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R v Turner[2022] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION:

R v Turner [2022] QCA 175

PARTIES:

R

v

TURNER, Mathew Robert

(applicant)

FILE NO/S:

CA No 108 of 2022

DC No 900 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 3 June 2022 (Loury QC DCJ)

DELIVERED ON:

Date of Orders: 13 July 2022

Date of Publication of Reasons: 13 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2022

JUDGES:

Mullins P and Morrison JA and Boddice J

ORDERS:

Date of Orders: 13 July 2022

  1. Application for leave to appeal refused.
  2. Direct the registrar procure the correction of the endorsement of the indictment to accord with the sentence imposed by the sentencing judge of imprisonment of 2 years suspended after 6 months for an operational period of 3 years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to dangerously operating a vehicle, causing grievous bodily harm – where the applicant plead guilty at an early stage – where the applicant had no prior criminal history – where the applicant was sentenced to two years’ imprisonment, suspended after serving six months in custody – whether the learned sentencing judge wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion – whether the sentence required six months actual imprisonment – whether the sentence was manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 9(3)(f)

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, followed

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, followed

R v Allen [2012] QCA 259, cited

R v Conquest; Ex parte: Attorney-General (Qld) [1995] QCA 567, cited

R v Danter [2016] QCA 94, followed

R v Iaria [2008] QCA 396, followed

R v Lightbody (2019) 88 MVR 95; [2019] QCA 61, cited

R v MacDonald (2014) 244 A Crim R 148; [2014] QCA 9, followed

R v McGuigan [2004] QCA 381, followed

R v Oliver [2019] 3 Qd R 22; [2018] QCA 348, cited

R v Proesser [2007] QCA 61, followed

R v Tout [2012] QCA 296, followed

R v Towers (2009) 52 MVR 438; [2009] QCA 159, followed

R v Wakefield (2008) 187 A Crim R 514; [2008] QCA 269, followed

COUNSEL:

M J Jackson for the applicant

T L Corsbie for the respondent

SOLICITORS:

N R Barbi Solicitor for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MULLINS P:  I joined in the making of the orders on 13 July 2022 for the reasons given by Morrison JA.
  2. [2]
    MORRISON JA:  On 8 April 2021 the applicant drove through the intersection of Marquis and Juliette Streets at Greenslopes.  As he did so the lights changed from amber to red.  The applicant was driving in the middle lane.
  3. [3]
    The change of traffic lights at that intersection was synchronised with the traffic lights at the next intersection, approximately 100 metres away.  That intersection was where Juliette Street crosses Duke Street.
  4. [4]
    After the first intersection the middle lane split into two lanes, one continuing straight ahead and the other turning right into Duke Street.  The applicant remained in the right turning lane, without braking or slowing down after the red lights at the corner of Juliette and Marquis Streets.  He evidently realised he was in the wrong lane and made a quick change to continue on Juliette Street.
  5. [5]
    Some six seconds after he crossed through the first intersection, the applicant entered the intersection of Juliette and Duke Streets, against the traffic light which had already turned red.  He hit the complainant, a motorbike rider who was travelling north on Duke Street and was then half-way through the intersection.  The complainant was thrown from his motorbike and landed on the guardrail at the edge of the road.  He sustained serious injuries to which I will return in detail later.
  6. [6]
    The applicant did not brake between the two intersections.  In fact, he did not brake until after his vehicle had hit the complainant.  The applicant pulled over and rendered assistance to the injured complainant.
  7. [7]
    Arising out of those events the applicant was charged with dangerously operating a vehicle, causing grievous bodily harm.  He pleaded guilty at an early stage and was sentenced (on 3 June 2022) to two years’ imprisonment, suspended after serving six months in custody, for an operational period of three years.
  8. [8]
    The applicant sought leave to appeal against the sentence imposed on two grounds:[1]
    1. (a)
      the learned sentencing judge wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion; and
    2. (b)
      because the sentence required six months’ actual imprisonment it was manifestly excessive.
  9. [9]
    At the conclusion of the hearing of the application for leave to appeal on 13 July 2022 the Court made the following orders, with reasons to follow at a later date:
    1. (a)
      Application for leave to appeal refused;
    2. (b)
      Direct the registrar to procure the correction of the endorsement of the indictment to accord with the sentence imposed by the sentencing judge of imprisonment of two years suspended after six months for an operational period of three years.
  10. [10]
    The reasons below demonstrate why I joined in those orders.

