R v Thomas[2015] QCA 20

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA AND MULLINS J:  In this application we have had the advantage of reading the judgment of Morrison JA in draft, and gratefully adopt his setting out of the facts and submissions.  We have, however, reached a different conclusion as to the proper result, largely because we take a different view of the guidance which can be obtained from judgments of this Court in other cases involving either dangerous driving causing death or manslaughter.

[2] It is, in our view, of some importance that the dangerous operation of a vehicle causing death and grievous bodily harm to which the applicant pleaded guilty was of limited duration and did not involve any element of deliberately reckless driving. As to the first factor, there is a distinction to be drawn between the time and distance for which a defendant drives while his faculties are impaired and the duration of his driving which is actually dangerous and which results in death; the latter conduct, of course, being the gravamen of the offence.  The offence for which the applicant stood to be sentenced was the failure to control his vehicle, so that it mounted the kerb, crossed the nature strip and collided with a tree.  The context in which that occurred is of course relevant, to the extent that the applicant must have known he had to travel 3.5 kilometres in an impaired condition with the children in his car, and that impaired condition created an inherent danger in the act of driving; but there is no evidence that any of the driving up to the point at which the applicant lost control of his vehicle was overtly dangerous.

[3] As to the second factor, there is a significant difference between the case of an intoxicated driver who deliberately undertakes dangerous manoeuvres and one who is overcome by the effects of his intoxication so that he loses control of his vehicle. R v Hallett,[1] which falls into the second category, seems on its facts the most closely analogous to the present of the comparable decisions cited.  As here, it involved, not deliberately reckless driving, but driving which was dangerous because of the effect of methylamphetamine in impairing that applicant’s ability to drive safely.  It was accepted that he had consumed the methylamphetamine some days earlier, but the concentration of methylamphetamine in his system was significantly higher (.36 mg per kg) than that affecting the applicant here (.22 mg per kg).  It seems unlikely that Hallett was any less aware than the present applicant of the deleterious effects of his condition on his capacity to drive competently.

[4] Presumably, too, whatever adverse impact that level of methylamphetamine had on the applicant in Hallett prevailed for the entirety of his driving.  According to the judgment in Hallett,

“The judge…took into account in the applicant’s favour that the driving occurred over a short distance only”.[2]

It seems probable, in context, that that was a reference to the dangerous driving in that case, which entailed swerving three or four times between lanes of the Bruce Highway before the car veered off the road and hit a pole, killing the applicant’s 84 year old father.  The judgment does not provide any detail of how far they had travelled before the effects of his intoxication manifested themselves and the collision occurred.

[5] The applicant in Hallett did not, of course, have responsibility for small children, although he was driving his elderly father.  His criminal and traffic history, however, were much worse.  He had been sentenced to three years imprisonment for unlawful wounding.  More significantly for present purposes, on two separate occasions he had been sentenced to six months imprisonment for offences including dangerous driving.  After he committed the offences the subject of his application for leave to appeal against sentence, he was twice sentenced to imprisonment for disqualified driving.  His traffic history was described as “appalling”.[3]  The only issue in Hallett was whether seven years imprisonment with parole eligibility after two years and four months, to be served concurrently with existing sentences for unrelated offences, was a manifestly excessive sentence.  The case is of some use as a yardstick, however, because of the similarity of the kind of dangerous driving involved and because the court did not regard the sentence as at the other extreme, of being manifestly inadequate; indicating that it was “within the range of sentences open”.[4]

[6] The facts here are to be distinguished from those in R v Frost; ex parte A-G,[5] in which the respondent actually drove dangerously – not simply while his faculties were impaired by intoxication – for 14 kilometres.  There are other features of that case which make the offending worse: the respondent there continued to drive dangerously, swerving between lanes of traffic, despite repeated requests by his passenger to slow down and let him out; he ignored a warning that there were three pedestrians ahead of him; he killed three people walking on the shoulder of a well-lit road; and, told that he had struck a person, he drove on and later abandoned his car.  He had in common with the applicant here a bad traffic history before and after the offence, but it is more significant that, having committed the offence in his case whilst heavily intoxicated, he was convicted while on bail of an offence of driving with a blood alcohol concentration in excess of the prescribed limit.

[7] The case of R v Ross,[6] in our view, also falls into a different category from the present one, because it entailed deliberately dangerous driving over almost a kilometre.  That applicant performed a number of dangerous manoeuvres: burn-outs, tailgating, accelerating so as to make his vehicle fishtail and speeding at an estimated 138 kilometres per hour.  The subsequent collision killed the applicant’s two infant children; his response was to abscond and subsequently to tell various lies about who had been driving and how the accident had occurred.  That absence of remorse was no doubt a factor in the decision to make no parole recommendation.

