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R v Adam[2022] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Adam [2022] QCA 41

PARTIES:

R

v

ADAM, Jake Gregory

(applicant)

FILE NO/S:

CA No 264 of 2021

DC No 464 of 2021

DC No 1781 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 21 September 2021 (Cash QC DCJ)

DELIVERED ON:

1 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2022

JUDGES:

Sofronoff P and Mullins JA and Kelly J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – MENTAL DISORDER – where the applicant pleaded guilty to having dangerously operated a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance – where the applicant was diagnosed as suffering from depression and personality disorders – whether regard to the applicant’s intoxication was excluded by s 9(9A) of the Penalties and Sentences Act 1992 (Qld) – whether the sentencing judge failed to consider the reduction in moral culpability and eliminate general and specific deterrence as sentencing considerations

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was 24 years old at the time of the offending – where the applicant returned a blood alcohol reading of 0.147 – where the applicant had a previous episode of drink driving when they were 22 years old, returning a blood alcohol reading of 0.1 – whether the sentence imposed by the sentencing judge was manifestly excessive in the circumstances

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

Safe Night Out Legislation Amendment Act 2014 (Qld), s 84

R v Barker [2013] QCA 340, considered

R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, applied

R v Burnett-Greenland [2017] QCA 159, considered

R v Clark [2009] QCA 361, considered

R v Dwyer [2008] QCA 117, cited

R v Goodger [2009] QCA 377, considered

R v Graham [2012] QCA 15, considered

R v Haack; Ex parte Attorney-General (Qld) [1999] QCA 76, considered

R v Kevich [1977] VicSC 619, considered

R v McGuire; Ex parte Attorney-General (Qld) [2002] QCA 439, considered

R v Neto [2016] QCA 217, cited

R v O'Connor (1980) 146 CLR 64; [1980] HCA 17, considered

R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited

R v Rosenberger; Ex parte Attorney-General (Qld) [1995] 1 Qd R 677; [1994] QCA 488, applied

R v Tsiaris [1996] 1 VR 398; [1996] VicRp 26, considered

R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered

R v Wickett [2003] QCA 57, considered

R v Wilde; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 538; [2002] QCA 501, cited

COUNSEL:

S J Hedge for the applicant

N E Friedewald for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with the reasons of Kelly J.
  2. [2]
    MULLINS JA:  I agree with Kelly J.
  3. [3]
    KELLY J:  On 8 March 2021, an indictment was presented against the applicant charging him with one count of having dangerously operated a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance.  A summary charge was later presented which charged the applicant with driving a motor vehicle whilst over the middle alcohol limit but not over the high alcohol limit.  On 21 September 2021, after pleading guilty to the count on the indictment and the summary charge, the applicant was sentenced.  On the count on the indictment, he was sentenced to three years’ imprisonment with a parole release date set as 21 June 2022, some nine months later.  On the summary charge, the applicant was sentenced to imprisonment for one month.  He was disqualified from holding or obtaining a driver’s licence for eighteen months.
  4. [4]
    The applicant was sentenced by reference to a statement of facts and he relied upon a report of a forensic psychologist which relevantly diagnosed the applicant as suffering from depression and personality disorders.  The applicant seeks leave to appeal against sentence on two grounds.  The first ground is that the learned sentencing judge failed to consider the reduction in moral culpability, and moderate or eliminate general and specific deterrence as sentencing considerations, by reason of the applicant’s mental conditions.  The second ground is that the sentence was manifestly excessive.

Background facts

  1. [5]
    The offending occurred on 15 June 2019 when the applicant was 24 years of age.  He had spent the day at his house drinking with his friend, the complainant.  In the late afternoon, the pair travelled in an Uber to a local bar where they ate and drank cocktails before returning to the house.  The complainant fell asleep there but was later woken by the applicant and they moved to the garage to listen to music which was being played from the applicant’s father’s car.  After the battery in that car went flat, jumper leads were connected to it and the battery in the applicant’s car.  As the flat battery charged, the pair sat in the applicant’s car, the applicant in the driver’s seat and the complainant in the passenger’s seat.
  2. [6]
    At about 9.00 pm, the applicant disconnected the jumper leads and returned to the driver’s seat of his car.  He reversed onto a public road and started driving at an excessive speed which caused the complainant to yell at him to stop.  The applicant performed a turn at a roundabout and started driving back in the direction of the house.  The applicant drove the car at speed towards an intersection.  A car pulled out of a side street and was hit by the applicant’s car.  The collision caused the applicant’s car to hit a parked car.  The applicant and the complainant were found lying on the road about one metre from the applicant’s car.  The applicant had driven approximately 2.1 kilometres.
  3. [7]
    The complainant was taken to hospital and presented with injuries including tenderness to the spine, undisplaced fractures of his ribs, a right ear laceration and a left lateral elbow laceration (approximately four centimetres) with degloving of surrounding tissue.  He was admitted and received an anaesthetic spinal block to control the pain and assist with his breathing.  The complainant underwent surgery involving a washout of the elbow, debridement and exploration.  He spent six days in hospital.  The injury to the elbow amounted to grievous bodily harm and, if left untreated, would likely have caused permanent reduction in strength and movement to the elbow joint.
  4. [8]
    The applicant also suffered injuries in the accident and was taken to hospital.  His injuries were too serious to allow a roadside breath test.  Police later attended the hospital and obtained a blood sample from the applicant which revealed a blood alcohol level of 0.147 per cent.  On 13 November 2019, the applicant attended a police station and took part in a recorded interview.  He did not have any memory of the night of the offending.

The applicant’s personal history

  1. [9]
    The applicant’s parents had separated in 2007, when he was 12 years of age.  His mother suffered chronic physical pain and was domestically violent towards his father.  The most serious episode of violence had involved stabbing and serious wounding and was witnessed by the applicant.  When his parents separated, the applicant and his father became homeless for a period of some fourteen months.  The father eventually suffered a mental breakdown and was diagnosed with bipolar disorder.  From this time, the applicant effectively became his father’s carer.
  2. [10]
    When he was 12 years old, the applicant attempted suicide.  He left school in year 8.  He commenced drinking alcohol at 15 years old and he used methamphetamine and cocaine for a period between the ages of 18 and 25.  For a period of some years, he had been employed at a pool maintenance shop.  He lost that job in 2019 before the offending occurred.
  3. [11]
    The applicant had an irrelevant, minor criminal history.  His traffic record however contained an episode of drink driving with a blood alcohol level of 0.100 when he was 22 years old.  He had stopped drinking alcohol immediately following the offending.  Since the offending, he had undertaken specialist drug and alcohol counselling and had been treated by a psychologist.  In May 2020, he had commenced a relationship with his partner, which was ongoing at the time of his sentencing.

