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[2003] QCA 121
appellant. Application for leave to appeal against sentence granted; appeal allowed; whole of the remaining period of the sentence suspended forthwith (McPherson JA [17]; orders).
The Court of Appeal allowed Lagos's appeal against sentence. Although his reversing of a taxi caused the complainant grievous bodily harm, the Court found his culpability closer to an omission or failure to appreciate the full risk than deliberate recklessness. Having regard to provocation, early guilty plea, cooperation, limited prior record and the relatively less severe injuries, and comparing similar cases (notably R v Foster), the Court concluded the two year sentence with a four month actual term was manifestly excessive and suspended the remaining period forthwith (McPherson JA [12]-[17]; McMurdo P [3]).
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At about 3.00 am on 23 January 2002 the applicant, Mark Antonio Lagos, a taxi driver, collected four passengers in Fortitude Valley for a trip to Windsor (McPherson JA [6]). One passenger, Justin Senecal, behaved abusively, interfered with the vehicle and insulted the driver, including using a racial epithet (McPherson JA [6]-[7]). The driver performed a U-turn and stopped in a lit area for safety reasons; some passengers alighted but two remained in the rear seat (McPherson JA [7]). At or as the driver began to reverse, one passenger had already alighted and the complainant was in the process of alighting. The complainant became caught behind an open rear door, was dragged a short distance as the vehicle reversed and fell, suffering lacerations, multiple abrasions and temporary loss of function in the left leg; scarring remained but she was said to be recovering by the time of the sentencing hearing (McPherson JA [8]).
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The applicant pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm in the District Court. He was sentenced to imprisonment for two years, with an operational suspension after four months served in custody; he was also statutorily disqualified from holding a driver’s licence for six months (McPherson JA [5]). The applicant appealed the sentence. The Court of Appeal allowed the application for leave to appeal against sentence and, after considering the culpability, mitigation and comparable authorities, ordered that the whole of the remaining period of the sentence be suspended forthwith (McPherson JA [17]; McMurdo P [3]).
The Court’s decision turns on sentencing assessment rather than a dispute about guilt. Key elements in the Court’s reasoning are:
The characterisation of culpability: McPherson JA carefully parsed whether the applicant acted with the sort of conscious disregard for risk that constitutes recklessness, or whether the conduct was more accurately described as an omission or momentary misapprehension. Recklessness, the Court emphasised, is "conscious disregard for known or obvious risks" (McPherson JA [13]). While it was obvious that reversing a vehicle while a passenger alighted carried the risk of some injury, the Court concluded the material did not establish that the applicant appreciated the specific risk that the complainant would be entrapped and suffer injuries of the severity that occurred (McPherson JA [13]-[14]).
Mitigating circumstances: The applicant had pleaded guilty at an early stage and cooperated with police; he had a limited prior record (earlier matters included a 1996 Jobstart fraud resulting in a bond and community service) and no like convictions; he had been provoked and abused by the passengers; and the grievous bodily harm was at the less serious end of the scale (McPherson JA [9], [11], [13], [15]; McMurdo P [3]).
Comparative sentencing: The Court compared the sentence here with sentences in similar factual contexts. R v Foster was identified as "very similar", where a taxi driver drove off before the rear passenger door was closed leading to injury; in Foster the District Court imposed nine months' imprisonment wholly suspended (McPherson JA [15]). By contrast R v Wales, where a loaded six ton truck was driven through a red light causing life-threatening, permanently disabling injuries, was distinguished because the conduct and outcome there were far more serious (McPherson JA [14]). These comparisons supported the view that the two year head sentence with a four month unsuspended term in the present case was outside the range commonly applied (McPherson JA [15]).
Practical consequences already suffered: The applicant had spent 11 days in custody before being bailed and had lost his taxi licence and therefore his livelihood; these consequences were material to the overall assessment (McPherson JA [16]).
On balance, and having regard to these features, the Court concluded that neither the head sentence nor the unsuspended component was justified. McMurdo P summarised the point succinctly: the sentence imposed was "manifestly excessive" (McMurdo P [3]). The Court therefore suspended the remainder of the sentence forthwith (McPherson JA [17]).
