SUPREME COURT OF QUEENSLAND

[1]  FRASER JA:  I agree with the reasons of Philippides J and with the order proposed by her Honour.

[2]  PHILIPPIDES J:  On 5 February 2008, the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing grievous bodily harm and was sentenced to three years’ imprisonment, with a fixed parole release date of 5 May 2009.  The applicant was also disqualified from holding or obtaining a driver’s licence for three years. 

[3] The applicant, who was 27 at the time of the offence and is now 30, being born on 13 June 1978, appeals against the sentence imposed on the ground that it was manifestly excessive. 

[4] The circumstances of the offence are that on 18 December 2005 the applicant was driving his vehicle in Avocado Street, Elanora, when he passed a group of people who were by the side of the road.  The applicant continued a short distance past the group, performed a U-turn and drove back towards the group.  It appears that the applicant believed that a bottle had been thrown at the vehicle.  In an attempt to scare those in the group, he deliberately swerved towards them.  The complainant, who had his back turned toward the vehicle, was struck by the vehicle and sustained serious injuries.  The applicant drove away and continued to drive a distance of some kilometres.  He then stopped the vehicle to check for damage to it.  His Honour found that the applicant would have become aware, from the damage to the bonnet of the vehicle, that he had struck someone.  Nevertheless, the applicant continued to his home in New South Wales.  He did not notify the police of the incident.  However, one of those present at the accident was able to note the number-plate of the applicant’s vehicle and reported the incident to New South Wales police.  They attended on the applicant at his home and he was later interviewed by Queensland police on 29 December 2005. 

[5] At sentence, the prosecution contended for a sentence in the range of three years’ imprisonment, with the applicant being required to serve 12 months of that sentence, and disqualified from driving for five years.  The applicant’s counsel did not challenge the submissions as to the appropriate head sentence, but contended that the applicant should either be granted immediate parole or be required to serve no more than nine months of the sentence.  A disqualification of three years was urged. 

[6] In sentencing the applicant, his Honour had regard to the serious nature of the driving in question.  His Honour noted that the dangerous nature of the driving did not consist of momentary inattention or inadvertence.  Nor could it be described as a case of skylarking.  Rather, the applicant had deliberately driven at a group of people in pursuit of his intention to scare them.  While there was no intention to hit the complainant, his Honour observed that that was clearly a foreseeable consequence.

[7] The learned sentencing judge also had regard to the extensive and serious nature of the injuries sustained by the complainant.  The complainant suffered lacerations to his spleen and left kidney, three fractured ribs, a punctured lung, bruises and lacerations to his face, and a fractured left shoulder.  He underwent surgery to his shoulder and subsequently required operative procedures for a bone graft.  The effects of the traumatic experience also manifested psychologically, with the complainant experiencing a number of symptoms including anxiety, depression, chronic pain and social withdrawal.  His capacity to work was compromised.  There have been consequences for the complainant’s family and his interaction with them.

[8] The learned sentencing judge noted that an aggravating feature of the applicant’s offending was his post accident conduct in failing to stop at the scene.  His Honour adopted the observations in R v Wilde; ex parte A-G (Qld) [2002] QCA 501 and R v Vance; ex parte A-G (Qld) [2007] QCA 269, that a failure to remain at the scene was morally reprehensible conduct.  However, he noted that unlike the situation in Wilde, the complainant had been in the company of others and, in fleeing, the applicant had not left the complainant alone.  His Honour also noted that a consequence of leaving the scene was that the applicant’s blood alcohol level could not be tested, observing that the New South Wales police who attended at his house had no jurisdiction to conduct such tests.  His Honour indicated for the record that, because the applicant’s failure to remain at the scene was being taken into account in the sentence being imposed, outstanding summary offences concerning that conduct, to be dealt with in another court, ought attract no further penalty.

[9] The sentencing judge accepted that in all probability the applicant had not stopped at the scene of the collision because he was fearful of the consequences of his having hit the complainant in the presence of a group of people.  However, his Honour emphasised that, notwithstanding that the applicant knew that he had struck someone, he neither reported the incident to police, nor made any attempt to ascertain whether the individual he had struck had been injured and if so, to what extent.  It was only subsequently, when interviewed by the police on 29 December 2005, that the applicant admitted that he had struck someone, but even then he sought to evade responsibility by giving police a version that the complainant had been on a bicycle and that he believed he had struck the bicycle.  This version, which was maintained at sentence, was rejected by the sentencing judge as a false account given to minimise the seriousness of the applicant’s conduct. 

[10] In the applicant’s favour, the sentencing judge took into account the applicant’s plea which, coming on the eve of the trial, his Honour referred to as a late plea.  He also had regard to the various references provided on the applicant’s behalf, which indicated that the applicant’s conduct, in driving in a deliberately dangerous manner and in leaving the scene of the accident, was out of character.  His Honour noted that while the applicant had a previous traffic history, it did not reflect driving of the nature the subject of the offence.  His Honour also noted the applicant’s subsequently expressed remorse and that he suffered from symptoms of a major depressive illness.  His Honour accepted that, as the applicant was the full time carer of a disabled daughter, the imposition of a custodial sentence was likely to impact adversely on his family. 

