SUPREME COURT OF QUEENSLAND

[1] MUIR JA: I would also order, for the reasons given by Fraser JA, that the application be refused.

[2]  FRASER JA: The applicant was convicted on his pleas of guilty of dangerous operation of a vehicle causing grievous bodily harm to Dong Suk Lim and Doo-Shik Shin, with the circumstance of aggravation that the applicant was adversely affected by alcohol, and a summary offence of driving under the influence of alcohol.  On 14 June 2011, the applicant was sentenced for the dangerous driving offence to four years imprisonment, suspended after 12 months for an operational period of four years.  For the summary offence the applicant was sentenced to a concurrent term of three months imprisonment.  The applicant was also disqualified from holding or obtaining a driver’s licence for four years.

[3] The applicant seeks leave to appeal against the sentence imposed for the dangerous driving offence.  The grounds of the application are that the sentence was manifestly excessive and that the sentencing judge erred in the exercise of the sentencing discretion as to the applicable range.

Circumstances of the offence and the investigation

[4] At the sentence hearing the applicant’s counsel did not challenge the prosecutor’s description of the circumstances of the offence.  On 18 December 2009 the applicant had dinner in the city with three friends, the complainants Lim and Shin, and Sun Ho Kang (known as “Shane”).  One of them was due to return to South Korea and they were celebrating.  After dinner, the applicant drove the group to a karaoke bar in Sunnybank, where they all consumed alcohol.  In the early hours of 19 December 2009 they left the karaoke bar.  The applicant drove his car.  Shin was in the front passenger seat and Lim and Shane were in the back seat.  After driving for about four kilometres, the applicant failed to negotiate a roundabout at the end of Hill Road.  His car struck the kerbing in the centre of the roundabout.  The car became airborne and it collided with a brick retaining wall forming the boundary of a property with a dwelling house. 

[5] The prosecutor submitted that the absence of tyre marks on the road indicated that the applicant did not brake heavily before hitting the roundabout.  A police forensic investigator analysed tests about the behaviour of similar model cars and formed the opinion that the applicant’s car would have been travelling at about 56 kilometres per hour at the time of impact, but the applicant told paramedics at the scene of the accident that he thought that he had been travelling faster than 60 kilometres per hour.  About two hours after the collision the applicant was found to have a blood alcohol concentration of 0.171 per cent.

[6] There was no challenge to the prosecutor’s submission that the applicant drove in a grossly intoxicated state and at a speed which was excessive in the circumstances, and the sentencing judge found that there was speed associated with the applicant’s offending and that he was intoxicated.  The applicant’s submission that the accident did not involve excessive speed cannot be accepted in light of the uncontested facts at the sentencing hearing and the sentencing judge’s findings.

[7] Shin and Lim sustained life threatening injuries in the accident.  Shin’s injuries included a torn mesentery which caused sections of his intestines to die from a lack of blood supply.  He would have died from those injuries but for emergency surgery, in which sections of his bowel were removed.  He also suffered dislocation of his upper cervical spine, rupturing of his abdominal muscles, tearing of the inner wall of the lower aorta, a torn chest muscle and fractures to his lower back.  He was in intensive care for about three weeks and remained in the hospital until 3 February 2010.  He wore a halo brace for his cervical spine injury.  Lim suffered multiple injuries to his bowel and a nearby artery.  He had colonic serosal tears, a fractured vertebrae in the lumbar region, a frontal lobe contusion of his brain, and an injury to his aorta.  The loss of blood from his bowel and aortic injuries was life threatening.  145 centimetres of his small bowel was resected, his lumbar fracture was surgically fixed, and an aortic stent was inserted.  Like Shin, Lim was in intensive care for about three weeks.  He remained in hospital until 21 January 2010. 

[8] The prosecutor told the sentencing judge that Shin and Lim had not been overly cooperative with the Crown and had not provided information about their injuries despite requests.  However, the prosecutor accepted that the sentencing judge should not infer that either man had suffered permanent injury to their health or bodily function.  The sentencing judge noted in the sentencing remarks that he did not infer that the victims had not all recovered.

[9] Shane suffered a fractured arm, sprained ankles and multiple lacerations.  He was treated in Korea.  The applicant suffered what his counsel at sentence described as a “grade 1 splenic injury” which did not require surgical intervention.  He made a full recovery. 

[10]  The applicant was charged on 23 February 2010.  He declined to participate in a police interview.  The matter proceeded by way of a committal hearing in which there was cross-examination of police witnesses.  The cross-examination was directed primarily to the issue of proof that the applicant was the driver of the vehicle and compliance by police with the Police Powers and Responsibilities Act 2000 (Qld).  After the applicant was committed for trial a statement was obtained from the paramedic at the scene to whom the applicant had admitted that he was the driver of the vehicle and he had been travelling in excess of 60 kilometres per hour.  The matter was then listed for sentence.  The prosecutor accepted that the applicant’s plea of guilty was a timely plea and it was treated as such by the sentencing judge. 

