R v McAnelly and Attorney-General of Queensland

[1996] QCA 126

IN THE COURT OF APPEAL	[1996] QCA 126
SUPREME COURT OF QUEENSLAND
C.A. 375 of 1995.
Brisbane [A-G v. McAnelly]

T H E Q U E E N

v.

PATRICK JOSEPH McANELLY

Respondent

and

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

C.A. 408 of 1995.

T H E Q U E E N

v.

PATRICK JOSEPH McANELLY

(Applicant)

_____________________________________________________________________

Fitzgerald P.
Pincus J.A.

Dowsett J.

_____________________________________________________________________

Judgment delivered 10/05/1996

Joint Reasons for Judgment of Fitzgerald P. and Pincus J.A., separate concurring
Reasons of Dowsett J.

_____________________________________________________________________

ORDERS OF THE COURT:

1.         ATTORNEY-GENERAL’S APPLICATION GRANTED AND APPEAL ALLOWED, BUT ONLY TO THE EXTENT OF SUBSTITUTING AN ORDER DISQUALIFYING THE RESPONDENT ABSOLUTELY FROM HOLDING OR OBTAINING A DRIVER’S LICENCE.

2.         THE RESPONDENT’S APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED.

_____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - SENTENCE - Attorney-General appeal against sentence - dangerous driving causing death - whether evidence of remorse - guilty plea - after offence, pattern of repeated offending continued - history of criminal offences including traffic offences and multiple disqualifications from holding a driver’s licence - disqualified from driving 3 days before offence.

Counsel:	Mr D Bullock for the appellant/respondent. Mr G Long for the respondent/applicant.
Solicitors:	Queensland Director of Public Prosecutions for the appellant/ respondent. Legal Aid Office for the respondent/applicant.
Hearing date:	2 November 1995.

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND PINCUS J.A.

Judgment delivered 10/05/1996

This is an appeal by the Attorney-General against what is said to be the inadequacy of the sentence imposed on P J McAnelly ("the respondent") in the District Court on 15 August 1995. There is an application to the contrary effect by Mr McAnelly. The respondent was charged with and pleaded guilty to an offence of dangerous driving causing death committed on 24 September 1993 and, being convicted, was sentenced to 4 years imprisonment, with a recommendation for release on parole after 18 months. In addition, an order was made that he be disqualified from holding or obtaining a driver’s licence for five years. There is in the record a comprehensive statement of the effect of the death of the person killed, Mrs Margaret Hall, on her husband Mr Stanley Hall; the statement makes amply clear the extent to which Mr Hall has suffered as a result of the respondent’s conduct.

The respondent collided with another vehicle at about 3.25 pm on 24 September 1993, causing the death of the driver and sole occupant of the other vehicle, Mrs Hall. The impact occurred on a relatively straight, level stretch of road; the deceased was travelling in a northerly direction and the respondent in a southerly direction. Prior to the accident occurring a Mr Caldwell was travelling between 150 metres and 200 metres behind the respondent at a stretch of road where there were two southbound lanes. Mr Caldwell saw the respondent’s vehicle encroach upon the adjoining lane on at least six occasions over a distance of two kilometres. After the road narrowed to a single lane each way, Mr Caldwell saw the respondent’s vehicle move entirely onto the incorrect side of the road into the deceased’s line of traffic. Just before the collision, the respondent’s vehicle moved back towards the correct side, but at the time of impact, three quarters of the width of the vehicle remained on the incorrect side. The death of Mrs Hall, as a result of the collision, occurred five weeks later; the respondent was uninjured.

The initial explanation given to the police by the respondent was that he "blacked out", but by the time of the sentence hearing that explanation had become rather more vague: "He simply lost concentration, akin to falling asleep at the wheel or of a blackout". The observations of the following driver show, however, that the collision was not due to any momentary fault, but was a product of a substantial course of dangerous driving; one would be inclined to suspect that the cause was ingestion of some substance which made the respondent incapable of driving properly. But it is simply not known what was the real cause of this erratic driving; the explanation advanced at the sentence hearing made little sense.

After being interviewed by Snr Const. Eggins, in a surprisingly desultory way,
shortly after the collision, the respondent arranged to attend at the police station on the
following day. He did not do so, explaining that "something came up, I couldn’t make it".
He also made a misleading statement which could hae led Snr Const. Eggins to

believe he had a driver’s licence. It appears that a subsequent attempt to obtain a

comprehensive statement also failed.

