R v McKinnon - [1999] QCA 75

99.75

COURT OF APPEAL

McMURDO P
McPHERSON JA
MUIR J

CA No 356 of 1998

THE QUEEN

MICHAEL JOHN McKINNON Applicant

BRISBANE

..DATE 17/03/99

..DAY 1

JUDGMENT

McPHERSON JA: The applicant for leave to appeal against sentence was convicted on his own plea of guilty in the District Court at Beenleigh of the offence of dangerous driving causing death, with the circumstance of aggravation that he was at the time under the influence of alcohol to a specified extent.

He was sentenced to imprisonment for a term of six years, with a recommendation for parole after he had served two and a half years of that sentence.

The circumstances of the offence can be summarised as follows. On 7 December 1997 the applicant drove his car at a time when he had a blood alcohol concentration in excess of .219 per cent. His ability to control the vehicle was substantially impaired, and he began dozing or napping at the wheel while he was driving.

He ultimately ran off the road and into a parked car killing the occupant. The applicant had been drinking beer with a friend. He had consumed about 13 cans of heavy beer in the five hours preceding the collision. What is more, although his friend suggested to him that it was inappropriate for him to drive in that condition, he was not dissuaded from doing so.

He drove along the Waterford/Tamborine Road at about 9 p.m. It was a 100 km/h zone and a busy area. The applicant's car was observed by others before the accident occurred swerving completely into the incorrect lane while it was travelling at speeds of between 80 and 100 km/h.

One car had to slow down to avoid him. On another occasion he crossed double centre lines while going up a hill in order to overtake two other cars. He fell asleep or dozed off on three occasions. After the first two episodes he was able to correct the vehicle, but on the third occasion he lost control and the car ploughed into a Hyundai sedan parked on the grass at the side of the road.

Paul Craig was sleeping in the car. He died as a result of subdural haemorrhage and a broken back. He was 54 years old and a father of three. A victim impact statement signed by his widow and children speaks of the shattering of their lives by the sudden death of a loving and loved husband and father.

Returning to the incident itself, the applicant's breath was analysed one and a half hours after the collision. The blood alcohol concentration was, as I have said, .219 per cent.

While he was not completely honest with the police at the roadside, he made full admissions in an interview that took place not long afterwards.

His personal circumstances are these. He is, or at the time of the sentencing was, 29 years old, having been born on
6 April 1969. He has some prior criminal history.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McKinnon

Details

AGLC: R v McKinnon [1999] QCA 75
Case: [1999] QCA 75
Decision Date: 17/03/1999

CaseChat Overview and Summary

The Court of Appeal of Queensland presided over the case of R v McKinnon, in which Michael John McKinnon sought leave to appeal against his sentence. McKinnon had pleaded guilty to dangerous driving causing death, aggravated by his alcohol intoxication at the time of the incident. The sentencing court, the District Court at Beenleigh, imposed a six-year imprisonment term with a parole recommendation after two and a half years. McKinnon's blood alcohol concentration was over 0.219 per cent at the time of the accident, which occurred when he fell asleep while driving, resulting in a fatal collision with a parked car. The deceased, Paul Craig, suffered subdural haemorrhage and a broken back, leading to his death. The victim's family submitted a victim impact statement detailing the profound impact of Paul Craig's death on their lives.

The primary legal issue in this case was whether the imposed sentence was appropriate given the circumstances of the offence and McKinnon's remorse. McKinnon argued for a lower sentence, citing his genuine remorse and the impact of imprisonment on his family. The Crown accepted that the sentence was within the appropriate range for the offence but opposed a more lenient parole recommendation. The court needed to balance McKinnon's remorse and the aggravating factors, such as his disregard for other road users and his prior warnings about his condition.

The Court of Appeal, comprising McPherson JA, The President, and Muir J, considered the severity of McKinnon's actions and the consequences of his decision to drive while intoxicated. The court found that McKinnon's remorse was genuine, but the aggravating circumstances, including his disregard for other road users and the prior warnings, significantly impacted the sentencing. The court concluded that the six-year imprisonment term with a parole recommendation after two and a half years was appropriate. The judges agreed that the sentence should not be interfered with, and the application for leave to appeal was dismissed.

Orders