R v Maher[2016] QCA 219

SUPREME COURT OF QUEENSLAND

[1] MORRISON JA:  Nineteen year old Mr Maher rode his motorcycle at the Charleville Motocross track.  He rode off the track, entering an area where people attending the motocross had parked their cars and were preparing to ride.  He performed a wheel-stand at high speed, over about 85 metres, passing close to a number of people.  Then, having dropped the bike back down onto two wheels, he collided with the complainant, a nine-year old boy.  As a result, serious injuries amounting to grievous bodily harm were sustained by the boy.

[2] On 15 March 2016, Mr Maher pleaded guilty to the offence of dangerous operation of a motor vehicle causing grievous bodily harm.  He was sentenced to imprisonment for 15 months, suspended after 3 months, with an operational period of three years.  In addition his driver’s licence was disqualified for a mandated period of six months.

[3] Mr Maher seeks leave to appeal against the sentence on the sole ground that it is manifestly excessive.  The only aspect of the sentence that is challenged is the imposition of any period of actual imprisonment.

[4] On 25 July 2016 this Court made the following orders:

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. Set aside the order that suspended the term of imprisonment after serving three months imprisonment.

4. In lieu thereof order that the term of imprisonment be suspended forthwith.

5. Otherwise confirm the sentence imposed on 15 March 2016.

[5] These are my reasons for joining in the making of those orders.

The objective nature of the conduct

[6] There was an agreed statement of facts[1] which set out the driving, and two maps[2] which identified the area and positions of those concerned.  In addition, various facts were stated in the addresses, without objection.  That evidence collectively established the following:

(a) the motocross track “has a wide flat entrance which is used as a staging and administration area to the tracks”;

(b) the motocross track proper adjoined the staging and administration area;

(c) it was common for people and cars to be in the staging and administration area; it contained a toilet and undercover area;[3]

(d) motorbikes were permitted to be ridden in that area;

(e) the day was sunny and clear, though it was dusty;

(f) when the complainant arrived at the motocross track, Mr Maher was already out riding on the track, doing jumps and riding fast; he seemed to be a confident rider;

(g) Mr Maher revved the engine of his bike loudly;

(h) he entered the staging and administration area, from the track;

(i) from that point to where the complainant was standing was about 160 metres;[4]

(j) Mr Maher started the wheel-stand after he entered the staging and administration area;[5] he was then about 100 metres from the complainant;[6]

(k) he continued the wheel-stand, at high speed, in a straight line, passing several witnesses, some as close as 1.5 metres away;

(l) some (unspecified) distance before reaching the complainant, the bike dropped back onto two wheels;[7]

(m)         it appeared that brakes were applied, and the bike skidded;[8] by the drawing on the map[9] the skidding started about 15 metres from the complainant; and

(n) before it hit the complainant, Mr Maher’s bike clipped another bike.

The approach of the learned sentencing judge

[7] In his sentencing remarks the learned sentencing judge referred to the conduct that constituted the offence.  Having identified the staging and administration area as being one for pedestrians and cars, and where bikes could be ridden, his Honour said:[10]

“On this particular occasion, you performed a wheel stand, a move in which excessive power is sent to the rear wheel causing the front wheel of the bike to lift off the ground.  You did this for a distance in excess of 100 metres.  Perhaps on my reading of the map it was as much as 190 metres.  It was said to be at high speed.  If you’d been travelling at 30 kilometres an hour it would take about 24 seconds to travel 190 metres, obviously commensurately less over 100 metres.  If you were 60 kilometres an hour it’d be half that time, 12 seconds to do 190 and probably just seven seconds or something to do about 100 metres.  It was a deliberate and foolish act.

It was much more than momentary inadvertence and is something that I think significantly informs the sentencing discretion I have to exercise in the circumstances of this case.  To have done that through an area where there were young people was foolhardy in the extreme.  It’s to some extent explained by your youth and exuberance, perhaps, and your confidence on a bike, but it was necessarily an extremely dangerous act and one done in the circumstances of this particular case with, I think, significant disregard for the safety of others, including young children.  It was the sort of act which people seeing you commented about.  Someone said, “Look at this fucking idiot”.  Another observed that it was stupid riding like that near to people.”

