SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I agree that the application for leave to appeal should be refused for the reasons given by Chesterman JA.

[2]  CHESTERMAN JA:  On 15 June 2011 the applicant pleaded guilty in the District Court at Bundaberg to a charge of dangerously operating a motor vehicle causing death when he was adversely affected by an intoxicating substance and was excessively speeding.  The offence occurred on 24 July 2010.  The applicant was sentenced to eight years’ imprisonment.  Parole eligibility was set at three years.  The applicant was disqualified absolutely from holding or obtaining a driver licence.  He was 20 at the time of the offence and 21 when sentenced.  The applicant applies for leave to appeal against his sentence claiming it is manifestly excessive. 

[3] The driving and the death occurred at Moore Park Beach near Bundaberg.  The applicant and three friends drank at the local bowls club between about 8.00 pm and midnight.  He had driven three friends to the club in his mother’s Honda CRV.  The applicant admitted drinking between six and 12 stubbies of beer at the club.  When leaving the applicant telephoned his mother and was heard to say “I’m a bit pissed but I will be okay.”  One of the applicant’s friends offered to drive but the applicant refused the offer.  The four friends left the bowls club in the Honda which the applicant drove, with the apparent intention of taking his friends to their respective homes, the closest of which was about 300 metres away.  The applicant neglected to turn on the vehicle’s headlights.  His friends pointed out the omission and after about 200 metres the applicant turned the lights on.  Over the short distance from the bowls club to the first residence the applicant drove very fast, at speeds of between 120 and 130 kmph, and swerved over the roadway.  The speed limit was 60 kmph.  As he drove the applicant held an open stubby of beer in his right hand and steered with his left hand. 

[4] On his way to the next residence the applicant drove off the carriageway and onto a rough dirt track that gave access to the beach.  He drove very fast along the track and one of his passengers told the applicant to slow down.  The applicant did not slow down, nor did he reply but turned up the volume of the car radio.  After driving for an un-stated distance the applicant left the track and returned to the sealed roadway.  He again drove very fast and the same passenger again told him to slow down. 

[5] The applicant did not do so and when driving at a speed which he admits to be 120 kmph he lost control of the vehicle.  It skidded onto the wrong side of the road, struck a parked vehicle a glancing blow and then collided with a power pole and then a wooden boundary fence.  The force of the impact drove a fence beam through the chest of the passenger seated behind the driver.  He died instantly. 

[6] Skid marks left by the Honda were measured at 116.3 metres.  The applicant was obviously intoxicated.  He was unsteady on his feet, his eyes were bloodshot and he smelt of liquor.  When tested his breath alcohol concentration was 0.144 per cent.  Such a concentration would cause impairment to his powers of observation and inappropriate or delayed reactions.  The applicant admitted that his driving was “over the road sort of”, and that he was “swerving a little bit”.  He attributed his manner of driving to his intoxication.  He admitted driving fast for the “thrill” of it. 

[7] The applicant had a relatively minor criminal history.  He had committed a public nuisance on three occasions on each of which he was fined a small sum.  He was found in possession of cannabis for which he was put on a good behaviour bond which he breached by a further offence of public nuisance.  He was dealt with for those offences collectively by a period of six months’ probation which he completed satisfactorily on 15 February 2009. 

[8] The applicant’s traffic history is more relevant.  There is an entry for careless driving in March 2008, one for driving whilst under the influence of liquor in June 2008 and another for driving at a speed more than 20 kmph in excess of the limit in April 2009.  On two occasions the applicant’s driver licence was suspended by reason of an accumulation of demerit points.  On 17 May 2010 the applicant’s licence was restricted by an order prohibiting him from driving between 11.00 pm and 5.00 am.  On one occasion prior to 24 July 2010 he drove in defiance of the restriction which was in effect when the applicant committed the present offence. 

[9] In passing sentence the learned primary judge said: 

“If it is possible to grade the seriousness of this type of offence … your circumstances must be in the upper range of criminality in that:

(a)you had consumed a large quantity of alcohol;

(b)you had a night driving restriction on your licence because of your traffic history … ; and

(c)[y]ou deliberately drove at an excessive speed even when asked to slow down on several occasions thus acting in a reckless and callous manner with complete indifference to the safety of your passengers.  … .

