R v Turner[2024] QCA 172

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  On 1 December 2023, the applicant was convicted, on her plea of guilty, of dangerous operation of a vehicle causing death, while adversely affected by an intoxicating substance and while excessively speeding.^[1]  She was sentenced to 10 years’ imprisonment.  By virtue of the nature of the offence, and the term of imprisonment imposed, she was taken to be convicted of a serious violent offence and a declaration to that effect was required to be made.^[2]  The consequence is that she will not become eligible for parole until she has served 80% of the term of imprisonment.^[3]  The applicant applies for leave to appeal against the sentence on the sole ground that the sentence imposed was manifestly excessive.  The applicant does not dispute that a term of 10 years was within the sound exercise of the sentencing discretion.  However, she submits that, viewed in light of her particular circumstances, including a prior period of imprisonment she was serving at the time the offence was committed, the overall penalty was crushing.  In this way, the applicant seeks to invoke the totality principle:

“… which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”^[4]

2. [2]
   The factual basis for the sentence was agreed.  The offence was committed in the early hours of 21 June 2022.  The applicant was driving a new Ford Ranger, which was a rental car.  She was aged 39 at the time, but held only a provisional driver’s licence.  It is reasonable to infer that is because she had previously lost her licence due to multiple traffic offences.  The man who was killed was a hardworking, professional truck driver, aged 62.  He worked for Australia Post, delivering mail, and was driving a prime mover with two trailers attached at the time of the crash.  Statements from his wife, son and sister were tendered and read out at the sentencing  hearing.  They speak powerfully of the painful impact of his death, and the awful circumstances in which it occurred.  Out of respect for him and his family, I will refer to him as the deceased.
3. [3]
   The Ford Ranger was hired in Brisbane by another person, BR.  The applicant and that person travelled in the car from the Sunshine Coast to the Mackay area the day before the crash, 20 June 2022.  On the night of 20 June 2022, the applicant had consumed methylamphetamine.  At 2.00 am the following morning, 21 June 2022, a third person, KR, asked the applicant to drive the car, and she agreed.
4. [4]
   In the early hours of 21 June 2022, the applicant and KR were travelling south on the Bruce Highway towards Rockhampton from Mackay.  The deceased was driving his truck north towards Mackay.  He was killed when, at 4.24 am, the applicant, who was under the influence of methylamphetamine and speeding at 164 km per hour,  crossed the centre dividing line onto the wrong side of the highway and collided with the truck.
5. [5]
   The applicant’s dangerous driving started about two hours earlier, at about 2.23 am.  As summarised in the statement of facts, the danger included:

