R v Vance; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Vance; ex parte A-G (Qld) [2007] QCA 269

PARTIES: R v VANCE, Paul David (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 76 of 2007 / DC No 91 of 2007

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by A-G (Qld)

ORIGINATING COURT: District Court at Southport

DELIVERED EX TEMPORE ON: 24 July 2007

DELIVERED AT: Brisbane

HEARING DATE: 24 July 2007

JUDGES: de Jersey CJ, Keane JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal allowed 2. That the sentence imposed in the District Court on 13 March 2007 be set aside and that it be ordered in lieu: (a) that the respondent be imprisoned for three years, suspended after a period of 12 months for an operational period of three years; and (b) that the respondent be disqualified from holding or obtaining a driver's licence for a period of five years.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to dangerous operation of a motor vehicle causing death – where respondent 20 years of age with minor criminal and traffic history – where respondent drove while grossly fatigued – where respondent had no recollection of collision with cyclist, and failed to stop at the scene, coming forward more than two days later – where sentencing Judge reduced time to be served because of respondent’s youth, remorse and steps towards rehabilitation – where respondent sentenced to two years’ imprisonment suspended after six months for an operational period of two years – whether sentence imposed manifestly inadequate / R v Gruenert; ex parte A-G (Qld) [2005] QCA 154; CA No 439 of 2004, 13 May 2005, distinguished / R v Hardes [2003] QCA 47; CA No 393 of 2002, 18February 2003, followed / R v Harris; ex parte A-G (Qld) [1999] QCA 392; CA No 161 of 1999, 21 September 1999, distinguished / R v Lacey [2005] QCA 431; CA No 292 of 2005, 23November 2005, considered / R v McGuigan [2004] QCA 381; CA No 285 of 2004, 15October 2004, distinguished / R v Proesser [2007] QCA 61; CA No 19 of 2007, 5 March 2007, considered

COUNSEL: M J Copley for the appellant / C F C Wilson for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Buckland Criminal Lawyers for the respondent

THE CHIEF JUSTICE: The respondent pleaded guilty to the dangerous operation of a motor vehicle at the Gold Coast on the 30th of April 2006 causing the death of Allan Keith Scott. The respondent was sentenced to two years' imprisonment suspended after six months for an operational period of two years and he was disqualified from holding or obtaining a driver's licence for a period of five years.

At the time of the offence the respondent was 20 years of age. His prior history included convictions in January 2006 for a minor drug offence and two years earlier for the offence of failing to stop at a red light. This offence occurred in the following circumstances.

The deceased, a 54 year old man, was riding his bicycle between 5.15 a.m. and 5.30 a.m. along a main arterial road at Burleigh Waters. He was riding in an emergency stopping lane which was bounded by a continuous white line and was situated to the left of the lanes available to motorists.

The respondent was driving his motor vehicle in the same direction approaching the deceased from the rear. There was little traffic, the street lights were illuminated and the weather was fine.

At a point where the road started to curve to the right the respondent's vehicle crossed into the emergency lane and collided with the guard rail. Then his vehicle collided head on with the rear of the bicycle. The deceased was thrown 37 metres forward. The respondent did not stop at the scene. Other motorists found the deceased at 5.30 a.m. lying face down in a pool of blood. He died shortly after the ambulance arrived.

The tragic significance of the loss of his life to his family emerges poignantly from the victim impact statements from his partner, her two daughters and a family friend.

The offence occurred on the 30th of April 2006. On the following day the respondent's solicitor informed police officers about a telephone call from someone who turned out to be the respondent.

The caller was said to be "unsure" whether to give himself up. On the 2nd of May 2006 the solicitor told the police that his client would be surrendering later that day. At 2.45 p.m. that day the solicitor informed the police of the respondent's name and address. The police went to the respondent's house. They took possession there of the relevant vehicle.

Damage to the side of the vehicle was consistent with a comparatively slight impact with a guard rail. The windshield, however, was substantially damaged. The rear vision mirror was found on the backseat of the vehicle. There was broken glass on both front seats and on the clothing the respondent had been wearing. No tyre marks were seen suggesting any substantial braking leading up to the point of impact.

On the 30th of August 2006 the prosecution was notified the respondent would plead guilty. At the sentencing hearing counsel for the respondent informed the learned Judge that the respondent had consumed his last alcoholic drink by 7 p.m. on the 29th of April. He had previously drunk four or five full strength beers.

