SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  The relevant facts are set out in the reasons for judgment of Jerrard JA which I have had the advantage of reading. 

[2] The material does not suggest that the applicant was warned by her passengers (or by anyone else) not to drive because of her level of intoxication.  The fact that a driver in that situation has been so warned may be of some relevance, but the absence of such a warning cannot, in my view, be a material consideration when it comes to determining the appropriateness of the sentence imposed.  The objective considerations, the accident and the level of intoxication, will always be the more determinative factors when considering the appropriateness of a sentence. 

[3] Given the objective considerations here a head sentence of three years imprisonment was within the appropriate range.

[4] Counsel for the applicant on sentence referred to the injuries she sustained in the incident giving rise to the charge.  The applicant was said to have sustained a dislocated hip, a broken left arm, and some cuts to the knee.  She was in hospital for a month.  Counsel said to the sentencing judge that those injuries "became a lesson in itself about the damage she caused to herself, let alone another human being".  But later in his submissions he did say: "She doesn't have any medical problems herself as a result of the injuries she earned for herself in the accident, so she is in a better position than the young woman that was in the vehicle.  I must concede that."  In those circumstances the probability is that the sentencing judge recognised that the injuries sustained by the applicant were of some relevance, and were part of the "personal circumstances" he took into account.  But on the facts of this case the injuries in question were not such as to call for any significant moderation in the head sentence; nor were they of a decisive character in determining the period of the head sentence which actually had to be served.

[5] Subject to the matters I have specifically dealt with, I agree with all that has been said by Jerrard JA in his reasons.

[6] The application for leave to appeal against sentence should be dismissed.

[7]  JERRARD JA: On 11 July 2006 Ms Hook pleaded guilty to an offence of dangerous operation of a motor vehicle causing grievous bodily harm to another, while adversely affected by alcohol, and when the concentration of alcohol in her blood exceeded 150 mg of alcohol per 100 mL of blood.  She also pleaded guilty to driving a motor vehicle when under the influence of liquor or a drug, and driving a motor vehicle when the number of persons in that vehicle exceeded the maximum number of persons the vehicle was capable of carrying, as stated in the Certificate of Registration for that vehicle.  On the charge of dangerous operation of a vehicle causing grievous bodily harm with the circumstance of aggravation, she was sentenced to three years imprisonment, suspended after she had served 12 months of that term for an operational period of four years, and disqualified from holding or obtaining a driver’s licence for four years.  On the two summary charges she was sentenced to two months imprisonment when driving under the influence of liquor, and convicted but not punished in respect of the overloading charge.  She has applied for leave to appeal against the sentence of three years imprisonment, arguing that that should have been suspended after she has served six months of that sentence. 

[8] The circumstances of the offence were that at around 3:30 am on 13 November 2004, Ms Hook was driving a utility and carrying two passengers in it – one without a seat belt – and she failed to successfully negotiate a bend in a major roadway.  An 80kph speed limit applied, and the prosecution did not allege Ms Hook was travelling at excessive speed.  She was heavily intoxicated (her blood alcohol concentration [“BAC”] two hours after the incident was 0.165) and the utility failed to take the turn, mounted the centre concrete island, swiped a guard rail on it, then slid across the road and collided with a tree.  One of the two passengers suffered significant and serious injuries constituting grievous bodily harm.

[9] Counsel for the prosecution informed the learned sentencing judge that Ms Hook had no recollection of the particular incident, but could recall having consumed at least two vodka cruisers each containing 275 mLs, two standard glasses of rum and coke, and four large glasses of Lambrusca wine the previous evening, between     8:30 pm and 1:00 am on 13 November 2004.  Counsel for the prosecution suggested to the sentencing judge that Ms Hook had had even more to drink than that, judging by the BAC.

[10]  Another case in which the same sentence, of three years imprisonment suspended after 12 months was imposed, was R v Quinn [2003] QCA 417.[1]  That offender pleaded guilty by an ex-officio indictment to one count of dangerous operation of a motor vehicle causing grievous bodily harm with the circumstance of aggravation of being adversely affected by alcohol.  Her BAC was 0.188 per cent one hour after the collision.  That offender drove through a stop sign when thus intoxicated, at a speed of over 70 kph, and collided with another car.  Her passenger had earlier twice asked her to stop the car so that he could get out, as the passenger realised that the offender was intoxicated, but she did not stop the vehicle and drove on through the stop sign.  She had earlier said, when travelling in the other direction, that she never stopped at that particular stop sign because she thought it was on the wrong road.  Those circumstances make Ms Quinn’s conduct a much more determinedly serious example of dangerous driving than this applicant’s.