The psychologist’s report

  1. [12]
    The psychologist had interviewed the applicant.  The interview was followed by psychoeducation sessions.  The psychologist noted that “[the applicant] advised that he had suffered a chronic sense of helplessness\hopelessness expressed through suicidal ideation, anxiety and depression since he was ‘very young’”.  The psychologist opined that the applicant’s account “confirms infant onset of dysthymic response to life stressors – a persistently depressed state”.
  2. [13]
    The psychologist’s report set out the following history provided by the applicant:

“[The applicant] commenced using alcohol from 15 years of age to self-medicate his anxiety and depression. He utilised cocaine and methamphetamine from 18 to 25 years of age and noted that he used to get drunk every night of the week to control his emotional pain. He stopped using alcohol immediately following the incident subject of the current charges.

He advised that he had not realised how at risk he was, and endangering others, until he heard about car crash after he was hospitalized and recovered.

He advised that it scared him as he would never be able to drive at that speed if he was sober and could not recall ever being provoked to drive in such a manner before. He admitted that he was confused and could only offer the explanation that he had been very anxious and angry about his employment in the preceding weeks. …

He had become angry and ‘very upset’ about being out of a job. He attempted to speak to his mother, but she was not interested in supporting him emotionally. His father was too depressed to hold effective discussion or give advice.

He noted that he was drinking a lot over the following weeks to help control his anger and has drawn the conclusion that the amount he drank that day resulted in complete disinhibition, allowing him to spontaneously vent his anger once he got behind the wheel to move the car back to the garage.

He has drawn that conclusion from what he was told occurred. He has no memory of being in the garage or playing music on his father’s equipment which resulted in the reported flat battery.

He agreed that he was angry at being constantly victimised first by his mother, then at school, and the perceived victimisation by [the pool shop] manager. All of which contributed to his becoming drunk each night.”

  1. [14]
    After relating that history, the psychologist’s report expressed these opinions:

“It is this writer’s professional opinion that the research supports [the applicant’s] indicated lack of conscious intent to offend.

It is reasonable to accept that his conduct was due to significant levels of inebriation, which had effectively limited his capability to reason, thus lowering his impulse control and capacity to act with due care.

No other comment is able to be reasonably made regarding the motives or causes of his offending”.

  1. [15]
    The psychologist’s report then provided a series of diagnoses to the effect that the applicant suffered from Alcohol Use Disorder, Psychoactive Substance Dependence, Separation Anxiety Disorder, Borderline Personality Disorder and Depression.
  2. [16]
    In the context of dealing with the diagnosed personality disorders, the psychologist’s report contained the following conclusions:

“There are indications of features or aspects of underlying personality disorders that are reasonably concluded as having severely impacted [the applicant’s] mental health.

6.7.1 Separation Anxiety Disorder

The first disorder is the Separation Anxiety Disorder… consistent with his mother forcing him and his father out of the family home after many years of his exposure to her physical and verbal violence. There were quite substantial… cognitive and emotional developmental impacts due to his young age.

6.7.2 Borderline Personality Disorder

BPD is one of the more difficult conditions to manage and the complications for sufferers have been recognized for some time.

Significant aspects or features of the condition include impaired self-concept (identity problems), negative relationships and potential for self-harm (reckless behaviours etc, as noted above).

…There is clear indication in [the applicant’s] antecedents to support the conclusion that the evidently dysfunctional relationship generated by his mother’s verbal and physical violence has severely impacted her son’s mental health during infancy and early adolescence. It still has an effect on his adult mental health profile …

The critical presence of these conditions in your client’s profile, are considered to be the substantive causes for his use of drugs and alcohol in self-medicating to manage the resultant depression and anxiety.”

  1. [17]
    At its conclusion, the psychologist’s report contained the following statements:

“[The applicant] clearly recognised and accepted the seriousness of his conduct and has taken steps to rehabilitate over the almost two years since the incident. However, his mental health condition must be considered as most fragile.

It is respectfully submitted for the Court’s consideration that, given the conditions that existed within the family environment, contributory and largely causal of his offending, if a custodial sentence were to be imposed it would severely impact his future mental health and negate any progress to date.

It is this writer’s professional opinion that [the applicant] is able to rehabilitate in the community with a low risk of similar reoffending, given his progress with therapy. He has previously been a positive contributor to the community and is currently a carer for his father whose mental health has also been badly effected by the same familial conditions”.

The sentencing hearing

  1. [18]
    Before the sentencing judge, it was accepted that the applicant had made a timely plea of guilty.  The applicant submitted, and it was not seriously disputed, that the offending involved a lower level of grievous bodily harm.  There was no real dispute that a head sentence in the order of three years’ imprisonment would be appropriate.  The Crown contended for such a sentence and the applicant’s counsel materially submitted that he “[did not] cavil with a sentence of up to three years”.  The real dispute, and the focus at the sentencing hearing, concerned whether the applicant should spend time in custody.  The Crown submitted that, to give effect to the early plea of guilty and the other matters in the applicant’s favour, the sentence should be structured to provide for the applicant’s release on parole after one third of a three years’ head sentence.  The applicant’s counsel submitted that the applicant should be immediately released on parole.  As has been noted, the sentence ultimately imposed was three years’ imprisonment with a parole release date set after the applicant had spent nine months in custody.
  2. [19]
    The applicant’s counsel submitted that there were “features of this case” which meant that the applicant’s mental health became relevant as a sentencing consideration.  The applicant’s counsel referred the sentencing judge to the Court of Appeal of Victoria’s decisions in R v Verdins[1] and R v Tsiaris[2] and the decision of this Court in R v Goodger.[3]  After accepting that this was a case of voluntary intoxication, the applicant’s counsel submitted that the applicant’s depression and borderline personality disorder were relevant as to his moral culpability, the need for general and specific deterrence and the type of sentence which should be imposed.  The sentencing judge raised section 9(9A) of the Penalties and Sentences Act 1992 (“the Act”) which relevantly provides that “Voluntary intoxication of an offender by alcohol … is not a mitigating factor for a court to have regard to in sentencing the offender”.  In the context of making submissions about section 9(9A), the applicant’s counsel repeated his concession that the applicant’s intoxication was voluntary but submitted that, whilst the applicant’s intoxication could not be a mitigating factor, “[his] depression is, and that’s what led him to be intoxicated and that’s what led him to offend”.
  3. [20]
    The Crown submitted in reply that whilst the sentencing judge “[might] take into account the underlying reasons perhaps for his level of intoxication, the actual intoxication itself is not a mitigating feature of the offending”.  As to the underlying reasons for the applicant’s intoxication, the Crown emphasised that part of the psychologist’s report which had recorded that, in the lead up to the offending, the applicant had been drinking to help control his anger at losing his job.  The sentencing judge then asked the Crown whether the case was “of the kind” referred to in R v Verdins,[4] R v Tsiaris[5] and in R v Goodger.[6]  The Crown submitted that, whilst there were factors of mitigation in play, the case still required a sentence which reflected a need for general deterrence.

