R v Proesser[2007] QCA 61

SUPREME COURT OF QUEENSLAND

JERRARD JA:  On the 29th of January 2007 Mr Proesser pleaded guilty in the Southport District Court to a charge of dangerous operation of a motor vehicle causing grievous bodily harm to another.  He was sentenced to 18 months imprisonment suspended after he had served three months with an operational period of 18 months.  He was also disqualified from holding or obtaining a driver's licence for three years.  He has applied for leave to appeal against that sentence arguing that it was manifestly excessive and that this Court should now suspend it.

The offence was committed on the 22nd of November 2005 when Mr Proesser was driving a borrowed vehicle, with which he was not familiar, along Smith Street at Southport, driving at the speed limit of 70 kilometres per hour and towards the intersection of that street with Kumbari Avenue.  He looked down to adjust the radio and when he looked back up he saw that the lights had turned amber and that the car in front of his was stopped at the intersection.  In an attempt to avoid colliding with the rear of that vehicle he applied the brakes and swerved his vehicle into the adjacent left turning lane.  His vehicle skidded and hit the complainant, who was on a pedestrian crossing on that lane.  The complainant suffered grievous bodily harm and spent four weeks in hospital.

The applicant does not complain that the head sentence is excessive and argues that the learned sentencing judge correctly characterised the case as one of momentary inattention, or a short period of inattention resulting in serious injury.  Counsel for the applicant submits that there was no deliberate dangerous course of action or excessive speed, no suggestion of alcohol or drugs and that the learned sentencing Judge erred by placing too much weight on deterrence.

Mr Proesser was 28 when sentenced and had appeared in the Criminal Court on one prior occasion, on the 22nd of December 1999, when he was dealt with for minor drug offences and fined $400 with no conviction recorded.  He had some history of traffic infringements, although not serious.  They included a record of penalties being imposed on three occasions, namely the 6th of April 1996, 27 September 2000 and 6 July 2003 for speeding and for some other offences, such as failing to wear a seat belt.  He had worked in the past as a taxi driver and as a pizza delivery driver and his counsel's written submission on the appeal argued that given that employment his traffic record was unexceptional.

At the time of sentence he was in a stable long term relationship and he had completed a Bachelor's Degree in Design at Griffith University one month before the incident.  While at that university he was, according to the submissions made to the sentencing Judge, a mentor to disadvantaged students and had worked as a volunteer in community activities in art and music. 

After the incident occurred he remained at the scene and was apparently distressed and had shown concern for the complainant, to whom he offered to assist in any way that he could.  It was accepted by the sentencing Judge that he was remorseful and he had entered an early plea of guilty.  His counsel submitted on the appeal that in those circumstances it would have been appropriate for the learned sentencing Judge to have suspended the sentence entirely.  It was certainly open to the learned Judge to impose a sentence which did not require any actual imprisonment. 

In R v. Anderson [1998] QCA 355, this Court by majority dismissed an appeal by the Attorney-General and upheld an order for three years probation and community service imposed on an 18 year old who had pleaded guilty to dangerous driving causing death.  That offender had no prior criminal history but did have some traffic history; he had a BAC of .055 per cent, was unlicensed and was driving a Toyota motor vehicle which was in an unsatisfactory mechanical condition, with brakes not functioning correctly and with a very dirty windshield.  He was travelling a little below a 60 kilometre per hour speed limit along a street where he collided with a 22 month old child who had gone onto the road.  He was significantly younger than Mr Proesser, but his driving was worse.

In that decision in Anderson the President referred to a review of comparable sentences undertaken in that matter by  Shepherdson J and wrote that:  those other sentences established that for an offence of that type, where alcohol was not involved as a causative factor, where there was no excessive speed and where the dangerous driving was constituted by inattention over a short period, a custodial sentence was not inevitable, although custodial sentences suspended after a short period of actual imprisonment were often imposed.

In R v. Harris [1999] QCA 392 this Court, by majority, and with some reluctance followed that decision in Anderson in dismissing an Attorney's appeal against a sentence of 12 months imprisonment to be served by way of intensive correctional order, imposed on an offender who pleaded guilty to dangerous operation of a motor vehicle causing the death of one person and the grievous bodily harm of another.  That offender was 20, and held a learner's permit but was driving unsupervised at the time of the incident.  He had a criminal history which included an offence of breaking and entering with intent; he caused a collision because he was driving too fast and was not keeping a proper lookout.  He too was much younger than Mr Proesser but his driving too was much worse.

In R v. Gruenert; ex parte A-G (Qld) [2005] QCA 154, Keane JA wrote, after referring to earlier decisions of this Court (including Harris and Anderson) that in a case of dangerous driving which caused death:

(a)a head sentence of 18 months imprisonment was at the bottom end of the range;

(b)that considerations of deterrence and the gravity of the consequences involved in the offence mean that it will be a rare case that does not involve a custodial term;  

(c)the imposition of a custodial sentence is not, however, inevitable in every case; and

(d)cases of momentary inattention are among rare cases of dangerous driving causing death which may attract a non custodial sentence because in such cases, the claim of the consideration of deterrence are less compelling.

The learned sentencing Judge who imposed the sentence now challenged in this matter was referred to the decision in R v Gruenert and to the quotation by Keane JA in Gruenert plus a statement earlier made by Thomas JA in R v. Harris ex parte The Attorney-General, namely that:

"In a case such as this it becomes very important to identify the level of seriousness of the actual driving of the offender."

However, the learned sentencing Judge in this matter was not referred to the further observations by Keane JA concerning the less compelling nature of the consideration of deterrence in matters of momentary inattention.  In passing sentence the learned Judge did observe that the deterrent was more than ordinarily important for offences of dangerous operation of a motor vehicle and correctly observed that this Court had held that in some cases in which there had been momentary inattention, that the range of appropriate sentences included both non custodial and a short custodial period. 

The learned Judge therefore gave correct self directions as to the available range of penalty but was not assisted by reference to the fuller observations of Keane JA.  The Judge did note that Mr Proesser was visibly distressed at the scene and showed a degree of concern for the injured complainant, and that Mr Proesser seemed to have a reasonable record of employment.  The Judge also remarked that the traffic authorities had since placed extra signage on the road and had removed the pedestrian crossing on which the complainant had been standing when injured. 

Despite all of those matters the Judge imposed the short custodial sentence described.  The applicant's apparently brief period of inattention when driving, generally good previous character and conduct and his distress at what he had done make that sentence of actual imprisonment in those circumstances an unnecessarily hard one.  The general circumstances point, in my opinion, to a non custodial sentence being appropriate in this matter.  Therefore, I would allow this application and the appeal and vary the sentence imposed by ordering that it be suspended immediately. 

KEANE JA:  I agree.

MUIR J:  I agree.

JERRARD JA:  That will be the order of the Court.