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R v Osborne[2014] QCA 291

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

21 October 2014

JUDGES:

Holmes JA and McMeekin and Henry JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Application for leave to appeal granted.
  2. Appeal allowed.
  3. Vary the order that the term of imprisonment be suspended after serving a period of 14 months imprisonment and instead order the term of imprisonment be suspended after serving a period of nine months imprisonment.
  4. Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of five years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of one count of dangerous operation of a vehicle causing death and grievous bodily harm – where applicant drove his wide load vehicle past cyclists, striking two with his wide load – where applicant sentenced to three and a-half years imprisonment suspended after 14 months – where applicant disqualified from holding or obtaining a driver’s licence for five years – whether there should be a reduction of the period of suspension of imprisonment – whether there should be a reduction in the licence disqualification period

Criminal Code and Civil Liability Amendment Act 2007 (Qld), s 4

Penalties and Sentences Act 1992 (Qld), s 9, s 187

Transport Operations (Road Use Management) Act 1995 (Qld), s 86, s 131(2)

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied

R v Cunningham [2005] QCA 321, cited

R v Dean (2006) 45 MVR 542; [2006] QCA 256, cited

R v Harris; Ex parte Attorney-General (Qld) [1999] QCA 392, cited

R v Huxtable [2014] QCA 249, distinguished

R v MacDonald [2014] QCA 9, applied

R v Maher [2012] QCA 7, considered

R v Murphy [2009] QCA 93, considered

R v Nhu Ly [1996] 1 Qd R 543; [1995] QCA 139, considered

R v Plath [2003] QCA 567, cited

R v Price (2005) 43 MVR 573; [2005] QCA 52, cited

R v Torrens [2011] QCA 38, followed

COUNSEL:

J R Hunter QC, with J A Greggery, for the applicant

B J Power for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

[1] HOLMES JA:  I agree with the reasons of Henry J and the orders he proposes.

[2] McMEEKIN J:  I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.

[3] HENRY J:  On 22 June 2013 the applicant drove his wide laden truck past a group of cyclists who were riding in single file along the roadside at Shaw Road near Townsville.  The edge of his wide load struck one of the cyclists, causing the death of Susan Bell and grievous bodily harm to Pamela Jensen and John Stokes.

[4] The applicant pleaded guilty to one count of dangerous operation of a vehicle causing death and grievous bodily harm.  On 23 May 2014 he was sentenced to three and a-half years imprisonment, suspended after 14 months for an operational period of four years.  He was also disqualified from holding or obtaining a driver’s licence for five years.

[5] He seeks leave to appeal his sentence, seeking in particular a reduction of the period of suspension of imprisonment and a reduction in the licence disqualification period.

Background

The applicant’s wide load

[6] The applicant worked as a truck driver for his daughter’s formwork construction business.  On the morning of the collision he was transporting urgently required formwork to a site at the Townsville Hospital.

[7] His load protruded about 40 centimetres beyond the ordinary width of the truck tray on each side.[1]  The applicant was to later tell police that he thought his load was 3.5 metres wide.  In fact the load was 3.8 metres wide.  The marked laneway in which the truck was driving at the time of the collision was only 3.4 metres wide.

[8] The applicant was conscious he was transporting a wide load.  He had warning flags attached to the load and the front and rear of the truck bore large yellow and black “Oversized” warning signs.  His failure to have correctly assessed the actual width of the wide load was contrary to his ordinarily meticulous approach to truck safety. According to regulatory guidelines,[2] because the load width exceeded 3.5 metres there should have been, but was not, a pilot vehicle driving ahead of the applicant to warn other road users of the oversized vehicle’s presence.

[9] Ultimately it was not the absence of a pilot vehicle but the applicant’s misjudgment of his vehicle’s width relative to the space through which he drove it which was said to be causative of the collision.  The prosecution case was not advanced and nor was the applicant sentenced on the basis that at the time of the accident he had been engaged in an inherently dangerous course of driving by reason of the absence of a pilot and or the width of the load.

