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FILE NO/S: CA No 176 of 2002 / DC No 1038 of 2001

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by A-G (Qld)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 20 August 2002

DELIVERED AT: Brisbane

HEARING DATE: 6 August 2002

JUDGES: McPherson and Williams JJA and Holmes J Separate reasons for judgment of each member of the Court; McPherson and Williams JJA concurring as to the orders made, Holmes J dissenting.

ORDERS: 1. **Allow the appeal.**2. **Set aside the sentence imposed and substitute a sentence of two years’ imprisonment suspended after 11 months with an operational period of four years.**3. **The term of disqualification should stand.****4.**A warrant should issue for the arrest of the respondent but lie in the Registry for a period of 48 hours.

CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM – GENERALLY – where respondent convicted of the offence of dangerous operation of a motor vehicle causing death and received a sentence of 2 years’ imprisonment, suspended after three months, with an operational period of 4 years and disqualification of drivers licence for 3 years – whether the sentence was manifestly inadequate / R v Balfe [1998] QCA 14; CA No 444 of 1997, 20 February 1998, considered / R v Melano (1994) 75 A Crim R 392, applied

COUNSEL: R G Martin for the appellant B G Devereux for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant Legal Aid Queensland for the respondent

1. McPHERSON JA: I agree with the reasons of Williams JA. The appeal should be allowed. There should be orders in the terms set out in his Honour’s reasons.

2. WILLIAMS JA: The respondent was convicted after trial of the offence of dangerous operation of a motor vehicle causing death. He was sentenced to two years’ imprisonment, suspended after three months, with an operational period of four years. He was also disqualified from holding a drivers licence for a period of three years. The Attorney-General now appeals against that sentence.

3. On Thursday 18 November 1999 at about 8.30 a.m. the respondent was driving a semi-trailer loaded with gravel in Kluver Street, Bald Hills. Photographs show that in the vicinity of where the incident occurred the road was relatively narrow and running through a suburban residential area. The incident occurred as the respondent was attempting to navigate a sharp, blind corner to his left. As he approached that corner there was an advisory speed sign indicating a speed of 30 kilometres per hour. On the evidence before the jury the respondent attempted to negotiate the corner at a speed probably in the range 31.5 to 34 kilometres per hour. The vehicle, which was carrying a load of just under 20 tonnes of gravel, was unable to take the curve on its correct side of the roadway. Tyre marks, clearly depicted in the photographs, show that the vehicle travelled almost completely onto the incorrect side of the roadway – the driver’s side wheels coming close to the kerb on the far side of the road. Obviously the respondent then saw a vehicle immediately in front and endeavoured to swerve violently to the left. That caused the semi-trailer to tip over. The trailer fell on top of a vehicle containing a young woman as driver and her four children as passengers. The vehicle was substantially crushed and covered in sand. The woman was killed, but fortunately the children escaped relatively unscathed.

4. The respondent did not give evidence at trial but in the course of submissions on sentence his counsel informed the court that this was the first occasion on which he had driven around that corner in a semi-trailer with a load of gravel. It was made clear in this court that the respondent had previously used the road driving another vehicle. It was also accepted that at the material time Kluver Street was the route recommended by the local authority for use by heavy vehicles.

5. Evidence led by the prosecution before the jury suggested that for such a truck, with such a load, the appropriate speed rounding the corner would have been of the order of 15 to 20 kilometres per hour.

6. In the course of his sentencing remarks the learned sentencing judge noted that the guilty verdict meant that the respondent’s “driving did fall below the standard of a careful and competent driver”. He referred to an obligation on the respondent’s part “to reduce the speed of your vehicle to such a level that you could proceed slowly around the corner” and concluded that “it was the fact the speed at which you were driving the vehicle, was equal to, or in excessive of the threshold, that the trailer came to overturn”. That was in his view “a serious miscalculation of the speed at which you should approach the corner and negotiate it”.

7. The respondent was tested after the incident and it was established that there was no alcohol in his system. The learned sentencing judge noted that the respondent had a minor criminal history which was quite old and irrelevant for present purposes. He also had a traffic history which was somewhat more recent though not extensive. The learned sentencing judge commented that the traffic history was “not one that is of particular concern”. Those observations were not challenged on appeal.

8. The respondent was born on 29 March 1962, making him aged 37 at the time of the offence and 40 at time of sentence. He had been driving heavy motor vehicles for a considerable period of his working life.