[8] R v Clark[7] and R v Kelly[8] both involved mitigating factors not present here: in the case of Clark, the applicant’s mental health problems, which led to the reduction of her sentence on appeal from ten to nine years imprisonment; in that of Kelly, whose sentence of eight years was not disturbed, the fact that the applicant demonstrated considerable rehabilitation before he was charged.  On the other hand, there were features of those cases which were worse than the present: in Clark, the applicant through impatience drove onto the footpath in order to pass another vehicle, killing two boys, and later lied about what had occurred.  In Kelly, the applicant drove a stolen vehicle dangerously for 23 kilometres at excessive speed, evading police and driving onto the wrong side of the road, ultimately killing the driver of an oncoming vehicle and injuring his passenger.  Most importantly, both Kelly and Clark were convicted not of dangerous driving, but of manslaughter, the maximum penalty for which is life imprisonment, as opposed to the 14 year maximum applicable in the present case.

[9] The respondent referred to two other cases, R v Nikora[9] and R v Hopper,[10] in each of which this Court refused an application for leave to appeal made on the ground that the sentence imposed was manifestly excessive.  The applicant in Nikora drove for at least 15 minutes at about 130 kilometres per hour through urban streets in the early hours of the morning, running a red light in the process.  The end result was that he lost control of his vehicle, failed to negotiate a roundabout, travelled on the wrong side of the road, crossed another intersection and crashed through the front yards of two houses, killing both his passengers.  He had a blood alcohol reading of 0.17 per cent, although as a P-plater he was not supposed to have any alcohol in his blood.  On the other hand, he was only 18, was remorseful and had only a minor criminal history.  He was sentenced to seven years imprisonment with parole eligibility after two and a half years. The applicant in Hopper, also a youthful driver, was sentenced to eight years imprisonment with parole eligibility after three years.  He drove, swerving, at excessive speeds – between 120 and 130 kilometres per hour – with a blood alcohol reading of 0.144 per cent, eventually losing control of his vehicle and killing a passenger.  He had disregarded his passengers’ requests that he slow down; as he admitted, he was speeding for the thrill of it.  Given the element of deliberately dangerous driving involved in both Nikora and Hopper, and the lower sentences imposed in those cases, neither seems to us to support the argument that the present applicant’s conduct was deserving of a nine year sentence.

Conclusion

[10] The context of the dangerous driving in the present case warranted a severe sentence.  The applicant drove over some distance, with small children in the car, in an impaired condition which he had induced in himself although knowing of his responsibilities.  Nonetheless, considering all of the authorities, the conclusion that we come to is that the sentence imposed was manifestly excessive.  A term of nine years imprisonment might have been appropriate if there had been some element of deliberate or protracted recklessness in the applicant’s manner of driving, or had he, like the applicants in Clark and Kelly, been facing sentence for manslaughter.  In our view the application for leave to appeal should be granted, the appeal allowed, and the sentence varied by substitution of a sentence of seven years imprisonment for the nine year sentence imposed by the sentencing judge, with eligibility for release on parole on 23 September 2016; that is, after two years and four months.  The order of absolute disqualification from holding or retaining a driver’s licence should remain.

[11] MORRISON JA:  This is an application for leave to appeal against a sentence imposed, on the applicant’s plea of guilty, on one count of dangerous operation of a motor vehicle causing death and grievous bodily harm, whilst adversely affected by an intoxicating substance, namely methylamphetamine.  The offence was committed on 14 August 2012 and the sentence was imposed on 23 May 2014.  The applicant was sentenced to nine years imprisonment, with eligibility for release on parole after he had served three years.

[12] The sole ground of the application for leave to appeal is that the sentence imposed was manifestly excessive in all the circumstances.

Circumstances of the offence

[13] A schedule of facts was tendered by the respondent.  In the end there was no dispute as to the contents, though both the applicant and respondent added some matters during sentencing submissions.  I will come to them in due course.

[14] Just prior to 3.00 pm on 14 August 2012, the applicant left his home to collect his three children,[11] and the daughter of a friend, from school and day care.  The friend’s daughter, was just on seven years old and she, and her mother, and sisters, had been staying at the same house as the applicant’s family.

[15] The applicant drove about 3.5 km to the school, collected the children and started to drive home.  He was travelling in a northerly direction along Henty Drive at Redbank Plains when he reached the intersection of Henty Drive and Evergreen Place.  He travelled through a roundabout at the intersection and continued on Henty Drive.

[16] Further along Henty Drive, the road curved and was intersected by a small concrete island.  The applicant commenced to travel through the curve, but his vehicle did not continue to follow the curve.  Instead, it moved at a tangent to the left, mounted the left hand side concrete kerb, travelled across a grass nature strip and collided head on with a tree.