…

As I see it the only redeeming feature … is your timely plea of guilty to a strong Crown case and such plea will … be reflected in the sentence to be imposed.

While you have a criminal history it is not significant, but is symptomatic of your contempt for authority and your obligations under the law … demonstrating an absence of any commitment to rehabilitation or reform.  Simply your traffic history is symptomatic of your absence of remorse by persistent offending, albeit of a minor nature at times.”

[10]  His Honour noted the applicant’s relatively young age, his plea of guilty which was regarded as significant, and his co-operation with the administration of justice which extended to agreeing to an interview with investigating police officers in which he made frank disclosures about his manner of driving.  The judge noted also the applicant’s conscientiousness as an employee and his commitment to his work.  He was an apprenticed fitter and turner with good prospects for long term employment as a tradesman. 

[11]  The argument for the applicant conceded the objectively serious features of the case i.e.:

(i)The loss of a young man’s life;

(ii)The applicant’s marked intoxication at the time, his recognition of his state of insobriety but determination to drive nevertheless;

(iii)Two occasions on which he had driven at an extremely high speed in a suburban street;

(iv)Driving in breach of the restriction on his licence which was imposed for the express purpose of reducing the risk he posed to himself and others by driving late at night;

(v)Resisting demands by his passengers that he slow down, and an offer from one of them to drive.

To these may be added the respondent’s observations:

“The applicant was the subject of a restricted licence due to his poor driving record … .  He had previously (been) convicted of driving under the influence of alcohol, speeding, careless driving and breaching the restriction placed upon his licence.  That restriction was designed to keep him off the road at the time at which he was most at risk to himself and others. 

The applicant was by his own admission not in a fit state to drive … at the time of the offence.  He was severely affected by alcohol and continued to consume alcohol as he drove.  He acknowledged the risk he posed prior to getting into the vehicle.

The applicant engaged in deliberate and reckless conduct despite his high level of intoxication and the obvious impairment to his ability to drive … .  He drove erratically and at excessive speed … which placed himself and his passengers at risk.”

[12]  The applicant nevertheless submitted that the sentence of eight years was excessive because it was “beyond the range of penalty considered by the Court of Appeal” since the maximum penalty for the offence was increased to 14 years in March 2007, and parole eligibility was deferred “beyond the usual level (of one third) for no stated reason.”  A third of eight years is 32 months.  Parole eligibility was set at 36 months. 

[13]  The essence of the applicant’s submission was that: 

“A review of Court of Appeal authorities since … March 2007 … shows that a head sentence of up to 7 years imprisonment has been imposed … in what are … similar or worse examples.” 

In addition it is said to be “a common practice of sentencing courts in Queensland to recognise the value of an early plea of guilty and other mitigating circumstances by ordering eligibility for parole after serving one third of the head sentence imposed.”

The additional circumstances of mitigation were said to be the applicant’s:

(i)Co-operation in a full hand-up committal without cross-examination;

(ii)Youth;

(iii)Good prospects of employment;

(iv)Co-operation with police;

(v)Immediately calling for an ambulance; and

(vi)Remorse at the death of a close friend.

[14]  The authorities on which the applicant relies for his submission that a sentence of more than seven years was excessive are R v CAN [2009] QCA 59; R v Hallett [2009] QCA 96 and R v Blackaby [2010] QCA 84, in each of which a term of imprisonment for seven years was imposed. 

[15]  The submission assumes that the cases decided that the penalty in similar cases could not exceed seven years, and that it is possible to make exact comparisons between cases so as to be able to discern, with complete confidence, what cases are the same in point of seriousness and what are more, or less, serious.  The submission should not be accepted.  Both assumptions are unjustified.  The ratio in each case was that the seven years’ imprisonment imposed was not manifestly excessive.  The cases did not decide that a sentence greater than seven years would have been excessive.  The assumption that an exact comparison can be made between cases overlooks the facts that no two cases are exactly alike, and that there is legitimate scope for a difference of opinion in making the comparisons. 

[16]  In order to consider the applicant’s submission it is necessary to look at the facts of the cases relied on. 

