R v Gibson[2009] QDC 405

DISTRICT COURT OF QUEENSLAND

COUNSEL: Ms A Loode for the Crown

 Mr F Martin for the Defendant 

SOLICITORS: Director of Public Prosecutions

 Shannon Donaldson Province Lawyers

1. HIS HONOUR:  Stand up please, Mr Gibson.  Mr Gibson, you pleaded guilty here today to a single count of dangerous driving, or as it is called, in fact, in the offence: dangerous operation of a vehicle causing the death of Mrs Yvonne Marie Hunt, and it is alleged that at the time you were adversely affected by an intoxicating substance.
2. The circumstances are set out in Exhibit 3.  Without going through that in its painful detail, and to summarise very briefly:  You had been to a rodeo the evening before.  You had consumed a large quantity of alcohol there.  You were consuming further alcohol as you were driving back from that social function.  At an uncertain time, but definitely before 10.23 a.m. on the 12th of October 2008 on the Bulloo Development Road, you lost control of your vehicle, a Toyota Landcruiser utility.  You were driving alone, although you had a friend driving in front of you in tandem.  You veered onto the left-hand gravel. 
3. A photocopy of the photograph of the road has been placed in front of me, and it is a bitumen single-lane road with no markings.  The appropriate response, as I am told, for drivers on that road is for each to get off onto the gravel verge as they approach each other, which has always been my understanding of the appropriate country drivers' courtesy.  It would seem that perhaps that was what you were doing, although you do not seem to have much recollection of exactly how it happened. 
4. Having gone off to the left, you then lost control of the vehicle and it veered right across the bitumen into the gravel on the right-hand side.  Mr Hunt, who was the driver of the vehicle in which the deceased, Mrs Yvonne Hunt, was a passenger, then took what was logical and rational evasive action.  He veered to the right - in other words "to his wrong side" - but then, for reasons which again are just utterly inexplicable, as you came out of the drain on the right-hand side you veered back towards him and collided directly with his car.
5. That clearly illustrates, of course, your inability even at a speed of driving which would seem to be not excessive in the circumstances, and is estimated certainly at less than the 100 ks per hour by Mr Hunt, that you lost control, completely, of your car and effectively gave Mr Hunt nowhere to go when you came steering across at him as he was trying to take evasive action.
6. The collision occurred.  Mrs Yvonne Hunt was seriously injured.  To your enormous credit - and this is acknowledged by Mr Hunt in his addendum victim impact statement - you provided significant physical and vocal support to Mrs Hunt as she was trapped.  She had to have her head held up to assist her in breathing before the ambulance got there, and that was physical work that was rotated between Mr Hunt, his friends, and for that matter you, and your immediate assistance at that stage is gratefully acknowledged by Mr Hunt.  However, sadly, Mrs Hunt's injuries proved to be fatal.  She died five minutes after she arrived at hospital. 
7. Mr Hunt suffered relatively minor injuries, although his victim impact statement indicates that the effects of those have stayed with him for a significant period.  He suffered a sore and swollen right knee, a sore and swollen left elbow, and sore left ribs.  You yourself suffered some grazing to the head.
8. You were travelling in tandem with a Mr Jungmann and he realised relatively quickly that he had lost contact with you behind him.  He heard some information from a truck driver and returned to the scene of this collision and assisted there as well as driving you back to Thargomindah at the request of the police.
9. The matter proceeded through a hand-up committal in which there was cross-examination, primarily of police witnesses, an ambulance witness, and your friend, Mr Jungmann.  There was not, importantly, any cross-examination of Mr Hunt or his friends and so the living victims, if I can use that term, of the collision were not otherwise further traumatised by the Court process.  Obviously, if that had been necessary for forensic purposes, your lawyers could not be criticised for it.  Conversely, given that they decided it was clearly not necessary, then the fact that no further stress was placed on Mr Hunt, directly or indirectly, is to your credit.  You entered a plea of guilty at the conclusion of the committal, and you have confirmed that plea of guilty when arraigned and then called upon by my associate today.
