R v Djakovich

[1995] QCA 491

IN THE COURT OF APPEAL	[1995] QCA 491
SUPREME COURT OF QUEENSLAND

C.A. No. 331 of 1995.

Brisbane

[R v. Djakovich]

T H E Q U E E N

v.

DANIEL DJAKOVICH

(Applicant)

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Fitzgerald P.
McPherson J.A.

Pincus J.A.

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Judgment delivered 07/11/1995

Joint reasons for judgment of Fitzgerald P. and Pincus J.A.; separate dissenting
reasons for judgment of McPherson J.A.
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCES IMPOSED BELOW IN RESPECT OF THE DANGEROUS DRIVING OFFENCES ARE REDUCED TO THREE AND A HALF YEARS WITH NO PAROLE RECOMMENDATION.

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CATCHWORDS:	CRIMINAL LAW - SENTENCE - whether manifestly excessive; whether maximum penalty should have been imposed - offences included 5 counts of dangerous driving whilst adversely affected by alcohol - relevance of youth; injury to offender by being shot in the course of committing the offences; bad driving record; no really serious offence committed previously.
S. 328A Criminal Code.
Noble & Verheyden (1994) 73 A.Crim.R. 379 Vogt (C.A. No. 67 of 1995, 28 April 1995, unreported) Woodgate (C.A. No. 225 of 1991, 13 November 1991, unreported)
Counsel:	Mr S J Hamlyn-Harris for the applicant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Office for the applicant. Director of Public Prosecutions Queensland for the respondent.
Hearing date:	30 October 1995.

JOINT REASONS FOR JUDGMENT - FITZGERALD P AND PINCUS J.A.

Judgment delivered 07/11/1995

The applicant was sentenced in the District Court in respect of a number of offences associated with driving of a motor vehicle, all committed on 28 November 1993. There were five charges of dangerous driving, one of unlawful assault in company resulting in bodily harm, one of wilful damage and one of common assault. To all of these the applicant pleaded guilty.

Each of the dangerous driving charges alleged as a circumstance of aggravation that the applicant, at the time of committing the offence, was adversely affected by an intoxicating substance; in consequence, the applicant became liable upon conviction to a fine of 400 penalty units or imprisonment for 5 years, or to both fine and imprisonment under s. 328A(2). He was sentenced to the maximum period of imprisonment permissible under the section, 5 years, on each dangerous driving charge, to 12 months for the assault causing bodily harm in company, and to 9 months on each of the other charges; all these sentences were concurrent. The judge ordered that the applicant be considered for release on parole after having served 2 years.

As will appear, the applicant’s conduct on the day in question was persisted in over a substantial period and was in the highest degree aggressive and dangerous; were there no mitigating factors, one could not seriously contest the proposition that 5 years imprisonment was not merited. The question is whether a number of circumstances combine to compel the result that a head sentence of 5 years, being the maximum permissible period for each of the dangerous driving offences, must be regarded as excessive. Those circumstances are chiefly the youth of the offender, the fact that he was seriously injured, by being shot, in the course of committing the offences, and that he had never committed any really serious offence, although he had a bad driving record.

The series of incidents began, it appears, about midday on the day in question. A Mr Daw was driving a car near the Pacific Highway when another car, in which the applicant was travelling as a passenger, came up behind him and followed him for about 10 kilometres, pulling in front of Daw’s car more than once; the applicant was calling out to Daw, "Pull over". The car in which the applicant was a passenger was driven around in front of Daw’s car and stopped at an angle; both the applicant and his driver approached Daw and the applicant punched Daw through the open window of his car and threatened him. Shortly after, the applicant hit Daw’s windscreen, breaking it, and then in effect threatened Daw again while holding his fist up to Daw. Daw had some minor injuries, but required no treatment.

The matters just described constituted the three lesser offences - the assault occasioning bodily harm in company, the offence of causing wilful damage, and the common assault.

