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- Unreported Judgment
R v Middleton QCA 288
SUPREME COURT OF QUEENSLAND
R v Middleton  QCA 288
MIDDLETON, Andrew John
CA No 58 of 2021
DC No 2015 of 2020
DC No 468 of 2021
Court of Appeal
District Court at Brisbane – Date of Sentence: 29 March 2021 (Chief Judge Devereaux SC)
Date of Order: 22 November 2021
Date of Publication of Reasons: 17 December 2021
22 November 2021
Sofronoff P, Mullins JA and Boddice J
Date of Order: 22 November 2021
Application for leave to appeal is refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of dangerous operation of a vehicle causing death, while adversely affected by an intoxicated sentence, while excessively speeding – where the applicant was sentenced to imprisonment for eight years and the date for eligibility for parole was set after serving three years of the sentence – where at the time of the accident the applicant suffered from post-traumatic stress disorder related to military deployment – where the accident causing death had occurred after the applicant had driven about four kilometres with a very high blood alcohol concentration and had been driving excessively fast for significantly more than 350 metres before the accident – whether the sentence imposed was manifestly excessive
R v Hopper  QCA 296, cited
R v Nikora (2014) 243 A Crim R 498;  QCA 192, cited
R v Pham (2015) 256 CLR 550;  HCA 39, cited
M J Copley QC for the applicant
C N Marco for the respondent
Anderson Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: For the reasons of Mullins JA, I joined in making the orders on 22 November 2021.
- MULLINS JA: On 29 March 2021 Mr Middleton pleaded guilty to one count of dangerous operation of a vehicle causing death, while adversely affected by an intoxicating substance, while excessively speeding and to one summary charge of driving a motor vehicle under the influence of liquor – type 2 vehicle related offence. For the indictable offence (for which the maximum penalty is 14 years’ imprisonment), he was sentenced to imprisonment for eight years and the date for eligibility for parole was fixed at 29 March 2024 which is after serving three years of the sentence. He was also disqualified from holding or obtaining a driver’s licence absolutely from the date of sentence. In respect of the summary charge, Mr Middleton was sentenced to imprisonment for a concurrent term of six months and disqualified from holding or obtaining a driver’s licence for a period of six months from the date of sentence. Mr Middleton applied for leave to appeal against his sentence on the ground the sentence is manifestly excessive. The court refused the application for leave to appeal at the conclusion of the hearing of the application. These are my reasons for joining in that order.
Circumstances of the offending
- At around 11 pm on Friday, 7 February 2020, Mr Middleton was driving his Subaru Liberty motor vehicle south at excessive speed along Serpentine Creek Road, Redland Bay. The collision occurred in the section of Serpentine Creek Road which caters for two lanes of traffic, one in each direction, separated by double white lines with a posted speed limit of 90 kph. The road surface was in good condition. The area is semi-rural and there was no street lighting. The collision occurred around 350 metres south of the intersection with Scenic Road. Over the 350 metres from the intersection to the collision location, there is a gradual decline followed by a gradual incline in the road. The collision occurred at the top of the incline on a flat section of road. The weather was overcast. The road was wet, as it had been raining lightly prior to the collision.
- Mr Middleton was significantly affected by alcohol. Despite an unobstructed line of sight, he failed to observe a Ford utility that was travelling in front of, and in the same direction as, his vehicle. The Ford utility had slowed by braking from about 70 kph to about 30 kph and was indicating it was making a turn off the road into a driveway to the driver’s left. The driver and passenger in the Ford utility were friends of the group of people who had parked their cars on Scenic Road. The Ford utility was turning into the driveway to do a U-turn, in order to travel back to their friends. Statements were taken from the witnesses at Scenic Road, some of whom estimated that, when the Subaru Liberty passed them, it was travelling at least 150 kph.
- Mr Middleton drove at speed into the back of the Ford utility which caused Mr Middleton’s vehicle to rotate 180 degrees, become airborne, cross the centre lines, and collide with an oncoming Kia Carnival car on the other side of the road. The rear of Mr Middleton’s vehicle collided with the front of Kia Carnival. The impact forced the whole driver’s side of the Kia Carnival rearwards. The impact killed the driver of the Kia Carnival who was Ms Axiom. She was 36 years old, married and she and her husband had three children who were aged 14 years, nine years and almost three years.
- Following the collision, Mr Middleton’s car rolled onto its side and trapped Mr Middleton. A witness approached Mr Middleton’s vehicle and saw he had a dark bottle on his lap. Mr Middleton was cut from his car by Queensland Fire and Rescue Services. Later police found a VB beer bottle lodged between the driver’s side seat and door of his vehicle.
