R v Andrews

[1997] QCA 126

[1997] QCA 126

COURT OF APPEAL

FITZGERALD P McPHERSON JA MACKENZIE J

CA No 36 of 1997
THE QUEEN
v.

PETER FRANCIS ANDREWS Applicant

BRISBANE
..DATE 17/04/97
170497 T10/VT26 M/T COA67/97
THE PRESIDENT: This is an application for leave to appeal
against the sentence imposed in the District Court at Brisbane
on 31 January 1997. On that date the applicant pleaded guilty
to one offence of dangerous driving causing death, which he
committed on 27 June 1996. He was sentenced to two years
imprisonment with a direction that 219 days in pre-sentence
custody be regarded as time served under the sentence. Further,
it was ordered that he be disqualified from holding or obtaining
a driver's licence for a period of five years. Eight days after
he had been sentenced he was allowed bail pending this appeal,
so that he has now served a total of 227 days in custody in
respect of the offence.

The applicant is 42 years of age and has a lengthy and very bad criminal history which comprises convictions for violence, offences against property, offences against law and order and drug offences. At the time of the present offence he was on parole for violent offences which he had committed in New South Wales. Included in his criminal history are offences of culpable driving, driving with a prohibited concentration of alcohol in his blood, disobeying traffic lights, speeding and unlicensed driving.

The present offence occurred at about 7.40 a.m. on the date in question, 27 June last year. The applicant was travelling south along Kingston Road in his four wheel drive vehicle with his friend, Hodge, in the front passenger seat and Hodge's de facto wife and daughter, who was 13 years old, seated in the back of the vehicle. There were no restraining seat-belts in the back of the vehicle.

170497 T10/VT26 M/T COA67/97
The applicant had not wanted to convey passengers in the rear
seats with seat-belts but was persuaded to do so by Hodge. It
should be added that there was no suggestion that the applicant
was affected by alcohol at the time of the accident.

Another vehicle, driven by one Reeves, was travelling north along Kingston Road and was in the right-hand lane approaching the intersection of Kingston Road with Juers Road. Reeves later told police that he was travelling at approximately 60 to 70 kilometres per hour. He was about 10 metres from the stop line of the traffic lights when he saw them turn to amber. He began to stop but considered that he was too close to the lights to do so and proceeded into the intersection, where he saw the applicant's vehicle.

Reeves told police that the applicant's vehicle appeared to be just over the stop line on the southbound lane and that all of a sudden the applicant's vehicle turned across in front of Reeve's vehicle, following which a collision occurred. Hodge told police that immediately prior to the accident the applicant was turning right into Juers Road and that he was completing the turn when he, Hodge, saw the other vehicle. Hodge recalled commenting to the applicant that the other vehicle was not going to stop. It seems, from the circumstances put before the sentencing Judge, that both vehicles continued on their way despite the lights turning from green to amber, the applicant attempting to complete his turn and Reeves attempting to complete his passage across the intersection and that a collision occurred.

170497 T10/VT26 M/T COA67/97
It is not clear that that collision was solely the fault of the
applicant, indeed far from it in my opinion. The deceased and
the other passenger in the back of the applicant's vehicle were
thrown clear of the vehicle and the deceased subsequently died
of massive head injuries.

After the collision the applicant approached Reeves and asked him what he was doing going through a red light. He, the applicant, then walked towards some bins in Juers Road where he discarded his identification. He made partial admissions at the scene of the accident but provided two false names to police. He was hospitalised but absconded from the casualty department.

When he was apprehended by police he was aggressive and refused

to supply a blood sample.

At sentencing the Prosecutor submitted that it was a case of momentary inattention and that was the basis upon which the applicant's plea was accepted. The Prosecutor conceded that were it not for the applicant's criminal history a custodial sentence might have been inappropriate. While the applicant's behaviour after the commission of the offence, was explicable by the fact that he was on parole and by his desire to avoid detection, it was submitted that it was an aggravating feature.

The Prosecutor also claimed to have instructions that a

criminal compensation claim was likely.

At sentencing the applicant's counsel submitted that Hodge did not blame the applicant for the death of Hodge's child and that the two had remained friends.

170497 T10/VT26 M/T COA67/97
It was further submitted that the worst thing that could be said
about the applicant was that he had made a mistake, the
consequences of which he now has to live with. It was also to
the applicant's credit, it was said, that he entered a plea of
guilty, and that certainly seems to be the case.

