R v Stephenson [1999] QCA 519

[1] THE COURT: On 21 July 1999, the appellant, Keith Andrew Stephenson, was convicted after a trial in the District Court in Bundaberg on one count of dangerous operation of a motorcycle causing death with a circumstance of aggravation that he was affected by an intoxicating substance, namely alcohol, and that his blood alcohol concentration exceeded 0.15 per cent.

[2] The circumstances of the offence were that at about 3 am on 14 March 1998, the appellant left a nightclub in Bundaberg with the deceased, Eugeniusz Stefan Koczan. They had been drinking in various hotels and clubs around Bundaberg that evening. Their transport for the evening was a 750cc motorcycle ridden by the appellant. The deceased rode pillion.

[3] After the motorcycle ridden by the appellant left the nightclub it ran through two red lights as it proceeded towards the Burnett traffic bridge which is an iron bridge crossing the Burnett River in Bundaberg. The iron bridge is about 490 metres in length and there is a sharp left turn at the northern end of the bridge. The motorcycle did not take the turn and both riders were thrown off it. The appellant suffered a broken leg and the pillion rider later died from his injuries.

[4] This is a matter in which there was a very strong Crown case, both because of admissions made by the appellant and because of the objective evidence. The appellant had a blood alcohol level of 0.157 per cent as well as 0.005 milligrams per kilogram of the drug alprazolam, which is the pharmacological name for the tranquilliser sold as xanax. Both alcohol and xanax are depressants and their effect is cumulative. The appellant said that it was not proven that he had that blood alcohol level. However a certificate was filed. Such a certificate is conclusive evidence[1] of the concentration of alcohol present in the blood of the person in question at the time.

[5] The Crown also led evidence that the appellant made a number of admissions as to the speed at which he was travelling which he strongly disputed at trial. Those admissions were said to have been made to a police officer and to another patient in the bed next to him in the hospital within hours of the incident. They are on their face reliable and not unfairly obtained and there is no reason why a jury properly instructed could not accept them. He admitted to the police officer that he was travelling at "[a]t least a hundred, probably more." The appellant told the patient in the next bed that he was doing "160Ks an hour". To both the police officer and the other patient he blamed a bald front tyre rather than suggesting there was any problem with the brakes.

[6] In addition was the uncontradicted evidence that the appellant failed to stop at two red lights. The appellant's driving after he left the night club was observed by police who were on a routine patrol in an unmarked vehicle. They gave evidence that they observed him travel through two red lights, the speed at which he was travelling and that they observed him accelerating when he got on to the bridge and travelling well above the speed limit. His speed on the bridge was also observed by a taxi driver who was travelling in the opposite direction. The appellant sought to contradict the police evidence at trial by pointing out inconsistencies between the speed said to be reached, the distances said to have been covered and the relative distance between the motorcycle and the police vehicle. This was a matter fully canvassed at trial and the jury were then in a position to accept or reject some or all of that evidence[2]. There is certainly no warrant for this Court imposing its view of the evidence in preference to the view taken by the jury.

[7] In addition the Crown relied upon the evidence of a police officer who was a mechanic, Sergeant Carlton, who tested the brakes of the motorcycle and of an accident investigation officer, Sergeant Robertson. The appellant asserted, as he did at trial, that he requested his girlfriend, Anneke Ling, to ask the investigating officer to particularly look at the brakes. He says that he told Ms Ling to do this on the afternoon of the day on which, early in the morning, the incident involving the motorcycle had occurred. Sergeant Carlton said at the trial that he did not know that the appellant had twice complained of brake failure in the six months before the incident. The appellant's complaint, however, is irrelevant since Sergeant Carlton gave evidence that he had inspected the braking system and tested the brakes and concluded that although the back brakes were worn, they were effective and had not failed when the incident occurred. He found that the front tyre was devoid of sufficient tread but that had not contributed to the incident. He was of the view that there were no defects in the motorcycle that could have contributed to the cause of the incident.

[8] The appellant called evidence at trial by a Mr Monsen, a mechanic. He gave evidence as to what he found with regard to the brakes shortly after the incident and that matter was the subject of a proper direction to the jury by the judge. He also gave evidence that when he purchased the motorcycle six months later, he found that the back brakes were "dished". Not surprisingly, that evidence was successfully objected to at trial on the basis that it was not probative of the state of the brakes six months earlier.

[9] Sergeant Robertson, the police accident investigation officer, compared striations on the rear wheel of the motorcycle with markings left on the road and concluded that, as can be observed by looking at the photographs tendered in evidence, the striations on the side of the rear wheel match the markings left on the road suggesting that the motorcycle was already on its side by the time markings were made on the road. The appellant complained that the witness had limited formal training. He did however have extensive experience and the conclusions he drew were not outside his training or experience.

