SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The applicant pleaded guilty on 17 January 2007 in the District Court at Brisbane to the indictable offence of dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance and to the summary offences of drink driving and disqualified driving.  The offences occurred on 20 January 2004.  He was sentenced the following morning on the indictable offence to five years imprisonment suspended after two years and two months (the judge did not specify any operational period) and to lesser concurrent terms of imprisonment on the summary offences.  The applicant applies for leave to appeal against the sentence contending that it was manifestly excessive in that an earlier suspension should have been granted.

2. The applicant was 31 at sentence and 28 when he committed the offences. He had a relevant criminal and traffic history. On 12 November 1999 he was convicted in the Maroochydore District Court of grievous bodily harm and sentenced to six months imprisonment to be served by way of an intensive correction order. The offence occurred in December 1997 when, whilst intoxicated, he threw several punches to the face of a man in a nightclub, causing a facial fracture which severed a nerve resulting in permanent loss of smell. The applicant subsequently breached the intensive correction order and was resentenced to six months imprisonment wholly suspended with an operational period of 18 months. On 1 December 1999 he was convicted in the Maroochydore Magistrates Court of the Commonwealth offence of obtaining a payment not payable and sentenced to 150 hours community service. In 1996 and 1997 he was fined for unlicensed driving. In June 1999 he was convicted and fined for driving with a prescribed concentration of alcohol of .117 and unlicensed driving and he was again disqualified from driving. In 2000 he was again convicted of disqualified driving and this time disqualified from driving absolutely.

3. The prosecutor at sentence put forward the following circumstances surrounding the offences. The applicant was disqualified absolutely from driving at the time. The deceased, David Paul Lacey, was his friend and a 21 year old apprentice chef. They had been attending a party on the evening of 19 January 2004. The weather was fine, visibility clear, the road dry, in good condition and free of debris. The applicant and the deceased left the party at about midnight with other friends for the applicant's home. The deceased was out of cigarettes and wanted to drive to a shop to buy some. The applicant told him he should not drive his vehicle. The deceased asked the applicant to drive him. The applicant initially refused but later relented. Some witnesses considered that the deceased was even more heavily intoxicated than the applicant. One witness overheard another telling him not to drive as he was affected by liquor.

4. The applicant drove a couple of kilometres from his home to a hotel resort to buy the cigarettes with the deceased as the front seat passenger. At about 3.15 am the vehicle failed to take a right hand bend and partially mounted the grass verge straddling the kerb. The applicant tried to steer the vehicle back onto the road but lost control causing it to spin clockwise, slide sideways and roll over to the left, finally mounting the footpath on the wrong side of the road. The car was extensively damaged. The deceased, who was not wearing a seatbelt, was thrown through the windscreen and out of the vehicle about 15 metres. The applicant was wearing a seatbelt. He remained conscious and was able to leave the vehicle and look for the deceased. He phoned his partner who arrived at the scene shortly afterwards.

5. An eyewitness had his attention drawn to the applicant's vehicle because of the high speed and noise at which it proceeded to take the corner. He heard squealing tyres and the loud noise of metal crushing. He was able to lend assistance at the scene.

6. Ambulance officers arrived shortly afterwards and found the deceased. He was and remained unconscious. He was transferred to hospital in Brisbane but died at 3.30pm the next day from head injuries received in the accident.

7. The applicant suffered bruising and abrasions to most of his body. He also suffered a minimal fracture of the cervical spine at the C7 joint.

8. The applicant was heard at the scene to say to the unconscious deceased, "I'm sorry, Davey, I shouldn't have done it. I would have been only going about 60 clicks" (that is, 60 kph). He repeated that statement to a police officer at the scene and said that he swerved to avoid a kangaroo on the road. He declined later that day to take part in a record of interview with police.

9. At 7.05 am when the applicant's blood alcohol level was tested by police it was found to be .141 per cent. At the time he committed these offences his blood alcohol concentration was calculated as .209 per cent. He was driving on a major suburban street where the speed limit was 60 kph. Expert calculations from marks on the road and the condition of the vehicle were that his minimum estimated speed at the time of the accident would have been 82 kph. The particulars of his dangerous driving were his intoxication and excessive speed in the circumstances.

