Court of Appeal (Qld)|1998-07-15|Before: Davies J, Jersey CJ, Thomas J, Derrington J

R v Grant & Attorney-General of Queensland [1998] QCA 238 (15 July 1998)

THE CHIEF JUSTICE: The Attorney-General has appealed against a sentence of 18 months imprisonment, wholly suspended for three years, imposed on a 20 year old man who was 17 years old, nearly 18, when he committed the offence of dangerous driving causing death. The respondent himself separately seeks leave to appeal against the sentence on the ground that it is manifestly excessive.

The respondent drove through red lights at an intersection in a built-up area at night-time. It was a wet night. He was driving on the Gold Coast Highway. He failed to observe the lights in time, but braked heavily, skidding into a vehicle lawfully entering the intersection from the other way. He thereby killed a passenger in the other vehicle. There was varying evidence about his speed, one witness estimating up to 80 kilometres per hour, but it was accepted that the respondent was travelling too fast.

It was not a deliberate course of dangerous driving, such as a deliberate attempt to run red lights, but it was worse than what is termed momentary inattention. There was some delay in the prosecution. The police interviewed the respondent a month after the offence but did not serve a summons until 16 months after that interview. It was three months later again that there was a committal conducted on a full hand up committal basis, and the respondent foreshadowed a plea of guilty a couple of months after that. The Crown offered no explanation for the delay in the issue of the summons.

The learned Judge accepted that the respondent was remorseful. He had no prior relevant history, but of concern were subsequent convictions for speeding. He committed this offence on 27 March 1996. Only two months later he was convicted of speeding by 30 to 44 kilometres per hour; another two months after that, speeding to the same extent; and nine months later, again, in April 1997, of speeding by 15 to 30 kilometres per hour in excess of the limit.

The Attorney-General contends on his appeal for a sentence of 12 to 18 months imprisonment, submitting that the suspended sentence which was imposed fails to reflect the gravity of the offence and the need for deterrence, giving too much deference to the matters of mitigation. Counsel for the Attorney referred to Atkinson, Court of Appeal 459 of 1996; Nowraty, 371 of 1989; and Fatseas and Brooks, 255 and 258 of 1995.

Those are cases of inattention rather than deliberate dangerous driving. They acknowledge the prime need for deterrence and the legitimacy of, as it was put by Mr Justice Davies, Justice of Appeal, in Atkinson, "The need to satisfy those whom the death of the deceased has left bereaved that justice has been done." Those cases support the appropriateness in cases like this of imposing a short term of imprisonment actually to be served, even as short as of the order of two to three months.

I consider, with relation to the respondent's own application, that those cases amply support the sentence imposed, notwithstanding the respondent's age, which had particular statutory significance because of the then state of the legislation, and the feature of delay. It might be observed also that he is in employment. The question is, on the Attorney's appeal, whether the prime need for deterrence and the satisfying of the bereaved relatives' position in days of increased focus on the dangers of the road, and in context of the respondent's subsequent driving history, necessitated here a term of imprisonment actually to be served.

On an Attorney's appeal the Court takes the approach discussed in Melano [1994] QCA 523; (1995) 2 Queensland Reports 186 at 190. That is, that the appeal should succeed only if the sentence imposed below was "outside the sound exercise of the sentencing Judge's discretion". The sentencing Judge has listed the relevant considerations, the eventual issue being whether he may not have accorded too much weight to the respondent's personal circumstances. Of course, that was an evaluative-type exercise on which minds may reasonably differ.

No doubt general deterrence is an extremely important consideration in cases like this, and as the cases to which I have referred suggest, would ordinarily justify a term in custody, albeit sometimes comparatively short. But here there were other considerations, especially the age of the offender, which, as I have observed, had a statutory significance, and the significance of the feature of delay which remained unexplained both before the sentencing Judge and this Court.

If those were the only relevant features the approach taken by the learned Judge could not, in my respectful view, be said to have been beyond the sound exercise of the sentencing discretion. What has concerned me is the other factor of the subsequent history of speeding, which, in the circumstances of this case, is extremely disturbing. It suggests that any lesson learnt by the killing was soon forgotten, so that there was in the respondent's case a need for special deterrence. It also tended to dilute the subsequent claim of remorse.

Now, the learned Judge said that he also was disturbed by this particular feature but he, nevertheless, declined actually to imprison the respondent. The question in the end is whether that was a course reasonably open to him. Minds, again, may differ on this, and we must not yield to the temptation of fine tuning or unduly tinkering with the sentences imposed in the Criminal Courts.

I have considered in the end that although the learned Judge would have been justified in requiring the serving of a term of imprisonment in this case, the features of delay, in particular, and the extreme youth of the respondent preclude this Court's interfering with the sentence which was actually imposed. There is absolutely no merit in the respondent's own application for leave to appeal against sentence, which must be refused. I would also dismiss the Attorney's appeal for the reasons which I have expressed.

THOMAS J: I agree. I find the present matter a finely poised one which is quite difficult to decide. My initial response was to think that because of the subsequent speeding offences by this applicant the non-custodial sentence could not be sustained. However, the factors that have finally led me to decide against interfering with this particular sentencing discretion are, firstly, that the circumstances do not reveal a deliberate running of a red light, but rather the loss of control by a relatively inexperienced driver after he was driving inappropriately in wet conditions.

Secondly, I note that the prosecutor early in the case conceded that a wide range of sentencing options was available to the learned trial Judge, including the fact that a non-custodial sentence could be imposed. His Honour at that time was bound by section 9 subsection (4) of the Penalties and Sentences Act not to imprison the applicant except as a last resort, and His Honour's response was no doubt influenced by that factor which, of course, is no longer in the Act.

The accused is a young man with a promising future and has a good work history. Those circumstances in the end persuade me that despite the unappealing factors which have been mentioned in this case, this Court should not interfere with the sentence that has been imposed.

DERRINGTON J: I agree. The horrifying result of the accused's conduct in this case, and particularly his appalling absence of remorse in the period following it, would normally call for a period of incarceration. If it were not for some of the mitigating factors that have been referred to by the learned Chief Justice and my brother, Thomas, I would have thought that this would be an appropriate case to have required him to have served some period of incarceration, both as a deterrent to himself and to others in similar circumstances. However, I agree, after considerable doubt, that the result should be as proposed by the learned Chief Justice.

THE CHIEF JUSTICE: The appeal is dismissed and the application is refused.

R v Grant & Attorney-General of Queensland [1998] QCA 238

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Judgment (19 paragraphs)

R v Grant & Attorney-General of Queensland [1998] QCA 238 (15 July 1998)

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