SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

[2]  FRASER JA: On 23 December 2008 the applicant was convicted on his plea of guilty of an offence against s 328A of the Criminal Code 1899 (Qld) of dangerous operation of a motor vehicle causing death, with the circumstances of aggravation that the applicant was adversely affected by an intoxicating substance and had twice previously been convicted of the prescribed offences of driving under the influence of liquor or drugs and dangerous operation of a motor vehicle.  The applicant was sentenced to seven years imprisonment, that sentence to run concurrently with sentences that the applicant was already serving.  The sentencing judge fixed the applicant's parole eligibility date as 23 April 2011, which was two years and four months after the date of sentence.  The applicant was disqualified from holding or obtaining a driver's licence absolutely.  He was convicted but not further punished for the summary offences of disqualified driving and driving whilst under the influence of liquor or a drug. 

[3] The applicant applies for leave to appeal against sentence. 

Circumstances of the offences

[4] In the afternoon of 11 June 2007 the applicant was driving his car in a northerly direction on the Bruce Highway at Morayfield.  With him in the front passenger seat was his 84 year old father.

[5] The traffic in the two north-bound lanes of the highway was light.  The applicant was initially driving in the inside lane, but he then drove into the outside lane in such a manner as to cause a car in that lane to brake to avoid a collision.  The applicant's car then swerved between the two lanes on three or four occasions before veering off to the left of the outside lane and hitting a pole. 

[6] After the applicant unsuccessfully attempted to open the front passenger door he sat in the rear seat of the car.  A number of other drivers stopped to render assistance.  The applicant asked one of those witnesses not to tell the police that the applicant was the driver because he was disqualified at the time.

[7] Emergency services personnel attended the accident and cut the applicant's father from the vehicle.  He was placed on life support because of significant chest and abdominal injuries and fractures to his spine resulting from the accident, but life support was later discontinued and he died as a result of those injuries.

[8] The applicant suffered an injury to his leg in the accident which was treated at a hospital.  A blood test revealed the presence of cannabis, ephedrine or pseudoephedrine, amphetamine and methylamphetamine.  The concentration of cannabis was of such a low level that it was not considered to have any effect on the applicant, but the concentration of methylamphetamine (.36 mg per kg) was likely to have caused an impairment of the applicant's ability safely to drive his car. 

Applicant's personal circumstances

[9] The applicant was 48 years of age at the time of the offences and he was 50 years of age when sentenced.  He had an extensive criminal history and traffic history extending over more than 30 years. 

[10] His criminal history included various offences of dishonesty and also some offences of violence for which he had been given a variety of different punishments, the most severe of which was a term of imprisonment of three years for unlawful wounding imposed in February 1997.  That and the other sentences imposed upon the applicant were insufficient to deter him from further violent and dishonest offending, much of which seems to have been associated with his excessive consumption of alcohol and, more recently, his use of illegal drugs. 

[11] Of particular relevance here are the term of imprisonment of six months imposed upon the applicant in October 1981 for offences committed in April of that year of dangerous driving, unlawful use of a motor vehicle, driving a motor vehicle whilst under the influence of liquor or a drug, and driving without a licence, and a term of imprisonment of six months with probation of two years imposed upon the applicant on 14 March 2001 for offences including the dangerous operation of a vehicle on 9 March 2001. 

[12] After some subsequent convictions, on 1 April 2005 the applicant was convicted of drug offences committed between late 2003 and early 2004 and sentenced to a term of imprisonment of six months, to be served cumulatively upon imprisonment he was then serving. 

[13] After the applicant had committed the subject offences on 11 June 2007, he was convicted and sentenced on 25 June 2007 for drug offences he had committed on 5 May 2007 and sentenced to probation for 18 months.  The applicant's traffic history then records that on 6 September 2007 he was sentenced to 12 months imprisonment, with the term of imprisonment to be wholly suspended for a period of three years, for an offence of disqualified driving on 22 July 2007.

[14] On 19 December 2007 the applicant was convicted of drug offences he committed after the subject offence, between July and September 2007, for which the sentences included three months imprisonment.  He was also found to have breached the conditions of the suspended sentence imposed on 6 September 2007 for driving whilst disqualified, that suspended sentence was activated and he was sentenced to 12 months imprisonment, with a parole release date of 19 April 2009.  On 27 March 2008 the applicant was re-sentenced for breach of the probation order imposed on 25 June 2007 and he was sentenced to 15 months imprisonment, again with a parole release date of 19 April 2009.

