R v Atkinson and Attorney-General of Queensland

[1996] QCA 527

IN THE COURT OF APPEAL	[1996] QCA 527
SUPREME COURT OF QUEENSLAND

C.A. No. 459 of 1996

Brisbane

Before Davies J.A.
McPherson J.A.
Moynihan J.

[A-G v. Atkinson]

THE QUEEN

v.

DAVID BRUCE ATKINSON

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Davies J.A.
McPherson J.A.

Moynihan J.

Judgment delivered 20 December 1996

Separate reasons for judgment by each member of the Court, McPherson J.A. dissenting.

APPEAL DISMISSED

CATCHWORDS:	CRIMINAL LAW - Sentence - Dangerous driving causing death - Whether sentence manifestly inadequate.
Counsel:	Mrs L. Clare for the appellant Mr J.A. Jerrard Q.C. for the respondent
Solicitors:	Queensland Director of Public Prosecutions for the appellant Neilson Stanton and Parkinson for the respondent
Hearing Date:	4 December 1996
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 20 December 1996

This is an appeal by the Attorney-General against a sentence of two months'
imprisonment imposed on the respondent for dangerous driving causing death. The Attorney
contends for a sentence of two years' imprisonment with an non-parole period of eight months.
The respondent pleaded guilty to the offence which occurred on 9 December last year on
Rainbow Beach just south of Inskip Point. The beach is a road and signs on it advise that road
rules apply. On that day it was heavily trafficked. That is not surprising for it is the main traffic
route from Rainbow Beach and points south to Fraser Island via a car ferry. It is also, as the
number of people there that day indicated, a popular camping area which can be reached only by

four-wheel drive vehicle from Rainbow Beach. There were also a lot of people on the beach that

day and there were one or possibly several camp sites nearby.

On that afternoon the respondent and his friend William Lee had attached a tarpaulin to the rear of Lee's four-wheel drive vehicle and were taking turns at riding on the tarpaulin whilst the other drove the vehicle along the beach. They each drove along the beach and back in this way a number of times.

Among the people on the beach that day were the deceased, her de facto husband, her sister and husband, their son and a friend. The two boys were fishing. The deceased, her sister and husband went for a swim. Her sister, who came out of the water first, lay on a towel at the water's edge. Shortly after the deceased and her sister's husband came out of the water, her sister and husband went for a walk along the beach and the deceased lay on her sister's towel at the water's edge. The sister estimated that the towel was about a metre and a half from the water's edge.

During the period while the deceased's sister lay on her towel waiting for her husband and the deceased to come out of the water four or so vehicles passed her without incident. Presumably they passed in front of her on the wet sand which would ordinarily be the main traffic way. She also recalled that Mr. Lee's four-wheel drive vehicle passed her a number of times towing a person on a tarpaulin though of course she cannot say who was driving. Presumably this vehicle also passed in front of her on the wet sand. Her husband, whilst swimming, also noticed that it passed three or four times.

Widely varying estimates were given of the speed of Lee's vehicle at various times. In respect of most of them it was impossible to say who was driving. On the occasion in question both Lee and the respondent estimated the speed at between 20 and 30 kilometres per hour; Mrs. King, who was driving behind Lee's vehicle at about 20 kilometres per hour said that he was travelling faster than she was; and Mr. Hore who was walking along the beach, estimated its speed at 30 kilometres per hour.

Prior to running over the deceased the respondent was driving along on the wet sand
"looking at Billy on the tarp and I was just looking back and forward" ... "sort of looking around
and kept my eye on Bill who was on the tarp and looking out for kids and fisherman and that .. ".
There does not appear to have been anything which would have obstructed the

respondent's view of the deceased. He failed to see her when he should have. One of the reasons

for this appears to have been the distraction of his friend on the tarpaulin behind him.

On the other hand whilst he might reasonably have expected the presence of swimmers going into or emerging from the water, fishermen and children playing, the likelihood that a person might be lying in or very close to the busy traffic way rather than further up the beach on dry sand would not have been as obvious. This may also explain the failure of Mr. King, a passenger in the vehicle following the respondent, who had a clear vision up the beach past the respondent's vehicle to where the deceased was lying, to notice the presence of the deceased before the collision.

