R v Lasrado[2009] QCA 69

SUPREME COURT OF QUEENSLAND 

DOUGLAS J:  This is an application for an extension of time within which to appeal against sentence.  The applicant was convicted on 12 December 2008 of the dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by a prescription drug.

The explanation recently provided for the delay of approximately one month in seeking to challenge the sentence imposed, is that the applicant was disoriented by being gaoled shortly before Christmas and did not have access to legal advice but tried to file an application unsuccessfully that if it had been filed would have been in time.

The sentence imposed on him was two years imprisonment with a parole release date after serving eight months, namely 11 August 2009.  The applicant was also disqualified from holding a licence for four years, a result which he also seeks to challenge.  The primary focus of his oral submissions was the period of his suspension.

The applicant was 34 when sentenced and had a significant traffic history before and after the offence the subject of the charge.  He had eight speeding convictions before the offence and five speeding convictions after it with numerous suspensions of his licence. 

The incident which led to the charge against him occurred on the South-East Freeway near the commencement of a T2 transit Lane at Mount Gravatt.  He had been driving a powerful lowset sports car in the same direction as the complainant's vehicle since a set of traffic lights at the end of Coronation Drive. 

He had been observed by a number of people to be driving in an erratic manner both in speed and with his manoeuvres on the Freeway in a southbound direction from the City.  At one stage he was observed to be talking on a mobile phone. 

His behaviour caused other drivers to take evasive action and one witness contacted police to advise them of his driving.  A witness observed him on a number of occasions to travel closely to the vehicle in front of him, slow down and then change lanes.  Moments before the collision the applicant was seen to accelerate towards the vehicle in front of him, veer across to the right to a position behind the complainant's vehicle which was then in the far right-hand lane.  The applicant continued to veer to the right into an emergency lane, appearing to commence an overtaking manoeuvre and then collided with the rear of the complainant's vehicle, causing it to become airborne, flip and then slide across the other lanes of the freeway.  Apparently the applicant attempted to brake just before the collision.  An estimate of a witness was that the applicant's vehicle was travelling in excess of 100 kilometres per hour at the time, but the precise speed could not be estimated reliably. 

The complainant's vehicle as I have said, overturned.  She was a passenger in the vehicle with the window open.  Her seatbelt kept her within the vehicle as it overturned, but her head scraped along the bitumen surface of the road as her vehicle moved on its side.  To prevent the pain from that she used her hand to push herself away from the road, which caused very serious injuries to that hand.  The other occupants of the vehicle, her husband and children, suffered relatively minor injuries. 

The applicant had been using prescription drugs, including an anti-anxiety drug called Alprazolam.  The levels of the drug in his system, when he was apprehended, exceeded therapeutic levels to the extent that his ability to safely control a motor vehicle would have been severely impaired. 

The submissions for him at the hearing before his Honour were to the effect that he positively believed that his behaviour was improved because of his use of Alprazolam, unlike people who drive after having drunk alcohol to excess.  It must have had a significant effect on him, however, as the police and ambulance officers observed indicia of intoxication when they came on the scene and also observed him fall asleep after the event.

Leaving to one side the question of whether there has been a good explanation or reason provided for the delay, one needs to examine whether it would be in the interests of justice to grant an extension within which to seek leave to appeal.  A provisional assessment of the strength of the appeal leads me to the view that there are no reasonable prospects of success.

Both counsel, who were experienced, submitted that the authorities established that an appropriate head sentence was between two and two and a half years imprisonment with a parole release date set after the service of eight to 10 months of that period.  Reliance was placed in particular on the decision of this Court in R v Robinson [2004] QCA 467.

The counsel appearing for the applicant before the learned sentencing Judge, agreed with the submission of the crown prosecutor that the range would be in the two to two and a half year region as a head sentence.  He argued that Robinson was a slightly more serious case than the present one.  It occurred in a school zone where the accused had overtaken on the right of a car indicating that it intended to turn right and collided head-on with another vehicle, then went onto the footpath and hit a young child.  Fortunately for the child he was not seriously injured at least by the time of the sentencing.

The applicant's counsel submitted then that a head sentence in the order of two years three months imprisonment would be appropriate with a non-parole period of between six and eight months.  In those circumstances where such a submission was made, which was supported by the relevant authorities, it is very difficult to see why this Court should take the view that the sentence imposed was manifestly excessive.  See the remarks of Keane JA in R v Walsh [2008] QCA 391 at paragraph [23].

A further complaint of the applicant is that his counsel was interrupted in the course of his submissions.  That seems to have occurred on three occasions for which the learned sentencing Judge apologised.  It appears he had to deal with other matters.  The total period of the interruptions cannot be ascertained on the material available, but nothing seems to have occurred to affect the learned sentencing Judge’s apprehension of the relevant matters with which he had to deal on the sentence.  They are set out clearly in his reasons and include information about the character references tendered on behalf of the applicant referring to his positive attributes, including his considerable generosity to the family of a young boy suffering from leukaemia.

The applicant had submitted that the learned sentencing Judge did not read those references completely but the reasons certainly suggest that he took them into account and was aware of their contents.  The other comparable authorities such as Robinson and the effects of this driving of the applicant upon the complainant, coupled with his previous and subsequent poor traffic history and the fact that he should have been aware of the likely consequences of the ingestion of this drug on his driving, all suggest that a sentence in the range put forward by both counsel and accepted by his Honour, was appropriate and not one which would attract this Court's jurisdiction to vary it.  The same considerations apply to his disqualification for four years, which having regard to the seriousness of this offence and his poor traffic history before and after it, cannot be said to be manifestly excessive.  It is also supported in its range by other comparable decisions such as R v Lacey [2005] QCA 431, R v McGuire; ex parte Attorney-General [2002] QCA 439 and R v Shedlock; ex parte the Attorney-General [1996] QCA 164.

Other matters such as the fact that the applicant's marriage and business had been collapsing and his apparently genuine remorse for what he had done were taken into account by the learned sentencing Judge.  He also took into account the issue of delay between the events which led to the charge and their resolution before him.  He concluded that they were not relevant to mitigation of the sentence.

His Honour was also aware that the maximum penalty relevant to the charge against the applicant was 10 years, a penalty which has increased since then.  There was some criticism made by the applicant at this hearing about his representation below but there is no substance apparent to those criticisms of his representation on the material before us, which included a transcript of the submissions made on his behalf.

It seems to me therefore that leave should not be granted to extend time within which the applicant may apply for leave to appeal against the sentence imposed on him, as there are no reasonable prospects of a successful appeal against the sentence and he has not shown that it is within the interests of justice that he obtain such an extension of time.  Accordingly the application should be dismissed.

CHESTERMAN JA:  I agree.

MULLINS J:  I agree.

CHESTERMAN JA:  The order of the Court is that the application for extension of time within which to apply for leave to appeal against sentence is refused.