Circumstances of the offending

  1. [11]
    The applicant was 35 years old at the time of the offence.  He had no criminal history, but his traffic history revealed eight speeding offences between August 2015 and April 2020.[2]  Six of those offences were for speeding by less than 13 kilometres per hour.  One offence in 2015 was for exceeding the speed limit by at least 13 kilometres per hour, but not more than 20 kilometres per hour.  The last speeding offence, in 2020, was for exceeding the speed limit by more than 20 kilometres per hour but not more than 30 kilometres per hour.
  2. [12]
    The applicant was driving towards Annerley in a Toyota HiAce van.  He was not familiar with the area and was driving an unfamiliar van.  However, he was seen to be driving erratically, making abrupt lane changes and accelerating and then braking suddenly, causing concern to other drivers, and driving as if he was in a hurry.
  3. [13]
    The applicant turned onto Juliette Street where the speed limit was 60 kilometres per hour.
  4. [14]
    Driving in the middle lane, he crossed the intersection at Marquis and Juliette Streets at a point where the traffic lights directly in front of him turned from amber to red.  Those lights were synchronised with the traffic lights at the next intersection, 100 metres away, at Duke and Juliette Streets.
  5. [15]
    The middle lane split into two lanes, one continuing straight ahead, and the other turning right.  The applicant remained in the right turning lane, without braking or slowing down after the red lights at Marquis and Juliette Streets.  He then indicated and made a quick change into the lane continuing along Juliette Street.
  6. [16]
    At about that time the complainant drove up slowly on his motorbike through the stopped traffic in the middle and right hand lanes of Duke Street, travelling north.  He stopped at the red traffic lights at the intersection of Duke and Juliette Streets.
  7. [17]
    The lights turned green at Duke Street and the complainant, and the rest of the traffic, drove off.  The complainant took off slightly quicker than the cars, but at a regular speed for a motorbike.
  8. [18]
    Approximately six seconds after the lights had turned red at both intersections, the applicant drove through the red light at the intersection of Juliette and Duke Streets, and hit the complainant who was then half-way through the intersection.  The complainant was thrown from his motorbike and landed on the guard rail at the edge of the road.
  9. [19]
    The applicant did not brake until after the van had hit the complainant.  The applicant pulled the van over beside the motorbike.  Another motorcyclist pulled over and assisted the applicant to remove the then unconscious complainant from the guardrail and place him on the ground.  The complainant’s helmet was removed.  There was blood coming from his nose and mouth.
  10. [20]
    The Queensland Ambulance Service attended the scene shortly afterwards.  The complainant had a Glasgow Coma Scale score of 3 on arrival, however regained consciousness approximately five minutes later and was sedated by paramedics after becoming agitated.
  11. [21]
    He was taken to hospital where he presented with an altered conscious state, extensive bloody facial injuries, a bloody airway and extensive anterior neck swelling.  He had the following injuries:
    1. (a)
      an extremely severe traumatic brain injury; an MRI brain scan found extensive haemorrhaging across the brain;
    2. (b)
      he had a period of post-traumatic amnesia of 30 days, indicating a very severe traumatic brain injury;
    3. (c)
      the left and right carotid artery, and right vertebral artery, were dissected;
    4. (d)
      he had facial fractures, being by bilateral Le Fort III fractures with additional maxillary sinus, orbital floor, bony nasal septal and bilateral mandibular fractures;
    5. (e)
      a compound fracture of the right great toe and fifth metatarsal bones;
    6. (f)
      a left index finger laceration and extensor tendon injury;
    7. (g)
      a fracture of his cervical spine with significant soft tissue injury causing widening of the C5 and C6 facet joints;
    8. (h)
      displaced comminuted fractures of his first and second ribs with associated collapsed lung and blood entering the space between the lung and chest cavity.
