SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA:  The applicant seeks leave to appeal against a sentence of two and a half years imprisonment with a parole release date after 10 months imposed on him on a count of dangerous operation of a motor vehicle causing grievous bodily harm.  He was also disqualified absolutely from holding or obtaining a driver’s licence, but he takes no issue with that order.

The dangerous driving and the grievous bodily harm

[2] The applicant collided with a motorcycle, injuring its rider.  The collision occurred just before 6.00 am one Sunday in June 2008 on Kingsford Smith Drive in Ascot.  It was still dark at the time but the road was well lit and the motorcycle’s headlight was on.  The applicant was travelling in his station wagon in the right hand lane of the two lanes heading west on Kingsford Smith Drive, while the motorcycle was in the right hand lane of the two eastbound lanes.  The applicant and his passengers had been looking for somewhere to buy cigarettes when one of the passengers pointed out a service station on the corner of Seymour Road, on the opposite side of the road.  (Seymour Road forms a T-intersection with Kingsford Smith Drive, entering it from the right as one travels west.)  The applicant made a sudden decision to turn right at the intersection in order to gain access to the service station.  He turned across the path of the oncoming motorcycle, which hit his car.  Its rider was thrown over the top of the vehicle, landing about eight metres away.

[3] In making the turn, the applicant crossed double white lines which extended across the intersection and disobeyed a “No right turn” sign (in symbol form) facing him on the opposite corner of Seymour Road.  He told police he was travelling at less than 40 km per hour.  According to a witness, he did not slow his vehicle in executing the turn.  The applicant said he did not see the motorcycle’s light; it was indistinct from the headlights of cars further back along the road.  Nor had he seen the “No right turn” sign or the double white lines; he had been looking at the oncoming traffic.  He was not familiar with the area.  The applicant’s fiancée, who was one of his passengers, supported his account of events, including the difficulty of making out the motorcycle’s headlight.  She saw the motorcycle once the turn had commenced.

[4] After the collision, the applicant stopped his vehicle at the service station and returned to the scene to offer assistance to the motorcycle rider.  Later, he gave his account to a police officer.  He was breathalysed, but did not give a positive reading, and the police officer saw no sign that he was affected by alcohol or drugs.

[5] The motorcycle rider, Mr Smith, was taken to hospital where his injuries were documented as a mild closed head injury, a left clavicle fracture, a left tibial plateau fracture, and some rib fractures.  The most serious of those was the left tibial fracture, which was treated with a plate and screws which remained in situ.  Had it not been treated, that fracture would have resulted in severe problems with stance and mobility, leaving him with severe chronic pain and progressive degeneration of the left knee joint.  Mr Smith said that the accident had had a significant psychological impact on him, his wife and children.

The applicant’s antecedents

[6] The applicant was 35 years old at the time of the offence and lived with his fiancée and her child.  He was a signwriter by trade and had been employed in that occupation for 10 years.  He had a criminal history.  Most of the offences on it, however, were minor offences of dishonesty, possession of drugs, and breaches of bail undertakings dealt with in the Magistrates Court.  More significant were convictions in the Supreme Court in 2006: one of supplying dangerous drugs, on which he was sentenced to 18 months imprisonment, and others of possessing dangerous drugs and dishonesty for which he was sentenced to six months imprisonment.  Having served 45 days on those sentences, he was immediately released on parole.  The parole period had ended some three months before the offence in question here.

[7] The applicant also had a bad traffic history extending over the last decade.  It included 22 instances of exceeding the speed limit (usually by between 15 and 29 km per hour), nine of unlicensed driving and two of failing to stop at a red light.  Those transgressions seem to have ceased over the 16 and a half months he was on parole, but three of the speeding offences occurred in the months of November and December 2008, after the commission of this offence.

The sentencing remarks

[8] The learned sentencing judge commenced his remarks by observing that the applicant had been “driving for some time with an unbroken double white line to [his] right”.  It was to be expected that there would be some traffic travelling outbound along Kingsford Smith Drive at that hour of the day.  Had the applicant taken sufficient time before turning, he would have realised the presence of the double white lines, the “No right turn” sign, and it might be anticipated he would have seen the motorbike.  His Honour rejected defence counsel’s submission that it was a case of momentary inattention.  It was closer to the deliberate risk-taking suggested by the Crown, constituted by:

“a combination of not noticing, or saying he was unaware of the unbroken double white lines for some period, that he was unaware of the clearly visible right-hand turn sign and that he didn’t see the motorbike travelling in the opposite direction.”

[9] The learned sentencing judge said that he had made allowance for the plea of guilty as manifesting co-operation in the administration of justice; for the applicant’s “reasonable work record”; and for his family responsibilities.  He observed, however, that those allowances were “limited by virtue of the accused’s criminal and traffic history”. 

