R v Blackaby

[2010] QCA 84

SUPREME COURT OF QUEENSLAND

CITATION:

R v Blackaby [2010] QCA 84

PARTIES:

R
v
BLACKABY, Crystalea Patricia
(applicant)

FILE NO/S:

CA No 284 of 2009
DC No 75 of 2009
DC No 595 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

16 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2010

JUDGES:

Muir JA, Daubney and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to a charge of dangerously operating a motor vehicle – where the applicant caused the death of another person – where the applicant was driving while affected by alcohol – where the applicant was sentenced to a term of imprisonment of seven years – where a parole eligibility date was set at 18 months – where the applicant had a disturbed background – where the applicant was exposed to violence, alcohol abuse and traumatic events during childhood – where the applicant was sexually abused in childhood – where the applicant had a history of drug use from a young age - where the applicant was the victim of domestic violence from age 14 – where the applicant had had two children removed from her care – where the applicant had a history of heavy drinking – where the applicant had a history of traffic offences – whether the head sentence was manifestly excessive

R v CAN [2009] QCA 59, distinguished
R v Evans [2005] QCA 455, distinguished
R v Hallett [2009] QCA 96, distinguished
R v Hey;ex parteA-G (Qld) [2006] QCA 23, distinguished
R v Hoad [2005] QCA 92, distinguished
R v Ross [2009] QCA 7, distinguished
R v Sheedy; ex parte A-G (Qld) [2007] QCA 183, considered

COUNSEL:

C A Cuthbert for the applicant
B J Power for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA: I agree with the reasons of Peter Lyons J and with the order he proposes.

1. DAUBNEY J: For the reasons given by Peter Lyons J, with which I respectfully agree, I would also dismiss the application.

1. PETER LYONS J: The applicant pleaded guilty in the District Court to a charge of dangerously operating a motor vehicle, and causing the death of another person, while affected by alcohol (the current offence).  She was sentenced to a term of imprisonment of seven years, with an order that she be eligible for release on parole after serving 18 months of that term.  The question raised by this application is whether the head sentence of seven years is manifestly excessive, having regard to mitigating factors, and in particular the applicant’s difficult background.

Applicant’s background

1. What follows in relation to the applicant’s background is taken from a report by Ms Meg Perkins, a registered psychologist, which was tendered at the sentencing hearing.

1. The applicant’s mother, who was indigenous, was adopted at a very young age by a non-indigenous family.  At the age of 14, the applicant’s mother was raped.  The applicant’s birth was the result of that event.

1. Not surprisingly, given her age and her own background, the applicant’s mother lacked parenting skills.  At times subsequent to the applicant’s birth, the applicant’s mother was in various relationships, and had another three children, two daughters and son.  Violence was not unknown in the household, and the applicant’s mother was frequently drunk. 

1. The responsibility for looking after the younger children frequently fell on the applicant, even though she was a child.  On one occasion, her brother wandered out of the house at night.  He was apparently taken to a police station, and not seen by the family again.  The applicant’s mother blamed the applicant for the loss of her only son.

1. Living conditions were far from satisfactory.  There was often no food in the house.  At times, “drunken men” would be present.  On one occasion, the applicant was sexually abused. 

1. On one occasion, when the applicant was 11, she and a friend were “roaming the streets of Wynnum after dark” when the friend was hit by a train and killed.

1. The applicant commenced taking drugs at about age 12.  She also started to drink alcohol at about this time.  She was apparently out at night at this stage - one night when she came home, her mother called her a “little slut” and gave her a “flogging”.

1. At some point, the other daughters were removed from the care of the applicant’s mother.

1. On a number of occasions, the applicant ran away to escape the conditions in which she was living.  From about age 13, she lived on the streets.  She stole food to survive.  At some point, she hitchhiked to Mackay with some friends.

1. By the time the applicant was 14, she had been living for some months with a young man.  She became pregnant.  After the birth of the baby (a son), the young man “bashed” the applicant, claiming the child was not his.  The applicant’s relationship with this man involved ongoing domestic violence, with the young man punching and kicking the applicant.  When she became pregnant again, he told her to have the pregnancy terminated, threatening to “kick her guts in”.  She complied.