- At 12.59 am on 8 February 2020 Mr Middleton provided a specimen of blood for analysis. His blood alcohol concentration was 0.202 milligrams of alcohol per 100mL of blood (equivalent to 0.202 per cent BAC).
- Mr Middleton’s car was fitted with an airbag control module. The airbags had been deployed on collision. Following deployment, the module records five seconds of pre-impact data which was downloaded. The report indicated that five seconds before the collision, the car speed was 133 kph and the brake pedal was off.
Mr Middleton’s antecedents
- Mr Middleton was born in December 1977 and was 42 years old at the date of the events. He had no prior criminal history. His traffic history commenced with an offence committed on 22 December 2012 when he drove a boat over the general alcohol limit but not over mid alcohol limit with a 0.076 per cent BAC. He incurred four speeding offences between May 2018 and June 2019 for driving less than 13 kilometres per hour over the speed limit.
- When Mr Middleton was 15 years old, his sister was killed in a car accident. He joined the Ready Reserve Scheme and became a platoon commander at the age of 18 years. He was accepted into full time study at the Australian Defence Force Academy (ADFA) and, after completing a four year degree, started working as an intelligence officer. He progressed to specialising in signals. He was deployed in 2003 to the Middle East and in 2005 to Iraq. From 2007 he continued to work for Defence, but as a civilian. By then he was married. He left Defence in 2012 and with a view to going into financial planning, but remained in the Reserve. His increasing Reserve involvement led to deployment in Afghanistan in 2014 working in intelligence and drone technology. The drone technology work meant he became closely and directly responsible for killing people which was confronting. He returned to Australia in 2015, but moved later that year in an intelligence liaison role with the United States forces operating in the Middle East. He did not enjoy that work and his relationship with his wife deteriorated. He returned to Australia in 2017 and became stressed by divorce proceedings. He started work in financial planning. He divorced in 2017 and met his second wife at the beginning of 2019. They married at the end of that year, but subsequently separated.
- Mr Middleton’s home was about four kilometres north of where the accident occurred.
- After the accident, Mr Middleton commenced treatment with psychiatrist, Dr Thomas Moore, who provided a report dated 8 February 2021 for the purpose of the sentencing. The initial consultation was on 24 February 2020 and Mr Middleton met with Dr Moore on 33 occasions as an outpatient. Dr Moore reported as follows. Prior to the accident, excessive alcohol intake by Mr Middleton had been intermittently occurring with negative consequences from around the time he commenced military service and had not been recognised previously as a problem. Mr Middleton also described significant symptoms of depressive mood, anxiety and stress. He described insomnia, flashbacks, cognitive clouding, irritability and regret. He was treated for acute stress disorder (arising from the accident), alcohol use disorder and post-traumatic stress disorder (PTSD). Mr Middleton made the commitment to reduce, then cease, alcohol use and completed both an in-patient dual diagnosis program related to management of mood, anxiety and substance misuse. He completed a follow up day patient program to reinforce those goals and behaviours. He commenced medication to induce illness if alcohol use occurred and, in combination with antidepressant use and regular psychotherapy, has stabilised his mental state. At the date of the report Mr Middleton’s symptoms met the criteria for adjustment disorder with mixed features.
- From the history that Dr Moore obtained from Mr Middleton, Dr Moore discerned a pattern of coping, both in distress at military matters and in personal affairs such as the breakdown of his first marriage, by alcohol consumption. It was likely that the diagnosis of alcohol use disorder was relevant, but unrecognised, prior to the accident and required ongoing treatment and monitoring and it was also likely the pre-existing PTSD was relevant but not recognised with respect to the alcohol use disorder and relational impacts.
- At the sentencing hearing Mr Middleton relied on the acceptance by the Department of Veterans’ Affairs of his liability claim lodged on 27 February 2020 under the Military Rehabilitation and Compensation Act 2004 (Cth). The claim was accepted for PTSD with effect from 30 August 2019 which was the date on which Mr Middleton first sought treatment for the condition from his general practitioner and was accepted from 27 February 2020 in respect of alcohol use disorder and major depressive disorder.
- Mr Middleton was assessed by psychiatrist, Dr Michael Beech, who provided a medico-legal report dated 19 March 2021 for the purpose of sentencing.
- Mr Middleton informed Dr Beech that there was an entrenched pattern of heavy alcohol use in the armed services from the outset. In retrospect, he had been using alcohol to deal with adverse symptoms that had arisen during the Afghanistan deployments. He had ongoing alcohol problems following the divorce from his first wife and they continued during his marriage to his second wife. On the day of the accident, there had been work stress and also an issue with his wife. He had a couple of drinks at work with his mates and went to the bottle shop to purchase more alcohol, but then drank further there. He had called an Uber, but then cancelled it. He did not recall leaving the hotel. He probably drove past where he lived and continued along the road. His father died in September 2020 and Mr Middleton moved to Sydney to assist his mother. Prior to the accident, he had been referred by his general practitioner to a psychologist and commenced treatment.
