R v Hoffman; ex parte: A-G [1997] QCA 377

Court of Appeal (Qld)|1997-10-24|Before: Before Pincus J, Shepherdson J, White J, Pincus J

The applicant in Wurzbacher CA No 264 of 1996 was convicted on his own plea of dangerous driving causing grievous bodily harm whilst having a blood alcohol concentration equal to or exceeding .150% and was sentenced to imprisonment for 4 years with a recommendation that he be eligible for release on parole after serving 12 months of that sentence and was disqualified from driving for 3 years. The applicant was aged 24 and had no relevant criminal history. A long period of almost 3 years had elapsed between the time of the offence and the sentence not due in any way to conduct of the applicant. The circumstances were very serious. The applicant and his step-brother who was aged 16 attended a festival where the applicant had consumed a quantity of beer. The brothers decided to return home at the end of the day and initially the younger brother rode the motor cycle whilst the applicant was a pillion passenger. After a brief stop the applicant decided to drive although his brother remonstrated with him on the grounds of his intoxication. The bike was driven at very high speeds up to 130km per hour and was weaving over the road. Despite requests from his step-brother the applicant declined to pull over and in due course whilst attempting to pass another vehicle was struck by a vehicle travelling in the opposite direction. The passenger suffered no permanent injury or disability and at the time of the appeal was in full time employment. The applicant was severely injured and as a consequence of his injury had one of his legs amputated. The court formed a very favourable impression of the applicant both from his own appearance before the court and from the references which were tendered on his behalf which indicated that he had worked after discharge from hospital, initially in a voluntary capacity at a hostel as a gardener and then in a paid position. The majority held that a sentence of 4 years was too heavy and in lieu ordered that he be imprisoned for 2½ years with a recommendation after 8 months and a disqualification from obtaining a driver's licence for 3 years. Fryberg J was a strong dissentient.

Ryan was an Attorney-General's appeal against a sentence of 3 years' imprisonment suspended forthwith together with a substantial fine, the maximum amount of community service and a 3 years disqualification for dangerous driving causing grievous bodily harm with a blood alcohol reading exceeding .150%. At the time of the appeal the fine had been partly paid and the community service substantially completed. A taxi reversing out of a driveway was struck by a car driven at excessive speed by the respondent. The taxi driver suffered severe injury including a fractured femur and a ruptured liver. The respondent was a young man with some three speeding offences. The place where the accident occurred involved a crest of a hill so that anyone driving over it at speed was exposing himself and others to a dangerous situation. The court was particularly influenced by the fact that there was a long delay between the time when the offence was committed and the hearing of the appeal. The court considered that a custodial sentence some part of which was to be actually served was called for and that the primary judge fell into error in determining that the circumstances did not call for such a sentence. Because of the delay the court declined to interfere. These cases demonstrate that the circumstances of drink driving offences vary greatly and that caution needs to be exercised in laying down general directions as to the proper range. The real difficulty seems to be in deciding whether to impose a term of imprisonment with some part actually to be served or whether some other sentence is appropriate. There can be no doubt that driving offences involving alcohol and personal injury are prevalent. There may be a tendency not to characterise such conduct as truly criminal in the general driving community and the deterrent aspect of the sentence is thus important.

I am of the view that the sentence imposed below was very lenient and that the learned sentencing judge was too swayed by the complainant's complicity in the reckless driving and laid too much emphasis upon the assistance which the respondent was giving the complainant in his rehabilitation. The breaches of the law in driving when clearly impaired by the excessive consumption of alcohol together with the extraordinary conduct of driving whilst blindfolded by her companion at speeds at around 100 km per hour even though on a country highway at night and the consequential serious injury to the complainant made this serious driving misconduct. Comparable cases to which I have referred would suggest that a period of imprisonment actually to have been served would have been within the range of a sound sentencing discretion. However, there are features of this case which are special to it, including

· the considerable disparity in ages between the complainant and the respondent which would lead to a fair inference that he exerted influence over her, despite her honest acknowledgment of willing participation;

· the foolhardy conduct was initiated and maintained by the complainant and he has not been charged;

· there was little or no traffic on the highway; and

· her full-time commitment to the complainant's rehabilitation since July 1996 which no doubt operates as a continuing reproach and deterrent.

The approach which courts have consistently taken to Attorney's appeals, particularly where the respondent has not been required to serve any time actually in prison by the primary judge, leads me to conclude that the appeal ought not succeed, Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295; R v Melano ex parte Attorney-General [1994] QCA 523; [1995] 2 Qd R 186 and R v Bazley CA No 220 of 1997, judgment delivered 5 August 1997.

In R v. Melano ex parte Attorney-General [1994] QCA 523; (1995) 2 Qd.R 186, this Court held that ordinarily it should not allow an appeal under s.669A(1) of the Criminal Code unless the sentence imposed was outside the scope of a proper sentencing discretion and that consistently with established principles relating to the determination of appeals against exercises of discretion, ordinarily an appeal under 669A(1) should not be allowed unless the sentencing judge had erred in principle, either because an error was discernible or demonstrated by a manifest inadequacy or excessiveness.

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