R v Brumby[2023] QCA 23

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 9 June 2022 the applicant was convicted, on her plea of guilty, of one count of dangerous operation of a vehicle causing death, with the circumstances of aggravation that she did so while adversely affected by alcohol and while excessively speeding.  She was sentenced to 9 years’ imprisonment, with no recommendation for early release on parole.  She will therefore become eligible for parole at the point at which she has served half the period of imprisonment imposed on her.
2. [2]
   The applicant applies for leave to appeal against the sentence imposed upon her.  Two grounds are relied upon:  first, that the learned sentencing judge erred in that she mistook the facts relevant to the seriousness of the offending; and, second, that the sentence was manifestly excessive in the circumstances.
3. [3]
   For the following reasons, I would dismiss the application as neither ground has been established.
4. [4]
   The circumstances of the offence were the subject of an agreed statement of facts tendered at the sentencing hearing.  The offence was committed on 11 December 2020, on Wagner Road in Griffin, at about 6.15 pm.  The deceased was a 66 year old woman, who had just left her daughter’s house after spending the day with her and her granddaughter.  Wagner Road is a single carriageway road with one lane travelling in each direction.  The speed limit varies from 70 km/hr, at the northern end, to 50 km/hr at the southern end, where there are houses on both sides of the road.  The day was overcast, but the road was dry.  The agreed statement of facts records that “[t]raffic flow was busy due to the time of the day and people returning to residences”.
5. [5]
   The applicant was driving a Chrysler 300C sedan.  She had turned left onto Wagner Road from Dohles Rocks Road and was travelling south.  The agreed statement of facts records that:

“She took the corner at high speed, in what a witness described as a ‘racing line’ and drifted from her lane into the opposite lane towards oncoming traffic before correcting and continued driving at speeds exceeding 100km/h.

The defendant reached a sweeping left-hand bend at high speed and again crossed into the opposite lane and into the path of oncoming traffic.  The driver of another vehicle, one [Ms W], swerved left to avoid collision.  As she swerved left, the defendant swerved right and returned to the correct side of the road.

…

The defendant continued driving and reached a speed of 146km/h.  She approached another left hand bend and failed to negotiate it, driving into the oncoming lane for the third time.  She [was] not able to correct her course and struck [the deceased’s] vehicle head-on.  Both vehicles ended up on the western side of the road in a ditch.

The defendant’s vehicle was entirely in the oncoming lane at the time of the collision.  She did not apply the brakes or attempt to turn until less than two seconds before the collision.” [underlining added]

6. [6]
   The applicant was severely impaired by alcohol intoxication at the time of the collision.  Based on a blood sample taken four hours later, she was found to have a blood alcohol content of between 0.196 per cent and 0.283 per cent at the time of the collision.
7. [7]
   The applicant was badly injured in the collision, but was conscious and responsive.
8. [8]
   The deceased sustained significant injuries and died at the scene.  The impact of her death, and the circumstances in which it occurred, have devastated her family.

Ground 1: Did the sentencing judge mistake the facts relevant to the seriousness of the offending?

9. [9]
   In her sentencing remarks, the learned sentencing judge began by outlining the facts, as follows:

“You were drunk, very drunk. The concentration of alcohol in your blood was at least .196 per cent, which is four times the legal limit. The period or distance that you drove in that condition is unknown, but you did drive along Dohles Rocks Road into Wagner Street. It was dusk, a busy time on Wagner Road. Wagner runs for a kilometre, a single lane in each direction. It has sweeping bends, and the speed limit goes from 70 kilometres on the exit from Dohles Rocks Road to 50 kilometres in front of the houses on both sides.