The sentencing remarks

  1. [21]
    Following the submissions, the sentencing judge proceeded to sentence the applicant.
  2. [22]
    His Honour gave credit to the applicant for his early pleas of guilty.
  3. [23]
    His Honour then reasoned as follows:

“Your own personal circumstances are unusual. You were born and raised in Brisbane. Your mother was violent to your father. They separated in 2007 when you were about 12 and for a period of time, you and your father were effectively homeless. Your father developed mental health problems and you live with him now, acting effectively as his carer. You have also suffered mental health difficulties. You have probably suffered depression for a very long time. You began abusing alcohol as a teenager. You have worked as a labourer and in servicing swimming pools. … But it seems that you have acquired a substance abuse disorder, particularly alcohol abuse. And as well, it seems that you also suffer a personality disorder. The personality disorder may have contributed, to some extent, to your reckless behaviour on this evening. Since the event, you have taken steps to address these problems. You have completed the Queensland Traffic Offender Program. You have seen a general practitioner and also a psychologist, and others to address your alcohol problem. You also have a partner, and you have taken on the role of parent to her child. She supported you as you took the steps I have described towards rehabilitation. There are significant matters in your favour. And as is made plain in the report of the psychologist… , imprisonment will have a negative impact upon your mental health and disrupt your rehabilitation.

It is also likely to have an impact upon your wider family, including your partner and father. But that must be balanced against the seriousness of the crime that you committed. Yours was a wildly reckless choice to drive at speed and while very drunk, with the result that serious injury was caused to your friend and to you. You did so as a relatively young man, but you were someone who had a prior conviction for drink driving. You are not to be punished for that prior conviction, but you cannot expect the Court to extend the leniency that it would to someone who had never been in trouble before. The purposes for which any sentence may be imposed are set out in the Penalties and Sentences Act. They are to punish you to an extent that is just in all the circumstances, to provide conditions that might promote your rehabilitation, to deter you or other people from committing offences like this, to denounce what you did, and what is meant by that is to impose a sentence that indicates that our community will not tolerate criminal offending of this kind.

The last factor may be, in some cases, to impose a sentence that will protect the community from you. But I do not think that is at all relevant here. In weighing those purposes and the other matters relevant in both the Penalties and Sentences Act and the principles that emerged from the cases to which I had been referred, the view that I have for each, Mr Adam, is that the only appropriate sentence is one which will involve a period of time actually in custody. I have reached that conclusion despite the very helpful and able submissions made on your behalf by Mr Wilson. The orders I make are these:

[For] the indictment, you are to be imprisoned for three years, and I fix the date on which you are to be released on parole as the 21st of June 2022, that is, after a period of nine months’ imprisonment. For the summary offence you are imprisoned for one month. I disqualify you from holding or obtaining a driver’s licence for a period of 18 months”.

Intoxication and mental health conditions as sentencing considerations

  1. [24]
    The sentencing judge was confronted with facts which featured intoxication and mental health conditions.  In contemporary society, these features are commonly part of the narrative of offending.  It is convenient to identify how these features may be considered at sentencing.
  2. [25]
    As to intoxication, in R v O'Connor,[7] Barwick CJ observed:

“In days before the common law fundamentals of criminal liability with which we are now familiar had been educed and declared, it was said that drunkenness was no defence to or excuse for the commission of crime: indeed, it might be an exacerbation of the offence. This formulation still retains some currency.”

  1. [26]
    In R v Rosenberger; Ex parte Attorney-General (Qld),[8] this Court held that unless there is something that excuses the taking of alcohol or drugs by an offender, ordinarily intoxication will not mitigate penalty.  In the following passage the Court marshalled a number of authorities from other jurisdictions:[9]

“In a number of cases, Bradley (1980) 2 Cr.App.R. (S) 12 is referred to; there Lord Widgery C.J. said:

‘This Court finds nothing in the case to indicate that that sentence was other than entirely correct. It is said that he was in drink. So he was. But the day is long past when somebody can come along and say “I know I have committed these offences, but I was full of drink”. If the drink is induced by himself, then there is no answer at all.’

In Lane (1990) 53 S.A.S.R 480 at 485 Matheson J., after referring to Bradley, mentioned two earlier South Australian appellate decisions on the point, one of which is authority for the view that intoxication sometimes aggravates the penalty and sometimes mitigates it; the second contains this statement:

‘The ingestion of alcohol very frequently explains why an offence occurred. It is very unusual for it to be a mitigating factor …’ (486)

Bradley has been referred to in Victoria, in Redenbach (1991) 52 A.Crim.R 95 at 99, where the Court of Criminal Appeal also referred to Tucker and Lewis as a previous decision of the same Court; the relevant passages are to be found in (1989) 43 A.Crim.R. 377 (especially at 379). It was there held that self ingestion of drugs by an offender did not mitigate the offences in question. In Redenbach itself the Court said:

‘Where, on the other hand, the Court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered…’

Leaving aside the possibility just mentioned, it appears that ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty. The courts deal with many cases involving offences, particularly of personal violence, said to have been committed by people who are drunk and sometimes drunkenness is put forward as an excuse for a rape, as it seems to have been here. The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence.”