- Dr Beech concluded at the time of the accident, Mr Middleton suffered from PTSD related to military experiences, alcohol use disorder and a probable persistent depressive disorder. Dr Beech stated:
“Essentially, he has used alcohol through his adult life to deal with aversive psychological and emotional experiences. His binge-drinking has been problematic. On the day of the accident, he had started drinking alcohol and he consumed an excessive amount before he drove home.”
- Dr Beech did not find any evidence of a personality disorder. Dr Beech was of the opinion that Mr Middleton required ongoing psychiatric care in the form of anti-depressant medication for depression and counselling related to the PTSD. It was likely that a period of incarceration would exacerbate his mental disturbances for which he should be referred to mental health services. Mr Middleton would also need maintenance to assist with his alcohol use disorder in the community. If he remained abstinent, the likelihood of further offending was low.
- Three references were tendered on behalf of Mr Middleton. One reference was from an emergency physician and retrieval medicine specialist who served in the Royal Australian Airforce and came to know Mr Middleton in the very early stages of his RAAF career and they became friends. This friend had observed Mr Middleton’s increasing reliance on alcohol to self-medicate and regretted that he had not recognised that Mr Middleton’s issues from his service were not recognised and that he had not done more to encourage Mr Middleton to seek help. A second reference was from his supervising officer for his military service in Australia and in locations overseas which spoke highly of his integrity. This referee had remained friends with Mr Middleton beyond his military service and had observed the profound effects of the accident on Mr Middleton. The third character reference was from a fellow officer who trained with him at Duntroon that noted it was out of character for Mr Middleton to drive his motor vehicle whilst under the influence of alcohol and he had expressed genuine remorse for his conduct that resulted in the loss of a woman’s life.
The sentencing remarks
- In addition to summarising the facts of the accident, Mr Middleton’s antecedents and the reports of Dr Moore and Dr Beech and noting Mr Middleton’s excellent references, the sentencing judge referred to the victim impact statements from Ms Axiom’s family. During the sentencing hearing, victim impact statements were read out by Ms Axiom’s husband, two sisters, mother and father. A sixth victim impact statement from another close relative was also tendered. The sentencing judge noted that Mr Middleton’s actions had devastated the victim’s extended family, it was impossible to state succinctly the effects on the family of her death, and it was a relevant matter in sentencing to take into account the seriousness of the offence, including any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under the victim impact statement.
- The sentencing judge accepted that the plea of guilty was an early one and demonstrated an acceptance of responsibility for what Mr Middleton did and his remorse.
- The sentencing judge sentenced on the factual basis (to which there was no challenge on the application) that the accident occurred after Mr Middleton had driven about four kilometres with a very high blood alcohol concentration and for significantly more than 350 metres Mr Middleton had been driving at the speed the witnesses described which meant that he was driving excessively fast with an excessive alcohol limit and he did not stop with catastrophic results.
- The sentencing judge dealt with the argument advanced on Mr Middleton’s behalf that the presence of the PTSD, giving rise to the symptom of alcohol abuse, reduced his moral culpability and made him an inappropriate vehicle for general deterrence and would also place him in a disadvantaged position in custody compared to other prisoners as follows. The submission was taken into account, but not given significant weight by the sentencing judge who observed that, even if Mr Middleton’s decision to drink may be said to be symptomatic of PTSD, it was difficult to see Mr Middleton’s driving on that road as other than a decision he made which was “really a self-indulgent act with terrible outcomes”. The sentencing judge expressly stated that he did not “lose sight of Dr Beech’s opinion, because there is a combination of the alcohol abuse with PTSD, and also the depressive symptoms” and the relevance of the depressive symptoms to the extent there was evidence of them was that it was the kind of condition that may reduce judgment.
- The sentencing judge noted that Mr Middleton had demonstrated rehabilitation and it might well be “most unlikely” that he would offend again, but the seriousness of the offence required a significant penalty of imprisonment. The sentencing judge rejected the respondent’s submission that a declaration should be made that Mr Middleton was convicted of a serious violent offence. The sentencing judge was not satisfied that the circumstances of the case aggravated the offence in a way that suggested that the protection of the public or adequate punishment required Mr Middleton to serve 80 per cent of any sentence.