The further submission was made that the applicant's behaviour after the accident was explicable by his grief over the death of his friend's child, caused by him, and that, in any event, such behaviour was of concern to the parole authorities and should not trouble particularly, the sentencing Judge. It was also pointed out that the applicant's criminal history had little relevance to the offence, which was described by the applicant's counsel at sentencing as "an incident which could have happened to anyone at all". Again, I agree.

Whilst the applicant was on parole at the time of the offence,
no warrant had been issued in respect of his breach, which had
earlier occurred when he breached his parole by leaving
New South Wales. A letter from the applicant's parole officer
was tendered which stated that action would be taken against the
applicant for a breach of parole only if he returned to
New South Wales.

In the applicant's submission at sentencing, a further custodial period was not warranted because of the circumstances of the offence and the pre-sentence custody which the applicant had already served. It was submitted that the appropriate penalty would be a fine, which it was said the applicant had the ability to pay.

170497 T10/VT26 M/T COA67/97
The sentencing Judge dealt with the applicant on the basis that
he was guilty of momentary inattention but referred to the high
standard of concentration which the law imposes upon all
citizens who are in charge of a moving motor vehicle. His
Honour considered that he could not lose sight of the result of
the applicant's actions which he described as the violent and
tragic death of a young girl who was an unrestrained passenger
in the applicant's vehicle.

His Honour also said that whilst he had to take into account the level of the applicant's behaviour he was bound to impose a more serious penalty by reason of the death which had occurred. In His Honour's view, the applicant's behaviour at the scene could be partly attributed to his distress induced by the death of the child but his disposal of identification went, some way, to demonstrating a consciousness of his own guilt. Reference was made to the applicant's bad traffic history and bad criminal history and the applicant's awareness of the dangers of having unrestrained passengers in the rear of his vehicle. His Honour also said that he considered that, in all of the circumstances, the applicant fell short of the level of concentration that was required and his behaviour could not be regarded as other than very serious.

It is unnecessary, I think, to add to what has already been said by reference to the submissions which were made in this Court which largely repeated those which were made before the sentencing Judge.

170497 T10/VT26 M/T COA67/97
However it should be noted that the sentence of two years
imprisonment which His Honour imposed was at the very top end of
the range which the Prosecutor had submitted could be attracted
as a head sentence for the applicant's momentary inattention and
that there was no reference in His Honour's sentencing remarks
to the possibility of early release on parole or suspension of
part of the sentence. There is also basis for concern that His
Honour may have given too much weight to the applicant's bad
traffic and criminal histories and insufficient weight to the
circumstances of the offence or more particularly, to the
applicant's culpability in respect of the circumstances of the
offence.

In my opinion the sentence was, in the circumstances which I have described, manifestly excessive. The appropriate sentence, in my opinion, should have included a custodial sentence and it is necessary for this Court to keep in mind, when re-sentencing the applicant, that behaviour for which he has accepted responsibility by his plea of guilty, involved the death of a 13 year old child. Nonetheless, in my opinion, the appropriate sentence would have been a term of imprisonment of 12 months, suspended after half that period had been served, together with the licence disqualification ordered. The respondent has already served more than six months and, in the circumstances, I would grant the application. Allow the appeal. Set aside the sentence imposed below except the licence disqualification. Impose a sentence of imprisonment for 12 months, which I would order be suspended immediately. I would make the operative period of the suspended sentence 18 months.

170497 T10/VT26 M/T COA67/97

McPHERSON JA: I agree.

MACKENZIE J: I agree.

THE PRESIDENT: Do we need anything from you in relation to that, Mrs McGinness?

MRS McGINNESS: Your Honour, I just wonder if it will be clear to the authorities that it is not just a new 12 month sentence, immediately suspended.
MACKENZIE J: That occurred to me that perhaps we should indicate that it be suspended after the time that he has already spent in prison.
THE PRESIDENT: I see.
MACKENZIE J: It is 227 days, is it not?

MRS McGINNESS: Yes. Just declare that it is time already served.

THE PRESIDENT: To make clear the orders of the Court as to give rise to no possibility of misapprehension, the orders are:

1.Application granted.

2.Appeal allowed.

3.Sentence imposed below other than the licence disqualification set aside and in lieu a sentence of imprisonment for 12 months from the date when the applicant was originally sentenced on 31 January 1997 substituted.

4.It is further declared that the applicant has served 227 days

of that sentence.

5.It is further ordered that the balance of the sentence, namely
170497 T10/VT26 M/T COA67/97

12 months less 227 days, be suspended immediately. The

operative period of that suspension be 18 months.

MACKENZIE J: I agree

McPHERSON JA: Yes. I agree with the further remarks of the President, as well.

