SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree with the reasons of Atkinson J and with the order her Honour proposes.

[2]  MUIR JA: I agree with the reasons of Atkinson J and with the order she proposes.

[3]  ATKINSON J: The applicant, CAN, has applied for leave to appeal against a sentence imposed upon him in the District Court on 10 September 2008.  On that date he was convicted on his own plea of guilty on one count of dangerous operation of a vehicle causing death with a circumstance of aggravation.  He was sentenced to seven years imprisonment with a declaration that he had spent 600 days in pre-sentence custody from 13 January 2007 to 9 September 2008.  The maximum penalty for this offence was 14 years imprisonment.

[4] The applicant also pleaded guilty to a large number of other counts for which he received concurrent sentences.  On one count of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance, he was sentenced to two years imprisonment.  On each of one count of assault occasioning bodily harm, one count of common assault and one count of wilful damage, he was sentenced to imprisonment for one month.  In respect of summary counts of contravening a requirement, driving a motor vehicle whilst over the general limit, two counts of driving a motor vehicle whilst not licensed, one count of possession of a dangerous drug, one count of possession of a knife and two breaches of the Bail Act 1980 (Qld), convictions were recorded but he was not further punished.  In respect of the summary count of driving a motor vehicle whilst over the general limit as well as the two counts of dangerous driving, he was also disqualified from holding or obtaining a driver’s licence for a period of five years.

[5] The offences of dangerous operation of a motor vehicle, driving whilst unlicensed, driving whilst under the influence of alcohol, possessing a knife in a public place and possession of the dangerous drug (cannabis) were committed on 28 July 2005.  The offence of assault occasioning bodily harm, in which the victim was his four year old son, was committed on 17 September 2006.  The offences of dangerous operation of a motor vehicle whilst intoxicated causing death and driving whilst unlicensed were committed on 6 November 2006.  On 20 November 2006 he committed the common assault on his wife.  The offence of wilful damage was committed on 6 January 2007 and breach of bail on 8 January 2007.

[6] The circumstances of the offending were set out in written summaries of fact presented to the sentencing judge.  The schedule of facts with regard to dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance and the other offences committed on 28 July 2005 shows that at approximately 6.45pm the applicant was driving eastward along Boat Harbour Drive, Pialba.  He used a right-hand turn lane for drivers to turn into the Bunning’s Warehouse car park to overtake another vehicle already stopped at traffic lights.  Witnesses observed him continuing to drive along Boat Harbour Drive at excessive speed well above the 60 kilometre per hour speed limit.  He drove onto the wrong side of the road to overtake another vehicle and then continued to weave amongst other traffic.  He continued driving eastward for another three kilometres and accelerated near an intersection to a speed in excess of 170 kilometres per hour.

[7] He mounted the curb of the left-hand lane before bringing the vehicle back to the road where he drove across both lanes then again mounted the curb of the left-hand lane.  The applicant then drove the vehicle off the road towards the driveway of Universal Home Improvements causing damage to underground power cables, fencing and signage before colliding with two gum trees.

[8] When the police apprehended him shortly afterwards he was intoxicated and carrying a knife in his pocket and a small bag of cannabis.  In a police record of interview on the following day he said that he had consumed approximately half a carton of full strength beer throughout the course of the day prior to the accident.  He was placed on bail.

[9] The learned sentencing judge accepted that the applicant’s behaviour was deliberate and done in such a manner in an attempt to take his own life.  However, as can been seen from the summary of facts, his driving put many others in danger as well as himself.  He was not licensed to drive at the time and cannabis and a knife were found on him.

[10]  The count of assault occasioning bodily harm occurred on 19 September 2006 when the applicant assaulted his four year old son.  The child suffered bruising to the scalp but was not otherwise injured.  When the applicant’s wife told him to stop hurting the child he responded, “Don’t you dare tell me what to do.  They’re my kids and I will do what I want.”

[11]  With regard to the most serious count, that of dangerous operation of a vehicle causing death with a circumstance of aggravation, the applicant was the driver of a blue 1983 VH Holden Commodore which was involved in a single vehicle accident in the early morning of 6 November 2006.  The passenger in the front seat of the vehicle, Dale Carey, was killed in the accident.  The applicant was apprehended about 300 metres south of the scene trying to get a lift to the hospital.

[12]  The Holden driven by the applicant had been travelling south along Booral Road, Urangan.  The road was straight, except for a slight bend approximately 100 metres north of the scene of the incident.  The road surface was dry and devoid of any defects that could have contributed to the incident.  There had been fog at the time of the incident, but it only came down as low as the street lights (and the area was very bright because of light reflected from the fog).  The applicant failed to negotiate the bend in the roadway and his car mounted the curbing, repeatedly gouging the concrete curbing and sliding for approximately 80 metres before colliding with a power pole on the passenger’s side.