10. The matters which have occurred after this collision - and you will note that I very carefully and appropriately avoid using the word "accident", because this was not an accident:  This was preventable.  This was never an accident.  It was a collision, and it was a collision which occurred solely as a result of your driving - or inability to drive properly - and, of course, that inability to drive properly was clearly directly related to the amount of alcohol you had consumed. 
11. A "count back" in respect of that reveals that your blood alcohol concentration at the time of the collision, with some imprecision, as apparently was conceded at committal, was around 0.19%.  That is almost four times the acceptable limit. 
12. You, of course, were someone who clearly knew more than the average person about the drink driving laws, because you had some 15 months previously been convicted of what is now called a  general level - what used to be called a minor level - drink drive, and that occurred on the 8th of July 2007,  a reading of .098%.  You were sentenced on the 27th of July and you lost your licence for three months.  It is tragic that the deterrent effect of that appears, at that stage, not to have sunk in, although I will have some words to say about the deterrent effect of this tragic collision.
13. You had not only consumed alcohol at the rodeo where, in your own words in the interview which has been played by the DPP, you binge drank to catch up, if I understand your words correctly, with no doubt the other drinkers who were then before you, but you also the next day while driving stopped on two occasions and consumed three full-strength beers whilst stopping.  So it is clear to me that you started driving seriously affected by alcohol, and the collision which finished your driving saw you even more seriously affected by alcohol and of course, as is well-known, therefore with a dramatically reduced capability of properly controlling your vehicle when, as happened, you lost control in the table drain.
14. The trip back to Thargomindah with your friend, Mr Jungmann, saw you immediately expressing to him your remorse for what had happened and your shock about what had happened.  As I say, repeatedly of course when sentencing typically young men, sadly, but anyone in respect of dangerous operation causing death, the one thing that you cannot do and the one thing that I cannot do is to bring back the life of the person who has died.  All of the remorse in the world cannot achieve that, which ultimately the family of anyone who dies in an accident would want, which is to have the return of their loved one.
15. Now, the collision having occurred, there is no doubt that you had an immediate and, dare I say it, entirely appropriate response, in that your remorse was immediate and palpable.  You suffered an immediate and significant physical reaction.  You lost 10 kilograms in the first week.  You have lost 40 kilograms in total.  You have given up drinking completely and there are referees who attest to your ongoing abstinence.  That, I might say, strikes me as being an entirely appropriate step.  I can never understand how somebody, who, having caused death or serious injury because of alcohol, could then possibly continue to drink at all, but sadly, my inability to understand that just reflects the reality that most people, other than you, to your credit, do not seem to be able to stop themselves drinking even when their drinking has been directly, causally, linked to serious injury or death of others.
16. You have taken, of course, one further very important step, and that too, interestingly enough, reflects a request that I make repeatedly of defendants whom I sentence for dangerous driving causing death.  At the end of my sentencing remarks, it is almost always my practice to say to them, as one human being to another, that if, on their release from prison and it inevitably is a release from prison; if they can, in some small way, whether formally or informally, educate other members of the community about the dangers of driving motor vehicles dangerously and, in particular of course as in your case, driving dangerously while affected by alcohol, then those people will, in some small way, perhaps contribute to reducing the utterly unnecessary loss of life that occurs on our roads because of the failure of people to comply with their obligations to drive safely and to drive without being affected by alcohol or drugs.
17. As I said, you, to your credit, have done far more than I have asked of any defendant, and you have done it far earlier than any defendant that I have ever spoken to has done anything and, of course, as I tell them, I will never know whether they have done anything.  In your case I do know that you have done something, and it is clear to me that what you have done, in addition to the material already produced by the organisation your solicitors have set up, is a powerful educational tool to assist others, particularly young men, because sadly it seems to be young men who are most susceptible to that combination of testosterone and alcohol-induced invincibility, and it might just induce at least some of them to change their behaviour, and if, in some small way, your actions prevent one death, then the universe will be grateful. If it prevents 10 deaths, it will be extraordinarily grateful, and anything more than that would be truly a gift. 