10. The applicant was committed to the District Court for trial after a committal hearing with extensive cross-examination of some witnesses. The matter was listed for trial. At a trial review, after the prosecution agreed not to pursue the circumstance of aggravation that the applicant was affected by cannabis, the matter was listed for sentence.

11. Victim impact statements from the deceased's mother, father, step-mother and sisters poignantly refer to their deep grief and sense of great loss arising from David Lacey's untimely death.

12. The prosecutor emphasised the applicant's traffic record, his blood alcohol level, his deliberate reckless driving at high speed whilst absolutely disqualified and submitted that principles of individual and general deterrence warranted a head sentence in the range of five to six years imprisonment. The prosecutor accepted that the plea of guilty, whilst not early, and the short distance travelled while intoxicated, warranted an early recommendation for release on parole.

13. Defence counsel at sentence emphasised the following. The applicant was in a stable family relationship with his partner and two young boys, the younger of whom was his natural son. A number of favourable references attested to the applicant's otherwise good character and the high regard in which he was held within his local community. One referred to the remorse the applicant felt as a result of the death of his friend and that he feels deeply for his friend's family, especially his mother. He had a good work history since leaving school at 17. He ran into some trouble with the law in his younger years but had since settled down. I apprehended defence counsel to submit that the applicant was saddened by the death of Mr Lacey and felt for the deceased's family. He also realised his actions would cause his own family to suffer when he was inevitably sentenced to a prison term. Counsel emphasised that the deceased asked the applicant to drive the car and must have known the applicant was intoxicated. The applicant initially refused before acquiescing. The applicant, who was wearing a seatbelt, did not suffer serious injuries so that it can be inferred the deceased may not have been killed had he been wearing a seatbelt. The drive to the hotel resort for the cigarettes took only two minutes. Kangaroos are common in the area where the accident occurred in the pre-dawn period. The applicant instructed that a kangaroo came onto the road; when he moved to the side to avoid it he lost control of the vehicle. The prosecution was unable to gainsay this contention. The applicant pleaded guilty after the matter was set down for trial but the defence did not ask for a trial date; a judge set it down for trial in an effort to finalise negotiations between the parties as to the plea. As soon as the prosecution stated their willingness to accept of a plea of guilty to an appropriate charge, he indicated his intention to plead guilty. A sentence of between four and four and a half years imprisonment suspended after one-third was appropriate; the applicant did not need supervision in the community under a parole order.

14. The judge reserved his decision overnight. In sentencing the applicant, his Honour noted that the maximum penalty for the indictable offence was 14 years imprisonment. After referring to the salient facts and mitigating features, his Honour made the following observations. The post-accident analysis of the incident demonstrated a gross loss of control at a speed that was beyond the capacity of the motor vehicle on the road and beyond his ability, diminished as it was by intoxication, to control its movement. The accident was caused through intoxication and excessive speed (82 kph in a 60 kph area). The applicant was a mature man who had previously experienced the legal consequences of driving under the influence. He may have had to avoid a kangaroo on the road, but it was the speed at which he was travelling and his gross intoxication that affected his capacity to deal with that situation. The plea was not an early plea but it had saved the cost of a trial and the deceased's family the trauma of a defended proceeding so that he was prepared to give "some credit" for it but "less than might otherwise have been the case". There had been no submission of genuine remorse on the part of the applicant and "save for what I have referred to in respect of [the] plea, there is nothing in that regard that [his Honour could] take into account in [his] favour." His Honour reviewed a number of comparable sentences of this Court.

15. Initially his Honour imposed a sentence on the indictable offence of five years and three months imprisonment, suspended after serving two years and two months on the indictable offence. The prosecutor reminded his Honour that the maximum term of imprisonment which could be subject to partial suspension was five years. His Honour immediately substituted a sentence of five years imprisonment. Unfortunately the judge did not impose an operational period. This error does not, however, require the granting of the application for leave to appeal. As Mr Heaton for the applicant correctly points out, under s 144(6) Penalties and Sentences Act 1992 (Qld) the operational period starts on the day the order is made and must be not more than five years, so that the operational period here can only be one of five years. 

