R v Dacre

[1996] QCA 311

[1996] QCA 311

COURT OF APPEAL

DERRINGTON J
MACKENZIE J
WHITE J

CA No 206 of 1996

THE QUEEN

v.

MATTHEW MICHAEL DACRE  Applicant

BRISBANE

..DATE 30/07/96

JUDGMENT

MACKENZIE J:  The applicant pleaded guilty to offences of dangerous driving with the circumstance of aggravation that he was under the influence of liquor, driving whilst under the influence of liquor and failing to remain at the scene of an accident in callous disregard of the person injured.

The plea of guilty for the first charge was not timely, being entered only on the morning of the hearing, which occasioned inconvenience and expense to a police witness who had to be brought back from holidays.  That, of course, is not an aggravating circumstance as far as penalty is concerned; it merely indicates that the plea was late.  The intention to plead guilty to the other offences had been notified in good time.

Having considered the statements in the matter, the Magistrate decided to exercise summary jurisdiction.  He sentenced the applicant to imprisonment for 12 months for the aggravated dangerous driving, two months imprisonment for driving whilst under the influence of liquor; and six months imprisonment for the callous disregard offence.  All sentences were to be served concurrently.

The present application is in respect of the sentence of 12 months imprisonment only.  We have been told that there are appeals in another place in respect of the other sentences.

The Magistrate noted that under section 31 (4) of the Traffic Act, it was mandatory that a period of imprisonment be imposed as all or part of the punishment for the callous disregard offence.

The blood alcohol concentration involved was .137 per cent. 

The relevant driving occurred in Sheridan Street, Cairns, in the late afternoon.  According to one eye witness, who was behind the applicant, he was driving impatiently and erratically in a line of traffic.  Another driver who was in front of him said the applicant was driving erratically and appeared to be trying to force him to speed up.  That driver said he waved his arm, intending to convey to the applicant that he should slow down and back off.  Shortly after that driver had moved into a right-turn lane, the appellant drew level in the lane that the witness had just vacated, lent out of the driver's window, shaking his fist and abusing him.  That witness, and another witness, estimated the vehicles were travelling at about 60 kilometres an hour.

While the applicant was engaged in the abuse, he failed to observe that there were vehicles stationary in front of him and collided with the rear vehicle.  This caused a chain reaction involving a motor cyclist, who was in front of the vehicle struck, and another vehicle in front of the motor cycle.  The motor cyclist was thrown into the gutter and suffered significant lacerations.  Another driver, according to the material before the Magistrate, suffered neck and lower back pain.

After the collision, the applicant reversed, drove on for a short distance, stopped, and got out, but then returned to his vehicle and drove off.  Another motorist followed the applicant and advised the police of his whereabouts by mobile phone.  After the applicant had driven some distance from the scene, obviously aware that he was being followed and having stopped at least twice - once to remove debris and once to try to converse with the witness who was following him - he drove back to the scene.  According to the man following him, it was about 20 to 25 minutes after the incident that he arrived back at the scene.

The applicant was 28 years of age and had no previous convictions.  It was submitted to the Magistrate that the applicant had suffered a breakdown of a relationship with a woman as a result of the incident and that he faced civil liability of the order of $50,000 in respect of the incident. 
The Magistrate, in imposing sentence, referred to the principle of totality in sentencing.  He said that because of the late plea and the other conduct, he was not persuaded that the applicant was remorseful.  He referred to the lack of concern for other road users displayed by the circumstances and said that he found it difficult to accept that the actions subsequent to the collision, except perhaps the initial flight from the scene, were due to panic.  He referred to the applicant's previous good character, his age, his personal circumstances and the potential loss of employment and liability for civil damages.

He took into account that the applicant was affected by alcohol and that, despite several opportunities to reflect after the collision, he still drove whilst under the influence of alcohol.  He treated the applicant's return to the scene as prompted by realisation that there was no escape, rather than remorse.

The case can, therefore, be seen as one that is not a case of mere momentary inattention.  There was evidence of a course of impatient and erratic driving and aggression towards another road user.  It was while the applicant's attention was diverted, in the course of venting his aggression on the other driver, that he failed to see the stationary vehicles in front of him. 

The fact that he had made a calculated decision to abscond from the scene after stopping and having the opportunity to see what happened, in my view, justified the Magistrate in viewing the matter as a relatively serious one. 

Mr Rafter has submitted that the authorities do not assist him greatly in submitting that there ought not to have been a sentence of imprisonment.  What his argument really is, is that the sentence has been rendered manifestly excessive because the Magistrate did not suspend the sentence at some stage, having regard to the previous antecedents of the prisoner.

The Magistrate also mentioned, although it is not, as Mr Rafter pointed out, a matter for increasing the sentence, the prevalence of dangerous driving offences in his jurisdiction.  While the sentence is a relatively heavy sentence, the factors that I have referred to made the offence a relatively serious one.  It happened in one of the main streets of Cairns and the circumstances, in my view, called for a period of imprisonment.  I do not think that the Magistrate was wrong in looking at the overall criminality of the incident.

Having considered all of those factors, it is my view that the sentence of 12 months could in no way be said to be manifestly excessive.  I do not think that, having regard to the factors which the Magistrate referred to, it was obligatory upon him to suspend the sentence earlier than the period which the prisoner would serve before becoming eligible for parole.  In my view, the application should be refused.

DERRINGTON J:  I agree.  In my view the sentence is comparatively heavy, but only because of the age and fact that the applicant is a first offender.  However, in the serious circumstances of this case, in my view, it is not so manifestly excessive that it should be interfered with.

WHITE J:  I agree.

DERRINGTON J:  The order of the Court is that the application is dismissed.

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