The applicant’s submissions and authorities

[10]  Counsel for the applicant here argued that the learned sentencing judge had failed sufficiently to take into account the plea of guilty; the applicant’s co-operation with the police at the scene; the fact that he had gone back to assist the complainant; and the fact that, at least as far as his criminal history was concerned, the applicant had stayed out of trouble since mid-2005. 

[11]  Counsel also submitted that the sentence was manifestly excessive, as was demonstrable by reference to decisions of this Court.  First, he identified three cases – R v Tabakovic,[1] R v Hook[2] and R v Lasrado[3] – in which offenders who had engaged in worse examples of dangerous driving while under the influence of drugs or alcohol had received sentences of proportions similar to or less than that imposed on the applicant.  The maximum penalty applicable in each of those cases was 14 years imprisonment; in the present case, it was 10 years. 

R v Tabakovic

[12]  In Tabakovic, the applicant revved his vehicle while waiting at a set of traffic lights to turn into a major arterial road.  When the lights turned green, he accelerated heavily, screeching his wheels.  His vehicle fishtailed, veered up onto the curb and onto the footpath, hitting a pedestrian, who sustained serious head and chest injuries described as having a “huge impact” on his life.  The applicant’s blood alcohol concentration was .152.  He admitted to drinking a great deal the night before and having very little sleep.  His small son was in the car; they were on their way to a fast food outlet.  The applicant was 28 years old.  His driving history included five offences of speeding, and his licence was suspended at the time of the accident because of an accumulation of demerit points.  He had pleaded guilty on an ex-officio indictment and expressed remorse.  He was sentenced to three and a half years imprisonment, to be suspended after 16 months. 

[13]  A majority in this Court identified the factors adverse to the applicant: his blood alcohol concentration, his blemished driving history and the fact that his bad driving was deliberate.  On the other hand, he had not driven far; he had pleaded guilty on an ex-officio indictment; he had exhibited remorse; he was in steady employment; and he had a wife and small child whom he supported.  Because too little weight had been given to those matters in mitigation, a sentence of three years imprisonment suspended after 10 months was substituted. 

R v Hook

[14] R v Hook also involved dangerous operation of a motor vehicle under the influence of alcohol; there the applicant’s blood alcohol concentration two hours after the accident was .165.  She had been driving a utility with two passengers, one without a seatbelt, in the early hours of the morning when she failed to negotiate a bend in a major roadway.  The utility mounted the centre island, swiping a guardrail, then slid across the road and collided with a tree.  One of her passengers suffered what were described as “significant and serious” injuries.  Hook was only 21 years of age; she had no prior criminal convictions and only two prior speeding offences.  She had entered a timely plea of guilty, and had herself suffered some injuries in the collision.  She had co-operated with the police, making admissions, had exhibited remorse and was of good character.  Her application for leave to appeal against a sentence of three years imprisonment suspended after 12 months was dismissed.  The Court observed, however, that the head sentence was “towards the higher end of the available range”.[4]

R v Lasrado

[15]  Counsel referred to Lasrado as a case where a bad example of dangerous driving under the influence of a drug had resulted in a sentence of two years imprisonment with a parole release date after eight months.  The applicant there had driven dangerously over some distance on the Southeast Freeway, eventually hitting another vehicle.  It became airborne, flipped and slid across the other freeway lanes.  A passenger in it suffered very serious hand injuries.  The applicant had a significant traffic history: eight speeding convictions before the offence and five after it.  However, that case merely involved a refusal of an extension of time within which to apply for leave to appeal against sentence, in circumstances where the applicant faced the particular difficulty that his counsel at first instance had agreed with the prosecutor as to the appropriateness of the sentence.  It is consequently of limited assistance here.

[16]  Counsel next referred to a series of cases involving sentencing for dangerous driving causing grievous bodily harm.  In each of those cases, there was no allegation of alcohol or drugs being involved, and the result was either a non-custodial sentence or the imposition of a very short period in custody.  They were, R v Proesser,[5] R v Roser,[6] R v Lacey[7]  and R v Price.[8]  The maximum penalty applicable in each of those cases was seven years imprisonment.

[17]  The applicant in Proesser was sentenced to 18 months imprisonment suspended after three months.  He had been driving at the speed limit of 70 km per hour along a major road; had lent down to adjust his radio; and had looked up to see traffic lights ahead of him turning amber and the car in front of him stopped at the intersection.  To avoid colliding with it, he braked and swerved into the adjacent left turning lane, then skidded, hitting the complainant who was on a pedestrian crossing.  The applicant remained at the scene and showed concern for the complainant, whose injuries were such as to require four weeks in hospital.  The applicant was 28 years old.  He had a very minor criminal history and a relatively minor traffic history, including three speeding fines.  He had recently completed his university degree and had a good record of community service.  The sentencing judge accepted that he was remorseful and had entered an early plea of guilty.

