R v Hodges; ex parte Attorney-General
[2008] QCA 335
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- R v Hodges; ex parte Attorney-General[2008] QCA 335
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R v Hodges; ex parte Attorney-General[2008] QCA 335
R v Hodges; ex parte Attorney-General[2008] QCA 335
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 409 of 2008 |
Court of Appeal | |
PROCEEDING: | Appeal against Sentence by A-G (Qld) |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 27 October 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 October 2008 |
JUDGES: | de Jersey CJ, White AJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATION TO INCREASE SENTENCE – where the respondent pleaded guilty to one count of dangerous operation of a motor vehicle when adversely affected by alcohol, causing death – where the respondent was sentenced to four and a half years imprisonment, suspended after 18 months for an operational period of five years, as well receiving a five year license disqualification – where the respondent knew that because of alcohol consumption she should not have been driving – where the respondent had no prior criminal history – where the respondent had a very minor traffic history – whether the sentence was manifestly inadequate R v Dingle [2003] QCA 7, distinguished R v Evans [2005] QCA 455, distinguished R v Saltmarsh [2007] QCA 25, distinguished |
COUNSEL: | M J Copley for the appellant S J Hamlyn-Harris for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
THE CHIEF JUSTICE: At a time when she was aged 35 years, the respondent caused the death of a pedestrian because of the dangerous operation of a motor vehicle at a time when she, the respondent, was adversely affected by alcohol. The offence occurred in October last year. The respondent had no prior criminal history. Her traffic history was limited to disobeying a red light 11 years earlier.
The respondent pleaded guilty and in the District Court in August this year was sentenced to four and a-half years' imprisonment suspended after 18 months for an operational period of five years. The learned Judge also imposed a five year licence disqualification. The Honourable the Attorney-General appeals on the ground of manifest inadequacy.
The deceased, her daughter and her granddaughter had been walking in the evening in an orderly way along a suburban street. There was no footpath and they were walking by the road kerbing. The street lights were operating and the weather was fine.
The respondent was driving a four wheel drive vehicle. She had been drinking at a friend's place, and was returning home. The friend's place was about 10 minutes from her house. The respondent was taking anti-depressant medication at the time and having received medical advice she knew that she should not have been drinking alcohol as well.
The respondent turned her vehicle into the street where the deceased and the others were walking. Her vehicle was travelling too fast and it swerved over the road. A subsequent explanation to police officers was that she had been adjusting the rear vision mirror because of lights from a following vehicle, and then swerved to avoid an on-coming car and thereby lost control.
Her vehicle struck the kerb and then collided with the deceased killing her instantly. The respondent also caused injuries to the deceased's daughter, which were not insubstantial although not amounting to grievous bodily harm. The daughter still suffers residual problems, such as headaches.
The respondent's vehicle then collided with a caravan, substantially damaging the caravan. The respondent then left the scene. The learned Judge sentenced the respondent on the basis that although she appreciated that she had collided with the caravan she was unaware that she had earlier hit the pedestrian.
When interviewed by the police and informed of what had in fact occurred, the respondent immediately expressed remorse. A breath test taken at 7.37 p.m., within an hour or so of the driving, showed a blood alcohol concentration of .15. The respondent indicated at an early stage her intention to plead guilty. The Judge pointed out that the period of the dangerous driving was not prolonged, and distinguished the case on the basis that the respondent's criminality lay more in driving while intoxicated rather than in the manner of her driving, which by contrast for example, was not deliberately reckless.
His Honour identified, as a serious aspect, that the respondent knew that because of alcohol consumption, in combination with the anti-depressant drugs, she should not have been driving. Counsel for the appellant engaged in some analysis of the Judge's reference to the respondent's not having deliberately driven recklessly.
I think, however, that all his Honour was doing was identifying the level of seriousness of the case: It would have been worse had there been prolonged dangerous driving or reckless driving. The salient assurance is that the Judge correctly emphasised the critical aspect, that the respondent drove knowing that the combination of the alcohol with the effect of the prescription drugs was potentially dangerous.
I do not accept that the Judge approached the case ignoring that the element of alcohol put the case into the maximum 14 years' imprisonment category. In other words, I do not accept that he regarded this case, involving alcohol, as less serious than dangerous driving simplicter, as with reckless driving, causing death.