[11]  Likewise in R v Purcell; ex parte Attorney-General (Qld) [1999] QCA 316,[2] that respondent pleaded to a count of dangerous operation of a vehicle causing grievous bodily harm with the circumstance of aggravation of being adversely affected by alcohol, with a concentration of 0.174 per cent.  He was aged 24 with no prior criminal history, although he was on bail on a charge of driving a vehicle with a BAC of 0.103 per cent at the time he committed the offence of dangerous operation causing grievous bodily harm.  That offender had consumed a good deal of alcohol during a late afternoon and evening, and was advised by his stepmother not to drive, but ignored her advice.  Approximately half an hour later his vehicle travelled through a stop sign at an intersection at about 100 kph, became airborne, and crashed.  The complainant suffered grievous bodily harm and the respondent suffered quite serious injuries himself; he too was genuinely remorseful and visited the complainant, his friend in hospital.  He also had significant references and an impressive work history.  Nevertheless, like the offender in R v Quinn, that offender had ignored a specific warning given to him.  This Court imposed a sentence of three years imprisonment with parole recommended after 12 months.

[12]  Those sentences suggest that in this matter the three years was towards the higher end of the available range, where there was no evidence of Ms Hook having received any specific warning against driving and where her speed was not excessive.  However, each of the counsel who appeared on her behalf before the learned sentencing judge, and the counsel appearing on the application to this Court, accepted that a head sentence of three years imprisonment was within the appropriate range.  The submission advanced in both courts was that the sentence should be suspended earlier than after Ms Hook had served one third.  In this Court counsel particularly relied on her age (she turned 21 shortly before the date of the offences, which was 13 November 2004); the fact that she had no prior criminal convictions and only two prior speeding tickets; her timely plea of guilty; the injuries she suffered in the collision she caused, namely a dislocated hip, a broken left arm and cuts to her knees; her work history of endeavouring to obtain employment and being employed in a number of unskilled positions; her co-operation with the police, which included her taking part in a record of interview and making relevant admissions; her remorse which included her visiting the complainant and personally apologising for injuries and damage; and her good character, as established by a number of references.

[13]  Those were matters in mitigation, which included both the more common ones of an early plea and co-operation with the police, and in addition her own personal circumstances, prior good conduct, and remorse.  The first, more general matters – the plea and co-operation – themselves often enough result in an otherwise appropriate head sentence being suspended or ameliorated by a direction for parole eligibility after approximately one third of a head sentence had been served.

[14]  Mr AJ Kimmins urged the argument on appeal that the learned sentencing judge had failed to have sufficient regard to the injuries Ms Hook herself had suffered in the accident.  He referred the Court to R v Noble & Verheyden (1994) 73 A Crim R 379 at 382, and R v Djakovich [1995] QCA 491[3] at pages 5 to 6, in support of the submission that injuries suffered by an offender as a result of committing the offence are relevant matters for consideration in mitigation of the otherwise appropriate punishment.  That proposition is supported by those decisions, and it seems a commonsense one.  Painful consequences already suffered can be both a deterrent to future offending, and a matter a sentencing court is required to take into account as a personal circumstance going to mitigation, and as a material fact when ensuring that the punishment the offender receives from the court is what in all the circumstances is an appropriate punishment and not an excessive one.  (Mr Kimmins referred the Court to the helpful discussion by Grove J of the appropriate principles in Alameddine v Regina [2006] NSWCCA 317,[4] with whom Kirby and Heslop JJ agreed).

[15]  The learned sentencing judge was told that Ms Hook suffered a dislocated hip, a broken left arm, some cuts to her knee, and that she was in fact in hospital herself for one month.  Her counsel submitted to the judge that those injuries and their consequences had become “a lesson in itself about the damage she caused to herself, let alone another human being.”[5]  The learned judge did not expressly refer to those injuries when passing the sentence, but did refer to Ms Hook’s timely plea of guilty, her co-operation with the administration of justice, and to “your personal circumstances.”[6]  Mr Kimmins argued that because the judge did not describe those circumstances or refer to Ms Hook’s injuries, it was at least possible that the learned judge had overlooked them as relevant and potentially mitigating matters. Mr Kimmins argued that the three years should have been suspended at a point somewhere between when six months had been served, and before 12 months had been served.  That submission really meant that a quite specific and limited range of actual imprisonment was all that was open to the judge to impose.  I agree that the range of sentences suggested by Mr Kimmins would be ones available to the learned judge, but disagree that the other decisions of this Court limited the range to one as fixed as Mr Kimmins argued.

[16]  Most of the matters personal to her were also present in the case of R v Purcell, and once it is conceded that the three year head sentence was available in this matter, it is difficult to say that the 12 month minimum term was manifestly too long.  In R v Calligan [2006] QCA 243,[7] where that offender faced a maximum penalty of 10 years imprisonment compared to the 14 years Ms Hook faced, this Court imposed on appeal a sentence of three years imprisonment suspended after nine months.  The matters that were personal to that offender included that his dangerous operation of a motor vehicle, when adversely affected by alcohol (but where he was not shown to have had a BAC in excess of 0.15 per cent), included that his 16 year old son had been killed in the accident, and had died in his arms.  That offender’s obviously dangerous driving had taken place for over only a few metres, and comparing those two sentences also makes it difficult to establish that this one is manifestly excessive.  The learned sentencing judge could have suspended the sentence earlier than the 12 month mark, by reason of the personal matters, personal to Ms Hook, but was not manifestly wrong in not doing so.  I would dismiss the application.

[17] PHILIP McMURDO J:  I agree with Jerrard JA.