R v Cusak; ex parte A-G (Qld) - [2000] QCA 239

[2000] QCA 239

COURT OF APPEAL

DAVIES JA
THOMAS JA
WHITE J

CA No 90 of 2000

THE QUEEN

DEAN ALEYN CUSAK Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND Appellant

BRISBANE

..DATE 16/06/2000

JUDGMENT

THOMAS JA: The appellant pleaded guilty to dangerous driving causing death whilst adversely affected by an alcohol concentration exceeding .15 per cent. He was sentenced to three years' imprisonment wholly suspended for a period of four years. In addition he was fined $10,000 and disqualified from holding or obtaining a driver's licence for four years.

This is an appeal by the Attorney-General on whose behalf it is contended that the sentence was manifestly inadequate.

The respondent is a person of good character with no prior criminal convictions. However, he has a history of Traffic Act breaches resulted in 16 demerit points between 1994 and 1999, including two speeding offences and one failure to stop at a red light.

On the day in question, 23 May 1999, the respondent and his companions had been drinking at the Buffalo Club, Mt Isa. They left in a Toyota Landcruiser utility driven by the respondent. Its owner was in the passenger seat and two other passengers, one of whom was the deceased, sat in makeshift seats fixed in the open tray of the vehicle. They were intending to go to the home of the deceased which was only a short distance away. Witnesses stated that while the vehicle was not driven at a particularly high speed, it was driven in such a way that the wheels squealed when negotiating the first corner near the club. In negotiating that corner the tyres on one side of the vehicle were seen to leave the ground. The vehicle then travelled on to the incorrect side of the road, veered back on to the correct side and attempted to take the next corner, again with screeching tyres. One of the persons on the tray was seen to attempt to grab or hold on to the side of the tray. On rounding the corner the vehicle rolled over and one of the passengers in the tray was killed. The respondent climbed out of the vehicle, saw the deceased and left the scene, but returned fairly quickly with his mother. By that time police and ambulance were present. Subsequent testing revealed a blood alcohol level of .17 per cent. The respondent declined to be interviewed by the police.

The learned sentencing judge noted that the intention had been to drive only a short distance and that the driving occurred over a distance of only approximately 55 metres from the club. His Honour reflected upon the difficulty of sentencing in this area, and mentioned his difficulty in reconciling decisions such as Purcell (CA 192 of 1999,
17 August 1999) which was custodial, and Anderson (CA 284 of 1998, 10 November 1998) which was non-custodial. Whilst not cavilling with his Honour's conclusion that each case must be dealt with and examined separately, his Honour's difficulty in reconciling the cases…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QCA 239
Decision Date: 16/06/2000

CaseChat Overview and Summary

In the matter of the Attorney-General of Queensland versus Dean Aleyn Cusack, the Court of Appeal considered an appeal against the sentence imposed on Cusack, who had pleaded guilty to dangerous driving causing death whilst adversely affected by an alcohol concentration exceeding 0.15 per cent. Cusack was sentenced to three years' imprisonment wholly suspended for a period of four years, a $10,000 fine, and a four-year disqualification from holding or obtaining a driver's licence. The Attorney-General argued that the sentence was manifestly inadequate.

The legal issues before the court were whether the sentence imposed was sufficiently deterrent and consistent with other cases involving dangerous driving and high blood alcohol levels resulting in death. The court examined the principles of sentencing in such cases, emphasising the need for actual and substantial imprisonment where a person drives dangerously while highly intoxicated and causes death. The court also considered the mitigating factors presented, such as Cusack's plea of guilty, his remorse, and the circumstances of the victims.

The court found that the sentence was too lenient and did not adequately serve the purposes of deterrence and consistency. It noted that similar cases have resulted in custodial sentences, and that the principles of sentencing in such cases have been consistently upheld by both the Court of Criminal Appeal and the Queensland Court of Appeal. The court held that the non-custodial sentence imposed on Cusack was manifestly inadequate and did not reflect the seriousness of his conduct. The appeal was allowed, and the sentence was set aside and replaced with a sentence of three years' imprisonment suspended after nine months for an operational period of three years, along with a three-year disqualification from holding a driver's licence. The court granted liberty to apply to cover any difficulties in recovering the fine, which had already been paid.

Orders