R v Boubaris[2014] QCA 199

SUPREME COURT OF QUEENSLAND

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

2. FRASER JA:  I agree with the reasons for judgment of Morrison JA and the order proposed by his Honour.

3. MORRISON JA:  The applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death.  The offence occurred on 5 June 2012. The applicant was sentenced on 19 June 2014 to 18 months imprisonment, to be suspended after serving a period of three months, for an operational period of 30 months.  In addition, the applicant was disqualified from holding or obtaining a driver’s licence for a period of 18 months, from 19 June 2014.

4. Leave is sought to appeal against sentence.

Grounds of appeal

5. There were three grounds articulated in the challenge to the sentence. They are:

1. in taking the concentration of methylamphetamine into account and sentencing on the basis that the applicant was driving with the knowledge that he had ingested methylamphetamine, and that he was prepared to expose others to the risk that the substance might affect his driving, the learned sentencing judge fell into error; that error was identified as acting on a wrong principle and taking extraneous and irrelevant matters into account;

2. the learned sentencing judge erred in finding that the inattention involved was more than momentary; and

3. the period of three months actual custody was manifestly excessive and his sentence should have been wholly suspended.

Circumstances of the offence

6. The learned sentencing judge proceeded on an agreed schedule of facts^[1] which was supplemented to some extent in oral submissions.

7. On 5 June 2012 the applicant was driving north in the left hand lane on the Bruce Highway in the vicinity of the Glasshouse Mountains.  He was driving a Mitsubishi Fuso rigid body concrete pumping truck.  There was a passenger in the truck, a close friend of the applicant.

8. The part of the highway on which the applicant was driving at the time was straight, and the weather was fine and clear. The applicant drove the truck off the left hand side of the highway and it overturned, coming to a rest on its left hand side. The truck was almost perpendicular to the highway when it came to rest.  In the course of its travel after it started to leave the road, it collided with the leading edge of a guard rail that was protecting the southern approach to a bridge, destroying several metres of the guard rail.  The distance from where the truck left the carriageway to that guard rail was approximately 44 metres.

9. When the truck moved to the left off the left hand lane, the passenger side tyres had to pass over a white line and a safety device installed on the roadway, namely one which alerts drivers by the vibration it makes against tyres. Counsel for the applicant accepted that the presence of the safety device and the signal it would have sent was a relevant matter to take into account.^[2]

10. The deceased was lying inside the cabin, but his head was out of the front passenger window, and pinned beneath part of the truck cabin. The position of the seatbelts indicated that neither the applicant nor the deceased were wearing seatbelts at the time of the crash.

11. The manner in which the truck left the road was described by a number of eye witnesses. The first described it in these terms:

“I was travelling in the left hand lane.  The traffic was getting a little bit heavier which I would have probably overtaken at some point when the traffic was clear.  I was doing probably between 90 km/h and 100 km/h…I saw the truck going out to the side of the road gradually… I started to slow down expecting him to veer back in again and to keep driving.  I saw the truck going out onto the shoulder of the road and then it was pretty instant that I saw the truck flip.”^[3]

12. The second was driving in the right hand lane behind the truck. He described it in this way:

“I was travelling at about 100 km/h.  There was a truck in the left hand lane and then there was a car and a four wheel drive behind the truck.  I saw the truck hit the guard rail on the left and flip over.  The truck was about 30 metres in front of us when it crashed.  There were no cars in front of us ...”^[4]

13. The third was driving north in the left hand lane, ahead of the truck. He said that he looked in the rear vision mirror and noticed the truck.  He estimated the truck was travelling at 100 km/h, because he was travelling that fast and the truck was maintaining distance behind him.  He then said:

“The road had a very slight curve in it to the right.  I saw that the truck seemed to keep going straight ahead… I saw it cross the white line.  There was no speed change in the truck.  There was no braking.  It just kept going.  I watched it disappear off the edge of the road and I knew it went down into a culvert.  I saw the back of the truck come up and it went end over end.”^[5]

14. Diagrams drawn of the scene^[6] reveal that the truck moved out of the left hand lane, onto the bitumen strip to the left of that lane.  The left hand wheels then moved onto the grass verge beside the bitumen until the point at which it started to roll.  That distance covered in that process seems to have been about 44 metres.