With hindsight it can be seen that the activity being carried on by the respondent and Lee was inherently dangerous. Yet, according to a witness who travels over the area frequently, activities of this kind are common. He said that perhaps 20 times in the previous 18 months he had noticed activities of a similar kind on the beach. Unfortunately a number of plainly incompatible activities are permitted on this beach. On the one hand it is a frequently used roadway and activities like those being conducted by the respondent and Lee frequently occur. On the other there are people, including children, using the beach for swimming, fishing, playing on and sunbaking. The conflict between these activities is obvious to those analysing what has occurred. But it was not so obvious either to the respondent or to the deceased who lay where she did or to those many others who engaged in activities of the kind which the respondent did.

The result was tragic for the deceased and her family. It was also tragic for the respondent whose remorse was obvious and immediate and who will no doubt live with the events of that day for the rest of his life.

At the time of these events the respondent was 26. He has no relevant criminal history and he has never been in gaol before. He has had a steady work history and appears generally to be of good character. He is in a stable and long term relationship with a young woman and has strong family support.

In an appeal by the Attorney-General against sentence this Court is more constrained than in an appeal, or an application for leave to appeal, by a convicted person: Re Melano; ex parte Attorney-General [1995] 2 Qd.R. 186 at 190. It is within the confines of that power that this appeal must be viewed.

In this Court the Attorney relied primarily on the decision of this Court in Conquest C.A. No.395 of 1995, judgment delivered 19 December 1995, whilst acknowledging that that case was more serious than this. Indeed it was. The offender there already had a relatively serious criminal history mostly involving crimes of dishonesty. He was found to have deliberately driven on the wrong side of the road in consequence of which he collided with three pedestrians killing one and causing grievous bodily harm to the other two. One of them was left with serious brain damage rendering him unable to work and with a changed personality. Thus the conduct was very bad and the consequences especially serious. His other criminal conduct left doubt as to his prospects of rehabilitation, he apparently demonstrated little remorse, and he went to trial and told a false story which jury plainly disbelieved. A sentence of three years was substituted by this Court for one of two years' imprisonment.

Gardiner C.A. No.452 of 1995, judgment delivered 13 February 1996 was also a much more serious case than this. The appellant, prior to the collision twice forced cars partially off the road by driving on his incorrect side. Finally he lost control, skidded onto a grass verge and struck a young man mowing the lawn killing him. He pleaded not guilty. He had a number of previous convictions for dishonesty and numerous traffic convictions including for excessive speed, careless driving and driving a defective vehicle. He showed no remorse. An application for leave to appeal against a sentence of three years' imprisonment was refused by this Court.

Gartside C.A. No.374 of 1994, judgment delivered 15 November 1994, was also a more serious case than this. The applicant, who had been sentenced to 18 months' imprisonment had caused his vehicle to zig-zag four or five times across the road. It finally became airborne as it crossed the median strip and landed in the path of on-coming traffic thereby killing another driver. The applicant had pleaded not guilty. His explanation given to the police was a fabrication and he showed no remorse.

The respondent both in this Court and below referred to the decisions of Nowraty C.A. No.371 of 1989, judgment delivered 26 February 1990 and Fatseas and Brook C.A. Nos.255 and 258 of 1995, judgment delivered 17 August 1995. In effect sentences of three and two months were substituted. The facts in these cases were substantially different from those in the present and they are of little guidance here.

Conquest, Gardiner and Gartside were all cases of deliberate dangerous driving: Gartside per Pincus J.A. at 5. I would not consider that this case was in that category. Although, as I have said, the activity engaged in by the respondent and his friend was, with hindsight, inherently dangerous in the circumstances I do not think it could be called deliberately so. The appellant was, to some extent, like the deceased, a victim, though in his case a harmfully thoughtless one, of the permission of incompatible uses on that beach. That is not to excuse his conduct for which he should be punished. But it does, in my view, provide special circumstances justifying a lenient sentence.