You went through that road at more than 100 kilometres an hour. You didn’t reach the houses, you crashed just before. You took three bends at high speed, each time arcing wide to cross into the path of oncoming traffic. Twice cars managed to avoid you, but on the third bend, [the deceased] did not have their luck. You tried to fly through that last bend at the breathtaking speed of 147 kilometres per hour. It was the third time that you had driven on the wrong side of that road. You hit [the deceased] head on. She did not have a chance. Her injuries were horrific and she died at the scene.” [underlining added]

10. [10]
    The mistake the applicant submits the sentencing judge made is in the underlined words above.  She submits the agreed facts refer to only one driver of another vehicle having to swerve to avoid a collision (not two).  On this basis, the applicant submits the sentencing judge “clearly had a wrong understanding of the facts which understanding cast the facts in a more serious light than was in truth the case”.
11. [11]
    The sentencing judge made no such error.  It is apparent from the sentencing remarks that her Honour was summarising the agreed facts, rather than recounting them verbatim.  It was an agreed fact that traffic flow was busy.  Plainly there were other cars on both sides of the road.  On each of the first two occasions on which the applicant drifted or crossed into the opposite lane (that is, onto the wrong side of the road) she was described as being towards, or facing, “oncoming traffic”.  The underlined portion of the passage above must be read in context, namely:

“You took three bends at high speed, each time arcing wide to cross into the path of oncoming traffic. Twice cars managed to avoid you, but on the third bend, [the deceased] did not have their luck.”

12. [12]
    All of that is correct.  The first two times the applicant took the turn in the road at high speed, crossing into the opposite lane and into the path of oncoming traffic, the other cars on the road did manage to avoid her.
13. [13]
    In my view, no factual error has been shown.  I reject the submission that the sentencing judge had a wrong understanding of the facts, which led her Honour to view the facts in a more serious light than was in truth the case.  Her Honour correctly concluded that:

“To state the obvious, this was a terrible offence. Any car is a potentially lethal missile. You chose to operate your vehicle, an especially powerful one, on a suburban road while grossly impaired, travelling around bends at more than twice the speed limit, crossing into the path of oncoming cars, not once but three times. The choices you made so selfishly, have robbed an innocent person of her future and caused immeasurable loss to her family and also to the community which benefitted from her life. No sentence can restore what you have taken. The power of this Court is limited to a just sentence for the offence of dangerous operation of a motor vehicle causing death.”

14. [14]
    Even if a different conclusion were reached on this ground, for the reasons which follow I would impose the same sentence upon the re-exercise of the sentencing discretion.

Ground 2: Was the sentence imposed manifestly excessive?