   1. Her level of intoxication by methylamphetamine – at the time she got behind the wheel of the car and began driving she had “significant levels of methylamphetamine in her system which adversely affected her ability to drive”.  A blood sample taken about four and a half hours after the crash showed 0.74mg/L of methylamphetamine in her system, “[a] level above the average seen in cases of lethal methamphetamine toxicity”.
   2. The fact that she had an injury to her right knee, requiring her to wear a brace and, by inference, use a crutch (given that there was a crutch stowed down the side of the driver’s seat next to the door).  The applicant told police she had an “ACL” injury to that knee.  The agreed facts records that “[h]er right leg was crucial in her ability to drive over the course of several hours on a highway where the signed speed limit was up to 110 km/h in places and requires road users to be able to react quickly and not be impaired from doing so, including from pain or movement due to an injury”.
   3. The applicant was excessively speeding, over the course of the two hours she was driving from 2.23 am to 4.24 am when the crash happened.  The agreed facts records that a person complying with the speed limit over the distance the applicant travelled (estimated at 240 kilometres) would have taken about two hours and 40 minutes to travel the distance; the applicant did it in two hours.  Data from the car showed she reached speeds of between 150 and 176 km/hr on 69 occasions during a 73 minute period.
   4. About 12.7 km before the crash site, the defendant was recorded speeding at 176 km/hr.
   5. The dangerous driving culminated at the point the applicant crossed the centre dividing line, onto the wrong side of the highway, and hit the truck being driven by the deceased.  At the point of impact, the plaintiff was travelling at 164 km/hr.
6. [6]
   The impact of the crash caused the truck to leave the road, ultimately colliding with a large tree, which caused the trailers to detach before rolling onto their side.  The contact with the tree and the roll over caused the truck to catch fire, which engulfed both the prime mover and the trailers.
7. [7]
   The driver of the truck was not able to be found for some time due to the fire.  He was eventually located outside of the cab of the prime mover by emergency services officers and a fellow Australia Post colleague who came upon the scene.  He was said to have been burnt beyond recognition.  The cause of his death was “multiple injuries resulting from the collision, the significant and un-survivable injuries to his brain and heart inclusive of ‘a vertebral fracture, laceration to the heart, small areas of haemorrhage in the brain, and subdural haemorrhage’”.
8. [8]
   The applicant made various statements to people at the scene, including “I’m sure I was awake, but I just can’t remember” and “I don’t know what happened … I think I might have fallen asleep”.  When speaking to police at the hospital a short time later, “under rights and cautions”, the applicant said “I was wide awake, I [indistinct] a cigarette and next minute, the impact and spinning in the car”.
9. [9]
   About five months later, on 17 November 2022, the applicant participated in a recorded interview with police.  She told police that the night before the crash she had “smoked a meth pipe” and then went back to her hotel room to sleep.  The agreed facts records that her account of drug consumption is inconsistent with the levels found in her system at 9.14 am after the crash and was “an attempt by [the applicant] to minimise her criminality”.  The applicant also told police that at 2.00 am she was woken by KR who asked her to drive to Rockhampton.  She told police “[s]he doesn’t remember much after this but remembered the car spinning and the impact” and “she thought she fell asleep but conceded that she would have had around six to seven hours sleep and did not think it contributed to the crash”.  The applicant lied to police and told them she was travelling within the speed limit at the time of the crash.
10. [10]
    As already mentioned, the applicant was 39 at the time of the offence.  She had a significant criminal history prior to this offence, commencing when she was aged 20, predominantly for drug, but also property, offending.  Her history includes convictions in the Supreme Court, from July 2017, for two counts of trafficking in dangerous drugs, for which she received five years and four years’ imprisonment, respectively (to be served concurrently).  Having already served 264 days in pre-sentence custody, which was declared, the applicant was given a parole eligibility date of 3 March 2018.  The effective start date of this sentence was 4 November 2016 (when the pre-sentence custody began).
11. [11]
    The applicant was released on parole on 17 September 2018, and committed further offences in October and November 2019 which saw her returned to custody and brought her back to the Supreme Court, on 26 May 2021.  On that day, she was convicted of aggravated possession of drugs, for which she was sentenced to a further two years and six months’ imprisonment, and lesser concurrent terms on other offences, including supplying dangerous drugs.  The applicant was given a parole eligibility date on the day of sentence.
12. [12]
