R v McLeod

[2007] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION:

R v McLeod [2007] QCA 45

PARTIES:

R
v
MCLEOD, Ian Alexander
(applicant)

FILE NO/S:

CA No 313 of 2006
DC No 3425 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

16 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2007

JUDGES:

Williams, Jerrard and Holmes JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – GENERALLY – where applicant lost control of vehicle as result of epileptic seizure – where applicant was convicted of dangerous operation of a motor vehicle causing death and grievous bodily harm – where learned sentencing judge found applicant knew he was a real risk to members of the public – whether sentencing judge ought to have sentenced on a more favourable basis for the applicant – whether sentencing judge erred in failing to particularise findings

Evidence Act 1977 (Qld), s 132C

R v Beddington [1970] Qd R 353, applied
R v Haselich [1967] Qd R 183, applied
R v Pryor [1987] 2 Qd R 768, applied

COUNSEL:

P E Nolan for the applicant
R G Martin SC for the respondent

SOLICITORS:

Harris Sushames Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA:  I will ask Justice Holmes to deliver her reasons first.

HOLMES JA:  The applicant seeks leave to appeal against a sentence of four years' imprisonment imposed on him for the offence of dangerous operation of a motor vehicle, causing death and grievous bodily harm.

The applicant was convicted after a trial, in which there seems to have been no dispute that the vehicle driven by him had crossed the median strip of the Logan Motorway and struck an oncoming vehicle.  As a result of the collision, a 20 month old child died and a seven year old child was severely injured and left paraplegic.  The children's mother also suffered fractures and organ damage and was left with severe scarring.
Nor, it seems, was it disputed that the applicant's loss of control of his vehicle was the result of an epileptic seizure.  The live question was whether the applicant knew or ought to have known that because of his epileptic condition it was unsafe for him to drive.  Clearly the jury was satisfied to the requisite standard that he did know or ought to have known that it was so.

The learned sentencing Judge imposed sentence on the basis that the applicant "knew that he was a real risk to members of the public" in driving whilst suffering from his epileptic condition.  The applicant here concedes that if the finding that he knew it was unsafe for him to drive was properly made, the sentence imposed was not manifestly excessive.  He argues, however, that the finding was made arbitrarily, since the Crown had left its case on both bases and that the learned Judge ought to have sentenced on a basis more favourable to the applicant:  that he turned a blind eye to his condition, rather than knowing that it was unsafe for him to drive.  Alternatively, the Judge had erred in failing to particularise the basis of his finding. 

The medical evidence called at the trial was not placed before this Court, but the applicant's own evidence at the trial was.  From it, the following emerges:  the collision had happened on 28th of February 2004, when he was driving along the Logan Motorway from Beenleigh to get to his work at Wacol.  He could remember the first part of the journey and thought he had been on the road about 10 to 15 minutes before the collision, but had no recollection of it.

As to his history of epilepsy, the applicant said that his condition had been reasonably stable for about 13 years, until his medication was changed in 2003.  His general practitioner had issued him with a certificate of fitness to drive in July 2003, when his epilepsy was still stable.  He knew that the purpose of that certificate was to let the authorities know if there was any risk of his having a seizure while driving.

In September 2003, the applicant said, he experienced a mild seizure, involving some memory loss and what he described as a feeling of "absence".  He was admitted to hospital overnight.  On his discharge, Dr Roberts, who had treated him there, had told him not to drive for six weeks; but of his own volition, he had refrained from driving for three months and had not recommenced until January 2004.

The applicant accepted that as at the time of his discharge from hospital, his epilepsy was unstable.  He conceded under cross-examination that he would have represented a threat to other drivers if he had a seizure driving at speed, whether it was full or partial, even if it merely involved the sensation of vagueness.

The applicant's treating neurologist, as at September, 2003, was Dr Reid.  He had not discussed with her, or, for that matter, his general practitioner, whether he should or should not drive.  From January 2004, he had felt that it was safe for him to drive.  Usually, if he were to get any sort of seizure, he would have some warning symptoms, with dryness in the mouth and a sensation similar to a headache, five to 10 minutes before a seizure.  (At various points, he said he got those symptoms "occasionally", "always" and "usually", but eventually appeared to accept the last as accurate.)