15. A blood specimen was taken from the applicant at Nambour Hospital.  It disclosed the presence of methylamphetamine in a concentration of 0.54 milligrams per kilogram.  Whilst that level was said by the prosecutor to be “well into the range known to be associated with driving impairment”,^[7] a forensic medical officer had noted that the applicant was reported by witnesses to be driving steadily and normally, and that the ambulance records did not note any sign or symptoms of his being affected by the methylamphetamine, and in particular no dilated pupils.  Pupil dilation was said by the forensic medical officer to be the “single most important observation” in relation to methylamphetamine intoxication.^[8]  For that reason the prosecutor told the learned sentencing judge that the medical officer:

“couldn’t provide an opinion that the defendant was adversely affected.  So it’s a fact brought to your Honour’s attention for sentence, but, clearly, the Crown didn’t proceed on a circumstance of aggravation.  It cannot do so. There’s no medical evidence to support that.”^[9]

16. The applicant declined to participate in a record of interview following the event.

The applicant’s antecedents

17. The applicant was born on 14 November 1984 and was therefore about 27 and a half years old at the time of the offence.  He was 29 and a half years old at the date of sentence.

18. The applicant had a criminal record stretching back to when he was about 19. From 2004 until 2009 he seemed to offend each year, though for offences not directly relevant to that which is the subject of this application. Included are convictions for assaulting or obstructing police officers, a breach of a probation order^[10], committing public nuisances and urinating in a public place.  In 2009 the applicant breached a probation order imposed in relation to driving while under the influence of liquor, and driving an unregistered and uninsured vehicle.  Finally in 2012 the applicant was convicted of drug offences.  Subsequent to the commission of the offence the subject of this application, the applicant committed a breach of bail for which he was convicted.

19. The applicant’s traffic record is more concerning. Since 2002 there have been a fairly consistent number of offences including unlicensed driving, speeding offences, following another vehicle too closely, alcohol related charges and driving in a way that made unnecessary noise.  More concerning are several convictions in 2005 and 2008 for driving under the influence of alcohol, two for failure to wear a seatbelt in 2010, crossing a continuous white line in 2011 and speeding and driving whilst using a phone in 2012.

20. Even more concerning are the five offences which occurred subsequent to the events the subject of this application.  Four of those are for speeding offences and one for driving while using a mobile phone. An explanation was given for three of the speeding offences committed subsequent to this offence.  That explanation was that they all occurred on the one day,^[11] but occurred when the applicant crossed the border from the Northern Territory into Queensland, west of Camooweal.  The speed limit in the Northern Territory was 130 km/h and the applicant apparently continued to travel at that speed when crossing the border.

21. In any event the traffic history was such that the applicant’s counsel conceded that “personal deterrence looms large here”.^[12]

22. Since the offence was committed the applicant had commenced a de-facto relationship with the woman who was the de-facto of the deceased. The deceased was a close friend of the applicant and their relationship had developed in the aftermath of these events.  At the time of sentence they were living near Brisbane and the applicant’s de-facto was expecting their first child.

23. The applicant was supported in court by the parents of the deceased as well as the applicant’s de-facto.  A letter supporting the applicant was tendered on behalf of the deceased’s parents^[13] expressing the view that the applicant had suffered along with the deceased’s family, and urging that he not serve any time in prison.

24. A letter from the de-facto was also tendered^[14] detailing the close relationship between the applicant, the deceased and herself.  It also detailed how she and the applicant became “very strong support for each other at a time when we both needed strength”.^[15]  As well she detailed how they had moved to the Northern Territory in the beginning of 2013 and wished to return to work and their home in the Northern Territory after the trial.  She described the applicant as “the financial carrier for the family”, and the provider of emotional support.

