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R v Ruka[2009] QCA 113






DC No 396 of 2008

Court of Appeal


Sentence Application



5 May 2009




24 April 2009


Muir and Chesterman JJA and Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made


Application for leave to appeal against sentence refused


CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted on plea of guilty of dangerous operation of a motor vehicle causing death under s 328A of the Criminal Code 1899 (Qld) – where applicant sentenced to two years imprisonment with parole release date after serving six months – where applicant automatically suspended from holding a driver’s licence for six months – where applicant fell asleep at wheel – where applicant’s vehicle drifted on to wrong side of road into path of oncoming vehicle – where collision occurred – where driver of oncoming vehicle was killed – where applicant was aged 37 at time of offence – where applicant had no criminal history and some traffic history – whether sentencing judge erred in finding that a fully suspended sentence would be inappropriate – whether sentencing judge erred in finding case not one of momentary inattention – whether sentence manifestly excessive

Criminal Code 1899 (Qld), s 328A

Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, applied

R v Cottam; ex parte A-G (Qld) (2004) 42 MVR 150; [2004] QCA 351, distinguished

R v Hart (2008) 50 MVR 424; [2008] QCA 199, considered

R v Manahan [2000] QCA 382, considered

R v Murphy [2009] QCA 93, considered

R v Pellow [1997] NSWSC 286, applied

R v Satalich (2004) 41 MVR 435; [2004] VSCA 132, cited

R v Vance; ex parte A-G (Qld) (2007) 48 MVR 375; [2007] QCA 269, applied

R v WR [2007] QCA 16, cited

R v Wood 130 A Crim R 518; [2002] WASCA 95, cited


P E Smith for the applicant

M B Lehane for the respondent


Carne Reidy Herd Lawyers for the applicant

Director of Public Prosecutions (Qld) for the respondent

[1]  MUIR JA: I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Wilson J.

[2]  CHESTERMAN JA: I agree that the application for leave to appeal against sentence should be dismissed for the reasons given by Wilson J.

[3]  WILSON J: On 6 February 2009 the applicant pleaded guilty to a charge of dangerous operation of a motor vehicle causing death.[1]  He was convicted and sentenced to two years imprisonment.  The sentencing judge fixed the parole release date as 6 August 2009 (ie after serving six months).  He was automatically suspended from holding or obtaining a Queensland driver’s licence for six months.[2]

[4]  The applicant seeks leave to appeal against the sentence on three grounds –

(a) that the sentencing judge erred in finding that a fully suspended sentence would be no punishment to him;

(b) that the sentencing judge erred in finding that it was not a case of momentary inattention; and

(c) that the sentence was manifestly excessive.

Circumstances of the offence

[5]  The applicant worked at Wacol.  On 12 May 2007 he finished a 12 hour shift at 6.00 am.  It was the tenth consecutive day on which he had worked such a shift.  He then proceeded to drive home to Kooralbyn along the Mt Lindesay Highway.  He stopped at a service station at Beaudesert where he made a phone call at 7.03 am, bought petrol and had something to drink.  Then he resumed his journey.  About a quarter of an hour later, when he was at Laravale, he fell asleep at the wheel.  His vehicle drifted on to the wrong side of the road, into the path of an oncoming vehicle.  There was a collision, in which the driver of the oncoming vehicle was killed.

[6]  There is no suggestion that the applicant had been speeding or that he was affected by alcohol.

Not a case of momentary inattention

[7]  As the High Court observed in Jiminez v The Queen,[3] where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public,[4] the relevant period is that which immediately precedes his falling asleep, because driving while asleep does not constitute a voluntary act.

[8]  The sentencing judge appreciated the importance of identifying the level of seriousness of the applicant’s driving.[5]  He rejected the contention of counsel for the applicant that this was a case of momentary inattention, regarding it as more blameworthy conduct.  Before this Court, counsel for the applicant submitted that his Honour had erred in not giving some warning of his intention to reject that contention, saying that had some warning been given, the applicant may have called evidence and may have sought medical evidence.  He submitted that the failure to give such a warning was a breach of the rules of procedural fairness.

