R v Sheedy; ex parte Attorney-General
[2007] QCA 183
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- Appeal Determined (QCA)
- R v Sheedy; ex parte Attorney-General[2007] QCA 183
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R v Sheedy; ex parte Attorney-General[2007] QCA 183
R v Sheedy; ex parte Attorney-General[2007] QCA 183
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 22 of 2007 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 1 June 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 May 2007 |
JUDGES: | McMurdo P, Jerrard JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Appeal allowed to the extent of setting aside that part of the sentence recording the respondent's date for parole eligibility at 7 August 2008 and instead substituting the date for his parole eligibility at 7 December 2008 |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent had pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance, driving while unaccompanied with a learner's permit and failing to display a learner's permit – where the respondent was sentenced to five and a half years imprisonment with parole eligibility after 18 months – where the appellant contended that the sentence was manifestly inadequate – where mitigating factors for the respondent included remorse, cooperation with authorities, an early guilty plea to an ex-officio indictment and reasonable prospects for rehabilitation – where aggravating features included a concerning traffic history, driving after voluntary ingestion of cannabis whilst unaccompanied with only a learner's permit, the death of two innocent victims and the commission of further offences on bail – whether this warranted such an early date for parole eligibility in addition to a lenient head sentence – whether the sentence was within range Penalties and Sentences Act 1992 (Qld), s 160C(5) R v Balic [2005] QCA 212, CA No 57 of 2005, 17 June 2005, considered R v Hey; ex parte A-G (Qld) [2006] QCA 23, CA No 271 of 2005, 10 February 2006, considered R v Hoad [2005] QCA 92, CA No 434 of 2004, 8 April 2005, distinguished R v Rahn [1998] QCA 338, CA No 180 of 1998, 6 August 1998, considered R v Tabakovic [2005] QCA 90, CA No 3 of 2005, 8 April 2005, distinguished |
COUNSEL: | M J Copley for the appellant B G Devereaux SC for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
[1] McMURDO P: The respondent pleaded guilty on 7 February 2007 to an ex-officio indictment charging dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance, namely cannabis sativa. He was sentenced to five and half years imprisonment. He also pleaded guilty to two summary offences (driving while unaccompanied with a learner’s permit and failing to display the learner’s permit) for which he was sentenced to lesser concurrent terms of imprisonment. The judge recommended that he be eligible for parole after serving 18 months imprisonment. The Court Order sheet attached to the indictment recorded "that the date the offender is eligible for parole be fixed at 7 August 2008" in accordance with s 160C(5) Penalties and Sentences Act 1992 (Qld). He was also disqualified absolutely from holding or obtaining a driver’s licence. The appellant, the Attorney-General of Queensland, contends that the sentence on the dangerous driving offence was manifestly inadequate.
The sentencing proceedings
[2] The respondent was 25 at the time of the offences and 26 at sentence. He had an unimpressive criminal history commencing in the Warwick Children's Court on 22September 1995 for break, enter and steal. He was dealt with for similar offences in the Warwick Children's Court in 1997 and in the Warwick Magistrates Court in early 1998. He was sentenced on all occasions to community based orders. In April 1998 he was convicted and ordered to perform community service for drug offences. The next month he was sentenced to a further 18 months probation without conviction for entering or being in premises with intent to commit an indictable offence. In 1998, 1999 and 2000 he continued to commit minor property, drug and street offences. On 18 December 2006 he was convicted and fined for possessing dangerous drugs and possessing utensils or pipes, offences committed whilst on bail for the present offence. He had not previously been sentenced to a term of imprisonment.
[3] He had an even less impressive traffic history. In 1997 he was convicted of unlicensed driving. He had a further 12 convictions for being an unaccompanied learner driver, the most recent being on 27 March 2006, less than four months before the present offence. He had a further three convictions for unlicensed driving. In 2003 he was convicted of disqualified driving. On 26 May 2002 he was convicted of driving under the influence of liquor with a blood alcohol content of 0.027. On 26 October 2002 he was also convicted of driving under the influence of liquor with a blood alcohol concentration of 0.028. (As he was then a learner driver, he committed an offence in having any measurable blood alcohol concentration.)