  12. [22]
    The complainant underwent surgery on three occasions.  The first was urgent surgery on his arrival at hospital, for the insertion of bilateral intercostal chest catheters for a right-side tension pneumothorax and left side pneumothorax.  The second was six days later when medical staff performed an open reduction of the great toe fracture, with internal wires being fixed in the toe, as well as a repair to the tendon injury in the finger.  Then two days later again the complainant underwent surgery for an open reduction of the mandible fracture and the cheek bone with internal plates being fixed.  A tracheoscopy was also performed, and tube inserted into the windpipe to assist the complainant with his breathing.  That remained in place for 18 days.
  13. [23]
    The complainant remained in the intensive care unit from 8 to 28 April 2021, before being transferred to the neurosurgery ward.  On 18 May 2021, he was transferred to the Brain Injury Rehabilitation Unit (BIRU) for intensive impatient rehabilitation.
  14. [24]
    Upon his admission to the BIRU the complainant was on a pureed diet because of the fractures and his difficulty in swallowing.  He could walk independently, with a right post-operative shoe to protect his toe fracture, and he could complete personal care tasks independently with extra time and specialist care.
  15. [25]
    The complainant underwent cognitive testing which indicated he had a mild expressive aphasia and a mild cognitive communication disorder with intermittent word finding difficulties.  He experienced reduced attention to detail and verbal recall on cognitive screening.  He had reduced strength and power in his right shoulder and reduced grip strength, with associated paraesthesia radiating down the arm.
  16. [26]
    The complainant remained in an Aspen collar for six weeks with reduced mobility due to cervical spine injuries.
  17. [27]
    At the time of his discharge from hospital on 3 June 2021, he continued to have difficulty chewing and swallowing and had reduced efficiency of skills in auditory comprehension.  He then underwent 10 weeks of ongoing community-based rehabilitation.
  18. [28]
    In the absence of the emergency medical treatment, death was the likely consequence of the injuries due to a combination of airway compromise and ventilatory failure.  The injuries have caused permanent injury on the complainant’s health despite the medical treatment he received.  As of April 2022, the complainant continued to suffer from:
    1. (a)
      numbness and loss of nerves in his teeth, and reduced strength and efficiency in chewing and swallowing;
    2. (b)
      mild expressive aphasia and a mild cognitive communication and language disorder with reduced auditory memory and inferencing skills;
    3. (c)
      limited range of motion due to the toe fracture and tendon damage to his finger;
    4. (d)
      reduced strength and power in his right shoulder, and reduced grip strength with associated paraphasia radiating down his arm and into his fingers; and
    5. (e)
      as a result of the left carotid dissection, the complainant developed an acquired left side Horner syndrome (constricted pupil, slight drooping of his eyelid and inability to sweat on his left side).  He continues to take analgesics to manage pain from the dissected arteries, which will not heal.
  19. [29]
    The applicant was interviewed by police at the scene of the crash.  He was tested for drugs and alcohol, returning negative results.  He told police that it was the first time he had driven on that road and as he was driving up to the second intersection he realised he was in the wrong lane.  He did a shoulder check and merged left.  As he looked up, he realised the lights had changed and put his foot on the brake.  As he did that, the bike rider was in front of him and he hit the bike.  Police confirmed that he was not paying attention to the traffic lights prior to conducting the shoulder check, and the applicant stated it was because he was further back from the traffic lights.
  20. [30]
    CCTV footage showed that the applicant only braked after the collision.  That was confirmed by forensic investigation by police.
  21. [31]
    The applicant later declined to participate in a formal interview with police and was served with a notice to appear for his offending.