[10] The appellant complained in this Court that the learned trial judge wrongly excluded a report written by Mr Ken King, who is a director of a private company which conducts accident analysis for forensic purposes, and oral evidence sought to be given by him. The trial judge ruled that the evidence Mr King proposed to give as to the speeds at which the motorcycle was travelling on the bridge was inadmissible. His Honour took that view in this case because there were so many assumptions and variables which were the basis for Mr King's opinion that his opinion was unreliable in the circumstances. That is a view with which we agree. This was not merely a case where a question was raised as to whether or not there is an organised branch of knowledge in the reconstruction of traffic accidents.[3]

[11] These assumptions and variables include whether the rear or front brake was applied first, how far the motorcycle travelled once it started sliding, whether a mark on the roadway was consistent with the motorcycle in question braking and whether it was upright at the time, the braking time before a mark was made, variations to data caused by the size and configuration of the motorcycle and the sliding surface, the range of possible decelerations, the slope of the surface covered, the condition of the rear brakes, how effective the rear brakes were at the time, whether the brake fluid was dirty and if so, how dirty and whether the hydraulic lines contained any air, the level of road/tyre grip available, the rate of deceleration, the comparative effectiveness of the front and rear brakes, the weight of the rider and passenger, the balance of that weight between the front and the rear tyre of the motorcycle, whether and when wheel lock occurred, where the pillion passenger was after he was thrown from the motorcycle, whether the pillion passenger hit any obstacles which affected the distance travelled after being thrown from the motor cycle, and the length of time between when the rear brake was applied and the front brake was applied, as well as errors introduced by scanning a Council plan of the intersection and scaling this from measurements taken from the site and by superimposing police photographs. Mr King did not examine the tyres of the motorcycle nor the road surface at a time proximate to the accident. It is not possible in these circumstances to give a reliable estimate, through reconstruction, of the speed of the motorcycle before it started sliding on its side.

[12] The evidence of the appellant's high blood alcohol reading combined with tranquilliser use, disregard of red traffic lights, and excessive speed, together with his own admitted knowledge of mechanical defects in the motorcycle created a very strong Crown case.[4] There was nothing to support the appellant's allegation that his barrister was incompetent. The conviction could not be said to be unsafe or unsatisfactory.

[13] The appellant also applies for leave to appeal against his sentence of four years imprisonment and a recommendation that he be considered eligible for release on parole after serving 15 months of that sentence. He was also disqualified from driving for five years.

[14] The appellant is a 41 year old man with custody of his 12 year old son whose mother has died. His traffic history shows a disregard for traffic rules with a conviction for careless driving in 1992, seven convictions for speeding and two for disobeying a red light. He has a minor criminal history.

[15] The circumstances of the offence combining, as we have said, alcohol, prescription drugs, running two red lights and excessive speed leading to the death of his pillion passenger must be considered along with his apparent lack of remorse, poor driving record and the maximum penalty for this offence which was increased in 1989 to 14 years imprisonment. The appellant does not have the mitigating benefit of a plea of guilty. Specific and general deterrence is significant in determining the appropriate sentence for such an offence.

[16] The sentence is well within the range of comparable cases in the Court of Appeal. In R v Hayes[5], the accused was sentenced to three years imprisonment and was disqualified from holding a driver's licence for two years on a charge of dangerous driving causing grievous bodily harm with the circumstance of aggravation that his blood alcohol content was 0.157 per cent. The circumstances of the offence were that the sedan in which the applicant had been driving had driven dangerously across double lines resulting in a collision with another vehicle causing grievous bodily harm to two young women. Considerations relevant to the sentence were the good character of the accused as well as his good work history and the fact that he supported his family. His sentence was upheld on appeal.

[17] In R v Rowley[6], the accused was sentenced to four years imprisonment with a recommendation for parole after 16 months and disqualified from holding or obtaining a driver's licence for two years. In that case the charge was dangerous operation of a vehicle causing grievous bodily harm with a circumstance of aggravation. The sentence was again upheld on appeal. In that case the applicant was travelling at approximately 89 kilometres an hour when he collided with the complainant who was travelling in an oncoming vehicle at 50 to 60 kilometres an hour. The complainant suffered severe personal injuries. The applicant had a blood alcohol concentration of 0.182 per cent. The accused pleaded guilty and was very remorseful and had himself suffered serious injuries. He had a conviction for driving a motor vehicle with a blood alcohol content of 0.071 per cent and a minor criminal history.

[18] In R v McKinnon[7], a sentence of six years imprisonment with a recommendation for parole after 2½ years was upheld on appeal on a charge of dangerous driving causing death with a circumstance of aggravation that the accused drove with blood alcohol concentration in excess of 0.219 per cent. He was dozing at the wheel when he ran into a parked car and killed the occupant. McKinnon had a criminal history and a traffic history including a prior conviction for being in charge of a vehicle with the blood alcohol concentration of 0.310 per cent. However, he made full admissions to the police, pleaded guilty and was very remorseful.

[19] It can be seen that in the circumstances the sentence of four years imprisonment with a recommendation for parole after 15 months together with a disqualification from driving for five years is not outside the appropriate range.

[20] The appeal should be dismissed and the application for leave to appeal against sentence refused.

[1] Traffic Act 1949 s 16A (15G), (16B).

[2] Viz R v Juraszko [1967] QdR 128 at 139.

[3] Cf Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 501-502; R v Faulkner [1987] 2 QdR 263 at 265.

[4] Cf Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 579.

[5] CA No 319 of 1998, 11 December 1998.