    A report about the applicant’s performance on parole was tendered at the sentence hearing.  It recorded that the applicant was released on parole on 17 September 2018, in relation to the sentences imposed for trafficking.  That parole order was cancelled on 26 May 2021, when she was sentenced to the further terms of imprisonment in the Supreme Court.^[5]  Following the May 2021 sentence, the applicant was again released on parole on 19 July 2021.  She had therefore been on parole for about 11 months at the time of the offence the subject of this application.  The parole report records that the applicant initially expressed motivation to engage with a drug addiction treatment organisation and attended a few sessions in November 2021 and March 2022.  But in June 2022, the applicant “reported she had not attended any recent sessions as she did not feel the need, as she was following her relapse prevention plan and distancing herself from negative peers”.  The applicant otherwise demonstrated inconsistent compliance with the reporting and residence conditions.
13. [13]
    The applicant’s parole order was suspended by the Parole Board on 22 June 2022, “due to it being identified she posed an unacceptable risk of committing further offences”.  This was the day after the offence, although the applicant was not charged with the offence until November 2022.  Although not stated in the parole report, it is reasonable to infer the Parole Board was made aware of the positive methylamphetamine test and the fact the applicant was involved in the crash, and that those matters were taken into account in making the decision to suspend the parole, possibly in addition to her poor compliance with parole conditions otherwise.
14. [14]
    In addition to her criminal history, the applicant also has a terrible traffic history.  She has been convicted of speeding 16 times, as well as other traffic offences.  She has two prior convictions of driving while a drug is present in her system (from 2014 and 2019).  Her driver licence has been suspended many times, due to an accumulation of demerit points or failure to pay fines; and she has previously been disqualified from driving (for driving while unlicensed in 2015, and for driving while a drug is present in 2014 and 2019).
15. [15]
    The applicant was returned to custody on 24 June 2022 (after her parole order was suspended on 22 June 2022).  The applicant was charged with the offence the subject of this application (and related summary offences, of driving while a drug was present in her blood, speeding and contravening an order to provide the PIN to her phone) following her interview with police on 17 November 2022.
16. [16]
    At the hearing below, the prosecutor fairly described this as “an extremely serious case of dangerous driving”.  Aggravating features emphasised by the prosecutor were the catastrophic consequences of the driving, causing the death of the driver of the truck and anguish for his family; the duration and deliberate conduct involved in the dangerous driving (for two hours, on a highway, over a distance of 240 kilometres, at excessive speeds, whilst affected by methylamphetamine); the applicant only held a provisional licence; the applicant was on parole for serious drug offending at the time, and her criminal and traffic history more generally.  The prosecutor submitted the “starting point” would be a sentence of 11 or 12 years’ imprisonment, which could be reduced to a sentence of not less than 10 years’ imprisonment, taking into account the applicant’s plea of guilty, mitigating features and pre-sentence custody that could not be declared.  The prosecutor noted that such a sentence would result in an automatic serious violent offence declaration, but submitted that such a declaration was warranted in any event (that is, even if discretionary), having regard to the circumstances of the offence and the applicant’s history.
17. [17]
    For the applicant, it was submitted the appropriate sentence was nine years’ imprisonment, with no serious violent offence declaration being made and eligibility for parole “at the customary one-third mark”.^[6]  On her behalf, it was said that the applicant had “had a problem with drugs … for some years now”; was the single mother of three children, one of whom is an adult and the others aged 14 and 15; had been the victim of domestic and family violence in the relationship with the father of her first child, as well as the person with whom she had her other two children; had been able to abstain from drugs in the past and “[h]er criminal history does not place her beyond rehabilitation”.  The applicant had previously undertaken seasonal work “on the harvest trail” and also worked in telemarketing and cleaning.  It was submitted that she had used her time in custody well, working and undertaking courses and programs, and had the support of friends.  In support of a submission as to the applicant’s remorse, a handwritten letter of apology from the applicant was tendered.
18. [18]
    The learned sentencing judge accepted the applicant was genuinely remorseful, but nonetheless emphasised the serious harm caused by her offending, leading to the loss of life of another person.  He referred to the applicant’s traffic and criminal history, noting that “you have not been a responsible driver for the last 20 years”.  His Honour referred to the fact the applicant was on parole at the time, and that the overall term of the previous sentences was seven years and 22 days, which expired on 27 November 2023, a few days before the sentence hearing.  He noted that, because the offence of dangerous operation of a vehicle is listed in schedule 1 to the Penalties and Sentences Act 1992, and was committed while the applicant was on parole, the sentence imposed must be ordered to be served cumulatively on the previous sentence.^[7]  In relation to the time the applicant had spent in custody, from 24 June 2022 (about 17 months), the sentencing judge said:

