driving at a speed in excess of the prescribed limit. On this occasion he was disqualified from holding or obtaining a driver’s licence for 13 months. Within two months, on 23 September 1999, the respondent was again driving whilst disqualified and whilst under the influence of liquor. On this occasion his blood alcohol concentration was 0.16 per cent. He was disqualified absolutely from holding or obtaining a driver’s licence.
- Undeterred by these experiences the respondent continued to drink and drive and to disregard the orders made by the Magistrates Court which prohibited him from driving. On 31 March 2001 he drove under the influence of liquor. His blood alcohol concentration was 0.106 per cent. He was, of course, driving whilst disqualified. On this occasion he was again disqualified from holding or obtaining a driver’s licence absolutely. The disqualification would seem to have been pointless, given the fact that he was already subject to an identical disqualification.
- On each of 3 April 2003 and 20 May 2003 he drove at speeds in excess of the prescribed speed limit. On the second occasion he was driving more than 20 kilometres per hour in excess of the limit. He was not charged on either of these occasions with driving whilst disqualified so one must assume that he had succeeded in obtaining a licence to drive despite having twice been disqualified absolutely from obtaining a licence. Perhaps as a result of those offences his new licence was suspended or cancelled because, on 30 May 2003, he was again charged with driving under the influence of liquor and disqualified from driving. His blood alcohol concentration was 0.189 per cent. He was disqualified from holding or obtaining a driver’s licence for 30 months.
- Five months later the respondent was again drinking and driving when, on 1 February 2004, he killed Mrs Williamson. It was the sixth occasion on which the respondent was known to have driven whilst under the influence of liquor or with an impermissibly high concentration of alcohol in his blood. It was the fifth occasion on which he was known to have driven without a driver’s licence. It was the fourth occasion on which he was known to have driven whilst intoxicated and disqualified from holding a driver’s licence.
- The circumstances of the respondent’s dangerous operation of his vehicle show the offence to have been serious. He was drinking from a can of mixed spirits as he drove. It is accepted that the amount he had drunk adversely affected his capacity to observe his surroundings and to control his motor vehicle. He drove, without slowing, through an intersection onto a busy highway, failing to give way as required by a traffic control sign, and collided heavily with Mr Williamson’s sedan. There is no suggestion of deliberation in the respondent’s conduct: his oscitance was undoubtedly due to alcohol.
- Two matters were urged in the respondent’s favour as going in diminution of his responsibility for the fatal collision. They were that the visibility to his right was obscured by vegetation and that the brakes in his vehicle were defective. There is no substance in either point.
- A sober, careful, driver approaching the intersection with the highway who could not see to his right would slow his vehicle and enter the intersection only when he could see that it was safe to do so. The traffic on the highway was described as heavy in both directions.
- The witnesses to the collision did not observe anything to suggest that the respondent had attempted to brake so as to avoid or reduce the impact. They describe the respondent’s vehicle continuing through the intersection at the same speed as it had approached it. The defect was not such as to render the LandCruiser incapable of braking. The rear brake drums were deprived of part of their friction because of the presence of oil, but the front brakes were in good repair. As well there is some evidence derived from what Ms Huggins said to the respondent as he approached the intersection, and his reply, that he had decided not to apply the brakes. On this view of the facts the defective brakes were irrelevant to the collision. On the alternative view, that the respondent had tried unsuccessfully to brake to avoid the collision, it is of great significance that the respondent had been driving his LandCruiser for substantial distances on the afternoon of 1 February 2004 prior to the collision. He must have appreciated that the brakes were not operating optimally. With that knowledge he chose to continue driving his vehicle, a determination which can only be described as reckless, especially as his intoxication reduced his capacity for judgment and observation. The only other possibility is that he failed to appreciate the seriousness of the defective braking capacity because he was intoxicated. On any view of the facts his conduct was inexcusable and reprehensible, and his driving was dangerous.
- As the President points out the estimates of the speed at which the respondent drove onto the highway varied between 60 and 100 kilometres per hour. The severity of the impact which forced Mr Williamson’s sedan across and beyond the highway, through a fence and into a paddock, for part of which distance it was airborne, would indicate that the respondent was driving at a speed at the higher end of the range. Mrs Williamson died instantly from massive injuries. She had extensive fractures to the base of the skull and severe chest injuries involving a fractured sternum, multiple rib fractures and severe bruising to both lungs.
