R v Henderson; ex parte Attorney-General
[2013] QCA 63
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- R v Henderson; ex parte Attorney-General[2013] QCA 63
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R v Henderson; ex parte Attorney-General[2013] QCA 63
R v Henderson; ex parte Attorney-General[2013] QCA 63
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 28 March 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 March 2013 |
JUDGES: | Muir JA, Margaret Wilson and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to dangerous operation of a motor vehicle causing the death of three people and grievous bodily harm to one person, and leaving the scene in circumstances where he ought reasonably to have known that persons were injured – where the respondent was on bail for assault occasioning bodily harm at the time of the dangerous driving offence – where the respondent was sentenced to seven and a half years imprisonment for the dangerous driving offence, and six months for the assault, to be served concurrently, with parole eligibility set at 30 months – where the appellant sought a longer sentence than that sought by the prosecutor at first instance – where offence was an extremely serious case of dangerous driving – whether the sentencing judge appreciated the seriousness of the offending – whether the sentence reflected the overall criminality of the respondent’s conduct Criminal Code 1899 (Qld), s 328A(4)(c), s 339(1), s 669A Penalties and Sentences Act 1992 (Qld), s 13(1), s 161A, s 161B, s 182, s 187 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, cited Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Amituanai (1995) 78 A Crim R 588; [1995] QCA 80, cited R v Clements (1993) 68 A Crim R 167; [1993] QCA 245, cited R v Frost; ex parte A-G (Qld) (2004) 149 A Crim R 151; [2004] QCA 309, cited R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130, cited R v KU; ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439; [2008] QCA 154, cited R v Mahony & Shenfield [2012] QCA 366, cited R v Powderham [2002] 2 Qd R 417; [2001] QCA 429, cited R v Robertson [2010] QCA 319, cited R v Sanderson [1998] QCA 237, cited R v Theuerkauf & anor; ex parte A-G (Qld) [2003] QCA 94, cited R v Tufuga [2003] QCA 171, cited R v Van Der Zyden [2012] 2 Qd R 568; [2012] QCA 89, cited R v Vessey; ex parte A-G (Qld) [1996] QCA 11, cited R v Wilde; ex parte A-G (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited |
COUNSEL: | A W Moynihan SC for the appellant J J Allen for the respondent |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent |
[1] MUIR JA: I agree with the reasons of Margaret Wilson J and with her proposed orders.
[2] MARGARET WILSON J: The respondent pleaded guilty to –
(a)one count of assault occasioning bodily harm;[1] and
(b)one count of dangerous operation of a motor vehicle, causing the death of three persons and grievous bodily harm to one other person and leaving the scene before police arrived in circumstances where he ought reasonably to have known that the four persons had been injured.[2]
The first offence was committed on 4 April 2010, and the second offence was committed on 8 April 2011, while he was on bail for the first offence.
[3] He was sentenced to concurrent terms of imprisonment - six months for the assault and seven and a half years for the dangerous driving. His parole eligibility date was set at 30 months (one-third). He was disqualified from holding or obtaining a driver’s licence absolutely.[3]
[4] The Attorney-General of Queensland has appealed under s 669A of the Criminal Code (Qld) on three grounds –
(i) that the sentence is manifestly inadequate;
(ii) that the sentencing judge erred in not ordering the terms of imprisonment to be served consecutively; and
(iii) that the sentencing judge erred in not declaring the dangerous driving offence a serious violent offence or otherwise postponing the respondent’s eligibility for parole.[4]
On the hearing of the appeal, his counsel submitted that this Court should re-exercise the sentencing discretion. He submitted that there should be a head sentence for the dangerous driving of nine to 10 years imprisonment, to be served cumulatively on the six months for the assault, and that there should be a declaration of the conviction of a serious violent offence.
The assault occasioning bodily harm
[5] The complainant in the assault charge was the respondent’s de facto partner, from whom he was separated. There were two children of the relationship. On 3 April 2010 he attended her house for the purpose of access to the children. She intended to go to a friend’s place while he was there. Before she left, there was a verbal altercation when she told him she was dating someone else. While she was gone, he sent her a number of text messages and tried to call her.
[6] The next morning, she returned home. He came out of the garage and insulted her. He grabbed her mobile phone and searched it for the name of the man she was dating. He located the details and threatened to kill the man and to make it look like an accident. He walked to his car carrying her keys and her mobile phone, and got in the car. He placed her phone on the passenger seat. When she reached into the driver’s open door to retrieve the phone, he grabbed on to her arm, head butted her and pushed her to the ground. He threw her keys outside the car but kept her phone. She picked up her keys and walked inside the house.
