R v Damrow [2009] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION: R v Damrow [2009] QCA 245

PARTIES: R v DAMROW, Jessica Lea (applicant)

FILE NO/S: CA No 122 of 2009 / DC No 42 of 2009

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Mackay

DELIVERED ON: 28 August 2009

DELIVERED AT: Brisbane

HEARING DATE: 19 August 2009

JUDGES: Keane, Muir and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application refused

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted of dangerous operation of a motor vehicle causing death – where one person killed – where stop sign missing at intersection and stop line faded – where sentencing judge found this was not a case of ‘momentary inattention’ – where applicant sentenced to 18 months imprisonment suspended after eight months for an operational period of 18 months – whether sentence manifestly excessive / Penalties and Sentences Act 1992 (Qld), s 9(3)(b) / R v Anderson; ex parte A-G (Qld) (1998) 104 A Crim R 489; [1998] QCA 355, cited / R v Balfe [1998] QCA 14, cited / R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, considered / R v Hardes [2003] QCA 47, cited / R v Harris; ex parte A-G (Qld) [1999] QCA 392, cited / R v Hart [2008] QCA 199, cited / R v Manners; ex parte A-G (Qld) (2002) 132 A Crim R 363; [2002] QCA 301, cited / R v Murphy [2009] QCA 93, cited / R v Price [2005] QCA 52, cited / R v Wilson [2008] QCA 349, cited

COUNSEL: C Heaton for the applicant / P F Rutledge for the respondent

SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Qld) for the respondent

1. KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA. I agree with the order proposed by Fraser JA and with his Honour's reasons.

2. MUIR JA: I agree with the reasons and proposed order of Fraser JA.

3. FRASER JA: On 13 May 2009, after a two day trial, the applicant was found guilty by a jury and convicted in the District Court of the dangerous operation of a motor vehicle causing death. She was sentenced to 18 months imprisonment, suspended after eight months for an operational period of 18 months. The sentencing judge ordered that the applicant be disqualified from holding or obtaining a driver's licence for two years. She was also convicted on her plea of guilty but not further punished for an offence of unlicensed driving.

4. The applicant seeks leave to appeal against the sentence imposed for the offence of dangerous operation of a motor vehicle causing death. The grounds of her proposed appeal are:

1.The learned sentencing Judge erred in deciding this was not a "rare case" which justified the imposition of a wholly suspended sentence or immediate parole date given that:

(a)the "dangerous" aspect of the applicant’s driving was driving with "tunnel vision" instead of keeping a proper lookout around her in circumstances where she was travelling an unfamiliar route;

(b) speed was not a factor;

(c) alcohol/illicit drugs were not factors;

(d) a stop sign which is usually present at the intersection in question had been removed at a time prior to the accident;

(e) the stop line at the intersection in question was faded;

(f)the applicant gave direct evidence under oath at the trial that if the intersection had looked like it did by the next day (stop sign in place and the stop line re-painted bright white) she would have appreciated that she was approaching an intersection, and she would have slowed down, stopped and given way to the right as required.

2.The learned sentencing Judge erred in deciding this was not a case of "momentary inattention" or very close to momentary inattention which justified the imposition of a wholly suspended sentence or immediate parole given that:

(a) the dangerous aspect of the applicant’s driving was driving with "tunnel vision" instead of keeping a proper lookout around her in circumstances where she was travelling an unfamiliar route;

(b) The dangerous aspect of the applicant’s driving only crystallised at, or close to, the point of the intersection when she failed to appreciate that she was approaching an intersection from indicators such as the blue airport sign, the curved edges of the road and the concrete traffic island.

3.The learned sentencing Judge led himself into error by placing too much weight on general deterrence in this case and further, by forming the view that general deterrence warranted a period of actual imprisonment to be imposed in this case in circumstances where it is extremely unlikely that the same scenario will present itself to other drivers again (in terms of the stop sign being removed and the stop line being faded).

4.The learned sentencing Judge led himself into error by placing too much weight on personal deterrence in this case and further, by forming the view that personal deterrence warranted a period of actual imprisonment to be imposed in this case in circumstances where the applicant gave direct evidence under oath at the trial that if the intersection had looked like it did by the next day (stop sign in place and stop line re-painted bright white) she would have appreciated that she was approaching an intersection, and she would have slowed down, stopped and given way to the right as required.

The learned sentencing Judge failed to give sufficient weight to the unique features of this case namely that a stop sign which is usually present at the intersection in question had been removed at some time prior to the accident and the stop line at the intersection was faded.

6.The learned sentencing Judge failed to give sufficient weight to matters personal to the applicant such as her young age (20), her good work history and her genuine, deep remorse."

Circumstances of the offence

5. On 3 August 2007 the applicant drove her car into an intersection and collided with a truck. The applicant was unfamiliar with the road. There had been a stop sign at the intersection on the road upon which the applicant was driving, but it had been removed and the stop line on the road had faded. The intersection was indicated, however, by a blue airport sign, a traffic island, a "keep left" sign, and curb guttering. The jury must have accepted the Crown case that these features were sufficient to alert a reasonable driver in the applicant's position that she was approaching the intersection.

6. As the applicant drove into the intersection she and other occupants of the car were singing along to music on the car radio. The applicant drove through the intersection without stopping, into the path of a prime mover. The collision caused the death of a passenger in the applicant’s car, Corey Goodes.