  1. [27]
    In R v Haack; Ex parte Attorney-General (Qld)[10] the respondent to the Attorney-General’s appeal was an alcoholic with a personality disorder who had been very drunk (having a blood alcohol reading of 0.252) when committing the offences of attempted murder and assault occasioning bodily harm whilst armed.  Pincus JA relevantly said:

“Since Rosenberger was decided, the case has in my view been fairly consistently followed. The tendency has been to treat instances of violence or attempted violence by a drunken person as not requiring a reduction of sentence on account of the drunkenness. Unfortunately, quite a proportion of the cases we have before us involving violence are in this category; that is, where the offender is influenced by being drunk.”

  1. [28]
    Ten years later, in R v Dwyer,[11] de Jersey CJ said:

“It is timely to re-emphasise that intoxication resulting from the voluntary ingestion of alcohol or drugs cannot generally be advanced as a circumstance mitigating the penalty to be imposed for violent crime committed while the offender was in that condition.”

  1. [29]
    In a more recent decision of this Court in R v Clark,[12] Keane JA cited Rosenberger and Dwyer as authority for the proposition that “Voluntary intoxication is not a mitigating factor in sentencing an offender”.  The reliance upon Rosenberger and Dwyer meant that, properly construed, Clark also recognised the possibility that, in an exceptional case, there may be something which wholly or partly excuses the voluntary taking of alcohol or drugs, which matter might be treated as a circumstance going in mitigation.
  2. [30]
    Some five years after this Court’s decision in Clark, section 9(9A) was inserted into the Act by section 84 of the Safe Night Out Legislation Amendment Act 2014 (Qld).  To that point in time, the Act had not included any mention of voluntary intoxication for the purposes of sentencing.  As I have noted, s 9(9A) materially provides “voluntary intoxication of an offender by alcohol … is not a mitigating factor for a court to have regard to in sentencing the offender”.  The explanatory note to the Safe Night Out Legislation Amendment Bill 2014 relevantly states:

“Clause 84 amends section 9 (Sentencing guidelines) to insert new subsection (9A) to make it clear that voluntary intoxication by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing an offender.

New subsection (9A) enshrines but also strengthens the existing judicial sentencing principle in Queensland that ordinarily intoxication will not mitigate penalty (R v Rosenberger; ex parte Attorney-General [1995] 1 Qd R 677).”

  1. [31]
    Section 9(9A) is framed in language that is almost identical to the language used by Keane JA in Clark.  I do not read s 9(9A) as being intended to derogate from Rosenberger to the extent that, in that case, this Court acknowledged the possibility of exceptional cases where something wholly or partly excuses the taking of alcohol or drugs and can be treated as a circumstance going in mitigation.  To the extent that section 9(9A) was meant to strengthen the existing judicial sentencing principle, it is worth noting that in Rosenberger, this Court used language to the effect that “the proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence”.  Section 9(9A) confirms beyond doubt that this policy, as it relates to voluntary drunkenness, is correct and is to be applied.
  2. [32]
    In terms of moral culpability, the common law has been astute to distinguish between voluntary and involuntary intoxication or stupefaction.  Involuntary intoxication or stupefaction, for example, has long been recognised as resulting from coercion, or the stratagem of fraud of another person, or the error of a physician or chemist.[13]  In R v O'Connor,[14] Gibbs J distinguished between self-induced (voluntary) and unintentional (involuntary) intoxication as follows:

“Nor is it, in my opinion, anomalous to distinguish between self-induced and unintentional intoxication. A person who has become intoxicated without any intention to consume anything intoxicating - for example, because his drink has been ‘surreptitiously laced’, or because, against his will, a drug has been forcibly administered to him - is no more morally responsible for what he does than is a psychopath or a very young child, but a person who voluntarily gets drunk or high on drugs does not thereby cease to be morally responsible for his actions.”

  1. [33]
    Rosenberger and Dwyer, and s 9(9A) of the Act, leave open the prospect that, in an exceptional case of voluntary intoxication, there may be some other matter or feature that excuses the taking of alcohol or drugs.  However, in those cases, it is the other matter or feature which calls for mitigation, not the voluntary intoxication.  An example of such an exceptional case can be found in R v Kevich,[15] a case referred to by de Jersey CJ in Dwyer and the Victorian Court of Criminal Appeal in Redenbach.  In Kevich, the applicant was an alcoholic who pleaded guilty to a charge of robbery.  He was heavily intoxicated at the time of the offending.  He had suffered from Crohn’s disease, a chronic and incurable disease of the intestine and lower bowel which causes severe abdominal pain.  The cause of his alcoholism was the subject of a finding of fact made by the sentencing judge.  The Court of Criminal Appeal relevantly said:[16]

“When passing sentence the learned Judge said that the applicant’s alcoholism was apparently something resulting from his disease. He resorted to alcohol, His Honour said, to give relief from the pain. This important finding… was a finding which was clearly open to the learned Judge upon the basis of the… evidence… . The credibility of that evidence was essentially a matter for the learned Judge who saw and heard the witnesses. His Honour’s remarks in sentencing the applicant show that he adopted the conclusion that the crime was caused by the applicant’s alcoholism and that that alcoholism had itself been caused by the painful disease from which he suffers. … Unfortunately, having adopted the conclusion His Honour did not give it any apparent effect in the sentence which he imposed. … the finding of the learned Judge as to the causal connection between the disease and the offence, coupled with one other matter to which we shall refer presently, has convinced us that in all the circumstances of this case His Honour’s sentence was sufficiently excessive to merit the interference of this Court.”