[7] He drove away and returned 10 minutes later. She told him she was going to call the police, whereupon he said he would have somewhere to sleep that night. He said –
“When they get here, I’ll reverse into their car.”
He walked back to his vehicle and sat in the driver’s seat. She called the police. He walked up to the front door and said he would swap the mobile phone for his spare key that was inside the house. She complied, and he drove away. He was located by police the same day and declined to take part in an interview.
[8] The complainant suffered bruises to her thigh and back and an egg shaped lump on her forehead.
The dangerous driving
[9] On the evening of 8 April 2011 the respondent was at 24 Bertha Street, Goodna, where his aunt and two of his male cousins lived. Several other people were there, including his cousins’ girlfriends. They were sharing a few drinks and watching football. At about 10.30 pm Adrian Wood (the brother of the respondent’s de facto) and a workmate of his arrived unexpectedly. Wood confronted the respondent about his treatment of his sister. An argument developed between them, which escalated into a physical altercation in the front yard. The respondent and all the other males became involved.
[10] Wood and his mate got into their white Toyota Hilux (which was parked in the driveway), the respondent’s cousins continuing to assault them. Wood started the vehicle. Meanwhile, the respondent had got into his blue Toyota Hilux dual cab utility (which was parked at the gutter). As Wood reversed down the driveway, the respondent accelerated his vehicle on to the road into the path of oncoming traffic. Kathleen Ephlick, who was driving along that section of Bertha Street, had to take evasive action to avoid an impact. The respondent drove his vehicle straight towards Wood’s vehicle, striking its passenger side (where Wood’s mate was seated). The respondent then reversed and struck the passenger side of Wood’s vehicle again.
[11] Wood drove off in a northerly direction along Bertha Street, towards the intersection with Brisbane Road. He turned off into a side street before reaching the intersection. The defendant sped off down Bertha Street, in pursuit of Wood, swerving all over the road and approaching the rear of Ephlick’s vehicle as he did so.
[12] Bertha Street intersected with Mill Street before its intersection with Brisbane Road. The Bertha Street/Brisbane Road intersection was controlled by traffic lights. Beyond the intersection, Brisbane Road continued under a motorway as Layard Street. The speed limit was 60 kph.
[13] As Ephlick approached the Mill Street intersection, she had a red light facing her. She drove through the red light to avoid being struck in the rear by the respondent’s vehicle. Then she drove into Mill Street before coming to a stop. The respondent drove through the red light at the Mill Street intersection, and continued driving along Bertha Street towards the Brisbane Road intersection at excessive speed.
[14] At the same time a Mitsubishi Lancer Coupe was travelling along Brisbane Road in a westerly direction approaching the Bertha Street intersection. Alex Gill (aged 17) was driving; his girlfriend Brittany Bramwell (also 17), Nicholas Saxby (16) and Matthew Prior (18) were passengers in the vehicle.
[15] There was a green light facing the Mitsubishi and a red light facing the respondent’s Toyota. As the Mitsubishi turned right, the respondent drove his Toyota at 85 – 95 kph and without braking straight through the red light facing him. The Toyota collided with the left-hand side of the Mitsubishi in a T-bone impact.
[16] Bramwell and Prior died at the scene. Saxby sustained injuries from which he died. Gill sustained six fractured ribs, a punctured lung and associated subcutaneous emphysema, and a small laceration to his spleen.
[17] People gathered at the scene to render assistance. Noel Collins, who had been stationary at the intersection at the time of the collision, pulled over to assist, and seeing someone else assisting the occupants of the Mitsubishi, he approached the respondent’s vehicle. The respondent was in the driver’s seat. The girlfriend of one of his cousins was speaking to him; he had blood coming from his face but was responsive. Collins could smell fuel and he noticed petrol on the road. By that stage, the respondent’s other cousin and his girlfriend had also approached the respondent. At Collins’ instruction, they removed the respondent from the vehicle and on to the sidewalk. Collins then assisted with the Mitsubishi; while he was doing so, the respondent left the vicinity.
[18] Police attended at 24 Bertha Street in response to a call about the initial disturbance there. One of those officers proceeded to the collision site, and called for ambulance and fire rescue services. He looked for the respondent, but did not see him. Other police officers were quickly on the scene.
[19] People returned to 24 Bertha Street. While police officers were there, the respondent appeared on the nature strip outside the house. His family and friends declined to identify him. He walked away from the house in the direction of Mill Street with a visible limp. Police pursued him on foot and directed him to stop. He started running from them, and evaded police officers who gave chase. He disappeared, and a search ensued. Eventually he emerged from premises along Mill Street with a bandage on one of his arms. He was arrested at about 11.40 pm.
