R v Lagos

[2003] QCA 121

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lagos [2003] QCA 121

PARTIES:

R
v
LAGOS, Mark Antonio

(applicant/appellant)

FILE NO/S:

CA No 17 of 2003
DC No 3176 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 March 2003

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2003

JUDGES:

McMurdo P, McPherson and Jerrard JJA
Separate reasons for judgment of each member of the Court,

each concurring as to the orders made

ORDERS:

Application for leave to appeal against sentence granted1.   

Appeal allowed2.   

Whole of the remaining period of the sentence suspended forthwith3.   

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND

PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – taxi driver injured passenger – whether sentence was outside the range commonly applied when provocation and abuse is considered

R v Foster [2002] QCA 482; CA No 246 of 2002, 6 November 2002, referred to
R v Wales [2002] QCA 463; CA 254 of 2002, 31 October 2002 distinguished

COUNSEL:

E East for the applicant

M J Copley for the respondent

SOLICITORS

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: I agree with the reasons for judgment of McPherson JA.

1. Although the learned primary judge in his sentencing remarks said he was satisfied that the applicant showed a degree of recklessness or disregard for the safety of his passenger, his Honour tempered that finding by stating that the culpability was the applicant's omission to satisfy himself that one of the passengers was not alighting from the vehicle when he reversed suddenly.  His Honour did not find the applicant deliberately reversed the vehicle knowing the complainant was then attempting to alight from the cab.

1. Here the conduct of other passengers in the vehicle must have been offensive and concerning to the applicant.  The applicant cooperated in the administration of justice and pleaded guilty at an early stage.  He had no prior convictions for like conduct.  The grievous bodily harm suffered by the complainant was towards the less serious end of the scale.  Despite the worrying aspects of the offence, these factors and the judge's findings persuade me that a sentence of two years imprisonment requiring the applicant to serve four months actual custody before suspension is manifestly excessive.

1. I agree with the orders proposed by McPherson JA.

1. McPHERSON JA:  The applicant for leave to appeal against sentence was convicted in the District Court on a plea of guilty to a count of dangerous operation of a vehicle causing grievous bodily harm. In January this year, he was sentenced to imprisonment for 2 years suspended for an operational period of two years after serving 4 months. He was also disqualified from holding or obtaining a driver’s licence for six months, which is a statutory consequence of conviction in such circumstances.

1. At about 3.00 am on 23 January 2002 the applicant picked up four passengers in Fortitude Valley wishing to travel to Windsor in his cab. They were three men and a woman, who is the complainant in the proceedings. A man named Justin Senecal sat in the front passenger seat, with the other three in the back. He and perhaps one or more of the others had been drinking a great deal that night and were the worse for alcohol. On route to Windsor Senecal shouted at the occupant of another taxi against whom his group bore some animus. He then began playing with the left hand rear vision mirror, which the appellant asked him not to do, complaining that it meant he could not see properly. Then or later, Senecal became abusive and referred to the applicant as a “wog”.

1. One of the men in the back, Corey Walas, asked the applicant to stop in Palmer Street near where he lived. The applicant performed a U-turn into an area of light on the other side of Lutwyche Road. He did so for reasons of safety having regard to the lateness of the hour. Walas alighted from the vehicle, as also did Senecal. The applicant asked for payment of the $10 cab fare. It was then, if not before, that Senecal insulted him, adding with respect to the fare that he would do whatever he liked. He also delivered a kick to the outside front passenger door. He shouted out that it was a “free ride” and urged the others to get out saying “let’s go”. 

1. The evidence relied on at the sentencing hearing is not entirely clear about the precise sequence of events that followed, but there appear still to have been two passengers in the rear of the cab at this stage. One of them had already alighted when the applicant began to reverse his cab.  The other, who was the complainant, was in the process of alighting or had alighted. She seems to have been caught behind the open rear door, and, as the vehicle reversed, was dragged along by it and eventually lost her balance. She fell to the ground and may then have continued to be dragged along the roadway.  Prosecuting counsel said that the best he could say was that she was dragged “a short distance, not any significant distance”. She sustained a 12 cm laceration on her left leg extending down to the knee, a 5 mm laceration on the skin, and multiple abrasions on the right leg, right buttock, right foot and left elbow.  Her left leg was in a splint for two weeks and for a time lost some of its function. Full recovery would take some months, but by the time of the hearing she was said to have recovered. Had she not been treated, the disability might have been permanent. In the result, she was left with scarring, which was said to justify the grievous bodily harm charge. She had done nothing to provoke or abuse the applicant.

1. The applicant was a 43 year old man who migrated to Australia from Chile in 1988. He had attended a tertiary institution in Santiago, and took courses here to learn or improve his English; but language difficulties have confined his employment since his arrival to driving as a courier or cab driver or, for some time, as a fork lift driver. He has a minor criminal record consisting of a shoplifting charge in 1991, for which he was discharged without recording a conviction; in 1996, he was convicted of a Jobstart fraud involving some $2,350, in respect of which he was given a bond and required to perform community service, as well as making restitution, which presumably has been done.