Fatefully timed convergence upon a confined road surface

[10] The group of cyclists had been on an early morning ride to Townsville’s northern beaches.  They returned along Shaw Road, a sealed bitumen road with single opposing lanes marked by a dividing centre line and fog lines.  The speed limit was 80 kilometres per hour.

[11] At about 7 am the cyclists reached a sweeping curve where Shaw Road bridged a culvert across a gully in a rural area.  There was an unbroken double centre line.  The edge of the road was confined on each side by safety guardrails.  Beyond the fog line there was only a further 90 centimetres of sealed road surface and a further 75 centimetres of gravel surface to the guardrail.  There was therefore limited space for cyclists to traverse the bridge within the area to the left of the fog line.

[12] As the cyclists commenced traversing the bridge through that narrow passage the applicant’s vehicle converged upon the bridge from behind them.  At the same time a line of cars was traversing the bridge in the opposite direction.  Presented with cyclists riding in the narrow gap between the fog line and guardrail and with oncoming traffic, the applicant had little space outside the margins of his lane within which to safely drive his wide load.  He drove on.

[13] The applicant later told police he perceived it was going to be a “tight squeeze” but that he “believed there was enough room to get through”.[3]

The collision

[14] Tragically the high risk inherent in attempting to travel through so narrow a space with such a wide load manifested itself when the side of the applicant’s load struck the back of the head of cyclist Susan Bell.  This propelled Ms Bell and her bike into cyclist Jennifer Chapman.  Ahead of her, cyclist Pamela Jensen felt the load brush by her shoulder causing her and the next cyclist along, John Stokes, to be thrown from their bikes.

The consequences

[15] Ms Bell died as a result of a cervical spine fracture caused by the collision.  The victim impact statements of one of her daughters and her cyclist friends evidenced the enormous emotional toll which her tragic loss has had upon her family and friends.

[16] Ms Chapman was not alleged to have suffered grievous bodily harm.  Nonetheless the applicant’s dangerous driving resulted in her being thrown onto the embankment of the gully and suffering two broken bones to her right hand, a deep laceration to her forearm, deep bruising to her right lower leg, a possible fracture to her tail bone, bruising to her left lower bicep and a loss of strength in her left forearm.

[17] Ms Jensen suffered a subarachnoid haemorrhage and multiple facial injuries with particularly deep lacerations to the chin and lower lip.  Without treatment the lacerations would have resulted in serious disfigurement and possibly extensive tissue loss with consequent difficulty in eating and drinking.  Ms Jensen, a pilot, explained in her victim impact statement how safety concerns about her closed head injury resulted in her no longer being permitted to conduct single pilot operations, which she describes as a significant and embarrassing restriction on her life.

[18] The other cyclist who suffered grievous bodily harm, Dr Stokes, received at least five rib fractures on the right side, a fracture of the tip of the scapula and multiple bruises and abrasions to his body.  A medical practitioner opined the injuries would more than likely have caused death in the absence of medical treatment.  The potential complications could have been bleeding to the chest, lung puncture, chest cavity infection, pneumonia or disfigurement of the chest.  Dr Stokes has an abnormal blood clotting condition and that heightened the risk of blood clotting to the lungs given his injuries.  Dr Stokes’ victim impact statement provided poignant evidence of the psychological and physical toll the collision has had upon him, in addition to the substantial interference it has had with his capacity to practise as a medical practitioner.

The applicant’s reaction

[19] After the collision the applicant pulled over and returned to the scene to proffer assistance but was rebuffed by the understandably upset group of cyclists.  He cooperated with police at the scene, answering their questions.

[20] He declined to be further questioned by police when approached and apparently charged about a month later.  Two and a-half months after that his solicitor informed police prosecutions of his intention to plead guilty and he was committed for sentence by registry committal on 6 December 2013.