[20] While under arrest he behaved aggressively and belligerently toward police. He made false denials of his involvement, and was unco-operative. He refused to supply a specimen of breath for testing.
[21] On 11 April 2011 he took part in an interview with police which was recorded. He admitted being involved in a fight at 24 Bertha Street and deliberately hitting Wood’s vehicle once, but denied the second impact was deliberate. He said the next thing he recalled was waking up at one of his aunt’s friends’ place. He said he walked down the road and saw police officers. Thinking he was in trouble for being involved in the fight, he ran away.
[22] On 20 July 2011 he gave a second recorded interview. He admitted driving into Wood’s vehicle twice. The next thing he recalled was waking up at his aunt’s friend’s place. He wanted to go back to the fight, and walked down the street when he was arrested. He said that although he did not recall driving the vehicle he “knew” it was him. He denied leaving the scene by himself, and said he did not know how he got out of the vehicle.
Antecedents
[23] The respondent was aged 32 at the time of the assault and 33 at the time of the dangerous driving.
[24] His mother was a teenager when he was born. He was placed in foster care for a short time from the age of two years, and then reared by his grandparents until he was 12. Then he lived with his mother for a short time before leaving home. He did not meet his father until he was 17. He had 12 half brothers and sisters.
[25] He attended school to Year 9, and then had a relatively good work history as a farm hand, in a bakery and in the installation of playgrounds. In his youth he struggled with drug abuse, including heroin addiction for which he underwent Suboxone treatment.
[26] After his relationship with the complainant in the assault charge foundered, he maintained regular contact with the two children, paying child support as best he could and buying things for them. By the time of the sentence proceeding in August 2012, he was in another relationship, of which there was an eight week old child.
[27] The respondent had a criminal history from 1995 consisting of relatively minor drug offences, weapons offences, one offence of stealing, and public nuisance offences. He had never been incarcerated.
[28] His traffic history included 11 instances of speeding (including one instance of driving between 20 and 30 kph over the limit and one of driving 40 kph or more over the limit) and instances of failing to stop at a red light. He had lost his licence on a number of occasions for accumulation of demerit points and been disqualified from holding a licence for unlicensed driving and speeding. He had been dealt with for unlicensed driving on four occasions. He was subject to a licence suspension when he committed the dangerous driving offence in April 2011.
Remorse
[29] The respondent’s conduct in leaving the scene and evading police was indicative of self-interest rather than remorse. Subsequently, however, he appreciated the gravity of what he had done, and became deeply remorseful. He relapsed into heroin use for a short time. With the knowledge of police, he went to Cape York where he lived as a hermit, detoxifying and reflecting on his behaviour.
Victim impact
[30] A number of victim impact statements were tendered. The sentencing judge said of them –
“The victim impact statements that I have read illustrate the painfully high human cost of your evening of selfish and aggressive behaviour. The victim impact statements illustrate heartbreak and huge loss on the part of those who have been left behind. For example, a father wakes at 2.34 a.m. every morning because that is the time when the police knocked on his door and advised him of the death of his daughter. Another father lives with the memory of identifying the battered body of his son at the John Tonge Forensic Centre. A mother describes the personal unbearable agony that she will live with for the rest of her life. Even the one who survived, the driver of the vehicle, lives on with feelings of guilt. He lost his girlfriend who was one of the passengers and two close friends. The statements illustrate strained relationships, shattered families and parents who have been left bereft.”
Submissions at first instance
[31] The maximum penalty that might have been imposed for the dangerous driving was 14 years imprisonment, and for the assault seven years.
[32] The prosecutor submitted that eight to nine years imprisonment ought to be imposed for the dangerous driving and six months for the assault, the sentences to be served consecutively. Such a sentence would be equivalent to eight and a half years to nine and a half years. He submitted that the date for parole eligibility should be fixed at one-third of the period of imprisonment.
[33] Defence counsel submitted that six to seven years imprisonment should be imposed for the dangerous driving, and six months for the assault. He submitted that the terms of imprisonment should be concurrent, and that the respondent should be eligible for parole after serving one-third of the head sentence.
Sentencing remarks
[34] The sentencing judge accepted the respondent’s pleas of guilty as timely, although not very early.
[35] Her Honour made the following observations about the assault –
“That occurred, I accept, at a time when it seems you were separated and towards the end of your relationship, no doubt emotions were running high, but it is of concern that you made threats to your partner about the person she was seeing. And it’s of very serious concern, given what you went on to do the following year, that you threatened to collide with the police vehicle if she called the police. So clearly the facts of that offence show that you have in the past threatened to use your vehicle as a weapon, and that’s what you were doing on the night of the 8th of April 2011.”