[4] The offence with which this Court is concerned occurred at the intersection of Alderley and Ramsay Streets, Toowoomba at 2 pm on Saturday 15 July 2006 in a busy residential area with a speed limit of 60 km per hour. The respondent was the sole occupant of the borrowed Mitsubishi sedan he was driving with only a learner's permit. No "L" plate was attached to the car. The deceased Chantelle Progress Shalice was driving a Holden Barina in a northerly direction on Ramsay Street. Her two year old daughter, the deceased Ellora Jane Shalice, was the sole passenger. The headlights of both vehicles were activated because of a heavy winter fog. The road surface was wet. The respondent was driving west along Alderley Street. He estimated his speed to be about 60 km per hour as he approached the roundabout. He failed to negotiate it and instead collided with the kerb, causing his car to launch into the air, entirely cross the roundabout and directly hit the deceased's car which had entered the roundabout from Ramsay Street. The respondent had failed to give way to the deceased’s vehicle.
[5] The 36 year old deceased died at the scene from internal injuries. Her young daughter was airlifted to Brisbane but died of severe head injuries the following day. Both vehicles were free of mechanical defect.
[6] The respondent suffered only minor injuries. He was taken to Toowoomba Hospital but not admitted. A blood sample showed a Delta 9THC reading of 0.014 mg per kilogram of THC in his blood.
[7] Other drivers in the area who witnessed the impact said they were travelling between 40 and 50 km per hour because of the low visibility and wet conditions. The respondent was not seen to slow down or to deviate at all as he approached the roundabout.
[8] No victim impact statement was tendered at sentence. The prosecutor explained that the deceaseds' next of kin resided in the United Kingdom.
[9] The Government Medical Officer’s report described the level of THC in the respondent's blood as quite high; it indicated recent use of cannabis, most likely within the previous few hours. Recent use of THC increases the risk of motor vehicle accidents compared to drug-free drivers, particularly at concentrations over 0.005 mg per kilogram. The level in this case, obtained one and a half hours after the accident, was almost three times that concentration. A person with a THC concentration of 0.014 mg per kilogram would have an increased likelihood of an "at fault" crash at least similar to that of a blood alcohol concentration of 0.10 per cent to 0.15 per cent. This would impair a person’s perception of their environment, their ability to concentrate appropriately and their ability to adequately process information. It would impair their ability to safely control motor vehicles.
[10] The prosecutor at sentence contended this was an offence at the upper end of the scale of seriousness. Although the foggy conditions helped explain the collision, the respondent was deliberately driving on a learner’s permit without being accompanied by a licensed driver. He had many prior convictions for this. His judgment was plainly affected by his use of cannabis. He was driving at an excessive speed in patently dangerous conditions. He killed two innocent victims. The prosecutor referred to R v Hoad[1]; R v Antoney[2] and R v Rahn[3] and submitted that those authorities supported a term of imprisonment of between five and six years with at least 18 months of that time spent in actual custody.
[11] Defence counsel emphasised the respondent's guilty plea to an ex-officio indictment and that he placed his intention to plead guilty before the Magistrates Court at the earliest possible time. He had displayed genuine remorse from an early stage. After the collision he immediately assisted the victims and telephoned for an ambulance. He was seen to be weeping. He voluntarily made admissions to police the following month in an electronic record of interview in which he also expressed his remorse. He was extremely co-operative with the authorities. He was an inexperienced driver who was not exceeding the speed the limit but who drove in a way inappropriate to the conditions. At 26 years of age he had real prospects of rehabilitation.
[12] Defence counsel tendered a report of general practitioner, Dr Mark McDermott, which stated that the respondent had been his patient for three or four years. In December 2003 he was treated for post-traumatic stress disorder and anxiety depression. Since the car accident in July 2006 he had used marijuana to relieve his acute mental stress. He has more recently received medical management of his psychological problems and claimed to have virtually stopped his intake of marijuana and had taken his prescribed medication including antidepressants and anxiolytics.
[13] Defence counsel also explained that the respondent's family was supportive and had attended court. Favourable work and character references were tendered. Defence counsel submitted a sentence of between three and four years imprisonment with parole after nine or 15 months should be imposed.
[14] The learned sentencing judge rightly recognised that the respondent had shown genuine remorse and that a significant factor in his favour was that he had pleaded guilty at an early stage to an ex-officio indictment saving the family of the two deceased even more trauma. Her Honour was also rightly concerned by the respondent’s poor traffic record and his many convictions for driving without an appropriate licence. She accepted the prosecutor’s ultimate submission as to the appropriate penalty and imposed a sentence of five and half years imprisonment with parole eligibility after 18 months.