Approach of the sentencing judge

  1. [32]
    The learned sentencing judge commenced by reciting the essential circumstances of the offending conduct.  This included the fact that the applicant did not slow down or stop but proceeded through a red light before colliding with the complainant.  Her Honour observed that the lights had been red for some six seconds when the applicant drove through the red light.  There was no braking at all prior to hitting the complainant, a circumstance confirmed by the CCTV footage.
  2. [33]
    The learned sentencing judge accepted that the applicant was not particularly familiar with the vehicle he was driving, nor familiar with Juliette Street.  Her Honour also accepted that the applicant was performing a job that day which was not his usual job.  All of these matters were the result of accepting submissions made by the applicant’s Counsel.
  3. [34]
    Her Honour also observed that the account given to the police did not match the CCTV footage, which made it clear that the applicant did not see the lights had changed from amber to red when he changed lanes after the first intersection and before the second.  As to that her Honour observed:

“They had changed from amber to red well before that, and of course, you did not brake.  But I accept that you were not intentionally trying to mislead the police.  You were no doubt in a state a shock yourself, having provided some first aid to [the complainant]”.

  1. [35]
    The learned sentencing judge then outlined the “catastrophic injuries” sustained by the complainant, taking them substantially from the agreed schedule of facts.  Having noted the fact that the applicant was 35 years old at the time of the offence, and 36 years old at sentencing, the lack of any previous criminal history and the traffic history as outlined above, her Honour then noted the following relevant factors to the sentencing:
    1. (a)
      the plea of guilty was made at an early stage, demonstrating cooperation with the administration of justice, the applicant’s remorse, and the avoidance of the need for a trial;
    2. (b)
      the applicant’s personal background including his disadvantaged upbringing, lack of contact with his mother and abuse received whilst being brought up by his father and stepmother culminating in his grandmother becoming his legal guardian; further, that the applicant had left home at 16 years of age and had a child shortly thereafter, with whom he had no contact or relationship since;
    3. (c)
      his consistent work history, including working for the one employer for 18 years, progressing from production hand to procurement manager; further, that the applicant was a valued and loyal employee;
    4. (d)
      the evidence based on character references, which revealed the applicant to be of good character generally and having support of his partner;
    5. (e)
      that the offending was out of character, and the applicant was deeply remorseful for what he had done;
    6. (f)
      the fact that the victim impact statements revealed the significant impact of the offending conduct, and the enormous impact on every aspect of the complainant’s life; some 14 months from the accident, the complainant still did not know if he would ever get back to being the person he was prior to the accident.
  2. [36]
    Then, having observed that the maximum penalty for the offence was 10 years imprisonment, her Honour said that the applicant’s “driving was particularly serious” for reasons which her Honour then enumerated.  They were:[3]
  1. (i)
    he was unfamiliar with the road on which he was driving;
  1. (ii)
    it was at a time when the applicant would have appreciated that there was a great deal of traffic, as it was peak hour;
  1. (iii)
    the applicant was so distracted that he did not notice the lights turned to amber and then red at the first intersection, and that the lights were red at the second intersection 100 metres away; and
  1. (iv)
    he did not notice the traffic progressing through the intersection, because he did not brake.
  1. [37]
    Her Honour then summarised the circumstances of the offending in this way:

“The lights turned red when you were some 100 metres from the intersection.  For a significant period of time, I consider that you failed to pay any attention to your surroundings.  This is far removed from a brief period of inattention.  I do not consider that it would be appropriate to describe that period as not prolonged.  In the circumstances, it was prolonged.  I consider that your driving involved serious fault on your part.”

  1. [38]
    The learned sentencing judge observed that the extent of harm caused by the offending conduct must be taken into account.  The complainant had sustained a permanent cognitive injury and other permanent injuries, to which she had referred.  Whilst her Honour accepted that the applicant was remorseful and unlikely to reoffend in a similar way again, and that he was a person of good character with no criminal history, personal deterrence therefore did not loom large in the exercise of the discretion.  Her Honour then noted that the submission had been made on the applicant’s behalf that there was a reduced need for a sentence that involved general deterrence “because of these circumstances of your offending, particularly, it does not involve alcohol, speed, fatigue or a lengthy period of reckless driving”.[4]
  2. [39]
    Her Honour, however, took the view that a sentence involving general deterrence was necessary:[5]

“Nonetheless, a deterrent sentence is, in my view, necessary.  The sentence I impose ought to serve as a salutary reminder to all who undertake the serious responsibility of driving a motor vehicle.  Drivers must take proper care, and remain astute to observe traffic signals, and to keep a careful look out at all times.  Whilst the need for general deterrence might be less than would be the case if you had been drinking or using drugs or speeding, nonetheless, it is still a feature that, in my view, looms large in the determination of the appropriate sentence.  So too does community denunciation.