On 12th January 2004, the applicant told his general practitioner that he had had a seizure in mid-December, in which he had fallen off the bed and hit the wall.  He described the seizure as "an absence".  When he was asked to explain why, having had that seizure, he nonetheless resumed driving in January, he said that he was only driving to work and back twice a week, he felt all right at the time and he considered that his new medication was starting to work.  He would not have driven if he had felt the warning symptoms.

On 22nd of January, the applicant saw a new neurologist, Dr McLaughlan, to whom he reported that he had been having partial seizures, as often as once a week for the previous month to two months.  On 26th of February 2004, he saw Dr McLaughlan again.  He told him he had had what he called "a simple partial seizure", which entailed a sensation of vagueness, a couple of days previously.  But, he said, on the 28th of February when he got into his car, he felt all right. And, he pointed out, his general practitioner had, back in July 2003, given him the certificate of fitness to drive.  Since then, no doctor, apart from Dr Roberts, had told him he ought not to drive.

In the course of submissions on sentence, counsel for the applicant pointed out the two bases on which the case had been led to the jury:  that the applicant did not believe that he was fit to drive, or that no reasonable person in his position would have believed that he could drive.  He conceded that the learned Judge was entitled to take whichever view of the evidence he chose.  The learned Judge then advised counsel that he was inclined to the view that the applicant was aware of the risk and invited submissions.  In response, counsel pointed out that when his client had had a specific direction not to drive, he had obeyed it and according to his general practitioner, he did generally follow medical instructions.
That was, counsel suggested, inconsistent with the view that the applicant was aware he ought not to drive.  He also pointed out that the case would be much worse, so far as sentence was concerned, if the applicant had disobeyed a medical direction.  His Honour accepted that that was so.

In his sentencing remarks, the learned sentencing Judge made these findings:

"On the evidence which I heard, I am satisfied that the defendant
knew that he was a real risk to members of the public.  In my view it was perhaps a great risk rather than just a real risk because he was reporting epileptic episodes occurring at least on a weekly basis.  In some instances - on one instance, four in one day.  While these may not have been as serious as some of the other episodes he had experienced, in my view he must have known from his previous experience that there was a risk of a more serious epileptic seizure occurring at any time and he must have realised that in some, if not all of the mild epileptic episodes or milder epileptic episodes he would still pose a danger to other road users if he were to be driving on a main road in that condition."

Section 132C of the Evidence Act permits a sentencing Judge to act on an allegation of fact which he or she is satisfied, on the balance of probabilities, is true.  The learned Judge here made just such a finding, identifying the evidence on which he acted.  It was not essential to such a finding that the applicant should have received a medical direction not to drive.  His own concessions that he had had seizures and that he knew he would pose a risk to other drivers, should such a seizure occur when he was driving, were an adequate basis for the finding.  Indeed, it is difficult to see what other inference could rationally be drawn from that evidence.  In any event, the learned trial Judge was entitled to take the less favourable view, provided it was not inconsistent with the jury's verdict:  R v Haselich [1967] QdR 183, R v Beddington [1970] QdR 353 at 364 and R v Pryor [1987]
2 QdR 768. Counsel for the applicant seems, properly, to have conceded as much in submissions at the sentence hearing.

As already mentioned, the applicant accepted that if the finding of awareness of the risk were properly made, the sentence was within a proper range; indeed, at the sentence hearing, counsel submitted that the appropriate range for sentence was between three and four years.

I would dismiss the application for leave to appeal against sentence.

WILLIAMS JA:  I agree.

JERRARD JA:  I agree with the order proposed by Justice Holmes and with the reasons given by her Honour.  I add only that the medical evidence, described in the cross-examination of the applicant, or summarised in the submissions of the Crown, include that on the 7th of November 2003, the applicant told his general practitioner, that he had had four seizures the night before and on the 4th of December 2003, he told his general practitioner he was still having seizures, mainly in the evening.

The evidence also included that on four occasions, the 14th of October 2003, the 21st of November 2003, the 22nd of January 2004 and the 26th of February 2004, two days before the collision, he had seen either his general practitioner or specialist and on each occasion, his medication had been modified.  Those were matters that the learned Judge was entitled to rely on in coming to the conclusion that the applicant must have known on the morning of the collision, that his condition had not stabilised.  That was because he was continuing to have seizures and was continuing to have his medication changed.

For those reasons, I agree with the findings of the learned sentencing Judge.

WILLIAMS JA:  The order of the Court will be application dismissed.

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