[18]  This Court considered that the sentencing judge had overlooked previous authoritative statements to the effect that, where alcohol was not involved, there was no excessive speed, and the dangerous driving was the result of a short period of inattention, a custodial sentence was not inevitable.  In Proesser’s case, the Court said, the circumstances of the driving, which fitted the description of a brief period of inattention, and the mitigating features of the case indicated that a non-custodial sentence was the proper result. 

R v Roser

[19]  Similarly, in R v Roser a sentence of 12 months imprisonment suspended after three months was altered by suspending it wholly.  That case involved a 17 year old applicant who drove on a rural road at excessive speed and collided with an oncoming vehicle.  The young woman driving it suffered deep lacerations to her limbs and a fractured cheekbone; she was left with significant scarring.  The basis of the charge of the dangerous driving was the applicant’s admission as to his speed.  He had no previous criminal history; he had pleaded guilty; and he had rendered assistance to the victim and expressed remorse.  There was no suggestion that alcohol was involved.  It was, on the other hand, a case of deliberate dangerous driving, not a momentary lapse.  However, the sentence did not give sufficient weight to the many mitigating factors, and it appeared that the sentencing judge had misdirected herself by taking the view that a non-custodial sentence was not open. 

R v Lacey

[20]  In Lacey, the applicant was sentenced to two years imprisonment suspended after three months for an operational period of three years.  At 3.00 am on a country road, he had driven his vehicle at 118 km per hour in a 60 km per hour zone.  He lost control and hit a tree, causing his passenger severe injuries which left her with substantial restriction in the movement of her hip and knee.  But, this Court said, the applicant, who was 24 years old, did not share the feature of “extreme youth” of the applicant in Roser, and, unlike that applicant, he had some minor traffic history.  A sentence involving some actual custody was not outside the relevant range.

R v Price

[21]  The applicant in R v Price was a 58 year old truck driver with a bad traffic history, including three offences of failing to obey traffic signals and signs and 13 speeding offences.  He had pleaded guilty on an ex-officio indictment to one count of dangerous driving causing death, and one count of dangerous driving causing grievous bodily harm.  In the very early morning, while driving a prime mover, he had failed to observe a “Give way” sign and collided with a van, killing its driver.  It was accepted at first instance that it was a case of momentary inattention, although, as was observed on appeal, it involved carelessness while driving a very heavy vehicle.  He had a good work record, lived with and cared for his elderly mother, and had, it was accepted, exhibited considerable remorse.  This Court refused to interfere with a sentence of two years imprisonment suspended after four months.

The respondent’s submissions and authorities

[22]  Counsel for the respondent submitted that the learned sentencing judge was correct to characterise the applicant’s driving as beyond momentary inattention, on the basis of the features identified by his Honour: that the applicant had been driving for some time with an unbroken double white line to his right, but subsequently claimed not to have noticed it; that he failed to see the “No right turn” sign; and that he did not see the complainant’s motorcycle.  The manner of driving was prolonged or reckless inattention.  Mr Smith’s injuries were serious, requiring surgery.  The applicant’s criminal history was bad, his remorse was questionable and his convictions after the offence for exceeding the speed limit suggested a lack of insight.  Counsel relied on two cases, R v McGuigan[9] and R v Wakefield,[10] both of which involved offences attracting maximum penalties of seven years imprisonment.

R v McGuigan

[23]  McGuigan had pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm with a circumstance of aggravation, having twice previously been convicted of offences of driving under the influence of liquor (with the consequence that imprisonment was mandatory).  He was sentenced to five years imprisonment, with a recommendation for parole after 20 months.  The sentence was re-opened subsequently to deal with breaches of some suspended sentences, the longest being six months, and he was ordered to serve the whole of those sentences concurrently with the sentence for dangerous driving.  The applicant in that case was 49 at the time of the offence.  He had a serious traffic history, including the two offences relied on as the circumstance of aggravation.  They involved his driving on successive days with blood alcohol concentrations respectively of .203 and .251. 

[24]  In the offence in question, McGuigan had failed to stop at a pedestrian crossing, although there was a vehicle already pulled up in the lane to his left.  He knocked over an elderly pedestrian, who was seriously injured.  He was likely to require rehabilitation over some two years and would probably not be able to live independently as he had done in the past.  The applicant accelerated away from the scene.  He was found early the next morning in his vehicle.  His blood alcohol content then was .2 per cent (giving rise to a separate charge of being in charge of a motor vehicle whilst adversely affected by alcohol).  He denied involvement in the accident, claimed to have lent his vehicle to someone else, and gave a false alibi. 