[17]  The driver in CAN had a breath alcohol concentration of 0.154 per cent.  At the time of the offence he was on bail on a charge of dangerous operation of a motor vehicle whilst intoxicated.  He failed to turn a corner because he was driving too fast.  His car slid out of control for about 80 metres before colliding with a power pole.  His passenger was killed.  He falsely denied being the driver.  He had a very significant criminal history and a substantial traffic history including unlicensed driving, disqualified driving, speeding and driving under the influence.  His sentence of seven years’ imprisonment after a plea of guilty, with no recommendation for early parole, was not disturbed on appeal. 

[18]  Hallett caused the death of his 84 year old father who was a passenger in a car he drove erratically on a highway.  He changed lanes and swerved between other vehicles before veering off the side of the road and hitting a pole.  He was affected by drugs.  He had a criminal history for dishonesty, violence and drug offending.  His traffic history was appalling.  There were 17 entries for disqualified driving, 10 for driving under the influence of liquor or a drug, and separate entries for dangerous driving, the dangerous operation of a motor vehicle and speeding.  He pleaded guilty and was sentenced to seven years’ imprisonment.  Parole eligibility was set at the one third mark.  An application for leave to appeal against sentence was refused. 

[19]  Blackaby was very drunk.  Her breath alcohol concentration was 0.227 per cent.  She had a number of criminal offences and a truly dreadful traffic history.   She had never held a driver licence but had six convictions for driving while unlicensed; five for driving whilst disqualified and three for driving under the influence of liquor.  She had been sentenced to nine months’ imprisonment for driving whilst disqualified and had been released only two and a half months prior to the offence.  She drove a friend at his request from one township to another.  She did not drive fast or dangerously but was clearly unable to control a motor vehicle by reason of her lack of qualification and intoxication.  She lent over to pick up an object from the centre console of the car and while distracted drove into the back of a stationary truck.  Her sentence of seven years’ imprisonment was upheld on appeal. 

[20]  The applicant also referred to a case in which eight years’ imprisonment was imposed, R v Ross [2009] QCA 7.  It was said to be a “far worse … case.”  Ross’s dangerous driving killed his two infant children.  He was drunk and driving at about 138 kmph in a 70 kmph zone.  The car failed to take a turn and became airborne, crashing heavily.  He fled the scene and initially blamed his de facto partner for the crash and the deaths.  He had a substantial traffic history and had driven aggressively and recklessly before losing control of the car. 

[21]  The applicant submitted that in all the cases two aspects are relevant for the purposes of making comparisons.  They are the nature and quality of the dangerous driving itself and the offender’s prior traffic history which, if lengthy or serious, will exacerbate the gravity of the particular offending.  The submission should be accepted.  Both aspects are important in determining the seriousness of the offending and the appropriate penalty.  The existence of the two features, and their combination makes an exact comparison between cases difficult.  There is no one “right” answer from the comparison. 

[22] Hallett illustrates the difficulty.  The driving occurred over a short distance and Hallett’s culpability in driving under the influence of drugs consumed some days earlier was said to be not as bad as that of a person, like the applicant, who drives immediately after consuming an intoxicating substance.  The applicant drove a considerable distance knowing he was drunk and ignoring pleas from friends not to drive and to slow down.  Hallett’s driving was not as culpable as the applicant’s but his record was far worse. 

[23]  The same observation applies to Blackaby’s manner of driving which was not as culpable as the applicant’s or Hallett’s or even CAN’s.  What made her offending serious was her extreme intoxication and her appalling traffic history demonstrating a determination to drive whenever she pleased regardless of disqualifications and the lack of a licence.  Her case was said to be worse than the applicant’s and to some minds it might be, though not to all. 

[24]  The court in R v Wilde; ex parte A-G [2002] QCA 501 (de Jersey CJ, Jerrard JA, and Mullins J) answered the applicant’s submission.  It said at [26]: 

“The variety of circumstances confronting sentencing courts in cases like this means it can be especially difficult to translate the result in one case to another. What is abundantly clear is that the community expects, and rightly expects, appropriately deterrent penalties …”.