The appellant's contentions
[15] Mr M J Copley for the appellant contends that the judge underestimated the appropriate range and imposed a manifestly inadequate sentence in the light of the respondent's flagrant disregard for traffic laws in driving alone as a learner driver after having voluntarily ingested cannabis which patently affected his capacity to drive safely and as a result killed two innocent victims. If that submission is correct, the learned judge was plainly led into error by the prosecutor at sentence (not Mr Copley) whose submissions she accepted and relied upon.
[16] In attempting to demonstrate that the sentence was manifestly inadequate despite its conformity with the range proposed by the prosecutor at first instance, Mr Copley relies on this Court's decisions in R v Balic;[4] R v Hey; ex parte A-G (Qld)[5] and R v Rahn.[6] He contends that these cases demonstrate that the appropriate sentence should have been in the range of seven to eight years imprisonment with 6 February 2010 fixed as the date the respondent would be eligible for parole, that is, after serving three years in actual custody.
[17] In Balic, the 49 year old applicant contended his sentence of seven years imprisonment for dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance was manifestly excessive. During the night he attended various nightclubs and at about 6 am drove a vehicle with his niece in the front passenger seat and another female passenger asleep in the back. He and his niece had shared some intravenous "speed" at about midnight. He drove his car onto the wrong side of Vulture Street, East Brisbane before the car drifted to hit a telegraph pole. It was not raining but the road surface was wet. Balic pleaded not guilty and was convicted after a trial. A specimen of his blood taken at 7.55 am established the presence of 0.04 mg of amphetamine per kilogram and 0.68 mg of methylamphetamine per kilogram, a little over 13 times higher than the upper limit of the therapeutic range, increasing the risk of accident whilst driving a vehicle by at least 2.3 times. His niece suffered severe and permanent brain damage as a result of the accident. Balic had a significant criminal history for offences of dishonesty and drug offences, the most recent being about six weeks prior to the accident. He also had two convictions in 1975 and 1976 for drink driving in Western Australia and a similar conviction in Queensland in 2002. Balic gave evidence that he had not slept for 24 hours prior to the accident. The maximum penalty as in the present case was ten years imprisonment. After referring to Rahn and a number of other authorities, this Court concluded that the sentence of seven years imprisonment was manifestly excessive and substituted one of five and a half years imprisonment.
[18] In Rahn the applicant was 27 years old with only a limited criminal history. He pleaded guilty to a variety of property offences as well as the offence of dangerous driving whilst affected by an intoxicating substance, amphetamines, causing death between July and August 1997. The maximum penalty for that offence was, like the offence presently concerning this Court, ten years imprisonment. In September 1997 he uttered counterfeit money and at the end of October 1997 he committed a serious example of the offence of threatening violence. The sentencing judge imposed an effective term of imprisonment of six and a half years on the dangerous driving causing death charge, six months cumulative for the threatening violence offence and 12 months cumulative for the property offences, effectively a sentence of eight years imprisonment but with a recommendation for parole eligibility after three years. He contended the sentence was manifestly excessive. Rahn was driving a vehicle towing a boat on a trailer. His vehicle moved onto the incorrect side of the road hitting the driver of the oncoming vehicle, a mother of young children. A blood sample taken from him contained 0.035 mg per litre of amphetamine and 0.64 mg per litre of methylamphetamine, more than 12 times the upper limit of what was considered to be a normal concentration of that drug in the blood of a user. A disturbing psychiatric report concerning Rahn was also tendered. This Court refused Rahn's application, noting that the overall sentence for the extent of Rahn's diverse criminality was not manifestly excessive and nor did it offend the totality principle, especially in light of the recommendation for parole eligibility after three years.