Before this judgment, sentencing for dangerous operation causing grievous bodily harm had developed along the lines of assessing culpability (deliberate use of a vehicle as a weapon vs momentary inattention or misapprehension), seriousness of injury, and relevant mitigating features such as provocation and early plea. The Court of Appeal in Lagos reinforced those lines of analysis by applying the ordinary test for recklessness and emphasising the importance of measuring sentences against comparable authorities.
This decision applies existing sentencing doctrines rather than creating a new test. It reaffirms that:
After Lagos, practitioners have a clear appellate example where a head sentence of two years and an unsuspended term of four months was considered excessive in the context of provocation, early plea, limited prior record and less serious grievous bodily harm, particularly where comparative authorities (eg R v Foster) show sentences with full suspension in analogous circumstances (McPherson JA [15]).
"Recklessness has been defined as conscious disregard for known or obvious risks." (McPherson JA [13])
"It seems unlikely that, if he had done so, he would have acted as he did. As he himself said, it was only a $10 fare." (McPherson JA [14])
"R v Foster was a case very similar to this... The sentence imposed in the District Court was imprisonment for 9 months, which was wholly suspended." (McPherson JA [15])
"a sentence of two years imprisonment requiring the applicant to serve four months actual custody before suspension is manifestly excessive." (McMurdo P [3])
This decision is especially relevant where:
When those facts are present, Lagos supports suspension of any remaining sentence where the initial unsuspended term appears outside the usual range established by comparable cases.
The Lagos judgment itself compares and applies earlier decisions such as R v Foster and distinguishes R v Wales (McPherson JA [14]-[15]). The judgment does not record decisions made after Lagos, and the Court of Appeal’s own treatment within this judgment is to rely on comparative sentencing principles and to apply them to the present facts (McPherson JA [15]). Any assessment of subsequent judicial treatment of Lagos requires review of later reported decisions; the present judgment does not provide that material.
Several sentencing questions remain fact-sensitive and may arise in later cases:
Distinguishing recklessness from inattention or misapprehension: Lagos emphasises that recklessness requires conscious appreciation of risk (McPherson JA [13]-[14]). Courts will continue to have to assess, on often sparse sentencing material, how to infer what the offender appreciated at the relevant moment.
The weight to give provocation and abuse at sentencing: Lagos took provocation into account as mitigating (McPherson JA [6], [15]). The precise quantum of mitigation available for provocation short of a defence remains open to refinement depending on facts and comparative sentences.
Comparative sentencing limits: Lagos used R v Foster (a nine month wholly suspended sentence) as a comparative authority (McPherson JA [15]). As more decisions emerge, courts will need to develop a clearer range for dangerous operation causing grievous bodily harm in varied factual matrices (deliberate vehicle attack; momentary inattention; levels of injury).
Interaction of statutory consequences and sentencing: The decision notes statutory disqualification and loss of taxi licence as consequences that factored into the overall assessment (McPherson JA [5], [16]). How courts weigh collateral consequences when deciding whether to order actual custody remains an area for judicial calibration.
Sentencing information on precise sequence of events: McPherson JA noted the sentencing material did not make the sequence entirely clear, which affected the culpability assessment (McPherson JA [12]). The level of factual particularity required at sentence to justify imprisonment versus suspension is an open procedural and practical issue for sentencers.
In sum, R v Lagos is an instructive appellate decision on sentencing for dangerous driving causing injury where culpability is contested between recklessness and inattention, and where provocation and early plea are significant. It underlines the importance of careful factual analysis at sentence, the proper application of the test for recklessness, and the utility of comparable authorities when assessing whether a sentence sits within the commonly applied range (McPherson JA [12]-[16]; McMurdo P [3]).
Director of Public Prosecutions (Queensland) for the respondent
[1] McMURDO P: I agree with the reasons for judgment of McPherson JA.
[2] Although the learned primary judge in his sentencing remarks said he was satisfied that the applicant showed a degree of recklessness or disregard for the safety of his passenger, his Honour tempered that finding by stating that the culpability was the applicant's omission to satisfy himself that one of the passengers was not alighting from the vehicle when he reversed suddenly. His Honour did not find the applicant deliberately reversed the vehicle knowing the complainant was then attempting to alight from the cab.
[3] Here the conduct of other passengers in the vehicle must have been offensive and concerning to the applicant. The applicant cooperated in the administration of justice and pleaded guilty at an early stage. He had no prior convictions for like conduct. The grievous bodily harm suffered by the complainant was towards the less serious end of the scale. Despite the worrying aspects of the offence, these factors and the judge's findings persuade me that a sentence of two years imprisonment requiring the applicant to serve four months actual custody before suspension is manifestly excessive.
