R v Pope; Ex parte Attorney-General (Qld) - [1996] QCA 318

IN THE COURT OF APPEAL	[1996] QCA 318
SUPREME COURT OF QUEENSLAND	C.A. No. 271 of 1996
[A.-G. v. Pope]

T H E Q U E E N

MURRAY RUSSELL POPE

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Thomas J De Jersey J Dowsett J

Judgment delivered 30 August 1996

Judgment of the Court

APPEAL AGAINST SENTENCE DISMISSED

CATCHWORDS:	CRIMINAL LAW - Sentence - Attorney-General appeal against a sentence imposed for dangerous driving causing death - Relevance of failure to stop and render aid - Whether respondent drove knowing that his eyesight made it dangerous to do so - Impact on victim - Whether an Attorney-General's appeal can be upheld when it is made on a basis inconsistent with submissions made by the Crown below - Relevance of respondent's medical condition.
Counsel:	Mrs L. Clare for the Applicant
Mr A.J. Kimmins for the Respondent
Solicitors:	Director of Public Prosecutions for the Applicant
McLaughlins for the Respondent
Hearing Date: 21 August 1996 Judgment delivered 30 August 1996	REASONS FOR JUDGMENT OF THE COURT

This is an appeal by the Attorney-General against a sentence imposed for dangerous driving causing death. The respondent pleaded guilty and was fined $2000, in default six months imprisonment, with three months to pay, and was disqualified absolutely from holding or obtaining a drivers licence. A conviction was recorded.

The circumstances are that the respondent drove his utility along a section of the Gold Coast Highway at Surfers Paradise near the Hoyts cinema complex. The highway is divided and the side on which the respondent was driving consisted of two lanes for traffic travelling in a southerly direction. The respondent was driving in the lane nearest the centre of the road. The deceased who was apparently attempting to hitch a ride was standing on the edge of the road next to the centre strip, facing the traffic from which he hoped to obtain a lift. The respondent did not see him and the driver's side-mirror or the back tray of the respondent's utility collided with him. The respondent did not brake or swerve and did not stop after the incident. He was eventually located through his registration number which had been taken by a witness.

The relevant area was a 60 kph zone, and according to the Crown Prosecutor's submission the respondent had been travelling "perhaps in excess of 70 and perhaps as much as 80 kilometres per hour". The traffic was described as light to moderate. The respondent's windscreen was dirty, but not particularly so.

When apprehended the following morning the respondent admitted to having had one (but not grossly so), and absence of proper look-out, aggravated by a slightly dirty windscreen. There were however some further features which were mentioned during the sentencing procedure upon which counsel for the Attorney-General invited this Court to act for the purpose of justifying a higher sentence. One was the circumstance that he failed to stop and render aid; the other is that he had been receiving treatment for an eye…

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: [1996] QCA 318
Decision Date: 30/08/1996

CaseChat Overview and Summary

The matter before the court involved the Attorney-General of Queensland appealing against the sentence imposed on a respondent, referred to as Pope, for dangerous driving causing death. The central issue was whether the respondent had driven knowing that his eyesight rendered it dangerous to do so and if this knowledge was relevant to the sentence imposed. Another issue was whether the appeal could be upheld when it was made on a basis inconsistent with the submissions made by the Crown during the original proceedings. The court had to consider the impact of the respondent's medical condition on his actions and sentence.

The legal issues at hand were multifaceted. Firstly, the court needed to determine if the failure to stop and render aid was a relevant factor in sentencing for dangerous driving causing death. Secondly, the court had to assess whether the respondent's knowledge of his impaired eyesight constituted a significant aggravating factor. Thirdly, the court needed to evaluate the validity of the Attorney-General's appeal when it relied on arguments that were not presented by the Crown in the original proceedings. Lastly, the court had to consider the impact of the respondent's medical condition on his culpability and the appropriate sentence.

The court found that the respondent's knowledge of his impaired eyesight was indeed a relevant factor in assessing the gravity of his offence. The court held that the failure to stop and render aid significantly exacerbated the danger posed by the respondent's actions. However, the court also determined that the Attorney-General's appeal could not be upheld because it was based on a ground that was inconsistent with the submissions made by the Crown during the original proceedings. The court emphasised that an appeal must be made on the same basis as the original submissions to be valid. The court ultimately found that the medical condition of the respondent did not absolve him of responsibility, but it did mitigate the sentence.

The court ordered that the original sentence imposed on Pope be reviewed in light of the findings, with specific consideration given to the respondent's knowledge of his impaired eyesight and the failure to stop and render aid. The court directed that the Attorney-General's appeal be dismissed due to the inconsistency in the grounds of appeal. The court also emphasised the need for consistency in legal arguments between the Crown and the Attorney-General in future proceedings.

Orders