1. His traffic record displayed numerous breaches of the Traffic Act or Regulations, almost all of which involved exceeding the speed limit, as a result of which he lost his licence on some three occasions through an accumulation of points. His Honour viewed these speeding offences as an “occupational hazard” for persons who earn their living as taxi drivers. As a result of the conviction for the present offence, the applicant has lost his taxi licence and will have to re-apply for it, in which he may not be successful. He is now living on social security payments. He has three children, twin daughters who have qualified for degrees at university level or were about to do so at the time of sentencing, and a son who was beginning his studies at QUT.

1. The applicant co-operated with the police and he pleaded guilty. His Honour evinced some sympathy for him, but considered that a prison sentence was called for. There was some discussion at sentencing about whether the applicant’s conduct could be characterised as reckless or a consequence of mere inattention. Having pleaded guilty, it was strictly speaking not open to the applicant to claim that the bodily harm inflicted on the complainant was the result of an “accident” in terms of s 23(1)(b) of the Code. It would almost certainly not have been according to the test in R v Taiters. Whether or not he had been reckless, was, however, relevant to punishment and to the question whether the offence was such as to call for imprisonment.

1. On this issue the learned judge’s sentencing remarks are somewhat ambiguous. He said that reversing the taxi when there were still two passengers in the rear seat was “culpable” in that “you did not satisfy yourself that one of the two passengers was not alighting from the vehicle” when reversing. His Honour inferred that the applicant had considered it important to keep at least one passenger in the cab to secure payment of the fare. On the other hand, while saying it was not a case of momentary inattention, his Honour also characterised it as one of recklessness or disregard for the safety of the passenger still in the taxi.

1. Recklessness has been defined as conscious disregard for known or obvious risks. There was an obvious risk that a passenger might suffer some injury if the vehicle was reversed while he or she was alighting. What is not so clear is whether the applicant was conscious that one of the remaining passengers was attempting to do so when he reversed.  From something he said in the course of the police interview, it seems that the applicant thought that the complainant herself was already out of the vehicle and “when I saw the second one stepping out I started to move the car to reverse it”. That certainly goes strongly against him, but it is not clear that he realised that the car door would entrap the complainant and so drag her along causing the injuries of the severity of those inflicted. He must, however, have realised the possibility that some injury might be caused to someone if he moved the vehicle while he or she was getting out.

1. The case is, I consider, one in which the applicant ought to have foreseen that possibility, but, on the material at the sentence hearing, that he did not appreciate the nature or extent of the injury that might ensue. It seems unlikely that, if he had done so, he would have acted as he did. As he himself said, it was only a $10 fare. He may, however, have been thoroughly provoked by then. Counsel were unable to refer us to previous decisions of this Court in which comparable circumstances have been disclosed. No real assistance is to be derived from R v Wales (CA 254 of 2002), in which an appeal against a sentence of 16 months suspended after four months was dismissed as being not excessive. In that case, however, the applicant drove a loaded six ton truck through a red light at an intersection colliding with another vehicle and causing life-threatening injuries having permanent and disabling consequences for his victim. He had decided to run the light when it was amber knowing the stopping limits of his loaded vehicle. The Court there was not asked to pass upon adequacy of the sentence; but the seriousness of the conduct, both in terms of the outcome and the risk taken, was obviously far greater than in the present case.

1. R v Foster [2002] QCA 482 was a case very similar to this, in which a taxi driver drove off in a state of some anger before the rear passenger door of the cab was closed, with the result that a passenger was thrown on to the road and suffered head injuries causing permanent loss of his sense of smell and taste. The sentence imposed in the District Court was imprisonment for 9 months, which was wholly suspended. The appeal in that case was confined to conviction, and the Attorney‑General did not seek to challenge the sentence imposed. Other cases discussed on appeal involved deliberate use of a vehicle as a weapon against a person, which is a much more serious form of this offence. It is noteworthy that the primary sentences in some of these cases were at the same level as or even more lenient than that in this. See R v Obern [2002] QCA 444 and R v Theuerkauf (CA 413 of 2002). That is not to say that they are to be recommended, but it is a reason for supposing that the sentence imposed here may have been outside the range that has commonly been applied. Taken with the provocation and abuse to which the applicant was subjected, it might also explain why prosecuting counsel at sentencing hearing submitted that this was a matter which the judge might consider would not warrant a term of actual imprisonment.

1. All matters considered, I have come to the conclusion that the applicant’s conduct was not such as to justify a head sentence of the duration imposed or of the unsuspended period which he was left to serve. He spent some 11 days in custody before being bailed, which will, it may be supposed, serve as some form of deterrent against similar conduct in the future. As matters stand, he has been disqualified for some time from earning a living in the only way in which he has been able to do so in the past, and he may not be successful in regaining his taxi driver’s licence.

1. I would grant the application and allow the appeal by ordering that the whole of the remaining period of the sentence be suspended forthwith.

1. JERRARD JA: I have read the reasons and orders proposed by McPherson JA and respectfully agree with those.