Mr Middleton’s submissions
- Mr Middleton cannot identify any specific error which resulted in his being sentenced to imprisonment for eight years, but endeavoured to show by reference to comparable authorities that the extent to which the sentence was different from sentences imposed in similar cases assisted in showing that there must have been some misapplication of principle by the sentencing judge: R v Pham (2015) 256 CLR 550 at .
- Mr Middleton relied on two authorities which were not before the sentencing judge: R v Nikora (2014) 243 A Crim R 498 and R v Hopper  QCA 296.
- The offender in Nikora pleaded guilty to the same offence and the same circumstances of aggravation as Mr Middleton. The offender was 18 years and 11 months old at the time of the offence. He had a provisional licence which required him to have no concentration of alcohol in his blood. His traffic history was minor and irrelevant. He had attended a New Year’s Eve party at an address with his two cousins. At about 1.30 am, the offender approached a person to apologise for reversing into his vehicle. The offender was too drunk to write down his telephone number and was described at that time as “giggling and unsteady on his feet”. At about 4.30 am a resident heard the offender’s vehicle coming up the hill of Glebe Road with the engine revving loudly and observed the vehicle was driving at least twice the speed limit of 60 kph. Ten minutes later the driver of another vehicle waiting at a red light observed, as the light facing him changed to green, that the offender’s vehicle passed through the intersection against the red light travelling in excess of 100 kph. Another five minutes later, the offender’s vehicle travelled over the top of a roundabout on Glebe Road and went out of control, rolled and travelled through a fence and collided with a tree in the yard of a house property on Glebe Road. The offender’s two cousins who were his passengers were ejected from the vehicle and died. As a result of a police forensic examination of the scene, it was determined that the offender’s vehicle commenced braking heavily as it approached the roundabout. Prior to the brakes being applied, the vehicle was travelling at a speed of between 127 kph and 132 kph. At about 6.15 am, tests revealed that his BAC was 0.171 per cent.
- Mr Nikora was sentenced to imprisonment for seven years with parole eligibility set after 28 months. The application for leave to appeal against the sentence on the ground it was manifestly excessive was unsuccessful. Morrison JA (with whom the other members of the court agreed) observed at  that Mr Nikora drove dangerously at speeds more than twice the speed limit through a residential area whilst significantly intoxicated and the driving involved excessive speed for over 15 minutes prior to the collision.
- The offender in Hopper pleaded guilty to the same offence and the same circumstances of aggravation as Mr Middleton. The offender was 20 years old at the time of the offence committed on 24 July 2010. He had a minor criminal history, but a relevant traffic history. The offender and three friends had been drinking at the local bowls club between about 8 pm and midnight. He had driven the friends to the club in his mother’s Honda CRV. The offender admitted drinking between six and 12 stubbies of beer at the club. The four friends left the club in the Honda which the offender drove, intending to take his friends to their respective homes. The first residence was 300 metres away and the offender drove at speeds of between 120 kph and 130 kph and swerved over the roadway. The speed limit was 60 kph. On the way to the next residence, the offender drove off the road onto a rough dirt track and was again driving very fast along the track, when he was told by one of the passengers to slow down which he did not do. He then returned to the road and was again driving fast, when the same passenger told him to slow down. He did not do so and was driving at a speed of 120 kph, when he lost control of the vehicle which skidded onto the wrong side of the road, struck a parked vehicle and then collided with a power pole and a fence. The force of the impact drove a fence beam through the chest of the passenger seated behind the driver who died instantly. When the offender was tested, his BAC was 0.144 per cent. He made frank disclosures about his manner of driving, when interviewed by the investigating police officers.
- Mr Hopper was sentenced to imprisonment for eight years with parole eligibility set after three years.
- Unlike the offenders in Nikora and Hopper, Mr Middleton was a mature man and he also had a higher BAC than those offenders, when he offended. It is not apparent from the facts reported in Hopper as to the length of time that the offender was driving before the accident, but the implication from the facts was that the friends who were being driven home lived locally. The submission that Hopper was a significantly more serious case than Mr Middleton’s offending could not be accepted, as that submission did not take account of Mr Middleton’s mature age, level of intoxication and gross lack of judgment in driving when he was so intoxicated and at the excessive speed that was observed and recorded when the accident occurred.
- Mr Middleton failed to show, by reference to comparable authorities, that his sentence was manifestly excessive.
- BODDICE J: I have had the advantage of reading the reasons of Mullins JA. Those reasons accord with my reasons for joining in the making of the orders on 22 November 2021.
- Published Case Name:
R v Middleton
- Shortened Case Name:
R v Middleton
 QCA 288
Sofronoff P, Mullins JA, Boddice J
22 Nov 2021