[36] Her Honour accepted defence counsel’s submission that if the respondent were being dealt with for the assault alone, it was quite likely he would have received, if not a non-custodial term, then not an actual custodial term.
[37] In relation to the dangerous driving her Honour said –
“It was deliberate dangerous driving; twice going through a red light and driving at speed. And, as I say, you started the whole driving episode by deliberately colliding, not just once but twice, with another vehicle. So in my view that course of driving is particularly serious and lifts this offence really to an equivalent level as if you had been adversely affected by alcohol.
…
And I want to make it clear that the penalty I’m about to impose on you in no way reflects the loss of life. And the number of years that you serve in gaol does not equate with even one life lost let alone three.
I do have regard to the comparative authorities which the prosecution and the defence have both referred me to, and it’s true to say that no two cases are alike. And because you haven’t been charged with the aggravated circumstance of being adversely affected by alcohol it is hard to find an equivalent fact situation, but the reality is that the maximum penalty for this offending is one of 14 years imprisonment.
The deliberate course of behaviour and the characteristics of your driving that night, in my view, do equate to the aggravation of being adversely affected by alcohol. Clearly you drove with an intention to ignore the road rules. You were driving whilst having had your [licence] suspended. You were on bail at the time for the offence of violence against your former partner. You don’t have the benefit of youth, you were a mature man. You still obviously are. And you do have a significant traffic history.
In all of those circumstances in my view having regard to the authorities to which I’ve been referred the appropriate head sentence is one of seven and a half years imprisonment.”
The appellant’s submissions
[38] Counsel for the appellant submitted that this was an exceptionally serious example of the offence of dangerous driving. He submitted –
“The respondent, a mature man with a relevant criminal history and an appalling traffic history, who was on bail and unlicensed, used his vehicle as a weapon against two men who were in another vehicle before he pursued that vehicle in a rage at high speed. Over a short distance he caused the driver of one vehicle to take evasive action to avoid a collision and get out of harm’s way. He drove through two intersections against the red lights. At the second of those intersections he collided with another vehicle, killing three young people and seriously injuring another young person in that vehicle. The consequences of his conduct were catastrophic.”
[39] He submitted –
(a) that the quality of the respondent’s driving was the central consideration, and that the short distance and short space of time over which it extended did not detract from its seriousness. Its consequences were neither unexpected nor unforeseeable as a result of that conduct. It warranted condign punishment to reflect properly the serious nature of the conduct and its consequences, to denounce such conduct, to achieve personal and general deterrence, and to protect the community;
(b) that the use of the motor vehicle as a weapon made the offending at least comparable to, if not more serious than, cases involving alcohol;
(c) that the use of the motor vehicle as a weapon was not an isolated, aberrant act, as the respondent had previously threatened to use a motor vehicle as a weapon if he were confronted by police;
(d) that there should have been little discount for the guilty plea because the Crown case was overwhelming and the conviction inevitable;
(e) that the respondent should not have been driving: his licence was suspended;
(f) that his committing the offence while on bail for an offence of violence showed he had little respect for the law and a determination to continue to offend;
(g) that his criminal history tended against there being good prospects of rehabilitation;
(h) that his traffic history showed a propensity for dangerous behaviour and a need to protect the community;
(i) that his leaving the scene, evading police and refusing to provide a specimen of breath showed a concern to escape the consequences of his actions, a callous disregard for his victims and little or no remorse.
[40] He submitted that the sentencing judge had erred –
(a) “in looking at the offending in relation to the assault in isolation to determine the appropriate penalty and also whether that offending should be served cumulatively with the driving offence”;
(b) in imposing a sentence for the dangerous driving that was “plainly unreasonable in the sense of the second category identified in R v House”:[5] it did not properly reflect the serious nature of the driving, or the entire criminality, or adequately reflect the considerations of deterrence, denunciation or retribution, or properly protect the community in light of the respondent’s driving history.
[41] Counsel for the appellant submitted that the sentencing judge ought to have taken a term of more than 10 years imprisonment as the starting point, and, after moderating it for the plea of guilty and the respondent’s personal circumstances, imposed a head sentence of nine to 10 years imprisonment for the dangerous driving offence, to be served cumulatively on the six months for the assault.
[42] He submitted that, given the serious nature of the offence, aggravating circumstances and the need to protect the community, there should be a declaration of conviction of a serious violent offence or at least the postponement of eligibility for parole beyond fifty per cent of the term of imprisonment. Of course, a sentence of 10 years or more for dangerous operation of a motor vehicle would necessarily result in a serious violent offence declaration.[6] Referring to R v Powderham,[7] he submitted that it would also be mandatory to make such a declaration if cumulative terms of six months for the assault occasioning bodily harm and nine and a half years for the dangerous driving were imposed.