9. The learned sentencing judge was referred to the decision of this court in The Queen v AJ Balfe (CA 444 of 1997, 20 February 1998). In that case a utility came to a halt in a lane on the roadway marked for vehicles turning right. There were two lanes to its left for vehicles travelling straight ahead or turning left. Balfe was driving a prime-mover and semi-trailer laden with 43 tonnes of crusher dust. The day was sunny and the weather clear. The roadway was straight for some considerable distance prior to the stationary utility. The utility would have been visible to the driver of the prime-mover over a distance of some 350 metres. The prime-mover was travelling at 80 kilometres per hour which meant that the utility was in view for some 15 seconds. The prime-mover ploughed into the utility killing both of its occupants. Brakes were not applied prior to impact. Balfe was aged 54 and had been driving heavy vehicles for 26 years. He had no criminal history of significance. His traffic history was also of no significance. Alcohol was not involved and there was no suggestion he had been distracted by an emergency. His appeal against three year’s imprisonment was dismissed though it was described by the court as a “heavy sentence”.

10. In this case before the learned sentencing judge, and again in this court, counsel for the respondent sought to distinguish Balfe on the basis that the driving there was more culpable, primarily because of the length of time Balfe should have had the utility in view and the ease with which he could have avoided a collision.

11. It is true that Balfe can be distinguished on that basis, but there are nevertheless significant points of similarity. Both drivers were experienced in the control of heavy vehicles. Both had criminal and traffic histories of little or no significance. Alcohol was not involved in either case. In each case criminally negligent driving caused death.

12. In my view, having regard to the sentence in Balfe, it was appropriate to fix the head sentence in this case at two years. The question then becomes whether there were justifiable grounds for suspending that sentence after the respondent served three months. The reasons given by the learned sentencing judge for so suspending the sentence were as follows:

“I am satisfied that, in the circumstances, it is appropriate to suspend part of the term that I have imposed. In doing so I indicate that I have not formed the view that the protection of the public from harm dictates actual imprisonment for that period. I have had regard to your general background, to your age, to your domestic circumstances and I am appreciative of the circumstance that you have a 14 year old daughter and will have to make arrangements for her. I am sure she will not be left homeless and alone but arrangements will have to be made and that may involve, of course, the loss of your rented home.”

13. There was evidence before the learned sentencing judge that the daughter could be adequately cared for during any period of imprisonment, though the daughter herself in a letter admitted into evidence indicated she did not want her father to go to prison.

14. In my view those circumstances did not justify suspending the head sentence after serving three months. This was a case of criminally negligent driving of a heavily laden semi-trailer which caused the death of a young mother. The incident occurred on a suburban, residential street at a time of day when there was a high probability of other traffic, or even young children, being on the roadway. The corner was one which must have alerted the respondent to the fact that it had to be negotiated with extreme care given the nature of his vehicle and its load. His failure to do so constituted criminal negligence and a death resulted. In those circumstances there was no justification for suspending the sentence after a period of three months.

15. This is an Attorney’s appeal and the court must bear in mind the approach outlined in Melano (1994) 75 A Crim R 392. The situation is complicated by the fact that the respondent was released from prison on 30 July 2002 before the hearing of this appeal. The court was also told that the respondent is a sufferer from insulin dependent diabetes and that he experienced some diabetic complications whilst serving the three months in custody.

16. Given that a suspended sentence was initially imposed I am of the view that, bearing in mind this is an appeal by the Attorney-General, a sentence so structured should be maintained rather than leaving the respondent’s release to be dependent upon a successful application for post-prison community based release. Given the circumstances which exist at the present time it is appropriate to increase the sentence so that the respondent must serve in all a period of 11 months imprisonment before the suspension becomes operative.

17. As the respondent suffers from insulin dependent diabetes his dietary requirements and need for medication should be brought to the attention of the Corrective Services Department so that appropriate steps can be taken to ensure that his diabetes is kept under control.

18. In the circumstances the orders of the court should be:

19. Allow the appeal.

20. Set aside the sentence imposed and substitute a sentence of two years’ imprisonment suspended after 11 months with an operational period of four years.

21. The term of disqualification should stand.

22. A warrant should issue for the arrest of the respondent but lie in the Registry for a period of 48 hours.

23. HOLMES J: I have had the advantage of reading the judgment of Williams JA. I gratefully adopt his account of the facts which were before the learned sentencing judge. However, I am unable to agree with the conclusion that the Attorney-General’s appeal should be allowed.