Through his counsel the applicant publicly acknowledged the incalculable suffering he has caused.  A compendious body of references tendered on his behalf at sentence provided very compelling evidence of the applicant’s great remorse, sadness and despair at what he has done.  A psychologist, whose report was tendered on sentence, opined the applicant’s overwhelming emotional response involved symptoms consistent with post traumatic stress disorder.[4]  The applicant desisted from driving heavy vehicles and sold his motorcycle, no longer deriving any pleasure from recreational road use.

The applicant’s personal circumstances

[21] The applicant has led a hitherto blameless and productive life.  He is 65 years old and has no previous convictions.  He has a minor history of traffic offences, credibly so for one who has long driven for a living.  He is a recreational cyclist.

[22] He served his country for 22 years in the RAAF, having qualified as a motor mechanic.  He was honourably discharged as a flight sergeant in 1989.  He subsequently operated his own mechanical workshop and a hire business.  He also drove school buses and was for a time the owner operator of a concrete truck.  His only significant time off work was in 2004 when he was diagnosed with and treated for bowel cancer, which is currently in remission.  He moved to Townsville in 2007 to work for his daughter’s business.

[23] The reference material demonstrates him to be a highly regarded member of the community and a much loved father and grandfather.  He is also highly supportive of his wife who has suffered over the years with a debilitating depressive illness.

The sentence proceeding

[24] The prosecution below characterised the dangerous driving as involving the recognition of a hazard and an intentional assumption of risk.  The defence characterised the driving as involving a significant error of judgment.

[25] Both parties referred the learned sentencing judge to comparable sentencing decisions, although, as his Honour noted, some pre-dated 2007 when the maximum penalty for this offence was increased from seven years to 10 years.[5]

[26] The defence submitted the appropriate range was between two and a-half and three and a-half years imprisonment with the actual custodial component being between six and 12 months.  The defence also emphasised the applicant, who is the primary earner in the family, derives his income from driving.  The disqualification of his licence would therefore have significant consequences after his release from imprisonment.

[27] The learned sentencing judge noted the applicant’s good character and timely plea of guilty.  He accepted the applicant was genuinely remorseful.

[28] His Honour noted the applicant plainly recognised the danger confronting him in converging upon the bridge and took a grave risk, which represented “a very serious error of judgment”, beyond mere momentary inattention.[6]  The learned sentencing judge noted the devastating consequences of the collision for the cyclists and their families as well as the fact that the applicant would have to live with those consequences for the rest of his life.

[29] His Honour observed:

“In determining a sentence in a case such as this, considerations of deterrence and the gravity of the consequences involved in your offending require the imposition, in my view, of a significant custodial sentence.”[7]

[30] His Honour gave no specific reasons relating to his decision to disqualify the applicant from holding or obtaining a driver’s licence for five years.

Grounds

[31] The applicant seeks leave to appeal the sentence on the following ground:

“1.The sentence is manifestly excessive in all the circumstances, namely that:

a.The head sentence of 3.5 years imprisonment is excessive when regard is had to comparable cases;

b.The actual custodial component of 14 months fails to properly allow for subjective factors, including the very early plea of guilty, good character including an absence of previous convictions, minor traffic history and remorse; and

c.The 5 year disqualification period of upon a 65 year-old man who earned a living as a professional driver is excessive when considered alone or in combination with the head sentence and the period of actual custody.”[8]

[32] Ground 1(a) was not pressed.

The parties’ contentions

[33] The applicant accepted the term of imprisonment of three and a-half years was within range but argued the suspension of that term after 14 months did not make adequate allowance for the applicant’s compelling mitigating circumstances.  It was submitted the apparent moderation of the sentence by suspension after one-third was of a scale typically encountered after a not particularly timely guilty plea by an offender with unremarkable personal circumstances.  Counsel for the applicant submitted the sentence imposed reflected a failure to make adequate allowance for the very early indication of the applicant’s intention to plead guilty and for his compelling mitigating circumstances.

[34] Further, it was submitted the period of disqualification was inexplicably high having regard to the circumstances of the offence, the applicant’s traffic history and his occupation.

