SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree that the application should be refused, for those reasons.

[2]  KEANE JA:  On 6 June 2008 the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death and grievous bodily harm.  He was sentenced to 18 months imprisonment, suspended after four months for an operational period of 18 months.  He was disqualified from holding or obtaining a driver's licence for 12 months. 

[3] The applicant seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

The circumstances of the offence

[4] On 25 January 2005, at about 10.00 pm, the applicant was driving a taxi outbound from Townsville approaching the intersection of the Bruce Highway and Mount Low Parkway.  Garnet William Wieden ("the deceased") was seated in the front passenger seat of the taxi.  The applicant was following another vehicle which executed a right-hand turn into Mount Low Parkway.  The applicant then executed his own right-hand turn.  Police Constable Philip Haupt was riding his motorcycle in a southerly direction on the Bruce Highway.  The motorcycle collided with the passenger side of the taxi.  The applicant did not see the oncoming motorcycle until it was too late to avoid the collision.

[5] The deceased suffered fatal injuries in the collision, and Constable Haupt suffered grievous bodily harm.

[6] The intersection was hazardous.  At the time of the collision, it was dark and the road surface was wet because it had been raining.  There were reflections off the surface of the road.  There were no traffic lights at the intersection; they have since been installed.  Work is presently underway to create a "fly over" to avoid the need for traffic to cross at the intersection.  The overhead lighting at the time was deficient.

[7] The speed limit on the Bruce Highway at this point was 100 kilometres per hour, and there is no suggestion that the applicant was driving at an excessive speed.  The speed limit on this part of the Bruce Highway has subsequently been reduced.

[8] The applicant contravened r 72(5) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) by failing to give way to Constable Haupt's vehicle.

[9] The vehicle which turned right into the intersection ahead of the applicant was driven by Mr Troy Stanley.  Both Mr Stanley and his passenger saw the headlight of the approaching motorcycle, but proceeded through the intersection before the motorcycle reached it.  There was no explanation advanced by the applicant to explain why he failed to see the oncoming motorcycle.

[10]  On sentence, the Crown accepted that the collision was caused by momentary inattention on the applicant's part.  The applicant accepted that he operated his vehicle dangerously in that he should have seen the oncoming motorcycle but did not.

The applicant's personal circumstances

[11]  The applicant was 63 years old at the time of the offence.  He was 66 years old at the date of sentence.

[12]  The applicant has no criminal history and a minor traffic record.  A number of references were placed before the learned sentencing judge attesting to the applicant's good character.

[13]  The applicant is a taxi driver by occupation.  As a result of his offence, he has lost his livelihood.

The sentence

[14]  The applicant submits that reference to comparable decisions shows that the sentence which was imposed was manifestly excessive in that the term of imprisonment should have been wholly suspended.

[15]  In support of that submission, Counsel for the applicant referred to R v Gruenert; ex parte A-G (Qld).[1]  The decision does not assist the applicant.  In that case, it was said that a head sentence of 18 months imprisonment is at the bottom end of the range for a case of dangerous driving causing death.  Further, the gravity of the consequences involved in such an offence means that it will be a rare case that does not attract a custodial term.  Nevertheless, a custodial sentence is not inevitable, and cases of "momentary inattention" are among the rare cases which may attract a non-custodial sentence.  In Gruenert this Court upheld the learned sentencing judge's decision to impose a wholly suspended sentence of 18 months imprisonment.  The point to be made here is the obvious one:  it is quite wrong to regard the observations in Gruenert as supporting the view that, in a case of momentary inattention, the discretion of the sentencing judge must be exercised by fully suspending the sentence of imprisonment which is imposed. 

[16]  The applicant also argued, by reference to the circumstances of a number of other cases to support the submission, that, in this case, it was not open to the sentencing judge to proceed otherwise than by wholly suspending the sentence imposed on the applicant.  The point to be made here is that a close comparison of the circumstances of other cases with the circumstances of the present offending is inherently unlikely to demonstrate that the sentencing discretion has miscarried in this case. 

[17]  The crucial issue is, as Thomas JA said in R v Harris; ex parte A-G (Qld),[2] "the level of seriousness of the actual driving of the offender."  While the applicant's driving may be aptly described as a case of "momentary inattention", it was, as he acknowledged, inattention of a relatively serious kind.  The applicant's turn should not have been made without attending to whether there was oncoming traffic.  The applicant gave no explanation for turning right across the highway without proper vigilance.  To emphasise, as the applicant does, that the intersection was hazardous in the prevailing conditions serves only to highlight the need for vigilance on the applicant's part as to the possible approach of traffic from the opposite direction of the Bruce Highway.  To say this is not to say that the applicant was obliged to exercise greater than proper care and attention:  it is simply to say that the care and attention necessary when a driver is negotiating a dangerous intersection may require greater vigilance than would otherwise be the case.  In this regard, the learned sentencing judge said:

"As you were to enter onto the intersection you knew you were driving on a road at a time at which it had been raining lightly, that the road surface was wet. You knew you were turning right across, as I said, potentially oncoming traffic on a major arterial highway.