[17] The applicant’s vehicle contained eight seats.  The friend’s daughter was sitting in the very rear of the vehicle, in the middle of a bench seat.  She was wearing a seat belt that buckled across her lap, but not across her chest.  As a result of the collision, she suffered a broken neck and was pronounced dead at the incident location.  The applicant’s children also suffered injuries of varying degrees of seriousness.

[18] One of the applicant’s children sustained a craniocervical dislocation of C1 and C2.  She underwent a posterior fusion of her spine.  She also had a laceration on her forehead, which required some surgical repair.  She had a number of follow up appointments to assess the fusion of the C1 and C2 vertebrae.  By April 2013 she was well, very active, with normal neurology and no pain.  As at that time, there was a good fusion of the C1 and C2 vertebrae.  However, as a result of the surgery she will have some permanent loss of range of motion in her cervical spine, particularly that of rotation.  A medical expert assessed the loss of range to be between 30 - 40 per cent of her rotation.  She has a scar from the top of her forehead above her left eye, which runs diagonally through the top of her right eyelid.

[19] Another child suffered three moderately sized haematomas to his forehead and a small area of bruising of the abdomen consistent with a seatbelt bruise.  He did not have any broken skin, nor did he suffer any other obvious injuries.  He stayed in hospital overnight for observation and was discharged two days later.

[20] The third child sustained grazes over her forehead and cheeks and a laceration over the lower abdomen, consistent with a seatbelt injury.  She also complained of tenderness to the pelvis.  X-rays were undertaken of her chest, cervical spine and pelvis, but no fractures were detected.  Her liver and renal function also presented as normal.  After an orthopaedic review of her injuries, she was discharged.

[21] The applicant himself sustained a closed fracture to his arm and thigh.  He also had some pain in his sternum.

[22] Whilst he was at the hospital, the applicant had a specimen of blood taken.  It showed a concentration of methylamphetamine of 0.22 mg/kg.  A medical expert gave the following opinion in relation to that concentration:[12]

“The effect seen with methylamphetamine depends on the pattern of use and the tolerance of the user to the drug. Symptoms range from excessive stimulation with acute use to excessive tiredness if one is coming down off methylamphetamine. The reported driving behaviour in this case of leaving the road and crashing has been described with methylamphetamine use.

The methylamphetamine level of 0.22mg/kg is well within the range associated with toxic effects and driving impairment. An individual with a methylamphetamine level of 0.22mg/kg would have impaired powers of attention, concentration, judgement and muscle coordination. Their ability to safely control a motor vehicle would be impaired.”

[23] A forensic examination of the accident scene established that the applicant’s vehicle had mounted the kerb, travelled over the grass nature strip and collided with the tree.  There was no evidence of braking on the road prior to or in the area where the vehicle mounted the kerb.  Tyre scuff marks observed on the kerb were consistent with having been caused by the vehicle travelling from the road, up over the concrete kerb, without braking.

[24] At the location of the incident Henty Drive is a two lane road, travelling in a north/south direction.  Opposing lanes of traffic south of the area of the incident are separated by a dotted white centre line.  The road is bordered on both sides by concrete kerb and channel, adjoined by a grass nature strip with trees.  It is a residential area, with driveway access.  The speed limit at the location was 50 kmph.

[25] At the time of the incident the road surface was dry and in good order, with no obstructions such as potholes, oil or debris.  The weather was fine and clear and visibility was good.

[26] A map of the area shows that after leaving the school the applicant travelled on School Road, then turned right onto Redbank Plains Road.  After about 1.4 km and passing six T-intersections, he turned left into Henty Drive.  From that point he travelled about 1.7 km, passing about 10 intersections, three of which had roundabouts.  The total journey covered by the applicant from when he left Redbank Plains Primary School to the crash site, was about 3.5 km.

Additional facts added without objection

[27] At the scene of the offence paramedics described the applicant in this way:[13]

“I noticed his behaviour to be unusual. He seemed detached and distracted and showed no real emotion for what had happened and was unable or unwilling to answer any questions I posed to him about what had happened.”

[28] The prosecutor accepted that such behaviour could be consistent with shock as well as methylamphetamine use.  The applicant was a regular user of methylamphetamine, telling one of his friends that he smoked it “as it makes him feel smashed”.[14]  On the day of the offence, it was the applicant’s responsibility to collect the children from school and day care.  Prior to that offence, but on the same day, he was seen to be smoking “ice”[15], having smoked it throughout the night, and he was seen to be high on ice.  Other witnesses said that he “seemed fine in the morning” when he dropped the children off to day care and school, but when he came back at around midday he was “very tired”, but decided to smoke some more ice.  One of the applicant’s friends described him in this way:[16]

“By the time 2.30 came around on Tuesday afternoon, it looked to me like [the applicant] was absolutely fucked.”

[29] The applicant was asked by one of his friends whether he was in a condition to drive and he said he was.

