SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 10 March 2008 the applicant was convicted on his own plea of one count of dangerous operation of a motor vehicle causing death and grievous bodily harm while adversely affected by an intoxicating substance.  He was sentenced to six years imprisonment with a parole eligibility date of 10 September 2010, ie after serving two and a half years in actual custody.  He was also disqualified absolutely from holding or obtaining a driver's licence.

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

The circumstances of the offence

[3] At about 12.45 in the morning of 24 July 2005, the applicant drove his Holden Commodore sedan to a service station at Southport to refuel.  There were four passengers in his car.  They had been drinking and intended to go "pig chasing" at Canungra.  As a result of some contact with the driver and passengers of a Toyota MR2 at the service station, the applicant and the driver of the MR2 became involved in a high speed car chase which culminated in the applicant losing control of his vehicle and crashing into a concrete barrier on Bundall Road.  There was other traffic on the road at the time, and the applicant and the driver of the MR2 weaved in and out of the traffic at high speed for a period of several minutes.  Eye witness accounts of the crash estimate the applicant's speed before he lost control of his vehicle at between 150 and 180 kilometres per hour.

[4] One of the rear seat passengers, Mr Giudici, was thrown from the vehicle and suffered a ruptured spleen, broken jaw and broken ribs.  He spent two weeks in hospital where he underwent surgery.

[5] The front seat passenger, Mr Tierney, said to be the applicant's best friend, died as a result of the injuries he received in the crash.

[6] At 1.25 am the applicant's blood alcohol concentration was 0.114 per cent.  In the opinion of a senior medical forensic officer, his blood alcohol concentration immediately prior to the crash may have been of the order of 0.092 per cent.

[7] The applicant was interviewed by police on two occasions.  He admitted that he had drunk six or seven cans of mixed spirits from about 6.30 pm, and that he continued to drink while he was driving.  He admitted that he was driving at, or in excess of, 120 kph prior to the crash.  He admitted that he was holding a can of drink until immediately before the accident when he handed the can to Mr Tierney.

[8] The applicant was not charged in relation to the incident until 3 November 2006.  There was a hand-up committal without cross-examination.  The indictment was presented on 17 August 2007.  A legal issue relating to the circumstance of aggravation was not pursued, and, as a result of that decision, the matter was listed for sentence.

The applicant's personal circumstances

[9] The applicant was 20 years of age at the date of the offence and 23 years old when he was sentenced.

[10]  The applicant has no criminal history, and a minor history of traffic offences.

[11]  He did not drive a car at all after 24 July 2005.  A report from a psychologist attests to the grief and remorse he has suffered since the accident and the death of his best friend.

[12]  Several references were tendered on the applicant's behalf attesting to his good character and good work history.  Most poignantly, there was a reference in his favour from Mr Tierney's parents who referred to the incident as "a tragic accident".

The sentence

[13]  The maximum penalty at the time of the offence was 10 years imprisonment.  The Crown Prosecutor submitted that the appropriate penalty was imprisonment for five to six years with parole eligibility after one-third of the term and a driver's licence disqualification of five years.

[14]  Counsel for the applicant submitted that the appropriate head sentence was four years imprisonment, with an early suspension of the sentence.

[15]  The learned sentencing judge referred to the seriousness of the offence, its impact on the victims and the need for a deterrent sentence.  His Honour refused to accept, for the purposes of sentencing the applicant, the description of the incident by Mr Tierney's parents as "a tragic accident".  His Honour said that the incident "did not have to happen" and was completely avoidable.

[16]  His Honour accepted that the applicant was genuinely remorseful and that he had co-operated with the authorities.  His Honour also referred to the applicant's youth, his good character and the prosecution's delay in charging him as circumstances in mitigation of sentence.

The applicant's argument

[17]  The thrust of the argument put on the applicant's behalf is that the head sentence did not make appropriate allowance for the applicant's youth at the time of the offence and that the parole eligibility date did not reflect a sufficient allowance for the applicant's co-operation with the authorities and his plea of guilty.  On the applicant's behalf, it is submitted that the sentence which should have been imposed was imprisonment for five years with a parole eligibility date after 20 months in actual custody.