[25]  The Court noted that the case had proceeded on the basis that neither alcohol nor excessive speed was an aggravating aspect; although, of course, the applicant had avoided blood alcohol testing by leaving the scene of the incident.  He had failed to observe due care at the pedestrian crossing, despite the stationary vehicle already there, and he had lied to the police, causing resources to be used unnecessarily.  The consequences for his victim would affect the quality of the rest of his life.  Nonetheless, the sentence imposed at first instance was manifestly excessive.  A sentence of three and a half years imprisonment with a recommendation for parole after 18 months was substituted.

R v Wakefield

[26]  In R v Wakefield, 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 after 15 months.  He was 27 years old at the time of the offence.  He had driven past a group of people at the side of the road.  Believing they had thrown a bottle at his vehicle, he performed a U-turn and drove back towards the group.  In an attempt to scare them, he deliberately swerved at them, striking the complainant, who had his back to the vehicle, from behind.  The complainant suffered extensive and severe injuries. 

[27]  The applicant drove away before checking his vehicle for damage and then continued to his home in New South Wales.  When eventually apprehended, the applicant admitted that he had struck someone, but told the police that the complainant had been on a bicycle and that he believed he had struck the bicycle.  The sentencing judge rejected that version, and found that, although the applicant had not intended to hit the complainant, it was a foreseeable consequence of his deliberate act of driving at the group of people in order to scare them.  In the applicant’s favour were the fact that he had entered a guilty plea, although it was a late one; that there were references suggesting his conduct was out of character; that although he had a previous traffic history, it was not of proportions of the offence; that he had subsequently expressed remorse and suffered from depressive symptoms; and that he was the fulltime career for a disabled daughter. 

[28]  This Court noted that although a sentence of three years imprisonment with actual custody of 12 months imposed would have been open, the sentence actually imposed was not so manifestly excessive as to be outside the sound exercise of the sentencing discretion.

Discussion

[29]  There is, I think, some difficulty with his Honour’s reliance on the applicant’s not having observed the unbroken double white lines despite his having “been driving for some time with [the] unbroken double white line to [his] right”.  The prosecutor had not made that submission.  She had simply said that the double lines on Kingsford Smith Drive commenced “some distance prior to where the accident occurred” (although presumably they did not extend across the previous intersection, which, as the map tendered at sentence shows, was controlled by traffic lights).  Nothing put before the court indicated at what point the applicant had entered Kingsford Smith Drive, nor at what stage he had moved into the right hand lane. 

[30]  Perhaps more to the point, it is by no means obvious that had the applicant seen the double white lines earlier, he would have appreciated that they did not break, as might usually be expected, at the intersection; and it was accepted that he was unfamiliar with the area.  I do not think, then, that one could properly rely on the fact that the unbroken lines ran for some distance along Kingsford Smith Drive prior as indicating prolonged inattention on the applicant’s part.  There certainly was, however, an element of risk-taking in his sudden decision to turn to the right without pausing to take stock of the circumstances before doing so; but it was a spontaneous act, not a deliberate or sustained course of action.

[31]  The applicant’s criminal history was not directly relevant, although it meant that the factor of hesitation in jailing a first offender was absent.  His long traffic history was of considerably more consequence.  The offence here did not involve the features of speed or unlicensed driving prevalent in it, but his driving did display a similar recklessness and disregard of road rules.  However, while the learned judge was right to treat the serious traffic history as a relevant consideration, it seems to me, having regard to the authorities, that it was given disproportionate weight, with insufficient attention paid to the applicant’s actual culpability.  Had the applicant had no previous traffic or criminal history, he might reasonably have anticipated a non-custodial sentence in the circumstances of this offence.  His extensive traffic history warranted the imposition of actual custody, and for a significant period, not merely the three months for which his counsel here contended.  On the other hand, the comparable matters referred to by counsel suggest that the sentence actually imposed was too high.

[32]  I should mention that both McGuigan and Wakefield seem to me far more serious cases.  In particular, Wakefield’s action in deliberately driving at the group of pedestrians seems to me of an entirely different order from the applicant’s conduct.  Importantly, neither of those offenders showed any sign of remorse; both left the scene of the accident; and both did their best, through dishonesty, to avoid being held responsible.  In contrast, the applicant showed concern for the man he had hit, and waited for and co-operated with police.  If anything, I would regard McGuigan and Wakefield as operating to support the contention that the sentence imposed here was too high.

Conclusion

[33]  In my view, the sentence imposed was manifestly excessive.  I would allow the application for leave to appeal, allow the appeal, and substitute a sentence of 18 months imprisonment with the parole release date fixed at 6 September 2009 (after six months imprisonment).  To avoid any doubt, I would declare that the applicant has already served 99 days of that sentence, between 6 March 2009 and 12 June 2009.  The order for absolute disqualification made under s 86 of the Transport Operations (Road Use Management) Act 1995 (Qld) should remain.

[34]  MUIR J:  I agree with the reasons of Holmes JA and the orders and declaration she proposes.

[35]  DOUGLAS J:  I agree with the reasons and orders proposed by Holmes JA.