- In summary, the respondent drove his LandCruiser at a speed of about 100 kilometres per hour through a ‘Give Way’ sign onto a busy highway when he could not see, or did not look, to his right. The respondent chose to drive at high speed knowing that the rear brakes on his vehicle were inefficient. He was at least partially intoxicated and driving when he was disqualified from doing so. He killed a woman on her way to meet one of her children.
- I cannot accept that a sentence of six and a half years’ imprisonment with a recommendation that the respondent be released on a post-prison community based order after serving two and a half years is adequate punishment. In my opinion it does not reflect the gravity of the respondent’s criminal misbehaviour and it does not address the community’s justified concern about the level of danger likely to be encountered on public roads, constituted by conduct such as the respondent’s.
- It may be admitted that the respondent’s manner of driving was not as egregiously hazardous as that in some of the cases to which the court was referred, notably R v Wilde; ex parte A-G (Qld) [2002] QCA 501 and R v Frost; ex parte A-G (Qld) [2004] QCA 309. Nevertheless the case is a serious one of dangerous driving. What makes it particularly heinous is the respondent’s history of driving whilst disqualified, and more particularly driving whilst disqualified and intoxicated. He has persistently, deliberately and brazenly defied the legal disqualifications imposed to prevent his driving. It was, as I mentioned, the fourth occasion on which he had driven a motor vehicle whilst affected by alcohol and when he was disqualified from driving.
- It goes without saying that on the occasions when the Magistrates Court disqualified the respondent from holding or obtaining a driver’s licence it did so for the reason that he constituted a serious danger to the safety of the travelling public. There was also, of course, an element of punishment in the disqualifications, but principally the orders were made to keep the respondent off the roads because he was an obvious peril to others by reason of his proven propensity to drive while affected by alcohol.
- There was nothing spontaneous or inadvertent about the respondent’s conduct on the day he killed Mrs Williamson. He chose to drive when he knew it was unlawful for him to do so. He chose to drink when he knew it was dangerous to do so. Mrs Williamson’s death is a direct consequence of the respondent’s refusal to accept that the law applied to him, and that the disqualification orders had been made to safeguard the public. He disregarded the legal prohibition and disdained the public’s safety.
- In my opinion the court should be merciless when dealing with people who behave in this way. It is a matter of considerable regret that the respondent was not dealt with appropriately on the occasions when he appeared before the Magistrates Court on charges of driving whilst disqualified and intoxicated. He had amply demonstrated his contempt for previous disqualification orders and had given clear proof that he was a danger on the roads. There was clearly no point in imposing further disqualifications. He should have been jailed for a brief period to make him realise the seriousness and unacceptability of his conduct. If he did not, and re-offended, he should have been jailed for a substantial period. It is distinctly possible that Mrs Williamson might be alive today had that course been followed.
- The imposition of severe punishments on those who drive dangerously, and thereby kill or maim others, is required as a means of reducing the number of traffic accidents which result in death or serious injury. Lengthy periods of imprisonment play an important role in deterring those who contemplate driving while disqualified, and while intoxicated.
- The President, in para 20 of her Honour’s reasons, referred to ‘a number of other comparable cases … which … tend to support the sentence imposed’ on the respondent. I prefer, and would follow, the remarks of the court in Wilde (de Jersey CJ, Jerrard JA, and Mullins J) at para 26:
‘The variety of circumstances confronting sentencing courts in cases like this means it can be especially difficult to translate the result in one case to another. What is abundantly clear is that the community expects, and rightly expects, appropriately deterrent penalties …’.
To the same effect McPherson JA and Thomas J said in their joint judgment in R v Conquest; A-G (Qld) [1995] QCA 567 at pp 10-11:
‘It would certainly be an error for a sentencing court to treat the normal rough range of sentence in roughly comparable cases as if it were the statutory maximum. But equally it would be an error for a sentencing Judge to set his … own level of sentence in a manner inconsistent with other judicial decisions. The only escape from this dilemma is through recognition of the fact that no two cases are exactly alike, and that in general the level of sentence in one case can only be a rough guide to another. To speak of a “normal range” may give the sentencing court some feeling of comfort, but it is often a dangerous generalisation.’
