R v Murphy[2009] QCA 93

SUPREME COURT OF QUEENSLAND 

[1]  KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA.  I agree with his Honour’s reasons and with the order proposed by his Honour.

[2]  FRASER JA: On 3 December 2008 the applicant was convicted on his plea of guilty to an offence against s 328A of the Criminal Code 1899 (Qld) of dangerous operation of a motor vehicle causing death and causing grievous bodily harm.  He was sentenced to three and a half years imprisonment, with the imprisonment suspended after 12 months for an operational period of four years.  The sentencing judge ordered that the applicant be disqualified absolutely from holding a driver's licence.

Circumstances of the offence

[3] Shortly after 6.00 pm on 21 February 2007 the applicant, a 21 year old man, was driving his car in a northerly direction on the Mt Lindsay Highway, at about 90 kms per hour.  His cousin Fraser Witana, a 20 year old man, was in a rear passenger seat.

[4] The applicant held only a learner's permit and he did not have a licensed driver next to him.  The car did not display a learner's plate.

[5] At the point of collision the Mt Lindsay Highway was a dual carriageway and the speed limit was 90 kph.  There were double unbroken centre lines.  The visibility was normal, or, in the prosecutor's words, it was "dusk but still there was a fair amount of daylight". 

[6] The applicant drove his car at a speed which was no greater than 90 kph (according to the prosecutor) and more than 80 kph but less than 90 kph (according to defence counsel). 

[7] The prosecution case, which was not challenged by defence, was that the applicant allowed his car to drift to the outside of his lane at a point where the highway curved to the applicant's right.  When the applicant attempted to correct the path of his vehicle he over-steered to the right, causing his car to cross the double unbroken centre line markings and to drive into the path of an oncoming vehicle.  That other vehicle was driven by Philip Thorley, a 54 year old man, whose wife, Sharon Thorley, was sitting with him in the front passenger seat.  He was driving at about 90 kph. 

[8] There was a head-on collision and both vehicles ran off the highway into an embankment.  A second vehicle following Mr and Mrs Thorley's car took evasive action to avoid the collision and the driver of that other vehicle was uninjured. 

[9] Philip Thorley and Fraser Witana died as a result of injuries they received in the collision.  Sharon Thorley sustained life threatening multiple injuries, from which she has been left with significant disabilities. 

[10]  In a recorded interview the applicant admitted that he was the driver and caused the accident.  He said that an animal crossed the road but he did not contend that it excused him from responsibility for the accident.  No other witness saw any animal on the road. 

The applicant's personal circumstances

[11]  The applicant was 21 years old at the time of the offence and 22 years of age when sentenced.  He was of good character, which was testified to by strong references.  He had no prior criminal record or traffic history.  He cooperated fully with the authorities and entered an early plea of guilty (after the Crown abandoned an earlier alleged circumstance of aggravation that at the time of the offence the applicant was adversely affected by an intoxicating substance).  The applicant was shattered by the horrendous consequences of his offending.  He wrote a letter, to be read out to the Court, expressing his deep remorse for the suffering he had caused.  He acknowledged the incalculable pain and suffering he had caused to Mrs Thorley and to the families and friends of the victims of his offence.  He was traumatised by having caused the death of Fraser Witana, his cousin and closest friend.

Sentencing remarks

[12]  The sentencing judge made no positive finding whether there was or was not an animal on the road.  The judge sentenced the applicant on the footing that he was driving his car at a speed which was clearly excessive in the sense that he was not able adequately to react to the situation which arose, whether that be by way of avoiding an animal or by taking the corner appropriately.

[13]  The sentencing judge described the circumstances of the offence, the applicant's personal circumstances, the tragic deaths and grievous bodily harm to the victims of the applicant's offending, and the traumatic consequences of those events for the victims’ friends and family.  The sentencing judge did not accept the submissions that the case was one of momentary inattention but did accept that it was a case involving momentary misjudgement, rather than any recklessness or deliberateness. 

[14]  The sentencing judge quoted the following statement from McMurdo P’s reasons in R v Wilson [2008] QCA 349 at [26]:

“More significantly, the comparable decisions of this Court to which we have been referred, do not support a sentence higher than about three years imprisonment for an offence of this kind, involving a serious error of judgment over a short period by someone with a concerning traffic history but without prior convictions and without the exacerbating factor of intoxication, even after a trial: see R v Gruenert; ex parte A-G (Qld) [2005] QCA 154; R v Manners; ex parte A-G (Qld) (2002) 132 A Crim R 363; [2002] QCA 301; R v Price (2005) 43 MVR 573; [2005] QCA 52; R v Hart [2008] QCA 199 and R v Newman [1997] QCA 143.”