Dangerous driving is an offence in the sentencing of which deterrence ordinarily plays an important part. That is, in part, because of its unfortunate prevalence. In this case personal deterrence is almost irrelevant; the likelihood that the respondent will commit such an offence again is so remote as to be almost non-existent. Though, even in these circumstances, public deterrence must be a factor it is not as important a factor as in the more common situation of road death.

This was a very difficult case in which to impose an appropriate sentence. Against the need for deterrence, to which I have referred and the need to satisfy those whom the death of the deceased has left bereaved that justice has been done must be balanced the future rehabilitation of the respondent, a young man who, apart from this tragic incident, has good prospects of making a useful contribution to the community.

The learned sentencing Judge could well have imposed a higher sentence. He could have, and perhaps should have imposed a longer sentence either suspending it after a short period such as the two months which he imposed or a little longer, or providing for a non-parole period of that length. But given the constraints in appeals of this kind to which I have referred, I cannot be satisfied that the sentence imposed was outside the scope of a proper sentencing discretion. I would therefore dismiss the appeal.

REASONS FOR JUDGMENT -McPHERSON J.A.

Judgment delivered 20 December 1996

This is an appeal by the Attorney-General against a sentence of imprisonment for 12 months imposed in the District Court at Gympie for dangerous driving causing death. He was also permanently disqualified from holding or obtaining a driver’s licence. The offence took place at about 4.30 p.m. on 9 December, 1995, on a beach between Inskip Point and Rainbow Beach, which is at or near departure point for Fraser Island. The respondent was driving a Toyota 4-wheel drive vehicle which ran over the victim Ms. Bishop, a 38 year-old woman who was lying on a towel sunbaking at a distance probably about 1½ m. from the water’s edge. Despite efforts to revive, her she died soon afterwards.

At the time in question the beach was occupied by what is described in the appeal record as numerous people, including children, some of whom were swimming, some fishing, some playing or lying on the beach. The deceased was one of a group of friends and relatives. Her sister Mrs Hodgetts had chosen the place to lie down, and when she went to swim, the deceased took her place on the towel.

There were other vehicles driving about the beach at the time. The incident happened when the applicant was towing behind the vehicle he was driving a tarpaulin in or on which a friend named Lee was standing or perhaps sitting at the time of the collision. The respondent admitted he did not see the victim before he ran over her. He was looking in the rear vision mirror watching his tow, and was not looking ahead of him. The area of the beach where the victim was lying was flat, and there was no topographical reason why, if he had been keeping a proper lookout, he would not have seen her. The light was good and Ms. Bishop was wearing a black bikini.

Witnesses’ estimates of the respondent’s speed varied widely. Lee said it was about 20/25 kph. Some observers put it as high as 70 or 80 kph. Possibly the most reliable assessment comes from a Mrs King, who was behind the respondent driving another vehicle on the beach at about 20 kph. She said the respondent’s vehicle “took off and left them behind”. Her estimate of its speed was about 30 kph. The respondent himself claimed to have been travelling at 25 to 30 kph. On all the evidence it seems fair to say he was travelling faster than anyone else who was driving a vehicle on the beach.

What perhaps goes slightly in favour of the respondent is that he and Lee had been taking turns at driving along the beach, and neither of them had seen Ms. Bishop or her sister on any previous turn. On the other hand, the respondent knew there were, to use his phrase, “heaps of people” on the beach, and he plainly ought to have driven in a way that took account of their presence whether they were walking, running or lying down. His conduct in driving at the speed and in the way he did therefore involved a degree of indifference to risks of which he was admittedly aware.

The respondent is aged 27 years. He was educated to Grade 10. He has a minor criminal history of little or no relevance. He has a good work record, and he undoubtedly showed great remorse at what he had done. He had drunk some beer before driving, but there was nothing in the evidence to show he was affected by alcohol. At the time he had only a provisional licence but that did not disqualify him from driving. However, he had no experience of driving a 4-wheel drive vehicle or of driving on a beach.

