R v Bains[2008] QCA 247

SUPREME COURT OF QUEENSLAND

1. KEANE JA: I agree with the reasons of Fraser JA and with the order proposed by his Honour.

2. FRASER JA: On 22 November 2007 the applicant was convicted on his own plea of guilty to dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance.  He also pleaded guilty to two summary offences, driving over the general but under the high alcohol limit and driving whilst disqualified by court order. 

3. He was sentenced to six years imprisonment with a parole eligibility date fixed after he had served a period of two and a half years. He was disqualified absolutely from holding or obtaining a drivers licence. In respect of the two summary matters he was convicted but not further punished. The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

Circumstances of the offences

4. In the middle of the day on 9 January 2007 a young man, Mr Peter Lawrence, was standing on the median strip in Algester Road, Algester when he was struck by the applicant’s car, which had mounted the median strip.  An hour later Mr Lawrence's mother was advised that he had been taken to the hospital suffering serious head injuries.  He had passed away before his mother reached the hospital.  He died eight weeks before his 21^st birthday.

5. Where the collision occurred Algester Road is a four lane carriageway divided by a substantial median strip.  The weather was fine and the road was dry.  Mr Lawrence was standing on the strip intending to cross the road and facing away from the applicant.  The applicant was driving his car in a southerly direction on Algester Road when he failed to negotiate a left bend, mounted the median strip and struck a sign before colliding with Mr Lawrence, who attempted to avoid the collision, some 18 metres further on.  The car continued wholly on the median strip before it veered back into the southbound lanes, collided with two other vehicles, careered across the median strip, and continued across the north bound lanes.  The applicant's car travelled about 120 metres after hitting Mr Lawrence, having crossed all four lanes, before finally coming to rest in the yard of a house near the road. 

6. In submissions the prosecutor quoted an eye-witness as having stated: “[The applicant], also, however told her that he was driving down Algester Road and that a car pulled in front of him and that they collided. He said the car had pulled out of the left-hand lane into the right lane he was in. They hit. Both braked and that was how he ended up spinning down the road.” The prosecutor also referred to the applicant having given the same version to a police constable who attended at the scene. The prosecutor said that the Crown case was that this was a false version. In response to a question by the sentencing judge, the applicant’s solicitor said that it was accepted that the applicant’s statement to the witness was untrue, and referred to the applicant having worked all night, his tiredness, and the level of alcohol in his blood. In submissions, the applicant’s solicitor submitted that these were misstatements but not lies. The applicant declined to be interviewed.

7. A blood sample taken from the applicant showed a blood alcohol concentration of 0.147 per cent at the time the sample was taken. It was estimated that his blood alcohol concentration at the time of the collision would have been about 0.173 per cent to 0.215 per cent.

8. The victim impact statements demonstrated the devastating affects on
   Mr Lawrence's family of his death. 

The applicant's personal circumstances

9. The applicant was 44 years of age at the time of the offence and 45 years old when he was sentenced. He had a bad history of traffic offences. In addition to some six speeding infringements he had previous convictions for driving under the influence of alcohol, unlicensed driving, and driving whilst disqualified.

10. On 1 June 1999 he was convicted of driving with a prescribed concentration of alcohol of 0.114 per cent and unlicensed driving. He was fined and disqualified for four months.

11. On 19 February 2003 he was convicted of unlicensed driving, driving and being involved in a crash and failing to fulfil his duties as a road user, and driving under the influence of liquor. His blood alcohol concentration on that occasion was 0.18 per cent. He was fined $1,400 and disqualified from holding or obtaining a driver’s licence for 10 months.

12. On 15 July 2004 he was convicted of driving under the influence of liquor, with a blood alcohol concentration of 0.97 per cent. He was disqualified for driving for 13 months and fined $500.  He was placed on probation.  During the course of that probation he undertook the "under the limit program", which involved three months of treatment at Logan House. 