24. Counsel for the Attorney, Mr Martin, relied squarely, for his argument that the sentence was manifestly inadequate, on the decision of this court in Balfe¹, the facts of which are set out in the judgment of Williams JA. But in my view, consideration of what was an appropriate sentence cannot start and end at Balfe. It does no more than provide an illustration of a sentence towards one end of the range, the court there acknowledging that it was “a heavy sentence”. Strictly speaking, the sentencing range is, of course, as Dowsett J observed in Sheppard, that prescribed by parliament; that is between the range of non-custodial penalties provided for by the Sentences and Penalties Act and the upper limit of seven years imprisonment. And

“Earlier decisions, including decisions of appellate courts, can only be a guide to where the instant case falls in the range” ².

21. But it is possible to speak of, and to discern from an examination of the available authorities, a range of sentencing for a particular offence beyond which doubt begins to arise as to whether the sentencing discretion can have been properly exercised. It is appropriate to begin an examination of the authorities in relation to dangerous operation of a motor vehicle causing death with cases involving sentences imposed after the amendment to s 9 of the Sentences and Penalties Act, 1992 which came into effect on 1 July 1997. The effect of that amendment was to remove firstly, in cases where physical harm was caused, the governing principle that a sentence of imprisonment was a last resort, and secondly, the limitation in s9(4) of the circumstances in which imprisonment could be imposed on offenders under the age of 25.

22. R v Anderson³ was an Attorney-General’s appeal against the imposition of a sentence consisting of a probation order with community service and licence disqualification on a respondent whose vehicle had struck and killed a small child standing on the roadway. The respondent, who was 18 years old at the time of the offence, was unlicensed, his licence having been cancelled two months prior to the offence. He had on two occasions been fined for exceeding the speed limit, and on another for driving on a learner’s permit without supervision. On the occasion in question his blood alcohol concentration was .055 percent, although this was not charged against him; rather it was relied on as demonstrating an indifference to the law. He had been driving with his vision obscured by a dirty windscreen and had immediately prior to the collision with the child been looking away from the road and towards his front seat passenger to whom he was talking. That conduct was described in the judgment of Shepherdson J as “a course of driving as opposed to momentary inattention”⁴. In the respondent’s favour were his youth, his good employment history and reputation, his remorse and his early plea of guilty. Shepherdson J, having reviewed the authorities, observed that the appropriate sentence lay within a range

“from a sentence of imprisonment for a short term, either wholly or partly suspended, down to non-custodial penalties especially community based orders”. ⁵

The President similarly noted that:

“for an offence of this type, where alcohol is not involved as a causative factor, where there is no excessive speed and where the dangerous driving is constituted by inattention over a short period, a custodial sentence is not inevitable, although custodial sentences suspended after a short period of actual detention are often imposed.”⁶

In the result, the Attorney-General’s appeal was dismissed.

23. In The Queen v Michael Gregory Tapau⁷, the applicant sought leave to appeal against a sentence of 18 months imprisonment with a recommendation for parole after six months. He was 26 years old, without criminal history, but with a traffic record for speeding, driving under the influence, and unlicensed driving. The accident in question had been caused by his attempt to overtake a number of vehicles where it was obviously unsafe to do so. He had forced one vehicle to swerve on to the shoulder, hitting a guide post; and to avoid oncoming traffic had to drive his own vehicle off the road to the right, hitting a tree and killing a back seat passenger. Thomas JA described the conduct as going “beyond inattention”. In the applicant’s favour were his lack of criminal history, good work history, family commitments, and an early plea of guilty. The court described the head sentence of 18 months imprisonment as within the appropriate range, while the recommendation for early parole placed the actual sentence “well within the limits of the proper sentencing discretion”. Accordingly, the application was dismissed.

24. R v Harris; ex parte Attorney-General⁸ was another Attorney-General’s appeal, in that case against a sentence of 12 months imprisonment to be served by way of intensive correction order. The respondent there was 20 years old at the time of the offence, and was driving unsupervised although he held only a learner’s permit. He had previous convictions for breaking and entering and possession of a dangerous drug. The cause of the accident was described by the Chief Justice as “substantial speed together with inadequate lookout, over a short period, but not momentarily”. The respondent had come over a hill at excessive speed and failed to see a vehicle entering, with right of way, an intersection from his right. He caused the death of a woman occupant of the vehicle and serious injury to her husband. Consistently with the approach taken in Anderson, and having regard to the caution to be applied on an Attorney-General’s appeal, the majority dismissed the appeal.