1. When she broke off her relationship with this young man, she was slapped and punched by his extended family, and her child was taken away from her.  She then broke every window in the house of the young man and his family, and got very drunk.  The child was placed in care, and remains in care. 

1. Subsequently, the applicant spent her time drinking alcohol.  She was evicted from the Housing Commission house where she had been living.  She then slept on the streets and by the river bank.  She also was taking drugs, including heroin.  She then committed a robbery, and later a stealing offence.  The stealing offence was said to have resulted in her spending four months in prison.

1. The applicant then entered into a relationship with another man, aged 23, who was not working and was in receipt of unemployment benefits.  She became pregnant to him, giving birth to a daughter.  He, too, was violent to the applicant.  His violence included kicking her in the stomach while she was pregnant.  This baby was taken away shortly after birth, for reasons associated with the applicant’s consumption of alcohol.

1. The applicant attempted to regain the care of her daughter.  She had access to her, which was both limited and supervised.  The applicant was required to attend substance abuse counselling, relationship counselling, and parenting counselling and to end the relationship with the daughter’s father, and to attend domestic violence counselling.  She found it difficult to comply with all of these requirements.  She seems to have reduced her consumption of alcohol at this time.

1. At some point, the deceased commenced to live with the applicant.  He was drinking heavily.  The applicant began to drink more and more heavily herself, and that became the way in which she and the deceased passed their days.  However, the deceased treated the applicant well.  She is said to experience profound grief as a result of his death. 

1. The current offence was committed shortly after the applicant’s 22nd birthday.

Applicant’s criminal and traffic history

1. Most of the criminal convictions incurred by the applicant were said to be “street offences”.  They did, however, include stealing, attempted robbery, and entering or being in premises and committing indictable offences.  The applicant was placed on probation on three occasions (one occasion being itself the result of a breach of a probation order, as well as for some additional offences).  Suspended sentences have been imposed, and on at least one occasion, the applicant was required to serve some time in prison.

1. Of greater significance for the present application is the applicant’s traffic record.  On some six occasions, the applicant has been convicted of offences relating to unlicensed driving.  On at least three occasions, she has been disqualified from holding a driver’s licence, for various periods.  On two occasions, she has been convicted of driving while disqualified.  On at least three occasions, she has been convicted of driving while under the influence of liquor. 

1. The applicant has never held a driver’s licence.

1. On 7 May 2008, the applicant was sentenced to a term of imprisonment of nine months, for driving whilst disqualified.  She was released on 30 June 2008 on parole.  That was shortly before the current offence.

Circumstances of current offence

1. On 16 September 2008, the applicant had been drinking with the deceased and two other men.  They were at Slade Point, near Mackay, when, at about 5pm, they decided to drive to Mackay.  Originally, a fifth person was to drive the group to Mackay, but he left in another vehicle.  It was submitted on behalf of the applicant at the sentencing hearing, and not challenged, that the deceased then gave the keys of the vehicle to the applicant. 

1. While the applicant was driving the vehicle on Slade Point Road, she leaned over to try to pick something up from the centre console.  Witnesses saw the vehicle gradually veer towards a parked truck.  One passenger stated that he could see they were about to collide with another vehicle.  He shouted out, “look out”, but almost simultaneously a collision occurred.  The vehicle driven by the applicant went under the tray of a Hino truck, attached to the rear of which was a HIAB crane.  The deceased suffered a head injury as a result of the impact with the crane.  He died shortly afterwards.

1. The applicant had a blood alcohol reading of 0.227 per cent.  There was no suggestion of speed.  There were no tyre marks on the road, which would have indicated that the vehicle driven by the applicant had braked heavily prior to the collision.  There was no obvious mechanical defect in the vehicle.  The applicant had not driven the vehicle very far before the collision.