[19] In Hey, the Attorney-General appealed against the sentence of six and a half years imprisonment with a recommendation for post-prison community-based release after two and a half years imposed for the offence of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol. As here, the maximum penalty was ten years imprisonment. Hey was 28 at the time of the offence and 29 at sentence. He had a relatively minor but nevertheless concerning criminal history for a weapon offence, property offences, drug offences and assault. His traffic history involved disqualified driving and five previous convictions for driving under the influence of alcohol, three for disqualified driving and two for careless driving. His most recent prior offence for driving under the influence of alcohol with a blood alcohol concentration of 0.189 occurred but nine months earlier. He had not previously been sentenced to a term of imprisonment. He had not committed further offences since the offence the subject of the appeal to this Court. He had spent the evening drinking and driving with friends. At about 5.10 pm he was driving two friends along Pine Mountain Road, a two way bitumen road with no line markings and a speed limit of 100 kph. He was within the speed limit. Both he and his passengers were drinking from cans of rum and cola. He approached the intersection with the Brisbane Valley Highway. He continued through a give way sign without reducing speed and collided with a car driven by a 59 year old farmer, Mr Williamson. His wife of 34 years was in the front passenger seat. They were travelling to the Brisbane airport to collect one of their four children. Hey's vehicle did not slow down or take evasive action before impact. Mrs Williamson was killed instantly. At 7.18 pm, two hours after the incident, a specimen of Hey's blood was analysed at 0.061. At the time of the collision his blood alcohol level was likely to have been 0.1 so that he was statistically seven times more likely to be involved in a motor vehicle crash than a sober driver. His vehicle was in an unsatisfactory mechanical condition with decreased braking efficiency. The two passengers in Hey's vehicle received relatively minor injuries. Hey suffered serious injuries, including a smashed clavicle, three broken ribs, bruising and abrasions, his right arm was almost amputated, a punctured lung and a plate had to be inserted in his shoulder. He suffered ongoing neck, back and shoulder pain. Hey pleaded guilty at an early stage, indicating his intention to accept responsibility for the tragic consequences of his driving brought about by his problem with alcohol. He cooperated with police and gave them his account that he endeavoured to stop but there was a problem with the brakes. His criminal and traffic history and his personal and social problems all stemmed from his alcohol addiction about which, by the time of sentence, he had some insight and was addressing. A number of references were tendered on his behalf. By majority, this Court determined that, despite the serious aspects of the offence, the mitigating factors supported the head sentence of six and a half years imprisonment with a recommendation for eligibility for parole after two and a half years.
The respondent's contentions
[20] Counsel for the respondent emphasises the following matters as supporting the sentence imposed as within appropriate range. The respondent's reckless driving was not over a prolonged period. He remained at the scene and sought help for the victims and later cooperated with the police. He pleaded guilty to an ex officio indictment. He was remorseful and references and medical evidence were tendered at sentence supporting his submission that he had suffered from mental disorders for some period before the accident. Balic, by contrast, was convicted after a trial while the respondent pleaded guilty at the first opportunity and was remorseful. Hey, by contrast, was three years older than the respondent and had a significant criminal and traffic history. Rahn, by contrast, drove with an extraordinary high level of amphetamine in his system and committed other serious offences whilst on bail; a psychiatric report did not suggest he had good prospects of rehabilitation.
[21] The respondent's counsel has referred us to R v Tabakovic[7] and R v Hoad.[8] Tabakovic was re-sentenced on appeal to three years imprisonment suspended after ten months. It is not as serious as the present case. Although the maximum penalty there was 14 years imprisonment, the complainant in Tabakovic suffered grievous bodily harm in that he would have bled to death without medical intervention; he required 200 stitches and received intensive physiotherapy to ensure a broken collar bone functioned properly. Whilst clearly a serious injury to the victim, this was not as heinous as the present case where two completely innocent victims were killed. Tabakovic had no criminal history and no prior convictions for drink-driving. He was remorseful, pleaded guilty and had paid some compensation. He was supporting his wife and child.
[22] In Hoad, the applicant pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance. She was sentenced to five years imprisonment to be suspended after serving 18 months. She contended the sentence was manifestly excessive. The maximum term of imprisonment she faced was, as here, ten years imprisonment. She was sleep-deprived and had been taking speed and ecstasy at the time of the accident, which occurred at about 3.30 pm on a busy arterial road in the Gold Coast in heavy traffic. Her vehicle slowing veered into the northbound lane without indicating or braking and collided with a northbound car in which the 92 year old Mrs Vickary was a passenger. Mrs Vickary sustained multiple chest and abdominal injuries which caused her death. Hoad's blood analysis showed the presence of 0.04 mg per litre of amphetamine, 0.14 mg per litre of methylamphetamine and 0.02 mg per litre of MDMA ("ecstasy"). Hoad was cooperative with police and admitted the full extent of her wrongdoing. She had a remarkably traumatic background. She was adopted as an infant and had difficulty coping with feelings of abandonment and rejection. She had suffered from and been treated for depression from the age of 13. This disorder was exacerbated by a series of traumatic life experiences including being raped by her daughter's father and his friends from when she was 13 until 15; difficulties at school; giving birth to her daughter at 15 or 16 and suffering post-natal depression; being a victim of domestic violence at the hands of her daughter's father; traumatic contact with her biological mother; subsequent emotionally abusive relationships with males; and the loss in 2002 of her grandmother to whom she was close, triggering her to fall into drug abuse. She was suffering at sentence from a major depressive disorder and possibly also bipolar disorder and pregnant with her second child. This Court considered the remarkably tragic circumstances of Hoad's personal life and her brave efforts at rehabilitation warranted an unusually early suspension of the five year sentence after nine months. The remarkable circumstances pertaining to Hoad do not exist in the present case. Neither Tabakovic nor Hoad are of particular assistance in determining the appropriate range in the present case.
