R v Antoney

[2000] QCA 180

COURT OF APPEAL

de JERSEY CJ
McMURDO P
DUTNEY J

CA No 402 of 1999

THE QUEEN

v.

MARK RONALD ANTONEY                   Applicant

ROCKHAMPTON

..DATE 16/05/2000

JUDGMENT

THE CHIEF JUSTICE:  The applicant pleaded guilty to the dangerous operation of a motor vehicle causing the death of his passenger, while his, the applicant’s, blood alcohol concentration exceeded 150 milligrams of alcohol per
100 millilitres of blood.  He was sentenced to four years’ imprisonment with a recommendation that he be considered for parole after 15 months. 

He has filed a notice of appeal against conviction and an application for leave to appeal against sentence.  His specified grounds relate only to conviction and he has indicated, if equivocally to us here this morning, that he was not proceeding with the application in relation to sentence. 

Because of that degree of equivocation, and notwithstanding the absence of any submissions in relation to sentence, I should briefly say why on no view could the sentence imposed be said to be manifestly excessive. 

The applicant drove through a stop sign at a railway crossing.  He was aware of it.  His vehicle collided with a train.  His 25-year old passenger was killed.  Two hours after the collision the applicant’s blood alcohol concentration was .174.  He conceded to the police that he had been drinking mid-strength beer from midday.  The collision occurred at
5.40 p.m..  The maximum penalty was 14 years’ imprisonment.

The applicant had two previous convictions for drink driving five years earlier.  He had also previously been sentenced to a suspended term of two years’ imprisonment.  The sentence imposed could not seriously be considered manifestly excessive, or indeed at all excessive, and if support be needed for that, Rowley, Court of Appeal 240 of 1998 provides sufficient.

The ground of appeal against conviction challenged the establishment of the circumstance of aggravation.  The appellant contends in the notice of appeal that he was not given a vial of his blood for self-testing, that testing should have occurred in Brisbane, and that his behaviour afterwards did not suggest intoxication. 

Those assertions aside, the fact is that he pleaded guilty voluntarily to the aggravated offence.  He was represented by counsel.  He admitted to the police, having been drinking over a substantial earlier period, and he is burdened with the conclusive effect of the analyst’s certificate under
section 16A of the Traffic Act, that certificate having been tendered without challenge. Further, the very point now raised by the appellant that his subsequent treatment and behaviour were inconsistent with his having been so intoxicated was apparently actively considered prior to his pleading guilty to the offence including the circumstance of aggravation. See the record at page 8 line 20 and thereabouts.

It could not possibly be contended that there is here any real suggestion of a miscarriage of justice such as would warrant vacating the plea of guilty.  The appeal should be dismissed and the application should be refused.

THE PRESIDENT:  I agree.

DUTNEY J:  I agree. 

THE CHIEF JUSTICE:  Those are the orders.

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