R v Kohler[2010] QDC 502

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  Mr Kohler, you were found guilty last night, after a three-day trial, of a single count of dangerous driving causing death. 

The circumstances of the offence we listened to through various witnesses over a period of three days.  The jury, by their verdict, accepted that, as you came over that slight rise on Stapylton-Jacobs Well Road and were confronted with a line of queuing traffic, you must have been inattentive for a period, which effectively meant that, when you did put on the brakes and they locked up, it was too late to avoid the catastrophic outcome which did in fact occur.

The evidence of Mr Cooper was that he moved his car out of the way beside the line of traffic.  Mr Harmer gave evidence that his vehicle was missed by four inches or 100 mm and, as we know, your vehicle slowed down at the point immediately behind Mr Harmer's car, collided with Mr McKendrick, who was riding a motorcycle, and I have to say, if it were within my power, I think I'd ban motorcycles, but that is something that is also beyond my power, but he was riding a motorcycle.  The evidence is that he was riding it entirely safely.  He, of course, was wearing a helmet and he was literally, at that very point in time, left with nowhere to go.  There were no skid marks.  There is nothing to indicate that he had any opportunity to recover from the catastrophe that confronted him.

I accept that you showed immediate remorse at the roadside.  That indicates to me very clearly, as does something else quite extraordinary, that you have the deepest possible appreciation of the dreadful consequences of your short period of inattention.  You have not driven a heavy vehicle, I'm told, since the collision, nor is there any prospect that you will in the future.

When I say that your remorse is deep, immediate and appropriate but continues to the present, I reflect, of course, what I consider to be the extraordinarily important and no doubt very emotional process that occurred this morning, when you met with Cameron McKendrick's family and apologised personally to them.  The important thing about apologies is this: apologies, as best as possible, are an opportunity for healing, in this case for the family of Mr McKendrick, but they are, in an extraordinarily important way, a possibility of healing for you and for your family, because more than most other similar offences that come before this Court, this incident - and it's an old cliché but it absolutely reflects the situation - a pebble in the pond, which is the death of Mr McKendrick, has sent its ripples far and wide.  It has been a tragedy for Mr McKendrick's then brand-new wife, for his parents, siblings, and for a large number of other people who obviously knew him, loved him, appreciated his abilities and, in some way, were touched by his quite extraordinary life.  Those same ripples on that same pond have, of course, affected you and your family deeply. 

You have, and this is totally unsurprising, suffered a serious psychiatric illness as a result of what occurred.  The prognosis in respect of that serious psychiatric illness is poor.  You have received, it seems to me, the absolute best psychiatric treatment, both in terms of psychotherapy, counselling and medication that is currently available to the science of psychiatry, and yet the improvement noted by your treating psychiatrist has been relatively modest.  Your treatment has included a period of hospitalisation.  You continue to receive treatment as an outpatient, and the effects on you and of course consequently on your family, your wife and child and others, no doubt will continue, because the loss of any human life, the needless loss of any human life, is a tragedy which impacts on all of us.  It diminishes all of us, but particularly for those closest, the family of the deceased, you and the family, you as the person causing the loss, and your family are all most affected and most diminished by this needless loss of life.  I say "needless" because, at the end of the day, those of us who drive on the roads in this State, whether we realise it or not, are all participants in a huge social contract. 

We don't realise this when we sign the deal for our licence, but we are all undertaking to drive, not only in accordance with the law, but to ensure that we avoid property damage, injury and death to others, as we would ask they do to us.  You may or may not be a Christian, but the Bible, as always, provides some wise advice:  do unto others as you would have them do unto you, and, when we drive on the roads, others are entitled to expect that we will drive with the greatest of care, not only for our own safety - and that's important of course - but for the safety of all others, and it is what all others are entitled to expect of us.

I accept the categorisation of your driving on this day as not momentary inattention.  It is something more than that.  Mr Power, the Prosecutor, urges on me that it was a period of about five seconds.  There are, I believe, some issues potentially with that.  Whether it was as much as five seconds is, I think, an issue that the jury struggled with, and it was certainly no surprise to me that the jury themselves appeared visibly distressed when they came back with a verdict last night, but having said that, it is a level of inattention that is above momentary, and seems to me most appropriately classified as a short period of inattention.

Now, there are other significant factors.  You were driving, you estimate - and this has never been disputed - at a speed between 70 and 75 kilometres per hour.  That is a speed in excess of the current speed limit on that road, but was less, and well less, than the then applicable speed limit, on the 30th of July 2007, of 80 kilometres per hour.  It is clear from the evidence of the police officer investigating this matter that in some way, he played a role in a chain of command, if I can put it that way, that resulted in the speed limit being reduced to 60 kilometres per hour.  The bank-up of the traffic was unusual, but not something that was unknown, and it seems clear to me that the speed limit then applicable played some factor in your vehicle coming over that blind crest at a speed which is 10 to 15 kilometres per hour over the current speed limit and perhaps - and these are the "perhaps" which can't bring back anything, but it may avoid some future injury or death - perhaps, had the lower speed limit been applicable, this would not have occurred.  Certainly it's obvious that you had complied with the speed limit as it then was, and no doubt would have if it had been changed.

