R v Cox[2025] QCA 181

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 9 September 2025 the applicant was convicted on his own plea of guilty of the offence of dangerous operation of a motor vehicle causing grievous bodily harm, an offence which carried with it a maximum penalty of ten years’ imprisonment.
2. [2]
   The applicant was sentenced to two years’ imprisonment, to be suspended after serving three months’ imprisonment, for an operational period of two years.  The applicant was also disqualified from holding or obtaining a driver’s licence for a period of one year.
3. [3]
   The applicant sought leave to appeal against his sentence on the sole ground that it was manifestly excessive.  He did not cavil with the head sentence.  Rather his argument was that any sentence which required him to serve any period in actual custody was manifestly excessive.
4. [4]
   For reasons which follow, the application for leave to appeal against sentence must be refused.

The facts of the offending

5. [5]
   The applicant was a 66-year-old heavy vehicle truck driver at the time of the offending.
6. [6]
   On 3 April 2023, at about 6.30 am, the applicant was driving his truck northbound on the Pacific Motorway in an area which had five northbound lanes.  The far-left lane was an exit only lane.  The second to left lane allowed drivers to exit to the left or to continue straight on.  The speed limit on the motorway was 100 km per hour and reduced to 70 km per hour on the off ramp.
7. [7]
   The complainant was on his way to work in the second lane from the left.  The traffic was congested on approach to the exit, such that the cars in the two left exit lanes were either stationary or slowing down approaching those cars which were stationary in front of them.  Of the three vehicles in front of the complainant, the furthest away, a truck, was stationary.  The next, a car, had its indicator on to take the left exit and was also stationary in the traffic.  The third, the car immediately in front of the complainant’s car, had also stopped, although the driver might have taken her foot off the brake to start moving forward.  The complainant had slowed behind that car and was moving forward slowly behind it.
8. [8]
   In the meantime, the applicant was travelling behind the complainant in the second lane from the left.  He did not stop, brake or slow down as he came towards the stopped line of traffic.  He struck the complainant’s car from behind at approximately 68 km/h, causing a chain of collisions.  The impact caused catastrophic damage to the complainant’s car, rendering it unrecognizable.  The truck struck the car’s boot with such force that the rear number plate was pushed up to the front seats, leaving the rear seats entirely obliterated and half the chassis exposed forward of the rear tyres.  Other vehicles suffered lesser damage.
9. [9]
   The complainant’s injuries were life threatening.  He was bleeding from a head injury and was unresponsive but breathing.  He was cut from his car and transported to hospital where an immediate craniotomy was required to evacuate the subdural haematoma.  Without that treatment, he would have died.  He also suffered a C3 vertebrae fracture, injury of the ligaments at the cranio-cervical junction, and a small bilateral pneumothorax.  He was kept asleep for several days following the collision and not extubated until the fifth postoperative day.  His spinal injuries were managed with a hard collar.  The bilateral pneumothorax was managed non-surgically.  The complainant was discharged on 21 April 2023.  The sentencing judge was told that there was no suggestion that the complainant would suffer ongoing ill effects because of his injuries.
10. [10]
    The driver of the car in front of the complainant was also injured but not as severely as the complainant.  No one else was hurt.  The applicant was shaken up after the collision but otherwise uninjured.  He stayed at the scene until police arrived.  He told witnesses, “I didn’t even see them” and “I’m never driving again.”  There was otherwise no explanation for what had happened.  There was no defect in his truck which could have contributed to the collision.  The applicant was transported to the Princess Alexandra Hospital in a state of shock and to have a blood sample taken.  The results of the blood sample were unremarkable.
11. [11]
    The applicant was arrested at the hospital and transported to the Brisbane City Watchhouse.  He was remanded in custody overnight before being granted bail in the Brisbane Magistrates Court the next day.
12. [12]
    It was an agreed fact that the applicant drove dangerously by failing to keep a lookout, failing to drive appropriately to the traffic conditions or failing to take any evasive action such as braking or changing lanes to avoid a collision with stationary or slowing cars in front of him.

The sentencing proceeding

13. [13]
    Counsel for the Crown submitted that the appropriate head sentence was between two to three years’ imprisonment.  He relied on R v Danter;^[1] R v McDonald;^[2] R v Gazzara;^[3] and R v Turner^[4] as benchmark authorities justifying that submission.
14. [14]
    He submitted - correctly it will appear - that counsel for the defendant was unlikely to take any issue with his submission concerning the head sentence but speculated that the real issue would be whether a period of actual custody was warranted.  He submitted that it was.  He submitted that the Court could partially suspend the head sentence after the applicant had served a period of somewhat less than the usual one third to recognise the plea of guilty and relevant factors in mitigation.  He submitted the period of disqualification from holding a driver’s licence should be 18 months to two years.
15. [15]
    As had been predicted, counsel for the applicant accepted that the range of two to three years was supported by the benchmark authorities which had been identified by the Crown.  Having regard to the relevant mitigating features, counsel submitted, first, that the head sentence should be wholly suspended and, second, that the licence disqualification period should be moderated downwards from that suggested by the Crown.
16. [16]
    During the course of submissions, the sentencing judge intimated that he would be minded to impose a head sentence at the bottom of the range suggested by the benchmark authorities but that he required persuasion that this was a case in which no period of actual custody should be imposed.
17. [17]
    Counsel for the applicant suggested that a wholly suspended sentence was justified having regard to  –

    1. the applicant’s age;
    2. the applicant’s virtually flawless antecedents, attested to by very many tendered references;
    3. the applicant’s evident remorse, demonstrated by his plea and by a letter he had written to the Court;
    4. the applicant’s wife was gravely ill with severe emphysema and congestive heart failure and was dependent on her husband for her care and the activities of daily living.
18. [18]
    The sentencing judge sought concrete details from counsel concerning the extent of the dependency to which reference had been made.  Counsel submitted –

    1. the applicant’s wife had numerous medical appointments and had to see a local doctor who was four kilometres from the home and also had to see a specialist who was 14 kilometres away from the home, so relied on her husband to drive her to those medical appointments;
    2. otherwise relied on her husband for day-to-day care in terms of shopping, food, housekeeping, etc.;
    3. there were three children, two in New South Wales and one in Queensland and of the two in New South Wales, the nearest child was in a town 14 kilometres away and could not be relied on because of her own family commitments.