13. On 13 December 2004 he was convicted of the offence of driving under the influence of liquor on 23 October 2004, with a blood alcohol concentration of 0.79 per cent. He gave the police an incorrect name on that occasion, which resulted in him being brought back to court on 14 February 2005 to be dealt with for disqualified driving and dealt with afresh for the same drink driving offence. On that occasion he was fined $1,200 for disqualified driving and $1,000 for drink driving. He was again disqualified from driving, on this occasion for a period of three years. That disqualification was in force at the time of this offence.

14. A psychiatrist, Dr Curtis, expressed the opinion that by 1992 the applicant was unemployable as a result of injuries he sustained in a motor vehicle accident in 1986. He was alcohol dependant as a result of his acquired brain damage. He was in the bottom one per cent of the population in terms of memory functioning and most aspects of cognition. A trauma induced frontal lobe syndrome made it impossible for the applicant to follow instructions, plan ahead, exercise foresight, utilise discriminative judgment, manifest psychological insight or learn from experience and instruction. Dr Curtis considered that the applicant's brain damage raised serious doubts about his ability to control himself and to limit his impulsivity. He expressed the opinion that the applicant's organic acquired brain damage contributed, causally, to the commission of the offences.

15. The applicant was married with one child. His wife described him as having always been a good provider and a hard worker during their marriage but described him as an alcoholic and referred also to his inability to work independently: he required constant assistance and support. His disability and alcoholism had prevented the applicant from succeeding in independent employment, but under the supervision of his wife he worked long hours in hard cleaning work. The applicant drank whilst he was working, apparently to reduce or mask the effects of the head pain he felt as a result of his earlier injury. Friends and relatives provided very favourable references about the applicant's conduct as a father, husband and friend.

Sentence

16. At the sentence hearing on 23 November 2007, the sentencing judge referred to the circumstances of the offence and the applicant's personal circumstances which I have summarised. His Honour referred to the applicant's significant traffic record, the degree of his intoxication and the fact that he was disqualified from driving at the time of the offence. In the applicant's favour he referred to the applicant's early plea of guilty, which avoided any examination of witnesses at the full hand up committal. His Honour noted that the applicant was a hard worker with the support of his wife and other members of the community.

17. The sentencing judge referred to the decision of this Court in R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362 and accepted that mental impairment may be regarded as a mitigating factor.  In R v Neumann; ex parte A-G (Qld) [2007] 1 Qd R 53; [2005] QCA 362 Fryberg J referred to authorities establishing that low intelligence and diminished responsibility falling short of insanity will, where relevant, operate on sentence as a mitigating factor.  Those factors may diminish the moral culpability of the offender and make it difficult for the court to apply a factor such a general deterrence.  In R v Scognamiglio (1991) 56 A Crim R 81 at 86, in a passage quoted with approval by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 70-71, the New South Wales Court of Criminal Appeal quoted the following passage from an unreported judgment of the Chief Justice of Victoria:

"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

18. The sentencing judge also acknowledged Fryberg J’s observation that R v Engert demonstrated that it is not essential that there be a causal relationship between the offender’s abnormality and the commission of the offence, although any such causal relationship must be taken into account in assessing the circumstances of a case.

19. The sentencing judge referred also to the circumstances in which mental abnormality may operate as an aggravating factor in the sentencing process. In Channon v The Queen (1978) 20 ALR 1 at 4-5, Brennan J, sitting in the Federal Court, observed that whilst abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct, "it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period."

20. The sentencing judge was satisfied that despite the applicant's acquired brain injury he had an appreciation of his actions and he was capable of exercising judgment. His Honour did not accept that there was a causal link between the applicant's brain injury and the offence.

21. The sentencing judge observed that the applicant had displayed a level of functioning by giving a false account to the police at the scene of the accident, in which he sought to minimise his responsibility for the tragedy he had caused by falsely claiming that another vehicle was present on the road and possibly operated as a contributing factor. When the applicant was charged by the police in relation to the offence he committed on 23 October 2004 he had given a false name, again indicating a level of appreciation of the wrongfulness of his conduct. The sentencing judge also pointed out that the applicant was in fact employed and appeared to be a functioning member of the community. His Honour observed that the applicant had served a period of probation and taken part in the drink driving program mentioned earlier. Finally, the sentencing judge observed that Dr Curtis did not seem to have considered that in another psychologist's report it was indicated that further behavioural observations of the applicant did not suggest impulsivity.