The applicant’s personal circumstances

[11]  The applicant was 26 years of age at the time of the offences.  He had no criminal history but he had a traffic history of seven speeding convictions since 2004, including one committed whilst he was on bail for the present offences.  The applicant otherwise had favourable personal antecedents.  He was educated in Korea, studied at Seoul University, and served in the Korean Army.  Having come to Australia as a student, he subsequently returned on a small business visa and had been operating his karaoke bar business in Brisbane for two years.  The sentencing judge accepted that there was a risk that the applicant might be deported as a result of being sentenced to a term of imprisonment of 12 months or more. 

[12]  The sentencing judge accepted that the applicant felt shame for what had happened.  There was no challenge to the submissions on the applicant’s behalf that: he was deeply embarrassed and ashamed for his family; he felt that he had let down the whole Korean community; and he felt great shame for the problems that he had caused to his friends, his family, himself, and the Korean community generally.  The applicant expressed great sorrow and remorse to all involved.  He was very concerned for the injuries he had caused his friends.  He had expressed his sorrow and remorse both to them and to persons who gave references for use at the sentence hearing. 

[13]  Those references strongly suggested that the applicant’s offence was out of character.  The referees included a judge of the Seoul High Court, a lawyer, the Chief Superintendent at Seong-Dong Police Department in Seoul, a nun from the Seoksudong Catholic Church in Suwon District, the Chief Inspector of the Guri Police Department in South Korea, and the Deputy Consul General of the Republic of Korea in Sydney.  Each referee spoke of the remorse expressed by the applicant, his otherwise good character, and that he had demonstrated care and support to those injured in the accident.

[14]  Shin and Lim themselves referred to the applicant’s remorse.  Despite the serious injuries they suffered as a result of the applicant’s dangerous driving, they maintained their friendship with the applicant after the accident.  Lim referred to the applicant’s assistance to him in setting up a small business.

[15]  The sentencing judge rightly described the references as “very impressive”.  The sentencing judge referred to the applicant’s subsequent speeding conviction but found that the weight of the evidence favoured a finding that the applicant had been very remorseful for what had happened. 

Consideration

[16]  The sentencing judge was referred to R v Johnson,[1] in which the Court varied a sentence of imprisonment of five years, suspended after 18 months to a sentence of four years, suspended after 12 months, for an offence of the kind committed by the present applicant.  That offender’s driving was objectively more dangerous, even though, as the applicant’s counsel accepted, the applicant’s dangerous driving was not constituted merely by inadvertent momentary inattention.  The offender drove around a housing estate doing “burnouts”, subsequently exceeded the speed limit on a main road of 60 kilometres per hour by driving at speeds between 80 and 120 kilometres per hour, crossed double white lines to overtake two cars causing a driver travelling in the opposite direction to take evasive action, lost control of the vehicle and collided with a tree.  One of the two complainants suffered an “extremely severe” brain injury, as well as a broken pelvis and broken left arm.  That complainant had a slow and painful rehabilitation, and was left with an extensive disability. 

[17]  Furthermore, the offender had driven a motor vehicle while under the influence of alcohol (0.07 per cent) a few weeks before the offences and was on bail for that offence at the time of the offence.  However, the Court took into account that the offender was very young (he was only 17 years of age) and had been diagnosed with adjustment disorder and mild depression.  His blood alcohol concentration (0.135 per cent at a time which was possibly about an hour after the accident) was lower than the present applicant’s blood alcohol concentration (0.171 per cent about two hours after the accident).  Otherwise the circumstances of R v Johnson were similar to the circumstances of this case. 

[18]  In light of that decision, the contention that the sentence was manifestly excessive cannot be sustained.  The fact that more lenient sentences were imposed in other broadly comparable decisions is not to the point.  There were distinguishing features in each of those decisions.  For example, some of those decisions (R v Shedlock; exparte Attorney General,[2] R v Wurzbacher,[3] and R v Hoffman; exparte Attorney-General of Queensland[4]) have less relevance because the sentences under consideration had been imposed before the commencement of the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld).[5]  That Act introduced the current form of s 9(3) of the Penalties and Sentences Act 1992 (Qld), which relevantly provides that the principles in s 9(2)(a) (that a sentence of imprisonment should be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable) do not apply in relation to an offence that involved the use of violence or that resulted in physical harm to another person.  When R v Cusak; exparte A-G (Qld),[6] R v McGuire; exparte A-G,[7] and RvKirby; ex parte A-G (Qld)[8] were decided the prevailing doctrine, since held to be erroneous,[9] was that sentences imposed in an appeal by the Attorney-General should generally be fixed at the lower end of the appropriate range.  In R v Quinn,[10] in which the imprisonment was suspended after 12 months, the applicant pleaded guilty on an ex officio indictment, only one person suffered significant injury, and the applicant had a very limited traffic history.  In R v Robinson[11] the offender’s blood alcohol concentration was only 0.06 per cent. In R v Lasrado[12] the offender was affected by prescription drugs and the maximum penalty was 10 years imprisonment, compared with the maximum of 14 years in this case.  In R v Tabakovic[13] the offender pleaded guilty on an exofficio indictment and only one person suffered grievous bodily harm.