25. Two references were tendered, one from the employer of the applicant at the time of sentence,^[16] and another from a close friend of the applicant and his family who was also an employer in Darwin.^[17]  The references described the applicant as honest and hard-working and a reliable team member, and an outstanding employee.  The reference from the employer in the Northern Territory dealt with the work available in the Northern Territory and his willingness to give the applicant employment.

Ground 1 – Discussion

26. The applicant contends that the learned sentencing judge erred “in taking the concentration of methylamphetamine into account and proceeding on the basis that the [applicant] was driving with the knowledge that he had ingested methylamphetamine and that he was prepared to expose others to the risk and that the substance might affect his driving”.^[18]

27. The reference to the presence of methylamphetamine in the applicant’s blood was raised by the prosecutor.^[19]  Having said what the level was, and that it was “high and it’s a level well into the range known to be associated with driving impairment”, the prosecutor went on to explain that a forensic medical officer did not identify any symptom that could be attributed to the use of the drug.^[20]  In particular, the “single most important observation” in relation to methylamphetamine intoxication was identified as pupil dilation,^[21] which was absent.  In addition, that medical officer noted that the witnesses reported the applicant to be “driving steadily and normally before the incident”.^[22]  As noted in the schedule of agreed facts:

“Accordingly, he could not provide an opinion that the defendant was adversely affected – “when a person is reported to be driving normally and there are no visible signs of intoxication reported, then it is difficult to be certain that the driver was impaired at the time of the crash”.”^[23]

28. In the first exchange between the prosecutor and the learned sentencing judge it was made clear that the Crown did not proceed on a circumstance of aggravation.^[24]  Then, in the course of discussing comparable cases, the sentencing judge returned to the question of the methylamphetamine in the blood system saying “Your submission was ambiguous, or at least I was unsure as to what you submit I can or should do as a result of that feature”, and that the prosecutor had said that “the Crown was not relying upon it as a circumstance of aggravation, but I thought you said it was relevant to the inattention”.^[25]  The response from the prosecutor was:

“I believe I expressed it may have contributed, but, look, let me clarify that submission.  Your Honour has to take it into account as a fact in all the circumstances that he had that level of methylamphetamine, but there’s no medical opinion to express that he was adversely affected as a result of it”.^[26]

29. In response to a question by the sentencing judge as to whether the level of the drug had any particular significance, the prosecutor then took his Honour through the evidence of the medical officer.  That ended with the prosecutor referring to the fact that the applicant’s pupils were normal and reactive throughout his examination, and:

“So in the absence of that key observation, that was the particular [determinant] in that he simply couldn’t express an opinion.  Does that assist your Honour?

HIS HONOUR:  Yes.  Thank you.  So it’s relevant, but I don’t – but you’re not submitting how relevant?

MR STARK:  Effectively, yes.”^[27]

30. When counsel for the applicant addressed the learned sentencing judge he said, with reference to the issue of seriousness of the driving, that “the methylamphetamine in the system is relevant to this too”.^[28]  However, he went onto emphasise that there was no indicia of any adverse affect from the use of the drug.

31. In his sentencing remarks the issue of the methylamphetamine was dealt with in this way:

“A blood specimen was taken from you at 5.15 on the 5^th of June – 5.15 pm.  It disclosed a concentration of methylamphetamine of 0.54 milligrams per kilogram.  This was a high level well into the range associated with driving impairment.  Forensic medical officer, Dr Ian Mahoney, noted that witnesses reported you to have been driving steadily and normally before the incident and noted that ambulance records did not note any signs or symptoms that could be attributed to methylamphetamine use.  It was submitted, and I accept, that pupil dilation is the single most important determinant for estimating the degree of impairment related to methylamphetamine use and that your pupils were not known to be dilated.  The Crown does not proceed on the basis that this concentration of methylamphetamine is a circumstance of aggravation.  The Crown, however, does submit that it has some relevance, though that relevance was not more fully explained.  I proceed on the basis that you were driving with knowledge that you had ingested methylamphetamine and that you were prepared by driving to expose others to the risk that the substance might affect your driving.  I do not proceed on the basis that it affected your driving.”^[29]