Factors influencing sentence

1. The learned sentencing judge described the applicant’s driving as “criminally reckless”.  Her Honour noted the impact on the deceased’s relatives.  She stated that the deceased was a friend of the applicant, and that the applicant would, for the rest of her life, have to live with the knowledge that she caused his death.  Her Honour also referred to the very high blood alcohol reading.  She noted that the applicant had not driven very far before the crash, and referred to her “gross incapacity” to drive.  She also noted that the applicant suffered a broken arm, which appeared to have healed completely. 

1. The learned sentencing judge emphasised the applicant’s bad driving, and her recent release from prison.  She described the event as “not just a one-off unwise decision”; and stated that the applicant had “learnt nothing from the previous penalties and warnings of the Courts”.  The learned sentencing judge accepted that the applicant had had a “tragic childhood” and described that reports of her early life as “shocking”. 

1. The learned sentencing judge referred to the report of the psychologist, including the diagnoses of severe chronic and complex post traumatic stress disorder and major depression.  She also noted there was no diagnosis of alcohol addiction.  The learned sentencing judge noted the applicant’s age.  She referred to her plea of guilty on an ex officio indictment.  She accepted that the applicant was genuinely sorry for the offence, and had acknowledged in a letter to the deceased’s family the pain that she had brought to them.

1. By the time of sentence, the applicant had been in custody for a substantial period (the sentence was imposed a year after the accident).  In that period, the applicant had “taken the opportunity … to work on the issues that relate to (her) offending”.  She had “moved away” from drugs and drink.  She had worked hard in her employment in gaol, and had learned skills relating to job training.  She had also completed the equivalent of Grade 10 English, and intended to continue to study.

1. The learned sentencing judge noted the importance of consistency in sentencing, and the severity with which offences of this kind were treated.  She discussed some of the authorities dealing with sentencing for somewhat similar offences.  She considered that principles of deterrence and public safety were of particular importance.  She considered that the “objective gravity” of the offence called for the head sentence; but that the matters that weighed in the applicant’s favour justified the parole eligibility date set by her Honour.  That was fixed at 6 August 2010.

Other court decisions

1. The learned sentencing judge relied principally on the decision in R v Hallett[1] although her Honour was undoubtedly influenced by the decision in R v Ross.[2]

   [1][2009] QCA 96.

   [2][2009] QCA 7.

1. In Hallett, the applicant had pleaded guilty to an offence of dangerous operation of a motor vehicle causing death, whilst under the influence of drugs.  He was sentenced to a term of seven years imprisonment, with a parole eligibility date two years and four months after the date of sentence.  The deceased was the applicant’s 84 year old father, who had been a passenger in a vehicle driven by the deceased on the Bruce Highway.  The vehicle had been driven erratically over some distance before veering off to the left and hitting a pole.  The applicant was 48 years of age at the time of the offence.  He had an extensive criminal history and traffic history extending over more than 30 years.  He had twice previously been convicted of the offences of driving under the influence of liquor or drugs, and dangerous operation of a motor vehicle.  On one occasion (in 1981), he had been sentenced to a term of imprisonment of six months for dangerous driving, unlawful use of a motor vehicle, driving a motor vehicle whilst under the influence of liquor or drug, and driving without a licence.  On another (in 2001), he had been sentenced to a term of imprisonment of six months with probation of two years, for offences including the dangerous operation of a vehicle.  He had been sentenced to 12 months imprisonment, wholly suspended, for driving whilst disqualified (in 2007).  His traffic history was described as “appalling”, with 17 entries for disqualified driving, and 10 entries for driving under the influence of a drug, all with an excess of blood alcohol content.  He also had a significant criminal history, including sentences of terms of imprisonment. 

1. At first instance it was said that the applicant in Hallett had driven for a short distance only; that the drugs had been consumed some days earlier; that the applicant was the carer for his father, and was taking him out for a drive; and that the applicant was depressed; and that the applicant was very remorseful.  However, in the Court of Appeal, it was considered that the applicant’s “very bad criminal and traffic histories”, and particularly his “repeated offences of dangerous driving and driving under the influence of liquor or a drug”, as well as considerations of general deterrence and the protection of the community, meant that the sentence was not manifestly excessive.[3]  The present case obviously has some significant factors favouring mitigation, which were not found in Hallett.