[19]  It is not necessary to embark upon any more detailed analysis.  The applicant’s counsel properly did not press the ground that the sentence was manifestly excessive.  The circumstances here are far from being identical with those in R v Johnson, but in light of the guidance supplied by that comparable decision and the comparable decisions reviewed in it, the applicant’s sentence cannot be regarded as being outside the ambit of the sentencing discretion.  A further difficulty for the applicant in this respect is that the sentence accorded with the submission made by the applicant’s counsel at the sentence hearing.[14]

[20] The other ground of the proposed appeal was based upon a passage in the sentencing remarks in which his Honour stated that “I think the very bottom of the range as [the prosecutor] has said is four years suspended after serving 12 months’ imprisonment.”  The applicant submitted that this statement demonstrated that the applicant was sentenced upon a false premise because of the comparable decisions in which 12 months or a shorter period of actual custody was imposed for similar or more culpable driving.  In support of the proposition that this constituted a ground upon which the Court should set aside the sentence, the applicant cited the following well known passage in the judgment of Dixon, Evatt, and McTiernan JJ in House v The King:[15]

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

[21]  I accept that it would have been an error for the sentencing judge to have regarded R v Johnson as fettering the sentencing discretion,[16] but in my respectful opinion the sentencing judge did not adopt that approach.  Rather, his Honour appropriately derived guidance from that and other decisions as to the appropriate sentence to be imposed in the different circumstances of this case.  That this is so is indicated by the sentencing judge’s remark, immediately after the statement upon which the applicant relies, that “[a] sentence at that level will, in my opinion, provide adequately for the very significant mitigating features that [the applicant’s counsel] has raised.”  Furthermore, the prosecutor’s submission to which the sentencing judge adverted used the expression “the bottom of the range” as meaning the most lenient sentence which should be imposed in the particular circumstances of this case.  The prosecutor submitted that general deterrence was the most significant feature to be reflected in the applicant’s sentence, referred to the particular circumstances of the applicant’s offence, and submitted that the range of appropriate sentences was imprisonment for between four and five years, with parole eligibility or suspension after serving one third of the term.  The prosecutor referred to R v Johnson, R v Saltmarsh,[17] and R v Blackaby[18] and submitted that R v Johnson was the most comparable decision.  She referred to circumstances which had favoured leniency in R v Johnson and submitted that there were features of the applicant’s offence which were worse.  It was in that context that the prosecutor made the submission to which the sentencing judge adverted, that “the bottom of the range would be four years, to serve 12 months”.  Similarly, the applicant’s counsel referred to the particular circumstances of the applicant’s offence and his personal circumstances and submitted, also with reference to R v Johnson, that the appropriate sentence was “three and a-half to four years, more likely four, with a suspension after nine to 12 months”.

[22]  The issue about “the range” addressed in the submissions at the sentence hearing and adverted to by the sentencing judge did not concern any statement of an appropriate range in R v Johnson or any other decision.  Rather, it concerned the range of sentences which might be regarded as just in the exercise of the sentencing discretion in the distinctive circumstances of this case.  The sentencing judge was properly referred to comparable decisions which provided guidance in that respect, but it was not submitted at the sentence hearing, and his Honour did not hold, that any judicial decision fettered the sentencing discretion.

[23]  Neither ground of the proposed appeal has been established.

[24]  The evidence suggests that the applicant has made and has the potential to continue to make a substantial contribution to society, that he was genuinely remorseful for his offence, and that he has good prospects of a full and early rehabilitation.  However the offence of which the applicant was convicted is, as Peter Lyons J observed in R v Johnson,[19] an offence which is not uncommonly committed by people who are otherwise genuinely law abiding and decent citizens.  As in many other such cases, personal deterrence and rehabilitation do not loom large in the appropriate sentence here, but the sentencing judge was obliged also to take into account other considerations specified in s 9 of the Penalties and Sentences Act, including punishment, deterring other persons from committing the same or a similar offence, and making it clear that the community, acting through the Court, denounces the sort of conduct in which the offender was involved.  It was not submitted that the sentencing judge did not take the relevant principles into account or that his Honour gave undue weight to any particular consideration.

[25]  In the absence of any identifiable error in the sentencing discretion, there is no ground for the Court to vary the sentence.

Proposed order

[26]  I would refuse the application.

[27]  McMEEKIN J:  I agree with the reasons of Fraser JA and with the order his Honour proposes.