Despite factors going in mitigation, I consider that a head sentence of 2 months is, comparatively speaking, inadequate, when regard is had to recent decisions in Gardner (no. 425/95) and Conquest (no. 395/95), where sentences of 3 years were imposed. Those two cases involved a course of driving which in some respects was more serious than that engaged in here; but the present case is one in which the deterrent element in sentencing has an obvious function to perform. Those who choose to drive vehicles in recreational areas where people are known to be present are not in a position to plead ignorance of the risks that it presents to others. Here the respondent drove on a beach on which to his certain knowledge there were many people around. He drove at some speed and without keeping a proper lookout. Indeed, at the time in question he was keeping no lookout at all but was focusing attention on his tow without apparent concern for the safety of other persons who might chance to be in his path.

I would allow the appeal and substitute a sentence of imprisonment for a term of 2 years, which, in view of his good record and apparently genuine remorse, should be suspended after six months. The order for disqualification is not intended to be affected.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 20 December 1996

This is an appeal by the Attorney-General against a sentence of two months imprisonment for dangerous driving causing death, the applicant was also permanently disqualified from holding or obtaining a drivers licence. A sentence of two years imprisonment with a non-parole period of eight months is submitted to be appropriate. The facts and issues relevant to this appeal are canvassed in the reasons of Davies and McPherson JJ.A and it is unnecessary for me to rehearse them in these reasons save to the extent necessary for me to dispose of the appeal.

The characteristics of the driving in this case, differ in quality from those manifest in Gardiner1, Gartside2 and Conquest3. In each of those cases the defendants, whose personal circumstances, attitude and criminal history also substantially differed from the respondent, deliberately embarked on a course of driving which courted the outcome which in fact occurred. The differences referred to favour the respondent. The sentences in those cases reflect a strong need to deter those who might embark on a similar course of conduct. Nawraty4 and Fatseas and Brook5 to which the Court was referred were offences committed in circumstances which do not justify regarding them as being regarded as compatible with this case.

In this case the sentencing judge was faced with a difficult task to balance the competing considerations of imposing a sentence for thoughtless conduct justifying punishment, deterrence, consideration for those bereaved by the death of the deceased and the circumstances of the respondent. The respondent paid insufficient regard to other users because his attention was focussed on the man he was towing at the crucial time and he must be dealt with for that.

The activity the respondent was engaged in was not uncommon on the particular beach and was one of a number of basically incompatible activities which were permitted there. It is to be remarked that although on the evidence there was no topographical feature to prevent the respondent seeing the deceased, neither he nor his friend saw anyone lying in the area when they passed up and down the beach on a number of occasions and Mr King, a passenger in the following vehicle had a clear vision of the beach past the respondent's vehicle, did not notice the presence of the deceased before the respondent ran over her. Considerations such as this do not raise the issue of deterrence with the force that the circumstances of Gardiner6, Gartside7 and Conquest8 did.

The respondent was 26 at the time the events leading to the sentence under consideration. He had no relevant criminal history, had a good work history and was in a stable domestic situation. Put shortly, he was of good character and making a contribution to the community. Immediately he appreciated what had occurred and since he has exhibited an appreciation of his role in what occurred and regret for it. The sentence imposed requires that he serve a term of imprisonment.

Given the considerations particular to this case which I have identified, I am not persuaded the sentence is outside what was open in the exercise of a sound sentencing discretion so as to found the intervention of this Court.

1 C.A. 425 of 1995, judgment 13 February 1996
2 C.A. 374 of 1994, judgment delivered 15 November 1994
3 395 of 1995, judgment delivered 19 December 1995
4 C.A. 371 of 1989, judgment delivered 26 February 1990
5 C.A. Nos. 255 and 258 of 1995, judgment delivered 17 August 1995
6 C.A. 425 of 1995, judgment 13 February 1996
7 C.A. 374 of 1994, judgment delivered 15 November 1994
8 395 of 1995, judgment delivered 19 December 1995