R v Farkas[2023] QCA 84

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Crow J and with his reasons.
2. [2]
   FLANAGAN JA:  I agree with Crow J.

3. [3]
   CROW J:  On 21 March 2023 the applicant was sentenced to a period of five years’ imprisonment which was suspended after he had served six months’ imprisonment and with an operational period of five years.  The applicant applies for leave to appeal against the sentence.  At the conclusion of the hearing of the application, the Court refused the applicant leave to appeal.  These are my reasons for joining in that order.

Circumstances of offending

4. [4]
   On the afternoon of 9 October 2021, the applicant and his wife of 30 years consumed alcohol.  As the applicant’s wife wished to purchase cigarettes, the applicant agreed to drive her from their residence to a nearby service station to purchase cigarettes.  Witnesses observed the applicant driving erratically in that he was noticeably speeding as he drove down a residential street, the car engine was revving loudly and the applicant was driving over traffic islands.  In order to arrive at the service station the vehicle needed to negotiate a T-intersection and, due to his state of intoxication, the applicant drove straight through the T-intersection, veering slightly left and crashed the car head-on into a large tree growing on the far side of the intersection.
5. [5]
   The applicant’s wife suffered critical injuries and died a few days later.  Analysis of the applicant’s blood taken two hours and twenty minutes after the collision recorded a blood alcohol content as 0.170 per cent.  The applicant was sentenced on the agreed factual basis that he drove the motor vehicle whilst grossly intoxicated by alcohol, whilst speeding, that he failed to control his vehicle, and that he failed to brake approaching a T-intersection.

Ground of Appeal

6. [6]
   The applicant sought leave to appeal against the sentence on three grounds:

   1. (a)
      That the learned sentencing judge erred in finding that the assessment of the nature and seriousness of the applicant’s driving was not required because it constituted labelling.
   2. (b)
      That the learned sentencing judge erred in not reducing “the general deterrence” in the circumstances of this case because of the applicant’s extra-curial punishment.
   3. (c)
      The sentence imposed was in all the circumstances manifestly excessive.

Ground (a) “Labelling”

7. [7]
   The first allegation of specific error in sentencing arises from the statement by the primary judge that “[t]here is little point putting a label on the conduct.  I have described the nature of the conduct and I have described why it constitutes dangerous driving.  I have already described the gravamen of the offending.”
8. [8]
   The primary judge’s comment that there was little point to putting a label on the conduct was immediately preceded by her Honour considering several cases provided to the primary judge to provide some guidance.^[1]In particular, the primary judge said:

“I have also been directed to the statements of principle in R v Thomas [2015] QCA 20 where Justice of Appeal Holmes, as she then was, and Justice Mullins, as she then was, observed that the dangerous operation of a [motor] vehicle causing death can be reflected in significant differences in terms of the case that might be before the Court at any one time. Sometimes it is a case of an intoxicated driver who deliberately undertakes dangerous manoeuvres. On other occasions, it might be a driver who is overcome by the effects of intoxication so that they lose control of the vehicle.

There is little point putting a label on the conduct. I have described the nature of the conduct and I have described why it constitutes dangerous driving. I have already described the gravamen of the offending…”

9. [9]
   When the primary judge’s comments are read in their full context, it is quite apparent that there is no error.  When reference is had to the balance of the sentencing remarks, the primary judge placed all of the relevant facts of the offending on the record and considered them and summarised them prior to announcing her sentence.  The primary judge then articulated the basis of the dangerousness of the driving in the applicant’s particular case.  Whilst it has been observed that “[p]revious cases reveal a natural tendency to arrive at some general classifications of offences involving dangerous driving,”^[2] a classification or labelling is merely a short-hand method of summarising all of the relevant facts of the offending.  It cannot be an error to fully state relevant facts, as the primary Judge did, and then to summarise them without placing a label or category on those facts.  Accordingly, there was no error in the primary judge commenting that she considered there was little point in putting a label on the conduct.

Ground (b) Extra-Curial Punishment

10. [10]
    The extra-curial punishment referred to is the severe loss deeply felt by the applicant at his wife of 30 years having lost her life in circumstances where the applicant was responsible for that death.  There is no doubt that the deep loss felt by the applicant, diagnosed as a psychiatric illness, may be termed extra-curial punishment.  The primary judge accepted that the applicant was suffering from a deep level of grief, was a broken man, and had suffered from a deep loss.
11. [11]
    The primary judge accepted the opinion of the psychologist that the applicant had suffered from depression because of the unresolved grief and loss surrounding his responsibility for his wife’s death and that the grief remained current and raw.  The primary judge observed that personal deterrence did not factor at all but that general deterrence was a factor which “loomed large”, commenting:

