DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 22 November 2007 the defendant pleaded guilty to dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance, namely alcohol. He also pleaded guilty to the summary offences of driving over the general alcohol limit but under the high alcohol limit and disqualified driving.

2. [2]
   On 23 November 2007 the defendant was sentenced as follows:

• six years imprisonment;
• parole eligibility date fixed after the defendant has served two and a half years, namely on 7 August 2009;
• a pre-sentence custody declaration was made in respect of a period of 288 days from 8 February 2007 to 23 November 2007;
• pursuant to s 187 Penalties and Sentences Act 1992 he was disqualified absolutely from holding or obtaining a driver’s licence.

3. [3]
   In respect of the two summary offences the defendant was convicted but not further punished.

4. [4]
   The defendant makes application pursuant to s 188 Penalties and Sentences Act 1992 for an extension of time within which to reopen the sentence. 

5. [5]
   The defendant contends that he was sentenced on the erroneous basis that the maximum penalty was 14 years imprisonment whereas the applicable maximum was 10 years imprisonment.

Maximum Penalty

6. [6]
   The offence occurred on 9 January 2007. The defendant’s blood alcohol concentration was .147 percent. Accordingly by s 328A(4)(a) Criminal Code the maximum penalty was imprisonment for 10 years.  The maximum penalty of imprisonment for 14 years applied only if the offender was adversely affected by alcohol and was over the high alcohol limit as defined in s 79A Transport Operations (Road Use Management) Act 1995.  At the sentence hearing on 22 November 2007, the Crown Prosecutor incorrectly stated that the maximum penalty was 14 years imprisonment. 

7. [7]
   Section 328A Criminal Code was amended by s 4 Criminal Code and Civil Liability Amendment Act 2007 (Act No. 14 of 2007).  As a result of the amendment the “high alcohol limit” circumstance of aggravation was deleted so the maximum penalty of 14 years imprisonment applied to all cases of dangerous operation of a motor vehicle causing death or grievous bodily harm where the offender is adversely affected by an intoxicating substance.  The amendment came into force on 20 March 2007, a little over two months after the date of this offence.

Reopening Sentence

8. [8]
   Section 188 Penalties and Sentences Act 1992 provides:

9. [9]
   The sentencing Court is required to have regard to the maximum penalty prescribed for the offence.^[1]  Mr Shepherd therefore submits that the sentence imposed was not in accordance with the law and should be reopened pursuant to s 188(1)(a).  Alternatively he submits that the matter is governed by s 188(1)(c) because the sentence was “decided on a clear factual error of substance”.  Mr Byrne for the Crown noted that the maximum penalty was a matter of law rather than fact, or at the very least a mixed question of law and fact.  However he did not submit that this was a basis upon which the sentence should not be reopened.^[2]

10. [10]
    In R v Cassar; ex parte Attorney-General ^[3] the Court of Appeal said:

“[14]  Under s. 188(1)(c), it is the sentencing court which must have made the error, and the error must be ‘clear, factual (and) of substance’.”^[4]

11. [11]
    The misstatement of the maximum penalty by the Crown prosecutor at sentence was not corrected by the solicitor who then appeared for the defendant. I made no reference to maximum penalty in the sentencing remarks. As the sentence imposed does not exceed the available maximum penalty I cannot see that the sentence was “not in accordance with the law” and therefore the matter is not governed by s 188(1)(a).

12. [12]
    In order to engage the operation of s 188(1)(c) it is necessary that the sentence was decided on a clear factual error of substance.  The implicit concession in Mr Byrne’s written submissions that a mistake as to the maximum penalty could constitute such an error is correct.  The fact that the incorrect maximum penalty was not mentioned in the sentencing remarks does not necessarily mean that the sentence was not decided on the erroneous basis. 