[35] The respondent submitted the head sentence imposed might legitimately have been higher and that the sentence reflected an adequate allowance for mitigating features.  It was emphasised that even if a more lenient sentence may have been within range that does not warrant interference by this court.

Discussion: period of suspension

[36] This is not a case in which the remarks of the experienced sentencing judge contained express error.  His Honour did describe the guilty plea as “timely”[9] when it would more accurately have been described as “early”, but it is obvious his Honour was simply intending to acknowledge what he had been told of the early indication of the guilty plea.

[37] Nor is it contended that the head sentence of three and a-half years imprisonment is manifestly excessive.  The dangerousness for which the applicant was sentenced may be described as involving momentary misjudgment but the crucial issue, as Fraser and Morrison JJA observed in R v MacDonald,[10] is the level of seriousness of the actual driving, not the short hand description given to it.  The particularly serious feature of the applicant’s misjudgment here obviously derived from its context.  It occurred whilst he was driving a wider than ordinary load.  Because his vehicle’s wide load represented a higher potential for danger and injury than a vehicle of ordinary width, he owed a higher than ordinary standard of care to those on or near the road on which he travelled in making safe allowance for their actual or potential presence in or near his vehicle’s path.[11]  His was a significant breach of that high standard and it was met with an undoubtedly significant head sentence.

[38] The applicant’s counsel conceded the head sentence was within range in light of the recent decision of this court in R v Huxtable.[12]  It ought be noted in fairness to the learned sentencing judge that R v Huxtable had not been handed down by this court as at the time of the applicant’s sentence.  It is a decision which fortifies the respondent’s position regarding the high head sentence but not the periods of suspension of imprisonment or driver’s licence disqualification.

[39] In Huxtable the 59 year old applicant pleaded guilty to dangerous operation of a vehicle causing death and grievous bodily harm.  He was driving his unladen tip truck towing a trailer.  He failed to notice the vehicle in front of him slowing and stopping and did not allow sufficient braking space for his own vehicle.  He collided with the vehicle in front, forcing it into an intersection, causing a collision with another vehicle.  The driver of the vehicle in front of him was killed and the driver of the other vehicle suffered grave injuries and was hospitalised for five months.  The President observed the applicant’s inattention was more than momentary and that in his profession as a driver of a large truck he had a commensurately heavy responsibility to take proper care and keep a careful look out for other, more vulnerable road users.  The first instance sentence of five years imprisonment suspended after 15 months was reduced to one of three and a-half years imprisonment suspended after 14 months.  The ultimate sentence was therefore identical to that imposed at first instance in the present matter, save that in Huxtable the driver’s licence disqualification period of two years was not interfered with.

[40] The culpability and consequences of the driving in Huxtable is not in all respects comparable to the present case.  For example, Huxtable occasioned grievous bodily harm to one less person than the applicant.  On the other hand, unlike Huxtable, the present applicant was at least keeping lookout of the road ahead and his error lay in misjudging that which he did see.  Each owed a higher than ordinary standard of care by reason of the nature of the vehicles they were driving.  Despite their differences the circumstances of both cases involve a sufficiently similar level of criminality for this court’s decision in Huxtable to support the conclusion that the head sentence in the present case, while significant, fell within the sound exercise of the sentence discretion.

[41] The more material distinction between the two cases lies in the contrasting personal circumstances and timeliness of the guilty pleas.

[42] Unlike the present applicant, Huxtable pleaded guilty belatedly, three years and three months after the event, in the week of the trial listing.  While Huxtable had also served his country in the military, it was for a much shorter period than the present applicant.  Huxtable’s personal circumstances were not as compelling as the present applicant’s, particularly because of Huxtable’s prior offending.  His traffic history included a sentence of five months non-residential periodic detention for repeat drink driving offences and he had committed a speeding offence after the commission of the subject offence.  He had also been convicted of possession of false and misleading documents and making false and misleading entries in work records.  The applicant’s mitigating circumstances were markedly more compelling than Huxtable’s, yet both received suspensions of their terms of imprisonment after serving one-third thereof.

