R v Allen[2012] QCA 259

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant, Matthew Allen, was convicted after a four day jury trial of dangerous operation of a vehicle causing the death of Matthew Caltabiano on the Sunshine Coast on 28 February 2009.  He was sentenced to 18 months imprisonment with a parole release date of 11 January 2013, that is, after nine months.  He was also disqualified from holding or obtaining a driver's licence for two and a half years.  He has applied for leave to appeal against his sentence contending that it is manifestly excessive given his good prior history and that the judge failed to give adequate weight to his cooperation with authorities and mitigating factors.

2. He was 24 at the time of the offence and 27 at sentence. He had no prior criminal history. He had three entries in his traffic history. In 2004 he exceeded the speed limit by between 13 and 20 kph and was fined $150. In 2005 he was charged with driving a motor vehicle whilst under the influence of liquor with a blood alcohol reading of .105 and fined $600 and disqualified from driving for three months. In 2009, after the commission of the present offence, he was fined $133 for exceeding the speed limit by less than 13 kph.

3. The circumstances pertaining to the offence were as follows. The applicant was driving a Toyota Landcruiser on the afternoon of 28 February 2009. His partner, Ms Malinda Byrnes, was seated beside him. Their baby was in a capsule in the back seat. They were travelling north on Nicklin Way, Buddina.  The deceased was riding his motorcycle travelling south on Nicklin Way.  The applicant was in one of two right turn lanes waiting to turn across the southbound lanes of Nicklin Way into Point Cartwright Drive.  Eyewitnesses gave differing accounts of what transpired.  The applicant maintained to police, both at the scene and 12 months later when interviewed, that he turned across Nicklin Way into Point Cartwright Drive on a green arrow. 

4. In sentencing, the judge found that it was most probable the jury ultimately accepted the evidence of Ms Danielle Denman and Mr Ryan.

5. Ms Denman was a passenger in a maxi taxi driven by Mr Ryan travelling north on Nicklin Way.  She was sitting behind the driver facing the rear of the taxi but had turned to talk to Mr Ryan whilst stopped at lights waiting to turn into Point Cartwright Drive.  The applicant's vehicle was a couple of cars ahead of the taxi.  She saw the applicant turn on the red arrow into the path of the deceased's motorcycle. 

6. Mr Ryan confirmed that his taxi was waiting in a turning lane to turn across Nicklin Way into Point Cartwright Drive.  He saw a four wheel drive ahead at the front of the line of traffic and noticed there was a red light.  He saw the four wheel drive move out on the red light and then brake quickly.  He had a vague memory of south bound traffic starting to move into the intersection and he thought one or two vehicles moved through the intersection before the accident.

7. The judge found that the applicant's dangerous operation of the vehicle was failing to keep a proper lookout in the sense that, although he had stopped for some time with a red arrow facing him, when the through light went green for the lanes going north, he inexplicably thought he had a green arrow and proceeded into the path of the deceased's motorcycle. He proceeded against a red traffic light into the face of oncoming traffic.

8. Photographs of the scene depicting the point of impact and the skid marks of the motorcycle were tendered at trial. They suggested that, having mistakenly turned on the red arrow, the applicant should have seen the motorcycle had he been keeping a proper lookout.

9. The prosecutor at sentence tendered victim impact statements from the deceased's mother and sister. They eloquently expressed the family’s deep loss following Matthew's death. Their still raw grief had been heightened by the loss of their first born son and older brother in a trail bike accident in 1991.  Relying on R v Damrow,^[1] the prosecutor submitted that the appropriate head sentence for this dangerous driving through failing to keep a proper lookout was between two and two and a half years imprisonment, with a period of actual custody. 

10. Defence counsel submitted that the case was one of momentary inattention; the circumstances of the dangerous operation of the vehicle were at the lowest level of seriousness; it was one of those rare cases that did not call for an actual custodial sentence. The offending involved no speed, drugs or alcohol. The applicant was not driving a heavy vehicle or truck. The offending conduct took place over a very short period. The applicant was not callous and stayed at the scene. His partner called for help immediately. He cooperated with police on all occasions. He was not distracted by a phone or music. Although he did not plead guilty, the case raised issues which required a jury determination. There was also considerable delay. Police first asked to interview him 12 months after the accident. He was served with a complaint charging him with the summary offence of driving without due care and initially appeared in court to answer that complaint in April 2010. He was not charged with the much more serious indictable offence of dangerous operation of a vehicle causing death until 14 July 2010. The committal proceedings took place on 25 February 2011, two years after the accident and the trial occurred over three years later. This matter had been hanging over his head all this time.

