A-G v Pope [1996] QCA 318

When apprehended the following morning the respondent admitted to having had one stubby of beer, but no more.

In the event, the essential Crown allegations against the respondent were excessive speed (but not grossly so), and absence of proper look-out, aggravated by a slightly dirty windscreen. There were however some further features which were mentioned during the sentencing procedure upon which counsel for the Attorney-General invited this Court to act for the purpose of justifying a higher sentence. One was the circumstance that he failed to stop and render aid; the other is that he had been receiving treatment for an eye condition from which it is alleged that he ought to have known that his eyesight was defective and that it would be dangerous for him to drive at all.

The material presented to the Court on this question was conflicting. Both the respondent and his de facto wife, when interviewed indicated that they had heard or felt a bump but had assumed it was caused by a piece of wood or some such object and therefore had not stopped. However eleven months after the accident his de facto wife ended their relationship. She then gave a further statement to the police to the effect that she had observed the deceased standing at the side of the road, that he had been struck by the driver's side-mirror and that she and the respondent had then agreed that the respondent should not stop.

The conflict was not expressly resolved. During submissions the Crown Prosecutor conceded a difficulty in relation to it. The learned sentencing judge later raised the question with defence counsel asking him whether his plea acknowledged that his client had struck someone and continued to drive on regardless. Defence counsel responded that his client had been charged with "leaving the scene of the accident" in the Magistrates Court, and that this further charge effectively had nothing to do with the dangerous driving itself. His Honour observed that "it is often the case that in a situation like this that factor is taken into account in the sentencing here, and then the charge below is not proceeded with". However that procedure was not invoked in the present matter.

Eventually, in his sentencing remarks, the learned judge stated, "A matter which I regard with great concern is that having struck the deceased you did not even stop. You simply drove away leaving the man in the gutter. Any claim by you, in relation to remorse, must be assessed in the light of that particular matter." It may be inferred then that His Honour paid some heed to this factor and acted on the footing that the respondent must have had some awareness of having struck someone, and that this factor would cast doubt on any claim of remorse. It seems that the approach taken by the learned sentencing judge on this issue was open to him, and we do not understand either counsel in the end to submit otherwise. The point to be noted is that this circumstance cannot be relied on for any further purpose. To punish him further for it would infringe the principles against double punishment unless some such course as that mentioned by His Honour were agreed. It may be noted in passing that failure to stop after an accident does not fit within the exception mentioned in s.16 of the Code. The potential relevance of such post-accident conduct is limited to an inference of callousness or lack of remorse.

This point arose out of material presented on behalf of the respondent. Extensive medical evidence was tendered revealing that the respondent suffers from a progressive condition of diabetic nephropathy and diabetic retinopathy. The latter causes the retina in both eyes to become affected by the proliferation of blood-vessels. By the time of the hearing (which commenced on 13 May 1996) the respondent was suffering from advanced retinopathy and was virtually blind. The condition cannot be alleviated, and can only get worse. A report of 29 December 1995 described him as completely blind in his right eye, and as legally blind with visual acuity of 3/60 in his left eye.

The driving the subject of the present charge occurred on 25 September 1994. Dr Davoren, the staff specialist at the Gold Coast Hospital, reported that the eye disease from which the respondent suffers "can proceed very slowly and then suddenly, very rapidly". He reports that the respondent suffered "a clear and sudden deterioration in his eyesight around December 1994/January 1995". He expressed the opinion that "at the time of the accident (the respondent) was under treatment for his eyesight and unless he was told by his doctor that he should not be driving, he would have no real reason to believe his eyesight was sufficiently impaired such as to prevent him from driving".

The above evidence was presented to the Court after an adjournment specifically for the purpose of permitting further evidence to be adduced on this particular question, and also on the question of the respondent's speed and the distance over which he drove at such a speed. The Crown Prosecutor did not challenge Dr Davoren's evidence. Upon tender of the report defence counsel asked the learned judge whether he wished for anything further on that particular question at that stage, and His Honour indicated "not in the light of that report". The prosecution advanced neither evidence nor submission to any contrary effect. The passage in an earlier medical report which had caused the issue to be raised is the following (in a report from Dr Rowe, a psychiatrist, dated 19 June 1995).

"Looking back, now with the advantage of hindsight, his eyes were such that he probably should not have been driving at all. He earned his living by driving and obviously denied to himself just how bad his eyes were getting."