32. Whilst the applicant’s submissions focus on the penultimate sentence of that paragraph, it is plain that the learned sentencing judge proceeded to sentence on the basis that the methylamphetamine use had no impact on the driving.  As was submitted by both the prosecutor and counsel for the applicant, the correct focus for his Honour was on the seriousness of the driving.  The next paragraph of the sentencing remarks reveals that that is what, indeed, his Honour did focus on.  Read in that context, the reference to the applicant driving with knowledge that he had used the drug, and that by driving in those circumstances he was prepared to expose others to the risk that it might affect him, was a reference to an aspect of the seriousness of the applicant’s driving only. That is, his Honour did not take the methylamphetamine intoxication into account as an aggravating factor.

33. Whilst it is true that the medical evidence was that a concentration of 0.54 milligrams per kilogram was well above the level at which toxic effects were usually evident^[30] the intensity of the effects were dependant upon, inter alia, the degree of tolerance that develops with regular use.^[31]  Further, whilst the particular concentration was a “high level well into the range well associated with driving impairment”,^[32] his Honour expressly proceeded on the basis that the evidence established that there was, in fact, no impairment.  Accordingly, all that the mention of methylamphetamine in his Honour’s reasons could signify, was that since it was about five time above the level at which impairment would normally become evident, and the applicant drove knowing he had the drug in his system, the applicant exposed others to the risk the drug might affect him.

34. The applicant’s contention in this regard was to characterise the effect of his Honour’s approach as being that he took into account a circumstance of aggravation, when none was alleged.^[33]  His Honour’s reference to the issue of methylamphetamine did not have that effect, and did not expose the applicant for an offence other than that which he was charged.

35. Once the learned sentencing judge’s comments are properly understood, they do not sustain the applicant’s contentions.  I do not consider that any error in this respect has been demonstrated. 

Ground 2 – Discussion

36. This ground focussed on the learned sentencing judge’s characterisation of the inattention involved in the driving as being more than momentary.  In this respect the applicant referred to the use of the phrase “momentary inattention” in R v Gruenert; ex-parte A-G (Qld)^[34] and R v Proesser.^[35]  The use of the expression in each of those cases was merely a way of characterising the seriousness of the driving.  As this Court made clear in R v MacDonald^[36] those decisions do not lay down any empirical formula by which one can say that one offence is an offence of momentary inattention, and another is not.^[37]  Every case depends on its own facts and in every case the crucial issue is not what category best fits the facts, but rather “the level of seriousness of the actual driving of the offender”.^[38]

37. It is plain that the learned sentencing judge focussed on the seriousness of the driving.  His analysis included these factors: the applicant was probably driving at about 100 kilometres per hour; he was maintaining a standard distance in a line of traffic; he was not weaving; there was nothing exceptional with the driving until he began to veer off the marked lane to the left; in doing so he had to cross a white line and safety features which cause vibration and sound; there was no change in the speed of the vehicle and no braking; the course of travel before colliding with the metal rail was a gradual one and for such a distance that one would ordinarily expect that the driver would have observed it and adjusted; the manoeuvre was not one that required any particular skill and the inattention was not the same as if the truck had been approaching an intersection or carrying out a particular manoeuvre; in those circumstances the inattention could be characterised as brief but not momentary.

38. In my opinion it has not been demonstrated that his Honour fell into any error in the way in which he approached the critical question, namely the characterisation of the seriousness of the driving.

Ground 3 – Discussion

39. This ground focussed on the component of the sentence requiring three months actual custody, and it was contended that the sentence should have been wholly suspended. No attack was made on the head sentence.

40. The applicant sought to distinguish this case from Gruenert and Proesser, and to draw support from R v Hopper; ex parte Attorney-General (Qld).^[39]

41. Gruenert involved the driver of a truck which overtook a utility towing a caravan.  The vehicles were travelling on a straight stretch of highway, on a fine clear day.  At the point at which the truck moved alongside the utility it then veered back into the lane in which that vehicle was travelling, before the truck had fully passed it.  In order to avoid a collision the driver of the utility veered left, and then when he tried to get back onto the road the utility flipped over.  The driver of the utility died as a result of injuries sustained in the accident. There was no contact between the truck and the other vehicles.