   [3]See Hallett [31].

1. Ross was recognised by the learned sentencing judge as a case which was “objectively more serious”.  The applicant in that case was sentenced to a term of eight years imprisonment, with no recommendation as to parole, for the offence of dangerous operation of a motor vehicle causing death, whilst under the influence of alcohol.  The applicant had driven a motor vehicle for almost a kilometre, and was travelling at a speed estimated at approximately 140 kilometres per hour (in a 70 kilometre per hour zone) at the time of the crash.  Travelling with him were his de facto wife, and their two infant children.  The children were killed as a result of the crash.  The applicant had a blood alcohol reading of 0.163.  The applicant left the scene, knowing of the death of one of the children, and the injuries suffered by the other; and subsequently sought to mislead about his involvement.  He was 25 years of age, and had a “relatively short criminal history”; but had four offences for unlicensed driving, and two offences of driving whilst under the influence of alcohol.  At the time of the offence, the applicant’s driver’s licence had been suspended, following an earlier conviction for driving whilst under the influence of alcohol.

1. The decision to uphold the sentence was influenced by the fact that multiple deaths were involved; by the fact that the deceased were the applicant’s infant children; by his conduct at the time of the offence; by his manner of driving; by his level of intoxication; and by his past traffic history.  It is clear that the offence under consideration in that case was significantly worse than the present offence.  While the offence-related history of the applicant in Ross was not as bad as in the present case, it was nevertheless significant.  In Ross, there was no suggestion that the applicant had difficulties which were in any way similar to those of the applicant in the present case.

1. The respondent relied on R v Hey;ex parteA-G (Qld)[4]and R v Evans.[5]

   [4][2006] QCA 23.

   [5][2005] QCA 455.

1. The applicant in Hey had pleaded guilty to one count of dangerous operation of a motor vehicle causing death, whilst adversely affected by alcohol.  He was sentenced to six and a half years imprisonment, with a recommendation for post-prison community-based release after two and a half years.  At the time, the maximum penalty for the offence was 10 years.  That applicant’s blood alcohol reading was approximately 0.1 at the time of the accident.  He had driven onto a rural highway from an intersecting road, through a give-way sign, at a speed between 60 and 100 kilometres per hour.  As he approached the highway, one of his passengers asked him if he was going to stop or slow down, and he replied in the negative.  He collided with a vehicle travelling along the highway, as a result of which a passenger in that vehicle was killed.  The applicant was drinking from a can of rum and cola as he was driving.  He had what was described as a “shocking” traffic history and a “minor but nevertheless concerning” criminal history.  He was 28 years of age at the time of the offence.  He had had five previous convictions for driving under the influence of alcohol.  The sentence was held not to be manifestly excessive.

1. In my view, although the blood alcohol reading of the applicant in that case was significantly lower than in the present case, the objective circumstances of the offence were otherwise significantly worse.  Again, there is no suggestion that that applicant had had difficulties analogous to those of the present applicant.  Moreover, he was several years older.  On the other hand, it is necessary to bear in mind that the maximum penalty for his offence was less than in the present case.

1. In Evans, the applicant had pleaded guilty to the offence of dangerous operation of a motor vehicle causing death, whilst under the influence of alcohol.  Her blood alcohol content was 0.247 per cent an hour after the accident.  Although she had only driven a short distance prior to the accident, the vehicle crossed the gutter and mounted the footpath a number of times.  Ultimately, it struck a pedestrian, but travelled a further 124 metres before coming to a stop.  The vehicle was unregistered and uninsured, and its left rear tyre was flat.  At the time of the offence, that applicant was 33 years of age.  She was the mother of six children, and she had demonstrated remorse.  The maximum penalty for the offence was 14 years imprisonment.  She was in fact sentenced to a term of six years imprisonment, with a recommendation for eligibility for post-prison community-based release after two and a half years.  That applicant’s traffic history included a conviction for driving under the influence of liquor (with a blood alcohol content of 0.06 per cent).  The traffic history of the applicant in Evans was far less significant than in the present case.  However, she was somewhat older than the present applicant; and there is no suggestion that she had experienced difficulties of the kind which the present applicant has experienced.