16. Mr Heaton does not contend that the head sentence of five years imprisonment is outside the range of appropriate penalty in all the circumstances of this case. He concedes that it is supported by R v Hoad^[1] and R v Breckenridge.^[2] He submits, however, that the suspension after two years and two months failed to adequately reflect the mitigating features, especially the guilty plea and remorse; the suspension should be six months earlier, after 20 months, that is, after serving one-third of the sentence.  He contends that the judge failed to appreciate that the plea was entered at the first reasonable opportunity after the extent of the applicant's criminal liability had been fully determined and also failed to recognise that it, together with the applicant's other conduct, demonstrated genuine remorse. 

17. By way of comparison, he emphasises Breckenridge.  Breckenridge pleaded guilty to dangerous operation of a motor vehicle on a roadway causing grievous bodily harm with a blood alcohol concentration exceeding .15 per cent.  He also pleaded guilty to related summary offences.  He was sentenced to five years imprisonment suspended after two years and two months with an operational period of five years, the very sentence imposed on the present applicant.  He was 42 at sentence and 40 at the time of the offence.  He had some old convictions for minor drug offences,  six convictions for driving a motor vehicle under the influence of alcohol and a bad traffic record.  His blood alcohol level was about .235 per cent.  He disregarded advice that he should not drive because he was affected by alcohol.  He was addicted to alcohol and suffered from bi-polar disorder although defence counsel at sentence had submitted the bi-polar problems were "by no means overwhelming", had been exacerbated by Family Court proceedings and that he had largely been rehabilitated with professional assistance by the time of sentence.  The victim was left with a shortened leg and no ankle movement because of comminuted fractures of bones of his right ankle area.  This Court determined that the sentence was not manifestly excessive.

18. Whilst Breckenridge had a much worse history of drink driving and the maximum penalty was the same as in the present case, Breckenridge's victim, unlike Mr Lacey, was not killed. Breckenridge tends to support the present sentence, including the period of suspension, as being within range.

19. I am, however, troubled by two statements made by the learned sentencing judge prior to passing sentence. The first is that his Honour regarded the plea only as one that warranted "some credit" and certainly "less than might otherwise have been the case". Whilst the plea was not, for example, to an ex officio indictment or entered at committal, it should have been treated by his Honour as a timely plea in the circumstances. It was indicated well before trial and as soon as the prosecution agreed not to allege the aggravating circumstance that the applicant was affected by cannabis at the time of the dangerous driving causing death. Furthermore, the applicant appears to have made some admission of responsibility to police at the accident scene. His cooperation with the administration of justice was deserving of a substantial mitigation in sentence.

20. The other even more troubling matter is that his Honour considered that apart from the plea there was nothing that he could take into account as showing genuine remorse on the applicant's part. The judge seemed to have overlooked the fact that the applicant stayed at the scene and attempted to help the deceased, despite his own injuries, and apologised to his then unconscious victim immediately after the accident. Defence counsel did not directly emphasise the applicant's remorse at sentence. She stated: "… and with a lot of these dangerous driving causing death cases, there appear to be no winners. The deceased family has suffered. My client has lost a good friend. My client's family will suffer for the inevitable prison term which must follow." Later, in submitting that the applicant swerved to avoid a kangaroo, defence counsel pointed out: "… the salient feature of this, your Honour, my client has pleaded guilty. So it is not an attempt to avoid the consequences of his action, but perhaps add substance to how the tragedy occurred along with the feature of Mr Lacey not wearing a seatbelt." I certainly apprehended from those submissions, perhaps made with the advocate's understatement for maximum impact, that the applicant was remorseful. Furthermore, one of the tendered references referred to the applicant's remorse and his deep feelings for the deceased's family's grief, especially his mother. The judge was wrong in finding there was no evidence of remorse. The applicant's remorse, quite apart from the guilty plea, was palpable.

21. These errors appear to have affected his Honour's determination, not of the head sentence but of when to suspend it. The application for leave should be granted, the appeal allowed, and this Court should exercise the discretion as to when to suspend the head sentence afresh. Pleas of guilty, cooperation with the administration of justice and remorse commonly result in a parole recommendation or suspension after serving about one-third of the head sentence. I can see no reason why that should not have happened here to reflect the numerous mitigating factors, including the timely plea and genuine remorse. I would suspend the sentence after the applicant has served one-third of it, that is, after 20 months.