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170497 D.1 T10/VT26 M/T COA67/97
COURT OF APPEAL

FITZGERALD P McPHERSON JA MACKENZIE J

CA No 36 of 1997

THE QUEEN

v.

PETER FRANCIS ANDREWS Applicant

BRISBANE

..DATE 17/04/97
170497 T10/VT26 M/T COA67/97
THE PRESIDENT: This is an application for leave to appeal
against the sentence imposed in the District Court at Brisbane
on 31 January 1997. On that date the applicant pleaded guilty
to one offence of dangerous driving causing death, which he
committed on 27 June 1996. He was sentenced to two years
imprisonment with a direction that 219 days in pre-sentence
custody be regarded as time served under the sentence. Further,
it was ordered that he be disqualified from holding or obtaining
a driver's licence for a period of five years. Eight days after
he had been sentenced he was allowed bail pending this appeal,
so that he has now served a total of
227 days in custody in respect of the offence.

The applicant is 42 years of age and has a lengthy and very bad criminal history which comprises convictions for violence, offences against property, offences against law and order and drug offences. At the time of the present offence he was on parole for violent offences which he had committed in

New South Wales. Included in his criminal history are offences of culpable driving, driving with a prohibited concentration of alcohol in his blood, disobeying traffic lights, speeding and unlicensed driving.

The present offence occurred at about 7.40 a.m. on the date in question, 27 June last year. The applicant was travelling south along Kingston Road in his four wheel drive vehicle with his friend, Hodge, in the front passenger seat and Hodge's de facto wife and daughter, who was 13 years old, seated in the back of the vehicle. There were no restraining seat-belts in the back 170497 T10/VT26 M/T COA67/97

of the vehicle.
170497 T10/VT26 M/T COA67/97
The applicant had not wanted to convey passengers in the rear
seats with seat-belts but was persuaded to do so by Hodge. It
should be added that there was no suggestion that the applicant
was affected by alcohol at the time of the accident.
Another vehicle, driven by one Reeves, was travelling north
along Kingston Road and was in the right-hand lane approaching
the intersection of Kingston Road with Juers Road. Reeves later
told police that he was travelling at approximately
60 to 70 kilometres per hour. He was about 10 metres from the
stop line of the traffic lights when he saw them turn to amber.

He began to stop but considered that he was too close to the lights to do so and proceeded into the intersection, where he saw the applicant's vehicle.

Reeves told police that the applicant's vehicle appeared to be just over the stop line on the southbound lane and that all of a sudden the applicant's vehicle turned across in front of Reeve's vehicle, following which a collision occurred. Hodge told police that immediately prior to the accident the applicant was turning right into Juers Road and that he was completing the turn when he, Hodge, saw the other vehicle. Hodge recalled commenting to the applicant that the other vehicle was not going to stop. It seems, from the circumstances put before the sentencing Judge, that both vehicles continued on their way despite the lights turning from green to amber, the applicant attempting to complete his turn and Reeves attempting to complete his passage across the intersection and that a collision occurred.

170497 T10/VT26 M/T COA67/97
It is not clear that that collision was solely the fault of the
applicant, indeed far from it in my opinion. The deceased and
the other passenger in the back of the applicant's vehicle were
thrown clear of the vehicle and the deceased subsequently died
of massive head injuries.

After the collision the applicant approached Reeves and asked him what he was doing going through a red light. He, the applicant, then walked towards some bins in Juers Road where he discarded his identification. He made partial admissions at the scene of the accident but provided two false names to police. He was hospitalised but absconded from the casualty department.

When he was apprehended by police he was aggressive and refused

to supply a blood sample.

At sentencing the Prosecutor submitted that it was a case of momentary inattention and that was the basis upon which the applicant's plea was accepted. The Prosecutor conceded that were it not for the applicant's criminal history a custodial sentence might have been inappropriate. While the applicant's behaviour after the commission of the offence, was explicable by the fact that he was on parole and by his desire to avoid detection, it was submitted that it was an aggravating feature.

The Prosecutor also claimed to have instructions that a

criminal compensation claim was likely.

At sentencing the applicant's counsel submitted that Hodge did not blame the applicant for the death of Hodge's child and that the two had remained friends.

170497 T10/VT26 M/T COA67/97
It was further submitted that the worst thing that could be said
about the applicant was that he had made a mistake, the
consequences of which he now has to live with. It was also to
the applicant's credit, it was said, that he entered a plea of
guilty, and that certainly seems to be the case.

