R v Gardiner

[1996] QCA 8

IN THE COURT OF APPEAL	[1996] QCA 008
SUPREME COURT OF QUEENSLAND

C.A. No. 452 of 1995

Brisbane

[R. v. Gardiner]

THE QUEEN

v.

WAYNE ROBERT GARDINER

Applicant

Fitzgerald P.
Davies J.A.

Mackenzie J.

Judgment delivered 13/02/1996

Judgment of the Court

APPLICATION REFUSED.

CATCHWORDS:	CRIMINAL LAW - dangerous driving causing death - leave to appeal against sentence - excessive speed - recklessness and disregard for safety of others - age and criminal record - consistency of sentencing.
Counsel:	Mr. S. Hamlyn-Harris for the applicant Mr. M. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the applicant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	31 January 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 13th day of February 1996

The applicant was convicted after a trial in the District Court of dangerous driving causing death. He was sentenced on 20 October last year to a term of three years imprisonment. He seeks leave to appeal against that sentence.

The applicant is 31 years of age having been born on 10 December 1964. Prior to his conviction for this offence he had a number of convictions for offences of dishonesty between 1982 and 1991. He had been given probation and community service and in 1991 was twice sentenced to imprisonment, once for six months and once for 18 months. He has numerous traffic convictions including three for driving a defective vehicle, four for exceeding the speed limit between 15 and 29 kilometres per hour and one for careless driving.

At about 9.15 a.m. on 26 January 1994 the applicant was driving a Falcon station wagon along Roghan Road, Bald Hills. The road curved left followed by a fairly sharp right hand bend. Before and whilst negotiating the left hand curve he twice forced vehicles partially off the road by driving onto his incorrect side. While attempting to negotiate the right-hand bend he lost control of his vehicle which skidded onto a grass verge on his left and struck a youth mowing a lawn killing him. The car ended up on its roof in the gutter.

The most likely explanation for his travelling on his incorrect side was excessive speed. The evidence of eye witnesses and the photographs of the roadway strongly support that explanation. His final loss of control was also probably caused by his continuing to drive at an excessive speed notwithstanding the prior incidents referred to above. Having regard to those facts and his previous history, the learned sentencing Judge rightly said that the applicant's driving showed sheer recklessness and a callous disregard for the safety of other people. Nor, having regard to the applicant's record of interview in which he described independent witnesses as liars and the subsequent conduct of his defence, is there any reason to doubt his Honour's conclusion that the applicant demonstrated no sign of remorse for his conduct.

The applicant is beyond the age where special consideration should be given to him because of his youth and his previous criminal record, including his traffic record, together with his lack of remorse give little cause for optimism about his prospects of rehabilitation.

Both parties to this appeal relied upon the decision of this Court in R. v. Conquest, C.A. No. 395 of 1995. At the time of commission of his offences, which involved the death of one person and grievous bodily harm to another, Conquest was a 17 year old unlicensed driver on a good behaviour bond. And although he had not previously been sent to gaol he had committed a number of offences involving dishonesty. He had his sentence for dangerous driving causing death increased on an Attorney's appeal from two years to three years. There are important differences between that case and this. There the offender was much younger. Moreover the fact that the appeal in that case was by the Attorney and the way in which the case had been argued below caused this Court to substitute what it described as a conservative sentence. On the other hand the consequences of Conquest's conduct were more serious and, arguably, because he deliberately drove onto his incorrect side of the road, his conduct was worse. Bearing in mind those differences, that decision in our view, is consistent with the sentence imposed here which is also consistent with the sentencing pattern indicated by other cases.

We would therefore refuse the application.