[4] I agree with the orders proposed by McPherson JA.
[5] McPHERSON JA: The applicant for leave to appeal against sentence was convicted in the District Court on a plea of guilty to a count of dangerous operation of a vehicle causing grievous bodily harm. In January this year, he was sentenced to imprisonment for 2 years suspended for an operational period of two years after serving 4 months. He was also disqualified from holding or obtaining a driver's licence for six months, which is a statutory consequence of conviction in such circumstances.
[6] At about 3.00 am on 23 January 2002 the applicant picked up four passengers in Fortitude Valley wishing to travel to Windsor in his cab. They were three men and a woman, who is the complainant in the proceedings. A man named Justin Senecal sat in the front passenger seat, with the other three in the back. He and perhaps one or more of the others had been drinking a great deal that night and were the worse for alcohol. On route to Windsor Senecal shouted at the occupant of another taxi against whom his group bore some animus. He then began playing with the left hand rear vision mirror, which the appellant asked him not to do, complaining that it meant he could not see properly. Then or later, Senecal became abusive and referred to the applicant as a "wog".
[7] One of the men in the back, Corey Walas, asked the applicant to stop in Palmer Street near where he lived. The applicant performed a U-turn into an area of light on the other side of Lutwyche Road. He did so for reasons of safety having regard to the lateness of the hour. Walas alighted from the vehicle, as also did Senecal. The applicant asked for payment of the $10 cab fare. It was then, if not before, that Senecal insulted him, adding with respect to the fare that he would do whatever he liked. He also delivered a kick to the outside front passenger door. He shouted out that it was a "free ride" and urged the others to get out saying "let's go".
[8] The evidence relied on at the sentencing hearing is not entirely clear about the precise sequence of events that followed, but there appear still to have been two passengers in the rear of the cab at this stage. One of them had already alighted when the applicant began to reverse his cab. The other, who was the complainant, was in the process of alighting or had alighted. She seems to have been caught behind the open rear door, and, as the vehicle reversed, was dragged along by it and eventually lost her balance. She fell to the ground and may then have continued to be dragged along the roadway. Prosecuting counsel said that the best he could say was that she was dragged "a short distance, not any significant distance". She sustained a 12 cm laceration on her left leg extending down to the knee, a 5 mm laceration on the skin, and multiple abrasions on the right leg, right buttock, right foot and left elbow. Her left leg was in a splint for two weeks and for a time lost some of its function. Full recovery would take some months, but by the time of the hearing she was said to have recovered. Had she not been treated, the disability might have been permanent. In the result, she was left with scarring, which was said to justify the grievous bodily harm charge. She had done nothing to provoke or abuse the applicant.
[9] The applicant was a 43 year old man who migrated to Australia from Chile in 1988. He had attended a tertiary institution in Santiago, and took courses here to learn or improve his English; but language difficulties have confined his employment since his arrival to driving as a courier or cab driver or, for some time, as a fork lift driver. He has a minor criminal record consisting of a shoplifting charge in 1991, for which he was discharged without recording a conviction; in 1996, he was convicted of a Jobstart fraud involving some $2,350, in respect of which he was given a bond and required to perform community service, as well as making restitution, which presumably has been done.
[10] His traffic record displayed numerous breaches of the Traffic Act or Regulations, almost all of which involved exceeding the speed limit, as a result of which he lost his licence on some three occasions through an accumulation of points. His Honour viewed these speeding offences as an "occupational hazard" for persons who earn their living as taxi drivers. As a result of the conviction for the present offence, the applicant has lost his taxi licence and will have to re-apply for it, in which he may not be successful. He is now living on social security payments. He has three children, twin daughters who have qualified for degrees at university level or were about to do so at the time of sentencing, and a son who was beginning his studies at QUT.
[11] The applicant co-operated with the police and he pleaded guilty. His Honour evinced some sympathy for him, but considered that a prison sentence was called for. There was some discussion at sentencing about whether the applicant's conduct could be characterised as reckless or a consequence of mere inattention. Having pleaded guilty, it was strictly speaking not open to the applicant to claim that the bodily harm inflicted on the complainant was the result of an "accident" in terms of s 23(1)(b) of the Code. It would almost certainly not have been according to the test in R v Taiters. Whether or not he had been reckless, was, however, relevant to punishment and to the question whether the offence was such as to call for imprisonment.