[18]  In R v Sheedy; ex parte A-G (Qld),[1] McMurdo P had occasion to review the decisions of this Court relating to sentences for the offence in question.  R v Sheedy was an appeal by the Attorney-General against a sentence of five and a half years imprisonment with parole eligibility after 18 months on the ground that it was a manifestly inadequate punishment.  The offender in that case was 25 years old at the date of the offence.  He had what her Honour described as "an unimpressive criminal history"[2] for offences of dishonesty and the use of dangerous drugs.  He also had a bad traffic history, including two convictions for driving under the influence of liquor.  On the occasion of his offence, he had ingested cannabis in a quantity which was said to translate to a blood alcohol concentration of between 0.10 per cent to 0.15 per cent.  McMurdo P described the head sentence of five and a half years imprisonment imposed below as being "at the very lower end of the sentencing range."[3]  The Attorney-General's appeal was allowed to the extent of setting aside the parole eligibility date and substituting a date four months later.

[19]  Nothing in the decision in R v Sheedy, or the authorities there reviewed, suggests that the head sentence in this case was beyond the upper end of the range of proper sentences for the offence of dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance.  That is so, even bearing in mind the applicant's youth, good character and co-operation with the authorities. 

[20]  The applicant's Counsel was not able to point to any case where it has been said that the sentencing discretion for this serious offence does not extend to six years, even in the case of a youthful offender with a good record.  The simple but tragic fact is that the applicant's offence has caused the loss of a human life by deliberate acts of wanton recklessness. 

[21]  In my respectful opinion, his Honour was right to refuse to regard the death of Mr Tierney as merely a tragic accident.  To accept such a description as appropriate is to go a long way towards accepting that the community cannot do anything about the carnage on our roads which is the consequence of deliberately dangerous behaviour by young men.

[22]  While a sentencing court must bear in mind the youthfulness of an offender as an important consideration in mitigation of sentence, the strong need for deterrence in cases of this kind is not lessened by the circumstance that the offender is young.  The very nature of this offence is such that it is usually committed by young men who, by reason of the excessive self-confidence of immature youth, are recklessly indifferent to their own safety and the safety of others on the road.  It is to deter precisely this category of potential offender that condign punishment is imposed on offenders.[4]

[23]  For these reasons, I am unable to accede to the submission that the head sentence was manifestly excessive. 

[24]  On the other hand, there seems to be no reason why the applicant's parole eligibility date was not fixed at two years.  It is the common practice of sentencing courts in Queensland to recognise the value of an early plea of guilty and other circumstances in mitigation by ordering that the offender be eligible for parole after serving one-third of the term of imprisonment imposed as the head sentence.[5]  This practice does not represent a hard and fast rule; but, in this case, there seems to be no reason why it should not have been applied; and the learned sentencing judge did not suggest any such reason.  There are, in my respectful opinion, strong reasons why it should have been applied, in particular to the applicant's youth, his deep and genuine remorse, and the unusually long delay attending his conviction and sentence. 

[25]  It was submitted on behalf of the respondent that the course taken by the learned sentencing judge in this regard may be explicable on the basis that it reflected a lower head sentence than might otherwise have been imposed on the applicant or on the basis that the applicant was confronted by an overwhelming case.  There is no indication from the learned sentencing judge's sentencing remarks that either of these considerations affected his approach.  And as to the second of the respondent's points, the applicant's co-operation with the authorities was not only of substantial utilitarian value; it also reflected the genuineness and the depth of his remorse and good prospects of rehabilitation.

[26]  Accordingly, in my respectful opinion, the postponement of the applicant's parole eligibility date in these circumstances renders the sentence manifestly excessive.

Conclusion and order

[27]  I would grant the application for leave to appeal, and allow the appeal, but only to the extent of deleting the parole eligibility date fixed by the learned sentencing judge, and inserting in place thereof 10 March 2010.

[28]  MACKENZIE AJA:  I agree with the reasons of Keane JA and with the orders proposed by him.

[29]  DOUGLAS J:  I agree with the reasons and the order proposed by Keane JA.