R v Saltmarsh[2007] QCA 25

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  The applicant pleaded guilty to the dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol.

She was sentenced to four years, nine months imprisonment, suspended after 21 months for an operational period of five years.  A seven year licence disqualification was imposed. She seeks leave to appeal against the sentence on the ground that it is manifestly excessive. 

The offence occurred in the afternoon of 8th August, 2005 at Redcliffe.  The applicant, then 32 years of age, was driving her Honda Accord motor vehicle in a northerly direction on Prince Edward Parade at about 3.15 p.m.  She was driving in a built up area, intending to pick up her children from school.  Witnesses saw her driving erratically with the vehicle drifting within the lane.  She was not, however, speeding. 

The complainant, Mr Smith, a 78 year old man was out walking with his grandson at about  3.30 p.m.  The grandson's attention to the applicant's vehicle was attracted by the screeching of its tyres.  He observed the vehicle mount the footpath and head towards his grandfather and him.  The vehicle collided with a fence then bounced back on to the road surface and then struck the complainant from behind.

Mr Smith was thrown into the air then rolled back onto the bonnet and windscreen of the car, fracturing the windscreen, and then he fell onto the road surface.  He suffered an unstable fracture of the second cervical vertebra, a subarachnoid haemorrhage and a fractured proximal right fibula.  If left untreated the first of those injuries would have endangered his life and would likely have caused permanent injury in the form of neurological impairment through damage to the spinal chord.

Mr Smith's Victim Impact Statement deals with the traumatic effect upon him of the necessary hospital treatment and his residual disabilities.  He says that while, "before the accident I was a 78 year old man with a capability of a 60 year old" now he is a "79 year old man with the capability of a 90 year broken down old man."

After the accident the applicant's vehicle accelerated away without stopping.  Observers noted the registration number, although the registration of the vehicle was not current and it was uninsured, and they informed the police who located the vehicle parked outside the Scarborough State School, the school attended by the applicant's children.

Prior to the arrival of the police the Deputy Principal of the school had taken the car keys away from the applicant.  The applicant failed to give a breath specimen at the scene.  Breath analysis carried out 45 minutes after the collision showed a reading of 0.281.

The applicant had no prior criminal history.  Her traffic history included infringements for disobeying a one way sign and disobeying a red traffic light in 1993.  Her licence was cancelled in 1996.  In January 1998 and then July 2001 she was fined for exceeding the speed limit by at least 15 kilometres per hour but less than 30 kilometres per hour.  Her licence was suspended in August 2003 and then again in November 2004.

The applicant suffers from addiction to alcohol.  On the day of the accident she had been drinking all day descending even to the consumption of face toner.  She has since applied herself seriously to overcoming the addiction, completing 50 sessions of intensive inpatient behavioural therapy at Logan House, attending a rehabilitation service at Redcliffe and studying for a certificate at TAFE.

It was accepted that she is remorseful.  She wrote a letter of apology to Mr Smith sometime after the event, as the court proceedings in respect of sentence were being prepared.  She was committed, not for trial, but for sentence.  The Crown prosecutor sought a sentence in the range of four and a half years to six years imprisonment.  Defence counsel sought a sentence "around the four year mark" whilst conceding it "could certainly go slightly higher", with a suspension after one third.  This provides a context for the complaint now made about the sentence actually imposed, four years nine months suspended after 21 months.  Counsel for the respondent now advances a range of four and a half to five years.

The sentencing judge was influenced substantially by the R v Smith [2005] QCA 26.  Smith was 39 years old.  He committed his offence in July 2003.  Between March 1995 and December 2001 Smith accumulated three convictions for driving under the influence of liquor.  His blood alcohol reading at the time of the offence of dangerous driving causing grievous bodily harm was 0.24.  He drove dangerously for a short time on the Mt Lindsay Highway injuring two occupants of another vehicle.