13. [13]
    The decision of the Court of the Appeal in R v Dobie ^[5] illustrates that the existence of an error will not of itself result in the imposition of a lower sentence.^[6] 

14. [14]
    Section 188(3) Penalties and Sentences Act 1992 provides:

Relevance of Misstatement of Maximum Penalty

15. [15]
    A misstatement as to the maximum penalty will not necessarily result in the imposition of a lower sentence. For example in R v Stephens ^[7] Jerrard JA said:

“The Crown submitted that in the circumstances a denunciatory sentence was required to deter other potential perpetrators of civil fraud, and that the maximum sentence was 10 years imprisonment. The latter submission overlooked the fact that Mr Stephens had only been convicted of attempted fraud, and the maximum penalty was accordingly five years imprisonment.  There is no particular reason to consider the experienced sentencing judge was misled by the submission into imposing a sentence higher than what the judge would have imposed had the maximum been correctly described as five years.”^[8]

16. [16]
    However, in R v G; ex parte Attorney-General (Qld) ^[9] the sentencing judge wrongly stated that the maximum penalty was five years imprisonment whereas the correct maximum was seven years.  The Court of Appeal held that the sentencing discretion miscarried due to a number of legal and factual errors.  

17. [17]
    In R v RJE ^[10] Brooking JA said:

“The maximum penalty for an offence is ordinarily an important consideration, but it cannot, I think, be the law that a mistake made by a sentencing judge about the maximum will necessarily and in all circumstances vitiate the exercise of the sentencing discretion in relation to that offence where a sentence of imprisonment is passed for it.  It may be possible to characterise the error as immaterial.”^[11]

18. [18]
    In R v Beary ^[12] the Court of Appeal of Victoria affirmed that the question was the materiality of the error in the maximum penalty. 

19. [19]
    In Baxter v The Queen ^[13] the New South Wales Court of Criminal Appeal emphasised the importance of an error as to the maximum penalty.  Kirby J said:

“To be a material error, it is enough that such error may, as a matter of inference, have infected the reasoning of the sentencing judge such that, absent error, some other and lesser sentence may have been imposed.”

20. [20]
    However in R v Tuncbilek,^[14] an appeal against sentence by the Director of Public Prosecutions, the sentencing judge had incorrectly stated that the maximum penalty was 20 years imprisonment whereas the correct maximum was 25 years imprisonment.  Smart AJ, with whom the other members of the Court agreed, doubted whether the error “had other than a negligible impact on the penalty imposed”.^[15]

21. [21]
    Also in Drage v R ^[16] the Court of Criminal Appeal of Western Australia viewed a misstatement as to the maximum penalty as being inconsequential. 

22. [22]
    Mr Shepherd submitted that the question to be decided on an application for reopening pursuant to s 188 Penalties and Sentences Act 1992 was different to the issue on an appeal against sentence.  Mr Shepherd submitted that the questions were:

• Was there an error?
• Does that justify reopening the sentence?
• Does that error cause the Court to impose a different sentence?17

23. [23]
    In my view Mr Shepherd has identified the correct issues. It should be accepted that sentencing proceeded upon the basis stated by the Crown prosecutor that the maximum penalty was 14 years imprisonment whereas the correct maximum was 10 years imprisonment. That is particularly so as the cases relied upon by the Crown at sentence, namely R v McKinnon,^[18] R v Dingle ^[19] and R v Evans ^[20] all carried a maximum penalty of 14 years imprisonment which the Crown prosecutor erroneously said was the same maximum penalty that applied in this case.^[21]

24. [24]
    The defence solicitor at sentence referred to R v Cook; ex parte Attorney-General (Qld) ^[22] a case which also involved a 14 year maximum penalty. 

25. [25]
    The issue is whether having regard to the maximum penalty of 10 years imprisonment a lower sentence than that imposed should be substituted.^[23]  

26. [26]
    It was accepted that if I reached the conclusion that another sentence was not warranted there was no point in extending the time within which to make application to reopen the sentence pursuant to s 188(5) Penalties and Sentences Act 1992. 

