R v Haydon [1996] QCA 503

Court of Appeal (Qld)|1996-11-13|Before: Thomas J, Pincus JA, Dowsett J

THOMAS J: The applicant seeks leave to appeal against a sentence of five years imprisonment, with absolute disqualification from holding or obtaining a driver's licence. This penalty followed his conviction in the District Court of dangerous driving causing grievous bodily harm with a blood alcohol concentration exceeding 150 milligrams of alcohol per 100 millilitres of blood.

The level of alcohol in his blood at the relevant time was .213 per cent. The applicant has an unfortunate previous history of driving offences including consecutive convictions for drink driving in 1979, 1983, 1988 and 1989. On those occasions the level varied from .139 per cent to .2 per cent. He also has two convictions for unlicensed driving.

The relevant observed driving started when he skidded his vehicle when turning to the left from Albert Street into Alma Street, Rockhampton. He continued at a fast rate of speed, changing lanes without indicating, moving into a centre lane beside a truck, almost colliding with an oncoming vehicle, forcing the driver of that vehicle to brake and move sharply to the left. He continued this course of driving, making turns without indicating, travelling on the incorrect side into oncoming traffic lanes, causing other vehicles to take evasive action, cut corners and made sweeping turns without indicating.

When approaching a bridge he lost control of the vehicle, obviously travelling too fast. He hit the leading edge of the bridge on his incorrect side and moments afterward collided with an oncoming vehicle in which Mr and Mrs Bahnisch were travelling. Both those persons suffered quite serious injuries. They have required substantial orthopaedic treatment. Their injuries are of the kind frequently found in civil cases and, perhaps, might be described as not of the grave level that one sometimes finds in these cases. They are, however, very serious and have resulted in permanent disabilities to limbs of those victims.

The question whether the applicant was remorseless or felt some remorse was the subject of conflicting submissions below. On my analysis of the matter he seemed concerned about a little girl who had been in the other vehicle, but does not seem to have been aware, perhaps, of the dire extent of the injury to the persons who really were injured. In my view that conduct is consistent simply with the drunken condition in which the applicant had placed himself on that occasion.

Apart from this there does not appear to have been any particular indication of remorse. I do not, however, regard that as a particularly important factor in the present case. Counsel for the applicant referred to a decision of this Court in Woodgate in 1991 where driving, which must be regarded as a very serious example of this offence, resulted in a penalty of five years imprisonment. It was submitted that the driving had consequences in that matter that were more serious than the present matter and consequently the sentence in the present case should be regarded as manifestly excessive.

I do not think that this follows. I think it fair to say that the level of sentences recognised as appropriate for this type of offence has increased noticeably over the past 12 months, the trend being observable from decisions in this Court which include the matter of Vessey (CA 453 of 1995, 16 February 1996).

In the circumstances that I have described I do not regard the response from the sentencing Judge as excessive and I would refuse the application.

PINCUS JA: I agree with the reasons which have been given by my brother, Mr Justice Thomas. I would add that I notice that there has been a previous conviction for dangerous driving while drunk, in 1989, and the applicant was ordered to perform community service for that. Counsel for the applicant has contended, in effect, that by comparison with some previous sentences (he identified one in particular) the sentence may seem severe. That submission is not without substance; however, it is my opinion, in accordance with the views expressed by Mr Justice Thomas, that the Court has more recently recognised that in view of the maximum penalty fixed by Parliament for this offence, the level of sentences imposed in the past may need reconsideration.

It is my view that the sentence imposed in this case was a proper one, having in mind the applicant's bad record of lawless driving over a period of quite some years, endangering the public. The danger, in this case, eventuated in serious injuries; this sort of behaviour, I think, must be appreciated by those who are tempted to engage in it, to be dangerous not merely for others, but for themselves, in the sense that they may be severely punished. I agree with the order proposed by Mr Justice Thomas.

DOWSETT J: I also agree with the proposed order and with the reasons which have been given by both of my brothers.

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