[11] Before this Court, no issue was taken with respect to the imposition of the three year head sentence.  Rather it was submitted on behalf of the applicant that, in determining the custodial component of the sentence, insufficient regard was had to matters of rehabilitation and mitigation.  In support of that submission, emphasis was placed on the applicant’s previous good character, demonstrated by his lack of previous criminal history or significant traffic history, his family responsibility in caring for a child with special needs, his plea and his ongoing major depressive illness, as factors calling for greater moderation of the custodial component of the sentence than was allowed for.  It was argued that the applicant ought only to have been required to serve in the region of 10 months to 12 months of the sentence. 

[12] Of the authorities referred to by way of comparatives, Wilde, Vance, R v Conquest; ex parte A-G (Qld) [1995] QCA 567, R v Hardes [2003] QCA 47 and R v D’Arrigo; ex parte A-G (Qld) [2004] QCA 399, concerned dangerous driving causing death, while R v McGuigan [2004] QCA 381, like the present case, concerned dangerous operation of a motor vehicle causing grievous bodily harm.  I note that the maximum penalty for each type of offence at the relevant time was seven years’ imprisonment: s 328A(4), Criminal Code 1899 (Qld), (which was subsequently increased to ten years: see s 4(3)(a) Criminal Code and Civil Liability Amendment Act 2007).

[13] The case of Conquest concerned a 17 year old unlicensed driver who, skylarking in a stolen motor vehicle, drove onto the wrong side of the road, colliding with a group of people by the roadside.  One of the group was killed and two others suffered grievous bodily harm.  Conquest, who had a criminal history and was on a good behaviour bond at the time, was sentenced after trial to two years’ imprisonment and disqualified for five years.  His driving was treated as one of reckless conduct and the sentence proceeded on the basis that he failed to see the group beside the road and was unaware of their presence until it was too late.  McPherson JA and Thomas J (as he then was), who formed the majority, allowed the Attorney-General’s appeal.  Their Honours took a moderate approach in keeping with such appeals and increased the sentence to three years’ imprisonment, but were at pains to point out that a heavier sentence would otherwise have been appropriate.  Their Honours observed at p 11:

“The factors that would take a sentence further towards the maximum level would include the seriousness of the driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender’s criminal record (with particular emphasis upon his driving history and his attitude to fellow citizens), and whether the offender has little prospect of rehabilitation.”

[14] In Wilde, the offender, who pleaded on an ex officio indictment, had driven into a group of cyclists riding in a cyclists’ lane on the highway killing one and injuring another.  On appeal, the sentence imposed on the dangerous driving charge was increased to five years, cumulative on a term of 18 months.  The court said at [27]:

“This was a case where the sentencing judge should have worked from a level approaching the maximum penalty of seven years.  The case approaches the category of the worst examples of the offence, when one fully acknowledges the aggregation of the respondent’s reckless inattention over a substantial distance, her reduced alertness through fatigue, her callous flight from the scene, her lengthy criminal and traffic history, her being unlicensed at the time, her then being on bail for other charges ... and her driving a stolen vehicle.  While other cases have involved more sustained dangerous driving as such, it is the aggregation of all those many adverse features which put this case into a particularly serious category.”

[15] In Hardes, a 42 year old offender was sentenced on his pleas to cumulative terms of three years’ imprisonment for dangerous operation causing death, one year for failing to remain at the scene and six months for disqualified driving.  He was disqualified absolutely from holding a driver’s licence.  A recommendation was made as to parole eligibility after a third of the sentence had been served.  The dangerous driving involved the offender cutting a corner with the result that his vehicle struck a cyclist with fatal consequences.  Hardes had a criminal history and a bad traffic record, including a number of convictions for unlicensed driving.  The dangerous driving offence was aggravated by his leaving the scene when aware that the cyclist had been hit and his conduct in then concealing his vehicle and falsely dissociating himself from the offence when first interviewed by police.  On appeal it was held that the cumulative term of four and a half years’ imprisonment was not manifestly excessive.  The sentence of three years for the dangerous operation of the motor vehicle was described as “at the very bottom of the range for such an offence”.

[16] In McGuigan, a sentence of five years’ imprisonment with a recommendation for parole after 20 months for dangerous driving causing grievous bodily harm was set aside on appeal.  In lieu one of three and a half years’ imprisonment with a parole recommendation after 18 months was imposed.  The dangerous driving consisted of the offender injuring a pedestrian when he drove through a pedestrian crossing.  His fault was described as momentary inattention over a short distance (some 30 metres) and the matter proceeded on the basis that neither alcohol, nor excessive speed, had been established.  He left the scene and later misled the police by, amongst other things, giving a false alibi in an attempt to conceal his involvement and trying to shift the blame to others.  He was sentenced on the basis that when he left the scene he was unaware that he had caused personal injury.  The 49 year old offender had a bad traffic history and was at the time of offending subject to a suspended sentence. 