The material placed before the Court indicates to me that you have no criminal history.  You have a traffic history which has a couple of speeding matters on it, none of them particularly serious, and a driving without due care and attention which did involve a motorcycle.  That is of some concern, but the fine imposed of $200 indicates that it was a relatively minor matter.  You also lost three demerit points.

Mr Wilson, your counsel, has outlined, in careful detail, your personal history.  Not only is your character reflected by the lack of criminal history, but you have - apart for some four years when you were ill with a lung problem which was sustained from your then employment - worked consistently your entire adult life up to this incident.  The incident occurred when you were 57.  You are now 60.  The likelihood of you being able to return to any form of paid employment seems to me to be not particularly good, having read the report of Professor Morris, but there is at least some prospect that you may be able to return to some form of employment.

You are someone who has therefore, throughout your lengthy working life, contributed substantially and positively to your family and to the community and, as I've already said, it is clear from the report of Professor Morris that you have suffered enormously as a result of what has occurred, and no doubt that suffering will continue for the foreseeable future.  It seems to me that none of us could be involved in something like this, which took the life of another human being, and not feel an ongoing pain and, in your case, a deep psychiatric injury as a result.

The Court of Appeal, over a long period of time, has said, effectively, that driving which leads to the death of another human being ordinarily requires a custodial sentence.  That was set out very clearly by Keane JA in Gruenert; ex parte A-G [2005].  It's been repeated, adopted and reinforced in all similar decisions since that date.  The principle laid down in Gruenert needs to take into account the increase in penalty subsequently to that case from a maximum of seven to a maximum of 10 years for cases that don't involve the aggravating factors, for example, of alcohol.

Keane JA, at paragraph 16, said, relevantly, in a case of dangerous driving causing death: "A head sentence of 18 months' imprisonment is at the bottom end of the range.  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.  The imposition of a custodial term is not, however inevitable in every case and 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 of deterrence are less compelling."

Now, as I've indicated, it seems to me that the inattention in your case was not momentary but it was short.  There may be some dispute as to how short, but it was a short period of inattention.  You were not speeding.  You were not otherwise driving your vehicle in a way that presented a danger to the public.  You were not affected by alcohol or prescription drugs or illegal drugs.  You were not doing anything else other than, for some period, a short period, you must have been inattentive to the road ahead of you, and your response of braking as you did, which I think Mr Wilson characterised yesterday as a terrible dilemma, of course, either crash into the line of traffic ahead of you or brake and take the prospects of losing control, but that braking, as we now know of course, was a period which, although it stopped you just in front of the line of traffic, meant that your loss of control of the vehicle put you on the wrong side of the road and immediately into the path of Mr McKendrick.

I've considered carefully all of the decisions that have been placed before me.  Mr Power has provided detailed and very helpful written submissions which I acknowledge gratefully, and they have, in particular, referred to the decisions of Hart, Ruka, Murphy, and those decisions themselves, of course, adopt the decision in Gruenert to which I have referred and the decision in Vance; ex parte A-G [2007] QCA 269. 

Mr Wilson has placed before me again a range of decisions.  He's placed Gruenert before me as well as Proesser [2007], Roser [2004], Manners [2002] and Manahan [2000]. 

The difference, if I can put it this way, in the submissions of Mr Power and your counsel, Mr Wilson, is a fairly narrow one.  Mr Power's submissions, made, I might say, with thoroughness and scrupulous fairness, argue for a head sentence in the order of two to two and a-half years, and his ultimate submission is that there should be some relatively short period of actual custody served in that sentence.

Mr Wilson, on the other hand, in his submissions, acknowledges and accepts that a head sentence must be a custodial sentence, but has sought, at length, to persuade me that it would be appropriate in your particular circumstances to wholly suspend the sentence.  In that respect, he submits that there is a reduced role for specific deterrence.  The fact that you no longer, since the incident, drive or have any prospect, in reality, of driving a heavy vehicle, the relatively unexceptional traffic history and your lack of criminal history, he argues all point towards a reduced need for specific deterrence, in other words, a reduced need for a specific message to you.

In respect of general deterrence, the Court of Appeal has repeatedly said in its decisions that momentary inattention and categorisations of that character mean that the message of general deterrence, although clearly important, is perhaps of a little less importance than it might be when you're looking at deliberate conduct causing death or serious injury for which there is, the Court of Appeal says, and I accept, a clear requirement to send that message to the community as a whole that driving dangerously, as a result of deliberate or reckless action, must bring substantial, appropriate and custodial consequences.

I said, prior to sentencing you, in remarks that I addressed to Mr McKendrick's family, that this role, sentencing defendants for offences such as this, is one of the most difficult tasks that a judge of our court carries out.  As always, I have to balance multiple, competing considerations.  I grieve, as any right-thinking person would, for the family of the deceased and the unnecessary loss of life.  I acknowledge and appreciate the deep and abiding effect that this has had on you and your family.  I have to balance all of the considerations and, as best as possible, from my viewpoint, impose an appropriate, proportionate and fair sentence, and it is difficult.  I don't step away from that.