15. [15]
    On ground 2, the applicant does not challenge the head sentence of nine years’ imprisonment, but submits the failure to fix a parole release date at the “usual” one-third resulted in a sentence which was manifestly excessive.
16. [16]
    The applicant is a mature woman, aged 47 at the time of the offence.  She has a criminal history with one conviction, for serious assault of a public officer in December 2018.  That offence was regarded as relevant because it was committed when she was intoxicated, and involved her behaving erratically, abusing and kicking a hospital worker who was trying to help her.  She also has a traffic history which reveals a number of speeding offences spread over about 30 years.  Many years ago, in 1993 and 1995, the applicant’s licence was cancelled; but the sentencing judge placed no weight on that.  As her Honour said, the most concerning entry is one from 2017, for exceeding the speed limit by more than 30 km/h.
17. [17]
    The applicant pleaded guilty at an early stage and is remorseful.  The sentencing judge said “[t]he remorse is genuine, but not unnatural.  You must carry the burden of being responsible for someone else’s death”.
18. [18]
    At first instance, the prosecution submitted the offending called for a penalty of 10 years or greater.  It was acknowledged that mitigating factors might support a reduction in the head sentence, but the prosecution’s submission was that a penalty of not less than nine years, with a serious violent offence declaration, was called for.  In support of that submission, reliance was placed in particular on R v Williams [2020] QCA 46; with reference also made to R v Barnham [2019] QCA 38 and R v Vessey; Ex parte Attorney-General (Qld) [1996] QCA 11.
19. [19]
    Mitigating factors emphasised on behalf of the applicant included that she indicated a plea of guilty at an early stage and was deeply remorseful.  It was said that alcoholism was a problem in her family, although she had not had a difficulty with it until about two years prior to the offending, when she turned to alcohol to deal with tensions in her marriage.  She began drinking very heavily.  She had visited a hypnotherapist to try to get help, without success.  The applicant suffered fairly serious injuries as a result of the collision resulting in hospitalisation.  A psychiatric report tendered at the sentence indicated the applicant had developed post-traumatic stress disorder following the incident.  She was supported by her family and a number of friends and is well regarded by them.
20. [20]
    As already mentioned, the applicant does not contend that the head sentence of nine years’ imprisonment was manifestly excessive.  The focus of the application is on the time before she becomes eligible for parole.  In short, the applicant submits that her plea of guilty, and acknowledged remorse, were sufficient to warrant fixing the parole eligibility date earlier than the statutory half-way point; and that there were no other features of the applicant’s background or history which suggested community protection called for a lengthier non-parole period.
21. [21]
    Upon a consideration of the cases referred to by the parties, I can see no basis on which to conclude that the sentence imposed was manifestly excessive.  Far from being discordant with the penalties imposed in comparable cases, it is consistent with the general pattern of sentencing revealed by those cases.
22. [22]
    The sentencing judge appropriately placed some weight on the decision in Williams, as being the most recent appellate decision, with close parallels to the present case.  The offender in Williams was sentenced to imprisonment for nine years, with a declaration that she had been convicted of a serious violent offence (requiring that she serve 80 per cent of the sentence before being eligible for parole).  She was 33 years old at the time, with a limited traffic history and no criminal history.  She was driving on the Bruce Highway, at about 7.30 am, with her husband and five year old son in the car.  She was driving at high speed, crossed over double white lines onto the wrong side of the road, before leaving the road and impacting at high speed with a culvert and then a tree.  The applicant’s husband and son, who were not wearing seat belts, were thrown from the car and died as a result of their injuries.  The applicant had been observed to engage in a protracted course of dangerous driving leading up to this incident, which required other road users to take evasive action to avoid a collision.  The investigation revealed the car had failed to negotiate a sweeping curve and left the road at a minimum speed of 171 km/h.  A blood test showed the applicant had both amphetamines and methylamphetamine in her system, at levels likely to affect her ability to safely drive a car.  A quantity of methylamphetamine was also found in the car.  The applicant also suffered significant injuries as a result.  She pleaded guilty and was remorseful.  There was evidence of the presence of a number of psychological disorders, including a potentially undiagnosed head trauma, prior to the offending.
23. [23]
    In rejecting the application for leave to appeal, Boddice J (with whom Sofronoff P and McMurdo JA agreed) expressed the view that the sentence imposed ought properly be characterised as being at the lower end of applicable sentences.  His Honour said:

“[27] The applicant’s dangerous driving involved not only a protracted course of driving which placed other members of the public at significant risk. It involved a deliberate course of driving at excessive speed on the wrong side of a busy highway in areas where there were present double white lines, at a time when the applicant was adversely affected by intoxicating substances and aware that each of her passengers were unrestrained in the motor vehicle. Such a course of conduct was rightly described as involving an occasion of serious dangerous driving.

[28] A consideration of comparable authorities^[1] supports a conclusion that a proper exercise of the sentencing discretion for such a serious occasion of dangerous driving would have included a sentence of imprisonment of at least ten years, with the consequence that there would have been an automatic declaration the applicant had been convicted of a serious violent offence.

[29] … the engaging in a deliberate course of driving at excessive speed on the wrong side of the road for an extended period whilst adversely affected by illicit substances, is rightly to be characterised as an occasion of dangerous driving involving such serious conduct as to warrant a sentence of at least ten years’ imprisonment.”