At 9.30 p.m. that day he drove friends into Surfers Paradise. They visited establishments at which he drank only water. At 4.30 a.m. on the 30th of April he drove back to a friend's house alone and then decided to drive home because he could not get into the friend's house.

The sentencing Judge was told the respondent had no recollection of a collision and that he did not see the deceased before or after it. He stopped some distance further on from the point of impact and looked at the damage to his vehicle but then drove home which was a distance of some 5 kilometres from the scene of the collision.

On the 1st of May, in response to a newspaper article, the respondent accepted it was he who had struck and killed the deceased. The respondent surmised he must have fallen asleep. Having observed that the respondent's failure to report the incident meant his blood alcohol level could not be tested, an aspect always of concern in such situations, her Honour sentenced the respondent on the basis that:

"The only factor which contributed to the collision was fatigue and that you fell asleep at the wheel."

Her Honour was troubled, however, by the circumstance that the respondent "did not try to investigate what had occurred but instead continued" his journey home. She said:

"The extent of the damage to the vehicle can have left you in no doubt that you had been involved in a major accident. The damage to the windscreen was so severe that you could not possibly have seen through it yet you continued your journey home some 5 kilometres or so."

As she observed, it fell to the respondent, not passing motorists, to attend to any victim.

As factors warranting moderation, her Honour identified the respondent's age, 20 years at the time, that he had taken steps towards rehabilitation "by undertaking a safe driving program and first-aid training and continuing to train with the State Emergency Service"; that he had shown some remorse, including providing a letter of apology to the family on the day he surrendered himself to the police, his plea of guilty to an ex officio indictment, and the substantial absence of any significant prior history.

Having determined upon two years' imprisonment as the appropriate head term, her Honour observed that because of his "voluntary surrender, co-operation and early plea of guilty" he could ordinarily have expected to serve eight months, which is one-third of that term. But adding in his "youth, subsequent remorse and steps towards rehabilitation", her Honour extended further leniency reducing the period to be served from eight months to six months.

The Attorney-General appeals on the basis that the sentence imposed was manifestly inadequate. A number of factual points have been raised in support of the appeal.

1. It was submitted for the appellant that the learned Judge gave too much weight to the question or remorse manifested in a letter of apology and a plea of guilty. The letter of apology followed the respondent's having retained a solicitor and being charged. Letters of apology are not infrequently delivered these days in such circumstances. Judges have come to be careful about considering them as necessarily or even probably significantly evidencing real remorse.

The much more powerful countervailing considerations were that the respondent left the scene and realised a little later he had been involved in a major incident - not simply glancing off the guide rail; in that he did not investigate the fate of any victim, and he should have surmised there may have been one; and in that he did not assist the authorities by coming forward for more than two and a half days or so after the incident.

That delay may have been explained by sheer panic, or waiting until his system was clear of alcohol and drugs, or hedging his bets on the prospect of identification, or a combination of those matters. Her Honour was informed the respondent's parents' reluctance contributed to the delay. But that does not avail this respondent in these circumstances. Whatever the overall combination of circumstances actually explaining the delay, it remains a feature telling against claims of true remorse or full co-operation, as well as being morally reprehensible.

This is not a case where, even allowing for the plea of guilty to the ex officio indictment, the question of remorse should have assumed great significance as a feature in mitigation.

That aspect is substantially diminished by the respondent's behaviour in leaving the scene and not coming forward for that substantial period.

2.It was submitted her Honour gave too much weight to the respondent's steps towards rehabilitation. She referred to the respondent's training with the State Emergency Service. It is difficult to see any major connection between that and reforming his driving patterns and improving his general level of responsibility.

The respondent's completion of a driver's safety course was, of course, relevant, but in the end, efforts of rehabilitation should not have assumed any major significance in this sentencing process, and I should say that it is not apparent that they did.

3.Her Honour referred to the respondent's "voluntary surrender" which, taken with the plea of guilty and cooperation would, in her view, have warranted his serving one-third of the two year head sentence of eight months actual imprisonment.

Even if one cannot infer that "surrender" was prompted by a realisation that the respondent would likely be identified as the relevant driver, it took him two days and nine hours, approximately, to “surrender”, as it is put.

That increased the suffering of the deceased's partner and would have wasted police resources. In my view, the weight to be attributed to that coming forward was overwhelmed by the circumstances preceding it.

The predominantly important features of this case, for a sentencing Judge were, first and foremost, that a fellow human being was killed because of the respondent's dangerously neglectful driving.