[30] As to the effect of the methylamphetamine, the learned sentencing judge was told that if the concentration is between 0.01 and 0.05, it will produce dilated pupils, euphoria, increased sense of wellbeing, heightened mental activity, decreased fatigue and enhanced wakefulness.  However, the level becomes toxic once it reaches 0.1.  Depending on the tolerance of the user, at that level one might experience confusion, restlessness, paranoia, delusions, violence, hyperactive reflexes, tremor, flushing and profuse sweating.  Further, the ability to pay attention, concentrate on exercise and apply appropriate judgment is reduced.

[31] The prosecutor also referred to what occurs when the effects of methylamphetamine wear off.  They are consistent with excessive fatigue, which the prosecutor proffered as a possible explanation for what had occurred at the time of the offence.

[32] Counsel for the applicant gave this explanation to the learned sentencing judge:[17]

“My instructions are he came round the roundabout. He remembers navigating the roundabout, coming onto the road and the next thing he’s hit the tree. The only reasonable and logical inference that can be drawn from that is that he’s actually nodded off and that is a consequence of coming down from amphetamine and that’s the fatigue that my learned friend has described and his explanation is, ‘I have nodded off.’”

The applicant’s circumstances

[33] The applicant was born on 8 January 1986 and therefore 26 years old at the time of the offence.  He was 28 years old at the time of sentence.  The applicant’s criminal history prior to the offence was quite minor, consisting of two offences in 2003 for trespass and entering or remaining in or upon a building without lawful excuse.  Each resulted in a small fine.  Subsequent to the offence but prior to sentencing, the applicant had been fined for failing to appear in accordance with his undertaking and breaching a bail condition and, in February 2014 the applicant was convicted of dishonestly obtaining property from another by fraud, for which he was sentenced to a suspended two months period of imprisonment, as well as being fined.

[34] The applicant’s traffic history was extensive and poor.  Commencing in 2003 when the applicant was 17 years old, there have been quite a number of offences.  Leaving aside offences which occurred when he riding a bicycle, the motor vehicle offences concerned driving under the influence of liquor in 2006, speeding in 2007, unlicensed driving in 2008, disqualified and unlicensed driving in 2009, driving while using a phone and speeding in 2010, and a variety of offences including speeding, driving a vehicle in a defective state and failing to wear seatbelt in 2011 and 2012.

[35] At the time of the offence, the applicant was the subject of a 12 month good behaviour driving period, following the accumulation of demerits points.

[36] Of more concern is the fact that after the offence, the applicant committed repeated driving offences.  They include: two occasions of failing to display L plates, two occasions of riding a motorbike as a learner but not under the direction of another person and two occasions of excessive speed, all in 2012; speeding, unlicensed driving and two occasions of disqualified driving, all in 2013; and failing to fulfil to the duties of a driver involved in a crash, in June 2013.[18]

[37] The learned sentencing judge was told, without objection, something of the applicant’s background.  He attended school until grade 10, then worked at McDonalds for two years.  After that he started, but did not complete, a carpentry apprenticeship.  He commenced a relationship which, by the time of sentencing, had lasted some 11 years.  He had six children aged from eight years down to 10 months.  Because of the number of children he had, he could not continue with the apprenticeship.  He took other employment and had been working as a handyman and for a framing and trussing company.

[38] From the age of 11 the applicant had been using marijuana and his drug taking increased to the point where he was taking amphetamines when he was 17.  At one time he had been admitted to a mental health unit with suicidal tendencies and was diagnosed with severe depression.[19]  However, a doctor’s certificate was tendered revealing that the applicant had suffered from anxiety and depression for several years, both before and after the offence in 2012.  It also noted the applicant’s previous illicit drug use.

[39] The applicant managed to stay off drugs for six or seven months after the accident, but had retuned to them.  The learned sentencing judge was addressed by the applicant’s counsel on the basis that he was still reliant upon drugs other than prescribed medication.

References and victim impact statement

[40] A number of references were tendered on behalf of the applicant. They are all personal references, coming from his parents, his partner and several people who have known him for some time.  All of them emphasise the deep remorse exhibited by the applicant and the change in his nature as a consequence of the offence.  All of them refer to the applicant having become a depressed, unhappy, sad and angry person as a consequence of what occurred.  His partner, in particular, describes him as being previously a “loving, kind, caring, helpful person”, but afterwards a “sad angry depressed man who is so remorseful and very regretful of his actions and desicions (sic) that lead up to the fatel (sic) car accident”.[20]

[41] A victim impact statement from the mother of the deceased child was tendered.  As may be expected, she deposes to the deep grief and sense of loss which she had experienced as a result of the death of her daughter.  In addition, she referred to the more general impact of what occurred, being that her ex partner took their other two children home with him after the accident, but when the applicant’s methylamphetamine intoxication became evident, it led to a custody battle.  She expressed it as being “it looks like because of what [the applicant] did, Im (sic) getting the blame and probably wont (sic) get them back”.[21]  That had caused her further suffering and depression because “that day I lost everything my whole life what I lived for and was my world he tore that away because of his actions and not informing anyone that he was unfit to drive that day (sic)”.[22]