Circumstances of the Offence

27. [27]
    On the afternoon of 9 January 2007 the defendant lost control of his motor vehicle on Algester Road, Algester.  The vehicle mounted the median strip and struck and killed a 20 year old pedestrian.  A blood sample taken from the defendant showed a blood alcohol concentration of .147 percent.  A count-back estimated that his blood alcohol concentration at the time of the collision would have been in the region of .173 percent to .215 percent.

28. [28]
    At the time of the offence the defendant was disqualified from holding or obtaining a driver’s licence following his conviction in the Holland Park Magistrates Court on 14 February 2005 for disqualified driving and driving under the influence of liquor.

Antecedents

29. [29]
    The defendant was born on 1 April 1962. He was 44 years of age at the time of the offence. When sentenced on 23 November 2007 the defendant was 45 years of age.

30. [30]
    The defendant has a relevant traffic history. Between 1990 and 2006 he accumulated five speeding offences and two offences of disobeying a red traffic light. However of greater significance are four drink driving offences committed in the period between 16 April 1999 and 23 October 2004. On 1 June 1999 the defendant appeared in the Inala Magistrates Court for unlicensed driving and driving with a prescribed concentration of alcohol of .114 percent. He was fined $600 and disqualified from holding or obtaining a driver’s licence for four months. On 19 February 2003 the defendant appeared in the Inala Magistrates Court for offences of unlicensed driving, failing to fulfil the duties of a driver involved in a crash and driving under the influence of liquor. The defendant’s blood alcohol concentration was .180 percent. All offences were committed on 27 August 2002. According to the defendant’s traffic history he was fined $1,400 for these offences. He was disqualified from holding or obtaining a driver’s licence for 10 months.

31. [31]
    On 15 July 2004 the defendant was convicted of driving with a blood alcohol concentration of .097 percent. He was fined $500 and disqualified from holding or obtaining a driver’s licence for 13 months. He was also placed on probation for nine months. It was a condition of the probation order that the defendant participate in the “Under the Limit” drink driving program. The defendant completed the program but he breached the probation order by committing a further offence of drink driving and disqualified driving on 23 October 2004. The defendant’s blood alcohol concentration on that occasion was .079 percent. The defendant gave the police an incorrect name. He was convicted of the drink driving offence under the incorrect name on 13 December 2004. He was fined $400 and disqualified from holding or obtaining a driver’s licence for three months. The error was subsequently discovered and the defendant was subsequently charged with disqualified driving. The sentence for the drink driving offence was reopened and the defendant was sentenced on 14 February 2005. For the offence of disqualified driving the defendant was fined $1,200 and disqualified from holding or obtaining a driver’s licence for three years. For the offence of driving with a prescribed concentration of alcohol of .079 percent the defendant was fined $1,000 and disqualified from holding or obtaining a driver’s licence for 15 months.

32. [32]
    On 8 April 2005 the defendant was fined $350 for breaching the probation order made on 15 July 2004. The probation order was extended so that it expired on 23 May 2005.

33. [33]
    On 6 November 1986 the defendant was involved in a motor vehicle accident and suffered serious injuries. He sustained a severe closed head injury and major abdominal injuries. The injuries are set out in detail in the report of Dr F Ian Curtis dated 20 November 2007.^[24]  Dr Curtis summarised the medical evidence as follows:

“Essentially the picture conveyed by all of the experts added up to chronic, permanent, physical and cognitive impairment.  The impairments were of such a degree that Mr Bains clinically assessed to be unemployable indefinitely (sic).  He was also incapable of managing his own financial and other affairs without supervision.