25. A more recent case, worthy of mention because it involves the imposition, on an Attorney-General’s appeal, of a penalty involving a similar period of actual custody to that proposed here, is The Queen v Cusak⁹. It involved a more serious offence, dangerous driving causing death while adversely affected by alcohol with a blood concentration exceeding .15, carrying a maximum of 14 years imprisonment. The respondent in that case had a history of Traffic Act breaches including two speeding offences and a failure to stop at a red light. He was driving a utility with passengers sitting in makeshift seats in its tray. He took a corner in such a way as to make the tyres on one side of the vehicle leave the ground, veered on to the wrong side of the road and back again to the correct side, and then attempted to take the next corner in a similar fashion. The vehicle rolled over, and one of the passengers in the tray was killed. The respondent’s blood alcohol level proved to be .17percent. Factors in his favour were a timely plea of guilty, remorse and a good family background; against, as the court pointed out, were his “deliberately reckless driving with a high blood alcohol level, in the knowledge that passengers were in a vulnerable position in the vehicle”. The appeal was allowed. For a sentence of three years imprisonment wholly suspended for four years with a $10,000 fine was substituted a sentence of three years imprisonment suspended after nine months with an operational period for three years.

26. It will be seen that none of these cases involved heavy vehicles; I could find none within the relevant period. That in itself may provide some reassurance that there is no imperative for particular deterrence in the case of drivers of such vehicles, as opposed to passenger vehicles. Of some age now are the decisions of the Court of Criminal Appeal in The Queen v Seadon¹⁰ and The Queen v Dittmer¹¹. The former was an Attorney-General’s appeal against an order for probation for a period of three years imposed on the respondent. (Originally he had been ordered to perform community service, but the sentencing judge had vacated that order and substituted probation.) The respondent was the driver of a large semi-trailer on the Bruce Highway. While taking a bend the prime mover and semi-trailer crossed two double white centre lines onto the incorrect side of the road, and collided with a vehicle travelling in the opposite direction, killing an occupant of the vehicle. There was no explanation as to how the vehicle came to be on the incorrect side of the road. Kelly J, delivering the judgment of the court, observed that he would not have been in substantial disagreement with the order originally imposed, of community service, but considered probation inappropriate. The appeal was allowed and in lieu of probation a fine of $1,500 was imposed.

27. Dittmer was an application for leave to appeal against a sentence of three months imprisonment. The applicant had been driving an unloaded semi-trailer at a speed of 70 to 80 kilometres per hour, travelling for some distance close to the rear of a Holden sedan ahead of him. The driver of the Holden indicated an intention to turn right and slowed. The applicant’s truck, despite a last minute attempt to avoid a collision, struck it killing the driver. The applicant claimed that he had not seen the vehicle at all until 20 to 25 metres before colliding with it. The court observed that given the considerable distance for which the semi-trailer was travelling behind the Holden and the gradual slowing of the Holden as described by a witness, it was “extremely difficult to describe the inattention of the appellant in driving his semi-trailer at that speed towards the intersection as anything in the nature of momentary”. The sentence of three months imprisonment was upheld.

28. There was no suggestion in the present case that the imposition of a two year head sentence was, in the light of Balfe, inappropriate. The real issue was whether the suspension of that sentence after a period of three months rendered it outside the range of a proper sentencing discretion. Taken together, the authorities support a view that the exercise of a proper sentencing discretion in cases involving dangerous driving causing death would, at least, encompass a custodial sentence suspended after a short period as was imposed here.

29. As Thomas J observed in The Queen v Lincoln Patrick Conquest¹²:

“The factors that would take a sentence further towards the maximum level would include the seriousness of the driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender’s criminal record (with particular emphasis upon his driving history and his attitude towards fellow citizens), and whether the offender has little prospect of rehabilitation.”

30. There was here no element of deliberate recklessness, nor any course of irresponsible conduct. There is nothing about the respondent’s antecedents to require more condign punishment, although there was a factor, not found in other cases, of his being in charge of a vehicle which was inherently more dangerous because of its size and load. However, that does not alone appear to me to justify a conclusion that the sentencing range for practical purposes was not as outlined in Anderson. Although there is no doubt at all that the tragic consequences for the family of the driver of the other vehicle must be recognised in sentencing, that aspect was, in my view, properly met by the imposition of an actual period of custody. Imprisonment of any duration can be expected to bear hard on someone who has for many years lived as a responsible member of the community, and has the care of a dependent daughter.

31. My conclusion that the sentence should not be interfered with is reinforced by recognition of the circumspection which must attend consideration of an Attorney-General’s appeal¹³. It is not possible to say that the sentence imposed by the learned sentencing judge was so far from the exercise of a proper sentencing discretion that it ought to be increased upon such an appeal¹⁴. That is particularly so in circumstances where the applicant has served the three months period which was not suspended and had been released from gaol only a matter of days prior to the hearing of the appeal.