[9]  This was not a case of momentary inattention.  The applicant conceded that he ought to have appreciated that he was fatigued, and pulled over immediately before falling asleep.[6]

[10] In R v Pellow[7] the defendant finished his night shift at 7.30 am, and then proceeded to drive home.  At about 8.00 am he fell asleep at the wheel; his car failed to follow a curve to the left, instead running straight on, crossing a median strip and colliding with an oncoming car.  The driver of the oncoming car was seriously injured and his passenger was killed.  The defendant himself was seriously injured.  In the last five minutes of the fateful journey the defendant had felt extremely tired.  In giving the leading judgment of the NSW Court of Criminal Appeal in a Crown appeal against sentence, Barr J said –

“This was not a case of momentary inattention or of a serious misjudgment made in a split second.  It was a case of failure by the respondent to respond to increasing signs that he was in danger of becoming unable to control his vehicle.”

In my respectful opinion that description is equally apt in the present case.

[11]  Similarly, in R v Vance; ex parte A-G (Qld)[8] this Court endorsed a sentencing judge’s characterisation of driving over an appreciable period while grossly fatigued as surpassing momentary inattention.  See also the decision of the WA Court of Criminal Appeal in R v Wood[9] and that of the Victorian Court of Appeal in R v Satalich.[10]

[12]  The facts surrounding this offence were not in dispute.  Unlike R v Cottam; ex parte A-G (Qld),[11]  it was not a case of the sentencing judge rejecting a factual explanation for the offending conduct without giving the applicant an opportunity to adduce evidence relevant to it.  Whether the conduct should be characterised as momentary inattention or as something more serious was a matter of evaluation of admitted facts.  In those circumstances, the sentencing judge was not obliged to warn counsel for the applicant that his contention might be rejected.  There was no breach of the rules of procedural fairness.

Relevant matters in fixing sentence

[13] The maximum penalty for the offence was ten years imprisonment.  Further it attracted an automatic disqualification from holding or obtaining a Queensland driver’s licence for six months, although the Court had power to impose a longer period of disqualification.

[14] Of course this case is excluded from the principle that a term of imprisonment is a last resort, because the offending conduct resulted in death.[12]

[15] In R v Hart[13] Keane JA (with whom de Jersey CJ and Fraser JA agreed) endorsed the approach in a number of earlier decisions (decided when the maximum penalty for this offence was only seven years) that dangerous driving resulting in death is so serious that a term of imprisonment of at least eighteen months should be expected save in exceptional cases, and that usually a sentence will involve actual custody.  That approach was reaffirmed in the recent decision of this Court in R v Murphy.[14]

[16] The gravity of harm caused by offending conduct is clearly a relevant factor in sentencing.  While, as White J observed in R v Manahan,[15] a sentencing court should not be overwhelmed by the single factor of the devastating consequences of the applicant’s dangerous driving, this Court’s approach in R v Hart and R v Murphy reflects what de Jersey CJ has described as “the ultimate gravity of causing the death of a fellow human being.”[16]

[17] Fatigue has been widely recognised as a major cause of traffic accidents.  The Courts must be vigilant to ensure community appreciation of a driver’s responsibility not to endanger the lives of others by driving when he or she is too tired to do so safely.  They must be careful to assign due weight to general deterrence in the exercise of the sentencing discretion in cases like this.

Antecedents and mitigating factors

[18] The applicant was aged 37 at the time of the offence, and 39 at sentence.  He had no criminal history.  He had a traffic history described somewhat euphemistically by the sentencing judge as “unremarkable”: it consisted of five speeding offences over the ten years or so since November 1998.  He was of good character, a married man with a family and a solid work history as a labourer, leading-hand, cleaner and crane operator.

[19] The applicant was deeply remorseful for his conduct and its catastrophic effects.  He demonstrated that remorse at the scene of the accident, and by his behaviour in relation to the charges.  Although there was cross-examination at the committal hearing, the prosecutor conceded that, given that the applicant did not know what had happened in the collision because he had been asleep, that was a reasonable course to take.  In all the circumstances the plea was a timely one.

Submissions on sentence

[20] The prosecutor submitted to the sentencing judge that the applicable range of sentence was two and a half to three years imprisonment, and that in all the circumstances of this case an early parole release date should be fixed – between four and twelve months after sentence.  She submitted that the disqualification period should be between three and five years.  The applicant’s counsel submitted that actual imprisonment was not called for, and that a wholly suspended term would be appropriate.

A wholly suspended sentence?

[21] Counsel for the applicant submitted to this Court that the sentencing judge had erred in regarding a suspended sentence as inappropriate because the applicant was unlikely to offend again.