“I must have regard to and have reduced the sentence that I am about to impose, by taking into account that period of 16 or 17 months or so which cannot be the subject of a formal pre-sentence custody declaration.”^[8]

19. [19]
    After setting out the facts, the sentencing judge said:

“Relying upon the cases of Brumby,^[9] Barnham^[10] and Williams,^[11] I am satisfied that you have exposed yourself to a sentence in excess of 11 years’ imprisonment.  An order of imprisonment for nine years without any order about parole was made in Brumby.  She was 47 with only one conviction, but a bad traffic history for speeding.  She was very drunk when she drove at excessive speed in a suburban area for an undetermined time and distance, killing an older lady.  She pleaded guilty and was remorseful.

Barnham, a 51-year-old man, argued with others after drinking about whether he should drive, insisted he do so, and drove at speeds of 150 to 170 kilometres an hour over about seven kilometres.  His blood alcohol concentration on countback was .199 percent.  He lost control, left the road, hit a tree and killed a passenger, left the scene, tried to blame someone else for the driving.  He had a traffic history for drink driving and also some criminal history.  Your counsel sensibly concedes that his histories are not as bad as yours.  Unsurprisingly, his sentence of nine years’ imprisonment with no order as to parole was said to be ‘Clearly not manifestly excessive,’ at page 7 of the judgment.

Ms Williams, 33, drove for a distance of about 40 kilometres on the Bruce Highway, driving at a speed of 171 kilometres an hour when she left the road.  Her husband and five-year-old son, who were in the car unrestrained, were both killed.  She’d been engaging in a protracted course of dangerous driving, including driving on the wrong side of the road.  Other drivers had had to take evasive action to avoid collision with her.  She had significant levels of amphetamine and methylamphetamine in her blood.  She had a limited traffic history and no criminal history at all.  A sentence of nine years’ imprisonment with the declaration the conviction was a serious violent offence was made on a timely guilty plea.  She was also remorseful.  The Court stated the sentence was at the lower end of sentence for that type of offending, and that case was of such seriousness to warrant the sentence of at least 10 years’ imprisonment.

On a close consideration of those cases, which I have considered previously, and the cases referred to in them, I reached the determination that I announced earlier.  Even accounting for the un-declarable pre-sentence custody, I am ultimately not persuaded by your counsel that the sentence should be as low as nine years’ imprisonment.  There are a number of features which make your offending objectively more serious than those cases, where the sentences were all found to not be manifestly excessive.

In my view, those cases were each very bad examples of the offence, but yours is worse, being aggravated, to my mind, by a number of factors: (1) the considerable length of your deliberate dangerous driving; (2) as a part of that, the excessive speed you drove at, especially at the point of impact; (3) as a part of that, the very high concentration of the dangerous drug in your blood at the time you chose to drive; (4) your considerable traffic record; (5) your criminal history and the fact that you were subject to supervision in the community on a parole release order for serious drug offending at the time you committed the offence; and (6) the tragedy realised by your offending.

…

In that regard, it is inescapable in my view that what you did here was objectively serious and a very bad example of this type of offence. …

A sentence of 10 years’ imprisonment or higher automatically attracts a serious violent offence declaration.  In R v Free; Ex parte Attorney-General (Qld) [2020] QCA 58, the Court confirmed, contrary to earlier authority, that the offences need not fall outside the so-called norm for that type of offending, but that the declaration is part of the integrated sentencing process and is not an additional punishment.  And as part of the integrated process, the sentencing Court should consider whether there are other factors, including factors relevant to community protection or adequate punishment, which warrant an order requiring the offender to serve 80 per cent of the head sentence before being eligible to apply for parole…

In my view, a sentence that attracts the declaration achieves those ends, and it is consistent with the comparable case authority…”.^[12]

