R v Conquest; Ex parte A-G (Qld)

[1995] QCA 567

IN THE COURT OF APPEAL	[1995] QCA 567
SUPREME COURT OF QUEENSLAND

C.A. No. 395 of 1995

Brisbane

[Conquest ex parte AG]

T H E Q U E E N

v.

LINCOLN PATRICK CONQUEST

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Macrossan CJ McPherson JA Thomas J

Judgment delivered 19 December 1995
Joint reasons by McPherson JA and Thomas J; Macrossan CJ dissenting

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SET ASIDE SENTENCE OF TWO YEARS IMPOSED BELOW AND IN LIEU THEREOF IMPOSE A SENTENCE OF THREE YEARS, WITH DISQUALIFICATION FROM OBTAINING OR HOLDING A DRIVERS LICENCE FOR FIVE YEARS

CATCHWORDS:CRIMINAL LAW - Attorney-General appeal against sentence - dangerous driving causing death - level of sentencing - relevance of harm to victims - other factors increasing seriousness - young offender - Crown Prosecutor below conceding sentence of "about 2½ years" appropriate - whether appropriate to substitute higher sentence on Attorney-General's appeal - danger in generalisation of "normal range".

Counsel:	Mr D. Bullock for the Appellant Mr T. Glynn for the Respondent
Solicitors:	Director of Public Prosecutions for the Appellant Legal Aid Office for the Respondent

Hearing Date: 17 November 1995

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 19/12/1995

This is an Attorney-General's appeal against sentence following a conviction on a charge of dangerous driving causing the death of one person and grievous bodily harm to two others. A sentence of two years imprisonment was imposed. In respect of an associated count of unlawful use of a motor vehicle the respondent was sentenced to six months imprisonment, that sentence to be concurrent. He was also disqualified from holding or obtaining a driver's licence for a period of five years.

The road accident with the serious consequences mentioned occurred in Browns Plains Road, Marsden, on 25 July 1994.

The respondent was seventeen years old at the date of the offence and eighteen when sentenced. He was alone in the car he was driving and he was aware that it was being driven without the consent of its owner. He pleaded guilty to the charge of unlawful use but on the major charge he was found guilty only after a trial. He did not give evidence at the trial but he had been interviewed by the police and his version of events was, with some exclusions thought to be appropriate, placed before the jury and it was of course available to the sentencing judge.

The respondent was, on 25 July 1994, an unlicensed driver and he was also subject to a probation order for a stealing offence which had been dealt with on 17 June 1994.

The episode of dangerous driving occurred shortly after 10pm on a fine clear night in conditions of visibility which were described as being fair. The respondent was driving in an easterly direction on Browns Plains Road and there was a group of five young people walking along the side of the same road in a westerly direction. Three of the group formed what could be described as a front row with two others a short distance behind them and the fifth member of the group at the rear. The road was straight and bitumen surfaced with one marked traffic lane in each direction approximately 3.5 metres wide. A dotted white centre line separated the two lanes and on each side of the lanes there was what was described as a parking area which, in each case, ran from the gutter to a continuous white line marking the outside edge of the traffic lane. The parking areas added about 2.4 metres to the width of the lanes and it was in one of those areas that the group of five was proceeding up a slight hill as the respondent approached them from the opposite direction.

It is clear that as the respondent in his vehicle came near the group of young pedestrians, the car he was driving swerved completely across to its incorrect side of the roadway and collided with three members of the group and went on a short further distance to collide with considerable force with a power pole. Of the three who were struck, one, a girl, was killed, and the other two, both young men, were severely injured. The explanation which the respondent gave of his driving was that some people quite unexpectedly stepped out onto the roadway from his left hand side and to avoid them, he was forced to swerve across towards the other side of the road and collided with some of a group of people in that location. It is obvious that the jury must have rejected this version and His Honour, the sentencing Judge, expressly indicated that he did not accept it.

In view of the way in which the appeal was argued, it is important to look rather closely at the submissions on sentence made by the Crown below and also at the reasons stated by the sentencing Judge.

