R v Ross[2009] QCA 7

SUPREME COURT OF QUEENSLAND 

THE CHIEF JUSTICE:  The applicant was sentenced in October of 2008 to eight years imprisonment with no recommendation as to parole for the dangerous operation of a motor vehicle causing the deaths of his two infant children, who were passengers in the vehicle along with their mother, his defacto partner.

One of the children died at the scene.  That was Khye, who was then aged two years and eight months.  The other child, Zac, who was aged eight months, died subsequently as a result of severe injuries he suffered in consequence of the crash. 

The charge included three circumstances of aggravation.  The applicant was intoxicated, he was speeding and he left the scene knowing of the death and the injuries before any police officer arrived.  The maximum penalty under section 328A(4) of the Criminal Code, which had been substantially amended with effect from 20 March 2007, was 14 years imprisonment.

The applicant seeks leave to appeal against the sentence.  Mr Reid, his counsel, has submitted that a recommendation for parole after one third of the eight year head term - that is - after 32 months - should have been added.  Or alternatively, that the applicant should have been sentenced to seven years imprisonment.

At the time of the offence, the applicant was 25 years of age.  The offence occurred in June 2007.  He had a relatively short criminal history, which had not involved imprisonment, and a history of traffic offending including unlicensed driving - four instances of that - and two instances of drink driving - offences committed in July 2000 and December 2006.

At the time of the commission of this offence, the applicant's driver's license was suspended.  It had been suspended following his conviction in December 2006 for driving under the influence of liquor.  He entered his plea of guilty to this offence at the committal, which is an unusual circumstance these days.

The driving occurred over a distance of 980 metres from a shopping centre at Southport.  The applicant's partner had left the car to purchase some food.  When she re-entered it, the applicant proceeded to perform a burn out which had the consequence of filling the food store with smoke.  Then he tailgated another car out of the car park and then he performed another burnout.  Travelling on, he accelerated heavily and the vehicle fishtailed.  He successfully negotiated three bends in the street but then lost control of his vehicle, which mounted the median strip and collided with three trees.  The vehicle became airborne and rolled a number of times before coming to rest on its side.  The speed at the time of the crash was estimated as at least 138 kilometres per hour in a 70 kilometre per hour zone.

Subsequent blood tests indicated that the applicant's blood alcohol content at the time of the crash would have been .163.  Tests showed the presence of cannabis as well.  As to that reading of .163, the applicant had apparently been drinking after the crash and before the testing.  But the matter was put before the judge, without defence demur, on the basis of a calculation back to .163, and that is the basis on which this Court should proceed, as counsel for the applicant concedes.

After the vehicle was righted, the applicant, having looked inside the vehicle, absconded.  He telephoned friends who picked him up elsewhere.  When they found him, he emerged from some bushes drinking whiskey.  His friends drove him towards the scene of the crash.  He told them that his defacto partner had been driving and asked them not to let the police see him.  His friends took him to the Gold Coast Hospital, and it was there that the police located him.  He told the police that a neighbour of his father had run them off the road.  He was not then charged, but the applicant surrendered to the police a couple of days later. 

At the sentencing hearing, counsel for the applicant attributed the applicant's conduct to his perception that a neighbour had been endeavouring to antagonise or bait him at the shopping centre, and it was that which had led to his driving off at speed and recklessly.  The learned sentencing Judge described it as grossly irresponsible driving, "A bad case of dangerous driving by any measure," with the applicant's timely plea of guilty "the most significant" mitigating feature.

In sentencing the applicant to eight years imprisonment, the Judge explained that he did not intend to touch on the matter of parole, and that in determining that head sentence, he had taken into account all matters in the applicant's favour.  The Judge was leaving the matter of parole to the parole authorities in the usual way.

Counsel for the applicant emphasised the applicant's loss of his only children, and that because the applicant was in custody pending sentence, he endured his loss without family support.  Counsel submitted that a parole recommendation should have been made to reflect the circumstances personal to the applicant. 

The primary Judge took special account of the R v Frost; ex parte Attorney General [2004] QCA 309, and R v Vessey; ex parte Attorney General [1996] QCA 11, which is referred to in Frost, observing that they were worse cases than the present.  In each of them, nine years imprisonment was imposed.  In Frost, there were three deaths, the blood alcohol reading .23+ - he had .163, and the dangerous driving occurred over a much longer distance - 14 kilometres, and the sentence was nine years with no parole recommendation.  The nine years was said to fall, "at the lower end of the appropriate range." 