[12] On this issue the learned judge's sentencing remarks are somewhat ambiguous. He said that reversing the taxi when there were still two passengers in the rear seat was "culpable" in that "you did not satisfy yourself that one of the two passengers was not alighting from the vehicle" when reversing. His Honour inferred that the applicant had considered it important to keep at least one passenger in the cab to secure payment of the fare. On the other hand, while saying it was not a case of momentary inattention, his Honour also characterised it as one of recklessness or disregard for the safety of the passenger still in the taxi.
[13] Recklessness has been defined as conscious disregard for known or obvious risks. There was an obvious risk that a passenger might suffer some injury if the vehicle was reversed while he or she was alighting. What is not so clear is whether the applicant was conscious that one of the remaining passengers was attempting to do so when he reversed. From something he said in the course of the police interview, it seems that the applicant thought that the complainant herself was already out of the vehicle and "when I saw the second one stepping out I started to move the car to reverse it". That certainly goes strongly against him, but it is not clear that he realised that the car door would entrap the complainant and so drag her along causing the injuries of the severity of those inflicted. He must, however, have realised the possibility that some injury might be caused to someone if he moved the vehicle while he or she was getting out.
[14] The case is, I consider, one in which the applicant ought to have foreseen that possibility, but, on the material at the sentence hearing, that he did not appreciate the nature or extent of the injury that might ensue. It seems unlikely that, if he had done so, he would have acted as he did. As he himself said, it was only a $10 fare. He may, however, have been thoroughly provoked by then. Counsel were unable to refer us to previous decisions of this Court in which comparable circumstances have been disclosed. No real assistance is to be derived from R v Wales (CA 254 of 2002), in which an appeal against a sentence of 16 months suspended after four months was dismissed as being not excessive. In that case, however, the applicant drove a loaded six ton truck through a red light at an intersection colliding with another vehicle and causing life-threatening injuries having permanent and disabling consequences for his victim. He had decided to run the light when it was amber knowing the stopping limits of his loaded vehicle. The Court there was not asked to pass upon adequacy of the sentence; but the seriousness of the conduct, both in terms of the outcome and the risk taken, was obviously far greater than in the present case.
[15] R v Foster [2002] QCA 482 was a case very similar to this, in which a taxi driver drove off in a state of some anger before the rear passenger door of the cab was closed, with the result that a passenger was thrown on to the road and suffered head injuries causing permanent loss of his sense of smell and taste. The sentence imposed in the District Court was imprisonment for 9 months, which was wholly suspended. The appeal in that case was confined to conviction, and the Attorney-General did not seek to challenge the sentence imposed. Other cases discussed on appeal involved deliberate use of a vehicle as a weapon against a person, which is a much more serious form of this offence. It is noteworthy that the primary sentences in some of these cases were at the same level as or even more lenient than that in this. See R v Obern [2002] QCA 444 and R v Theuerkauf (CA 413 of 2002). That is not to say that they are to be recommended, but it is a reason for supposing that the sentence imposed here may have been outside the range that has commonly been applied. Taken with the provocation and abuse to which the applicant was subjected, it might also explain why prosecuting counsel at sentencing hearing submitted that this was a matter which the judge might consider would not warrant a term of actual imprisonment.
[16] All matters considered, I have come to the conclusion that the applicant's conduct was not such as to justify a head sentence of the duration imposed or of the unsuspended period which he was left to serve. He spent some 11 days in custody before being bailed, which will, it may be supposed, serve as some form of deterrent against similar conduct in the future. As matters stand, he has been disqualified for some time from earning a living in the only way in which he has been able to do so in the past, and he may not be successful in regaining his taxi driver's licence.
[17] I would grant the application and allow the appeal by ordering that the whole of the remaining period of the sentence be suspended forthwith.
[18] JERRARD JA: I have read the reasons and orders proposed by McPherson JA and respectfully agree with those.
R
Lagos [2003] QCA 121
Application for leave to appeal against sentence granted; appeal allowed; whole of the remaining period of the sentence suspended forthwith (McPherson JA [17]; orders).