[43] In the present appeal the respondent grappled with that obvious disparity by contending that the present applicant could have received a higher head sentence than Huxtable and that the head sentence imposed actually reflects “an element of mitigation in the head sentence”.[13]  The sentencing remarks do not suggest that was the approach taken.  Indeed in a case such as the present, involving no intoxication, no course of dangerous driving and no past pattern of dangerousness, a higher sentence would have given disproportionate weight to consequence as against culpability.

[44] In any event, the arguable differences in the respective seriousness of the offending conduct in the two cases are much less significant than the marked variation in circumstances going to mitigation of penalty.  Those variations support the conclusion that in the present matter inadequate weight was given to the present applicant’s very favourable personal circumstances and very early indication of his plea of guilty.

[45] The tension between relevant sentencing considerations can be particularly acute in cases of dangerous operation of a motor vehicle causing death and or grievous bodily harm where the driving involves an otherwise good and sober citizen falling into dangerous error.  The devastating consequences of the offence and general deterrence must be taken into account but so too must the offender’s personal circumstances.[14]  In such cases, where it is concluded some period of actual custody must be served, sentences of imprisonment suspended after serving a minority of the terms have obvious utility in meeting the competing demands of deterrence and mitigating circumstances.  Such sentences in such cases are not confined to pleas of guilty and may occur after a trial.[15]

[46] The timing of the suspension should not be pre-determined arithmetically for the same reason there should not be a judicially determined sentencing starting point for the duration of imprisonment prior to parole or a parole eligibility date.[16]  Nor do the cases suggest the existence of a norm for the timing of the suspension relative to the duration of the head sentence.  For instance, while the sentence was suspended after the service of one-third of the head sentence in Huxtable, the relevant proportion was one-quarter in the case of R v Murphy[17] and two-sevenths in the case of R v Maher.[18]

[47] In Murphy the applicant pleaded guilty to dangerous operation of a motor vehicle causing death and grievous bodily harm and his application for leave to appeal a sentence of three and a-half years imprisonment suspended after 12 months was refused.  His personal circumstances were favourable but not as favourable as the present applicant’s.

[48] The compelling nature of the present applicant’s personal circumstances is more comparable to that of the applicant in R v Maher.[19]  Maher pleaded guilty to dangerous driving causing death and was sentenced to three years imprisonment suspended after serving nine months.[20]  His sentence was not disturbed upon appeal.  The dangerous driving there was the product of a long period of inattention brought on by fatigue.  As a result of the collision he was diagnosed with post traumatic stress disorder, he suffered from overwhelming feelings of guilt and was financially supporting his elderly mother because of the ill health of other members of his family.  White JA, with whom the other members of the court agreed, considered the suspension of the sentence after nine months appropriately recognised the mitigating features of good character, hard work, remorse and the plea of guilty.  The sentencing judge was said to have been generous in characterising the applicant’s criminal and traffic history as not of great relevance – that applicant had a previous conviction for dangerous driving.  The suspension of that applicant’s term of imprisonment after serving a-quarter of it contrasts markedly with the requirement that the present applicant serve one-third of his period of imprisonment before suspension.

[49] The significant head sentence imposed on the present applicant was not itself ameliorated to make some allowance for his mitigating circumstances.  Those circumstances included a lifetime lived as a productive and law abiding member of the community, over two decades service in the military, exceptionally powerful evidence of prompt and profound remorse and very early notification of his intention to plead guilty.  Suspending the applicant’s term of imprisonment after serving a-third of it did not give adequate recognition to his compelling mitigating circumstances.  The period of the term of imprisonment to be served prior to suspension should have been materially shorter.

[50] I would grant the application for leave to appeal the sentence, allow the appeal and vary the order suspending the term of imprisonment so that the term of imprisonment is suspended after serving a period of nine months.

Discussion: period of disqualification

[51] The learned sentencing judge ordered the applicant be disqualified from holding or obtaining a driver’s licence for five years.