11. Defence counsel reported that the applicant grew up in Bundaberg and was employed as an assistant manager at a tyre shop where he had worked since leaving school at 17. He was seriously ill and almost died from meningococcal virus when he was 18 years old. He had been in a long term relationship for seven years and he and his partner have a son, now aged five, and a 10 month old daughter. He was the sole breadwinner and his partner was a fulltime mother to the children. She did not drive and was frightened to get her licence because she was still traumatised by this accident. Defence counsel tendered an excellent work reference from the applicant's employer. She submitted the applicant was genuinely remorseful and, as a parent himself, he had insight into the dreadful impact of the deceased's death on his family. All these circumstances placed this case in that category of cases including R v Gruenert; ex parte A-G (Qld)^[2] where an actual term of imprisonment did not have to be served.

12. Given his Honour's findings of fact and the importance of the integrity of the traffic light system in protecting the public at major intersections involving a significant flow of traffic at a busy time of the day, the judge determined that the applicant's dangerous driving was not momentary inattention. It was driving of the kind discussed in Damrow,^[3] that is, it was at a relatively low level within the range of driving which may be stigmatised as dangerous.  This was not one of those rare cases where a sentence not involving actual custody should be imposed.

13. The sentencing judge took into account the victim impact statements. His Honour also took into account the delay but it was not such as in R v L, ex parte Attorney-General of Queensland.^[4]  His Honour noted that imprisonment would have a dramatic and adverse effect on the applicant's partner and children and his extended family but this was not so exceptional to justify mitigation of penalty. 

Conclusion

14. In Gruenert, Keane JA, with whom Williams JA and Fryberg J agreed, noted:

"From a consideration of the decisions of this Court in Harris [[1999] QCA 392; CA No 161 of 1999, 21 September 1999], R v Balfe [[1998] QCA 014; CA No 444 of 1997, 20 February 1998], R v Manners; ex parte A-G (Qld) [[2002] QCA 301, esp at [11]-[14]; (2002) 132 A Crim R 363, esp at 364] and R v Anderson; ex parte A-G (Qld) [[1998] QCA 355; (1998) 104 A Crim R 489], it emerges that in a case of dangerous driving which causes death:

1. a head sentence of 18 months imprisonment is at the bottom end of the range;

2. the considerations of deterrence, and of the gravity of the consequences involved in the offence, mean that it will be rare case that does not attract a custodial term;

3. the imposition of a custodial sentence is not, however, inevitable in every case; and

4. cases of 'momentary inattention' are among rare cases of dangerous driving which may attract a non-custodial sentence because, in such cases, the claims of the consideration of deterrence are less compelling."^[5]

This Court considered Gruenert's driving, failing to keep a proper lookout when he pulled back onto the correct side of the road after an aborted attempt to overtake the deceased's car and caravan, was rightly characterised as momentary inattention.  Gruenert had a blameless record both as a driver and as a citizen and an impressive body of references vouched for his good character.  In these circumstances, this Court was unpersuaded that the sentence, 18 months imprisonment fully suspended with an operational period of two years, was manifestly inadequate.

15. In Damrow, which the sentencing judge in this case considered comparable, the applicant was convicted of dangerous driving causing death after a two day trial.  She was sentenced to 18 months imprisonment, suspended after eight months with an 18 month operational period and was disqualified from driving for two years.  She also pleaded guilty to unlicensed driving.  She claimed her sentence was manifestly excessive.  She drove through an intersection and collided with a prime mover, killing one of her passengers.  A stop sign had been removed and the stop line was faded.  She and others in her car were singing along to music on the radio.  She was 18 at the time and 20 at sentence.  She had no criminal history but had lost her licence over two speeding violations.  She was of good character, in employment and had the support of her family and partner.  This Court considered that her driving did not have common aggravating features and was at a relatively low level of dangerousness.  Nevertheless, the judge was entitled to consider it was more than momentary inattention.  A life had been lost and the maximum penalty was 10 years imprisonment.  Despite the mitigating features, the sentence was not manifestly excessive.

16. The respondent placed considerable emphasis on R v Maher,^[6] where the deceased was riding his motorcycle at about 9.00 pm on Connors Road, Paget when he was hit by Maher's Nissan utility which turned into his path.  The deceased probably died instantly.  Neither the deceased nor Maher had consumed alcohol or drugs.  Maher did not see the motorcycle and apprehended that the motorcycle was travelling at excess speed or without a headlight.  But forensic testing demonstrated that the motorcycle had been travelling at a low speed and with its head light on low beam prior to the accident.  Maher had just completed a 16 hour shift and his tenth consecutive working day as a concrete driller.  The prosecution accepted that the driving was momentary inattention and submitted that a head sentence of 18 months to two years was appropriate.  Victim impact statements from the deceased's widow (they had a seven month old baby), father and step-mother spoke of their sadness and loss and the father gave evidence at sentence stating that the deceased was a competent and well trained motorcycle rider. 