At the time of the offence in question the respondent was on bail in respect of other offences including driving while disqualified; he had been disqualified for driving with a blood alcohol content of .110 in June 1993, for a period of 18 months, the third occasion on which he had been disqualified for substantial periods, in relation to excessive blood alcohol.

The respondent’s criminal history, apart from driving under the influence of liquor, includes principally "street offences", presumably related to drunkenness, up to 1993. But in that year there was a significant escalation in the nature of the respondent’s criminal behaviour; prior to committing the subject offence, he committed a number of offences of dishonesty. There were in June four stealing offences, two offences of unlawful use of a motor vehicle and two of receiving, and in July an offence of breaking and entering with intent and of stealing, and an offence of entering with intent. There were also two drug offences in June, for which the respondent was sentenced to two months imprisonment. On 25 June 1993 the respondent was sent to prison for one month for driving while disqualified; that offence was committed six days after he had been disqualified for 18 months. The punishment for the offence of driving while disqualified was not imposed until 27 January 1995 and that was so, it appears, because when first apprehended on the relevant charges the respondent did not appear and a warrant was issued for his arrest.

In 1994, after the subject offence was committed, the pattern of repeated offending continued. From January to April there were offences of breaking and entering, of stealing, of misappropriation of property, of false pretences and of uttering - 15 offences of dishonesty in all. Then, in April, there were more drug offences, for which the respondent was ultimately sentenced to two months imprisonment.

It should also be noted that on each of two occasions in 1994, 10 January and 27 April, the respondent failed to appear, on occasions when he was due to appear on numerous charges, and a warrant was issued for his arrest.

On 25 November 1994 the respondent ultimately came before the District Court in respect of numerous offences committed on various dates between June 1993 and April 1994 and he was sentenced to 18 months imprisonment with a recommendation for parole after having served six months.

Although the primary judge in this case imposed sentence on the basis that remorse had been shown, it is difficult to see any remorse in the offender’s response to the death he caused. The impression created by the respondent’s criminal record is that both before and after the subject offence he was behaving in a lawless fashion. It is striking that, not long after he committed the subject offence, he failed to appear at the Magistrates Court in respect of a prior offence and he also failed to appear in January 1994 and in July 1994. So far from the respondent’s behaviour evincing remorse for the subject offence, the pattern of his behaviour was as we have described - flouting the law and failing to appear when charged.

It seems clear, with respect, that the judge was in error in acting on the basis that the circumstances showed remorse; but it has to be said that the nature of the respondent’s conduct appears much more clearly if one has (as we have had) access to a proper chronology of the dates of the consecutive offences committed, rather than only to the criminal history which was before the primary judge.

The maximum sentence for the offence in question is 7 years. It is unnecessary to go into detail in order to demonstrate that, although lenient, the head sentence of 4 years accords, broadly speaking, with the general pattern of sentencing, in the District Court, for offences of this character. That pattern is a subject on which comment has been made in Sheppard (1995) 77 A.Crim.R. 139. One could hardly say that the respondent’s offence is one in the worst category of offences of dangerous driving causing death, although it is certainly a bad offence. It does not seem possible, in our view, to hold that the sentence (although it is, we repeat, a lenient one) is at a level warranting this Court’s interference. There is as we have mentioned an application by McAnelly for leave to appeal against sentence, suggesting that he should have received more consideration for his plea of guilty. But there was no defence to the charge brought; the case was a clear one. In any event, McAnelly’s application is entirely devoid of substance and the attempt to argue it is a waste of the Court’s time.

We have mentioned that, according to the record, the respondent was disqualified absolutely from driving on 27 January 1995; s. 15(5) of the Traffic Act 1949 shows that that was an appropriate order. Under the sentence presently being discussed, for reasons which are unclear a 5 year disqualification was imposed. This order, considerably more lenient than the 27 July 1995 disqualification, is puzzling. The impression might be created that a 5 year disqualification, rather than the subsisting absolute disqualification (imposed only 7 months before) was commensurate with the respondent’s driving and the gravity of the subject offence. It seems necessary to dispel any such impression by replacing the 5 year disqualification by a further absolute disqualification, under s. 20(5) of the Traffic Act 1949.

We would grant the Attorney’s application and allow the appeal but only to the extent indicated, that is, by replacing the 5 year disqualification from holding or obtaining a driving licence by an order that the respondent be disqualified absolutely from holding or obtaining a driver’s licence. Mr McAnelly’s application for leave to appeal against sentence is refused.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 10/05/1996

I agree with the orders proposed by the President and Pincus JA and with their

Honours' reasons.