The sentence I impose must deter others from driving in a like manner.  The carnage on our roads continues.  There are increasing cars on our roads.  Drivers must be vigilant to ensure that they are not endangering others because they are distracted in some way and failing to pay attention to their surroundings.  That is the purpose of general deterrence, to deter others from driving in a similar way.  That is also the reason why denunciation is so important, because there are so many road accidents where perfectly innocent members of the community die or are left with serious injuries, as was [the complainant].”

  1. [40]
    Her Honour acknowledged the applicant’s steps to rehabilitation by engaging in the Queensland Traffic Offending programme and observed that protection of the community did not loom as a large factor.  Her Honour continued:[6]

“In my view, the need for general deterrence and denunciation warrant a sentence which does see you serve some actual imprisonment.”

General deterrence considerations

  1. [41]
    The first contention advanced by Mr Jackson of Counsel, on behalf of the applicant, was that the learned sentencing judge wrongly permitted considerations of general deterrence to overwhelm the sentencing discretion.  Reference was made to s 9(3)(f) of the Penalties and Sentences Act 1992 (Qld), as part of the submission that it had particular relevance in circumstances where a driver displayed a disregard for the interest of public safety, in the sense that it involved a risk over and above that ordinarily associated with driving.  It was submitted that it was important to deter drivers from falling into the “murky area between recklessness and deliberate harm”[7] but that general deterrence was concerned with what the defendant or others might do in the future, and therefore it was important to consider the need to punish the applicant as an instrument to deter others in his position.
  2. [42]
    Accepting the well-known passage concerning deterrence in R v Allen[8] the submission was made that in the applicant’s case “there was no suggestion of alcohol, speed, fatigue or a period of reckless driving”.  For those reasons general deterrence did not “loom large” in the circumstances of this case.
  3. [43]
    In my respectful view, that contention should be rejected.  There was no suggestion of alcohol or fatigue, but in the circumstances, there was no doubt that the applicant was driving at inappropriate speed, and recklessly.  Having entered the first intersection on an amber light turning to red, the applicant did not reduce his speed in the next 100 metres to the second intersection where he collided with the complainant.  The elapsed time was about six seconds, and the distance covered about 100 metres.  It takes little mathematics to understand that the applicant’s likely speed was at the speed limit of 60 kilometres per hour.  However, that was a speed maintained in circumstances where, if the applicant had been keeping an appropriate lookout, he would have well known that the next set of lights had already turned red and he needed to be reducing speed in order to stop.
  4. [44]
    Moreover, whilst it is true to say that he was driving on an unfamiliar road, proper care and astute observation of traffic signals would have made it plain to the applicant that he was in the wrong lane if he wished to travel straight ahead, and that he needed to be ready to stop.  It was accepted that he did not brake at all until after he collided with the complainant.
  5. [45]
    In my view, that manner of driving involved inappropriate speed and recklessness.  The circumstances were that the applicant plainly did not appreciate that the lights ahead of him had already turned red before he arrived at the second intersection, and he drove through the red light without braking and without noticing that traffic was entering the intersection from the left.
  6. [46]
    The appropriateness of the focus on general deterrence, in the particular circumstances of this case, sits within what this court said in R v Allen:[9]

[17] …Although deterrence does not loom as large in this case as in cases involving alcohol, speed, fatigue or a lengthy period of reckless driving, a deterrent sentence is still apposite as a salutary reminder to all who undertake the serious responsibility of driving a motor vehicle. Drivers must take proper care and remain astute to observe traffic signals and to keep a careful lookout when turning across oncoming traffic. The judge was entitled to conclude that this case was more than momentary inattention and so required a period of actual imprisonment, despite the hardship this would cause to the applicant and his young, dependent family.”

  1. [47]
    As I have explained above, the applicant’s conduct involved inappropriate speed, reckless driving and a failure to remain astute to observe the traffic signals and oncoming traffic.
  2. [48]
    In my view, the learned sentencing judge was plainly right to consider that general deterrence did loom large.  I do not conclude that such considerations overwhelmed the sentencing discretion.

Was the sentence manifestly excessive?