Although the respondent had been charged with dangerous driving causing death and grievous bodily harm to the victims, he had not been charged with manslaughter. When it came time to sentence the respondent the prosecutor referred to the claims the respondent had made about how he had come into possession of the vehicle he was driving. He said he had it on loan from a person called Jodie. In fact the vehicle belonged to another person named in the proceedings and had been taken from a carpark on the Gold Coast sometime on either 24 or 25 July and the respondent's possession of it was unauthorised. In the episode of 25 July the car was damaged beyond repair.

In respect of the circumstances involved in the offence of dangerous driving the prosecutor submitted that the only reasonable inference was that "for whatever reason" the respondent deliberately drove the vehicle onto the incorrect side, but the prosecutor expressly stated that it was not alleged by the Crown that the respondent deliberately drove at any person intending to cause injury. The prosecutor accepted that the fact that the respondent ended up crashing heavily into a cement light pole sufficiently indicated that he had not intended to cause injury to others. However, he suggested that the respondent had "invented" the existence of a further group of people upon the roadway on the respondent's left hand side. While the prosecutor made clear his claim that there were a number of falsehoods in the version given by the respondent to the police he did not suggest that alcohol had been taken by him.

The prosecutor then referred to three decisions of the Court of Appeal as being capable of providing assistance on sentence in this case.

The first was the case of Gartside, unreported, C.A. No. 374 of 1994, 15/11/1994. There the Court declined to interfere with a sentence of 18 months imprisonment where the appellant had been found guilty on one count of dangerous driving causing death. The appellant was a twenty one year old and had no previous criminal history. He had been driving a car with two passengers and purely to divert himself, zigzagged a number of times across the traffic lanes, with the consequence that his vehicle mounted a median strip. He lost control and crashed into two vehicles coming in the opposite direction. The driver of one of those vehicles was killed, and the driver of the other suffered grievous bodily harm. The prosecutor here, in answer to a question from the sentencing Judge, indicated that he accepted that the driving in Gartside was "not dissimilar" to that in the present case but nevertheless a sentence in excess of that imposed in Gartside would be appropriate having in mind that the respondent was an unlawful user of the car he was driving. In connection with the reference to Gartside below, both the sentencing Judge and the prosecutor noted a description which had been given of the Gartside sentence as being at the top of the range.

The next decision the prosecutor referred to was Woods, unreported, C.A. No. 368 of 1990, 04/03/1991. Once again it was a case of dangerous driving causing death and the judge below had imposed a sentence which the Court of Appeal indicated was too light. Woods was nineteen years old at the time and was sentenced to 240 hours of community service for his driving described as being not only dangerous but reckless with regard both to speed and manner. The vehicle he drove had manual transmission, although he was only licensed to drive an automatic vehicle. Woods had been driving at speeds between eighty and 120 kilometres an hour in a sixty kilometre per hour zone. On appeal, the Court increased the sentence to one of two years imprisonment but in view of the fact that Woods had already performed 156 hours of the community service ordered, recommended that he be considered for parole after serving eight months of the sentence. The prosecutor offered the Judge his view that the case of Woods was also "not dissimilar" except that Woods had been travelling at very excessive speeds.

Lastly, "by way of completeness" as he put it, the prosecutor referred to the decision of
the Court of Appeal in the case of Sheppard C.A. No. 31 of 1994 reported in 77 A. Crim. R.,
139.
Sheppard, as the prosecutor pointed out, was convicted of dangerous driving causing death and
of grievous bodily harm. He had previous driving offences and had a concentration of alcohol in
his blood of 150 milligrams per 100 millilitres of blood so that the statutory maximum term was
fifteen years for the dangerous driving. The prosecutor said he recognised that Sheppard was a
different sort of case but informed the sentencing Judge that he was drawing attention to it
because of the discussion by the Court in Sheppard's case of the suggestion that penalties for
offences of the kind under consideration might be increased

The prosecutor then summarised the position he took in this way: the Court had before it a "very serious instance" of the offence for which the maximum penalty which could be imposed was seven years imprisonment; the respondent had some other criminal convictions although not driving offences and he had been placed on probation a little over a month earlier; taking into account those matters and the fact that the respondent was unlicensed, it was a more serious example than the case of Woods; the submission made on behalf of the Crown was that realistically, on the basis of the comparatives presented, the Court "would look at something around about two and a half years imprisonment". The prosecutor, in his submission, referred to Gartside as having involved "skylarking" and, in the course of an exchange with the prosecutor, the Judge indicated that he agreed that the respondent here had been skylarking. The prosecutor concluded his submissions by indicating that in his view an appropriate penalty in the circumstances was something in the area of two and a half years imprisonment with the sentence for unlawful use properly made concurrent.