  1. [34]
    The Victorian Court of Criminal Appeal in Redenbach contemplated another example of an exceptional case in which “it may be said that drug addiction … contributed to an offence but … itself resulted from the medicinal use of drugs”.  The facts of Clark had some resonance with that contemplated case.  In Clark, the applicant was sentenced on her own plea to two counts of manslaughter.  She had driven a car onto a footpath, killing two boys.  The offending was described by this Court as “extraordinarily reckless conduct”.  At the time of the offending, the applicant had a blood alcohol concentration of 0.040 per cent.  However, she had twice the therapeutic dose of valium in her system and had ingested oxazepam, temazepam, cannabis, morphine and codeine.  All these drugs, except the oxazepam, were present in concentrations higher than the therapeutic range for those drugs.  The applicant had a history of mental health problems including bipolar disorder and exhibited symptoms consistent with benzodiazepine dependency disorder and alcohol abuse.  At the sentencing hearing the evidence had included a report from a psychiatrist, Dr White, and a report from a psychologist, Mr Hatzipetrou.
  2. [35]
    Keane JA (with whom Holmes JA and Atkinson J agreed) said of the psychologist’s evidence “importantly for present purposes, Mr Hatzipetrou considers that the applicant’s intoxication ‘coupled with [her] untreated mental health problems’ significantly impaired her capacities to understand the consequences of her actions and to control her actions”.  His Honour commented in relation to Dr White’s evidence:

“It may be noted here that while Dr White was of the view that the applicant’s intoxication was ‘the major component in the offences’, he did acknowledge that her disordered mental state impaired her decision-making ability. He certainly did not contradict Mr Hatzipetrou’s view that her bipolar disorder was at work in impairing her capacity to understand the consequences of her actions and her capacity to control her actions.”

  1. [36]
    The applicant had submitted that the sentencing judge failed to appreciate that her offending was the result of “a poor choice she made whilst labouring under the symptoms of mental illness and that, as such, her mental illness was relevant to her level of culpability”.  In addressing that submission, Keane JA observed:

“In particular, it is said that there was uncontroverted evidence, which his Honour did not take into account, of a causal link between her conduct and her mental illness in that her manic behaviour at the time of the killings was a symptom of her Bipolar Affective Disorder. Reference is made in this regard to the opinions of both Dr White and Mr Hatzipetrou.

Dr White’s opinion did not exclude a causal link between the applicant’s bipolar disorder and the impairment of her capacities. Dr White considered that her intoxication was the ‘major component in the offences’ but he did not suggest that her bipolar disorder did not play a part as well. Importantly, the applicant’s problem at the time of the accident was not so much her alcohol level, which was within the legal limit, but her intake of prescription drugs. Her addiction to prescription drugs does seem to be related to her bipolar disorder.

Voluntary intoxication is not a mitigating factor in sentencing an offender; but on the unchallenged evidence, the applicant’s irrational behaviour was, in part, a consequence of her bipolar disorder. Her disorder was a component in the irrational behaviour which led to the commission of the offences. Recognition that this is so tends to lessen her moral culpability and the claims of deterrence and denunciation as considerations bearing upon the imposition of a proper sentence. In my respectful opinion the learned sentencing judge erred in failing to act upon the evidence that the applicant’s behaviour was not solely the consequence of voluntary stupefaction.”

  1. [37]
    In R v BCX,[17] the applicant pleaded guilty to one count of making child exploitation material and two counts of indecent treatment of a child under the age of 16 years.  The material before the sentencing judge included two reports from a psychiatrist and a report from a psychologist.  The reports established that the applicant suffered from autistic spectrum disorder, a developmental disorder of the mind characterised by obsessive compulsive traits, as well as a depressive disorder characterised by severe anxiety.  At the time of the offending, the applicant was heavily under the influence of the drug valium.  The psychiatric evidence expressed the opinion that the applicant would have been “both confused and dis-inhibited (sic) by the sedative intoxication” and that this would have resulted in “impaired judgement and partial anterograde amnesia”.  The psychiatrist had concluded that “The described rationale for [the applicant’s] offending actions was a result of the benzodiazepine intoxication inter-reacting with obsessional and autistic thinking.”
  2. [38]
    In considering the medical evidence, Burns J (with whom Margaret McMurdo P and Philippides JA agreed) relevantly observed:

“Here, the unchallenged medical evidence was that the applicant’s ability to cope with external stressors was limited by his mental disorders. When such stressors arose in the form of the death of his friend and the emotional difficulties he was experiencing with his partner, the applicant resorted to what the reporting psychiatrist described as ‘an ill-advised attempt at self-treatment with benzodiazepines’. In consequence, his judgment was compromised, he became disinhibited and he engaged in ‘obsessional and autistic thinking’. In short, there was a cascading series of events which had, at their root, the applicant’s mental disorders.”

  1. [39]
    After having described the unchallenged medical evidence in those terms, his Honour continued:

“Of course, voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor which a court may have regard to in sentencing an offender: s 9(9A) PSA. However, the intoxication in this case was, in substantial part at least, attributable to the applicant’s underlying mental disorders. In such circumstances, and as Keane JA (as his Honour then was) observed in R v Clark, the applicant’s moral culpability was lessened and so, too, were the claims of deterrence and denunciation as considerations bearing upon the imposition of a proper sentence. This is the very point that was the subject of written submissions from Mr Fraser and, about which, the Court was reminded by Mr Cowen QC.

It must also be said that, in the court below, the causal relationship between the applicant’s disorders and his offending behaviour was not underscored as well as it perhaps could have been. In turn, the learned sentencing judge seemed to regard the presence of such disorders to be of only contextual relevance. For the reasons stated immediately above, they went much further than that; the applicant’s culpability was reduced by reason of his impaired capacity to deal with the stressors around him and the disinhibiting effect his consequent attempt at self-medication had on his ability to control his behaviour. Further, although his Honour’s observation that ‘deterrence and denunciation are emphasised as having particular significance in this type of offending’ was, as a general proposition, correct, such considerations were of only limited utility in a case such as this because an offender suffering from a mental disorder or abnormality is not an appropriate medium for making an example to others.

Indeed, quite apart from the causal relevance of the applicant’s mental disorders to the offending and the limited scope for general deterrence as a sentencing consideration, the disorders themselves were significant mitigating features in this case. Not only was the applicant’s moral culpability lessened by their existence, they went to the kind of sentence that ought be imposed.”

