The Queen v Barrett[2009] QDC 22

DISTRICT COURT OF QUEENSLAND

Introduction

1. Leo David Barrett, you have pleaded guilty to dangerous operation of a motor vehicle causing the death of Aquina Marks.  A collision occurred between your vehicle and her vehicle on the Warrego Highway, near Charlton, outside Toowoomba on Sunday 20 May 2007.  Your vehicle veered onto the incorrect side of the road whilst travelling in a westerly direction.  There was a clear view in each direction of several hundred metres. The deceased’s vehicle was travelling east towards Toowoomba. It would have been visible as it is likely that its lights would have been on.   It is clear from the debris that your vehicle was substantially on the incorrect side of the road.^[1] The gouge and oil marks as reported by Constable West support that finding.^[2] The speed limit on that part of the highway was 100 kph. You cannot remember the accident although there is no medical evidence which would explain that any injury suffered would have caused you not to remember the accident. It is necessary to look at your movements prior to this event to try to piece together what occurred.

2. This is a contested sentence.  The latter is related to evidence given by two persons, Mr Brian Edward Minchell and Timothy Lloyd Minchell.  They drove past Zimm’s Corner which is the turnoff to Kingsthorpe at 5.33 am. That corner is about 6.9 kilometres from the accident site or four minutes if one keeps to the speed limits which is what the Minchell’s car was doing.^[3] It was dark and the headlights of their vehicle were on^[4]. Traffic was light both ways and the road surface was dry. They were heading in an easterly direction.  There were two or three cars behind them.  A short time after passing the BP Garage at Carlton, Timothy Minchell observed a car heading west which came onto the wrong side of the road and was half into his lane. He got off the road to avoid the car. He did not observe any vehicles behind him. The prosecution allege that this vehicle on the incorrect side was that being driven by the defendant. Timothy Minchell recalled the incident  to a friend  later who said that  a friend of his in the red car was involved in an accident at Charlton. Mr Brian Minchell had independently recalled that the car heading west on the incorrect side of the road was red.  He confirmed that his son had to swerve to avoid it.  He stated that they had left home at 5.20 am and had looked at the car clock at Zimm’s Corner and it showed 5.33 am. The driver of the red car did not take evasive action according to Mr Brian Minchell.  Timothy Minchell stated that they had left his home at Oakey at 5.25 am.  They had intended to get petrol at Zimm’s Corner but it was closed.  That might explain why they both looked at the clock.

3. There was other evidence found in the defendant’s vehicle:

1. A receipt from a Jeffrey’s Motel dated 18 May 2007 with an Eftpos transaction receipt being completed at 16.01 on 18 May obviously in the afternoon of Friday.^[5]

2. An Eftpos receipt for petrol from the Seven Eleven petrol station at James Street, Toowoomba dated Sunday 20 May 2007 at 5.33 am, a short time before the accident.^[6] 
3. A video which showed the defendant at the petrol station from 5:33am.^[7]

4. Other distances and times based upon the relevant speed limit recorded the following:

1. From the James Street Seven Eleven petrol station: 10 klm and 9 mins.

2. From where the Minchell’s encountered the red vehicle to the accident: .7 klm and 27 secs.

If one accepts the time in paragraph 4(a) above then the assuming he left the Seven Eleven by 5.35 am, that is, soon after being served, the defendant would have arrived at the accident position by say 5:44 am or thereabouts which is getting close to the estimated time that Constable Robertson saw the dust from the accident scene.  However, it makes it difficult to reconcile the evidence of the Minchell’s if the clock on their vehicle was correct.  They passed the red car at about 5.37 am.  The accident, on their version, would have occurred within a minute after that, if that was the car involved in the collision with the deceased.  There was no evidence that the clock on the car driven by Timothy Minchell was wrong.

5. In order to determine the facts on a sentence, one must be satisfied on the balance of probabilities. In the present case, it is difficult to reconcile the evidence of the Minchell’s and that of Constable Robertson and the documentary evidence in order to be satisfied that the red car seen by the Minchell’s and the red car of the defendant was the same car.  Therefore, the defendant is to be sentenced on the basis that he allowed his car to go substantially onto the incorrect side of the road just prior to the collision.  It was a straight stretch of road.  There were no skid marks or braking relevant to the defendant’s car prior to the collision.  It is open to infer that he fell asleep or was completely distracted during the crucial period as the deceased’s car approached.  The latter is unlikely as he could not recall what happened immediately prior to the accident. There is no medical reason for the lack of recall.