Unlike this applicant, Smith did not decamp after the incident and he made full admissions to the police.  He was sentenced to four and a half years imprisonment with no moderation by way of suspension or parole recommendation.  In the Court of Appeal, Mr Justice Chesterman, with the agreement of the other members of the Court, expressed the view that the four and a half year term adequately reflected Smith's plea of guilty and evident remorse.

Mr Byrne QC, for the applicant, emphasised Smith's previous convictions for driving under the influence of liquor.  Also, one notes, Smith injured two victims.  On the other hand, this applicant's blood alcohol reading at 0.28 was substantially higher than Smith's 0.24, and this applicant succeeded in accelerating away from the scene without stopping to render assistance to her victim or hand herself into the authorities.  Further, as mentioned by the sentencing judge, the traffic history especially the recent history could not be ignored.

While Smith would suggest that this head term of four years, nine months taken alone, was substantial, it is ameliorated by the suspension after 21 months, whereas Smith was left in a position of having to apply after 27 months for parole which may or may not be granted.  His Honour has sought to achieve general deterrence by a substantial head term while recognising the applicant's wish to rehabilitate by ensuring release after a little over one third of that term, after 21 months not 19 months.

The Crown prosecutor referred the learned judge to R v Ibraham [2003] QCA 386 where six years imprisonment was imposed with no recommendation for parole.  That was more sustained dangerous driving at speed.  The judge was also referred to R v Haydon CA 396 of 1996 where five years was imposed.  Both of those decisions are referred to in the reasons for judgment in Smith.

Mr Byrne referred to R v Hook [2006] QCA 458 where the driver had a blood alcohol content of 0.165 two hours after the accident.  A passenger in her vehicle was injured.  She was sentenced to three years imprisonment, suspended after 12 months.  This applicant's very much higher reading and her reprehensible departure from the scene distinguished this case substantially from Hook.  Mr Byrne also referred to R v Hoad [2005] QCA 92 where for dangerous driving causing death the sentence imposed upon appeal was five years imprisonment suspended after nine months.  That degree of suspension was substantially referable to a unique combination of extreme circumstances relevant to the offender personally, concerning her extremely deprived upbringing and unfortunate past and culminating in her expectation to be giving birth eight months after the imposition of the sentence.  Those circumstances aside, this case is also distinguishable because the present applicant left the scene as she did and failed forthwith to co operate with the authorities.  I would regard Hoad as a very special case standing by itself.

Mr Byrne submitted that the penalty imposed was manifestly excessive and failed appropriately to recognise the features which favoured the applicant, particularly the matter of rehabilitation.  But in the end, a critical objective in these cases must to secure general deterrence.  As said by Mr Justice Chesterman in Smith, and repeated by this primary judge:

"There is much to be said in the applicant's favour.  He is not a criminal in the conventional sense.  Nevertheless, he behaved with criminal irresponsibility with devastating consequences for others.  The Court, in my opinion, should not hold out any hope to motorists who drive dangerously especially when drunk that they will be treated leniently because they are otherwise decent law abiding citizens.  Those who kill or maim others by driving dangerously when intoxicated commit a serious criminal offence and should expect to be punished severely."

That being so, sentencing judges should in these cases be accorded appropriate latitude.  While an appellate court usefully provides indicative ranges, they must be flexible enough to accommodate varying factual situations and never presented or approached as if prescriptive.

In my view this sentence was not manifestly excessive especially when one takes account of the ameliorating affect of the guaranteed suspension after 21 months.  The primary objective in these cases as I have said must be deterrence and this sentence was appropriately crafted to that end.  It fell within the judge's reasonable discretion to impose a sentence of this order.

While there is from time to time some debate about the effectiveness of imprisonment in deterring the commission of crime, and with crimes of passion it may well not have that effect, there is to my mind no doubt it is effective in deterring driving while intoxicated, with consequent better protection of road users and pedestrians.  There must be no let up in the imposition of strongly deterrent penalties in cases like this where a disgracefully irresponsible driver has through her grossly intoxicated driving occasioned serious injury.  I would refuse the application.

WILLIAMS JA:  I agree.

KEANE JA:  I agree.

THE CHIEF JUSTICE:  The application is refused.