Applicant’s contentions

[42] The applicant relied on five factors in relation to the contention that the sentence was manifestly excessive.  Those factors were: the early plea of guilty; the demonstrable remorse; the statement by the applicant’s father;[23] the content of a letter from Dr McEniery;[24] and that the manner of driving was not “reckless” as considered in other cases.[25]

[43] The applicant also referred the Court to a number of cases which were said to be comparable, and from which it could be demonstrated that the sentence was manifestly excessive.  Those cases were: R v Frost; ex parte Attorney-General (Qld);[26] R v Ross;[27] R v Hallett;[28] R v Clark;[29] and R v Kelly.[30]

The approach of the learned sentencing judge

[44] A number of matters were referred to by the learned sentencing judge.  They included:[31]

• that there was a plea of guilty and it was to  be taken into account;[32]
• the fact that the maximum penalty for the offence was 14 years imprisonment;
• that the level of methylamphetamine was such that “an individual with a reading of that nature would have impaired powers of attention and concentration, judgment and muscular coordination.  Such a person’s ability to safely control a motor vehicle would be impaired”;
• the nature of the driving including that there was no evidence of speeding and no evidence of braking;
• the fact that the traffic history was of greater concern than the applicant’s criminal history; his Honour reviewed the sequence of offences in some detail;[33]
• that the breaches of the traffic laws subsequent to the offence meant that the applicant “continued to display contempt for the traffic laws”;[34]
• that the applicant was undertaking “an extremely responsible task” by picking up the children and driving them home;
• that the applicant was “highly remorseful for [his] actions”;
• that it had been submitted that the applicant’s driving “could not be categorised as completely reckless as that expression is sometimes used in other cases where there is evidence of excessive speeding or swerving or losing control”; nonetheless the applicant’s offence fitted that category of dangerous operation of a motor vehicle where someone drives whilst affected, either heavily or not, by alcohol or drugs;
• even though the applicant was not driving at an excessive speed, “your level of dangerousness, in my opinion, and the irresponsibility of your driving, is extremely serious indeed”;
• the letter from Dr McEniery, and particularly the diagnosis of anxiety and depression over a period of time;
• that the applicant had six children, family responsibilities, and a series of references that spoke very highly of him, as well as the impact that the offence would have;
• that the applicant’s offence was “a very serious instance of dangerous driving causing death … [and] in addition to the death of a young child, grievous bodily harm was caused to another young child …”.

Discussion

[45] It will be apparent from the recitation of the factors taken into account by the learned sentencing judge, in paragraph [44] above, that all of the separate factors to which the applicant refers were, in fact, taken into account by the learned sentencing judge.  Some of them were referred to in terms, whilst others were mentioned indirectly.

[46] In the latter category was the reference by the applicant’s father.  The learned sentencing judge referred to the references that were tendered, but did not mention the father’s reference specifically.  However, his Honour clearly had regard to it because it was the source of the description of the scar on one child’s forehead.  That fact, and that it came from the letter by the applicant’s father, was mentioned specifically by the learned sentencing judge in the course of his remarks.[35]

[47] Also in the latter category is the reference to the plea of guilty.  Whilst his Honour did not specifically refer to it as an early or timely plea, that was the way it was urged upon him, and his Honour was told that the applicant was not charged for the offence until July of 2013, and the 11 month delay was not the fault of the applicant.[36]  The mere fact that his Honour did not expressly say that the plea was early or timely, it should not then be assumed that his Honour treated it as a late plea.  Had that been the case, one would have expected some remark to have been made as to the advantage of pleading of guilty being watered down by the fact that it was a late plea.

[48] That leaves the applicant’s contentions focused on the real issue, which is the level of seriousness of the applicant’s driving in the circumstances, and whether such guidance as may be obtained from comparable cases compels the conclusion that the sentence was manifestly excessive.

[49] The applicable test has been established by the High Court, namely that the question is whether the sentence is “unreasonable or plainly unjust”, such that it may be inferred “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”.[37]

[50] It is well to note the guidance offered by this Court in R v Tout,[38] where Fraser JA[39] said:

“As to ground 1, a contention that the sentence is manifestly excessive is not established merely if the sentence is markedly different from sentences in other cases.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”: Hili v The Queen (2010) 242 CLR 520 at [58], [59].”

[51] It is true to say that the applicant’s manner of driving was not reckless in the sense that it involved high speed, swerving, travelling on the wrong side of the road, running red lights, tailgating, or any of the other ways in which reckless driving is often exhibited.  However, there are a number of factors which, in my view, properly characterise this as an extremely serious case of reckless driving.