Mr Bill Bains was so cognitively impaired with generalised cerebral brain damage and, in particular, Frontal Lobe Syndrome acquired brain damage that he would continue to be mentally slow, grossly inefficient in memory functioning and incapable of executive decision-making.  He would remain deficient in forward planning and judgment.  He required continuing family and professional protective supervision.”^[25]

34. [34]
    The defendant was examined by Dr Curtis on 13 July 2007. In his report dated 20 November 2007 Dr Curtis said that the defendant’s mental state remained unchanged since 1992.  The defendant also had memory deficits.  Dr Curtis said that the defendant still had features of residual left hemiparesis.  He found that the defendant complained of bi-frontal headaches aggravated by normal life stressors.^[26]

Approach to Sentence

35. [35]
    At the sentence hearing on 22 November 2007 Mr Byrne submitted that the appropriate range was six to seven years imprisonment.^[27]  The solicitor for the defendant accepted that the range was between four and seven years imprisonment.^[28]  However the solicitor for the defendant submitted that having regard to the particular circumstances of this case the appropriate head sentence was four to five years imprisonment with the defendant to be released after serving nine months.^[29]

36. [36]
    I accepted that the decisions of the Court of Appeal to which I was referred supported a sentencing range of five to seven years imprisonment. However as I have mentioned those decisions involved cases where the applicable maximum penalty was 14 years imprisonment.

37. [37]
    I did not accept the opinion expressed by Dr Curtis that the defendant’s brain damage “contributed, causally, … to the commission of the subject offending in all of its manifestations and consequences.”^[30]  I reached the conclusion that had it not been for the defendant’s acquired brain injury I would have imposed a sentence of seven years imprisonment and fixed a parole eligibility date after he had served three years.  However I concluded that the defendant’s acquired brain injury resulted in imprisonment being more difficult for him than other members of the general prison population.  Accordingly I imposed a sentence of six years imprisonment with a parole eligibility date after the defendant had served two and a half years.

Submissions of the Parties

38. [38]
    Mr Shepherd relied particularly on the decisions of the Court of Appeal in R v Hoad^[31] and R v Armstrong^[32].  In Hoad the applicant aged 24 years at the time of the offence was convicted of dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance.  An analysis of the applicant’s blood revealed the present of amphetamine, methylamphetamine and MDMA.  She was sentenced to five years imprisonment suspended after she had served 18 months for an operational period of five years.  The Court of Appeal held that the sentencing judge had not given sufficient weight to the applicant’s mitigating personal circumstances and ordered that the sentence of five years imprisonment be suspended after the applicant had served nine months.

39. [39]
    In Armstrong the applicant pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance.  He was sentenced to five years imprisonment suspended after two years two months.  The applicant was 28 at the time of the offence.  He had a relevant criminal and traffic history that included grievous bodily harm, unlicensed driving and driving with a prescribed concentration of alcohol.  The applicant’s blood alcohol concentration at the time of the dangerous operation of a motor vehicle was .141 percent.  Interestingly it appears that the sentencing judge incorrectly noted that the maximum penalty was 14 years imprisonment.^[33]  The Court of Appeal varied the five year sentence by ordering that it be suspended after 20 months for an operational period of five years.

40. [40]
    Mr Shepherd accepted that the appropriate range was five to six years imprisonment.^[34]  He submitted that the sentence should be five years imprisonment with a parole eligibility date or suspension after a period of 18 months to two years.^[35]

41. [41]
    Mr Byrne referred to the decisions of the Court of Appeal in R v Balic ^[36] and R v Sheedy; ex-parte A-G (Qld).^[37]  In Balic the applicant was convicted of dangerous operation of motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance.  He was convicted following a trial and sentenced to seven years imprisonment.  An analysis of the applicant’s blood showed the presence of amphetamine and methylamphetamine.  He had a significant criminal and traffic history.  The Court of Appeal allowed the application for leave to appeal against sentence and substituted a sentence of five and a half years imprisonment. 