18. You will have achieved three effects.  You will have contributed in a small way to the healing of Mr Hunt and his family, and I have read both his and his daughter's victim impact statements, and I understand, as best as any human being can, the depth of their despair and their sorrow.  You will have contributed, I hope, to other families not going through that similar despair and sorrow at the loss of a loved one.  You will, of course, have contributed to your own healing, and that too is extraordinarily important.
19. It is clear from the material placed before me by Mr Martin who has, might I say, comprehensively placed all that could possibly be put before me: the school records which speak highly of you; your tertiary education records which also speak highly of you, your involvement in community charity work; your extraordinarily hard work as a part of your family business in the pastoral industry; the references which speak in glowing terms of your contribution as a family member, as a worker, and as a friend; and all of those things indicate that other than your very minor criminal history, and perhaps somewhat more concerning traffic history, you are otherwise a young man of excellent character who, were it not for this awful episode in your life, no doubt would have continued perhaps still drinking and driving which is, I accept, the one thing that has dramatically and drastically changed in your life, but would otherwise have continued to contribute very positively in your community and to the pastoral industry in this area of Queensland. 
20. So I acknowledge a level of rehabilitation which is manifestly above and beyond what is normally identified by counsel to these Courts.  The value of that is, of course, attested to by various persons including Dr Joe Barkler who has provided a very helpful presentence report.  The remorse, as I have identified, was immediate, palpable, recognized by Mr Hunt in his addendum victim impact statement, confirmed by Dr Joe Barkler, and confirmed by a range of other referees who have clearly spent time discussing these awful events with you and reflect their assessment of your response in the references. 
21. Ultimately, the task of the sentencing Judge in these circumstances is an extraordinarily difficult one.  I described it as a melancholy duty because it is.  Nothing I can do, in reality, can ever set things right, but I do have a task to undertake, and I have to send some very clear messages to various target audiences, and I have to balance various sentencing principles, some of which, in a sense, are in conflict with each other, but ultimately need to be balanced as the Penalties and Sentences Act requires me to do.
22. The comparatives placed before me by Ms Loode, whom has also on behalf of the prosecution been comprehensive and appropriate in her submissions, are the decisions of McKinnon [1999] QCA 75; Evans [2005] QCA 455; and Hey; ex parte the Attorney-General [2006] QCA 23.  They ultimately support, she submits, a range in the order of six to seven years, and her submission is for a parole eligibility date at one-third.
23. The decisions placed before me by your counsel, Mr Martin, include Hart, which has been placed before me for its issues of principle rather than direct comparative assistance; Callaghan [2006] QCA 243; Dingle [2003] QCA 7, and he has made also reference to decisions in Lennon and commented on the decision in McKinnon.  He also referred me to the decision in evidence in seeking to distinguish it.  He referred me also to the principle in Horne [2005] QCA 218, stressing the importance of rehabilitation as well as the principle of general deterrence and submits, in essence, that as the sentencing Judge I should not lose sight of the importance of balancing rehabilitation with general deterrence.
24. The issues, it seems to me, are these: general deterrence requires a message to the community as a whole about the consequences of drinking and driving where that results in the dangerous operation of a vehicle and in this case the needless death of another human being in a collision; specific deterrence, and although you have clearly demonstrated your rehabilitation, your abstinence from alcohol is important.  Your contribution by way of participation in the interview with the promotional material for young people is important.  There still needs to be an element of specific deterrence, because this is the second time that you have been charged with a motor vehicle offence that involves alcohol in a period of 15 months.  There is, of course, the importance of rehabilitation and I have indicated very clearly the value that I place on it and the important steps that you have taken.  Your remorse, as I have indicated, is palpable and was immediate. 