20. [20]
    For those reasons, the sentencing judge imposed a sentence of 10 years’ imprisonment for the offence of dangerous operation of a vehicle causing death, to be served cumulatively on the previous sentence, and ordered that the applicant be disqualified absolutely from holding or obtaining a driver licence.  Short concurrent terms were imposed for the other offences.  The time in custody from 24 June 2022 to 27 November 2023 (when the previous sentences expired) was taken into account, but not declared as time served.  The three days from 28 November to 30 November 2023 (that is, leading up to the sentence hearing) were declared as time served under the sentence imposed.
21. [21]
    In applying for leave to appeal the sentence, the applicant submits the sentencing judge erred by failing to properly take into account the combined features of the applicant’s plea of guilty and the undeclared period of imprisonment and, as a consequence, the sentence imposed was a crushing one.  She does not dispute that a sentence of 10 years’ imprisonment, carrying as it does an automatic declaration of serious violent offence, was otherwise within the sound exercise of the sentencing discretion.  However, when viewed in light of her particular circumstances, notably her previous period of imprisonment, the 17 months of custody that could not be declared and the overall time the applicant will have to serve before being eligible for parole, it is said the sentence of 10 years’ imprisonment is manifestly excessive.  The applicant reiterates the submission made below that a term of nine years was appropriate.
22. [22]
    In the way the argument is articulated, the applicant contends error of the second kind identified in House v The King, that is, that although no particular error of principle can be identified, this Court should infer error in the exercise of the discretion because the result is unreasonable or plainly unjust.^[13]
23. [23]
    The respondent submits no such error ought be inferred; that, taking into account the serious circumstances of the offending by the applicant, and her prior criminal history, viewed in the context of the comparative decisions relied upon, the imposition of a period of 10 years’ imprisonment clearly indicates the sentencing judge considered all relevant factors, including the time the applicant was in custody leading up to the sentence.
24. [24]
    The respondent’s submission is correct.  The result in this case is neither unreasonable nor unjust.  The sentencing judge properly regarded the applicant’s offending as worse than each of the decisions the parties referred to as comparable and as “a very bad example of this type of offence”.  His Honour appropriately emphasised the need for punishment and community protection, as well as deterrence.
25. [25]
    The offender in Williams was driving with her husband and five year old son in the car.  Neither of them were wearing seatbelts; but the offender was.  Shortly after 7.30 am, the car she was driving left the road and impacted at high speed with a culvert and then a tree.  Both the husband and son were ejected from the car and killed.  The offender was affected by both amphetamines and methylamphetamine “at levels likely to affect [her] ability to safely drive a motor vehicle” (at [11]).  An investigation of the collision established that the car was travelling at a minimum of 171 km/hr when it left the road and that “[i]mmediately prior to leaving the roadway, the [offender] was observed to engage in a protracted course of dangerous driving” and “[o]ther road users had been required to take evasive action to avoid a collision” (at [9]).  A psychological report tendered at the sentencing hearing noted that the offender’s relationship with her husband “had been physically, mentally and emotionally abusive”, that there was a history of alcohol and substance abuse; and that the driver’s “presentation was consistent with a diagnosis of dissociative disorder and post traumatic disorder”, “strongly suggestive of a possible traumatic brain injury” prior to the offending (at [14] and [15]).  She was also badly injured in the crash and had to live with the loss of both her husband and her son.  She had “a limited traffic history and no criminal history”.
26. [26]
    In refusing an application for leave to appeal the sentence in Williams, Boddice J (as his Honour then was, with whom Sofronoff P and McMurdo JA agreed) said:

28. “[28]
    A consideration of comparable authorities^[14] 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. [29]
    Whilst Henderson involved an offender with a much more extensive criminal and traffic history, who used the motor vehicle as a weapon, 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.
30. [30]
    Against that background, the imposition of a sentence of nine years’ imprisonment, with a declaration the applicant had been convicted of a serious violent offence, is properly to be characterised as a sentence at the lower end of the sentences applicable to this serious offending. Such a sentence properly reflected the consequences of a declaration that the applicant had been convicted of a serious violent offence. It was neither unreasonable nor plainly unjust.”^[15]