[43] Counsel for the appellant acknowledged that his submission as to the appropriate level of penalty differed from that made by the prosecutor before the sentencing judge. He submitted that, because this was an exceptional case, in which the sentencing judge had failed to appreciate the seriousness of the offending, this Court should intervene to impose the appropriate sentence.
The respondent’s submissions
[44] Counsel for the respondent submitted that it was within the sentencing judge’s discretion to make the sentences concurrent. He submitted –
(a) that had the respondent been dealt with only for the assault occasioning bodily harm, it was likely he would not have been required to serve actual custody. This was because his conduct was towards the lower end of the spectrum of such offending, there had apparently been some reconciliation between him and his former de facto such that he had amicable access to their children, and he had not reoffended in that fashion;
(b) that to make the sentences cumulative would be to increase the punishment for the assault because of subsequent conduct which did not go to the criminality of that offence or culpability for it.
[45] Alternatively, he submitted that this Court should consider the totality of the sentence to determine whether it was manifestly inadequate.
[46] He submitted that the substance of the dangerous driving charge was the respondent’s conduct in driving along the road at speed and through two red lights, not the use of the motor vehicle as a weapon. The respondent’s earlier threat to use a motor vehicle as a weapon had been made 12 months previously, and had not been carried through.
[47] In addressing the significance of the plea of guilty, counsel for the respondent submitted that, given the respondent was taken or helped from his motor vehicle with an apparent head injury, it could not be said it was inevitable that the circumstance of aggravation of leaving the scene would be made out.
[48] Further, he submitted, it could not be said that the respondent’s leaving the scene was indicative of a callous disregard for the plight of others involved in the collision. He had himself been injured, and other persons had arrived on the scene to render assistance to the occupants of the Mitsubishi. By the time he left the scene, others would have contacted emergency services. His leaving the scene did not lead to his escaping timely apprehension by the police.
[49] He submitted that the sentence imposed was not manifestly inadequate when considered in the light of comparable decisions.
[50] Finally, he submitted that this Court ought not to accede to the submissions of counsel for the appellant which went beyond those made to the sentencing judge by the prosecutor, because this case was not an exceptional one.
That the appellant sought a longer sentence than that sought by the prosecutor at first instance
[51] It is only in an exceptional case that this Court will intervene to increase a sentence to a level higher than that sought by the prosecutor at first instance. Usually a party is bound by his conduct of a case at first instance. However, the ultimate responsibility for the imposition of an appropriate sentence rests with the sentencing judge rather than the prosecutor,[8] and this Court will intervene where the sentencing judge failed to appreciate the seriousness of the offending[9] or it is necessary to maintain public confidence in the administration of justice.[10] In R v Wilde; ex parte A-G (Qld)[11]the sentence imposed on appeal exceeded not only that sought by the prosecutor at first instance, but also that sought by the Attorney-General on appeal.
[52] In my view this is a case where the sentencing judge failed to appreciate the seriousness of the offending.
The seriousness of the offending
[53] This was an extremely serious case of dangerous driving, in terms both of the quality of the respondent’s driving (albeit over a short distance) and of its catastrophic consequences. It began with the respondent’s accelerating his vehicle from its parked position at the gutter into the path of oncoming traffic and ended with the collision at the intersection of Bertha Street and Brisbane Road. As he accelerated from the gutter, he caused Ephlick to take evasive action. He deliberately hit Wood’s vehicle twice, and then continued to use his own vehicle in an aggressive pursuit of Wood. In the course of doing so, he almost hit the rear of Ephlick’s vehicle, causing her to drive through a red light and, apparently unbeknown to him, to turn into Mill Street to avoid a collision. He drove through a red light at the Mill Street intersection, and continued at excessive speed into the Brisbane Road intersection, in defiance of another red light and without heeding the approach of the Mitsubishi on his right. Three people were killed and a fourth seriously injured.
[54] The respondent’s initial use of his vehicle as a weapon was part of the whole incident rather than something antecedent to it. The sentencing judge rightly treated the use of the vehicle as a weapon as going to the seriousness of the offending, but did not also address the importance of deterrence in this context. As McPherson JA observed in R v Theuerkauf & anor; ex parte A-G (Qld) –[12]
“A vehicle is properly regarded as a form of conveyance for people and goods. When it is transformed into a weapon against unprotected human flesh … an offence in the use of it takes on a particularly serious dimension. There is then a very compelling reason for stressing the deterrent aspect of punishment in a case like that.”
That the respondent had threatened to use a vehicle as a weapon before (albeit 12 months previously and without carrying out the threat) and that he was continuing to use his Toyota aggressively when the collision occurred were further warrant for emphasising the importance of personal as well as general deterrence in this case.
