R v Merrill; ex parte A-G (Qld) - [2002] QCA 263

[2002] QCA 263

COURT OF APPEAL

DAVIES JA
WHITE J
WILSON J

CA No 86 of 2002

THE QUEEN

JARED JOSEPH MERRILL	Respondent
and
ATTORNEY-GENERAL OF QUEENSLAND	Appellant

BRISBANE

..DATE 25/07/2002

JUDGMENT

WHITE J: This is an appeal by the Attorney-General against a sentence of four years imprisonment with eligibility to apply for post-imprisonment release after serving nine months, and an absolute disqualification from holding a driver's licence imposed on the respondent after he pleaded guilty on ex officio indictment to the dangerous operation of a motor vehicle causing death while adversely affected by alcohol.

The respondent was aged 20 years at the time of the offence which occurred at about 7.30 p.m. on the 31st of May 2001 when the motor vehicle, which he was driving, came into collision with that driven by the deceased towards the foot of Crosby Hill at Buderim. The respondent had an extensive record for breaches of the Traffic Act, including eight offences for driving in excess of the speed limit, some at least 30 kilometres per hour over the designated limit.

He had one offence of driving while under the influence of alcohol imposed on the 3rd of November 2000. He was disqualified from driving for three months on 20 February 2001 after disobeying a restriction against driving after the consumption of alcohol. That disqualification expired on 19 May 2001 and, as can be seen, that was just a short time before this offence.

On the day of the offence the respondent had drunk three to four schooners of full-strength beer and two to three shots of bourbon from about 4 o'clock in the afternoon. He held, as I have said, a restricted licence which did not permit him to drive after drinking alcohol. Nonetheless he drove three workmates from the hotel towards Buderim in a borrowed BMW motor vehicle.

From the outset he showed off, attempting to spin the wheels on leaving the hotel car-park and, according to the front passenger, reaching approximately 150 kilometres per hour going down the hill in an 80 kilometre hour zone. The respondent was familiar with this part of the road.

He maintained that he was encouraged to speed by his passengers while the passengers maintained that they had sought to curb him. It was unnecessary for the purpose of sentence for this conflict to be resolved. The respondent's car failed to hold the road in a sweeping bend and slid across the road into a head-on collision in the middle of its incorrect lane with the car driven by the deceased, a young woman of 30, who was killed virtually instantly.

The respondent claimed to investigating and interviewing police that the deceased's vehicle was on its incorrect side of the road, but he later made admissions as to his culpability. His blood alcohol reading was point 097. The weather was fine and the road was dry.

The respondent received only superficial injuries whilst those sustained by his passengers were more serious. This was not…

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.

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Details

Case: [2002] QCA 263
Decision Date: 25/07/2002

CaseChat Overview and Summary

In the matter of the appeal by the Attorney-General against the sentence imposed on Jared Joseph Merrill, the Court of Appeal considered the gravity of the offence of dangerous driving causing death while under the influence of alcohol. Merrill had a history of traffic violations and had been disqualified from driving after consuming alcohol. Despite this, he drove while intoxicated, resulting in a fatal collision. The original sentence was four years imprisonment with eligibility for parole after nine months and a complete disqualification from holding a driver's licence. The Attorney-General argued that the sentence was manifestly inadequate and did not sufficiently reflect the seriousness of the offence, particularly in terms of deterrence.

The central legal issue was whether the sentence imposed by the trial judge was manifestly inadequate, thus warranting intervention by the Court of Appeal. The Court considered several precedent cases to assess the appropriateness of the sentence in relation to similar offences. The Attorney-General contended that the sentence did not adequately account for the elements of deterrence and the gravity of the offence, while the defence argued that the sentence was within the appropriate range and should not be altered significantly.

The Court of Appeal found that the head sentence of four years was at the lower end of the range typically seen in such cases, but the non-parole period of nine months was unduly lenient. The Court concluded that the sentence was indeed manifestly inadequate and varied the order to suspend the term of imprisonment after 15 months, with an operational period of four years. The Court highlighted the need for consistency in sentencing for such serious offences and the importance of deterrence, while also considering the mitigating factors presented.

The final orders of the Court were to suspend the term of imprisonment after 15 months, with an operational period of four years. The Court allowed the appeal and modified the original sentence to better align with the principles of sentencing for offences of this nature.

Orders