R v Quinlan

[1994] QCA 446

[1994] QCA 446

COURT OF APPEAL

DAVIES JA PINCUS JA MACKENZIE J

CA No 297 of 1994
THE QUEEN
v.

RAELENE KYM QUINLAN Applicant

BRISBANE
..DATE 13/09/94
DAVIES JA: This is an application for leave to appeal against
a sentence of three years' imprisonment with a recommendation
that the applicant be eligible for parole after serving six
months for an offence of dangerous driving causing grievous
bodily harm while adversely affected by liquor. The relevant
offence occurred on 21 February this year. The applicant was
convicted and sentenced on 13 July in the District Court at
Mount Isa, having pleaded guilty.

The applicant was just 18 years of age at the time of commission of these offences having been born on 24 December 1975. She had no previous criminal history. The circumstances with respect to the commission of this offence were very serious in the sense that not only had the applicant obviously consumed a large quantity of alcohol but the dangerous driving which caused the grievous bodily harm was of a reckless kind.

In other words it was driving at a greatly excessive speed, deliberately. The applicant had consumed a quantity of liquor in a caravan park. She then got into a vehicle belonging to a friend and drove it. There were, in the car, two adult passengers and the applicant's small child. She had, in fact, two children, this child being one of them. The child was enclosed in the same seatbelt as one of the adult passengers in the back seat. The applicant drove the vehicle at 120 kilometres an hour in a built-up area in Mount Isa. During the course of this driving the front seat passenger was, at times, hanging out the window in an activity known as road surfing. The passenger was told to come in on a number of occasions.

Upon doing so he punched the windscreen causing it damage.
The applicant continued to drive at that speed. Just as she
left the outskirts of the city she entered an S-bend which she
went into at that speed. She told the police that she had
gone through that curve at the same speed on a previous
occasion and was trying to do it again.

She lost control of the vehicle on the S-bend, hit an obstruction and the car overturned in the course of which an adult passenger was injured, the injury suffered being a fracture of the pelvis. The fracture improved but the medical evidence was that it was of a sufficient extent to make a degree of permanent disability likely.

The applicant left the scene of the accident with her young child and came to the hospital where the injured passenger was about an hour and a half later. She then submitted to a blood test which revealed a blood alcohol level of .064 which meant that at the time of her driving she had a blood alcohol content of .104. She held only a learner's permit at the relevant time.

The vehicle was defective. It had four bald tyres which were, for practical purposes, nearly flat at the time of the crash.

I will refer a little later to the question of the

applicant's knowledge of that fact. The applicant pleaded
guilty by way of ex officio indictment and that was one of the
points made in her favour by Mr Martin who appeared on her
behalf before us.

The matters upon which Mr Martin relied in submitting that the sentence imposed was manifestly excessive were these. First, the applicant's age, to which I have already referred; secondly that she had sole parent responsibilities for two children aged two and a half and one year respectively. I would only say in respect of that that she was not exercising a great deal of responsibility for the child in the car at the time of her driving, and nothing appears in the appeal book as to where her other child was at the relevant time.

The third matter relied on by Mr Martin was that the applicant was in employment at the relevant time. The fourth was that she had no previous convictions. Both of those matters are matters which are not uncommonly raised on behalf of applicants for an offence of this kind. The fifth matter relied on was that the applicant provided the evidence of dangerous driving against herself.

The appeal book again does not give any great details either of the circumstances of the offence, other than those which I have related or as to where the information with respect to those circumstances came from, but I am prepared to accept for the purposes of this application that the only source of this information was as Mr Martin has submitted, the applicant herself.

Sixthly, Mr Martin relied on the fact that the applicant did not contest or put the Crown to proof in relation to any aspect of the charge and pleaded guilty on ex officio indictment.

That was a proper matter for the learned sentencing Judge to take into account, and it appears he did so. Mr Martin then made a number of criticisms of the learned sentencing Judge's remarks both before and during the course of imposing his sentence. The learned sentencing Judge said at one point that it was difficult to imagine a worse example of dangerous driving.

He said, for example, that he did not recall ever coming across a case as bad as this. He added, "You were intoxicated. You were driving a vehicle which was probably unsafe at any speed and should never have been on the road, and you were driving at an extraordinarily excessive speed with your own child in the car."

All of those facts are correct, but Mr Martin submits, correctly in my view, that there are worse examples of dangerous driving than this and he referred us in that respect

to section 328A(f) and more relevantly to the case of Woodgate CA 225 of 1991, which was undoubtedly a more serious case than this, and I would add one in which the sentence was

significantly higher than that which was imposed by the
learned sentencing Judge here. Mr Martin then criticised His
Honour in saying that he thought the starting point for the
imposition of sentence was five years. However, His Honour
really explained what he meant in that respect by saying, "If
you were an older person, and had been found guilty on trial
of this offence, I would be entirely justified in sentencing
you to imprisonment for five years." And, I would add, that
may well have been correct.

Whether, in fact, that means that His Honour should have started with a five year term and worked backwards is another matter but in the end the question for us is whether, in imposing the sentence which His Honour did, he went outside the range for the exercise of a sound sentencing discretion.

His Honour, after referring to the starting point of five
years then dealt with a number of factors including the plea
of guilty and the mitigating factors to which I have already
referred. It was also submitted on behalf of the applicant
that His Honour failed to have sufficient regard to section 9
of the Penalties and Sentences Act and that although he
referred to section 9 subsection 3 and subsection 4, he failed
to refer to subsection 2A of section 9.
The sentence which was imposed in this case was, in my view, a
sentence which was quite a severe one having regard to the
factors to which I have referred, in particular the age of the
applicant, her previous good record, the plea of guilty, the
cooperation with the police and the fact that the substance of
the case against her was provided by her.

However, His Honour, in my view had regard to those factors and in the end in providing for eligibility for parole after serving six months of that term did not go outside the range for the exercise of a sound sentencing discretion. This was, after all, a case of very bad reckless driving by a person who must have been very drunk at the time.

For those reasons I would refuse the application.

PINCUS JA: I agree.

MACKENZIE J: I agree.

DAVIES JA: The application is refused.
MR R MARTIN: May it please Your Honour there is the issue of a warrant that is raised. I ask for a warrant to issue.
DAVIES JA: Yes. Well, I would so order and what do you want with respect to that, Mr Martin, to leave it-----
MR T MARTIN: Simply to rely on the Registry if I could, Your

Honour.

DAVIES JA: Yes.
MR T MARTIN: Thank you.
DAVIES JA: Very well. Should I make a time? Should I specify a time?
MR R MARTIN: Yes. Till Friday, Your Honour?
DAVIES JA: Yes, very well.

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