25. Ultimately, of course, there must be a sentence imposed which is proportionate to the seriousness of the offence, which recognizes the seriousness of the offence, but balances those other very important sentencing considerations.  There must also be denunciation, in other words, a clear indication to the community as a whole of the unacceptability of your conduct, and it is your conduct personally, on that particular day, which led to this awful result.
26. I have thought carefully and struggled as a sentencing Judge with an appropriate sentence.  These sentences, in my view, are some of the most difficult sentences that any sentencing Judge deals with.  Not infrequently the person standing before me is a person of otherwise excellent character, sometimes with a few flaws, but often not many.  They are very rarely, if ever, someone who has ever gone to gaol before, and they typically involve young men, and you are a little older than some but you are in the age range. 
27. On the other hand, a human life has been utterly unnecessarily lost, and ultimately there must be an appropriate penalty which recognizes that, particularly when the loss of a life is directly connected to a high blood alcohol concentration, and we know that that logical connection which escapes many others, but which you are hopefully going to contribute to educating, between a high blood alcohol concentration, an inability to properly manoeuvre a motor vehicle, and then the death or serious injury of someone as a result, is an absolutely predictable and a completely avoidable consequence.  I have to balance all of those things as well as the other matters that I have outlined.
28. Doing my best to balance all of those matters and acknowledging, perhaps a little unusually, that this is a matter where the views of Mr Hunt are remarkably non-punitive, but ultimately, of course, cannot be determinative because the views of any victim, primary or secondary, in the criminal justice system, although extraordinarily relevant, are still not determinative.  It seems to me that a sentence which balances all of those factors and provides a mixture of punishment, mercy, justice and hope is a sentence of five years' imprisonment.  That will be suspended once you have served a period of 15 months in custody. 
29. To explain that to you, very simply, there will be an operational period of five years, your head sentence is five years, if you commit any offence punishable by imprisonment in the next five years, and that is applicable in a practical sense after you are released in 15 months time, you will be brought back to this Court and called upon to show cause why you should not serve the whole or the balance of your sentence which is a period of three years and nine months.
30. There is a disqualification period of five years.  That disqualifies you from holding or obtaining a driver's licence in Queensland for that period of five years.  Interstate recognition means that that applies anywhere in Australia in a practical sense.  And, again, one of the most likely areas where particularly, with someone working in the country, you are at risk is driving a motor vehicle while disqualified.  If you do that, I would have thought, without pre-judging the matter, that that would be a direct trip back to gaol, because it would be hard to think of anything that would be more likely to persuade a sentencing judge on breach of a suspended sentence to place you back in custody.
31. The five year disqualification period still has a proviso under legislation that an application can be made at some stage after two years, and that is no doubt a matter that your counsel and solicitors can advise you about.  I should say though that I have formed the view that the five year disqualification period is set advisedly, so that is again a matter that someone may have to look at in the future, or may not, depending on whether you choose to make an application.
32. In the meantime, until and unless your disqualification has expired, and you have been reissued a licence, you do not drive a vehicle on any public road.  I understand the complication that that brings with it.  I am a farm boy.  I know exactly how easy it can be to be tempted to drive on a public road one kilometre down between two paddocks, but it does not matter.  You are disqualified, you remain disqualified, and you have to adjust your pattern of behaviour once you are released from custody to reflect that disqualification, and under no circumstances drive any vehicle of any sort on a public road until your disqualification has either been lifted by Court order, or expired by the five years, and you have your licence back.  It is a very simple proposition.
33. I commend you again for what you have done with the DVD.  I said, and I mean it very sincerely, I say at the end of the sentence like this as one human being to another, to primarily young men but young people in the dock, and I ask them personally.  I hope that they do something, but I do not know because they walk out, typically into gaol, and whether they ignore my request or not is just a matter - I have got no way of knowing.  In your case, as I have said, I do know, and I have no doubt having seen it now for a second time that it will make an important contribution because it is a real person telling a real story.  It is not an actor.  It is not a fake emotion or a fake story.  It is a real story.  It is a real loss of life, and I hope that it makes a real difference.