- I would add that the cases referred to by the President display a tender-heartedness towards those who drive dangerously and kill and maim others which, in my respectful opinion, is quite misplaced. A number of the cases emphasise the personal circumstances of the criminal, and justify a mild sentence because of discerned prospects of rehabilitation. In my opinion those cases give insufficient attention to the hurt and bereavement of those damaged by the offenders’ conduct and the need to deter such conduct. It is not surprising that killing or maiming another human being should give rise to a sense of guilt and remorse, and a concomitant desire to reform, usually expressed at the time of sentence. That phenomenon should not be seized upon as an excuse not to impose a condign, deterrent sentence. The primary role of the court when punishing dangerous drivers is to protect the public by deterring would-be errant drivers so that the occasion for such remorse will not arise.
- To the extent that one should have regard to precedent to avoid the second error described in Conquest, the case of R v Vessey; ex parte A-G (Qld) [1996] QCA 011 appears the most comparable. The court (Fitzgerald P, Davies JA and Mackenzie J) allowed the Attorney’s appeal and imposed a sentence of nine years’ imprisonment with a recommendation that Vessey be considered for release on parole after four years, in substitution for a sentence of six and a half years with a recommendation for parole after 26 months. Vessey was convicted of dangerous driving causing death. The court described the circumstances in these terms (at 1):
‘The offence had very serious features. (Vessey) was under the influence of alcohol at the time. A sample of urine … demonstrated that … (Vessey) had at least a concentration of .2 per cent alcohol in his blood. (Vessey’s) vehicle … had been observed making a U-turn sometime before the collision and was observed to travel on the wrong side of the road for about 150 metres causing another vehicle to take evasive action. After it turned a corner into the street where the collision occurred the left-hand indicator remained on, the vehicle was driven to the intersection … without any sign that the brakes had been applied … through a “give way” sign colliding with the victim’s vehicle in the middle of the driver’s side and overturning it. It was not suggested that the speed of (Vessey’s) vehicle had … been excessive …’.
- The court went on to describe as a ‘further aggravating aspect’ that Vessey had a bad history of driving under the influence of liquor and when disqualified. Their Honours said:
‘The behaviour of the vehicle demonstrated that the applicant (sic) was incapable of controlling the vehicle in a way that was not a danger to others and the facts that he drove at all having regard to his condition and that he was not licensed to drive demonstrates a failure to heed adequate warnings of the consequences of driving under the influence of liquor and contempt for the order of disqualification.’
- The court also pointed out that in R v Sheppard; ex parte A-G (Qld) [1995] QCA 005 the principle had been expressed ‘that judges should not always consider themselves entirely fettered by sentences which have been previously imposed or a range of sentences for a particular offence, but should impose sentences which are appropriate in the circumstances of the particular case’. This is the same point made by the judgments in Wilde and Conquest.
- The calibre of the respondent’s driving was of the same level of dangerousness as Vessey’s. Vessey was drunker than the respondent which exposed him to a maximum penalty of 14 years’ imprisonment. Vessey appears to have had a similar, though perhaps not quite as extensive, traffic history as the respondent. He was, as I said, sentenced to nine years’ imprisonment with a recommendation for release after four years.
- In my opinion the appeal should be allowed. The sentence of six and a half years’ imprisonment with a recommendation for post-prison community-based release after two and a half years should be set aside. Instead the respondent should be sentenced to a term of eight years’ imprisonment.
- I do not regard the respondent’s plea of guilty or indications of remorse as requiring any lesser sentence. The prosecution case was compelling. As to his remorse, it has come too late and at too high a cost to the lives of others to count for much. The respondent had many opportunities to repent. Any one of the occasions on which he appeared before a magistrate would have been sufficient.
Footnotes
[1][1996] QCA 11; CA No 453 of 1995, 16 February 1996.
[2][1995] QCA 567; CA No 395 of 1995, 19 December 1995, p 11.
[3][2002] QCA 501; CA No 283 of 2002, 19 November 2002.
[4][2004] QCA 309; CA No 142 of 2004, 27 August 2004.
[5][2005] QCA 26; CA No 380 of 2004, 14 February 2005.
[6][2005] QCA 92; CA No 434 of 2004, 8 April 2005.
[7][2005] QCA 90; CA No 3 of 2005, 8 April 2005.
[8][2005] QCA 120; CA No 31 of 2005, 15 April 2005.
[9][2005] QCA 212; CA No 57 of 2005, 17 June 2005.
[10][2005] QCA 280; CA No 129 of 2005, 12 August 2005.
[11][2006] QCA 2; CA No 301 of 2005, 31 January 2006.