1. A case relied on by the applicant is R v Hoad.[6]The applicant in that case had pleaded guilty to having dangerously operated a motor vehicle, thereby causing death, at a time when she was adversely affected by an intoxicating substance.  She was sentenced to five years imprisonment, to be suspended after 18 months.  The maximum term of imprisonment for her offence was 10 years imprisonment.  While the offence was based upon the fact that the applicant was at the time affected by amphetamine, methylamphetamine, and ecstasy, her condition was also affected by her lack of sleep.  She had not slept for some four days, which itself was said to have an effect equivalent to that of a blood alcohol content of 0.28 per cent.  It was said that her dangerous driving occurred over a lengthy course of travel between Broadbeach and Runaway Bay.  Some 15 minutes before the accident, she had recognised that she was “really tired”, referred to as an awareness of her own “dangerously depleted capacity to drive”.  There was no suggestion of excessive speed, nor of erratic driving except immediately prior to the accident.  This applicant was 24 years of age at the time of the offence.

   [6][2005] QCA 92.

1. However, the applicant in Hoad was able to rely upon what were described as “personal matters”, said to mitigate significantly her criminal behaviour.  She had been adopted as an infant, resulting in feelings of abandonment and rejection.  She suffered from a major depressive disorder, and possibly a bi-polar disorder.  She had suffered a number of traumatic life experiences, including rape resulting in the birth of her daughter, and rape by men other than the daughter’s father, from when she was 13 until she turned 15.  She experienced domestic violence at the hands of her daughter’s father, including repeated bashings.  Her daughter’s father had threatened to kill her adoptive parents.  She suffered post-natal depression after the daughter’s birth.  She had located her biological parents, neither of whom were interested in contact with her.  She entered into emotionally abusive relationships after breaking up with her daughter’s father.  Nevertheless, she completed school to Grade 10; and subsequently attended TAFE courses and a journalism course with the University of Southern Queensland, and a Bachelor of Justice Studies course at QUT.  She had commenced, but not completed, a drug rehabilitation program.  She had support from her adoptive parents.

1. On appeal, the head sentence of five years imprisonment was not varied; but the period prior to its suspension was reduced from 18 months to nine months.

1. By way of comparison with the present case, it may be said that the objective circumstances of the offence were significantly worse; and that, while her background was very difficult, it was not as difficult as that of the present applicant’s.  On the other hand, there was no suggestion of any significant traffic or criminal history in that case.  It is also necessary to be mindful of the maximum penalty.

1. In R v Sheedy; ex parte A-G (Qld)[7], Hoad was distinguished because of what was described as the “remarkably traumatic background” of the applicant in Hoad; and because of her efforts at rehabilitation.  The applicant in Sheedy had pleaded guilty to the offence of dangerous operation of a motor vehicle causing death, whilst adversely affected by cannabis.  He was sentenced to a term of five and a half years imprisonment with a recommendation that he be eligible for parole after serving 18 months of that term.  The applicant in Sheedy had an “unimpressive” criminal history and an “even less impressive” traffic history.  The maximum penalty in that case was 10 years imprisonment.  The head sentence was not altered, but the period prior to the parole eligibility date was increased to two years.

   [7][2007] QCA 183.

1. Reference was also made to R v CAN.[8]The applicant in that case pleaded guilty to a count of dangerous operation of a vehicle causing death, with a circumstance of aggravation.  Blood analysis revealed a blood alcohol content of 0.154 per cent, as well as the presence of cannabis.  The applicant was sentenced to a term of imprisonment of seven years, no parole eligibility date being fixed by the sentencing judge.  The principal issue in the appeal was whether a parole eligibility date should have been fixed.

   [8][2009] QCA 59.

1. The accident involved no other vehicle.  The applicant failed to negotiate a bend in the roadway, mounting the curb and sliding for approximately 80 metres before colliding with a power pole.  Subsequently, the applicant falsely denied he was the driver of the motor vehicle. 