24. [24]
    Similarly, in the present case, the applicant’s conduct involved deliberate recklessness, driving at a grossly excessive speed on a busy road, crossing into the path of oncoming cars three times before the fatal collision, whilst severely impaired by alcohol.  There may have been a more protracted period of dangerousness in Williams; and the fact that two people were killed in Williams is also a distinguishing feature.  But as against that, one of those killed was the offender’s own son, an additional punishment for her.
25. [25]
    In R v Barnham [2019] QCA 38, the offender received the same sentence as in this case (nine years’ imprisonment, with no order for parole) and that was upheld on appeal.  The offender in Barnham was intoxicated by alcohol and drove along a highway, in all for about seven kilometres, speeding and swerving all over the road, at estimated speeds of 150 to 170 km/h.  He lost control of the car near an intersection, travelling at an estimated 153 km/h, ultimately crossing both lanes of traffic, leaving the road, rolling and colliding with a tree.  One of his passengers, who was not wearing a seatbelt, was thrown from the vehicle and later died.  The offender’s blood alcohol content was estimated at the time of the collision to have been 0.199 per cent.  He left the scene.  He was 51 and had prior convictions for motor vehicle and dishonesty offences, recent speeding offences and dated drink driving offences.
26. [26]
    Within Barnham, reference is made to two further decisions, in which sentences of nine years were imposed, or affirmed, following successful Attorney-General’s appeals.  In one of those, R v Vessey; Ex parte Attorney-General (Qld) [1996] QCA 11,  a recommendation for parole eligibility after four years was made.  That involved an offender, with a blood alcohol content of at least 0.2 per cent, who was unlicensed, driving on the wrong side of the road for about 150 metres, causing another car to take evasive action; then driving around a corner onto an intersection, driving through the give way sign, before colliding with another vehicle and killing the driver of it.
27. [27]
    In the other, R v Frost; Ex parte Attorney-General (Qld) [2004] QCA 309, the appeal was allowed to the extent of removing the recommendation for parole (leaving the sentence at nine years, with parole eligibility only at the half-way point, as in this case).  In Frost, the offender was 24 and had a poor traffic history, including post-offending traffic infringements.  He drove dangerously for about 14 kilometres, serving back and forth across the road.  He eventually swerved onto the road shoulder and hit three pedestrians, who later died from their injuries sustained.  He was heavily intoxicated, but there was no allegation of excessive speeding.  He drove off after the collision, taking some time to stop and let his passengers out of the car.
28. [28]
    A third case referred to, in which a sentence of nine years with no fixed parole eligibility date was imposed, is R v Moody [2016] QCA 92.  The offender in that case had a significant level of methylamphetamine in his system and drove his car onto the wrong side of the road, colliding with a family of five travelling in the other direction.  The mother was killed and two teenagers were left paraplegics and suffered other significant injuries.  There was no allegation of speeding, nor did he leave the scene.  The offender was 44, with a relevant traffic and criminal history.
29. [29]
    As the sentencing judge observed, all cases necessarily stand on their own facts, with similarities and differences.  But the pattern of sentences revealed by the authorities referred to, where there is deliberately reckless driving, coupled with intentional intoxication, is such that it cannot be concluded the sentence imposed in this case was manifestly excessive because of a failure to fix an earlier date for parole eligibility.
30. [30]
    After referring to Williams, the sentencing judge said:

“The Court must weigh up the level of violence, the level of criminality involved in it, in conjunction with your antecedents. The circumstances that make this a serious example of the offence include: the high level of intoxication and impairment, the fact that although this may not have been a long journey, it was an intense course of inherently dangerous driving brought to a premature end by your own incapacity, the outrageous speed at which you drove along Wagner Road, and the inherently dangerous nature of your approach to the succession of bends in the road. All of that was deliberate and reckless conduct. It posed a threat to the suburban traffic, close to peak hour. A number of innocent lives were actually endangered and one life was taken.

Having weighed those matters of seriousness, along with the matters in your favour, it appears to me that this case calls for a sentence of nine years imprisonment. I am not persuaded that a serious violent offence declaration ought be added. Instead I will set no parole date. Along with the moderation required for the mitigation, it is in the interests of the community that, when you are released from custody – that you have some period of supervision to ensure that you cannot return to drinking during the readjustment.”

31. [31]
    The imposition of a sentence of nine years’ imprisonment, without a serious violent offence declaration, was well within the sound exercise of the sentencing discretion, and appropriately balanced the factors of just punishment, public denunciation, deterrence and community protection, as well as rehabilitation.  The reduction from what could have been a 10 year term, with an automatic serious violent offence declaration, to nine years with no declaration, properly reflected the mitigating features in the applicant’s favour, without further reduction of the non-parole period.  The seriousness of the offending conduct, and the importance of sending a strong message of denunciation and deterrence for offending of this kind, also support that outcome.
32. [32]
    I would dismiss the application for leave to appeal.
33. [33]
    McMURDO JA:  I agree with Bowskill CJ.
34. [34]
    GOTTERSON AJA:  I agree with the order proposed by Bowskill CJ and with her Honour’s reasons for it.