[55] The sentencing judge said –
“And I want to make it clear to you that the penalty I’m about to impose on you in no way reflects the loss of life. And the number of years that you serve in gaol does not equate with even one life lost let alone three.”
Her Honour may have meant simply that human life is priceless, and that there can never be any true equivalence between a sentence and loss of human life. Nevertheless, her statement betrays a failure to appreciate fully the relevance of the consequences of the respondent’s offending in the sentencing process. Generally, the extent of the punishment for an offence may depend upon the extent of the damage caused by it. In R v Amituanai,[13] where the offender pleaded guilty to one count of doing grievous bodily harm, Pincus JA said –[14]
“... for reasons which are evident enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain. That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and the offender ... The applicant may well, having served a period of imprisonment, leave the whole affair largely behind him; the victim can never do so and his prospects of a happy and useful life are gravely and permanently impaired.”
Thomas and White JJ (as their Honours then were) agreed with those comments and added –[15]
“…vindication is one of the many functions of the sentencing process, and it is an evident matter in the present case. Unless courts are seen to inflict real punishment, victims and their families may be tempted to exact their own form of revenge. That is not to say that cases may not arise in which this factor will be outweighed by the benefits of rehabilitation.”
In R v Tufuga[16] Williams JA referred to the remarks of Pincus JA, and added –
“Generally in the criminal law a blow which by good luck has caused little damage will attract a lower penalty though there was a risk of it causing catastrophic results.”
[56] Although the respondent had been having a few drinks with the other people at 24 Bertha Street when Wood and his mate arrived, there was no evidence that he was adversely affected by alcohol or any other intoxicant. He was not charged with the circumstance of aggravation of being adversely affected by alcohol. Quite properly, the sentencing judge did not treat his having had a few drinks as a factor supporting a higher sentence than otherwise appropriate.
[57] The sentencing judge described the respondent’s traffic history as very significant. It was appalling. That traffic history, together with his criminal history and his having committed the dangerous driving offence while on bail, were indicative of lack of respect for the law. These matters elevated the level of criminality in the offending. They also demonstrated a need to protect the community, which was not directly addressed by the sentencing judge.
The pleas
[58] The respondent pleaded guilty to both offences. The sentencing judge was required to take those pleas into account in determining the sentences, and it was within her Honour’s discretion to reduce the sentences on account of them.[17]
[59] This is often done by reducing the head sentence or by setting an early parole eligibility date, or a combination of both. However, as this Court observed in R v D[18] and again in R v Mahony & Shenfield,[19] there may be occasions where it is not appropriate to offer any reduction in an otherwise appropriate sentence on account of a plea of guilty. Indeed, in the case of a serious violent offence (and the dangerous driving in this case was such an offence), a sentence of imprisonment of 10 years or more necessarily attracts a minimum non-parole period of 80 per cent of the term of imprisonment.[20]
[60] According to the agreed statement of facts in relation to the dangerous driving, the respondent was not wearing a seatbelt at the time of the collision, and he sustained an injury to his head when it hit the front windscreen of his vehicle. Collins observed blood coming from his face, but found him responsive. He was helped or taken from his vehicle and then left the scene, but managed to evade police for up to an hour. I do not accept counsel for the respondent’s submissions that it was not inevitable that the circumstance of aggravation of leaving the scene before police arrived when he ought reasonably to have known that four persons had been injured would be established. The sentencing judge’s comment that he left the scene without showing any concern for anyone else was fully justified. These matters should have been taken into account as moderating the mitigating effect of the plea in relation to that offence.
Concurrent or cumulative sentences?
[61] The sentencing judge had to impose condign punishment for two offences committed twelve months apart. Her Honour had a broad discretion whether to impose concurrent or cumulative terms.
[62] Her Honour’s observation that it was likely the respondent would not be required to serve actual custody were he being sentenced only for the assault was soundly based. Further, when imposing cumulative sentences, a Court must have regard to the totality principle – that is, it must ensure that the overall sentence is not unduly onerous.[21]
[63] Whether her Honour erred in imposing concurrent rather than cumulative terms cannot be considered in isolation from consideration of the adequacy of the term she imposed for the dangerous driving.
