R v Ellis

[1992] QCA 38

COURT OF APPEAL [1992] QCA 038

FITZGERALD P
DAVIES JA

McPHERSON JA

CA NO 1 OF 1992
THE QUEEN
v.
ROBERT ERIC ELLIS
BRISBANE

... DATE 30/1/92

JUDGMENT
THE PRESIDENT: The applicant, a 19-year-old youth, seeks leave
to appeal against his sentence on his conviction on his own
confession for dangerous driving causing grievous bodily harm.

A Judge of District Courts ordered that he be imprisoned for a period of three years with a recommendation that he be considered for parole after serving a period of one year and further ordered that he be disqualified from holding or obtaining a driving licence for a period of three years from the date of sentence. The ground of appeal is that the sentence was manifestly excessive.

No doubt the applicant engaged in a course of stupid conduct. After visiting a cinema with a number of young friends he set out to drive them home and in doing so drove dangerously for a significant distance, despite their protests, until ultimately the vehicle crashed and passengers were injured, some seriously.

His conduct involved speeding, skipping around corners, making the car bounce and jerk, driving away as an unseatbelted passenger went to open the door and driving at speed down a hill resulting in the car hitting a tree as it failed to take a corner.

There was no alcohol involved. The applicant was 17 at the time of the offence and a person with a disability due to brain damage associated with the circumstances of his birth. He attended a special school until the age of 16 and had some unskilled employment subsequently. He and his passengers were all associated with a church youth squad. He had no previous convictions, even for traffic offences. It seems plain that his irresponsible behaviour involved showing off to his friends with tragic consequences.

He demonstrated remorse. He was not charged until some 13 months after the incident, following which he pleaded guilty at an early stage of the proceedings. Although the circumstances of the offence are of substantial gravity the sentence seems to me disproportionate to other sentences in comparable circumstances to which our attention was drawn and, in all the circumstances, manifestly excessive.

I am not persuaded that a custodial period was necessarily inappropriate as part of the applicant's penalty. The applicant's disability is not so extensive as to render general deterrence an irrelevant factor. However, the applicant has been in prison since 12 December 1991 and there is no social purpose to be gained in keeping him in prison any longer. In my opinion he should be released to enable his return to his stable family environment especially because of the delay in commencing the proceedings against him.

In these very special circumstances the custodial sentences should be set aside and a substantial requirement of community service imposed. The period of disqualification should also be increased to five years, both to enable him a further period to mature before he is permitted to drive again and as an additional personal deterrence from similar conduct in the future.

I would allow the application for leave to appeal, allow the appeal, set aside the sentence of imprisonment and, upon the applicant's consent by his counsel and by his counsel's expression of the applicant's willingness to comply with a period of community service, I would substitute an order requiring 120 hours of community service in accordance with the requirement of the Corrective Services Act. I would direct the applicant to report within 24 hours of his release from prison to the community correctional office at Southport and I would order that the applicant be disqualified from holding or obtaining a licence for a period of five years from 12 December 1991.

McPHERSON JA: Yes, I agree. There are circumstances special to the applicant, including his youth at the time of the offence and of sentence, his intellectual impairment and the delay in prosecution that justify treating him in a category different from some others committing offences of this kind. I agree with the order proposed by the President.

DAVIES JA: I agree with the President's reasons and the order he proposes.

THE PRESIDENT: The order of the Court will be as I have indicated.

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