[13]  The applicant falsely denied that he was the driver of the vehicle both to the police and to a doctor who treated him at the hospital.  The injuries to the deceased were consistent with severe impact on the left side of the upper body which was consistent with his being the front seat passenger in the vehicle.  Further police investigation confirmed that the applicant was the driver.  A blood test of the applicant disclosed a blood alcohol reading of .154 per cent as well as the presence of cannabis.  A DNA sample from the applicant matched swabs of blood from the steering wheel, driver’s seat and driver’s window frame.

[14]  This offence was committed while he was on bail for the offences committed on 28 July 2005, which included the offence of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance.

[15]  The schedule of facts with regard to the common assault showed that on Monday 20 November 2006 the applicant assaulted his estranged wife at the Commonwealth Family Law Court building in Brisbane and made various threats to her.

[16]  The count of wilful damage occurred when the applicant entered the Fortitude Valley Police Beat at approximately 1.40am on 6 January 2007.  He was agitated and swearing and demanded the officer take him away as he had nowhere to go.  When the applicant was told to leave the police station he pushed the glass panelled front door with enough force to cause it to crack.  He was then arrested for wilful damage.

[17]  The applicant, who was born on 13 May 1971, has a criminal history in both New South Wales and Queensland.  In New South Wales he was convicted on 24 December 1987 of one offence of possessing a prohibited drug and one of supplying a prohibited drug.  A number of other offences were committed in New South Wales.  On 23 June 1989 he was convicted on one count of administering a prohibited drug and one count of possession of equipment for administering a prohibited drug.  He was convicted in August 1989 of assault and November 1989 of offensive language.  He was then convicted in August 1992 of unlawful entry and in January 1993 of high PCA (i.e. driving whilst having a high level of alcohol in his blood).  He was disqualified from driving for three years.

[18]  A warrant of apprehension was issued against him in the Beenleigh Magistrates Court in October 1993.  In December 1993 he was convicted in the Beenleigh Magistrates Court of hindering police and being found in a closed yard without a lawful excuse.  In February 1994 he was again convicted in the Beenleigh Magistrates Court of aggravated assault on a female and unlawfully taking shop goods away and in April 1994 of unlawful assault.  In April 1994 he was also apprehended for speeding.

[19]  In July 1994 he was convicted of driving whilst disqualified in New South Wales and in March 1996 he was convicted in New South Wales of assault.  On appeal his sentence of four months imprisonment was replaced with 12 months supervision from the New South Wales Probation Service on the condition that he accept drug and alcohol counselling.  In August 1994, he was convicted of driving whilst affected by alcohol with a low PCA. 

[20]  In May 1996, in Queensland, he breached a fine option order which had been imposed upon him in respect of the unlawful assault and unlawfully taking away shop goods.  In New South Wales he was convicted in 1996 of stealing and given a term of imprisonment.  Later in the same year he was convicted of malicious damage, then unlicensed driving and larceny.  In 1997 he was convicted of assault, assaulting police and offensive conduct, offensive language and offensive conduct; stalking and intimidating with intent to cause fear of personal injury and malicious damage; and carrying in a conveyance without consent.

[21]  In 1998 he was convicted of two breaches of an apprehended violence order and one count of providing false information.  In October and December 1998 he was convicted of driving without a licence on the road, driving an unregistered vehicle with number plates on to deceive, driving a vehicle which was unregistered, using an uninsured motor vehicle on the road and disobeying a traffic light signal.  In 2000 he was convicted in New South Wales of destroying or damaging property, two counts of malicious damage, assault and disqualified driving.  He was given 12 months imprisonment suspended on entering into a bond for 12 months.

[22]  It appears that the applicant then returned to Queensland.  He was convicted in May 2001 of failing to appear and of obscene language in a public place.  In 2007 he was convicted of two counts of failing to appear in accordance with his undertaking.

[23]  The learned sentencing judge was assisted by a very detailed psychiatric report by Dr Mark Schramm prepared on behalf of the applicant.  It reports that the applicant suffered a severe head injury as a result of a car accident in 1995.  It has left him with frontal lobe syndrome with poor impulse control.  It was noted however that his criminal offending commenced before that date and by the time of his head injury he already had a significant problem with alcohol abuse and used the illegal drug, cannabis.  Dr Schramm expressed his opinion as follows:

“Your client is clearly suffering from the severe sequelae of at least one significant head injury in 1995.  He displays the characteristic features of one who has suffered damage to especially the frontal part of one’s brain involved in planning, inhibiting impulses, dealing in the abstract, retaining several ideas in mind at once etc.  This “frontal lobe syndrome” often presents with persons who are prone to rapid shifts in mood (often including hostility), gross difficulties in considering ramifications for behaviour and inhibiting impulses to act.  Mr CAN clearly displays these and other cognitive deficits, specifically impairments in memory and concentration.  These deficits have been documented and commented upon by all of those persons who had seen him on a professional basis….