27. [27]
    In the context of that decision, the reference to “at least ten years’ imprisonment” is a reference to the appropriate sentence taking into account the plea of guilty; not a notional sentence before a reduction for the plea of guilty.
28. [28]
    The present case is objectively more serious than Williams, for the reasons identified by the sentencing judge:  that is, both by reference to the circumstances in which the offence was committed (including the length of time and distance over which the applicant drove dangerously and at excessive speeds; and the high concentration of methylamphetamine in the applicant’s system when she drove) and the applicant’s circumstances, particularly her criminal history, the fact that she was on parole for serious drug offending at the time, and her appalling traffic history.
29. [29]
    Given the observation of this Court in Williams that the offending in that case warranted a sentence of “at least ten years’ imprisonment”, and the important distinguishing features, the sentencing judge’s observation that the applicant in the present case had exposed herself to a sentence in excess of 11 years’ imprisonment was correct.
30. [30]
    That conclusion is also supported by the decisions in which nine years’ imprisonment was imposed, also on pleas of guilty: R v Barnham [2019] QCA 38; R v Brumby [2023] QCA 23, both appropriately summarised, and distinguished, by the sentencing judge; as well as R v Moody [2016] QCA 92, which was referred to in Barnham, Brumby and Williams.  The offender in Moody was sentenced to nine years’ imprisonment with no fixed parole eligibility date.  He had a significant level of methylamphetamine in his system, but less than the applicant in this case,^[16] 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.  The offender did have some criminal and traffic history, but it was far less serious than the applicant’s.^[17]
31. [31]
    Once it is accepted that, even taking into account her plea of guilty, the applicant’s offending could have attracted a penalty in excess of 11 years’ imprisonment, it is apparent that the sentencing judge did, as he said he would, reduce the sentence that he imposed by “taking into account” the 17 months the applicant had been in custody which could not be declared.
32. [32]
    The sentencing judge was not obliged to give the applicant full credit for that time in the sentence that he imposed.  The totality principle does not require a later sentencing court to discount the sentence which is otherwise considered appropriate by reducing it by the precise amount of time the offender has already served under a previous sentence.  Time an offender is serving in custody under a previously imposed penalty of imprisonment is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not.^[18]
33. [33]
    The applicant found herself serving the time in custody from June 2022 to November 2023 because she reoffended in breach of her parole order.  That was the second time she had breached her parole order, resulting in further time being served.  As a consequence of that, as well as the penalty imposed for the offending the subject of this application, she will spend a long time in custody.  But that is the consequence of her own criminal offending.  The sentencing judge was obliged, as part of imposing a sentence that was just in all the circumstances,^[19] to take the time the applicant had already served into account; but was not obliged to give the applicant full credit for that.  His Honour appropriately took the time, and the applicant’s plea of guilty, into account by reducing the penalty from one exceeding 11 years to one of 10 years.
34. [34]
    I infer no error in the approach taken by the sentencing judge.  The sentence imposed was not manifestly excessive.
35. [35]
    There is one matter that requires correction.  As part of the orders made by the sentencing judge, his Honour made a declaration that “pre-sentence custody of three days between 28 and 30 November 2023 [be] deemed time already served on the sentences imposed today”.  That addressed the requirement under s 159A(1) and (3) of the Penalties and Sentences Act 1992.  His Honour otherwise said that:

“… following the Court of Appeal authority of R v Braeckmans, the pre-sentence custody of 524 days between 22 June 2022 and 27 November 2023 is taken into account but not subject to a declaration.”

36. [36]
    That was a correct approach, although the starting date is incorrect (it should have been 24 June 2022); but it required a declaration to be made in terms of s 159A(3B) of the Penalties and Sentences Act.  For this reason, I would allow the application for leave to appeal the sentence, to enable this to be corrected, but dismiss the appeal.
37. [37]
    Accordingly, the orders I propose are:

1. The application for leave to appeal against sentence is granted.
2. The orders made by the sentencing judge on 1 December 2023 are varied, to add a declaration, pursuant to s 159A(3B) of the Penalties and Sentences Act, that the time served in custody, from 24 June 2022 to 27 November 2023, being 522 days, is not taken to be imprisonment already served under the sentence imposed.
3. The appeal against sentence is dismissed.

38. [38]
    MULLINS P:  I agree with the Chief Justice.
39. [39]
    NORTH J:  I agree with the Chief Justice.