[15]  The sentencing judge regarded that as indicating a head sentence of around the three year mark, but he remarked also that the fact that there were two people killed in the present case was an aggravating feature which required a somewhat higher head sentence than had been suggested by the Crown or by defence counsel.  (The prosecutor and defence counsel had submitted that the range for the head sentence was between 18 months and three years imprisonment.  The prosecutor submitted for a sentence in the higher end of that range and one that involved a period of actual custody.  Defence counsel submitted that a sentence of 18 months to two years imprisonment was appropriate, that the sentencing judge might impose a parole release date ranging from immediate parole release to four months, but that the judge should exercise his discretion by ordering an immediate parole release date.)  The sentencing judge also referred to Keane JA's statement in R v Gruenert; ex parte A-G (Qld) [2005] QCA 154 at [16] that, "The considerations of deterrence, and of the gravity of the consequences involved in the offence, mean that it will be a rare case that does not attract a custodial term." 

[16]  The sentencing judge described the applicant's favourable personal circumstances, including that he had undertaken self-rehabilitation and expressed genuine remorse.  The judge accepted that it was unlikely there was a need for personal deterrence but considered that there was a wider need for general deterrence and a need for victims to feel that the courts have taken their grief and their views seriously.

[17]  Immediately before passing sentence the sentencing judge referred again to the fact that the applicant’s standard of driving fell below that which was acceptable under all of the circumstances in that the speed at which he was driving was not such that he could safely recover from the difficulty which was caused either by an animal coming across the road or the applicant’s car drifting off the side of the road.

The applicant’s contentions in the appeal

[18]  The applicant contended that the sentence was manifestly excessive for two reasons, first, that the sentencing judge placed too much weight on the outcome of, rather than the act of, the dangerous operation of a vehicle, so that the sentencing discretion miscarried and, secondly, that the sentence was out of line with the general sentencing trend in comparable cases considered by the Court.

Discussion

[19]  There is no substance in the applicant’s first contention.  The judge sought to summarise the defect in the applicant’s driving as a “momentary misjudgement”.  That is an accurate enough précis, but more importantly there is no indication that the sentencing judge failed to take into account his more extensive findings concerning the objective dangerousness of the applicant’s driving: the judge twice described and he plainly took into account the relevant respects in which he had found that the applicant drove dangerously.  The applicant does not challenge those findings.  I accept that it may be inferred that the sentencing judge regarded a term of imprisonment of three and a half years as appropriate, rather than the term of three years the judge thought was otherwise consistent with R v Wilson, largely because the applicant's offence resulted in even more devastating consequences than were present in R v Wilson.  I discuss later in these reasons the appropriateness of the overall sentence imposed, but the point here is that the sentencing judge did not err by significantly increasing the length of the term of imprisonment that was otherwise appropriate to take into account the fact that the consequences of the applicant's dangerous driving were substantially worse than in R v Wilson.

[20]  Of course any such notional increase could not be the result of some pseudo-arithmetical exercise, but it does not understate the seriousness of the facts of R v Wilson to say that this was an even worse case.  Even though the extent and severity of the consequences of an accident caused by dangerous driving are typically unforeseen (though not unforeseeable), and both unintended and outside the control of an offender who is not guilty of deliberate misconduct, the consequences can matter a great deal in the determination of the appropriate punishment.  There is ample authority for that proposition.  Reference might be made, for example, to R v Balfe [1998] QCA 14, in which that approach is confirmed in the particular context of an offence against s 328A.  But it is hardly necessary to refer to authority when the terms of s 328A themselves provided (at the time of the offence on 21 February 2007)[1] for a maximum term of imprisonment of seven years for this offence of dangerous driving causing death or grievous bodily harm (where, as here, there are none of the specified circumstances of aggravation) whereas dangerous driving without any such consequence carried the much lower maximum penalty of three years imprisonment. 

[21]  In support of the applicant's second contention, his counsel undertook a thorough analysis of the following decisions:  R v Harris, ex parte A-G (Qld) [1999] QCA 392; R v Hart [2008] QCA 199; R v Gruenert, ex parte A-G (Qld) [2005] QCA 154; R v Price [2005] QCA 52; R v Manners, ex parte A-G (Qld) (2002) 132 A Crim R 363, [2002] QCA 301; and Rv Balfe [1998] QCA 14.