1. At the same time, the applicant was sentenced for earlier offences.  A number of those were committed on 28 July 2005.  They included dangerous operation of a motor vehicle, driving whilst unlicensed, and driving whilst under the influence of alcohol.  On this occasion, he had driven at speeds up to something in excess of 170 kilometres per hour in a 60 kilometres per hour speed limit zone; and drove erratically, including at times on the incorrect side of the road, for a distance in excess of three kilometres, before leaving the road, causing damage to property and then colliding with two gum trees.  On the same occasion he was in possession of a knife in a public place, and in possession of cannabis.  He was on bail for these offences at the time of the offence resulting in the death of his passenger. 

1. For an offence of driving whilst adversely affected by an intoxicating substance on another occasion in 2005, he was sentenced to two years imprisonment.  For some of the other offences for which he was sentenced at the same time, he was sentenced to imprisonment for one month; and for some, he was not further punished.  All of the terms of imprisonment imposed at this time were to be served concurrently.

1. This applicant had a history of criminal and traffic offences extending back for a substantial period of time.  A number of his criminal offences were drug-related.  His previous history of traffic offences included two occasions (in New South Wales) of driving whilst affected by alcohol; one of driving whilst disqualified from holding a driver’s licence; and two of driving without a licence.  On at least one previous occasion he was sentenced to a term of imprisonment of 12 months, wholly suspended.  On another occasion, a sentence of four months imprisonment was replaced with a 12 months supervision order from the New South Wales Probation Service, on condition that he accept drug and alcohol counselling.  This applicant was 35 years of age at the time of the sentence which led to the appeal.  The maximum penalty for the offence was 14 years imprisonment.

1. In 1995, this applicant had suffered a serious head injury as a result of a motor vehicle accident.  It left him with frontal lobe syndrome with poor impulse control.  However, his criminal offending had commenced before that date, and at the time of the injury he already had a significant problem with alcohol abuse and the use of cannabis.  He was said to have a significant personality disturbance, with anti-social personality traits which pre-dated his brain injury; and the psychiatrist who provided a report in relation to his condition noted that he had behaved in a repeatedly dangerous manner on a number of occasions and that he had never cooperated with those who attempted to treat him.  The 2005 offences were associated with an attempt to take his own life.  The application for leave to appeal against sentence was refused.  The court considered that mitigating factors present in the case had been adequately met by the fact that the sentences were made concurrent, when they might well have been imposed cumulatively.

1. This applicant’s history of traffic and criminal offences was worse than in the present case.  While his blood alcohol reading was lower, it was still quite significant; and cannabis was also detected.  He was significantly older than the present applicant.  Notwithstanding his head injury, he did not have the mitigating features found in the present case.

The present case

1. The applicant puts forward a substantial argument for mitigation of the head sentence on the grounds of her personal history and circumstances.  Some support for her contentions are to be found in Hoad.  A comparison with some of the cases, for example, Hey, might suggest that the head sentence was severe.  However, an analysis of Hoad’s case does not show that the sentence is manifestly excessive.  The maximum term to which the applicant might have been sentenced in that case was significantly less than in the present case.  The fact that the applicant in Hoad had no prior traffic or criminal history is also a matter of considerable significance.  When those factors are taken into account, the difference in the sentences is not sufficiently remarkable to warrant intervention in the present case.  Nor does a consideration of the other cases which have been discussed lead to a conclusion that the term of imprisonment was manifestly excessive.

1. In essence, the submission made on behalf of the applicant was that the term of imprisonment imposed did not sufficiently recognise mitigating factors relevant in the present case.  Mitigating factors were, however, recognised by setting an early parole eligibility date.  While it is correct to say that there is no certainty that this results in an early release of a prisoner, it is intended and expected that the setting of such a date will be of significance in any future decision about when a prisoner is to be released from custody.  Moreover, for an offence like the present one, concerns of general deterrence and public safety are of particular importance.  The matters advanced on behalf of the applicant do not lead me to the view that the sentence imposed was manifestly excessive.

Conclusion

1. The application for leave to appeal against sentence should be dismissed.