R v James

[2001] QCA 239

[2001] QCA 239

COURT OF APPEAL

DAVIES JA
CULLINANE J
JONES J

CA No 56 of 2001

THE QUEEN

v.

DARREN LINDSEY JAMES  Appellant

CAIRNS

..DATE 20/06/2001

JUDGMENT

DAVIES JA:   The applicant seeks leave to appeal against a sentence imposed on him after a trial in the District Court on 9 February this year for dangerous driving causing death whilst adversely affected by an intoxicating substance.  The sentence was one of four years’ imprisonment to be served cumulatively upon a sentence of six years’ imprisonment.  He was disqualified absolutely from holding or obtaining a driver’s licence.

The sole ground of appeal, as the matter was eventually argued in this Court, very competently on both sides, was that the learned sentencing Judge failed to have sufficient regard to the totality principle in imposing the sentence which he did.

The offence occurred on 9 November 1999.  At that date the appellant had no previous criminal convictions and no prior traffic convictions, notwithstanding that at 31 years of age at the time of the offence he had been driving since he was 17.  He was, however, at the time on bail for offences of being in a dwelling house with intent and indecent assault against his wife, both of which were committed on 2 November 1999.

The six year term of imprisonment which the applicant was serving at the time he was sentenced for the offence the subject of this application was for the two offences to which I have just referred, committed on 2 November 1999, and six further offences committed on 30 November 1999, also involving his wife, the most serious of them being rape.

Other serious offences committed on that later date were deprivation of liberty, administering a drug and breaking and entering with intent.

The present offence, like those for which he was sentenced on 24 November 2000, that is the offences to which I have just referred, arose in part out of the breakdown of his marriage. He had, however, been depressed for some considerable time prior to the breakdown of the marriage and this in turn appears to have contributed to that marriage breakdown.  Indeed, matters had deteriorated so badly prior to the commission of any of these offences that the applicant’s wife had obtained a domestic violence order against him.

The applicant does not remember the accident in which he was driving his four-wheel drive vehicle at night when he collided head-on with a vehicle travelling in the opposite direction.  He had not slept for a considerable time.  He was in fact unable to sleep, in part, it seems, because of his state of depression, and he had taken a drug Temazepam in greater than the prescribed dosage.  The drug had a sedative and hypnotic effect.   His lack of sleep and the drug, it seems, caused him to fall asleep while driving.  He thought he had taken the drug within the last 24 hours prior to the accident, but an analysis of his blood sample indicated that he must have taken it within a few hours of the accident.  It was, I think, correct of the learned sentencing Judge to infer that the applicant ought to have appreciated that he in no state to drive.

At the time of the accident he was not driving at an excessive speed, it seems, but had plainly veered on to the incorrect side of the road either twice or for some considerable distance.

Taken in isolation, a sentence of four years’ imprisonment would have been appropriate for the subject offence.  On the other hand, I do not think that on these facts a substantially longer term than this would have been justified.  Although the offence of dangerous driving causing death whilst adversely affected by an intoxicating drug is always a serious one, in the scale of offences of this kind it is not as serious in my opinion, as those resulting from self-induced substantial intoxication from alcohol or prohibited drugs.

His substantial negligence was in electing to drive when he ought to have appreciated that his lack of sleep and the ingestion of the drug which he took rendered him unfit to do so.

The question in this appeal is whether, had the sentence imposed on 24 November 2000 and this sentence been imposed at the same time, a total sentence of 10 years’ imprisonment would or could reasonable have been imposed.

There is no doubt that the offences in each case are of quite different kinds, as Miss Bain pointed out, and that it would have been appropriate to make the sentence imposed here cumulative upon the other sentences. While I do not think that a total sentence of 10 years for all of these offences is justified, a sentence of eight years’ imprisonment would, in my opinion, have been an appropriate sentence.  That is not to say, of course, that a sentence of two years’ imprisonment is the appropriate sentence for this offence. As I have already said, a four year sentence is in my view appropriate.  But it is necessary, in my opinion now, to reduce that sentence to one of two years solely in order to ensure that the totality of sentences for all of these offences does not exceed eight years.

Accordingly, I would grant the application, allow the appeal, set aside the sentence of four years’ imprisonment, and substitute a sentence of two years’ imprisonment to be served cumulatively upon the sentence of six years’ imprisonment.  The order for absolute disqualification from holding or obtaining a driver’s licence should remain.

CULLINANE J:  I agree.

JONES J:  I agree.

DAVIES JA:  The orders are as I have indicated.