  1. [49]
    To succeed on an application for leave to appeal on the basis of manifest excess, it is not enough to show that the sentence imposed was different from, or even markedly different from, other examples of sentences in other cases.  Rather, it is necessary to demonstrate that there must have been a misapplication of principle or that the sentence imposed is “unreasonable or plainly unjust”.[10]
  2. [50]
    Sentencing judges are to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.[11]  Cases that are said to be comparable do not mark with precision the outer bounds of a sentencing judge’s discretion in imposing a sentence in another case.[12]  At best they stand as yardsticks.
  3. [51]
    At the sentencing hearing Counsel for the applicant accepted that a head term of imprisonment had to be imposed and conceded that two years’ imprisonment was appropriate.  The main contention then advanced was that the sentence should be immediately suspended.  The reasons advanced for that contention were as follows:
    1. (a)
      the offending was objectively serious but there was no recklessness nor excessive speed, and no suggestion of distraction by the driver (the applicant);
    2. (b)
      the applicant had no criminal history and his remorse was displayed immediately, coupled with the rendering of assistance and staying at the scene;
    3. (c)
      the offending was out of character;
    4. (d)
      the applicant had impressive antecedents, and was regarded as a loyal, productive and trusted employee;
    5. (e)
      the applicant had completed the Queensland Traffic Offenders Programme, and not committed any subsequent driving offences;
    6. (f)
      a head sentence could serve the aims of general deterrence and denunciation, as observed in R v Oliver;[13] and
    7. (g)
      personal deterrence did not loom large and therefore any period of actual custody before suspension turned on the personal circumstances of the applicant, mitigating features including good character, employment record and remorse, the timeliness of a guilty plea, as well as on any aggravating features such as the impact of imprisonment on the applicant and his dependents.[14]
  4. [52]
    The passages of the sentencing comments that I have set out above in paragraphs [35] to [39] demonstrate that the factors raised in the applicant’s submissions at sentencing were taken into account by the learned sentencing judge.  Her Honour specifically accepted that the plea of guilty was early, that the offending was out of character, that the applicant was deeply remorseful, and the applicant’s history was of a loyal hard worker with no relevant criminal history and the benefits of support from family, friends and employers.  Her Honour noted the completion of the Queensland Traffic Offenders Programme.  Further, the learned sentencing judge accepted that the applicant was unlikely to reoffend in a similar way and therefore personal deterrence did not loom large.
  5. [53]
    The learned sentencing judge adverted to the argument that there was a reduced need for a sentence involving general deterrence, but explained why she took the contrary view.  In doing so her Honour also recorded that she had considered the only case put forward as a comparable case, namely R v Danter.[15]  That decision itself reviewed other authorities including R v McGuigan,[16] R v Proesser,[17] R v Wakefield,[18] R v Iaria,[19] R v Towers[20] and R v MacDonald.[21]  Her Honour expressly stated that she had considered those decisions as well.[22]
  6. [54]
    For the reasons which I have expressed above her Honour’s characterisation of the driving as being “particularly serious” was correct.  As I have explained, the driving involved recklessness, excessive speed and manifest inattention to traffic signals.  The outcome of that manner of driving was that catastrophic injuries were caused to the complainant.  One only need state the fact that the complainant sustained severe brain injuries which, together with other physical injuries, meant that he underwent a number of surgeries and remained in intensive care for some weeks.  He remained in hospital for nearly two months and his ongoing disabilities are significant and permanent.
  7. [55]
    Counsel for the applicant contended that Danter and the other cases could be distinguished because in none of them was there the complete collection of mitigating factors that applied to the applicant, and those cases concerned driving which was attended by recklessness, excessive speed and inattention to traffic signals, whereas the applicant’s case did not.
  8. [56]
    As explained above it is not enough to show that the sentence imposed was different from, or even markedly different from other examples of sentences in other cases.  That is all that is shown here.  And, once it is accepted, as it must be, that the applicant’s driving revealed, in the circumstances, recklessness, inappropriate speed and inattention to traffic signals, any distinction between Danter and the other cases falls away.  They establish that where those features are present a period of actual custody is open.
  9. [57]
    In my respectful view, it cannot be demonstrated that the sentence imposed on the applicant was manifestly excessive.  There is no misapplication of principle and the sentence imposed is not unreasonable or plainly unjust.