To the same effect McPherson JA and Thomas J said in their joint judgment in R v Conquest; ex parte A-G (Qld) [1995] QCA 567 at pp 10-11:

“It would certainly be an error for a sentencing court to treat the normal rough range of sentence in roughly comparable cases as if it were the statutory maximum. But equally it would be an error for a sentencing Judge to set his … own level of sentence in a manner inconsistent with other judicial decisions. The only escape from this dilemma is through recognition of the fact that no two cases are exactly alike, and that in general the level of sentence in one case can only be a rough guide to another. To speak of a “normal range” may give the sentencing court some feeling of comfort, but it is often a dangerous generalisation.”

[25]  The applicant’s submission asserts that seven years was the maximum that might have been imposed.  But in Hallett the sentencing judge expressed the opinion that the appropriate range of punishment for the offence was between seven and nine years’ imprisonment.  That range was not expressly endorsed by the Court of Appeal but the judgment noted the observation and there is nothing in the reasons of the court which suggests any criticism of it. 

[26] The case of R v Vessey; ex parte A-G (Qld) [1996] QCA 11 makes the applicant’s submission that seven years’ imprisonment was the maximum permitted for offending of a like nature difficult to accept.  The court allowed an Attorney-General’s appeal and imposed a sentence of nine years’ imprisonment with a recommendation for release on parole after four years, in substitution for a sentence of six and a half years with a recommendation for parole after 26 months.  The court described the circumstances in these terms (at 1):

“The offence had very serious features. (Vessey) was under the influence of alcohol at the time. A sample of urine … demonstrated that … (Vessey) had at least a concentration of .2 per cent alcohol in his blood. (Vessey’s) vehicle … had been observed making a U-turn sometime before the collision and was observed to travel on the wrong side of the road for about 150 metres causing another vehicle to take evasive action. After it turned a corner into the street where the fatal collision occurred the left-hand indicator remained on, the vehicle was driven to the intersection … without any sign that the brakes had been applied … through a “give way” sign colliding with the victim’s vehicle in the middle of the driver’s side and overturning it. It was not suggested that the speed of (Vessey’s) vehicle had … been excessive
… .”

[27]  Although Vessey was grossly intoxicated, more so than the applicant, his manner of driving does not appear to have been as culpable as the applicant’s, nor as prolonged.  He had a worse history of disqualified driving and driving under the influence of liquor.  He was disqualified at the time of the offence. 

[28]  Another comparable, though much worse case, was R v Frost; ex parte A-G [2004] QCA 309.  Frost drove about 14 km when he was very drunk indeed.  He drank huge amounts at a restaurant over many hours and insisted on driving home.  His blood alcohol concentration at the time he ran over three pedestrians at 3.00 am was at least 0.237 per cent.  He was observably and demonstrably intoxicated.  His passenger repeatedly but unsuccessfully requested that Frost stop and let him out.  Frost’s driving was so erratic and uncontrolled that his vehicle swerved several times across the width of the road and moved onto the shoulder hitting and killing three pedestrians.  After the collision Frost asked his passenger whether he had hit “a person”.  When told he had he continued to drive, colliding with a barrier at the entrance to a roundabout and crossing a bridge on the wrong side of the road.  Frost was sentenced to nine years’ imprisonment.  A recommendation for early release on parole was set aside on appeal.  The court described the sentence as being “at the lower end of the appropriate range” and that the offending “would have justified a 10 year sentence”. 

[29]  The cases do not establish that the maximum appropriate penalty was seven years.  The permissible range of penalty extends higher.  A comparison with other cases does not provide only one “right” sentence.  The sentence imposed on the applicant had to be appropriate to the seriousness of the offending and act as a deterrent to others.  The sentence imposed on the applicant was certainly substantial but it was within the permitted range.  His offending was very serious and there was a concerning traffic history. 

[30]  Fixing a parole eligibility date after three years rather than two years and eight months did not make the sentence excessive.  The difference is too small to have that effect.  A reduction in the period by four months would amount to unwarranted “tinkering” with the sentence.  There is no invariable rule that following a plea of guilty parole eligibility will be fixed after the offender has served one third of the head sentence.  The existence of such a rule, which could only be one of practice, would be inconsistent with the existence of sentencing discretion.  The sentences in CAN, Vessey and Frost did not include such an order. 

[31]  The application for leave to appeal against sentence must therefore be refused. 

[32]  MARGARET WILSON AJA:  I agree with the order proposed by Chesterman JA and with his Honour’s reasons for judgment.