[64] In R v Van Der Zyden[22] Muir JA (with whom the other members of the Court agreed) reviewed relevant authorities about the exercise of that discretion. In that case the appellant referred to R v Harris,[23] a decision of the New South Wales Court of Criminal Appeal where the principles relating to the imposition of concurrent or cumulative sentences were discussed and the need for the adequate punishment of separate offences was emphasised. Muir JA pithily summarised the authorities when he said –
“[107]Harris does not expound, and the appellant does not go as far as submitting that … there is a universal fixed principle which requires a sentencing judge to impose cumulative rather than concurrent sentences where the offender is being sentenced for a number of offences committed at different times and in different places. What is essential is that sentences imposed properly reflect the overall criminality of the offending conduct. Where the offences are discrete, subject to the application of the totality principle, cumulative sentences will normally be more appropriate.” (Emphasis added.)
Comparative sentences
[65] Counsel helpfully referred this Court to other cases of dangerous driving in which the maximum penalty was 14 years imprisonment. Of course, except where the Legislature has prescribed a mandatory penalty for an offence, sentencing requires the exercise of a judicial discretion and there can never be only one sentence that is correct. The goal must be the imposition of a sentence within the range that is appropriate in all the circumstances. Further, none of the cases to which counsel referred involved the aggravating feature in this case – namely, the offender’s leaving the scene before police arrived when he ought reasonably to have known that four persons had been injured.
[66] In R v Frost; ex parte A-G (Qld)[24] the offender pleaded guilty to the dangerous operation of a motor vehicle causing death, whilst adversely affected by alcohol. The maximum penalty was 14 years. The dangerous driving extended over a prolonged period and a distance of over 14 kilometres. The offender had a very high blood alcohol concentration and “felt” that he was “over the limit”. He continued driving despite his passenger’s express concern about his ability to maintain control over his vehicle, refusing repeated requests to stop and let the passenger out. He struck three pedestrians, killing them. When he was told he had struck them, he callously continued to drive, and sought help only for himself. He was aged 24 at the time of the offending and 25 at sentence. The Court described his driving record as poor. Although initially he showed no remorse, by the time of the sentence he felt an immense sense of guilt. The sentencing judge imposed nine years imprisonment and recommended that he be eligible for post prison community based release after three and a half years. This court considered that a sentence of 10 years imprisonment, which would have automatically carried non-eligibility for such release until he had served 80 per cent of that term, would have been justified, and that he had been sentenced at the lower end of the applicable range. By majority, it allowed the Attorney-General’s appeal to the extent of removing the recommendation for early eligibility for release, the effect of which was to make him so eligible after serving 50 per cent of the term.
[67] In R v Sanderson[25] the offender was a 28 year old woman who pleaded guilty to dangerous driving causing death with the circumstance of aggravation that her blood alcohol concentration exceeded .15. She was speeding when she lost control of her vehicle and collided with a power pole, killing her two passengers. She had been drinking late the night before and again during the day of the accident. Two hours after the accident her blood alcohol level was .245. She was unlicensed at the time and on probation for offences of dishonesty. She had previously been convicted of unlicensed driving and driving under the influence of liquor when her blood alcohol level was .224. She appealed against her sentence of six and a half years imprisonment with a recommendation for parole eligibility after two years and nine months. This Court allowed the appeal only to the extent of altering the time for parole eligibility to two years and three months, in order to reflect her plea and remorse.
[68] R v Vessey; ex parte A-G (Qld)[26] was a case of dangerous driving causing death whilst under the influence of liquor, which attracted a maximum sentence of 14 years imprisonment. One and a half hours after the accident the offender had a blood alcohol concentration of at least .2. He was a mature aged man who drove on the wrong side of the road for about 150 metres causing another vehicle to take evasive action. He drove around a corner and through an intersection without heeding a give-way sign. He collided with another vehicle killing the driver. The Court described him as having driven his vehicle when he was demonstrably incapable of exercising proper control over it, with tragic consequences. He had a persistent history of driving under the influence of liquor and dangerous driving. He had several disqualifications from driving, including two absolute disqualifications. At first instance he was sentenced to six and a half years imprisonment with a recommendation for parole eligibility after 26 months. On an appeal by the Attorney-General, the sentence was increased to nine years imprisonment, with a recommendation after four years.
[69] Another case of some assistance is R v Wilde; ex parte A-G (Qld).[27] The offender pleaded guilty to various offences on three indictments. One of these was dangerous driving causing death, to which he pleaded guilty on an ex officio indictment. The maximum penalty for the dangerous driving was seven years imprisonment. The court described his conduct as approaching the worst examples of the offence. It involved an aggregation of reckless inattention over a substantial distance, reduced alertness through fatigue, callous flight from the scene, driving whilst unlicensed and on bail for other charges, and driving a stolen vehicle. He had lengthy criminal and traffic histories. His overall sentence of three years and 10 months imprisonment with a recommendation for parole eligibility after 18 months, together with an absolute disqualification, was increased on appeal. The imprisonment was increased to an overall period of six and a half years with a recommendation after three years. The Court said that the starting point should have six years imprisonment for the dangerous driving – that is, a term approaching the maximum. The six years should have been reduced to five years on account of pre-sentence custody and having regard to the totality principle, as a cumulative term of one and a half years was to be added for the other offending.