In his remarks before passing sentence the Judge referred to the respondent's claim of swerving to miss persons who had jumped out onto the roadway from the respondent's left, but the Judge stated his satisfaction that no such persons had been there at the time and the respondent had merely invented their presence. The Judge announced his satisfaction that the case was not one of inattention or misjudgment but one where the actions were deliberate because "for whatever reason (the respondent) chose to drive on the incorrect side of the road". The Judge said he was satisfied that the incident arose directly as a result of the respondent's "skylarking". He said while he could not determine the exact speed at which the vehicle was being driven, it was travelling at a speed "which was not dangerous in itself". The Judge said he took into account the respondent's age which was seventeen, and the facts that he was unlicensed and on probation. Before imposing the sentences with which we are concerned, namely two years and six months respectively to be served concurrently, he expressly indicated that he had had regard to the sentences of Gartside and Woods.

Some emphasis has been given to the course of proceedings below because of the nature of the arguments advanced on behalf of the Attorney General on the appeal. Counsel for the Attorney General submitted that there were two major issues arising on the appeal, the first being whether the sentence was manifestly inadequate, and the second being whether the Attorney, in the circumstances of the case, should be free to depart from the submissions upon appropriate sentence which had been made on behalf of the Crown below.

Counsel for the Attorney General referred to the maximum penalty of seven years currently provided for the dangerous driving offence in the circumstances of the present case noting that the penalty had been increased to that level in March 1989. The dates at which the penalties imposed in Gartside and Woods were considered on appeal should not be lost sight of: the judgments in 1994 and 1991 respectively were both delivered after the increase made to the statutory maximum penalty in March 1989.

Counsel for the Attorney General had prepared a schedule of sentences in other cases considered in this Court on appeal but conceded that when it was examined, the picture was not changed and Gartside and Woods provided as much support for his arguments as he could hope to obtain from the schedule. He disclaimed any attempt to achieve some general alteration of the appropriate "range" for sentencing in cases of this kind and perhaps this was because of some of the observations which appear in Sheppard. Nevertheless, without being entirely clear about the basis on which, in view of the prevailing level of sentencing, it should be done, he indicated that the term in this case could appropriately have been six to seven years without any recommendation. He submitted finally that the sentence which should be imposed was one of seven years, that is the maximum, unless it were held that the submissions made by the prosecutor below restricted the freedom to interfere, in which case the sentence should be"two and a half years or more".

The prosecutor submitted that this case was one of the worst of its kind. Although the consequences of the driving were certainly horrendous, there are reasons why that assessment may be thought to overlook some matters. There was no suggestion here of really excessive speed and the dangerous driving in question, although lethal in its effects, took place over a very brief timespan. Sustained driving at high speeds in the vicinity of groups of people or through red lights or stop signs could be viewed as worse kinds of cases as could instances of dangerous actions persisted in over an extended period.

In the present case although the respondent, in the version he gave, conceded that he deliberately steered his vehicle across to the incorrect side of the road and gave a false reason for taking this action, he did not concede that when he did this he was aware that there were persons on that side of the road. In fact, he denied that he saw them at all at any time when it was open to him to avoid them. He said that he did not see them until "just on impact" when it was "too late" to do anything.