22. His Honour concluded that the applicant deliberately drove his motor vehicle whilst adversely affected by alcohol and whilst disqualified from holding or obtaining a driver’s licence; and that whilst the applicant was not driving at an excessive speed, the applicant's capacity to safely control his motor vehicle was seriously diminished. The applicant’s culpability was serious. Despite his brain injury he was capable of being deterred, and it was necessary to impose a sentence that would deter him and others.

23. Although the sentencing judge rejected Dr Curtis' opinion about causation, his Honour accepted that the applicant’s mental state was not completely irrelevant, because imprisonment had been and would be more difficult for the applicant than for other members of the general prison population. His Honour also took into account the plea of guilty and the applicant’s personal circumstances that I have mentioned.

24. The sentencing judge considered that a sentencing range of five to seven years imprisonment was indicated by the decisions of this Court, R v McKinnon [1999] QCA 75, R v Dingle [2003] QCA 7, R v Evans [2005] QCA 455, and
    R v Cook; ex parte A-G (Qld) (2007) 48 MVR 65; [2007] QCA 100.  Had it not been for the applicant's acquired brain injury his Honour would have sentenced him to seven years imprisonment and fixed a parole eligibility date after he had served three years.  Giving weight to the factor that the applicant's time in prison would be more difficult than for others, the sentencing judge decided that the appropriate sentence was six years imprisonment, with a  parole eligibility date fixed after the applicant had served a period of two and a half years.

25. Subsequently, the applicant applied to re-open the sentence. That application was refused on 9 May 2008: R v Bains [2008] QDC 106. 

26. The basis of the application was that the sentencing judge had imposed the sentence on the premise that the maximum penalty of imprisonment for the offence was 14 years imprisonment, whereas the maximum was 10 years imprisonment.  The latter was in fact the maximum penalty at the time.  His Honour accepted that the sentence had proceeded on the basis of the wrong maximum of 14 years.  The Crown Prosecutor had stated in submissions that the maximum penalty was 14 years imprisonment and the cases relied upon by the Crown and cited by his Honour all carried a maximum penalty of 14 years imprisonment. 

27. The sentencing judge then examined the sentence that ought to have been imposed having regard to the correct maximum penalty for the offence of 10 years imprisonment. On this occasion his Honour again set out the circumstances of the offences and the applicant's antecedents. His Honour discussed comparable cases in which the maximum penalty was, as here, 10 years imprisonment, namely R v Hoad [2005] QCA 92, R v Armstrong [2007] QCA 146, R v Balic (2005) 44 MVR 35; [2005] QCA 212, R v Sheedy; ex parte A-G (Qld) [2007] QCA 183 and R v Hey; ex parte A-G (Qld) [2006] QCA 23.

28. His Honour concluded that the sentence in R v Hey; ex parte A-G (Qld) of six and a half years imprisonment with a recommendation for post-prison community based release after two and a half years supported the notional starting point in the present matter and the sentence actually imposed by his Honour.  His Honour therefore concluded that the sentence imposed on 23 November 2007 should not be varied.  For that reason, his Honour refused the application to reopen the sentence.

Discussion

29. Dr Curtis' report does not express the view that the applicant was incapable of appreciating that, because of the adverse effect on him of alcohol and because he was disqualified from driving, he should not have embarked upon the journey. Although Dr Curtis said that "clinically" he formed conclusions including that the applicant had "proven unable to control his decisions and his impulsivity about motor vehicles despite recurrent consequences" he also suggested that it was important that his "preliminary conclusions" be subject to independent testing. That testing was conducted by a graduate psychologist, Ms Perrin, who was supervised by Assistant Professor Dr Bruce Watt. They commented in their report that "further behavioural observations did not suggest impulsivity" and gave examples of that.