[22] After referring to this submission and explaining what is meant by a suspended sentence, the sentencing judge said –

“I should say in your case, because of your lack of criminal history, your age, and your otherwise good standing in the community, it would be very unlikely for you to offend again, in any way, which would see a breach of the suspended sentence. So, a suspended sentence, in your case, practically speaking, would amount to the Court’s formal disapproval of what you’ve done but not lead you into prison.”[17]

His Honour went on to consider the sentences imposed in a number of other cases, an observable trend towards harsher penalties for dangerous driving offences, the need for general deterrence and the gravity of the harm that had resulted from the applicant’s offending.  He concluded, rightly, that there should be a period of actual imprisonment.

[23] The sentencing judge properly took account of all relevant considerations before rejecting a suspended sentence as condign punishment in this case.  He did not diminish the value of that sentencing option in an appropriate case – but this was not such a case.

A manifestly excessive sentence?

[24] In R v Vance[18] the respondent drove whilst grossly fatigued.  Between 5.15 am and 5.30 am he lost control of his vehicle along a main arterial road at Burleigh Waters.  His vehicle collided head on with the rear of a bicycle, killing the 54 year old cyclist.  The respondent was aged 20 at the time, with prior convictions for a minor drug offence and an offence of failing to stop at a red light.  He did not see the cyclist before or after the collision.  He stopped some distance further on from the point of impact and looked at the damage to his vehicle, but then drove home a distance of some five kilometres from the scene of the collision.  He came forward to police two days later, but maintained that he had no recollection of the collision.  The sentencing judge was told that he had consumed his last alcoholic drink by 7.00 pm the night before, having previously drunk four or five full strength beers.  At about 9.30 pm he had driven friends to Surfers Paradise, where they had visited establishments at which he had drunk only water.  At about 4.30 am he had driven to a friend’s house, and then decided to drive home; it was in the course of that journey that the accident happened.  He was sentenced to two years imprisonment suspended after six months for an operational period of two years and disqualified from holding or obtaining a driver’s licence for five years.  The Attorney-General appealed against the leniency of the sentence.  The Chief Justice (with whom Keane JA and Mullins J agreed) considered that the appropriate range was three to four years.  Taking a moderate approach, because it was an Attorney’s appeal, the Court increased the sentence to three years, suspended after twelve months for an operational period of three years, and affirmed the five year disqualification period.  The facts of that case were in major respects similar to those in the present case.  Of course, the present applicant was older than Vance, and unlike Vance, he remained at the scene and was immediately remorseful.

[25] In all the circumstances, the sentence imposed fairly took account of the seriousness of the offence and its tragic consequences, the need for general deterrence, and the applicant’s personal circumstances.  It was not manifestly excessive.


[26] I would dismiss the application for leave to appeal against sentence.


[1] Criminal Code 1899 (Qld), s 328A.

[2] Transport Operations (Road Use Management) Act 1995, s 86(3).

[3] (1992) 173 CLR 572.

[4] Crimes Act 1900 (NSW), s 52A.

[5] Appeal Record, p 40; R v W R [2007] QCA 16.

[6] Transcript of proceedings on 6 February 2009, p 1.17.

[7] [1997] NSWSC 286.

[8] [2007] QCA 269.

[9] 130 A Crim R 518.

[10] [2004] VSCA 132.

[11] [2004] QCA 351.

[12] Penalties and Sentences Act 1992, s 9(3).

[13] (2008) 50 MVR 424; [2008] QCA 199.

[14] [2009] QCA 93.

[15] [2000] QCA 382, at para 20.

[16] R v Vance; ex parte A-G (Qld) [2007] QCA 269, per de Jersey CJ.

[17] Transcript of proceedings on 6 February 2009, p 5.

[18] [2007] QCA 269.


Editorial Notes

  • Published Case Name:

    R v Ruka

  • Shortened Case Name:

    R v Ruka

  • MNC:

    [2009] QCA 113

  • Court:


  • Judge(s):

    Muir JA, Chesterman JA, Wilson J

  • Date:

    05 May 2009

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC396/08 (No Citation)06 Feb 2009Sentenced on plea of guilty to dangerous operation of motor vehicle causing death to two years imprisonment with parole after six months
Appeal Determined (QCA)[2009] QCA 113 (2009) 53 MVR 30405 May 2009Sentence fairly took account seriousness of offence and consequences, need for general deterrence and applicant's personal circumstances; sentence not manifestly excessive; application for leave to appeal against sentence dismissed: Muir and Chesterman JJA and Wilson J

Appeal Status

Appeal Determined (QCA)

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