The sentencing remarks

19. [19]
    The sentencing remarks accepted that the applicant was truly regretful and remorseful and that his plea was timely and reflected a genuine effort to cooperate with the justice system.  The sentencing remarks reveal that his Honour took into account –

    1. the applicant’s age;
    2. the circumstances of the health of the applicant’s wife and her need for support; and
    3. the very many positive references as to the applicant’s character; his relatively spotless driving record and his usual care and attention in that regard.
20. [20]
    The sentencing judge observed to the applicant that:

“You are a person of strong work ethics and have been working for most of your mature life.  It is an understatement to describe the manner in which you conducted your driving on the 3^rd of April 2023, that that was abhorrent to the way you otherwise were known to have driven such a vehicle.  That experience, though, informs you of the particularly high duty held by drivers of heavy vehicles through traffic.  Such a driver, an experienced driver, needs to approach the task of driving with considerable vigilance.  One of those aspects, of course, being that it is harder to bring such a large vehicle to a stop, and so you must pay more attention to the traffic conditions within which you were driving.”

21. [21]
    The sentencing judge recorded the circumstances of the offending and that there was agreement between the parties concerning the appropriate head sentence, observing:

“The parties submit to me that the more or less comparable yardsticks inform this court that a term of imprisonment of somewhere between two and three years is appropriate.  The prosecutor says that your licence ought be disqualified for a period of 18 months to two years.  Your counsel advocates for a lesser period of time of 12 months so that you can return to your supporting duties with your wife sooner, in transporting her to and from her medical appointments.

The cases inform me that there is a discretion to be exercised as to whether a period of actual custody be imposed.  Your counsel advocates strongly on your behalf that yours is a case in which an actual custodial term is not warranted in the circumstances of your case.”

22. [22]
    The sentencing judge then carefully and unremarkably recorded the circumstances identified in the benchmark authorities to which his attention had been drawn.  He expressed his conclusion in these terms:

“Your case was, however, a case in which your careless conduct was driving at a speed excessive in the circumstances as you approached stationary vehicles with immediate and catastrophic resultant injuries upon [the complainant].

I have considered carefully the submission made before me that denunciation, punishment, and general deterrence can be reflected by a head sentence of a term of imprisonment without actually requiring you to go to jail.  I am cognisant that if you are jailed, you will have to spend some time away from your family who reside primarily in New South Wales.  I am also cognisant that in any term of imprisonment actually being required to be served, you will be taken away from your wife who needs you and needs your support.

I am satisfied in the circumstances of your case, however, that some term of actual imprisonment should be a component of your sentence.  I am minded not to require that component of actual jail time to be as significant as these in other authorities aside that of the authority of R v Danter.

My order is then as follows.  A conviction is recorded.  You are sentenced to imprisonment for a period of two years.  I order that that term of imprisonment be suspended after serving a period of three months’ imprisonment.  You must not commit another offence punishable by imprisonment within a period of two years if you are to avoid being dealt with for the suspended term of imprisonment.  I am going to accede to your counsel’s submission that you are only disqualified from holding or obtaining a licence for a period of 12 months.”

Consideration of the ground of appeal

23. [23]
    The applicant’s argument before this Court accepted, correctly, that the benchmark authorities placed before the Court below and relied on again in this Court well justified the imposition of the 2-year head sentence.  His challenge was solely directed to the custodial component of the sentence.  He submitted that it was the imposition of that component of the sentence which rendered the sentence manifestly excessive.
24. [24]
    The High Court observed in R v Pham:

“Appellate intervention on the ground of manifest excessiveness or inadequacy 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.”^[5]

25. [25]
    In the present case, one could well accept that it would have been within the ambit of a proper exercise of the sentencing discretion for the sentencing judge to have decided to impose a wholly suspended sentence.  But it is an entirely different proposition to submit that failure to take that course was a choice which justified the inference that there must have been some misapplication of principle.
26. [26]
    As the majority of the High Court in Hili v The Queen observed, quoting from what McHugh, Hayne and Callinan JJ had said in Pearce v The Queen:

“‘Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision’. The circumstances of particular crimes and the ‘character, antecedents and conditions’ of particular offenders are so various, the combinations in which they can occur are so numerous, and the relationship between these factors and the purposes which criminal sentences are to serve can be so impalpable, that the application to them of discretionary judgment permitting a range of legitimate outcomes is inevitable.”^[6]

27. [27]
    In our view, the applicant’s argument was untenable.  After having regard to all the relevant circumstances, the sentencing judge explicitly and carefully considered the applicant’s submission that the sentence should be structured so as not to include a custodial component.  He concluded that denunciation, punishment, and general deterrence justified the rejection of that submission.  We cannot conclude his decision to take that course was one which was unreasonable or plainly unjust.  There is no basis to infer misapplication of principle.

Conclusion

28. [28]
    The application for leave to appeal against sentence must be refused.