R v Harvey

[1992] QCA 105

IN THE COURT OF APPEAL  [1992] QCA 105

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1991

T  H  E    Q  U  E  E  N

v.

LESTER HARVEY
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

JUDGMENT OF THE COURT

Delivered the 15th day of May, 1992

On 8 January 1991, the Respondent was driving along the Cambooya-Wyreema Road, when his motor car moved from the bitumen surface onto the gravel shoulder, he lost control, skidded and the vehicle returned to the bitumen and across to the wrong side of the road into the path of another vehicle travelling in the opposite direction.  The driver of the other vehicle was killed.  At the time, the respondent's blood alcohol concentration was .163.
     The respondent pleaded guilty to a charge of dangerous driving causing death with a circumstance of aggravation, namely, that he had a blood alcohol concentration equal to or exceeding .15.  On 22 November, 1991, he was sentenced in the District Court at Toowoomba to three years imprisonment with a recommendation that he be considered for parole after a period of six months and disqualified from driving for four years.
     The respondent is aged 50 years and has no other convictions.  It was accepted that he is an honest, hardworking family man who is genuinely remorseful in respect of his conduct and its consequences.  Further, he was himself seriously injured in the collision.  The Attorney-General has appealed against the sentence imposed upon the respondent on the grounds of its inadequacy. 
     A number of comparable cases were referred to the court including R v. O.G. Heathwood (CA No.56 of 1987); R. v. G.J. Jarema (CA No.87 of 1989); R. v. K.A. Martin (CA No.231 of 1990); and R. v. Deroy (CA No.105 for 1991).  It was not in dispute that the decisions overall show a range of about 3 to 5 years' imprisonment with periods of disqualification in cases that are more or less comparable with this one. The period of imprisonment imposed upon the respondent is at the lower end of that range, and is appropriate in the circumstances.
     However, it was submitted for the Attorney-General that the recommendation for parole after only 6 months placed insufficient weight upon the serious features of the offence and gave too much emphasis to subjective factors favourable to the respondent.
     However, it was not submitted that a recommendation for early parole was not appropriate, and in two of the decisions to which reference has been made there was a recommendation for parole after  a period of 12 months.  Further, in Jarema, in which the offender's blood alcohol concentration was .14 and so below the relevant circumstance of aggravation, the sentence was imprisonment for a period of 18 months with a recommendation for release on parole at the expiration of 6 months. 
     While the respondent in the present matter is extremely fortunate, the Court is not disposed to interfere with the sentencing only to increase by a matter of few months the period of imprisonment which must be served before parole is considered, particularly in view of the circumstance that the 6 months will have expired in a matter of days.
     Accordingly, the order of the Court is that the appeal be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1991

T  H  E    Q  U  E  E  N

v.

LESTER HARVEY
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

The President
               Mr Justice McPherson
               Mr Justice MacKenzie

Judgment of the Court delivered on
               the 15th day of May, 1992

APPEAL DISMISSED

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 346 of 1991

Before the Court of Appeal

The President

Mr Justice McPherson

Mr Justice MacKenzie

T  H  E    Q  U  E  E  N

v.

LESTER HARVEY
  (Respondent)

ATTORNEY-GENERAL OF QUEENSLAND
  (Appellant)

JUDGMENT OF THE COURT

Delivered the 15th day of May, 1992

MINUTE OF ORDER:   Appeal dismissed

CATCHWORDS:Criminal law - Sentence - Attorney-General appeals against sentence of 3 years with recommendation after 6 months for dangerous driving causing death with blood alcohol level of 1.6 - whether insufficient weight to serous features of offence too much to subjective factors - sentence not disturbed

Counsel:       Mr M. Byrne for the appellant

Mr D. Barrakin for the respondent

Solicitors:     Director of the Prosecutions for the appellant

Legal Aid Office (Queensland) for the respondent

Hearing Date: 13th May, 1992