The applicant's personal circumstances

7. The applicant was 18 years old at the time of the offence and 20 years old when she was sentenced. She had no prior criminal convictions. The sentencing judge accepted that the applicant was a young woman of good character. She was unlicensed at the time of the accident. Because she failed to respond to a letter which offered the opportunity of returning her licence with only one demerit point, her licence was suspended from 19 July 2007 until 18 October 2007 in consequence of two speeding violations of 9 and 20 January 2007.

8. The applicant had a good work history after leaving school. She had the support of her family and her partner, and the added responsibility of looking after her vision impaired father.

The sentence

9. The sentencing judge considered that the gravity and consequences of the offence, and a need for general deterrence, required the offence to be characterised as a serious one. His Honour remarked that there was a need to send a message that cars are potential weapons and that their use can have tragic consequences if not properly managed.

10. The sentencing judge referred to R v Anderson; ex parte A-G (Qld) (1998) 104 A Crim R 489; [1998] QCA 355, R v Harris; ex parte A-G (Qld) [1999] QCA 392, R v Hardes [2003] QCA 47*, R v Price* [2005] QCA 52, R v Gruenert; ex parte A-G (Qld) [2005] QCA 154, R v Wilson [2008] QCA 349 and R v Murphy [2009] QCA 93. His Honour quoted the statement in Gruenert by Keane JA, with which Williams JA and Fryberg J agreed, that it emerged from the decisions of this Court in R v Harris, R v Balfe [1998] QCA 14, and R v Manners; ex parte A-G (Qld) [2002] QCA 301 esp at [11]-[14]; (2002) 132 A Crim R 363 esp at 364 that, in a case of dangerous driving which causes death:

"(a) a head sentence of 18 months imprisonment is at the bottom end of the range;

(b) 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;

(c) the imposition of a custodial sentence is not, however inevitable in every case; and

(d)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."

11. It was not alleged that the applicant was guilty of excessive speed or recklessness. The applicant was sentenced on the basis that she had failed to pay proper attention to her surroundings, which should have indicated to her that she was driving directly into an intersection. The sentencing judge observed that, despite the absence of the stop sign, the faded paint on the stop line, and the dangerous nature of the intersection, there were sufficient indications to alert a reasonable driver to the presence of the intersection. The sentencing judge accepted that the applicant's traffic history did not support a contention that she was oblivious to her obligations on the road but concluded that the case could not aptly be described as one of "momentary inattention" or one that would otherwise attract the label of being a "rare case" such as to attract a non-custodial sentence.

Discussion

12. The contention in ground 3 of the proposed appeal that the sentencing judge placed too much weight on general deterrence is not borne out by an examination of the sentencing remarks. The sentencing judge referred to and plainly took into account all of the considerations in favour of the applicant which are now urged upon this Court, but his Honour correctly regarded general deterrence as a matter of significance in formulating a just sentence in the circumstances of this case. In relation to the terms of ground 3 of the proposed appeal, the fact that it was extremely unlikely that the same scenario which the applicant faced would present itself to other drivers again had no relevance to this factor.

13. There is no substance in ground 4 of the proposed appeal, that the sentencing judge placed too much weight on personal deterrence. The sentencing judge did not attribute any weight to personal deterrence. His Honour observed that there was no reason why there should be any "shadow or cloud” over the applicant’s rehabilitation, that she was genuinely remorseful as to the impact of the horrific event upon Corey Goodes' family and the applicant's own family, and that personal deterrence was not significant.

14. Nor is there is any substance in grounds 5 and 6 of the proposed appeal, which are to the effect that the sentencing judge failed to give sufficient weight to the unique features of the case and to matters personal to the applicant, including her youthfulness, favourable antecedents, and genuine and deep remorse. It is plain that the sentencing judge took those matters into account and there is no reason to think that his Honour gave them insufficient weight.

15. In support of grounds 1 and 2 of the proposed appeal the applicant’s counsel elaborated upon the matters identified in those grounds in his written and oral submissions. In his oral submissions he particularly emphasised the absence of the stop sign, the relatively low level of culpability in the applicant's driving, and her compelling personal circumstances, especially that she was a youthful first offender. He argued that the sentencing judge erred in failing to conclude that this was an exceptional case and one which called for a non-custodial sentence.

16. As Thomas JA observed in R v Harris; ex parte A-G (Qld) [1999] QCA 392 it is very important to identify the level of seriousness of the offender's driving. The applicant’s submissions accepted that the label "momentary inattention" might not appropriately apply to the applicant's driving, but the applicant’s counsel submitted that her driving was at the low end of the spectrum of driving which might amount to "dangerous". As was submitted for the applicant, the applicant's driving did not have the aggravating features that are sometimes seen in cases of this kind, such as excessive speed, careless driving by someone with a substantial traffic history, careless driving of a heavy vehicle, or a deliberately dangerous course of action. I accept that the level of seriousness of the applicant's driving was at a relatively low level within the range of driving which might be stigmatised as "dangerous", but I am nevertheless not persuaded that the sentencing judge erred in concluding that this was not a case of mere momentary inattention or otherwise a rare case which necessarily attracted a non-custodial sentence. In light of the circumstances identified by the sentencing judge, who had the distinct advantage in this respect of having been the trial judge, that conclusion was open.

Proposed order

20. I would refuse the application.