I do note though that there appeared to be significant personality disturbance along the lines of antisocial personality traits which predated his brain injury and would suggest that the unleashing and exacerbating of such maladaptive personality styles is an occurrence which may occur with brain damage of a variety of types.

He has clearly in the last several years behaved in a repeatedly dangerous manner both with regards his own safety and the safety of those around him.  He seems never to have cooperated with those who have attempted to treat him (albeit on it seems only very occasional episodes) which itself is not surprising given the coexistent poor insight that goes with his cognitive impairment.”

[24]  Dr Schramm commented that the applicant was very unlikely to accept or comply with any order to reside in a particular place or to attend appointments in any consistent manner and this should not be expected.

[25]  In this court the main complaint made by the application was that the sentencing judge did not make a parole eligibility date to recognise the factors going in mitigation of penalty particularly his plea of guilty and his mental impairment which would make his time in custody more difficult.

[26]  What the sentencing judge did in this case was to ameliorate the sentences imposed on the application not by making a parole eligibility date under s 160C(5) of the Penalties and Sentences Act 1992 (Qld), as is commonly done, but by making the sentences concurrent rather than cumulative as he could have done under s 156(1) of the Penalties and Sentences Act. 

[27] As the Court held in R v Wilde; ex parte A-G[1] with regard to occasions on which the imposition of cumulative sentences is warranted:

“These were discrete instances of serious offending, separated in time and nature, therefore warranting penalties imposed successively.  Where cumulative treatment is appropriate, then absent any so-called “crushing” effect, there should not be any…substantial reduction…”

[28]  This was a very real benefit given the difficulties that might be faced by the applicant in being granted parole even if he were to be given a parole eligibility date and also given that a cumulative sentence may well have been imposed particularly as he was on bail on dangerous driving whilst intoxicated when, while again intoxicated, he caused the death of another through his dangerous driving.

[29]  The authorities referred to by the respondent in its outline provide ample support for the sentence imposed.

[30] In R v Conquest[2] McPherson JA and Thomas J discussed the aspects which are to be considered in arriving at sentence in these types of matters:

“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.”

[31]  In R v McKinnon[3] a plea of guilty was entered to the offence of dangerous driving causing death whilst adversely affected with a blood alcohol concentration of 0.219 per cent.  In McKinnon the applicant fell asleep at the wheel, ran into a parked car and killed the occupant of the parked car.  He pleaded guilty and was extremely remorseful.  A sentence of six years imprisonment with a recommendation that he be considered eligible for parole after two-and-a-half years was not disturbed on appeal.

[32] R v Lennon[4] also involved a case attracting the 14 year maximum.  The applicant’s blood alcohol concentration was 0.275 per cent.  The applicant in that matter caused grievous bodily harm to the victim and did not cause the death of anyone.  The applicant had been warned not to drive and was warned by another driver that he had travelled onto the wrong side of the road.  The dangerous driving was held to be the result of excessive intoxication and not deliberately dangerous.  The offence was out of character and the applicant had no criminal convictions.  An early plea of guilty had been entered and the applicant was remorseful.  A sentence of eight years imprisonment with parole after three-and-a-half years was reduced on appeal to a sentence of six years imprisonment.  No recommendation for parole was made.

[33]  The case of R v Wilde; ex parte Attorney-General[5] involved an example of dangerous driving with aspects of reckless inattention, or criminally negligent or careless driving.  The maximum sentence available in that case for the offence of dangerous driving causing death was seven years.  Because the respondent left the scene, she could not be tested for any intoxicating substance.  In that matter, the Court considered that a sentence of six years imprisonment was an appropriate sentence.[6]  The respondent in that matter was on bail for other offences when she committed the offence of dangerous driving.  The Court regarded the callous flight of the respondent as an aggravating feature.  That case however, did not involve the higher maximum sentence of fourteen years applicable in the present case.

[34]  This court has recognised that the decision in Wilde suggested a “marked upward trend in the penalties to be imposed in these cases”.[7]

[35]  In the matter of R v Dingle[8] the applicant was convicted after a trial of an offence of dangerous driving causing death whilst adversely affected by alcohol; the level of alcohol was 0.19 per cent and the offence attracted a maximum sentence of 14 years.  A sentence of six years was imposed and was not disturbed on appeal.  The circumstances of the driving could be regarded as less serious than the present case.  That case involved the applicant failing to keep a proper lookout and being incapable of reacting to an emergency.  The applicant collided with and killed a cyclist. 

[36]  As was submitted by the respondent a sentence of two to three years imprisonment for the dangerous driving whilst intoxicated would have been within range, as would a cumulative sentence of seven years for the offence of dangerous driving causing death.  Making the two sentences concurrent gave adequate discount for the plea of guilty in the unusual circumstances of this case whereas protection of the community is of more than ordinary importance.

[37]  I would refuse the application for leave to appeal.