SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ: The applicant was sentenced to two years imprisonment, suspended after three months for an operational period of two years, and disqualified from holding or obtaining a driver’s licence for a period of 18 months.  He had pleaded guilty to the dangerous operation of a motor vehicle occasioning grievous bodily harm. 

[2] The applicant sought to raise a doubt about his plea, at the hearing before us, but there is no ground for thinking it was not voluntary and informed. 

[3] The applicant seeks leave to appeal, on the ground that his sentence should have been fully suspended, and that the disqualification for 18 months was unwarranted. 

[4] The applicant was 50 years of age when he committed the offence on 9 April 2007.  He had a prior conviction for assault, and four drink driving offences, the most recent having occurred in 2004.  (There is no suggestion alcohol played any part in this offence.)

[5] The applicant was the groundsman of the Mossman Soccer Club.  He was frustrated by disturbance of the field from time to time by youths riding trail bikes over it.  If they did, then his frustration was understandable.  He took pride in the way he cared for the field.  The problem was his reaction in this particular case.

[6] On the day of the offence, the applicant pursued three young men who had ridden their bikes onto the field and then left.  One of them, the complainant, was a 13 year old boy.  The applicant pursued him and his companions along a single lane roadway, leading from the field.  It had grassy edges.  The applicant was driving a van.  At some stage, the applicant drove off the roadway onto the grassy verge, and that led after a time to the complainant’s colliding with the van.  The complainant was thrown a distance into an adjacent paddock.  He landed in an unconscious state, and suffered a broken arm, lacerations and bruises, for which he was hospitalized for a couple of days in Cairns, following an air lift from Mossman.

[7] The applicant had not actually followed the youths.  He had, rather, tried to intercept them, and had manoeuvred his vehicle in such a way as led to the collision.

[8] The applicant left the scene after colliding with the complainant, but did in fairness go to a nearby resident’s dwelling, and at that person’s suggestion, contacted the police.  The applicant thereafter cooperated fully, making full admissions and pleading guilty.

[9] The complainant’s victim impact statement, apparently compiled by his mother, suggests a not insubstantial adverse affect on the complainant’s development and life generally, though fortunately the outlook at the time of sentencing was optimistic.  A feature was his dismay that a person of mature years should behave in that way.  The applicant may say that he had been provoked, although there was no clear evidence that the complainant was one of the repeat offenders, or had that day damaged the field in any particular way. 

[10]  The essential vice of the applicant’s driving was its recklessness, and its being directed by a mature man driving a van against a comparatively immature youth vulnerably riding a trail bike along a narrow carriageway.  It is obvious the applicant was not justified in venting his frustration by pursuing the complainant in that dangerous way.

[11]  The need to deter that sort of conduct was clear, and gave His Honour the option of requiring the applicant to serve a period of actual incarceration, in the interest of deterrence.

[12]  We were referred to a number of cases of dangerous driving causing grievous bodily harm involving short periods of actual custody, R v Bussey [2003] QCA 197, R v Lacey [2005] QCA 431 and R v Wales [2002] QCA 463.  Particular comparisons and contrasts aside, and there are some quite significant points of difference, it is sufficient to say that those cases confirm that in a case like this the Judge was entitled to impose a period of actual incarceration, especially noting that the maximum penalty as relevant here was 10 years imprisonment not seven years.

[13]  To summarize, the circumstances which combine to justify that were the nature of the driving, allowing for its unacceptable purpose – taking the matter into the applicant’s own hands; the length of the pursuit, which meant that this was far from momentarily dangerous driving; the limited nature of the carriageway; the contrast between the capacities of the van and the unprotected cycle; the character of the applicant’s motivation, with its deliberation; and those features taken with the applicant’s not irrelevant, though not greatly significant, prior traffic history.

[14]  The sentencing Judge was presented with a need to seek, by his sentence, both to punish and deter others from engaging in this sort of reactionary driving, however well motivated the driver may feel in taking such a course.

[15]  The circumstances of the plea of guilty and the applicant’s otherwise good character did not oblige the sentencing Judge to impose a fully suspended sentence, or a lesser period of disqualification.

[16]  The sentence imposed was not manifestly excessive.

[17]  The applicant sought and was granted bail pending appeal on 9 October 2008.

[18]  I would refuse the application, and order that a warrant issue for the apprehension of the applicant, to lie in the Registry for ten days pending any necessary execution.

[19]  McMURDO P: At the time of his offending, Mr Iaria was the groundsman of the Douglas Shire Council Soccer Club oval.  He took a great deal of pride in his work.  Like the primary judge, I have some empathy with Mr Iaria and his sense of frustration with those teenagers who had been behaving anti-socially on the oval.  But there is no evidence that the complainant was responsible for any past reprehensible behaviour on the oval.  In any case, as the primary judge noted, it was wrong for Mr Iaria to attempt to take the law into his own hands.  It was also dangerous, as these events have proved.  It is fortunate that the 13 year old complainant was not more seriously injured.  When situations like this arise, modern civilised community life depends on citizens not reacting impetuously and angrily, but rather turning to lawful means for the vindication of their rights. 

[20]  The maximum penalty for this offence is now ten years imprisonment.[1]  Mr Iaria is a mature man.  He has no relevant criminal history.  His traffic history is of some concern in that he had prior convictions for drink driving, but alcohol was not a factor in this offence.  References attested to Mr Iaria's good character and his hard work at the soccer club.  He pleaded guilty at an early stage.

[21]  As in R v Wales,[2] this was not a case of mere momentary inattention.  Mr Iaria drove recklessly and dangerously over a sustained period.  It was obvious that his driving placed young people on motor bikes at risk of injury.  Because of the mitigating factors to which I have referred, a fully suspended sentence would have been within range but this does not assist Mr Iaria in his application.  The principles stated in s 9(2)(a) Penalties and Sentences Act 1992 (Qld), requiring that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows an offender to stay in the community is preferable, did not apply because this offence involved violence against another: s 9(3). 

[22]  For these reasons, and for the reasons given by the Chief Justice, the sentence imposed is not manifestly excessive.  The application for leave to appeal against sentence must be refused.  I agree with the orders set out by the Chief Justice.

[23]  WHITE AJA: I have read the reasons for judgment of the Chief Justice in this application for leave to appeal against sentence and agree with the order proposed.  I also agree with the additional reasons of the President.

[24]  Shortly before the conduct the subject of the criminal charge occurred, the legislature raised the maximum penalty from seven years imprisonment to 10 years for the offence of dangerous driving causing grievous bodily harm.  That is a significant factor for concluding that the exercise of the sentencing discretion cannot be said to be outside the range of a sound sentencing discretion when the authorities are considered.[3]