On this appeal, counsel for the Attorney-General referred to that passage and submitted that this Court should now hold that His Honour erred in failing to find that the respondent knew at the time of driving that he had failing eyesight and that he chose to drive nonetheless. She submitted that the onus lay on the defence, having regard to the passage just quoted, to satisfy the Court that he was unaware of the extent of his disability, referring to R v. Calabria (1982) 31 SASR 423, 453, R v. Perre (1986) 41 SASR 105, and R v. Hicks (1987) 45 SASR 270. It is not necessary to canvass the question of shifting persuasive onuses. Plainly if the Crown wished to rely upon this circumstance as an aggravating circumstance in the case against the respondent, the onus lay upon it of satisfying the Court, to a high level of satisfaction, of the existence of that circumstance. The evidence to which reference has already been made was sufficient to justify the learned judge in declining to be satisfied that this was established as an aggravating circumstance. Indeed, having regard to the conduct of the case it would not seem to have been reasonably open to His Honour to have found otherwise. It certainly is not open to the Attorney-General to now seek to have the respondent sentenced on the footing that he drove knowing that his eyesight made it hazardous to do so.

As in all such cases, the sad fact is that a human life has been lost. The Crown did not see fit in this particular case to present any victim impact statement or facts which would indicate the consequences to other citizens of the respondent's act. In some cases the devastating consequences of a particular act of driving are an influential factor in the sentencing exercise (e.g. R v. Conquest ex parte Attorney-General C.A.395 of 1995, 19 December 1995).

The present case therefore lacks any additional factor of this kind. It must be judged on the ordinary inferences that should be drawn, namely that a life has been lost and that other persons are likely to be seriously affected by that loss. But the Court has no additional specific detail upon which to act.

The learned Crown Prosecutor endeavoured to assist the learned sentencing judge by characterising the case as falling between the two extremes of "deliberate reckless driving" and of "momentary inattention", observing that the former class of case more often than not results in imprisonment while in the latter, "imprisonment is not used as a sentencing option". He proceeded -

"It is my submission that the appropriate range for this offence ranges from a period of imprisonment of one or two years through to non-custodial options such as . . community service, probation or indeed the imposition of a hefty fine."

He went on to note the difficulty raised by "this man's medical condition" upon which the defence relied to demonstrate that a gaol sentence would limit access to appropriate medical care and undoubtedly hasten deterioration of a serious condition. This will be further discussed below. The point to be made at present is that the Crown Prosecutor expressly submitted that a non-custodial option was open, and nominated a fine as such an option.

This Court has repeatedly said that it is difficult to uphold an Attorney-General's appeal when it is made on a basis inconsistent with submissions made by the Crown below. Such an inconsistency arises when a Crown Prosecutor concedes that a non-custodial sentence is appropriate, and the Attorney-General's counsel later submits that this is not so, and that the only appropriate sentence is imprisonment.

"Whilst this Court is not precluded from interfering with the exercise of a sentencing discretion where the Attorney-General has in effect conceded that it may be properly exercised in a certain way, it will rarely do so."

(Ashton and Layden (1995) 83 A.Crim R 8, 10)

"This Court may properly refuse to intervene on behalf of the Attorney-General to correct what is said to be an error if that has been caused or contributed to by a failure of the prosecution to do what was needed to avert that error in the court below. The sentencing process cannot be expected to operate satisfactorily in terms of either justice or efficiency if arguments in support of adopting a particular sentencing option are not advanced at the hearing but deferred until appeal."

(Tricklebank [1993] QCA 268; [1994] 1 Qd.R. 330, 338;

compare Everett and Phillips v. The Queen [1994] HCA 49; (1994) 68 ALJR 875, 879, 882)

This factor makes it difficult in the present case to permit in effect a second inconsistent sentencing exercise to be invoked against the respondent.

We would not wish to discourage prosecutors from giving to sentencing courts their fair and honest perceptions of a "range" of options available to the sentencing court. If for example a prosecutor submits that the possible range is from two to four years' imprisonment, and that in the particular case the sentence should be four years, and the Court fixes two years, the Attorney-General would have some difficulty, but not necessarily an insuperable one, in then coming to the Court of Appeal and submitting that the sentence was "outside the scope of a proper sentencing discretion". That is the basic test that needs to be satisfied in order to induce this Court to interfere upon an Attorney's appeal (R v. Melano ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd.R. 186, 190). There would be an inconsistency between the statement by the Crown's representative on the first occasion to the effect that two years lies within the possible range, and the later submission on behalf of the Attorney that it lay outside the range; but it would be a marginal inconsistency, and public policy considerations might in a particular case outweigh the undesirability of allowing a prosecuting authority to change its course. However the inconsistency is even more pronounced when submissions are made on the central question whether a sentence may be custodial or non-custodial. Generally speaking, if a concession is made that a non-custodial option is open, and the sentencing court acts on that basis, it would be unjust to allow an appeal based upon a new and different submission on the part of the Attorney-General that custody was necessary. In the present case the submission was not only that a non-custodial option was open, but also that the options included a "hefty fine".