42. [42]
    In Sheedy the respondent pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance namely cannabis sativa.  He was sentenced to five and a half years imprisonment with a recommendation for parole after serving 18 months.  The respondent was 25 years old at the time of the offence.  He had a criminal and traffic history.  The Court of Appeal regarded the five and half year sentence of imprisonment as falling at the “very lower end of the sentencing range.”^[38]  The court held that the addition of a recommendation for parole after just 18 months to “an already lenient five and half year head sentence” resulted in the overall sentence being manifestly inadequate.  Accordingly the court allowed the appeal by the Attorney-General and varied the sentence by recommending parole after 22 months rather than 18 months.

43. [43]
    Mr Byrne submitted that “the sentence imposed is a just overall result notwithstanding the error which was introduced into the sentence proceedings.”^[39]

Conclusion

44. [44]
    The maximum penalty for an offence is an important factor. The court is required to have regard to it.^[40]  In Markarian v The Queen ^[41] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”^[42]

45. [45]
    The maximum penalty is not necessarily the dominant consideration.^[43]

46. [46]
    If, having regard to the maximum of 10 years imprisonment, the notional starting point (seven years imprisonment with a parole eligibility date after three years) or the actual sentence is inappropriate, the sentence should be adjusted.

47. [47]
    This is a serious case of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol. In R v Balic ^[44] a case of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance, Williams JA said:

“Further, although the maximum penalty is the same, the fact that death results from the driving usually demands the imposition of a higher penalty than that imposed where the consequence is grievous bodily harm.”^[45]

48. [48]
    In R v Saltmarsh ^[46] de Jersey CJ with whom Williams and Keane JJA agreed said:

“…sentencing judges should in these cases be accorded appropriate latitude.  While an appellate court usefully provides indicative ranges, they must be flexible enough to accommodate varying factual situations and never be presented or approached as if prescriptive.”^[47]

49. [49]
    In R v Wilde; ex parte A-G (Qld)^[48] the Court of Appeal said:

“The variety of circumstances confronting sentencing courts in cases like this means it can be especially difficult to translate the result in one case to another.  What is abundantly clear is that the community expects, and rightly expects, appropriately deterrent penalties, and they were not achieved here.”^[49]

50. [50]
    The serious features of the present case include:

● The death of a young pedestrian;

● The defendant’s blood alcohol concentration of .147percent, which is close to the high alcohol limit.  It is not relevant from the point of view of the applicable maximum penalty that a count-back estimated that the defendant’s blood alcohol concentration at the time of the collision would have been in the region of .173 percent to .215 percent;

● The defendant’s traffic history.

51. [51]
    In R v Hey; ex parte A-G ^[50] the respondent pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol.  He was sentenced to six and half years imprisonment with a recommendation for post prison community based release after two and half years.  The applicable maximum penalty was, as here, 10 years imprisonment.  The respondent was 28 years old at the time of the offence.  He had a traffic history that included five offences of driving under the influence of liquor and three offences of disqualified driving.  He was disqualified from holding or obtaining a driver’s licence at the time of the offence.  The respondent’s blood alcohol concentration was .061 percent.  The respondent sustained serious injuries in the collision.  By majority (McMurdo P, Keane JA; Chesterman J dissenting) the appeal against sentence by the Attorney General was dismissed.  McMurdo P noted that the defendant co-operated with the police, pleaded guilty and demonstrated remorse.  Her Honour said:

“These combined circumstances support the head sentence of six and a half years imprisonment with a recommendation for eligibility for release after two and a half years, slightly earlier than the statutory half way point, to reflect the mitigating factors.  The sentence imposed was not outside a sound exercise of the sentencing discretion.”^[51]

52. [52]
    Bearing in mind the difficulties in making comparisons between different cases I am satisfied that the sentence in Hey supports the notional starting point in the present matter and the actual sentenced imposed.  Accordingly I have concluded that the sentence imposed on 23 November 2007 should not be varied.

Order

53. [53]
    It is appropriate to extend the time within which to reopen the sentence. However, as I have reached the conclusion that the same sentence is appropriate the application should be dismissed.