Movements of defendant prior to accident

5. The defendant had attended a show in Brisbane on the Saturday night. His counsel says that he got a lift to Toowoomba with a mate and that he slept during that trip. He had left his car at his sister’s place at Toowoomba. Apart from the one hour’s sleep, there was no evidence called or referred to as to  what sleep the defendant had within the 24 hours prior to the accident. There was some evidence that he had a .05 alcohol reading. He may have had some drinks the night before but the prosecution withdrew that as a circumstance of aggravation. The defendant had driven from the Roma District on the Friday and was returning on the Sunday morning.  One can infer that the defendant had not had sufficient sleep in the previous 24 hours and that his conduct was therefore reckless in attempting to drive such a distance given his activities in that period.

6. It was submitted that this was a case of momentary inattention.  That is not accepted.  If a driver is sleep deprived, it is dangerous to continue.  There are signs on the highway which refer to the need to rest.  It is common knowledge that lack of sleep affects the ability to react and to drive responsibly.^[8]  In the present case, the defendant failed to exercise that degree of responsibility expected of drivers.  It is not a case of momentary inattention.

Personal details

7. The defendant was born on 30 October 1987. He was 19 years of age at the date of the accident. His criminal history consisted of one count of creating a disturbance on licensed premises. That occurred on 8 December 2007, after the subject accident. His traffic history consisted of exceeding a 100 kph speed limit by more than 30 kph. That occurred on 23 April 2006.  There are references from people who know the defendant both professionally, socially and in sporting activities.^[9] He is considered an outstanding member of the local community. His integrity and friendship are valued by all. He had worked in the meatworks and in the last two and a half years test drilling.  He has been in a relationship with his partner for 20 months which is about the same period since this accident occurred.

8. However in cases of this nature, there must be a general as well as a personal deterrent.  Some of the referees say that the defendant has learned his lesson.  It cannot be over emphasised that driving long distances with minimum sleep is a dangerous activity. What occurred in the present case was highly predictable.  The prosecution submitted that this was not a case of momentary inattention and referred to the decisions.  R v Gallaher^[10] and R v Hart^[11].  R v Gruenert ex parte A-G^[12] was also referred to. In Gruenert, Keane JA after referring to various decisions of the Court of Appeal made the following observations:

1. (a)
   a head sentence of 18 months imprisonment is at the bottom end of the range;
2. (b)
   the considerations of deterrence, and of the gravity of the consequences involved in the offence, mean that it will be a rare case that does not attract a custodial term;
3. (c)
   the imposition of a custodial sentence is not, however inevitable in every case; and
4. (d)
   cases of “momentary inattention” are among rare cases of dangerous driving which may attract a non-custodial sentence because, in such cases, the claims of the consideration are less compelling.

The reasons of Keane JA were referred to in R v Proesser^[13]  with approval^[14]               Some of the remarks in R v Hart^[15] are relevant here.^[16] There was no               explanation given by Hart as to why he did not see the motorcycle               approaching; to move into the intersection as he did involved serious fault on               the defendant's part. Greater vigilance was necessary. Even if a case does               involve momentary inattention, a fully suspended sentence is not obligatory.^[17]

9. Another factor to be taken into account in the present case is the victim impact statement.^[18] The statement was provided by Anna-Marie Marks, the daughter of the deceased.  The loss of her mother and the grandmother of her daughter who was 11 years at the time has been catastrophic. As they live near the scene of the accident, they are reminded daily of the tragedy. Their suffering will continue. It was only through a change in plans that the granddaughter was not in the car at the time of the accident. This has added to the anguish of the family. It was a close knit family. The defendant had read the victim impact statement prior to sentencing. The defendant’s counsel did not elaborate on the defendant’s movements when invited to do so. He was content to rely on the prosecution case. The reference to the defendant sleeping in a friend’s car between Brisbane and Toowoomba was elicited in discussion.^[19]

10. In this case a death has occurred.  The provisions of s 9(3) of the Penalties and Sentences Act 1992 exclude this type of case from the principle that a term of imprisonment is a last resort as provided for in s 9(2).  

Orders

1. Conviction recorded.
2. 18 months imprisonment suspended after three months with an operational period of two years.
3. It is declared that the period from 6 February to 13 February 2009 viz 7 days be deemed to be part of the term of imprisonment.
4. The defendant is disqualified from holding or obtaining a drivers licence for a period of two years.