SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  This application for leave to appeal against sentence should be refused for the reasons given by Holmes JA.

[2]  HOLMES JA:  The applicant was convicted after a trial of one count of dangerous operation of a motor vehicle and now seeks leave to appeal against his sentence of 18 months imprisonment, with a parole release date after nine months.

The offence

[3] The offence arose in the context of unexplained animosity between the applicant and a man named Hartig, with whom he had previously worked.  According to Hartig, the applicant abused him one afternoon as he rode his scooter past the applicant’s house in Caloundra on his way to a visit a friend.  He responded by stopping and pretending to take pictures of the applicant with his mobile phone before driving off.  On his return journey, Hartig was stopped at a “Stop” sign when he saw the applicant’s car approaching from his right at 50 or 60 kilometres per hour.  The applicant turned into the street where Hartig was stationary and performed a U-turn to come up behind him.  According to Hartig, he was “revving” the motor of the car, making its tyres screech, and shouting threats to kill him. 

[4] Instead of making an intended turn, Hartig accelerated straight ahead.  The applicant followed him, still shouting threats, his car close behind the scooter.  The drivers of two nearby vehicles, seeing them approach, pulled over to the side of the road.  Hartig drove up onto the footpath to escape, stopped his scooter, dropping it to the ground, and leapt off.  The applicant, still shouting threats to kill,  mounted the kerb in his car and rammed the scooter, reversing backwards and forwards into it three or four times.  He then left his car and he and Hartig exchanged blows.  The scooter was damaged and cost $789 to repair, a sum which the applicant was ordered to pay by way of compensation.  He was also disqualified from holding or obtaining a driver’s licence for 18 months.  In a victim impact statement, Hartig said that as a result of the incident, he no longer felt safe riding a motor scooter or bicycle.

[5] The applicant, a disability pensioner, was 50 years old when he committed the offence.  He had a criminal history in New South Wales containing some minor drug offences from 1991, resulting in small fines; some offences of dishonesty dealt with in 2000, resulting in a fine and community service; and five traffic offences in the same year, four of which (apparently arising out of the same arrest) involved his driving with a mid-range prescribed concentration of alcohol while his licence was suspended and using an unregistered and uninsured vehicle, while the fifth was driving unlicensed.  His only traffic offence in this State was failing to stop at a stop sign in 2004.  Since the date of the offence in question here, he had been convicted of obtaining a financial advantage, knowing or believing that he was not eligible to receive it, and sentenced to community service.

The sentencing judge’s remarks

[6] The learned sentencing judge described the driving as dangerous, both to Hartig and to others in the vicinity.  The applicant had appeared “intent on terrifying and or injuring Hartig and/or his motor cycle”.  His Honour noted the prior convictions, although he observed that none was particularly relevant to the offending with which he was dealing.  The applicant was not entitled to the consideration he might have been given had he pleaded guilty. 

The submissions on the application for leave to appeal

[7] The applicant argued that the sentence was excessive for an offence which carried a maximum penalty of three years.  He submitted by reference to previous decisions of this Court, R v Tufuga & Kepu; ex parte A-G (Qld),[1] R v Theuerkauf & Theuerkauf; ex parte A-G (Qld),[2] R v Hillier[3] and R v Dean,[4] that his conduct warranted a sentence of between six and nine months, with release on parole halfway through.  It had involved only a short period of time and distance and was directed at only one person.  Although he had used his car to run Hartig off the road, once that was achieved he did not try to pursue him any further.

[8] The respondent submitted that the applicant was a mature man with a criminal history and could not expect the leniency given to young offenders without previous convictions.  The learned sentencing judge had properly regarded his driving as dangerous, not only for Hartig but also for people in the area.  Taking into account relevant factual differences, it could be seen that Hillier, Tufuga & Kepu and Theuerkauf all supported the sentence imposed.

Comparable authorities

[9] In R v Tufuga & Kepu, the respondent Kepu pleaded guilty to dangerous operation of a motor vehicle, as well as assault and wilful damage offences.  He and his passenger, Tufuga, had been travelling along the south-east freeway when another vehicle cut in and out of their lane, clipping their vehicle, and then proceeded to travel close behind, causing another impact when Kepu braked.  Only minor damage was caused, but Kepu followed the other vehicle and drove alongside it on a two-lane road, trying to force it to stop.  Thereafter, Tufuga smashed the car’s windscreen and they continued their pursuit of it until it stopped, when they assaulted the driver, a passenger and a traffic controller who sought to intervene. 

[10]  The most significant of Kepu’s offences was assault occasioning bodily harm in company: the driver of the other vehicle had been dragged out and kicked while he was on the ground.  It attracted a sentence of two years imprisonment, suspended after five months.  He was sentenced to 12 months imprisonment, also suspended after five months, on the dangerous operation count and lesser sentences on the remaining counts.  The Attorney-General’s appeal was dismissed.  The Court regarded the 12 month sentence imposed on Kepu as justifiable, although towards the lower end of the applicable range, particularly given the facts that no-one had been seriously injured and he had excellent references, a good work history and no previous convictions.