[52] First, the applicant had been smoking methylamphetamine before he took the children to school and day care in the morning.  Secondly, by midday the applicant was very tired, and decided to smoke some more methylamphetamine.  The inference is that he did so, at least in part, to overcome his tiredness. Thirdly, by 2.30 pm he was so badly affected that a friend described him as “absolutely fucked”.  Fourthly, that person questioned whether the applicant was fit to drive.  In other words, there was a form of warning against him driving.  Fifthly, during the course of that day and when he was taking further methylamphetamine, the applicant knew that it was his responsibility to collect the children after school, and deliver them safely home.  Sixthly, the applicant had been a methylamphetamine user for some time.  It is not difficult to infer from that fact, and the evidence as to the effects of methylamphetamine when it is wearing off, that the applicant must have known that he would be excessively fatigued when that occurred.  Even his own counsel acknowledged that the inference to be drawn from the circumstances was that the applicant fell asleep as a consequence of “coming down” from methylamphetamine and experiencing the fatigue referred to.

[53] Whilst the actual event which constituted the offence occurred when the car mounted the kerb, crossed the grass strip and hit the tree, the lead up to that was much more prolonged.  The circumstances characterising the manner of driving commenced earlier in the day when the applicant drove the children to school, at the time being affected by methylamphetamine which he had been smoking “throughout the night”.  Having dropped the children off, and being hit by the fatigue which comes with methylamphetamine wearing off, he smoked some more to the point where his appearance led to a friend describing him as being “absolutely fucked”.  The point had been reached, at the time when he went to pick the children up from school, the level of methylamphetamine in his blood was double that where it becomes toxic.

[54] In my view, it would be quite wrong to characterise the applicant’s driving as involving some momentary nodding off or by pointing to how far the applicant had safely navigated the roads prior to nodding off.  What occurred was the accumulation of repeated events of intoxication by methylamphetamine.  During the course of that day, and even the night before, the applicant engaged in what could be called a persistent intake of methylamphetamine.  That, done in the face of the known responsibility that he had to collect the children and deliver them safely home, makes this an extremely serious example of reckless driving.

Comparable cases

[55] In reviewing the cases put forward it must be accepted that most cases will be factually different to one degree or other – it is a rare thing for two cases to be perfect factual matches.  This Court recently expressed the caution that must be used in the comparison of cases, in R v Hopper:[40]

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

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

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

“It would certainly be an error for a sentencing court to treat the normal rough range of sentence in roughly comparable cases as if it were the statutory maximum. But equally it would be an error for a sentencing Judge to set his … own level of sentence in a manner inconsistent with other judicial decisions.  The only escape from this dilemma is through recognition of the fact that no two cases are exactly alike, and that in general the level of sentence in one case can only be a rough guide to another.  To speak of a “normal range” may give the sentencing court some feeling of comfort, but it is often a dangerous generalisation.”[41]

[56] Though the Court in Hopper was speaking of sentencing judges, the same applies to an appeal court when comparable cases are pressed as showing that a sentence is manifestly excessive.

[57] Frost was an Attorney-General’s appeal against a nine year sentence with a recommendation for parole release after three and a half years.  The offender was 24 years old and seriously intoxicated.  The evidence was that his blood alcohol level would have been at least 0.237 per cent at the time he collided with three pedestrians, killing them all.  Having consumed serious quantities of alcohol between dinner and 3.00 am, he drove his vehicle in an erratic and dangerous manner over a prolonged period, covering about 14 kilometres.  He was swerving, and refused repeated requests that he stop or let his passenger out.  He was warned to the presence of the pedestrians, but still moved onto the road shoulder and hit them.  Having done so, he did not remain at the scene, but drove on, hitting a guide barrier and travelling on the wrong side of the road.  He continued to drive dangerously and erratically until eventually abandoning the car.

[58] Jerrard JA[42] described it as “plainly a very bad case of dangerous driving” and identified that “[t]he only feature of dangerous operation of a motor vehicle commonly present but absent is that he was not speeding”.[43]  Aggravating features were the poor driving record and the fact that he exhibited no remorse when he committed the offence, even though by the time of sentencing the impact of what he had done had sunk in and he was experiencing “an immense sense of guilt at the fact of causing the death of three people”.[44]

[59] The Court did not disturb the sentence of nine years imprisonment but did remove the recommendation for parole.  In my view, Frost provides some limited support for the sentence imposed on the applicant.  The limitation is the fact that it was an Attorney-General’s appeal, and therefore the Court was simply determining that a nine year sentence was not manifestly inadequate.  Like the applicant’s case, Frost involved a similarly aged driver who was badly intoxicated and drove knowing that he was intoxicated and in circumstances where he must have known he was incapable of safely operating a motor vehicle; in Frost it was alcohol, in the applicant’s case, methylamphetamine.  Whilst the applicant did not drive as far or as erratically as Frost, in my view the real factor which made the driving dangerous in each case was the level of intoxication.  In fact, on one view the applicant had a more prolonged period in reaching the state of intoxication than was the case in Frost.  On one point, Frost was worse than the applicant, and that was the callous way in which he drove away from the scene.  Further, three people were killed in Frost, whereas there was only one in the applicant’s case.  Acknowledging the different features, there is some support from Frost for the sentence imposed on the applicant, but limited in the way I have mentioned above.