One other matter

  1. [58]
    During the course of oral argument attention was drawn to the fact that the Verdict and Judgment Record showed the head sentence as being two years and six months, rather than the two years actually imposed. Both Counsel agreed that an order should be made that the registrar procure the correction of the endorsement and that an amended Verdict and Judgment Record is issued.
  2. [59]
    For these reasons I joined in the orders made on 13 July 2022.
  3. [60]
    BODDICE J:  Morrison JA’s comprehensive summary of the evidence and analysis of the sentencing Judge’s remarks, which I gratefully adopt, allow me to briefly state my reasons for joining in the making of the orders on 13 July 2022.
  4. [61]
    First, considerations of general deterrence did not overwhelm the exercise of the sentencing discretion.
  5. [62]
    As the sentencing Judge properly observed the applicant’s driving “was particularly serious”.  It involved a failure to pay any attention to his surroundings for a prolonged period, with devastating consequences for the motorcycle rider.  Whilst the applicant was remorseful and had many positive factors in mitigation, general deterrence was properly a relevant factor.
  6. [63]
    Second, a requirement that the applicant serve a period of actual imprisonment did not render the sentence manifestly excessive.  Such a requirement was consistent with the recognition of the need for a deterrent sentence.  Further, a requirement that the applicant serve only six months of a head sentence of two years in actual custody evidenced a proper reflection of the applicant’s cooperation and many mitigating factors.  The sentence imposed was also consistent with comparable authorities.[23]
  7. [64]
    Against that background, there was no basis to conclude there had been any misapplication of principle on that the sentence was unreasonable or plainly unjust.

Footnotes

[1]As amended by leave at the hearing.

[2]AB 34.

[3]AB 31, lines 20-27.

[4]AB 31, lines 40-44.

[5]AB 31, 46 to AB 32, line 13.

[6]AB 32, line 18.

[7]Referring to R v Conquest; Ex parte: Attorney-General (Qld) [1995] QCA 567 at [11].

[8]R v Allen [2012] QCA 259 at [17].

[9]R v Allen [2012] QCA 259 at [17].

[10]R v Tout [2012] QCA 296 at [8].

[11]Markarian v The Queen (2005) 228 CLR 357 at 371.

[12]Barbaro v The Queen (2014) 253 CLR 58 at 74; Hili v The Queen (2010) 242 CLR 520 at 537.

[13]R v Oliver [2019] 3 Qd R 221 at [46].

[14]Reliance was placed on R v Lightbody (2019) 88 MVR 95 at [114]; [2019] QCA 61.

[15]R v Danter [2016] QCA 94.

[16][2004] QCA 381.

[17][2007] QCA 61.

[18][2008] QCA 269.

[19][2008] QCA 396.

[20](2009) 52 MVR 438; [2009] QCA 159.

[21][2014] QCA 9.

[22]AB 32, line 19.

[23]R v Danter [2016] QCA 94 and the authorities discussed therein.

Close

Editorial Notes

  • Published Case Name:

    R v Turner

  • Shortened Case Name:

    R v Turner

  • MNC:

    [2022] QCA 175

  • Court:

    QCA

  • Judge(s):

    Mullins P, Morrison JA, Boddice J

  • Date:

    13 Sep 2022

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QDCSR 45003 Jun 2022Sentenced to 2 years’ imprisonment suspended after 6 months for 3 years for dangerous driving causing GBH; “particularly serious” driving involving “serious fault”; “catastrophic” injuries, including significant permanent disabilities; 35yo, no criminal history, traffic history of speeding offences, remorse, otherwise good character, steps toward rehabilitation, reoffending unlikely, early guilty plea; sentencing judge considered that general deterrence “loomed large” (Loury QC DCJ).
Notice of Appeal FiledFile Number: CA108/2209 Jun 2022Application for leave to appeal against sentence filed.
Appeal Determined (QCA)CA108/22 (No citation)13 Jul 2022Application for leave to appeal against sentence refused; reasons to follow: Mullins P, Morrison JA, Boddice J.
Appeal Determined (QCA)[2022] QCA 17513 Sep 2022Reasons for orders of 13 Jul 2022; given that offender’s driving involved inappropriate speed, recklessness and manifest inattention, sentencing judge plainly right to consider that general deterrence loomed large and that consideration did not overwhelm sentencing discretion; sentence not manifestly excessive: Mullins P, Morrison JA, Boddice J.

Appeal Status

Appeal Determined (QCA)

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