[11] R v Theuerkauf & Theuerkauf was, again, an Attorney-General’s appeal.  The respondents were brothers, Clint and Jason Theuerkauf; it is the sentence of Clint Theuerkauf, who pleaded guilty to two counts of dangerous operation of a motor vehicle, which is relevant here.  He and his brother had had an altercation with an elderly man on whose cattle property they had been driving at speed.  Clint Theuerkauf reversed and accelerated his vehicle towards the property owner, who threw a steel pin at its windscreen.  The man was struck by the vehicle’s bull-bar and fell to the ground; Theuerkauf drove again at him and, despite his attempts to roll away, hit his left shoulder with the front tyre.  He ended up under the vehicle and was saved from further harm by the intervention of a friend.  His physical injuries were not significant, and would have resolved after about a week, but he was left with some loss of confidence and emotional stability.

[12]  Those two instances of driving at the complainant seem to have been the foundation of the two counts against Clint Theuerkauf, although it was also alleged that he had used a spot light to blind following police during another episode of dangerous driving by his brother.  Theuerkauf, aged 20 at the time, had one relatively minor previous conviction for possession of drugs, utensils and tainted property and an extensive traffic history, including five speeding convictions.  At first instance, a sentence of 12 months imprisonment, to be served by way of an intensive correction order, was imposed on him.  That sentence was set aside on the Attorney-General’s appeal, by which stage he had served three months of the twelve month term.  But for that fact, this Court said, three years imprisonment would have been the appropriate head sentence.  Theuerkauf was instead sentenced to imprisonment for two years and six months, suspended after 12 months.

[13]  In R v Hillier, the applicant was convicted, on a plea of guilty on an ex officio indictment, of one count of dangerous operation of a motor vehicle and was sentenced to 18 months imprisonment, to be served cumulatively with a sentence he was already serving.  That case involved a police chase over a distance of eight kilometres in which the applicant travelled at speeds of up to 150 kilometres an hour, ignored a “Stop” sign and overtook other vehicles dangerously, on occasion forcing oncoming vehicles off the road.  He had an extensive criminal history for offences of dishonesty, drug offences, traffic offences and breaches of bail.  This court described the driving as warranting a sentence of 18 months imprisonment, notwithstanding that it was to be served cumulatively on the two year balance of an earlier sentence.

[14] R v Dean also involved a police chase.  The applicant travelled 10 kilometres over the speed limit, veered onto the wrong side of the road, drove through a “Stop” sign without stopping` and finally collided with a gate.  He had two passengers, one his child.  He had a traffic history which had resulted in the suspension of his licence on a number of occasions.  After a trial, he was sentenced to nine months imprisonment, suspended after one month, and disqualified from holding or obtaining a driver’s licence for a period of four years.  He sought leave to appeal only against the disqualification; not surprisingly, given the lenience of the sentence.  The court reduced the length of the disqualification from four years to three, but said nothing as to the adequacy or otherwise of the other components of the sentence. 

Discussion

[15]  It is not possible to determine the applicant’s precise intent (the learned judge spoke of alternatives of intending to injure Hartig or damage his scooter), but it is clear that he meant to terrify Hartig; that Hartig believed, with good reason, that he was at risk of injury; and from the manner of driving, that he indeed was.  So, potentially, was any member of the public – approaching driver or pedestrian on the footpath – unlucky enough to get caught up in the incident.  (The evidence was that the footpath was regularly used by high school children heading for a fast food restaurant and elderly people walking to a bowls club.)

[16] Hillier and Dean are of limited assistance as comparable authorities because each involved a police chase rather than the use of a vehicle against a particular individual; Dean particularly so because the adequacy of the nine months imprisonment imposed on him was not the subject of argument in the appeal.  In the present case, the aspect of risk to the public was much more limited than in the police chase cases because the dangerous driving took place over a very limited distance, probably a block. 

[17] Tufuga & Kepu and Theuerkauf & Theuerkauf are more relevant because they, like the present case, involved the use of a vehicle as a means of causing fear to an individual.  It is of some significance that the Court described Kepu’s sentence of 12 months imprisonment as “towards the lower end of the applicable range”.  The aggression involved in Kepu’s driving was not as great as that here and must be seen in the context of the more serious offence in that case, assault occasioning bodily harm, attracting two years imprisonment.  I do not think it supports the submission that a head sentence of 18 months imprisonment was excessive.  Clint Theuerkauf was only 20 years old; this applicant, by contrast, was a man of mature years who had not the excuse of youthful stupidity.  Of course, the distinguishing feature was that Theuerkauf actually harmed his victim physically, but in view of the court’s intimation that a three year imprisonment would have been a proper head sentence for his conduct, it is difficult to see that 18 months imprisonment in the present case was out of any proper range of sentencing; albeit at the high end.

Order

[18]  I would refuse the application for leave to appeal against sentence.

[19]  DAUBNEY J:  I respectfully agree with the reasons for judgment of Holmes JA and would refuse the application for leave to appeal against sentence.