[8] Later in the sentencing remarks the learned sentencing judge referred again to the impact of the conduct upon the sentencing.  Having acknowledged that authority requires that a court be cautious in sentencing a young offender to actual imprisonment, and to do so reluctantly, his Honour said:[11]  

“In a number of cases Courts have said that to sentence a young man to actual imprisonment is a matter that’s taken reluctantly and a Court that does that takes on itself a great burden.  Unfortunately, I think here that actual imprisonment is necessary, although not mandated.  In saying that, I’m mindful of the fact that I don’t think personal deterrence mandates such a sentence but, in my view, the dangerous driving here was of an extreme kind in circumstances where young people were present.  An accident, if not inevitable, was certainly very likely…”

Discussion

[9] Given what the evidence established, the learned sentencing judge seems to have proceeded on a misapprehension as to the nature of the conduct in riding, and specifically:

(a) the wheel-stand only started 100 metres from the complainant and the bike dropped back onto two wheels some distance from the complainant, probably of the order of at least 15 metres; therefore the wheel-stand was not over “a distance in excess of 100 metres”;

(b) the wheel-stand only started 100 metres from the complainant and therefore could not have extended over “as much as 190 metres”, or even the full length of the distance between the exit from the track to the complainant;

(c) the distance between where Mr Maher left the track and where the complainant was standing, was about 160 metres, not 190 metres; his Honour seemed to work on the basis of 160 metres in the course of the hearing,^[12] so it is not clear where the 190 metre figure came from; and

(d) his Honour did not advert to the fact that the bike dropped back onto two wheels some distance from the complainant, the fact that it seemed brakes were applied, and the skidding over about 15 metres.

[10] The learned sentencing judge made it plain that the objective level of seriousness of the conduct was an important factor in the sentencing process.  In that respect his Honour was, respectfully, plainly correct.[13]  However, the sentencing proceeded on an incorrect appreciation of the nature of that conduct.

[11] The conduct consisted of engaging in a wheel-stand, at some speed, over a distance of less than 100 metres, then dropping to two wheels and skidding, probably when the brakes were applied.  No alcohol or drugs were involved, unlike many of the cases that involve this type of offence.  The riding occurred at a place where motocross was under way, and where bikes were permitted to travel through the staging and administration area.  True it is that it was foolish and even dangerous to do a wheel-stand, at speed, in that area.  However, the wheel-stand had finished at least about 15 metres before where the complainant was struck, and it seems brakes were being applied.  That suggests that speed was the real problem, rather than the wheel-stand.

[12] Properly characterised, the conduct here, whilst undoubtedly foolish and dangerous, did not warrant the description of “dangerous driving … of an extreme kind”.  It was that characterisation that led the learned sentencing judge to impose a period of actual imprisonment.

[13] That error has the result that this Court must re-sentence Mr Maher.

[14] The objective seriousness of the conduct has been examined above.  The other relevant considerations were ones taken into account by the learned sentencing judge:

(a) Mr Maher’s youth (19 years and four months at the date of the offence, and nearly 20 years and six months at sentence);

(b) his good upbringing, and excellent character and employment references;

(c) the lack of any prior criminal record, and an inconsequential traffic history;

(d) his good work history (a significant way through an apprenticeship);

(e) the timely guilty plea; it was not made until close to the trial but the delay was caused by investigations into certain mechanical aspects of the bike;

(f) his evident significant remorse;

(g) his excellent prospects of rehabilitation; and

(h) the serious nature of the injuries caused (fractures to his legs and development of compartment syndrome), the number of surgical operations endured, and the time taken to recover (10 months until he could run again, and continued pain after some 14 months); and the impact upon the boy’s family.

[15] In my respectful opinion, it cannot be said that a period of actual imprisonment was warranted in the circumstances of this case.  That is not to minimise in any way the serious consequences for the complainant and his family.  It is merely to recognise the weight of authority such as R v Mules[14] and R v Horne,[15] which were the subject of comment by this Court in R v Hopper:[16]

“The sentencing judge referred to R v Mules, in which the President, with whose reasons Keane JA and Mullins J agreed, observed that the previous decision in R v Horne made it clear that because the rehabilitation of young offenders is in the interests of the community, “youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and cooperated with the administration of justice, even where they have committed serious offences … should receive more leniency from courts than would otherwise be appropriate.””

[16] Mr Maher falls into the category of offender referred to in those decisions.  He was 19 and a-half when the offence occurred, and had: an inconsequential criminal history; good prospects of rehabilitation; good references as to his character and work history; pleaded guilty and thereby cooperated with the administration of justice; and expressed appropriate remorse.[17]  To the extent that his failure to admit fault from the earliest time was criticised, it has to be noted that when the police asked to interview him he acted on the instructions of his lawyers.

[17] The head sentence of 15 months was not the subject of challenge on this application.  Even if it had been, the comparable cases referred to[18] amply establish that to be an appropriate sentence in the circumstances.

Conclusion

[18] For the reasons expressed above, I joined in making the orders on 25 July 2016.

[19] PHILIPPIDES JA:  I have had the advantage of reading the reasons for judgment of Morrison JA.  They reflect my reasons for joining in the orders made in this matter.

[20] BURNS J:  I agree with the reasons expressed by Morrison JA for the orders made by the Court on 25 July 2016.