R v Johnston[2025] QCA 112

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 24 April 2024, the applicant pleaded guilty to one count of manslaughter and one count of attempting to pervert justice.  It was ordered that he be imprisoned for 10 years for manslaughter and 1 year for attempting to pervert justice.  The sentences of imprisonment were ordered to be served cumulatively.  It was also ordered that the applicant be disqualified from holding or obtaining a drivers’ licence absolutely.
2. [2]
   It was declared that the 778 days in pre-sentence custody be deemed time already served under the sentences and further, that the conviction for manslaughter was a conviction of a serious violent offence.  A parole eligibility date was fixed at 8 September 2030.
3. [3]
   The applicant seeks leave to appeal sentence.  Should leave be granted, the sole ground of appeal is that the sentence of imprisonment for 10 years, for manslaughter, was manifestly excessive.

Offences

4. [4]
   The offence of manslaughter was committed on 1 December 2021.  At the time of its commission, the applicant was 21 years of age, had no criminal or traffic history and was a New Zealand citizen liable to deportation upon conviction.
5. [5]
   The deceased, a 49 year old nurse, was driving a vehicle in the opposite direction to the vehicle being driven by the applicant when the applicant deliberately drove his vehicle across the centre line of the highway, into the driver’s side door of the deceased’s car.
6. [6]
   The applicant’s plea of guilty to manslaughter was accepted by the Crown on the basis that in the days leading up to the collision, he and his partner experienced a breakdown in their relationship.  During the course of that relationship they had previously discussed committing suicide by placing gas bottles in a car and crashing it as they drove, such that the bottles would explode.
7. [7]
   The basis upon which the applicant was sentenced for manslaughter, was that his driving was made dangerous by his deliberate act of driving directly into the oncoming car driven by the deceased, in the context of his own suicidal ideation.  It was accepted that the applicant did not have an intention to kill the deceased, and that the applicant had not considered the consequences for occupants of the oncoming car.
8. [8]
   The count of attempting to pervert justice was committed on diverse dates between 8 March 2022 and 3 August 2022.  Whilst in custody, the applicant sent a series of emails and letters to his former partner, telling her to withdraw a statement given to police.  The applicant also sought a support letter that disproved any breakup between them and stating that he was never suicidal.

Sentence hearing

9. [9]
   The applicant was sentenced on the basis of an agreed statement of facts.  Relevantly, those facts were:

   1. On the afternoon of 1 December 2021, the applicant discussed the breakdown of his relationship and expressed that he “felt like killing himself”.
   2. On the evening of 1 December 2021, prior to the collision, the applicant messaged his former partner to confirm that the relationship had ended.  He sent a further message wishing her the best, prior to commencing to drive towards Brisbane.
   3. Approximately 20 minutes after leaving his residence, the applicant was driving along the D’Aguilar Highway in the direction of Kilcoy.  The deceased was driving home from her work at a nearby hospital.  As the deceased’s vehicle approached from the opposite direction, the applicant deliberately crossed the centre line into the side of the deceased’s vehicle.
   4. At the time of the collision weather conditions were normal, the surface of the road was in good condition and the road was straight with no bends or curves on either side of the road.  The designated speed limit in both directions of travel was 100 kilometres per hour.
   5. The collision between the vehicles caused extensive damage to the front of both vehicles.  The deceased suffered multiple and severe injuries to her body.  She was declared dead at the scene.  The applicant suffered extensive injuries to his body and was airlifted to hospital for treatment.
   6. Forensic investigations following the collision revealed there were no pre-existing mechanical defects in either vehicle.  Samples of the applicant’s blood indicated he was not under the influence of any drug or alcohol substances.
   7. A subsequent interview with police, conducted on 5 December 2021, recorded the applicant as stating he could not remember the collision or the events leading up to it.  The applicant told police that his relationship with his former partner was “okay”.  He could not recall the relationship ending prior to the collision.  He also told police that he had previously had suicidal thoughts, but had never planned to follow them through and that previous comments, about committing suicide by filling his car with fuel, were only jokes.
   8. The police interview also recorded the applicant as responding, when advised by police that he had been driving on the wrong side of the road when the collision took place, “So I actually did try and kill myself, wow, it’s hard to know what I was thinking at that point but I know I’ve been having a hard time, especially with this relationship.  I never actually thought that, now I don’t even know if I’m safe”.
   9. An examination of the applicant’s mobile phone uncovered text messages between the applicant and his former partner in the lead up to the offending.  The examination also revealed that the applicant had been playing a song in which the artist referenced consuming drugs, alcohol and antidepressants with the intention of committing suicide while travelling in a car.
10. [10]
    The Crown submitted that the applicant ought to be sentenced to imprisonment for 10 to 11 years for manslaughter, with the consequence that there would be an automatic declaration of the conviction of a serious violent offence.  The Crown submitted that should a sentence below 10 years be imposed for manslaughter, a declaration should still be made that the applicant had been convicted of a serious violent offence.
11. [11]
    The Crown further submitted that the applicant ought to be sentenced to imprisonment for 12 to 18 months for attempting to pervert justice, to be served cumulatively on the sentence for manslaughter.
12. [12]
    In support of those submissions, the Crown relied on victim impact statements from the deceased’s family.  They spoke of the devastating effects of the deceased’s death upon them, including the circumstances in which that death had taken place.  The Crown also relied on yardsticks,^[1] although it was accepted that the circumstances for sentencing for manslaughter offences were infinitely variable.
13. [13]
    Defence counsel submitted that the applicant’s offending fell into a category of its own, although some yardsticks were of assistance.^[2]  It was submitted that having regard to the applicant’s extreme remorse and the circumstance in which the offence of manslaughter was committed when he was seeking to commit suicide, a sentence of 8 years’ imprisonment be imposed for manslaughter and a cumulative period of 12 months’ imprisonment for attempting to pervert justice.  Further, that no serious violent offence declaration be made and, having regard to the applicant’s youth, lack of criminal history, early plea, own serious injuries and inevitable deportation, he be eligible for parole after serving 32 months’ imprisonment.
14. [14]
    In support of those submissions, defence counsel tendered a neuropsychological report which recorded that the applicant had sustained multiple injuries as a consequence of the collision, including a traumatic brain injury.  Defence counsel also tendered a written letter of apology to the deceased’s family and documentation evidencing steps at rehabilitation.  A work ethic report was also tendered in respect of the applicant’s good conduct in pre-sentence custody.