[52] The authorities do not support and nor did the parties suggest the existence of a reliable discernible pattern to the duration of disqualification periods imposed in cases like the present.  Doubtless that is because of the variability of relevant considerations which can apply to this particular exercise of sentencing power.  This feature of the application is usefully considered by reference to the statutory foundations for the power to disqualify and the principles which inform the exercise of that power.

[53] In the absence of the order disqualifying the applicant he would, by reason of his conviction and the operation of s 86 Transport Operations (Road Use Management) Act 1995 (Qld), have been disqualified for six months.  The learned sentencing judge’s power to order a longer period of disqualification derived from s 187 of the Penalties and Sentences Act 1992 (Qld), which relevantly provides:

“(1)If—

(a)an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and

(b) the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence;

the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence.”

[54] In submitting the disqualification period is not manifestly excessive the respondent also relied, inter alia, on s 131(2) of the Transport (Road Use Management) Act 1995 (Qld) which permits a person disqualified from holding or obtaining a driver’s licence for a period of more than two years to, on the expiration of two years, apply to the court which imposed the disqualification for removal of the disqualification.  That provision is obviously intended to cater for the possibility of changes in the offender’s circumstances.[21]  It is irrelevant for present purposes.  The severity of the sentence below falls to be considered by reference to the information which was considered by the learned sentencing judge.  If this court concludes a component of the sentence below was manifestly excessive the error is no less an error by reason of the theoretical possibility that the excessive component of the sentence might be reduced on application to the District Court some years from now.

[55] The applicant challenges the duration of the five year disqualification but does not submit a disqualification order should not have been made.  Implicit in that position is an acceptance that his Honour must or ought to have been satisfied that, to adopt the considerations in s 187(1)(b), “having regard to the nature of the offence, or to the circumstances in which it was committed” it was in the interests of justice that the applicant should have been disqualified from holding or obtaining a driver’s licence.

[56] Section 187(1) is structured so that those considerations relate expressly to the decision that an offender should be disqualified.  They may by implication also inform the decision as to the duration of the disqualification because of the obvious interrelationship between the two decisions.  It may for instance be in the interests of justice to disqualify an offender if the disqualification period is to be for two years but not if it is to be for five years.

[57] However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.”  Other considerations which have been regarded as relevant to that discretion include:

- the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so;[22]

- the consequences of the disqualification upon the offender’s future employment prospects;[23]

- the risk that the disqualification period may create a disincentive to rehabilitation on release from custody;[24]

- the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.[25]

[58] As to the latter consideration, in R v Nhu Ly[26] Macrossan CJ stressed the desirability of the disqualification serving some purpose other than that served by other available punishments:

“Although the discretion which arises is a broad one, it can be accepted that the disqualification, whilst it will operate as an additional penalty, is not meant to be simply a gratuitous addition to other available punishments.  There should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term.”

[59] Section 9(1)(a) of the Penalties and Sentences Act 1992 (Qld) provides in summary that the purposes of sentencing are punishment, rehabilitation, deterrence, denunciation and community protection.  It follows that the observations of Macrossan CJ ought not be read as indicating that an order disqualifying an offender from holding or obtaining a driver’s licence may not serve the legitimate purpose of punishing the offender.  However where the duration of a disqualification order exceeds what is necessary for the other purposes of sentencing, care must be taken to ensure its duration does not give rise to a punishment which is unjust overall.

[60] In the present case, as serious as the applicant’s offence was, he did not have a past pattern of dangerousness towards other road users.  Having regard to his maturity, his generally good driving history and his genuinely guilt-ridden reaction to the consequences of his offence, the likelihood of his driving presenting a risk to community safety in the future is low.  It was not and nor could it be sensibly suggested that a period of disqualification of five years is necessary in this case to protect the community.  Nor is such a lengthy period necessary for the purposes of rehabilitation.  To the contrary, such a lengthy period would likely be positively unhelpful to rehabilitation, particularly given its adverse consequences for the future employment prospects of the applicant, whose primary means of earning an income has in the past been driving.