Jerrard JA, with the agreement of the other members of the Court, said that Frost could have been sentenced to 10 years imprisonment. 

Vessey was, on appeal, sentenced to nine years imprisonment with parole recommended after four years.  His driving covered a distance of only 150 metres, and he killed one person.  His blood alcohol concentration was at least .2.  He had a very bad history of driving under the influence of liquor, and while unlicensed. 

The present is not as severe a case as Frost, but because of the multiple deaths it should, I consider, be seen as more extreme than Vessey.  Of the other cases to which we were referred, in R v Bain [2008] QCA 247 where the sentence was six years with parole eligibility after two and a half years, there was one consequent death; and as with the R v Blanch [2008] QCA 253, where the penalty was six years imprisonment with parole after one third, and there was one death, together with a case of grievous bodily harm, the maximum penalty was 10 years imprisonment, not 14 years as applicable here.

With the subsequent 40 per cent increase in the statutory maximum penalty, the comparability otherwise between those cases and this would support the imposition here of a substantially higher term of imprisonment.  I am not suggesting, however, any mathematical approach to the analysis.  As to R v Hodges; ex parte Attorney General [2008] QCA 335, it was a case of one death, and a four and a half year term imposed was plainly considered lenient, even though not increased on appeal. 

Counsel for the applicant relied on R v Smout [2005] QCA 120, where the sentence sustained on appeal was six years imprisonment with parole recommended after two and a half years, and R v Armstrong [2007] QCA 146, where the penalty was five years imprisonment suspended after 20 months.  In Armstrong's case, there was one death.  Each was a prisoner's appeal that the Court did not consider the sentences manifestly excessive, does not mean that, assuming comparability with the present, his sentence was out of range.

As the primary Judge rightly identified, Frost and Vessey, which were Attorney appeals, offered him the best, as he termed it, of the available “guidelines”.  Was this sentence manifestly excessive because the Judge did not add a recommendation for parole after one third of the head sentence?  There is arguable a jurisprudential issue, to my mind, whether the absence of a parole recommendation, which may or may not be followed by the executive agency, can render a sentence manifestly excessive. 

That was certainly a live issue in an era where Judges at least perceived that such recommendations were not necessarily being given appropriate weight.  It may now be accepted, however, that where a head sentence is substantial, a recommendation as to parole is a potentially valuable adjunct which may properly be added on appeal.  The fixing of parole eligibility at an early stage, where that is authorised, or the making of a recommendation as to parole, may be an important way of properly recognising the significance of pleas of guilty and other mitigating circumstances. 

In this case, however, the primary Judge said, in effect, that he preferred to leave the matter of parole for consideration in the ordinary way by the other authority, and that he had taken all mitigating circumstances, especially, of course, the plea of guilty, into account in setting the eight year head term, which allows the applicant to apply for parole after four years.

His Honour made his order in the particular context of Frost, a worse case, where the Court of Appeal said Frost could well have been sentenced to 10 years imprisonment, implicitly without any recommendation added, and Vessey, in my view a somewhat less serious case, where the penalty was nine years imprisonment with parole recommended after four years.  Against that background in particular, I consider the eight year term imposed here, without the embellishment of any recommendation, to have been within the Judge's discretion. 

It is very important in this case to acknowledge the gravity of the offence: dangerous driving over a substantial distance in a suburban area at high speed, with a high blood alcohol concentration in the driver; the consequence - the death of the two infant children; the very circumstance that the applicant drove in this way and while intoxicated with his infant children as passengers in the vehicle; his attempts at avoiding detection; and all of this in the context of the applicant's not insubstantial past traffic history, including alcohol related driving offences, and his being a disqualified driver at the time. A strongly deterrent sentence was obviously appropriate and called for.

As to the applicant's personal circumstances, the tragedy of his losing both his children is not, in my view, one which should significantly have ameliorated the sentence, where the undoubtedly important consideration of deterrence must predominate.  Supposedly deterrent sentences may not actually work in some areas.  So called crimes of passion are a good example.  But there is cause to believe they do in the realm of traffic offending.  There was, in this case, a prime need to deter both generally and specially, as the Judge recognised.

I do not consider the sentence imposed to have been manifestly excessive for the absence of a recommendation as to parole.  And I would therefore refuse the application.

FRASER JA:  I agree.

P LYONS J: I agree.

THE CHIEF JUSTICE:  The application is refused.