[22]  As McPherson JA observed in R v Price [2005] QCA 52, since the Court of Appeal's decision in November 2002 in R v Wilde, ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501 there had been a marked upward trend in the penalties imposed in cases of dangerous driving causing death or grievous bodily harm.  More significantly for present purposes, in none of the decisions cited by the applicant’s counsel were the consequences of the dangerous driving as far reaching and as shocking as they were in this case.  In these circumstances, and in light of the extensive analyses of the earlier decisions in more recent authorities, it is necessary only to discuss those more recent authorities.

[23]  In R v Hart [2008] QCA 199, Keane JA, with whose reasons de Jersey CJ and I agreed, observed that a number of earlier decisions of this Court "proceed on the basis that the death of a human being as a result of dangerous driving is so serious that a term of imprisonment of at least 18 months should be expected save in exceptional cases.  Usually such a sentence will involve actual custody." (It is relevant here to note that Keane JA cited R v Gruenert, ex parte A-G (Qld) [2005] QCA 154 and R v Vance; ex parte A-G (Qld) [2007] QCA 269, both of which concerned sentences imposed before the maximum penalty for the present offence was increased from seven to 10 years.)  It is to be emphasised that, although a non-custodial sentence may be the just sentence in a particular case, R v Hart is authority for the proposition that a minimum term of 18 months, usually involving some period of actual custody, is to be expected for this offence where a death results from it.  R v Hart is not authority for the proposition that a substantially longer term of imprisonment is outside the sentencing range where the facts of a particular case call for it. 

[24] R v Hart was a case in which the dangerous driving caused the death of one person and grievous bodily harm to another.  There were of course other points of distinction.  It is not appropriate or practicable to devise some fixed scale to take into account the relative seriousness of shocking cases of this kind, but for the reasons I have given it is right to take into account that the consequences in this case were more devastating than in R v Hart or any of the other decisions cited to the Court.

[25]  In R v Gallaher [2004] QCA 240, the Court rejected a contention that a sentence of three and a half years imposed after a trial (on an offender who was not remorseful and had a bad traffic history and a criminal record) was manifestly excessive.  That offender had driven over a crest on a rural road at an excessive speed for the conditions of 80 kph, which was characterised as “extremely dangerous”, driven onto the incorrect side of the road, and collided head on with an oncoming vehicle.  A passenger in that vehicle died as a result of the collision.  In view of that decision, and despite the applicant’s much more favourable personal circumstances, it is difficult to accept the proposition that the sentence in this case, in which the consequences of the dangerous driving were very much worse, was manifestly excessive.

[26]  I earlier reproduced the obiter dictum in McMurdo P’s reasons in R v Wilson to the effect that the authorities do not support a sentence higher than about three years imprisonment for an offence involving a serious error of judgment over a short period by someone with a concerning traffic history but without prior convictions, even after a trial.  It is true that the applicant had the benefit of a plea of guilty and that his personal circumstances were very much more favourable than Wilson’s (although it is material that the applicant was driving without complying with the terms of his learner’s permit), but the sentencing judge’s approach was to take those factors into account largely in the early suspension of the imprisonment.  It is again a significant point of distinction here that McMurdo P made the quoted statement in a case in which the consequences of the applicant’s offence were much less extensive than they were in this case.

[27]  It is a personal tragedy for the applicant and for his family and friends that his unintended and momentary misjudgement has led not only to the death of his cousin but also to a lengthy term of imprisonment, with a substantial period in actual custody, and even though such a severe penalty is not required for the purposes of rehabilitation or personal deterrence.  But the sentencing judge was obliged to take other factors into account.  The terrible fact is that the applicant’s dangerous driving led to two deaths and to the grievous bodily harm of a third person.  That and the importance of general deterrence in sentencing for this frequent offence called for a term of imprisonment and a significant period of actual custody, despite the applicant’s compelling personal circumstances.  Although the term of three and a half years with the imprisonment suspended after 12 months was a severe sentence, I am unable to conclude that it was so excessive as to demonstrate that the sentencing judge must have strayed outside the broad sentencing discretion reposed in him.

Proposed order

[28]  I would refuse the application.

[29]  WILSON J: The application for leave to appeal against sentence should be dismissed for the reasons given by Fraser JA.