30. In my respectful opinion the sentencing judge was entitled to reject the opinion of Dr Curtis that there was a causal link between the applicant's brain injury and his offence. Taking into account the circumstances mentioned in the sentencing remarks summarised earlier, his Honour was also entitled to conclude that, despite the acquired brain injury, the applicant had an appreciation of his actions, was capable of exercising judgment, and deliberately drove his motor vehicle knowing that he was adversely affected by alcohol and whilst disqualified from holding or obtaining a drivers licence. In these circumstances, I find no error in his Honour’s view that personal and general deterrence remained important considerations, despite the undoubtedly serious effect upon the applicant of his brain injury.

31. The applicant submitted that the sentencing judge erred in the course of reaching those conclusions by finding that the applicant had given a false account to police to seek to minimise his responsibility for the accident. That finding was open, if not inevitable. There was no other plausible explanation for the applicant’s admittedly false and exculpatory version of events. I would similarly reject the applicant’s argument that the judge erred in concluding that his use of a false name when charged with the offence he committed on 23 October 2004 indicated a level of appreciation of the wrongfulness of his conduct on that occasion. The prosecutor sought such a finding in submissions and no contrary submission was made in reply. That finding was also open to his Honour.

32. In my respectful opinion there was no error in the original sentencing process, other than the initial reliance upon the submission of the Prosecutor that the maximum penalty was 14 years, rather than 10 years. In the sentencing judge’s subsequent careful re-consideration of the sentence afresh on the application to reopen the sentence, his Honour appropriately took into account the correct maximum penalty for the offence and comparable decisions concerning offending which carried the maximum penalty of 10 years applicable here.

33. The most useful of the comparable decisions for this case is R v Hey; ex parte A-G (Qld).  McMurdo P, with whose reasons Keane JA agreed, considered that the same sentence as was imposed here – a sentence of six and a half years imprisonment with a recommendation for eligibility for release after two and a half years - was within a sound exercise of the sentencing discretion in that case. 

34. Hey had disobeyed a "give way" sign and driven through an intersection onto a two lane sealed bitumen highway with a 100 kilometre per hour speed zone, collided with another vehicle, causing the death of one of the occupants in it. The majority assessed the sentence on the premise that the sentencing judge correctly rejected suggestions that Hey deliberately drove into the intersection without stopping. His claim that there was a problem with his brakes which contributed to the collision was supported by the police mechanical inspection.

35. Hey was 28 years of age when he committed the offence and 29 years at sentence. Apart from a relatively minor criminal history, he had a traffic history which was similar to that of the applicant. Hey had five previous convictions for driving under the influence of alcohol, three previous convictions for disqualified driving, and two convictions for careless driving, in addition to some speeding offences. Like the applicant, Hey was disqualified from driving at the time of the offence and had not previously been sentenced to a term of imprisonment. His blood alcohol concentration was lower than that of the applicant, at 0.061 per cent and calculated as likely to have been 0.1 per cent at the time of the collision.

36. The circumstances of this offence are factually quite different, but the degree of the applicant’s culpability was no less than in Hey.

37. Like the applicant, Hey pleaded guilty at an early stage so that the committal proceedings were by way of tendered witness statements without examination. Unlike the applicant, Hey did not give any false account attempting to reduce his responsibility for the collision. Hey was not a custodial parent like the applicant but he supported three children and he had employment before the accident. Unlike the applicant, Hey was seriously injured in the collision.

38. Hey's criminal and traffic history stemmed from his alcohol addiction. The majority in this Court acted on the view that Hey had gained some insight into the dangers of drink driving and had some genuine prospects of rehabilitation. The applicant's prospects of rehabilitation are not as well demonstrated, particularly in light of his attempts on two occasions to deflect personal responsibility for his irresponsible driving.

39. This was a bad example of a recidivist drink driver causing the unnecessary, tragic death of a fellow citizen. Taking into account those similarities and differences between the two cases, the decision in Hey supports the view that the same sentence here was within the sentencing judge’s discretion.  In my opinion the sentence was not manifestly excessive

Order

40. I would refuse the application for leave to appeal against sentence.

41. FRYBERG J: I agree with the order proposed by Fraser JA and with his Honour’s reasons for the order.