[15] The applicant's traffic history was appalling.  It contained some 17 entries for disqualified driving and some 10 entries for driving under the influence of liquor or a drug (or with an excessive blood alcohol content).  He continued to disregard his obligations even after he had committed the subject offence: the conviction of 6 September 2007 for disqualified driving to which I earlier referred was for an offence committed less than six weeks after the subject offence.  The traffic history also records that the applicant drove at an excessive speed on 10 July 2007 and again on 5 September 2007. 

Sentencing remarks

[16] The sentencing judge referred to the circumstances of the offences and the applicant's "very bad" criminal and traffic histories and took into account that the death of the applicant's father had a devastating effect upon the applicant’s family. 

[17] The judge also took into account in the applicant’s favour that the driving occurred over a short distance only; that the applicant's culpability in driving under the influence of drugs consumed some days earlier was not as bad as that of a person who drives immediately after consuming an intoxicating substance; that the applicant was the carer for his father and the accident occurred whilst the applicant was taking his father out for a drive; that the applicant was depressed (he was subsequently diagnosed and has been treated for depression in prison); that the applicant was himself injured in the accident; that he lost his own father; that the offences the applicant committed after the subject offence related to his taking of drugs to overcome the sadness he experienced as a result of his father's death; and that the applicant was very remorseful. 

[18] The sentencing judge described the indictable offence as a "bad case" having the features of driving without a licence and under the influence of an intoxicating substance, and as having caused the death of the applicant's father against the background of the applicant's bad criminal and traffic histories.  The judge accepted that by the time of the subject offence the applicant had become something of a menace to the community.  The judge took into account that the community was entitled to some degree to expect protection and that general deterrence was also important. 

[19] The sentencing judge was satisfied that the appropriate range of punishments for the offence was between seven and nine years imprisonment, rather than the range contended for by defence counsel of between six to seven years imprisonment.  He took into account the factors advanced in favour of the applicant by fixing upon a sentence at the low end of the range, of seven years imprisonment, by ordering that the sentence run concurrently with sentences the applicant was presently serving, and by fixing a parole eligibility date after the applicant had served one third of the term of imprisonment.  (That approach to fixing the parole eligibility date had been advocated both by defence counsel and by the prosecutor). 

The proposed grounds of appeal

[20] The applicant articulated three grounds of the proposed appeal in his application and in his outline of submissions.

[21] The applicant first contends that the "totality principle" was not applied correctly by the sentencing judge.  This was the only one of the applicant's contentions which he pursued in his oral submission at the hearing of the application.  There can be no substance in this contention given that the sentencing judge did not impose any additional sentence for the summary offences and ordered that the only sentence imposed, that of seven years imprisonment for the offence of dangerous driving causing death, was to be served concurrently with the imprisonment already being served by the applicant under earlier sentences for other offences.  Despite the applicant's assertion that his offending after the subject offence arose because he was self-medicating with illegal drugs to deal with his depression resulting from his having caused his father's death, it may well have been open to the sentencing judge to order instead that the subject sentence be served cumulatively upon the imprisonment, or part of the imprisonment, earlier imposed for the other offences.

[22] The applicant also argues that he "should be entitled to consideration of time served in custody at the time of sentencing".  This argument similarly lacks merit.  A pre-sentence custody certificate was tendered and it stated, consistently with the applicant's criminal history to which I have referred, that the whole of the period during which the applicant was held in custody before being sentenced for the subject offence was attributable to earlier sentences of imprisonment for other offences.  It follows that the sentencing judge was not empowered to declare that the pre-sentence custody was time served under the subject sentence: see Penalties and Sentences Act 1992 (Qld), s 159A(1).  The sentencing judge nevertheless took that imprisonment into account in arriving at a just sentence.  For the reasons I have already given I am not persuaded that he erred in that regard.