There is an obligation on the Court to act with some consistency in the sentences which it imposes. Here, the range of sentences which have been imposed in other cases of dangerous driving causing death is not such as by itself to call for any interference. Further, it must be remembered that this is an Attorney General's appeal and in R v. Melano [1995] 2 Qd.R 186 this court, after giving due consideration to the decision of the High Court in Everett v. The Queen (1994) 181 C.L.R. 302 and to the reasons which lie behind the reluctance to increase sentences on Attorney General's appeals, stated (at 190) that ordinarily the Court would not do so "unless the sentence is outside the sound exercise of the sentencing Judge's discretion". In addition to this, there is the obligation upon the Crown to act with an appropriate degree of consistency in the stand which it takes in individual cases. The attitude expressed by a prosecutor below, especially when it can be seen to be one which has influenced a sentencing Judge in fixing the sentence imposed, cannot, in justice, be disregarded by the Crown on appeal: see e.g. Everett v. The Queen (supra) especially McHugh J at 307-308; R v. Boult C.A. No. 458 of 1993, 17/3/94 unreported; R v. Ashton and R v. Leyden unreported, C.A. No. 239, 240 of 1995, 23/08/1995.

In the present case the prosecutor clearly attempted to offer full assistance to the sentencing Judge and was himself under no misapprehension which can be pointed to. The submissions which he made about appropriate range were justified by the cases to which he referred.

The view of the facts upon which the Judge acted did not include any element of deliberately driving towards a group of pedestrians on the right hand side of the road with knowledge at any significant time of their presence. The Judge has found no more than "skylarking" unaccompanied by any finding of knowledge by the respondent of the presence of persons on that part of the roadway and the respondent's version would not have supported a different finding.

The case of Sheppard to which counsel for the Attorney General referred does not assist the particular result which he asks for. It is there emphasised that the established range as well as the statutory maximum must be given due weight and counsel here has not sought to achieve a general alteration of the range of sentencing in cases of this kind. Further, it was not sought below in the submissions made by the prosecutor to the sentencing Judge.

The principles upon which this Court feels constrained to proceed in appeals against sentence should, for the reasons indicated above, result in its holding that it should not interfere with the sentence. The appeal should be dismissed.

JOINT REASONS FOR JUDGMENT OF McPHERSON JA AND THOMAS J

Judgment delivered 19 December 1995

The most notable feature of this case is the terrible consequences to the three young pedestrians whom the respondent ran down. Belinda Aitkin, aged sixteen, was killed; Craig Goodhew and Paul Adkin suffered grievous bodily harm. Paul Adkin's injuries included injuries to his brain and his legs. He was previously a very active sportsman, but because of his injuries he is totally unable to return to any sort of active sport, and totally unable to work in any labouring occupation. His personality has changed. The harm and distress caused to the victims and their families is immeasurable.

The respondent was seventeen at the time and he was eighteen when he was convicted of these offences by a jury. He was unlicensed and on a good behaviour bond. He was unlawfully driving someone else's vehicle, a red Falcon which had been taken from a carpark at a Surfers Paradise resort two hours previously. He pleaded guilty to unlawful use of that motor vehicle. After being convicted on the present matters he pleaded guilty to a further seven criminal offences, five of which had been committed prior to the offences in question ("the prior offences"), and two of which were committed after he had been granted bail on the present matters ("the subsequent offences"). The prior offences included four breaking and entering offences and one of wilful damage. Both subsequent offences were the unlawful use of a motor vehicle.

Only three weeks before the events in question the respondent had been before the Court upon a re-sentence and had succeeded in having a probation order set aside and replaced with a good behaviour bond for twelve months, with no conviction recorded, with respect to a stealing offence committed on 5 November 1992. This would be consistent with the Court having treated that offence as part of a series of criminal acts committed by him when he was aged fifteen, recognising that in 1992 he had been convicted on ten counts of breaking and entering dwelling- houses with intent and of seven charges of stealing, and had been sentenced to six months' supervision.

Despite his young age his criminal history is relatively serious and it stands against him. Of particular note is the fact that he was on a bond at the time of committing the present offences; and that notwithstanding the shocking consequences of his actions on 25 July 1994, he has continued to offend.

The learned sentencing Judge had the task of sentencing the respondent upon nine offences. For the five prior offences his Honour recorded a conviction but did not impose any penalty, observing that these offences had been committed when the respondent was fifteen years old. On the offence of dangerous driving causing death and grievous bodily harm to the three named victims he sentenced the respondent to two years' imprisonment. Upon the unlawful use of a motor vehicle that he was using at the time he sentenced the respondent to six months' concurrent imprisonment. On the two subsequent offences of unlawful use of a motor vehicle he sentenced the respondent to six months' cumulative imprisonment.