The five dangerous driving offences began when, at some unspecified time after the incident involving Daw, the applicant was driving on a street running into the Beenleigh-Beaudesert Road; when he came to that road he travelled into it at speed, causing a man called Dibald, who was driving on the Beenleigh-Beaudesert Road, to brake and veer to the left to avoid a collision. Next, at about 2.55 pm, a man called Leishon, who was travelling in a vehicle on the Beenleigh-Beaudesert Road, saw a motor car which was being driven by the applicant coming up very quickly behind him; it swerved to its right into the path of another car travelling in the opposite direction, which had to brake and swerve hard to the left; the applicant’s car then braked and swerved back in front of Leishon’s car, causing Leishon to take evasive action. Leishon saw the applicant’s car drive on and make a right-hand turn out of the Beenleigh-Beaudesert Road in such a way as almost to strike the centre median strip.

The third dangerous driving offence, also occurred on the same road, when a man called Anderson riding a motor cycle was overtaken by the applicant’s car, travelling too fast. He then saw the applicant’s car so driven that two vehicles travelling in the opposite direction had to pull off the road to avoid a collision. The fourth incident the subject of a separate charge was witnessed by people called Love and Harrison, and the applicant’s driving was then similar to that described by Anderson.

The last and most serious of the dangerous driving offences involved two police officers, Constables Edge and Craig. They received some information and in consequence went to the Beenleigh Rum Distillery, where they saw, stationary, the car the applicant had been driving recklessly, as we have described. The police approached the applicant and asked him if he had been drinking and he said "No, I’m about to start". When asked to move his vehicle out of the driveway the applicant got in and drove out recklessly at high speed. The police car followed and the applicant was observed to drive through a stop sign, causing other vehicles to have to either brake or swerve to evade it. The applicant’s car was driven on to the nature strip separating the north and southbound lanes of the Pacific Highway and then on to the highway; the police said that the applicant changed lanes on a number of occasions without indicating, causing other drivers to have to take evasive action.

The police car was driven up to 150 kph to catch the applicant’s vehicle, which continued to be driven as formerly. Then the applicant’s vehicle did a 180 degree turn, causing the police vehicle to be braked hard; there was a slight collision, as the police vehicle stopped. The police officers, one with a revolver and another with a baton, went to the applicant’s car and each opened a door. When one of the police officers, Constable Edge, was leaning in to take the ignition keys, the applicant suddenly drove his car in reverse gear and the two police officers were caught in between the doors and the car; to avoid risk of serious injury Constable Edge shot the applicant, twice. The police officers incurred some very minor injuries. The applicant suffered a fractured right radius and fractured left femur. He also received a bullet wound in his abdomen, but exploration of the bullet hole showed that there was no significant injury inside the abdomen. There was a sample of the applicant’s blood taken, presumably when he went to hospital, and it showed .114 percent alcohol. He attended at outpatients a few times, the last occasion being some five months after he was shot, and his condition was then good. At the sentence hearing, the applicant gave evidence that he got pain associated with the shooting "every now and then - only through weather changes".

The relevance of injuries suffered by an offender as a result of commission of his offence was discussed by this Court in Noble & Verheyden (1994) 73 A.Crim.R. 379 (especially at 381) referred to in Bower-Miles (C.A. No. 278 of 1995, 14 September 1995, unreported). It appears to us that this is a case of the same sort as Noble & Verheyden, in this respect, that the shooting was a response to the offence, by a victim. The shooting and the applicant’s consequent injuries should be regarded as part punishment.

The material before the primary judge included a number of references which suggest that the applicant has been a person of good character, but it is plain that his behaviour before the incidents in question was not exemplary. One of the persons who provided a reference, Zlatko Voncina, described the applicant as being "a little unstable, as young boys are" in his younger years, but said that "in the past 18 months he has matured and become a respectable citizen". The record before the court below showed a persistent pattern of repeated traffic offences from 1988 to 1990, mainly speeding, and a few other offences, the most serious of which was possession of a dangerous drug in 1992, producing a fine of $400. The applicant has never been sentenced to prison before, nor has he been sentenced to probation. According to the information placed before the primary judge, he had a damaging relationship with an older woman in about 1992 when he "stopped working, started drinking, kept company with this woman and basically his life went off the rails". Counsel attempted to persuade the primary judge that this period of his life ended when he was shot.