[17] In D’Arrigo, a suspended sentence of three and a half years’ imprisonment was imposed on a 30 year old offender with a prior criminal and traffic history.  The offender in that case had collided with another vehicle after travelling at excessive speed.  The sole basis on which the sentence was suspended was to allow the offender to continue in his role as sole carer for his then 16 month old daughter.  An Attorney-General’s appeal was allowed on the ground that the sentencing judge erred in so suspending the sentence.  The Chief Justice noted (at pp 5-6) that hardship to third parties because of the imprisonment of a family member may be brought to account only in exceptional or extreme circumstances and ought not to be permitted to overwhelm other relevant sentencing principles of general and personal deterrence, denunciation and punishment.

[18] In Vance, a 20 year old offender with a minor criminal and traffic history, who pleaded guilty to dangerous operation of a motor vehicle causing death, was sentenced to two years’ imprisonment suspended after six months for an operational period of two years.  He had been driving while grossly fatigued and had crossed into an emergency lane, colliding with a guard rail and then with a cyclist, killing him.  The offender had no recollection of colliding with the cyclist, and did not stop at the scene, although he did stop some distance away to inspect the damage to his vehicle.  After a newspaper article about the accident, he surrendered himself to the authorities, accepting that it was he who had struck and killed the cyclist.  The court accepted the submission for the Attorney-General that the range appropriate to the case was one of three to four years and, taking a moderate approach as indicated on an Attorney’s appeal, increased the sentence to three years’ imprisonment with the respondent being required to serve 12 months of the sentence.

[19] The authorities referred to indicate that the head sentence imposed in this case was not at the higher end of the applicable range and, as stated, it was not the subject of challenge.

[20] In contending that greater moderation was required of the custodial component of the sentence so as to require no more than a third of the term to be served, the applicant’s counsel placed particular reliance on Hardes and Vance, as examples of such an approach.  However, the sentence imposed in Vance must be viewed with caution, given it was imposed on an Attorney’s appeal, while the recommendation in Hardes must be seen in the context of the cumulative sentences that were imposed.  Moreover, although there were exacerbating features in both of those cases not present here, such as the offenders’ criminal and traffic history and the fatal consequences of the offenders’ conduct, they are to be balanced against other factors going against the applicant in the present case.  Importantly, the nature of the driving in Hardes (in cutting a corner) and of the much younger offender in Vance (of driving while fatigued) was less culpable than that of the applicant in deliberately driving towards a group of people, as the sentencing judge rightly recognised.  Likewise, while McGuigan may be contrasted with the present case on the grounds of age and past traffic history, the fault in the driving in that case was one of momentary inattention. 

[21] A significant factor in the present case was the applicant’s callous attitude in failing to remain at the scene and to make any attempt to ascertain the consequences of his conduct, although he was aware that he had hit someone.  While the applicant’s failure to stop at the scene was explained at sentence in terms of a fear of retribution, that did not adequately account for the applicant’s failure to report the accident and his initial attempts to minimise his responsibility. 

[22] In advancing his submissions, counsel for the applicant referred to the following statement in Vance (at p 14):

“While past decisions of the Court of Appeal are helpful in suggesting a general range in cases like these, the determination of penalty is, in the end, a value judgment in which the Court must carefully balance all relevant considerations.”

[23] I fail to see that the above statement assists the applicant.  The statement recognises the value judgment a sentencing judge is required to make in a case such as the present, in balancing considerations of deterrence and denunciation with those of mitigation and rehabilitation.  The sentencing judge was correct to ensure that the sentence imposed adequately reflected the important sentencing purposes of deterrence and denunciation that weighed heavily in the present case, given that it concerned a serious example of dangerous driving.  It was entirely fortuitous that the applicant’s deliberately dangerous driving did not have fatal consequences or result in even more serious injury.  A further significant consideration requiring denunciation in respect of the applicant’s offending was the aggravating feature of his post accident conduct. 

[24] I am unable to accept the submission that, in requiring the applicant to serve 15 months of the sentence rather than a third of it, the sentencing judge failed to have sufficient regard to factors of mitigation and rehabilitation.  In making that submission, some emphasis was placed on the fact that the imposition of a custodial sentence has especially adverse consequences for the applicant’s family, given his role as full time carer.  However, as was recognised in R v D’Arrigo, such a consideration cannot be permitted to overwhelm other relevant sentencing principles and cannot save a defendant from an appropriately salient penalty.  It was not a factor that required the sentencing judge to impose a lesser custodial sentence.

[25] The sentence imposed was an onerous one with heavy consequences for the applicant’s family and a more lenient sentence requiring only 12 months to be served in custody may also have been within the sentencing discretion.  Nevertheless, I am unable to conclude, bearing in mind all the circumstances of the case, the relevant sentencing principles and giving due credit for the applicant’s plea, that the sentence imposed was so manifestly excessive as to be outside the sound exercise of a sentencing discretion.  I would dismiss the application for leave to appeal against sentence.

[26]  DAUBNEY J:  For the reasons given by Philippides J, with which I respectfully agree, I would dismiss the application for leave to appeal against sentence.