  1. [40]
    Kevich, Clark and BCX are all examples of cases where a voluntary drunk or stupefied offender received mitigation because their offending was not solely the consequence of voluntary intoxication or stupefaction.  In Kevich, there was a causal connection between the offending and the painful effects of a physical disease, Crohn’s disease.  In Clark, there was a causal connection between the offending and the impairing effects of bipolar disorder.  In BCX, there was a causal connection between the offending and an underlying autistic spectrum disorder and a depressive disorder characterised by severe anxiety.  The affording of mitigation in these types of cases is not inconsistent with the intended operation of s 9(9A) of the Act.  However, it should be observed that the causal link or connection between the offending and the matter which is something other than voluntary intoxication or stupefaction, is required to be established by the evidence.[18]  Where the matter comprises a mental impairment or disorder, the diagnosis of a condition is only the beginning, not the end of the enquiry.[19]
  2. [41]
    Whenever an offender suffers from a mental impairment or disorder, there are settled principles to be applied in the consideration of a just sentence.  In R v Tsiaras,[20] the Victorian Court of Appeal stated:[21]

“Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health”.

  1. [42]
    Later in R v Verdins,[22] the Victorian Court of Appeal observed that the sentencing considerations identified in Tsiaras were not applicable only to cases of “serious psychiatric illness”.  The Court observed:[23]

“One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.”

  1. [43]
    The Court went on to reformulate the principles identified in Tsiaras as follows:[24]

“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

  1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
  2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
  3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
  4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
  5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
  6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment”.
  1. [44]
    In terms of the extent to which impaired mental functioning may reduce moral culpability, the Court relevantly observed:[25]

“It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held – correctly, in our view – to be capable of reducing moral culpability.

Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:

  1. (a)
    impairing the offender’s ability to exercise appropriate judgment;
  2. (b)
    impairing the offender’s ability to make calm and rational choices, or to think clearly;
  3. (c)
    making the offender disinhibited;
  4. (d)
    impairing the offender’s ability to appreciate the wrongfulness of the conduct;
  5. (e)
    obscuring the intent to commit the offence; or
  6. (f)
    contributing (causally) to the commission of the offence.”
  1. [45]
    In R v Goodger,[26] Keane JA (with whom Fraser JA and Atkinson J agreed) referred to Verdins with apparent approval and also observed:

“This Court has accepted the proposition that, generally speaking, a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion.”

The first ground of appeal

  1. [46]
    On this application, the applicant ultimately submitted that his intoxication was not “voluntary” within the meaning of that expression as it appears in s 9(9A) of the Act.[27]  This submission was contrary to the concessions made before the sentencing judge.  It was also not made out by reference to the statement of facts or the psychologist’s report.  In this case, there was no evidential basis for characterising the applicant’s intoxication as involuntary.  That is, the applicant’s intoxication had not been caused by coercion, duress, fraud or relevant error.  Rather, as was properly conceded by the applicant’s counsel before the sentencing judge, this was a case of voluntary intoxication.
  2. [47]
    Despite his intoxication being voluntary, s 9(9A) of the Act did not operate so as to exclude mitigation for any other matter which, either wholly or in part, provided an excuse for the taking of alcohol and was causally connected to the offending.  In this case, the other matters sought to be relied upon by the applicant were his mental health conditions.  The applicant submitted that the sentencing judge failed to consider the reduction in moral culpability and the moderation or elimination of general and specific deterrence required by reason of those conditions.  Hence, this first ground calls in aid the first, third and fourth sentencing considerations as recognised in Verdins and approved of by this Court in Goodger.
  3. [48]
    In terms of the moral culpability consideration, the applicant’s argument was premised on two contentions.  The first contention was that the psychologist had opined that intoxication caused the offending.  The second contention was to the effect that the applicant’s state of intoxication had been caused by his mental condition.  As it was ultimately put in writing, “His mental condition was the substantive cause of his drinking”.[28]  The first contention may be accepted.  The second contention is controversial.  Turning to that contention, on the hearing of this application, the applicant’s counsel properly conceded that the psychologist’s report had not included any statement or opinion to the effect that the offending was a result of recklessness attributable to the applicant’s personality disorders.  The applicant’s submission was rather to the effect that “the personality disorders caused the drinking”.  In support of this submission, one paragraph of the psychologist’s report was called in aid.  That paragraph relevantly observed that the presence of the personality disorders “are considered to be the substantive causes for his use of drugs and alcohol in self medicating to manage the resultant depression and anxiety”.  Properly construed, that reference appears to have been to the applicant’s history of having commenced using alcohol from 15 years of age to self-medicate his anxiety and depression.  The cause of that historical drinking from the age of 15 was thus explained as being the personality disorders.
  4. [49]
    However, the psychologist’s report did not express a clear or cogent opinion about whether any mental conditions had caused the offending.  Whilst the psychologist unequivocally opined that the offending was “due to significant levels of inebriation” he had immediately then observed “no other comment is able to be reasonably made regarding the… causes of [the] offending”.  The psychologist had clearly opined that the offending was caused by intoxication but his report did not specifically address what had caused the applicant to be intoxicated on the night of the offending.  Whilst the psychologist opined that the personality disorders had been the substantive causes of the applicant’s use of drugs and alcohol “in self-medicating to manage the resultant depression and anxiety”, that historical perspective did not necessarily explain why the applicant had been drinking on the day of the offending.  As to that day, the applicant had told the psychologist that he had been angry and very upset about having recently lost his job, had been drinking to “help control his anger” and had been able to “vent his anger once he got behind the wheel”.  Yet despite being informed of these matters, the psychologist did not explain or opine whether drinking in those circumstances and for that reason was indicative of “self-medicating to manage… depression and anxiety”.  The psychologist’s report, at its conclusion, referred to “the conditions that existed within the family environment” as being “contributory and largely causal of his offending”.  However, that statement was not reasoned and apparently contradicted the earlier statement that, apart from intoxication, “no other comment is able to be reasonably made regarding the … causes of his offending”.
  5. [50]
    The pertinent question for the purpose of sentencing concerned the cause of the applicant’s drinking and behaviour on the day of the offending.  The applicant had offered to the psychologist specific reasons why he had been drinking on the day of the offending when, at the age of 24, he was angry about having recently lost his job.  The applicant told the psychologist that he had been drinking on that day to control that anger.  There was another relevant objective fact that emerged from the applicant’s history, namely that he had been able to stop drinking in the immediate aftermath of the offending.  The psychologist’s report did not address the specific reason offered by the applicant as to why he had been drinking on the day of the offending and nor did the report opine as to how or why the applicant had been able to give up drinking immediately after the offending.  These were significant matters which were not addressed by the psychologist’s report.  In my consideration, the psychologist’s report did not establish that the applicant’s state of intoxication on the day of the offending had been caused by his mental conditions.  In supplementary submissions filed by leave after the hearing, the applicant and the Crown submitted that the psychologist’s report was “of a similar character” to the medical evidence in BCX.  In that case, the medical evidence purported to, and established, a direct causal link between the offending and the diagnosed disorders which enabled this Court to identify a causal relationship between the mental disorders and the offending.  No such link was established by the psychologist’s report in the present case.
  6. [51]
    It should not be lost sight of that, in a case of voluntary intoxication, the sentencing judge was being asked to discern from the evidence, a matter or circumstance, relevantly described by the authorities as “an exceptional case”, which either wholly or in part provided an excuse for the taking of alcohol and was causally connected to the offending.  The matters left unexplained by the psychologist’s report meant that the evidence did not establish the existence of such an exceptional case.
  7. [52]
    In terms of the second aspect, namely whether the sentencing judge failed to consider the moderation or elimination of general and specific deterrence required by reason of the applicant’s mental conditions, a convenient starting point is to note that the sentencing remarks included express reference to “… the principles that emerged from the cases to which I had been referred”.  When regard is had to the transcript of the sentencing hearing, it is apparent that the cases to which the judge had been referred included Tsiaris, Verdins and Goodger.  These cases had been referred to by counsel for the applicant when submitting that the applicant’s mental health was relevant as a sentencing consideration and could mitigate the need for general and specific deterrence.
  8. [53]
    The sentencing remarks referred to the applicant as having suffered from mental health difficulties and as having acquired substance abuse and personality disorders.  The sentencing remarks then referred to there being “significant matters in [the applicant’s favour]”.  The applicant’s counsel properly accepted that, correctly construed, the reference to these “significant matters” was a broad statement which was meant to encompass everything which the sentencing judge had previously mentioned in the sentencing remarks.  Reading the sentencing remarks in that way, the sentencing judge did have regard to the applicant’s mental health difficulties and personality disorders as significant matters in his favour.  It is also objectively apparent that, by fixing the parole release date at a point significantly less than one third of the head sentence, the sentencing judge was intending to moderate the sentence by reference to matters extending beyond the applicant’s early plea of guilty.  Properly construed, the sentencing remarks reveal that those matters included the applicant’s mental health difficulties and personality disorders.  The approach of the sentencing judge was consistent with the application of the principles recognised in Goodger and Verdins.  The applicant has failed to demonstrate that the sentencing judge failed to consider the moderation or elimination of general and specific deterrence required by reason of the applicant’s mental conditions.