[70] Finally, R v Robertson[28] was a case in which the offender’s dangerous driving resulted in the death of one person, grievous bodily harm to another, and bodily harm to three others. He was convicted after trial of manslaughter of the first victim, for which the maximum penalty was life imprisonment, and three counts of doing bodily harm (to the third, fourth and fifth victims). He pleaded guilty to dangerous driving causing grievous bodily harm to the second victim. After verbal exchanges of insults between the offender and his passengers on the one hand and the deceased on the other and what the offender interpreted as a rude gesture made by the deceased, the offender reversed and then drove after the deceased’s vehicle, colliding with the rear of it at a speed perhaps less than 60 kph. The deceased accelerated and drove through a red light. The two vehicles accelerated to at least 70 to 80 kph as they drove up a rise, whilst the offender deliberately rammed the rear of the deceased’s vehicle several times. As they travelled downhill the offender drove directly into the rear of the deceased’s vehicle, the final collision occurring at 120 – 140 kph. The deceased’s vehicle spun out of control and collided with a pole. The deceased was killed instantly, and his passengers were injured. The offender left the scene. Fraser JA described the offender’s conduct as having arisen out of an extravagant overreaction in the circumstances. His Honour said it was a very bad example of the offences, but that it did not have those additional features such as evasion of the police, disregard of a police direction, or considered persistence in highly dangerous driving over a long period and distance which would have put it in the worst category of dangerous driving or criminal negligence. Sentences imposed at first instance of 14 years imprisonment for the manslaughter and 12 years for the dangerous driving causing grievous bodily harm were reduced on appeal to 12 years and 10 years respectively.
Disposition
[71] In all the circumstances I consider that concurrent terms of seven and a half years for the dangerous driving and six months for the assault occasioning bodily harm with parole eligibility after two and a half years manifestly failed to reflect the overall criminality of the respondent’s conduct.
[72] I would impose a sentence of 10 years imprisonment for the dangerous driving. A declaration of conviction of a serious violent offence would necessarily follow. I would not interfere with the sentence of six months imprisonment for the assault occasioning actual bodily harm. Making the sentence for the dangerous driving concurrent with the sentence for the assault would properly reflect the overall criminality.
Orders
[73] I would make the following orders:
1.Appeal against sentence allowed.
2. Sentence varied by increasing from seven and a half years to 10 years the term of imprisonment for dangerous operation of a vehicle causing death and grievous bodily harm and leaving the scene before police arrived.
3.Declare conviction of that offence to be conviction of a serious violent offence.
[74] DOUGLAS J: I agree with the reasons of Margaret Wilson J and the orders proposed by her Honour.
Footnotes
[1] Criminal Code (Qld) s 339(1).
[2] Criminal Code (Qld) s 328A(4)(c).
[3] Penalties and Sentences Act 1992 (Qld) s 187. There was no challenge to the absolute disqualification either at first instance or on appeal.
[4] Notice of appeal AR 115 – 116.
[5] Transcript of appeal hearing 1-4.
[6] Penalties and Sentences Act 1992 (Qld) ss 161A, 161B.
[7] [2002] 2 Qd R 417.
[8] R v KU; ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439 at 465 [100]–[101].
[9] GAS v The Queen (2004) 217 CLR 198 at 213-214 [40]; R v KU; ex parte Attorney-General (Qld) (No 2) at 464 [97], 465-466 [102], 467 [108].
[10] Everett v The Queen (1994) 181 CLR 295 at 306.
[11] (2002) 135 A Crim R 538.
[12] [2003] QCA 94.
[13] (1995) 78 A Crim R 588.
[14] At 589.
[15] At 596 – 597.
[16] [2003] QCA 171 at [20].
[17] Penalties and Sentences Act 1992 (Qld) s 13(1).
[18] [2003] QCA 547.
[19] [2012] QCA 366 at [52].
[20] Penalties and Sentences Act 1992 (Qld) ss 161A, 161B; Corrective Services Act 2006 (Qld) s 182.
[21] Mill v The Queen (1988) 166 CLR 59; R v Clements (1993) 68 A Crim R 167.
[22] [2012] 2 Qd R 568 at 593-594 [104]-[109].
[23] (2007) 171 A Crim R 267.
[24] [2004] QCA 309.
[25] [1998] QCA 237.
[26] [1996] QCA 11.
[27] (2002) 135 A Crim R 538.
[28] [2010] QCA 319.