Counsel in argument before us discussed the decision of this Court in Vogt (C.A. No. 67 of 1995, 28 April 1995, unreported) and that of the Court of Criminal Appeal in Woodgate (C.A. No. 225 of 1991, 13 November 1991, unreported). It was said on behalf of the applicant, and seems to us correct, that Woodgate, in which a term of 5 years imprisonment was imposed for dangerous driving, was a significantly worse case than the present. That is so because although, as here, there was an encounter with a police officer, in Woodgate the officer was seriously injured and a passenger in the applicant’s vehicle was rendered quadriplegic; the maximum penalty available was 14 years. The applicant argued that the reasons given in the Court of Criminal Appeal suggested approval of the 5 year sentence, but in our view no more happened than that the Court declined to interfere with the sentence. Vogt was a case where the dangerous driving was of comparable seriousness to the present, but other circumstances were considerably worse; the offender had no licence, had a substantial criminal record including periods of imprisonment, and was in a stolen vehicle; his dangerous driving began when he was interrupted in the course of the theft. A 5 year sentence was upheld.

There was some discussion of the principle that the maximum penalty is reserved for cases of the worst kind, in Marshall [1993] 2 Qd.R. 307. Here, in theory, although no doubt not in practice, the applicant could have been sentenced to more than 5 years by exercise of the Court’s power to make sentences cumulative. The judge has clearly fixed the 5 year penalty as appropriate for the whole course of dangerous driving and the assaults.

The applicant was 23 years of age at the relevant time and had never been sent to prison, nor had he any convictions involving dishonesty or personal violence. He had a substantial working record. All that being conceded, his behaviour on the day in question was appallingly bad and amply deserved a gaol term. The question which has concerned us is whether the public interest requires such a substantial head sentence as 5 years. That would plainly have been appropriate but for the mitigating factors we have mentioned - that the applicant is a young man, that this is his first prison sentence, and that he was shot twice by the police. Unlike some other dangerous driving cases we have had placed before us, the present is a case in which the only substantial injury was that suffered by the applicant.

The point of imposing a substantial gaol term, even in relation to the very first serious offence or batch of offences committed by a young man, is not only general deterrence, but deterrence of the particular offender. But in the present instance it appears to us that both purposes would be adequately met by a head sentence less than 5 years in length. Apart from his persistent speeding and other driving offences, the applicant’s behaviour before these offences was not such as to make one think that he would be likely to constitute a serious problem for law enforcement authorities. We have not overlooked that the primary judge recommended consideration for parole after 2 years, but of course the applicant, like many other offenders, may be imprisoned for a period substantially longer than the period of the judge’s recommendation.

The application is granted and the appeal allowed to the extent that the head sentence for each of the dangerous driving offences is reduced to 3 years and 6 months; we make no parole recommendation.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 7th day of November 1995

I have had the advantage of reading the joint reasons of Fitzgerald P. and Pincus J.A. While acknowledging the force of much of what their Honours have said, this is not a matter in which I am persuaded that this Court would be justified in interfering with the sentence imposed.

It may as a general proposition be assumed that where, as in this instance, the legislature has fixed a maximum period of imprisonment for a particular offence, it intends that the maximum should be reserved for the most serious examples of offences of that kind. It does not follow, however, that the maximum penalty should never be imposed if it remains possible to point to a more serious case in the past, or to imagine a worse instance in the future. As with all sentencing, the process can only proceed on the footing that there are broad bands or degrees of greater, lesser, or moderate seriousness associated with particular offences and offenders. The present instance, in my opinion, falls readily within the most serious category.

I need not repeat here the details of the applicant's behaviour throughout the whole of the three or so hours which ensued between the time of his initial and unprovoked assaults on Daw, which happened at about midday, and the final event.

The details are accurately set out in the reasons of Pincus J.A. Each of the incidents described involved a serious risk to life or limb of other persons, which was averted only by the skill or good fortune of the other drivers. It is, however, necessary to emphasise some of the worst features of the final incident in which the applicant ended up being shot.