[23] The second proposed ground of appeal is that the term of imprisonment "did not reflect in proportion that the accused's father was in fact the victim in this offence".  The applicant contends in his outline of submissions that it was not sufficiently taken into account that it was the applicant who was required to give permission for life support to be discontinued to his father of whom the applicant was then the primary carer.  However, the sentencing judge referred to the fact that the applicant had been his father's carer and expressly accepted defence counsel’s submissions about the effects the death had upon the applicant and his family, which included that the applicant was the primary person involved in the decision to turn off his father's life support system about a month after the accident.

[24] The applicant also contends that it was "self-evident" that at the time of the accident he was run down with the extent of his duties to his father, when the applicant was also in full time employment as a bricklayer.  This contention is said to support the proposition that, whilst the concentration of amphetamines in his system might have affected his driving, the applicant did not think so at the time and the applicant went to sleep because of fatigue.  However, at the sentence hearing defence counsel conceded that the applicant was suffering from the effects of the drug at the time he drove his father, and there is no basis for thinking that the sentencing judge overlooked defence counsel's submission that the immediate cause of the accident was that the applicant fell asleep while driving. 

[25] The applicant refers also to the fact that he is a patient of the Corrective Services' mental health psychiatrist because, he argues, of the effect upon him of his having caused his father's death.  That was expressly taken into account by the sentencing judge. 

[26] The third proposed ground of appeal is that the overall length of the sentence was excessive.  The applicant contends in his outline of submissions under this heading that he received a compression fracture of the vertebrae, commonly known as a broken back, the effect of which is that he cannot be employed in the building trade or in any other heavy physical employment; and he argues that the accident’s cumulative effect on his life in all aspects more than punishes him for his offence and will do so for the rest of his life. 

[27] There appears to have been some confusion at the sentence hearing about the nature of the injury suffered by the applicant in the accident.  Defence counsel initially contradicted the prosecutor's submission that the applicant's father had suffered a spinal injury and submitted that in fact it was the applicant who had suffered the spinal injury, but the transcript records a subsequent statement by the prosecutor that defence counsel had handed the prosecutor a hospital report which indicated that the deceased had sustained a compression fracture of the thoracic spine.  Defence counsel made no further submission on that topic.  He made no submission that the applicant had suffered an injury that left the applicant with a diminished earning capacity.

[28] The sentencing judge did take into account defence counsel’s submission that the applicant suffered an injury in the accident.  No evidence was placed before the sentencing judge or this Court to support a proposition that the applicant in fact sustained a permanent and significant diminution in his capacity to earn income after his release from prison.  Accordingly I reject the contention that the sentencing judge erred in this respect.

[29] I would add that I would not regard the sentence as manifestly excessive even taking into account the particular injury and its effects for which the applicant now contends.  Given that the sentence is within the range of sentences proposed by the applicant’s counsel at the hearing, the applicant’s contention that it was manifestly excessive is a surprising one: see R v Carter [2008] QCA 226 at [19].  The applicant did not point to any support for that contention in the comparable decisions of this Court.

[30] The maximum penalty for the indictable offence here (which post-dated the commencement on 20 March 2007 of s 4 of the Criminal Code and Civil Liability Amendment Act 2007 (Qld); Act No 14 of 2007) was 14 years imprisonment.  The sentence imposed finds support in R v CAN [2009] QCA 59, in which an offender was sentenced to seven years imprisonment for dangerous driving causing death with a circumstance of aggravation that he was adversely affected by an intoxicating substance.  That offender drove even more dangerously, for a longer period and over a longer distance, but his criminal and traffic histories, although bad, were not as extensive as the applicant’s record: that is reflected in the additional circumstance of aggravation charged against the applicant.  The sentence is consistent also with this Court’s decisions in R v Hey; ex parte A-G (Qld) [2006] QCA 23 and R v Bains [2008] QCA 247.  (In those cases the maximum penalty was 10 years imprisonment.)

[31] In light of the applicant's very bad criminal and traffic histories, and particularly his repeated offences of dangerous driving and driving under the influence of liquor or a drug, general deterrence and especially the protection of the community were important factors in this sentence.  The sentence of seven years imprisonment, with the early parole eligibility date and the order that the sentence run concurrently with imprisonment already being served by the applicant, was within the range of sentences open to the sentencing judge.

Order

[32] I would refuse the application.

[33] WHITE J: I have read the reasons for judgment of Fraser JA and agree with his Honour that the application for leave to appeal against sentence should be refused for the reasons expressed by his Honour.