It can therefore be seen that the total punishment imposed in respect of all the criminal activity was an effective sentence of two and a half years' imprisonment. The Attorney's appeal is only in respect of the sentence of two years for the dangerous driving causing death and grievous bodily harm. This happens to be the major component in a single sentencing exercise and it must be evaluated in the context of the exercise as a whole.

So far as the respondent's driving is concerned, it cannot be held that he knew of the presence of the pedestrians with whom he collided. The criminal conduct for which he had to be sentenced was skylarking with a stolen vehicle on the wrong side of Browns Plains Road at night time, and failing to see the people walking there until too late. That is very serious conduct, but the evidence does not permit any more sinister inference to be drawn such as actual knowledge of the presence of the people into whom he drove. It must be accepted that he deliberately drove on the wrong side of the road, and that he was not aware of the presence of the people there.

He should have seen them there, because it was a straight and reasonably well lit road with no impediment to vision. He told the police that he knew the road "like the back of my hand" and that he had "driven heaps of Falcons". There were no other vehicles on the road at the time. He was accelerating as he drove across onto the wrong side of the road and there was no attempt to brake. He claimed that he had done so because there had been some people on the left hand side of the road who had "jumped out" at him and were "annoying me" (which he likened to annoyance "when you're driving yourself and someone's out pushbike riding"). The evidence suggested that there was no such group of persons on the respondent's side of the road. The jury and the learned sentencing Judge rightly rejected the explanation.

The consequences of criminal acts sometimes bear little relationship to the innate reprehensibility of the act of the offender. A violent malicious assault may produce surprisingly little injury while a relatively minor reactive assault may produce grave injury or even death. In driving cases extremely reprehensible driving may cause little damage, whilst less serious driving may result in death or serious harm to others (cf. Sheppard (1995) 77 A Crim R 139, 141 per Pincus JA). Offenders however must face up to the consequences of their actions. Plainly the actual result of conduct like this is a highly relevant factor in the sentencing process. So too is the nature of the driving. The reasons of the Chief Justice, which we have had the advantage of reading, demonstrate that the evidence does not bring the offender's conduct in this case into the most serious class of dangerous driving, but it still lies toward the more serious end of the spectrum.

In the end the case has to be seen as one of reckless conduct by a young offender who inflicted extremely serious loss upon three victims and their families in circumstances that reveal a number of other serious features. In the sentencing process it is important to remember the following:

"Of course, no sentence can right the wrongs he has done. Perhaps the satisfaction of a victim's desire for vengeance may alleviate some of the pain caused by the misconduct in question, but it can never wholly, or even substantially redress the wrong. In any event, vengeance is by no means the only objective of punishment. Rehabilitation of the offender, who will return to the community in the future, must also be considered, as must the deterrent effect of any penalty."

(Sheppard above at p.148 per Dowsett J)

Recognition of the feeling of a victim or family is therefore only one part of a complex sentencing process.

It is not suggested that alcohol or drugs played any part in the event. The respondent is seventeen years old and the prospect of his rehabilitation is not to be lightly discarded.

It is important that the courts endeavour to maintain consistency in sentencing offenders. The desire for consistency has produced a tension between what is said to be a normal range of sentence in comparable cases and the maximum penalty under s.328A of the Code for such an offence which is seven years when the offender is not adversely affected by alcohol or a drug. The cases suggested as having some comparable features include Gartside CA 374/94, 15 November 1994 (one and a half years) and Woods CA 368/90, 4 March 1991 (two years). It would certainly be an error for a sentencing court to treat the normal rough range of sentence in roughly comparable cases as if it were the statutory maximum. But equally it would be an error for a sentencing Judge to set his or her own level of sentence in a manner inconsistent with other judicial decisions. The only escape from this dilemma is through recognition of the fact that no two cases are exactly alike, and that in general the level of sentence in one case can only be a rough guide to another. To speak of a "normal range" may give the sentencing court some feeling of comfort, but it is often a dangerous generalisation.