There is, in the end, on my analysis nothing in the Judge's observations to indicate that he misapprehended the seriousness of the case or to suggest that the exercise of his sentencing discretion miscarried. The appellant contended for a sentence of five and a-half years' imprisonment with parole eligibility after 22 months.
Mr Copley, counsel for the appellant, suggested a basic applicable range of five to seven years' imprisonment. The five and a half years would, therefore, fall towards the bottom of that range and the parole eligibility after 22 months would reflect a one-third reduction. Mr Copley principally relied on Evans [2005] QCA 455, Saltmarsh [2007] QCA 25 and Dingle [2003] QCA 7.
Evans was sentenced to six years' imprisonment with parole after two and a half years. But her reading was much higher, at .247, and less than a year earlier she had been dealt with for driving under the influence of liquor. Saltmarsh was a case of grievous bodily harm, and she was sentenced to four years nine months with parole recommended after 21 months, but although it was not a death case, her reading was again substantially higher, .281, and she had a more serious traffic history.
Dingle was sentenced to six years' imprisonment, but that followed a trial. His reading also was higher, at .19, and he had driven six to seven kilometres before the incident. Each of those cases can therefore be distinguished from this one and I do not consider that they establish a range applicable here where there has been a timely plea and a reading of .15 of five to seven years.
The maximum applicable penalty in this case was 14 years' imprisonment. Counsel for the respondent, Mr Hamlyn-Harris, referred to a number of cases which suggest that the present penalty was within an appropriate range, Stephenson [1999] QCA 519 and Armstrong [2007] QCA 146, in particular.
This is not the occasion for any more comprehensive review of the relevant cases. That has been assayed many times. The references just given are sufficient to dispose of the matter. I am not satisfied that the sentence imposed was so low as to be outside an appropriate range and I repeat what was said in Saltmarsh about the importance of this Court's respecting the latitude which must properly be allowed to sentencing Judges in these situations where the combination of relevant circumstances is subject to such variation.
The respondent's grossly irresponsible driving had absolutely appalling consequences. But the principally relevant sentencing objective, general deterrence, was met by this not insubstantial head sentence, four and a-half years' imprisonment. The suspension after one-third, that is after 18 months, recognised obviously and often appropriately the respondent's plea of guilty and co-operation and remorse.
As to whether four and a half years was within range as a head term, the gravity of the consequences must be acknowledged. But on the other hand, the respondent came to be sentenced with no prior criminal history or any substantial recent traffic history, and as the Judge fairly pointed out, the critical feature was that knowing her condition she appreciated she should not have driven, even over the comparatively short period she contemplated.
Those things said, the four and a half years, which was imposed here, was nevertheless in my view a lenient term of imprisonment and I would not like to think that it would be used as a model in other sentencing situations in the future. It does, however, in the end to my mind fall within the range, although at the very bottom of it.
The sentence imposed means that the respondent must serve 18 months of actual incarceration, and then be subject to a balance three year term of imprisonment while at large for five years in the community. The primed need in a case of this character is to deter this sort of criminal offending generally. I consider that the sentence would, by reasonable commentators, be seen as sufficiently salutary, notwithstanding the commission of the dreadful crime of causing the death of a pedestrian while driving under the influence of alcohol. I would dismiss the appeal.
WHITE AJA: I would have thought that his Honour could have imposed a head sentence consistent with the authorities to which we've been referred of five years without being exposed to a conclusion that it was manifestly excessive. But to have imposed one of four and a-half years is not so out of range as to allow the Attorney-General's appeal.
General deterrence, as the Chief Justice has just mentioned, is of significant importance in cases of this kind. Members of the community who would not otherwise contemplate crime do persist in driving after consuming too much alcohol.
Often there are no consequences but sometimes, as here, there are consequences which will devastate a whole family and for them no sentence will be adequate. Nonetheless I agree with the Chief Justice that the Attorney-General's appeal should be dismissed.
McMEEKIN J: I agree with the reasons given by the Chief Justice and Justice White and the order that Chief Justice proposes.
THE CHIEF JUSTICE: The appeal is dismissed.