ORDERS:

1. Grant the application for leave to appeal against sentence.

2. Allow the appeal.

3. Set aside that part of the sentence suspending the five year term of imprisonment after serving a period of two years two months and instead order that it be suspended after serving a period of 20 months, with an operational period of five years.

4. The original sentence is otherwise confirmed.

22. HOLMES JA:  I agree with the reasons of the President and the orders she proposes.

23. LYONS J:  The decision of the President sets out a full statement of the background facts and circumstances giving rise to this appeal.  I agree with the reasons of the President and with the orders proposed.  I would make some brief observations in support of the reasons of the President.

24. It is clear from an analysis of the decisions in R v Hoad^[3] and R v Breckenridge^[4] that a head sentence of five years imprisonment was clearly within the appropriate range as a penalty in the circumstances of this case.  The only issue in contention in this appeal is whether the suspension of the sentence should be after a period of 20 months rather than after a period of two years and two months.  There are two factors in particular which I consider indicate that a suspension after 20 months would have been the more appropriate period.  These two factors are the extent of the applicant’s remorse and the applicant’s entry of a timely plea prior to trial. 

25. This accident was clearly a tragedy. The deceased was well loved and his family set out in a series of very moving letters,^[5] the extent of their loss.  These letters, which were before his Honour, set out the enormous impact his death has had on the family.  

26. The evidence before his Honour however also clearly indicated that the applicant was very keenly aware of the enormity of this loss and the impact that this has had on the family. The evidence also indicates that the deceased was a very close friend of the applicant. In particular I am satisfied that the material before his Honour did in fact indicate that the applicant was remorseful. I consider that the circumstances do indicate that there was significant remorse in evidence. This remorse was implicit in the submissions made by counsel for the applicant. In particular one of the references dated 10 October 2006, which was before his Honour, indicated the extent of the applicant’s remorse:^[6]  

“Chris and Leisa have discussed the event in question at length with me and I must admit to being shocked at first and devastated that such bad judgement [sic] has led to the death of a friend.  I know of the remorse Chris feels and can only guess at what he and his family are and have being going through.  He feels deeply for his friends [sic] family and their loss especially for the mother.  Chris knows he made a grave mistake and has suffered for his misjudgement. [sic]”

27. Accordingly in considering an appropriate penalty this remorse was a factor that his Honour should have taken into account. In particular it must be remembered that a plea of guilty is in itself a demonstration of remorse. I consider therefore that his Honour was not correct when he indicated:^[7]

“Nothing has been submitted to me about genuine remorse on your part and, save for what I have referred to in respect of your plea, there is nothing in that regard that I can take into account in your favour.”

28. Secondly, I also consider that whilst his Honour did indicate that there was a plea of guilty it would seem that this plea has not received due recognition in terms of the actual suspended sentence which has been imposed. In the circumstances this was a plea which deserved a more significant reduction. I note in particular the prosecutor’s submission that the applicant did deserve the benefit of a plea. In addition counsel for the applicant also indicated at the sentencing hearing that as soon as factual matters were clarified there was a timely plea as follows:^[8]

“…once there were sensible negotiations, the indication of a plea came pretty soon after that.  So, in my submission, your Honour could take it as an early plea or a timely plea.”

29. The submissions were that essentially the committal proceeding was conducted for the purpose of eliciting and clarifying evidence for the purpose of a plea. Counsel indicated that the evidence at the committal was in relation to the reconstruction of the accident and technical evidence about calculation of the speed and calculation of the blood alcohol level. It was also clear that some matters needed to be clarified in relation to matters of aggravation.

30. Accordingly, whilst it is clear that his Honour did take his plea into account he did not consider it an early plea. In the circumstances I am satisfied that greater consideration should be given to this plea, given that it was made by the applicant as soon as factual matters were clarified. In particular the comments of Street CJ in R v Holder^[9] are appropriate in this regard:^[10]

“In every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complex of the facts before the court.”

31. In the overall complex of facts in this case I consider that whilst a head sentence of five years was appropriate this sentence should be suspended after the applicant has served one third of it, that is, after 20 months. I agree with the orders proposed by the President.