The further submission was made that the applicant's behaviour after the accident was explicable by his grief over the death of his friend's child, caused by him, and that, in any event, such behaviour was of concern to the parole authorities and should not trouble particularly, the sentencing Judge. It was also pointed out that the applicant's criminal history had little relevance to the offence, which was described by the applicant's counsel at sentencing as "an incident which could have happened to anyone at all". Again, I agree.

Whilst the applicant was on parole at the time of the offence,
no warrant had been issued in respect of his breach, which had
earlier occurred when he breached his parole by leaving
New South Wales. A letter from the applicant's parole officer
was tendered which stated that action would be taken against the
applicant for a breach of parole only if he returned to
New South Wales.

In the applicant's submission at sentencing, a further custodial period was not warranted because of the circumstances of the offence and the pre-sentence custody which the applicant had already served. It was submitted that the appropriate penalty would be a fine, which it was said the applicant had the ability 170497 T10/VT26 M/T COA67/97

to pay.
170497 T10/VT26 M/T COA67/97
The sentencing Judge dealt with the applicant on the basis that
he was guilty of momentary inattention but referred to the high
standard of concentration which the law imposes upon all
citizens who are in charge of a moving motor vehicle.
His Honour considered that he could not lose sight of the result
of the applicant's actions which he described as the violent and
tragic death of a young girl who was an unrestrained passenger
in the applicant's vehicle.

His Honour also said that whilst he had to take into account the level of the applicant's behaviour he was bound to impose a more serious penalty by reason of the death which had occurred. In His Honour's view, the applicant's behaviour at the scene could be partly attributed to his distress induced by the death of the child but his disposal of identification went, some way, to demonstrating a consciousness of his own guilt. Reference was made to the applicant's bad traffic history and bad criminal history and the applicant's awareness of the dangers of having unrestrained passengers in the rear of his vehicle. His Honour also said that he considered that, in all of the circumstances, the applicant fell short of the level of concentration that was required and his behaviour could not be regarded as other than very serious.

It is unnecessary, I think, to add to what has already been said by reference to the submissions which were made in this Court which largely repeated those which were made before the sentencing Judge.

170497 T10/VT26 M/T COA67/97
However it should be noted that the sentence of two years
imprisonment which His Honour imposed was at the very top end of
the range which the Prosecutor had submitted could be attracted
as a head sentence for the applicant's momentary inattention and
that there was no reference in His Honour's sentencing remarks
to the possibility of early release on parole or suspension of
part of the sentence. There is also basis for concern that His
Honour may have given too much weight to the applicant's bad

traffic and criminal histories and insufficient weight to the
circumstances of the offence or more particularly, to the
applicant's culpability in respect of the circumstances of the
offence.

In my opinion the sentence was, in the circumstances which I have described, manifestly excessive. The appropriate sentence, in my opinion, should have included a custodial sentence and it is necessary for this Court to keep in mind, when re-sentencing the applicant, that behaviour for which he has accepted responsibility by his plea of guilty, involved the death of a 13 year old child. Nonetheless, in my opinion, the appropriate sentence would have been a term of imprisonment of 12 months, suspended after half that period had been served, together with the licence disqualification ordered. The respondent has already served more than six

six months and, in the circumstances, I would grant the application. Allow the appeal. Set aside the sentence imposed below except the licence disqualification. Impose a sentence of imprisonment for 12 months, which I would order be suspended immediately. I would make the operative period of the suspended 170497 T10/VT26 M/T COA67/97

sentence 18 months.

McPHERSON JA: I agree.

MACKENZIE J: I agree.

THE PRESIDENT: Do we need anything from you in relation to that, Mrs McGinness?

MRS McGINNESS: Your Honour, I just wonder if it will be clear to the authorities that it is not just a new 12 month sentence, immediately suspended.
MACKENZIE J: That occurred to me that perhaps we should indicate that it be suspended after the time that he has already spent in prison.
THE PRESIDENT: I see.
MACKENZIE J: It is 227 days, is it not?

MRS McGINNESS: Yes. Just declare that it is time already served.

THE PRESIDENT: To make clear the orders of the Court as to give rise to no possibility of misapprehension, the orders are:

1.Application granted.

2.Appeal allowed.

3.Sentence imposed below other than the licence disqualification set aside and in lieu a sentence of imprisonment for 12 months from the date when the applicant was originally sentenced on 31 January 1997 substituted.

4.It is further declared that the applicant has served 227 days
170497 T10/VT26 M/T COA67/97

of that sentence.

5.It is further ordered that the balance of the sentence, namely 12 months less 227 days, be suspended immediately. The operative period of that suspension be 18 months.

MACKENZIE J: I agree

McPHERSON JA: Yes. I agree with the further remarks of the President, as well.

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