In sentencing, the judge rejected the prosecutor's characterisation of the driving as involving momentary inattention: the accident occurred on a long straight road with unobscured vision so that, had Maher been paying attention, he should have seen the motorcycle headlight for a very significant period.  Maher failed over a prolonged period to keep a proper lookout, probably exacerbated by tiredness through his lengthy periods of work.  Driving when tired was a serious breach of the standard of driving that other road users are entitled to expect.  The sentencing judge considered that, in these circumstances, the appropriate sentence was not 18 months but three to four years imprisonment.  Taking into account the many mitigating factors, including remorse, plea of guilty, delay, good work history and the impact of prolonged imprisonment on Maher's family, the judge suspended the three year sentence after nine months with an operational period of three years. 

This Court emphasised that the maximum penalty for the offence had increased from seven to 10 years in 2007.  Driving dangerously with prolonged inattention resulting in the death or serious injury of another required punishment to strongly denounce that conduct.  The sentence was not manifestly excessive.

17. The present case is not as serious as Maher in that there is no suggestion the applicant was driving whilst fatigued; that fatigue was a causative factor in the dangerous driving; and nor was the dangerous driving over such an extended period.  The primary judge rightly found that there was no explanation why the appellant turned on the red arrow into the path of the deceased's motorcycle other than a continuing serious failure to take proper care when driving a motor vehicle such that it amounted to criminal conduct resulting in the death of the deceased.  The sentence imposed had to reflect the community's disapprobation of this conduct, the fact that it took a life and its effect on the deceased's family.  No doubt the appellant and his family's interests would benefit were the applicant able to continue in employment and support his family by the imposition of a fully suspended sentence.  But that is not the sole consideration in sentencing.  Although deterrence does not loom as large in this case as in cases involving alcohol, speed, fatigue or a lengthy period of reckless driving, a deterrent sentence is still apposite as a salutary reminder to all who undertake the serious responsibility of driving a motor vehicle.  Drivers must take proper care and remain astute to observe traffic signals and to keep a careful lookout when turning across oncoming traffic.  The judge was entitled to conclude that this case was more than momentary inattention and so required a period of actual imprisonment, despite the hardship this would cause to the applicant and his young, dependent family.  His Honour took into account all the mitigating features, including delay.  After balancing the competing considerations, the sentence upon which his Honour settled was within the appropriate range.  A lesser period of actual detention was open but the sentence imposed was supported by Damrow. It was not manifestly excessive.

18. It follows that the application for leave to appeal against sentence must be refused.

19. FRYBERG J:  The only ground raised in support of this application for leave to appeal against sentence was:

“If the verdict is upheld, the sentence should be reduced as it is manifestly excessive given the appellant's lack of criminal history and minor traffic history.  His Honour failed to give adequate weight to the appellant's significant cooperation with authorities and mitigating factors.”

20. That ground was defectively stated.^[7]  Manifest excess is not demonstrated by identifying specific errors.  But that deficiency does not affect the outcome of the appeal.  I refer to the ground simply to demonstrate that the appellant has not suggested any relevant error of principle in the judge’s findings.

21. I have been troubled by the fact that his Honour did not make any finding regarding the extent to which the applicant was responsible for causing Mr Caltabiano's death. There was evidence that his motorcycle left skid marks caused by harsh braking which were 19 m long and which terminated with marks of uncertain length caused by yawing. The traffic investigator called by the prosecution had the expertise to carry out what he called a “skid test” to determine the speed at which the motorcycle had been travelling before its brakes were applied. He had not carried out that test because, as he testified, he did not see the need for it. He accepted the possibility that the motorcycle was travelling at more than the speed limit on the road, 70 km/h. His Honour made no finding about that speed.

22. An element of the offence of which the applicant was convicted under s 328A(4) of the Criminal Code is causing the death of another person.  The maximum penalty for that offence is imprisonment for 10 years.  By contrast a person who operates a vehicle dangerously and does not thereby cause death or grievous bodily harm is liable to a maximum term of imprisonment of three years.  One might expect therefore that causing death would be an important factor not only in identifying the relevant offence but also in sentencing.  One might expect that a person whose contribution to causing the death was relatively low would, other things being equal, receive a shorter period of imprisonment than one whose conduct was the sole or the major cause of death.  And one might expect that excessive speed of the part of the victim might be an important consideration in assessing the offender’s causal contribution to the death.

23. I have concluded that it is unnecessary to embark without the benefit of submissions on a consideration of matters which the applicant did not see fit to raise.

24. In relation to the ground argued I agree with the reasons for judgment of the President. I agree with the order which her Honour proposes.

25. NORTH J: I have read the reasons for judgment of The President.  I agree with the order proposed and with her Honour’s reasons.