[60] Ross involved a sentence of eight years, with no recommendation as to parole, for the dangerous operation of a vehicle causing the death of two infant children, who were passengers in the vehicle.  The offender was intoxicated, speeding and left the scene knowing of the death and injuries.  He was 25 and had a short criminal history which did not involve imprisonment, and a traffic history which included unlicensed driving on four occasions and two occasions of drink driving.  His driving at the time of the offence involved doing burnouts, tailgating another car out of a car park, accelerating heavily and fishtailing.  He travelled about a kilometre, negotiating three bends in the street, before he lost control, mounted a median strip and collided with some trees.  His speed at the time of the crash was about 138 km/h, in a 70 km/h zone.  His blood alcohol reading at the time of the crash would have been about 0.163.  Once the vehicle came to a rest, the offender looked inside and then absconded.  He later lied to some friends as to who had been driving, and lied to police about the circumstances of what happened.  The learned sentencing judge described it as “grossly irresponsible driving”, and “[a] bad case of dangerous driving by any measure”.[45]

[61] The Court[46] refused to interfere with the eight year sentence.  In doing so Frost was reviewed, and found to be a more severe case.  The Court also observed that the nine years imposed in Frost fell “at the lower end of the appropriate range”, and that Frost could have been sentenced to 10 years imprisonment.

[62] The Court ultimately determined that the eight year term, without the embellishment of any recommendation, was within the judge’s discretion.  The Chief Justice stated in that respect:

“It is very important in this case to acknowledge the gravity of the offence: dangerous driving over a substantial distance in a suburban area at high speed, with a high blood alcohol concentration in the driver; the consequence – the death of the two infant children; the very circumstance that the applicant drove in this way and while intoxicated with his infant children as passengers in the vehicle; his attempts at avoiding detection; and all of this in the context of the applicant’s not insubstantial past traffic history, including alcohol related driving offences, and his being a disqualified driver at the time.  A strongly deterrent sentence was obviously appropriate and called for.”[47]

[63] Ross is a more severe case than that of the applicant, at least to the extent that two children were killed and the offender went to some effort to abscond from the scene and avoid detection.  However, he drove a shorter distance, albeit with some of the classic reckless driving features such as high speed and lack of control.  However, even though Ross is worse than the applicant’s case in some areas, the contrary is also true.  The prolonged period during which the applicant became intoxicated with methylamphetamine, that being the feature that caused the driving to be reckless, was not a feature in Ross, albeit that there was intoxication.  Ross did not involve the added feature of responsibility for someone else’s child, and the pre-warning that the applicant had, both that he may be adversely affected and that he had the particular task of collecting all the children from school and delivering them safely home.  In that sense, it can be said that the applicant’s case and driving, is more serious than Ross.

[64] I am not persuaded that Ross was so far from this case that the sentence here was manifestly excessive, or “unreasonable or plainly unjust”.[48]

[65] Hallett involved a plea of guilty to the offence of dangerous operation of a motor vehicle causing death with the circumstance of aggravation, that the driver was adversely affected by an intoxicating substance.  He was sentenced to seven years imprisonment, with parole eligibility fixed at two years and four months.  The offender in that case was 48 years old, and driving his 84 year old father on a highway.  The driver had a concentration of methylamphetamine in his blood at such a level that it was likely to have caused an impairment of his ability to safely drive his car.  He swerved between the northbound lanes on the highway, on three or four occasions, before veering off to the left and hitting a pole.  The offender had an extensive criminal history and traffic history, over more than 30 years.  He had previously been in prison for offences of dangerous driving, unlawful use of a motor vehicle, driving a motor vehicle whilst under the influence of liquor or a drug, and driving without a license.

[66] After the offence the subject of the appeal, the offender committed other offences, including drug offences and traffic offences.  Fraser JA[49] described the traffic history as “appalling”.[50]  Reference was made to remarks by the sentencing judge that the driving had only occurred over a short distance and that the “applicant’s culpability in driving under the influence of drugs consumed some days earlier was not as bad as that of a person who drives immediately after consuming an intoxicating substance”.  Further, Hallett was the carer for his father, and the accident occurred when he was taking his father out for a drive.[51]

[67] The Court did not disturb the sentence of seven years.