I've thought about it carefully.  Throughout the morning, I've been assisted by the conscientious and extraordinarily capable submissions of both counsel, both of whom, I might say, have conducted this trial in the most exceptionally professional manner.  I accept that there should be no downside to you in the sentencing process because the trial was conducted.  It was classically a jury question and, as was clear from the result last night, a question which deeply troubled them, even though their conclusion, unanimously, was to find you guilty.  So there is no detriment to you for having conducted a trial and it seems to me that the sentence which is appropriate, balancing all of those factors, is a sentence of two years' imprisonment. 

Having considered the principles applicable to momentary inattention and, on occasions, addressed in the Court of Appeal as short or brief periods of inattention, it seems to me that the situation in this case is an analogue to that.  In other words, it's able to be categorised in a similar although not the same category, and having considered the matter anxiously, I have finally concluded, given all of the factors which I have outlined, given the particular weight that I give and attribute to your personal apology this morning, an important step of healing for all concerned, it seems to me appropriate to wholly suspend your sentence.  There'll be an operational period of three years.  If you commit any offence at all punishable by imprisonment in the next three years, you'll be brought back to this Court and called upon to show cause why you should not serve the whole or some portion of the outstanding sentence of two years.  Of course, your personal history and your lack of criminal history indicate that's a most unlikely event, but I need to make the point to you very clearly that that is the potential consequence.

There must be, it seems to me, a substantial suspension of your licence.  That's an inevitable consequence and your licence is disqualified.  You are disqualified from holding or obtaining a driver's licence in Queensland for a period of two years from today.  I know that will carry some significant effect, but it seems to me that if, or when, you return to driving on the roads, it must be after a substantial period of not driving any form of vehicle, and then, of course, although I haven't made this a specific order, it would seem to me utterly inappropriate that you drive a heavy vehicle again.  It seems to me you've probably made that decision yourself anyway, so it doesn't really need me to make any order in respect of that.

The last thing I want to say is this, and if you can imagine for one moment that I've stepped down from the bench, because I want to talk to you very briefly as one human being to another human being.  Like just about everybody in this community, I've been affected by the loss of friends and family as a result of motor vehicle collisions.  I have lost people both close and more distant, both within my immediate family circle and those that I have known, sometimes briefly, sometimes well.  Every loss of life that is avoidable as a result of collisions on our road is an ongoing tragedy.  I don't subscribe to the alarmist view that some do, that the traffic toll is increasing, because in fact it's not.  We have seen a steady decrease in the traffic toll per head of population in Queensland over time, and that's to be commended.  I don't subscribe to the tabloid newspapers' "outrage" about these things, because I think they miss the point. 

The fundamental point is, every loss of life, any of the people who lose their life unnecessarily on our roads, is a tragedy for all of us, whether or not we know them, whether or not they touch us personally or whether we just see, or hear, or read about it when it occurs.  Why do I say that?  Well, it's for one simple reason:  you, of all people, have the opportunity personally to talk to others about your experience, if you're able to, and in some small way perhaps make a difference.  It's not something that I order.  It's not something that I require.  It's something I leave between you and your conscience. 

Your apology today personally has made a difference, I have no doubt, but if, whether speaking to those in your immediate family, friends, acquaintances, or whether you do something more, go into schools, go into youth groups, go into training sessions - it doesn't really matter how you do it - there are many ways it can be done, but if you can explain to others that even a short period of inattention when you're in charge of a vehicle, which is ultimately a dangerous object, particularly when you're in charge of a heavy vehicle, which is a more dangerous object, can lead to the death of another human being, the unnecessary, pointless death of another human being or their serious injury.  If, as a result of you talking to others, you save even one life - none of us will know; you won't, I won't, but the universe will be grateful, the community of Queensland will be grateful.  If that saved five deaths, then that would be extraordinary.  If it saved more than that, it would bring extraordinary joy to an extraordinary number of people.

Now, that's a request from one human being to another.  That's me off the bench, but take it on board and perhaps anyone else here who can pass on the same message - they may have been touched vicariously by what's happened to you - but it's absolutely critical that if we're to do anything about continuing to reduce our traffic toll, that all those who have any experience, peripheral or otherwise, with a tragedy such as this, can pass it on to others, whether it be as simple as being a passenger in a vehicle and asking the driver to slow down and be more careful or to pay attention to the lights or anything else, we might perhaps, through community action, one step at a time, reduce the level of tragedy on our roads.

Is there anything else I need to deal with?  I should return the exhibits to the Crown, the trial exhibits.

MR POWER:  Thank you, your Honour.

HIS HONOUR:  Thank you.  I'll order that.  Nothing else, Mr Wilson?

MR WILSON:  No, your Honour.

HIS HONOUR:  Thank you both, gentlemen, for your enormous assistance over the last four days.