42. The truck driver had no previous convictions of a criminal nature or for traffic offences, notwithstanding that he had been driving for over 30 years. He also had an exemplary character.  The primary judge characterised the driving as “a dangerous act but of a momentary nature of pulling in when there was some threat from the vehicle coming in the opposite direction, it was not over a long period of time obviously, and there is no alcohol involved and no excessive speed”.^[40]  The Court of Appeal agreed with the characterisation of the offence as one of “momentary inattention”, and was not persuaded that the sentence was manifestly inadequate.  A conclusion that such a sentence is not manifestly inadequate does not lead to a conclusion that a period of actual custody in a similar case is manifestly excessive.  Indeed, in Gruenert the court examined a number of comparable authorities, and said:

“From a consideration of the decisions of this Court in Harris,^[41] R v Balfe,^[42] R v Manners; ex parte A-G (Qld)^[43] and R v Anderson; ex parte A-G (Qld),^[44] it emerges that in a case of dangerous driving which causes death:

(a)a head sentence of 18 months imprisonment is at the bottom end of the range;

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

(c)the imposition of a custodial sentence is not, however inevitable in every case; and

(d)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.”^[45]

43. Far from supporting the proposition that a period of custody is manifestly excessive, Gruenert stands for the opposite proposition.

44. In Proesser the offender was sentenced to 18 months’ imprisonment, suspended after serving three months, for an operational period of 18 months.  He was driving along a residential road towards an intersection, at a speed of 70 kilometres per hour.  He looked down to adjust his radio and when he looked back up he saw that the lights had turned amber and the car in front of him had stopped.  In an attempt to avoid a collision he braked and swerved left.  His vehicle skidded and hit the complainant, who was on a pedestrian crossing.  The pedestrian suffered grievous bodily harm, which was the focus of the charge against Proesser.  No death was involved.

45. On appeal the court took the view that the brief period of inattention, generally good character and conduct, and distress at what had been done, made the sentence of actual imprisonment an unnecessarily hard one.  The court referred to the fact that the sentencing judge had not been referred to some of the observations by Keane JA in Gruenert concerning the less compelling nature of the consideration of deterrence in matters of momentary inattention.

46. In my view Proesser does not assist the applicant.  The driving there consisted of looking down to adjust the radio and then reactively swerving left.  In the applicant’s case the inattention was more prolonged, with the truck drifting off the road, across signal lines and safety devices, whilst maintaining its speed.  That in my view indicates a more prolonged period of inattention, and a more serious level of driving than the instinctive reaction in Proesser as a result of adjusting the radio.  Further, Proesser did not involve the death of the victim.

47. Hopper does not assist the applicant either.  It was an Attorney-General’s appeal from a wholly suspended sentence.  In that case the driver was travelling at about 80 kilometres per hour on a semi-rural road at night.  She looked down at her mobile phone to check that she was going in the right direction (using a map function) and thereby drifted off the road and collided with two pedestrians.  One was killed and the other seriously injured.  The driver was an 18 year old young girl who was psychologically vulnerable and undergoing treatment at the time of sentence.  The court unanimously held that a suspended sentence was manifestly inadequate and that a period of about five months’ actual custody would have been warranted.  However, it declined to exercise the residual discretion to interfere with the sentence, primarily on the basis of the offender’s psychological vulnerability, and the level and effectiveness of her ongoing rehabilitative attempts.

48. None of the authorities to which the applicant referred establish that the sentence imposed was manifestly excessive. Indeed, Gruenert, and the review of authorities in that case, demonstrates the contrary.  It is only a rare case of dangerous driving causing death which should not attract a custodial term.  This is not such a case.

Conclusion

49. I would refuse the application for leave to appeal against the sentence.