Second, the circumstances which led to the collision, namely, fatigue in a situation where the respondent, a young adult, out of his teens and with three years' driving experience behind him, should have appreciated he was unfit to drive yet nevertheless chose to do so.

Third, the Judge's correct characterisation of the neglect, as surpassing "momentary inattention." That characterisation was appropriate having regard to the respondent's driving over an appreciable period while grossly fatigued.

Fourth, the respondent's reprehensible conduct in leaving the scene, where he must be taken to have known, from the extensive damage to his vehicle, discovered soon after, that he had been involved in an incident far more serious than merely glancing off a guard rail, and where he chose to drive the substantial distance of five kilometres home.

Fifth, his not surrendering to the police for almost two and a half days following the incident, inferentially explained only by circumstances personal to him.

The main considerations properly to be taken into account in mitigation were the respondent's young age, 20 years at the time of the offence and 21 years when sentenced, his plea of guilty to an ex officio indictment and the lack of any substantial relevant, prior criminal history.

It was submitted for the appellant that a sentence of the order of three and a half years' imprisonment should have been imposed. The prosecutor before her Honour submitted for a head sentence in the "range" of three years' imprisonment.

I refer now to the three cases advanced for the appellant.

1.McGuigan [2004] QCA 381 was a case of dangerous driving causing grievous bodily harm. The sentence imposed on appeal was three and a half years' imprisonment with parole recommended after 18 months.

That applicant had a very bad traffic history unlike the present respondent and that applicant was subject to a suspended sentence at the time of offending. He also left the scene and he later misled the police. He was older, aged 49 years when he offended. He injured a pedestrian when driving through a pedestrian crossing.

McGuigan is to be contrasted with this case especially on the grounds of age and past traffic history. On the other hand, this was a case of death rather than grievous bodily harm, although in each case the maximum penalty was the same, seven years' imprisonment.

2.Hardes [2003] QCA 47 was 42 years old when he offended. He pleaded guilty to dangerous operation causing death. He cut a corner and hit a cyclist. He was sentenced to three years' imprisonment.

Like McGuigan, Hardes had a bad traffic history. He also left the scene which attracted a one year cumulative term. There was another six months added for disqualified driving.

The Court described the three years as "at the very bottom of the range for such an offence." The three years in that case must have been set without reference to the callousness involved in Hardes having left the scene, charged there as a separate offence under section 92(1) and (4) of the Transport Operations (Road Use Management) Act 1995, which attracted the additional term to be served cumulatively.

The overall term for the dangerous operation causing death, leaving the scene callously and disqualified driving, was four and a half years' imprisonment.

In relation to the three years imposed for the dangerous operation causing death, described as, at the very bottom of the range for such an offence, the point of present distinction is that Hardes had a bad traffic history. But on the other hand, this case is attended by the leaving of the scene, suggesting a lack of remorse and irresponsibility, and not surrendering to the police for almost two and a half days. Hardes would suggest that the head term in this case should have been, at least, three years' imprisonment.

3.Lacey [2005] QCA 431 pleaded guilty to dangerous driving causing grievous bodily harm. He was sentenced to two years' imprisonment, the same head term as here, suspended after three months. He was 24 years old and genuinely remorseful.

He injured his complainant passenger when he drove the vehicle into a tree. But he assisted her actively over a long period. Over two years, Lacey had accumulated three speeding violations.

While the present respondent had only the conviction for driving through a red light, the major points of contrast are that the present respondent left the scene and did not surrender to the police for almost two and a half days and he caused a death rather than grievous bodily harm.

The sentence imposed in Lacey suggests that the two year term, suspended after six months imposed here, was at least extremely lenient.

Counsel for the respondent referred to a number of cases. I mention the major ones.

1.Proesser [2007] QCA 61 was a grievous bodily harm case in which the sentence was 18 months' imprisonment suspended after three months. Significantly, it was a momentary or short inattention case in which the offender remained at the scene, offering assistance and was truly remorseful.

2.Harris [1999] QCA 392 was an unsuccessful attorney's appeal against an intensive correction order. The Court was split. The 1997 amendments to the Penalties and Sentences Act 1992, section 9(3)(b) were then of fairly recent origin.

I suggest that with developing attitudes to responsible driving over the last eight years, even a young driver who caused both death and grievous bodily harm by driving too fast must now expect imprisonment.

It is fair to observe that respondent escaped imprisonment on appeal because of the cautious approach adopted on attorney's appeals.