It is relevant to note that in 1989 the maximum sentence under s.328A of the Code for dangerous driving causing death or grievous bodily harm was increased from five years to seven years imprisonment. That might be thought to be a recognition of the seriousness with which the community regards such an offence, but that recognition does not appear to have resulted in any discernible increase in sentences by the courts. The prescription of an increased maximum level by the legislature is a relevant matter. We do not think that a sentence of two years, two and a half years, three years or even more necessarily marks a limit beyond which it would be inappropriate for a sentencing judge to go in circumstances like the present. The factors that would take a sentence further towards the maximum level would include the seriousness of the driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender's criminal record (with particular emphasis upon his driving history and his attitude to fellow citizens), and whether the offender has little prospect of rehabilitation.

In the present case it is the consequences to other persons that mark the case as a specially serious one, but other factors count against him as well. The relevance of the other criminal conduct for which he was sentenced at the same time seems not to have been given sufficient aggravating effect. Whilst it was open to the learned sentencing Judge to impose a concurrent sentence upon the contemporaneous unlawful user charge, that circumstance increased the level of criminal conduct for which sentences had to be imposed, and the operative sentence of two years overall can plainly be seen as too low. His attitude during interview and in the conduct of his defence demonstrates little remorse or adversion to the consequences for others. His continued offending subsequently to the incident suggests that his values have not changed.

The position of the Attorney-General in this appeal is weakened to some extent by the concession of the Crown Prosecutor during argument below that the Court "would look at something around about two and a half years imprisonment", and that a concurrent sentence would be appropriate in relation to the unlawful use offence of 25 July 1994. At the same time he submitted that that unlawful use was an aggravating factor in the dangerous driving and that the present matter was a more serious example than the case of Woods where two years' imprisonment was regarded as appropriate. Whilst the submissions may have contributed to the imposition of a sentence which was too low, it may be something of an overstatement to refer to the submissions as a "concession". His suggestion to the Court was consistent, if the Court had been so minded, with the imposition of a sentence of say three years, and of course the Court has the right and duty, if it considers the submissions of the Crown Prosecutor to be unrealistic, to impose the sentence which it thinks appropriate. Even an undue concession by a Crown Prosecutor during the sentencing process is not necessarily fatal to an appeal by the Attorney- General (Ascerbi (1983) 11 A Crim R 90, 92) although it is a factor militating against the success of such appeals (Malvaso (1989) 168 CLR 227, 240; R v. Tait (1979) 46 FLR 386, 388; R v. Boult ex parte Attorney-General CA 458 of 1993, 17 March 1994). The issue in the present case is one of the quantum of a term of imprisonment, rather than one whether custody should be served at all. It is impossible to see how allowance of the present appeal would disadvantage the respondent to any greater extent than that to which any other respondent is disadvantaged by the allowance of an Attorney-General's appeal, or how any statements of the Crown Prosecutor could be regarded as responsible for any ultimate disadvantage to the respondent.

The question then is whether the present sentence was outside the scope of a proper sentencing discretion (R v. Melano ex parte Attorney-General [1995] 2 Qd R 186). It seems to us, with respect, that the sentence appealed from fails to reflect the entire picture, or to give sufficient weight to the serious circumstances of the case. In our view this Court should allow the appeal and substitute a higher sentence. The way in which the case was presented below makes it appropriate that the sentence to be substituted be conservative. It is also desirable to recognise that a sentence of two years' imprisonment may well be too low when the consequences are as grievous as those here and that it is plainly too low when there are further aggravating circumstances such as serious level of dangerous driving, unenviable criminal record, lack of remorse, dangerous driving in the course of unlawful use of a motor vehicle, unlicensed driving, committing the offence whilst on a good behaviour bond, and commission of further offences after the events in question. It is not to be thought that Gartside and Woods mark out some upper limit.

In the present case the two-year sentence should be replaced with one of three years, and equally it is not to be thought that this marks out some upper limit. The sentence would have been higher but for the reason that has been mentioned. The overall effect of the sentencing exercise will be that the respondent will serve three years for this offence and an additional six months for the subsequent offences and of course his disqualification from obtaining or holding a drivers licence for five years should remain. This is a heavy sentence for an eighteen year old offender, but in our view anything less would lack proportionality.