“The personal deterrence comes from the fact that you will undoubtedly have weighing on your conscience continuing into the future the fact that you have taken your wife’s life through your conscious choice to get behind the wheel of a car whilst grossly intoxicated…

“General deterrence cannot overwhelm the exercise of the sentencing discretion, but equally, nor can one mitigating factor, or even two, such as your minimal traffic history and your extreme remorse…”

12. [12]
    The primary judge expressly adopted the reasoning of White JA in R v Maher [2012] QCA 7 at [43] where her Honour said:

“Driving a vehicle tends to be taken very much for granted. It tends to be regarded as a right rather than a privilege. The public must have a level of understanding that those who engage in driving must do so carefully to protect other users of the road. If they drive dangerously by prolonged inattention, whether resulting from fatigue, distraction from passengers, or some other reason, and cause thereby the death or serious injury of another, punishment which strongly denounces that conduct will be imposed.”

13. [13]
    The primary judge did, in my view, fashion a sentence striking a balance between the important sentencing consideration of general deterrence on the facts specific to the sentence and importance of the considerations in the applicant’s case, namely his minimal traffic history and his extreme remorse and loss.  Before the primary judge, the prosecution sought a sentence of imprisonment of six to seven years, acknowledging that a sentence as low as five years was within the proper range of sentencing.  Defence counsel sought a sentence of five years but with immediate release on parole due to a combination of the applicant’s good antecedents and extreme remorse and loss.
14. [14]
    The reasons of the primary judge show that her Honour took into account the applicant’s extreme remorse and loss in determining the sentence of five years’ imprisonment to be suspended after six months.  In my view, therefore, it cannot be said that the primary judge did not reduce the sentence of imprisonment because of the extra-curial punishment suffered by the applicant.  It was a matter which was plainly taken into account.  The primary judge was correct in thinking it was relevant to personal deterrence but not general deterrence.

Ground (c) Manifestly Excessive

15. [15]
    The applicant cannot demonstrate that the sentence is manifestly excessive unless he demonstrates the sentence is markedly different from sentences in other cases, such that there must have been some misapplication of principle such that the sentence is unreasonable or plainly unjust.^[3]  Before the primary judge and upon appeal, the applicant placed heavy reliance upon R v Chmieluk; Ex parte Attorney-General (Qld) [2018] QCA 271.  Ms Chmieluk had a bad traffic history, having committed 20 separate traffic offences in the six years preceding the collision of 29 May 2016, including one of a high-level drink driving offence.  Ms Chmieluk and her sister had been drinking together after having enjoyed a lunch at a club.  Ms Chmieluk and her sister were both highly intoxicated.  Ms Chmieluk attempted to drive her sister home and a high-speed single vehicle motor vehicle accident occurred, which took the life of Ms Chmieluk’s sister.
16. [16]
    At the time of the sentence, Ms Chmieluk was a mother of four year old twins, had a stable job and, had a personal history of a troubled upbringing.  The primary judge’s sentence of five years’ imprisonment to be suspended after having served three months’ imprisonment with an operational period of five years was not disturbed upon appeal.  In Chmieluk, the Attorney-General appealed on the grounds that the sentence was manifestly inadequate and that the proper sentence was six years of imprisonment with a parole eligibility date at 18 months.  In re-stating the Attorney-General’s submission the Court observed there is no standard range of penalty in dangerous driving causing death cases^[4] and that circumstances in that case pointed to a sentence where “leniency would serve the public interest.”^[5]
17. [17]
    Importantly, the Court said:

3. “[69]
   For the reasons that we have given, it is not enough to catalogue several cases involving the same offence with some similar aggravating factors and to point to the maximum penalty that has been imposed and the minimum penalty that has been imposed and then to advocate for a similar sentence in the instant case. There is much that such offenders may have in common but there is much that they do not have in common. The task is to identify the principle as applied to facts that guided a particular decision in order to determine its application to the case at hand.”

18. [18]
    In the present case the applicant has catalogued several similar aggravating features, that is, a high-level blood alcohol reading, his reckless driving and several similar features in mitigation, that is, the loss of a beloved family member, deep remorse, the suffering of a psychological injury as a result of the event and some prospects of rehabilitation.  There are, of course, other factors that the applicant does not share with Chmieluk, i.e. the disadvantaged childhood, the breaking down of her own marriage, past problems with drugs and the care of two young children.
19. [19]
    In summary, the applicant is in a similar position to the offender in Chmieluk, that is, there are factors which the offenders have in common and some factors that they do not have in common.  The sentence in Chmieluk was very similar to the sentence here.  Comparison does not demonstrate that the sentence here was manifestly excessive.