R v Cusak [2000] QCA 239

On the day in question, 23 May 1999, the respondent and his companions had been drinking at the Buffalo Club, Mt Isa. They left in a Toyota Landcruiser utility driven by the respondent. Its owner was in the passenger seat and two other passengers, one of whom was the deceased, sat in makeshift seats fixed in the open tray of the vehicle. They were intending to go to the home of the deceased which was only a short distance away. Witnesses stated that while the vehicle was not driven at a particularly high speed, it was driven in such a way that the wheels squealed when negotiating the first corner near the club. In negotiating that corner the tyres on one side of the vehicle were seen to leave the ground. The vehicle then travelled on to the incorrect side of the road, veered back on to the correct side and attempted to take the next corner, again with screeching tyres. One of the persons on the tray was seen to attempt to grab or hold on to the side of the tray. On rounding the corner the vehicle rolled over and one of the passengers in the tray was killed. The respondent climbed out of the vehicle, saw the deceased and left the scene, but returned fairly quickly with his mother. By that time police and ambulance were present. Subsequent testing revealed a blood alcohol level of .17 per cent. The respondent declined to be interviewed by the police.

The learned sentencing judge noted that the intention had been to drive only a short distance and that the driving occurred over a distance of only approximately 55 metres from the club. His Honour reflected upon the difficulty of sentencing in this area, and mentioned his difficulty in reconciling decisions such as Purcell (CA 192 of 1999,

17 August 1999) which was custodial, and Anderson (CA 284 of 1998, 10 November 1998) which was non-custodial. Whilst not cavilling with his Honour's conclusion that each case must be dealt with and examined separately, his Honour's difficulty in reconciling the cases is difficult to understand. Counsel for the Attorney-General submitted that the observation is indicative of error as Anderson, where a non-custodial sentence was not disturbed, was a case limited to a failure to keep a proper lookout, with no excessive speed and alcohol was not a causative factor.

The learned sentencing judge correctly recognised the need for sentences to achieve deterrence but considered that there were sufficient matters in mitigation to justify a sentence which did not require imprisonment to be served. These included the respondent's timely plea of guilty, his genuine remorse at killing a friend, his good family background and the circumstance that the parents of the deceased man, although grief stricken, were not vindictive. The learned judge conceded that he may have slightly overstated the attitude of the deceased's mother towards a custodial sentence. She had responded by telephone to the respondent when he sent her a letter and had told him that she had come to terms with her grief, but her attitude on the question of custody or non-custody was not clearly before the court.

Mr Glynn SC for the respondent submitted that the present case, where a victim and others have acquiesced in the very conduct which causes the harm are not quite as serious as cases where harm is caused to an innocent bystander or occupant of another vehicle. The submission is really little more than a suggestion that there are worse case scenarios. That is true, but it is merely a circumstance to be taken into account in the measuring of the overall seriousness of the conduct in question.

As against these factors the circumstances reveal deliberately reckless driving with a high blood alcohol level, in the knowledge that passengers were in a vulnerable position in the vehicle. It has been repeatedly laid down both in the Court of Criminal Appeal and in this court that conduct of this type will be met with actual and substantial imprisonment. Such a view is supported by a fairly extensive review of such cases undertaken in R v. Purcell ex parte Attorney-General of Queensland (CA 192 of 1999, 17 August 1999). Reference was made inter alia to R v.

De Rooy ex parte Attorney-General (CA 105 of 1991, 1 August 1991) in which Ryan J, speaking for the court, said:

"The major consideration, in my opinion, is that the courts have said, as they did in Calder, and which they repeated in other cases and, in particular, in Stone and Martin that where a person drinks alcohol to an extent where he has a blood alcohol reading of

.15 per cent or in excess and drives a motor vehicle dangerously, as he did here, and causes death or grievous bodily harm, then the consequence would ordinarily be that he should receive a substantial period of imprisonment by way of punishment."