Conclusion
[23] Has the appellant by reference to Balic, Hey and Rahn demonstrated that the prosecutor at sentence so misled the primary judge as to the appropriate range in this case that the sentence imposed is manifestly inadequate?
[24] The maximum penalty was ten years imprisonment. The present offence was more serious in one way than Balic, Hey and Rahn in that two completely innocent victims in an oncoming vehicle were needlessly killed by the respondent's dangerous driving, no doubt contributed to by his voluntary ingestion of cannabis. He has had many past warnings to comply with traffic laws and ignored them all, persisting in driving unaccompanied on a learner's permit, with the ultimate tragic consequences for Chantelle and Ellora Jane Shalice and their families. He was then convicted of further cannabis offences whilst on bail. He did however show immediate remorse, assisted at the scene, cooperated with the authorities and pleaded guilty at an early stage. He had a concerning criminal history but had never been sentenced to a term of imprisonment. The references and medical reports tendered on his behalf suggested that, perhaps with growing maturity at 26, demonstrated remorse, early plea to an ex officio indictment and cooperation with the authorities, he at last had insight into his offending and so had reasonable prospects of rehabilitation.
[25] The five and a half year sentence imposed in Balic, a less serious example than the present offence but following a trial rather than the early guilty plea here, suggests that a five and a half year head sentence in the present case was within, although at the very lower end of the sentencing range. Rahn and Hey do nothing to gainsay that conclusion although they certainly would also support a head sentence of six to seven years imprisonment. In Balic, a conviction after trial, there was no parole eligibility recommendation. The recommendation for parole eligibility in the present case after serving but 18 months of an already lenient five and a half year head sentence makes the respondent's sentence overall so lenient that it falls outside the appropriate sentencing range in the light of his traffic history and that, as a 25year old, he has driven dangerously causing the deaths of two innocent victims after his voluntary ingestion of cannabis and whilst driving unaccompanied with only a learner's permit. The highly relevant mitigating factors certainly warranted an early date for parole eligibility but at about one-third of the already reduced head sentence, that is, at 22 months rather than 18 months. The judge was led into this error by the submissions of counsel. Although the difference between these sentences may be only four months of actual custody, to let the present sentence stand would have the effect of wrongly lowering the sentencing range in serious examples of dangerous driving causing death or grievous bodily harm whilst intoxicated. The appeal should be allowed and the sentence corrected accordingly.
[26] I would allow the appeal to the extent of setting aside that part of the sentence recording the respondent's date for parole eligibility at 7 August 2008 and instead substituting the date for his parole eligibility at 7 December 2008.
[27] JERRARD JA: I have had the advantage of reading the judgment of McMurdo P and respectfully agree with the reasons and the orders that Her Honour proposes.
[28] PHILIPPIDES J: I agree for the reasons stated in the judgment of McMurdo P that the appeal should be allowed and agree with the proposed orders.
Footnotes
[1] [2005] QCA 92, CA No 434 of 2004, 8 April 2005
[2] [2000] QCA 180, CA No 402 of 1999, 16 May 2000
[3] [1998] QCA 338, CA No 180 of 1998, 6 August 1998
[4] [2005] QCA 212, CA No 57 of 2005, 17 June 2005
[5] [2006] QCA 23, CA No 271 of 2005, 10 February 2006
[6] [1998] QCA 338, CA No 180 of 1998, 6 August 1998
[7] [2005] QCA 90, CA No 3 of 2005, 8 April 2005
[8] [2005] QCA 92, CA No 434 of 2004, 8 April 2005