…

One can have a momentary inattention when driving a vehicle and one suddenly looks away momentarily, say whether to change the radio station in the car or whatever and then look up. This situation was that you knew you were to slow down or become stationary and not enter the intersection for executing the right-hand turn until you kept a proper lookout to satisfy yourself it was safe so to turn, one might say with particular care on this evening with a road surface that was wet."

[18]  The circumstances of the applicant's driving were such as to entitle the learned sentencing judge to regard the applicant's failure adequately to attend to the possible approach of oncoming traffic as a serious fault, and, indeed, a significantly more serious fault than that involved in the decisions involving suspended sentences on which the applicant relied by way of comparison.[3]

[19]  On the applicant's behalf, reference was also made to a number of cases where custodial terms were imposed[4] in order to suggest that the offending involved in those cases was more serious than the fault of the applicant in this case, and that a proper calibration of the applicant's relative fault means that, in this case, only a fully suspended sentence could properly be imposed by the learned sentencing judge.  In my respectful opinion, this kind of comparison affords no basis for concluding that the sentence imposed in this case was manifestly excessive. 

[20]  The issue is whether the imposition of a short custodial sentence was within the sentencing discretion reposed in the learned sentencing judge.  The resolution of that issue is not materially assisted by pointing to cases where more serious offending has resulted in custodial sentences and then identifying circumstances in those cases which suggest that the offending involved in the instant case was sufficiently less serious as to imply that a sentence of 18 months imprisonment fully suspended was the appropriate sentence.  In R v Dwyer,[5] an approach of the kind advocated on behalf of the applicant was rejected:

"… An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]).  In Markarian v The Queen ((2005) 288 CLR 357 at 371 [27] (citations footnoted in original)), Gleeson CJ, Gummow, Hayne and Callinan JJ said:

'Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence (Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies (Johnson v The Queen (2004) 78 ALJR 616 at 618 [5]; 205 ALR 346 at 348 per Gleeson CJ; at 624, 356 [26] per Gummow, Callinan and Heydon JJ).'

In the same case, McHugh J said ((2005) 228 CLR 357 at 383 – 384 [65] – [66] (citations footnoted in original)):

'Unfortunately, discretionary sentencing is not capable of mathematical precision or, for that matter, approximation. At best, experienced judges will agree on a range of sentences that reasonably fit all the circumstances of the case. There is no magic number for any particular crime when a discretionary sentence has to be imposed. What Jordan CJ said in R v Geddes ((1936) 36 SR (NSW) 554 at 555 – 556) about the reality of the sentencing process has never been bettered and probably has never been equalled. With the passage of time, it is no longer cited as frequently as it once was. But the whole judgment repays careful study. I make no apology for setting out the crucial passage, lengthy though it is:

'This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others.

When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.

The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they can; and so must the judge. In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong.' (Emphasis added.)

This passage is not a testament of despair but a perceptive understanding of the reality of the sentencing process by one of the greatest judges that the common law system of justice has produced. It recognises that the judge must weigh all the circumstances and make a judgment as to what is the appropriate sentence. In R v Williscroft ([1975] VR 292 at 300), the Full Court of the Supreme Court of Victoria referred to this value judgment as an 'instinctive synthesis of all the various aspects involved in the punitive process.' This was a candid recognition of the fact that in the end sentencing depends on the judge's assessment of what is the correct sentence. There is no objectively correct sentence, only a range of sentences that the majority of experienced judges would agree applied to the case. The only novelty in Williscroft was the description that it gave to the sentencing process.'"

[21]  In my respectful opinion, the imposition of a custodial sentence was within the sound exercise of the sentencing discretion.  That this is so is clearly established by this Court's decisions in R v Gruenert, and R v Vance; ex parte A-G (Qld).[6]Those decisions, and the earlier decisions reviewed in them, proceed on the basis that the death of a human being as a result of dangerous driving is so serious that a term of imprisonment of at least 18 months should be expected save in exceptional cases.  Usually such a sentence will involve actual custody.  In this case, in addition to the death of the deceased, the applicant's dangerous operation of his motor vehicle also caused serious injury to Constable Haupt.  While it is arguable that it might have been open to the learned sentencing judge fully to suspend the sentence imposed on the applicant, it cannot be said that his Honour erred in regarding the applicant's fault as so serious as to require some period of actual custody bearing in mind the tragic consequences of his offence.

Conclusion and order

[22]  The sentence which was imposed was not manifestly excessive.

[23]  The application for leave to appeal against sentence should be refused.

[24]  FRASER JA:  I agree with the reasons of Keane JA and the order proposed by his Honour.