Sentencing remarks

15. [15]
    The sentencing judge recorded that the deceased’s death was senseless and tragic, having occurred when the applicant deliberately crossed the centre line into the path of the deceased’s vehicle, with the intention to kill himself.
16. [16]
    The sentencing judge recorded that the applicant was only 21 years of age at the time of the collision and 23 years of age at sentence and that he was to be sentenced on the basis that he did not have an intention to kill the deceased and that he did not consider the consequences to her, or occupants of the oncoming vehicle.
17. [17]
    The sentencing judge recorded that the attempt to pervert justice occurred in circumstances where the applicant had sent communications to his former partner with the objective that she withdraw statements she had given to police.
18. [18]
    The sentencing judge described the applicant’s offending in respect to the manslaughter count as an appallingly callous act, even appreciating that his intention was to kill himself.  His actions had caused devastation to the deceased’s family.  Their victim impact statements spoke of his act of selfishness.  The sentencing judge recorded that that was an accurate description, noting that the selfishness persisted with the applicant’s concerted attempts to lessen the evidence which implicated him in this grave conduct.  There was also a lack of remorse, as evidenced by the messages and the facts surrounding the attempt to pervert justice.
19. [19]
    After recording the purposes of sentencing, the sentencing judge found that the applicant’s disregard of public safety had not only involved the deceased, but also the ambulance, police and emergency personnel who came upon what must have been a confronting scene.
20. [20]
    The sentencing judge accepted that the applicant’s response to the relationship breakdown demonstrated immaturity and irrationality.  The sentencing judge recorded that the applicant had a supportive family, albeit in New Zealand; that the applicant had had a prejudicial upbringing; that the applicant was a New Zealand national, who had no criminal history and no traffic history; that the applicant had spent 778 days on remand; and that the applicant, upon release, would be returned to New Zealand.
21. [21]
    The sentencing judge also recorded that the applicant had entered an early plea of guilty which had assisted the course of justice and that he was to receive credit for that plea, and that the applicant did not have mental health issues which might be said to have been relevant to his culpability.
22. [22]
    The sentencing judge found that manslaughter covers a broad spectrum of conduct.  Whilst both the Crown and the defence had pointed to a number of cases, none were on all fours with the applicant’s conduct.  The feature of the applicant’s conduct was that the applicant had made a deliberate, positive decision to cross the centre line, albeit for the purposes of suicide.
23. [23]
    The sentencing judge found:

“It is certainly necessary to take into account your youth and the fact that you have no criminal history and that, as I explained, you pleaded guilty.  I also take into account the fact that your time in custody and in custody in the future will be more difficult.  You also suffered quite severe injuries in the course of the traffic incident.

