R v Hopper; Ex parte Attorney-General (Qld)

Decisions concerning the adequacy of sentences imposed for offences are not usually reported.  However, this matter is of substantial interest and it considers a number of important principles in relation to sentencing.

The female appellant, aged 17, had pleaded guilty to dangerous driving causing death and was sentenced to two and a half years imprisonment, wholly suspended for three years and was disqualified from holding a licence for three years. The Attorney-General appealed on the ground that the sentence was manifestly inadequate.

After deciding that it was manifestly inadequate, the Court considered the circumstances in which the Court ought to exercise its residual discretion not to interfere with the sentence.

At the time of the offence, the Respondent was driving along Beerburrum Road and looking at a map on her mobile phone when she hit two pedestrians who were walking on the verge, killing one and causing serious injuries to the other. [2]–[4]. The respondent cooperated completely with the investigation and pleaded guilty to dangerous driving causing death and grievous bodily harm. [1] The Crown appealed, contending that wholly suspending the imprisonment was “plainly unreasonable and unjust”, given the extent of the damage sustained by the victims and the Court’s previous holding that “in a case of dangerous driving which causes death … it [would] be a rare case that does not attract a custodial term”. [14].

Manifestly Inadequate

In reaching a unanimous conclusion that the sentence imposed was manifestly inadequate, the Court scrutinized the circumstances of the case and the respondent’s personal circumstances against the principles of sentencing and the previous decisions of the Court, specifically its decisions in R v Gruenert; Ex parte Attorney-General, and R v Hart; [23]. In its reasons, the Court emphasised the importance of general deterrence in cases such as this, where the conduct causing the offence, namely the use of a mobile phone whilst driving is ubiquitous and “the sentence might sensibly operate to deter others from similar offending”. [25]. Further, though the respondent’s age and general good character were relevant, the Court highlighted the limitations on this factor given that the offence was one that was often committed by young people of good character. [30]. Finally, the Court considered that while her co-operation and evident remorse was a factor favouring leniency, it was somewhat undermined by her conduct, only 5 months later, in using a mobile phone whilst driving. [32]. In light of the Court’s previous decisions, and given the relevance of “personal deterrence … [and] the importance of seeking to deter others from committing a similar offence”, the “sentence was rendered impermissibly lenient by the absence of any period of actual custody”. [36]

Residual Discretion

On the issue of whether to exercise its residual discretion not to interfere with the sentence as imposed, courts retain a residual discretion to not allow a Crown appeal against sentence where to do so would create an injustice. Such circumstances include: “delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation.” [39]. In the circumstances of this case, the majority (Fraser JA and Boddice J) concluded that the respondent’s efforts towards rehabilitation and reintegration, her psychological vulnerability and the relatively short period of actual custody that would be imposed outweighed the desirability of correcting the (insufficient) sentence on appeal. [40]–[42]. Thus the Court declined to intervene and dismissed the appeal.

Morrison JA wrote a strong dissenting judgment on this point, considering in detail the rationale underlying the existence of the residual discretion.  He considered that a distinction existed between a case where the offender has been sentenced to a term of imprisonment and then released before an appeal against sentence is determined and one where the offender has not served any period of imprisonment.  In addition, he considered that the factors of the seriousness of the offence and the need for general deterrence should be given greater weight. He would have suspended the sentence after five months imprisonment.