The medical evidence in this matter is overwhelming. The respondent's diabetic condition has deteriorated dramatically since the event which brings him before the Court. His diabetes affects the small microscopic blood-vessels of the kidneys and eyes. His diabetic nephrosis will lead to kidney failure which will result in a need for renal dialysis which will require him to be connected to a machine twice weekly. His advanced retinopathy means that he has to receive regular laser therapy to coagulate bleeding vessels in the retinae. His diabetic condition requires him to inject himself with insulin four times a day. He is dependent on his mother for medication and monitoring of his blood-sugar levels, because he cannot read the calibration on syringes. He needs some assistance with personal hygiene. His management, expressed in relation to his condition in 1995, required -

(1) daily insulin injections with strict dietary requirements;

(3) regular consultation with a local medical officer concerning adjustments to insulin regime;

(5) specialist examination of his eyes from time to time;

At that time his general practitioner considered that the best he could hope for over the next two or three years was a slowing down of the progression of his disease, and that this would require considerable medical management.

An eye specialist has commented that because of his severe visual impairment he will never again be able to maintain productive employment. He observed:

"It is highly probable that a gaol sentence will limit his access to optimum medical care and this will undoubtedly hasten to deterioration of the patient's medical condition."

Dr Davoren the staff specialist at Gold Coast Hospital expects him to progress to terminal renal failure within about three to five years. That is not fatal, provided he receives renal replacement therapy, but that of course requires considerable medical supervision. His present level of sight would make it virtually impossible for him to administer his own insulin. Dr Davoren considers it a prerequisite that needles and syringes remain for his own personal use. One suspects that this requirement would at least create a difficulty for the prison authorities, not to mention the respondent. He would also need regular attendances for specialist medical opinion.

There is further evidence from a psychiatrist that the respondent is suffering from a reactive anxiety-depressive state due in part to the pending proceedings, but also because of the rapid deterioration of his eyesight. His outlook is described as "extremely bleak". He reports that many things remind the respondent of the accident and that these intrude into his concentration. He is attempting to do a computer course (voice activated) to equip him for some sort of future, but depressive thoughts affect his concentration. The pendency of the court proceedings rendered him almost completely unable to cope with the course. It is not known whether he completed it. The psychiatrist recorded that the respondent wondered if the man who was killed had a family or not and how the man's family coped, and noted that this type of depressive thinking had led him to suicidal thoughts. The psychiatrist commented "I doubt that he would survive in gaol" and "he will find life difficult enough if he does not go to gaol".

It is hardly surprising then that the learned Crown Prosecutor conceded the difficulty in the present case of insisting upon a custodial sentence. The existence of serious medical conditions are of course not necessarily an answer to the question of imprisonment, and not uncommonly the need for an adequate response calls for a custodial sentence notwithstanding. It is recognised however that the ill-health of an offender is a factor tending to mitigate punishment when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on his health (R v. Smith (1987) 44 SASR 587, 589; Bailey v. DPP [1988] HCA 19; (1988) 62 ALJR 319).

Plainly both these factors are strongly present in the instant case.

In the present case we are far from convinced that the concession made by the Crown Prosecutor below was incorrect. The quality of the driving, although reprehensible was far removed from the worst end of the spectrum. Relevant factors include the position taken upon the road by the victim, deficiencies on the driver's part in relation to lookout and speed (noting that the excess speed was not of gross dimension) and the additional factor of a slightly dirty windscreen. The case also includes an inference against him from his failure to stop, but this has been partly negatived by better than usual evidence of later serious remorse. It is also true that the respondent had a distant criminal history for offences of dishonesty (between 1980 and 1985) and a poor driving history which included a number of convictions for unlicensed driving, presumably from cancellations through accumulation of points. He also had a speeding conviction in 1993.

When all these factors are considered along with the dramatic deterioration in his health after the commission of the present offence and its destruction of his past way of life it is difficult to think that the retributive aspect of sentencing demands that a custodial sentence be imposed in this particular instance.