In Calder ((1986) 22 A Crim R 62) the following view was expressed:

"Where death or grievous bodily harm results ... the permissible range of sentencing will vary greatly depending upon the circumstances of the case. Where there is superadded a blood alcohol level of .15 or more, a custodial sentence would ordinarily be called for. Such a sentence should be substantial, the exact period depending on such factors as the blood alcohol level, the indications of remorse or timely pleading to the offence, the age of the offender, his previous history and other relevant considerations."

If anything, the attitude of the community and in turn of the courts towards offences of the present kind has hardened since these comments were made.

In De Rooy (above) a 26-year-old offender with a blood alcohol content of .15 per cent drove through a stop sign and caused grievous bodily harm to his wife. He had no previous convictions. On the Attorney-General's appeal the court substituted a sentence of three years' imprisonment with a recommendation for parole after one year, and a disqualification from driving for four years. In Purcell (above) a similar sentence was imposed by this court on an Attorney-General's appeal, that is, three years' imprisonment with release on parole after one year, with a disqualification of three years. The circumstances in Purcell were in my view a little more serious than those in the present case although not greatly so. Purcell was 24 years old and had no prior criminal history but was on bail for drink driving at the time when he committed the offence. With a blood alcohol level of .174 per cent he drove recklessly after being advised not to do so, and caused grievous bodily harm to his passenger when the vehicle overturned. He, like the present respondent, was genuinely remorseful and had a commendable work history.

For the respondent reliance was placed upon the decision of this court in Shedlock (CA 60 of 1996, 31 May 1996). By majority (Fitzgerald P and Byrne J) the court allowed the Attorney-General's appeal against a sentence of one year's "imprisonment" by way of intensive correction order together with payment of compensation ($13,639) and a fine of $4,000, but only to the extent of increasing the fine to one of $10,000 and imposing a disqualification of five years. Williams J, who dissented, presented a useful review of past sentences and would have ordered that the respondent be imprisoned for two and a half years with a recommendation for parole after eight months along with a disqualification for five years. It is difficult to reconcile that case with the other decisions reviewed in Purcell. The relevant driving was described as "particularly serious" involving a period of at least 20 minutes around inner city streets of Brisbane ultimately terminating in a collision. His blood alcohol concentration was .165 per cent and he had what was described as a "frightening traffic history". The decision of the majority seems to depend essentially upon the observation that the injury suffered by the victim (a comminuted fracture of the hand) "was serious but by no means as bad as commonly occurs", and upon the fact that before the appeal the respondent had performed a significant part of the penalty that had been imposed. Fitzgerald P stated, "I would not now send him to gaol if some reasonable alternative can be found." Byrne J considered the issue finely balanced, and with hesitation agreed with the course proposed by Fitzgerald P.

8 November 1996) the court again declined to impose a custodial sentence in an Attorney-General's appeal where at the time of the appeal a fine had been partly paid and a community service order substantially completed. Shedlock and Ryan are, in this respect, special cases where the result was materially affected by the course of events between sentence and the hearing of the appeal. But for this, they would seem to stand apart from a very clear sentencing pattern.

In the present case, the same observations as were made in Purcell are again appropriate:

"The weight of authority makes this sentence too light. As is often the case in such matters, the offender is a good worker and citizen and there are negative aspects in sentencing him to a longer term of imprisonment. However, the penalty that was imposed is insufficient to deter others from like conduct and it falls noticeably short of the sentencing level that may be discerned from the discussion of the above cases. Consistency in such sentences is an important objective."

Whilst one can understand the reasons which induced the learned sentencing judge to frame an order which would avoid imprisonment of the respondent, I consider that the above considerations make such a course unavailable in the present case.

I would allow the appeal, set aside the below and replace it with a sentence of three years' imprisonment suspended after nine months for an operational period of three years, and further order that the respondent be disqualified from holding a driver's licence for three years.

To cover the contingency of any difficulty arising in recovery of the fine which we have been informed has been paid, I would grant liberty to apply.