The second ground of appeal

  1. [54]
    The applicant submitted that the sentence was manifestly excessive.  That submission was based on the proposition that the cases to which the sentencing judge was referred were not “closely comparable” to the present case.  In the event that error were demonstrated, the applicant submitted that this Court should exercise the sentencing discretion so as impose a sentence of two to two and a half years’ imprisonment on the count on the indictment with an immediate parole release date.
  2. [55]
    To succeed on this ground, the applicant “must show that 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.’”[29]  Appellate intervention on this ground is not warranted unless, “having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle”.[30]
  3. [56]
    At the sentencing hearing, the Crown relied upon, inter alia, R v Graham[31] and R v Barker.[32]
  4. [57]
    Graham involved a younger 20-year-old offender, who had a more significant traffic and criminal history.  He had consumed two boxes of valium and then violently demanded, and obtained, the keys to his mother’s car.  The dangerous driving occurred over a more prolonged period than the present case and involved ignoring police directions to stop.  Ultimately, the car was driven on the wrong side of the road and collided with another car.  The complainant suffered rib fractures, a fractured pelvis and significant bruising.  A sentence of three years’ imprisonment was imposed.  In delivering the judgment of this Court, Atkinson J (with whom Fraser JA and White JA agreed) observed that “In order to understand the practical effect of [the sentence], it is necessary to consider the applicant’s criminal history and the sentences previously imposed upon him.”[33]  Relevantly, at the time of his being sentenced, the offender was already serving a sentence of imprisonment and the sentence to be imposed in respect of the offending was required to be served concurrently.  The sentencing judge had used four years’ imprisonment as a starting point and took account of the totality principle and the requirement that the sentence had to be cumulative.  The three years head sentence was imposed against that background.  Atkinson JA observed in relation to that sentence that “The circumstances of the offending suggest that three years imprisonment was a very moderate sentence”.[34]
  5. [58]
    Barker involved an older 27-year-old offender with a more extensive traffic and criminal history.  He was subject to parole and a suspended sentence at the time of the offending which meant that the sentence imposed was to be served cumulatively.  He was charged relevantly with dangerous operation of a vehicle causing grievous bodily harm with the aggravated circumstance of having left the scene.  He had driven the car towards a police officer and then continued at high speed for approximately 700 meters, travelling on the wrong side of the road and overtaking other vehicles.  The complainant passenger had been screaming for the driver to stop and the driver had at one point jumped about inside the car and put his feet on the dashboard.  The car eventually struck a stationary truck.  The driver fled the scene, saying to the complainant “good luck”.  The complainant suffered a severe injury to her ankle which required surgery.  The sentencing judge observed that but for the imposition of a cumulative sentence he would have sentenced the applicant to an effective sentence of four and a half years to five years’ imprisonment.  The sentence was reduced to four years’ imprisonment having regard to the cumulative nature of the sentence.  On appeal to this Court, Boddice J (with whom Fraser JA and Gotterson JA agreed) accepted that the authorities provided support for the range of four to five years, as had been submitted to, and accepted by, the sentencing judge.[35]
  6. [59]
    Barker and Graham each involved offending which was, to some degree, though not significantly, more serious than the present offending.  However, those cases shared an important feature which involved the cumulative nature of the sentences which were imposed.  Once that shared feature is recognised, the cases provided useful comparisons for the sentencing task required in the present case.  In this regard, it is particularly noteworthy that in Graham, this Court observed that the three years’ head sentence imposed in the circumstances of that case was properly described as a very moderate sentence.  In my respectful view, Graham provided a clear indication that a head sentence of three years’ imprisonment was within the range for the offending which occurred in the present case.
  7. [60]
    On this appeal, the applicant submitted that “more closely comparable cases” were to be found in R v McGuire; Ex parte Attorney-General (Qld),[36] R v Wickett,[37] and R v Burnett-Greenland.[38]  Those cases are not properly described as more closely comparable and would not have assisted the sentencing judge in arriving at a sentence which justly recognised the applicable sentencing considerations.
  8. [61]
    McGuire and Wickett were decided in 2002 and 2003 respectively.  This Court has, on more than one occasion,[39] recognised that care must be taken when considering earlier decisions of this Court having regard to what has been described as the marked upward trend in the penalties imposed in cases of dangerous driving causing grievous bodily harm since R v Wilde; Ex parte Attorney-General (Qld).[40]
  9. [62]
    Burnett-Greenland involved a count of dangerous operation of a vehicle causing grievous bodily harm with the circumstance of aggravation of leaving the scene of the incident.  The driver was 19 years old.  At the time of the offence, his licence was suspended for non-payment of fines imposed in respect of a failure to display L plates and driving when not under the direction of another person.  The offending had involved driving at an excessive speed in a residential area and failing to negotiate a corner.  There were two passengers in the car, one of whom suffered a small subdural haematoma and fractures including a shoulder fracture which would have caused reduced power and movement in the arm if not surgically fixed.  The driver ran away from the scene.  He was sentenced to two years’ imprisonment, suspended after five months.  This Court described the offending as having involved “a serious error of judgment by an inexperienced young driver”.  The driver was described as “a 19 year old who has not encountered the criminal justice system before” and who “demonstrated a poor and immature attitude”.  The aggravating circumstance was there found to be “not as serious as this feature in other cases, for example, leaving the scene of an accident where an injured pedestrian is left without assistance or a case in which a driver, whose car struck a pedestrian, did not stop and did not allow another passenger to call emergency services”.
  10. [63]
    The present offending involved some particularly noteworthy, differentiating facts when compared to the facts in Burnett-Greenland.  The applicant in the present case was some five years older at the time of the offending.  He had a previous episode of drink driving when he was 22 years old with a blood alcohol level of twice the legal limit.  The present offending involved a blood alcohol level which was approximately three times the legal limit.  The present case could not be properly described as merely involving “a serious error of judgement by an inexperienced young driver” or conduct demonstrating “a poor and immature attitude”.  Rather, the present offending involved a serious case of voluntary intoxication by a more adult offender with a previous history of drink driving.  In respect of the second ground of appeal, there is no proper basis upon which this Court could be driven to conclude that there has been some misapplication of principle by the sentencing judge.
  11. [64]
    The application for leave to appeal against sentence should be refused.

