R v Gartside

[1994] QCA 560

COURT OF APPEAL

[1994] QCA 560

FITZGERALD P
PINCUS JA

DOWSETT J

CA No 374 of 1994
THE QUEEN
v

RAYMOND JOHN GARTSIDE Appellant

BRISBANE
..DATE 15/11/94
THE PRESIDENT: This is an application for leave to appeal
against a sentence imposed in the District Court at Brisbane.

On 23 August 1994, the applicant was found guilty of a charge of dangerous driving causing death and was sentenced to imprisonment for 18 months and was disqualified from holding or obtaining a driver's licence for three years.

He is now 23 years old, was 21 at the time of the offence and has no previous criminal history. He seeks to appeal against the sentence on the ground that it is manifestly excessive.

At about 7.30 p.m. on 3 April 1992 the applicant who had been licensed for only about six months was driving his Holden Torana sedan in a northerly direction along Kingston Road, Kingston with his brother and two friends in the car as passengers. He was driving in the third or fast lane on the northbound side of the road which was divided at that point by a median strip.

The speed limit along that stretch of Kingston Road is
70 kilometres per hour and the applicant's vehicle after
passing a set of traffic lights was travelling at about
80 kilometres per hour. There were no other cars in front of
the applicant's vehicle and there were none in either of the
lanes beside it.

As he drove along Kingston Road, the applicant caused the vehicle to swerve or zig-zag four or five times across the lanes as was witnessed by other drivers for no reason other than the fun of it. He lost control of the vehicle which mounted the median strip before becoming air-borne and careering off into the southbound lanes on the opposite side of the road. The vehicle collided first with a Toyota Corolla before it moved off and crashed into a Suzuki travelling a little distance behind the Corolla. The female driver of the Corolla was injured and the driver of the Suzuki was killed.

The driving conditions were good, the road was dry and there were no mechanical defects in the vehicle which the applicant was driving. He had taken no alcohol and the sole cause of the accident was his skylarking.

In this Court, it was submitted on the behalf of the applicant that the sentence is manifestly excessive having regard to his age, his lack of any previous criminal history, or for that matter, any prior traffic offences, his good work record and good character, the fact that no alcohol was involved, the history of the matter through the Court, his inexperience as a driver and the principles encapsulated in paragraph A.1 of subsection 9.2 of the Penalties and Sentences Act which relates to the sentencing of young offenders.

The appropriate sentence it was submitted should have been
12 months imprisonment wholly suspended, or alternatively,
that whether or not the head sentence was reduced, there
should have been a recommendation that the applicant be
considered for early release on parole.
The respondent submitted that this was a serious example of
deliberate dangerous driving with tragic consequences and that
the applicant's previous good background and record and his
youth must be balanced against the culpability of the offence.
An explanation which he gave to the police was described by
the sentencing Judge as a total fabrication who also found a
total lack of remorse.

In the course of his sentencing remarks, His Honour said, after referring to the applicant's age, lack of criminal history and good work history, "It is true that this case does not fall into the worst type of cases namely those where the driver is grossly affected by alcohol and travelling at a very high rate of speed. Nevertheless, there was a deliberate course of conduct with great potential for danger to other users of a busy road. A family might easily have been wiped out as a result of your dangerous driving, a child might easily have been crippled for life as a result of your stupidity. The need for general deterrence is of considerable

importance in this type of case. Young men must be made to
realise that reckless driving cannot be tolerated and severe
punishment awaits those who engage in reckless conduct on the
road."

I agree with those remarks and would simply emphasise that such conduct is deliberate. In my opinion, the sentence is high, it is at the very top of the range that might appropriately have been given in all the circumstances of this matter.

Nonetheless, having regard to the nature of the applicant's conduct, the sentencing Judge's remarks including his reference to the fabricated story given by the applicant to the police and his total lack of remorse, I am not persuaded that this sentence is completely beyond the range of a proper sentencing discretion. I would accordingly refuse the application.

PINCUS JA: In my view, there is an important distinction between what might be described as accidental bad driving, of which the case of Brown (CA No 167 of 1993, 4 August 1993) may be an example, and deliberately dangerous driving of which the present is an example.

I do not propose to set out the facts on the matter which have been mentioned by the Presiding Judge. I agree with His Honour that the sentence is high and I also agree that it is not beyond the range of a proper exercise of discretion. I too would dismiss the application.

DOWSETT J: I also agree.

THE PRESIDENT: The application is refused.

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