However, in my view, the gravity of your offending calls for a sentence at the higher end of the range argued by counsel.  Your deliberate conduct to cross the centre line and try and kill yourself was serious.  It had a devastating impact on a family, and all of that must have been apparent to you as a risk in your conduct.  No doubt, you were singularly focused on your intention to kill yourself, but it is important to bear in mind that, the core of the conduct here involved a deliberate act.  Your conduct as reflected in count 2 showed a failure to accept responsibility.”^[3]

Leave to appeal

24. [24]
    To succeed on a ground that the sentence imposed was manifestly excessive, an applicant must establish more than that the sentence imposed was different or even markedly different to comparable yardsticks.  A successful applicant must establish that the sentence imposed was so different as to support an inference of a misapplication of sentencing principles, or a conclusion that the sentence imposed was plainly unjust or unreasonable.^[4]
25. [25]
    The applicant submits that a conclusion that the sentence imposed was manifestly excessive, arises from a consideration of the circumstances of the offence and in particular, the applicant’s moral culpability.  It is submitted that the sentencing judge erred in giving insufficient weight to the causal link between the applicant’s suicidal mentality and the act of dangerous driving, albeit in disregard for public safety, as well as the applicant’s youth, absence of prior convictions and own significant injuries.  It is further submitted that the sentencing judge erred in giving too much weight to the fact that the applicant’s act was a deliberate act.
26. [26]
    There is no merit in the applicant’s contentions.
27. [27]
    The sentencing judge carefully and accurately recorded the basis upon which the applicant was to be sentenced, namely, that the applicant deliberately drove his vehicle into the pathway of the deceased’s oncoming vehicle.  Whilst that act was not undertaken with any intention to kill the deceased and was undertaken for the purpose of committing suicide, the sentencing judge rightly described the applicant’s actions as appallingly callous.  The description that it involved selfishness was also apt.  The applicant accepted that he was to be sentenced on the basis that he was thinking only of himself and not in relation to other road users.
28. [28]
    Although the applicant committed the act with the intention of committing suicide, there was no evidence of an underlying mental illness, or even mental impairment which affected his mental capacity at the time of the collision.  The applicant was sentenced on the basis that he had an emotional reaction to the breakdown of his relationship, consistent with immaturity and irrationality.
29. [29]
    Those circumstances did not warrant a conclusion that the applicant’s moral culpability was to be reduced as a consequence of the existence of a mental illness, mental impairment, or mental incapacity.  A finding that the applicant’s moral culpability is reduced, requires evidence that the applicant had a mental condition or impairment which affected the applicant’s mental capacity at the time of the offending conduct.^[5]  There was no such evidence adduced at sentence.
30. [30]
    The sentencing judge correctly observed that none of the yardsticks were comparable.  Accordingly, the applicant was to be sentenced in accordance with sentencing principles.  The sentencing judge’s remarks reveal a careful consideration of those principles, whilst balancing the relevant aggravating and mitigating factors.
31. [31]
    As recently observed in R v Hughes,^[6] offending that results in the killing of a completely innocent user of a public road because of the deliberate manner of driving by an offender, where it was inevitable that such a tragedy would result from the course of driving, is offending objectively at the more serious end of manslaughter offences committed by driving.
32. [32]
    The applicant’s offending was objectively at the more serious end of manslaughter offences committed by driving.  Even allowing for the fact that his intention was to kill himself, the devastating consequence of the applicant’s conduct in the deliberate act of driving into the path of an oncoming vehicle at significant speed, warranted a sentence in which denunciation loomed large.
33. [33]
    The sentencing judge carefully weighed the applicant’s mitigating factors including the early pleas of guilty, lack of previous convictions, own severe injuries, the more onerous nature of custody in his circumstances and the fact of deportation upon release from custody.
34. [34]
    There is no basis to conclude insufficient weight was given to any of those matters by the sentencing judge when exercising the sentencing discretion.  To the contrary, a consideration of the applicant’s circumstances and of the circumstances of his offending, support a conclusion that a sentence of 10 years’ imprisonment for manslaughter fell within a sound exercise of the sentencing discretion.

Conclusion

35. [35]
    The sentence for the offence of manslaughter does not evidence any misapplication of principle.  It is neither plainly unjust, nor unreasonable.
36. [36]
    The sentence was not manifestly excessive.

Orders

37. [37]
    The Court orders:

1. Leave to appeal sentence be refused.