Footnotes

[1]  (2007) 16 VR 269.

[2]  [1996] 1 VR 398.

[3]  [2009] QCA 377.

[4]  (2007) 16 VR 269.

[5]  [1996] 1 VR 398.

[6]  [2009] QCA 377.

[7]  (1980) 146 CLR 64, 71.

[8]  [1995] 1 Qd R 677.

[9]  Ibid 678-9.

[10]  [1999] QCA 76.

[11]  [2008] QCA 117 [6].

[12]  [2009] QCA 361 [23].

[13] R v Pearson (1835) 2 Lew CC 144; Stephen’s Digest of the Criminal Law (1950, 9th ed, Sweet & Maxwell, London) 7.

[14]  (1980) 146 CLR 64, 92.

[15]  [1977] VicSC 619.

[16]  Ibid 4-5.

[17]  (2015) 255 A Crim R 456; [2015] QCA 188.

[18]  See by way of example R v Walsh [2006] VSCA 87 [22]; Thompson v R (2005) 157 A Crim R 385, 396 [53] and Payne (2002) 131 A Crim R 432, 442 [36].

[19] R v Verdins (2007) 16 VR 269, 272.

[20]  [1996] 1 VR 398.

[21]  Ibid 400.

[22]  (2007) 16 VR 269, 271.

[23]  Ibid.

[24]  Ibid 276.

[25]  Ibid 275.

[26]  [2009] QCA 377 [19]-[21].

[27]  Applicant’s supplementary outline of submissions [8] (filed with leave after the hearing).

[28]  Applicant’s supplementary outline of submissions [8].

[29] R v Neto [2016] QCA 217 [28].

[30] R v Pham (2015) 256 CLR 550, 559 [28].

[31]  [2012] QCA 15.

[32]  [2013] QCA 340.

[33]  [2012] QCA 15 [6].

[34]  Ibid [22].

[35]  [2013] QCA 340 [18].

[36]  [2002] QCA 439.

[37]  [2003] QCA 57.

[38]  [2017] QCA 159.

[39]  see R v Murphy [2009] QCA 93 [22] adopting the observations of McPherson JA in R v Price [2005] QCA 52; R v Barker [2013] QCA 340 [17].

[40]  (2002) 135 A Crim R 538; [2002] QCA 501.

Close

Editorial Notes

  • Published Case Name:

    R v Adam

  • Shortened Case Name:

    R v Adam

  • MNC:

    [2022] QCA 41

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Mullins JA, Kelly J

  • Date:

    01 Apr 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QDCSR 73421 Sep 2021Sentenced to 3y imprisonment with 9m NPP for dangerous driving causing GBH whilst intoxicated and 1m imprisonment for mid-range drink driving; offender drove 2.1km at excessive speed on public road while voluntarily intoxicated, causing collision which caused passenger lower-level GBH; 24yo offender, early pleas, prior conviction of drink driving, steps taken toward rehabilitation, psychologist’s report diagnosed offender with various mental health conditions (Cash QC DCJ).
Appeal Determined (QCA)[2022] QCA 4101 Apr 2022Leave to appeal sentence refused; as to offender’s mental health, sentencing judge did not err in failing to consider reduction in moral culpability, in circumstances where psychologist’s report did not establish that mental health was reason for voluntary intoxication or otherwise caused offending, or in failing to consider moderation or elimination of general and specific deterrence; sentence not manifestly excessive: Kelly J (with whom Sofronoff P and Mullins JA agreed).

Appeal Status

Appeal Determined (QCA)

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