After the applicant had evaded the police at the Beenleigh Rum Distillery, and had driven in reckless fashion at high speed along the Pacific Highway, he finally brought his car to a stop facing the pursuing police vehicle. The two constables got out of their vehicle and approached the applicant's car. Constable Edge drew his revolver and approached the driver's side of the car, shouting at the applicant to put his hands up. The applicant took his hands off the steering wheel. Looking into the car, Edge saw there was a small child in the back, so he put his revolver away. He opened the driver's side door and reached for the keys with his left hand.

As he was doing so, the applicant made a movement toward the handbrake or gear selector and applied the accelerator making the car move in reverse. Edge was trapped between the open door and the driving compartment, and was being carried along with the motion of the car. His companion Constable Craig was in the same predicament. He was caught behind the door on the passenger's side and was struggling to keep up with the way the car was going.

Edge said that the applicant's car was getting beyond running speed and he was yelling at the driver to stop, but that it had no effect. The applicant simply smiled and kept going. The door was hitting Edge's legs and shoulders, and he was struggling to keep his balance. He could see an Armco railing coming up, and realised the danger if the car swerved and took him into it. By that time it had travelled in this fashion for some 15 or 20 metres, and there was no indication it would stop. Craig called out to him, and Edge drew his revolver again and fired it twice at the applicant, hitting him in the forearm, stomach and left upper leg. The applicant then appeared to apply the handbrake.

Constable Craig gave a similar account of events. He ran to the front passenger door of the applicant's car shouting "get out". There was a woman passenger on that side, who would not move, so he opened the door and reached across to undo her seat belt. As he was leaning across her, the car reversed, as he said, straight backwards. He tried to get out from behind the door but could not do so because the car was accelerating so quickly. He thought he was going to be dragged under the car, and shouted to his fellow officer "Edgie I'm going under". Edge heard him, and it was then he drew and fired his revolver.

Apart from the obvious danger of serious injury to the two police officers, there were other persons in the car. There was the woman in the front passenger seat and a man in the back. There was also the child, whose age was estimated by Craig to be 2½ to 3 years. It was because of the presence of the child that Constable Edge had put away his revolver after he had first drawn it. Concern for the child's welfare was natural. It is noteworthy that one or both of the applicant's parents in the character references they gave for their son found it difficult to understand why he had been shot in front of a child "who loved him". Only the applicant, in his driving before and until he was shot, seems to have been unconcerned about the possible effect on the child or the other passengers in the car, to say nothing of the earlier danger to other road users, or the risk of serious injury to the two police officers.

It is perhaps possible to conceive of worse instances of dangerous driving than this; but what happened here was, I consider, certainly in the most serious category. The applicant was, it is true, severely wounded by the shots, although he seems to have recovered from the injury without any serious permanent disability. What, if any, lasting effect the experience has had on the child, the passengers, or the police, one of whom was forced to fire the shots, does not emerge from the record. The wounds sustained by the applicant are a consequence of his determination not to stop when called on to do so. If the shots had not been fired, there is every reason to suppose that the force of the moving vehicle on the unprotected bodes and limbs of the police officers would have been much more serious. The fact that the applicant was injured is a matter to be considered in exercising the sentencing discretion, but he may have been fortunate that he was stopped when and in the way he was, with so little permanent damage to himself and others.

It may be accepted that he has shown some remorse for what he has done. It did not, however, extend to entering a plea of guilty at the earliest stage. There was a committal hearing at which the police officers were cross-examined. They were cross-examined again at the sentence hearing, at which the applicant in his own evidence showed an inclination to deny that he had deliberately reversed his car with the policemen trapped behind the open doors. The learned judge did not believe him. No challenge has been made to his Honour's credibility finding in that regard. The case cannot therefore be characterised as involving no more than a degree of carelessness or even road traffic recklessness of the kind commonly encountered in dangerous driving offences. Nor can it, in my respectful opinion, be viewed as proceeding from an excess of youthful exuberance. In what he did, the applicant took the risk of serious injury to others. He did so consciously, and he continued to do so after being called on to stop when the dangers were plainly evident to him.

In these circumstances, neither his age (he was 23 years old at the time) nor the injury he sustained is, in my respectful opinion, sufficient to shield him from being sentenced at the upper limit of the range.

I would refuse the application for leave to appeal.