[68] In my view, Hallett is of little assistance.  The offender there was 48 years old, with an extensive criminal and traffic history.  The driving was only over a short distance, and the inability to drive safely, caused by methylamphetamine in the blood, was the consequence of consuming drugs some days earlier.  Those factors are different from the applicant’s case, where the inability to drive safely was the consequence of prolonged, deliberate use of methylamphetamine, knowing the applicant was due to fulfil a task calling for particular responsibility, not only for his own children but someone else’s child as well.  True it is that in Hallett the offender was responsible for his father, but there was no suggestion in that case that the reason for driving was the fulfilment of a particular task, of which the driver was aware at the time the drugs were taken.  That is the case with the applicant.

[69] Clark involved a 10 year sentence imposed on a plea of guilty to two counts of manslaughter.  The offender was a 35 year old woman who took her husband’s car and drove to a suburban shopping centre.  She was in a hurry to keep an appointment, and drove onto the footpath in order to get past a car in front of her.  In doing so she struck two teenage boys who were standing on the footpath.

[70] The offender had a blood alcohol concentration which was estimated to have been 0.04 per cent at the time of the offences.  However, she had a significant intake of prescription drugs, including twice the therapeutic dose of valium.  She had also ingested oxazepam, temazepam, cannabis, morphine and codeine.  All except the oxazepam were present in concentrations higher than the therapeutic range of the drugs.  She was also diagnosed with Bipolar Affective Disorder and was likely experiencing a Manic Phase Disorder at the time.  Those conditions would have deprived her of the normal ability to makes rational decisions.

[71] Keane JA[52] described the conduct of driving the motor vehicle onto the footpath as “extraordinarily reckless”.[53]  His Honour referred to the fact that the irrational behaviour was a consequence of her mental disorder which tended to lessen her moral culpability.[54]  Further, his Honour recognised that whilst she had killed two innocent boys, “[t]here must nevertheless be recognition that her behaviour was irrational, rather than deliberately anti-social”.[55]  He concluded that nine years imprisonment was the appropriate sentence.

[72] Clark is a significantly different case from that of the applicant.  The presence of the mental disorder and ingestion of overdoses of therapeutic drugs, led to what was described as irrational and extraordinarily reckless driving.  The characterisation of her behaviour as irrational, rather than deliberately anti-social, also puts Clark in a different category to the applicant; his drug use on the day was deliberately anti‑social behaviour.  I do not consider that Clark is of any assistance.

[73] Kelly is also unhelpful.  That involved a 22 year old who absconded with a bakery van and then drove erratically and at speed for over 23 kilometres.  During that time, the driver was pursued by a police officer who drove up to the vehicle with the lights of the police car and the siren activated.  The driver took no notice.  During the chase the bakery van was driven onto the incorrect side of the road and into the path of an oncoming car, and later again onto the incorrect side of the road, crossing double white lines and into the path of another vehicle.  Some time later, and while the pursuit was still in progress, the driver moved onto the incorrect side of a road at a bridge, as a result of which he collided with an oncoming vehicle, killing that driver.

[74] At the time Kelly had a blood alcohol level of 0.187 per cent.  He absconded to South Africa, ultimately being extradited some years later.  In the interim he had undergone significant rehabilitation, including giving up alcohol, marrying and becoming an active member of the church.

[75] The circumstances just recited demonstrated why Kelly is of no real assistance.  Whilst the ages of the drivers are roughly comparable, the driving is quite different.  The applicant’s did not have the features of speed, swerving or driving on the incorrect side of the road.  Kelly’s blood alcohol level at 0.187 per cent was certainly such as to render him substantially unable to safely drive a motor vehicle, but there is no indication of the same sort of prolonged and deliberate ingestion as features in the applicant’s case.  Nor are there present, the aspects of known responsibility for the task which the applicant was undertaking when the vehicle crashed, and that the particular responsibility included the safety of a child from another family.  Those are features which, in my view, render the seriousness of the applicant’s driving as equal to, if not worse than, that in Kelly.

[76] In reviewing these cases, one must bear in mind the guidance given by this Court in Hopper: see paragraph [55] above.  In my view one can come to the conclusion that the seriousness of driving can be just as bad where it is over a short distance and without speed or other erratic behaviour, as it is where those factors are present.  It all depends on the proper characterisation of the nature of the conduct, an assessment of the reason why the driving was dangerous or reckless, and why that feature manifested itself.  It is for that reason that, in my view, the applicant’s driving is properly to be considered as serious as the driving in Frost, Ross or Kelly.

[77] In my view it has not been demonstrated that the sentence imposed on the applicant was manifestly excessive in the circumstances.  Even though the sentence is different from sentences in other cases, I do not consider that it has been demonstrated that there must have been a misapplication of principle or that the sentence is unreasonable or plainly unjust, to use the test in Hili.

Conclusion

[78] I would refuse the application.