[61] As to the sentencing purposes of punishment, deterrence and denunciation it may be accepted given the nature of the offence that a disqualification order would help serve those sentencing purposes.  However the order must be considered in the context of the overall sentence imposed.  Given the extent to which those purposes are already served by the sentence of imprisonment in this case, a disqualification period longer than about two years lacks proper purpose.  A disqualification period of five years was manifestly excessive.

[62] I would vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for five years by vacating the period of five years and substituting it with a period of two years.

Orders

[63] I would order:

  1. Application for leave to appeal granted.
  1. Appeal allowed.
  2. Vary the order that the term of imprisonment be suspended after serving a period of 14 months imprisonment and instead order the term of imprisonment be suspended after serving a period of nine months imprisonment.
  3.    Vary the order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of five years and instead order the applicant be disqualified from holding or obtaining a driver’s licence for a period of two years.

Footnotes

[1] Per the appearance of the load depicted in photographic exhibits.

[2] AR 83.

[3] AR 35.

[4] AR 150.

[5] On 20 March 2007: per Criminal Code and Civil Liability Amendment Act 2007 (Qld) s 4, Act number 14 of 2007.

[6] AR 29 L23.

[7] AR 29 L38.

[8] AR 155.

[9] AR 29 L9.

[10] [2014] QCA 9, [17], citing Thomas JA in R v Harris; ex parte Attorney-General (Qld) [1999] QCA 392, [42].

[11] See, by parity of reasoning, R v Price (2005) 43 MVR 573.

[12] [2014] QCA 249.

[13] AR 8 L5.

[14] R v Murphy [2009] QCA 93; Penalties and Sentences Act 1992 (Qld) s 9.

[15] See for instance R v Damrow [2009] QCA 245 where the applicant was found guilty by a jury of dangerous operation of a motor vehicle and sentenced to 18 months imprisonment suspended after eight months.

[16] Hili v The Queen (2010) 242 CLR 520; R v Torrens [2011] QCA 38.

[17] [2009] QCA 93.

[18] [2012] QCA 7. For other recent examples see R v Boubaris [2014] QCA 199 and R v MacDonald [2014] QCA 9 where in each instance sentences of 18 months imprisonment were suspended after three months, a proportion of 1/6.

[19] [2012] QCA 7.

[20] His disqualification from driving for four years was not challenged.

[21] For instance s 131(2)(c) allows the court in such an application to have regard to the applicant’s conduct since the order.

[22] R v Cunningham [2005] QCA 321; R v Dean (2006) 45 MVR 542, 544.

[23] R v Plath [2003] QCA 567, [18-19]; R v Cunningham [2005] QCA 321; R v Dean (2006) 45 MVR 542, 544.

[24] R v Plath [2003] QCA 567, [18-19].

[25] R v Nhu Ly [1996] 1 Qd R 543, 547.

[26] [1996] 1 Qd R 543, 547.

Close

Editorial Notes

  • Published Case Name:

    R v Osborne

  • Shortened Case Name:

    R v Osborne

  • MNC:

    [2014] QCA 291

  • Court:

    QCA

  • Judge(s):

    Holmes JA, McMeekin J, Henry J

  • Date:

    21 Nov 2014

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC145/14 (No citation)23 May 2014The defendant pleaded guilty to one count of dangerous operation of a vehicle causing death and grievous bodily harm. He was sentenced to three and a-half years imprisonment, suspended after 14 months for an operational period of four years. He was also disqualified from holding or obtaining a driver’s licence for five years.
Appeal Determined (QCA)[2014] QCA 29121 Nov 2014Application for leave to appeal granted. Appeal allowed. Orders varied. Term of imprisonment suspended after serving nine months imprisonment (instead of 14 months). Disqualified from holding or obtaining a driver’s licence for a period of two years (instead of 5 years): Holmes JA, McMeekin J, Henry J.

Appeal Status

Appeal Determined (QCA)

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