R v Radford

[1992] QCA 288

COURT OF APPEAL [1992] QCA 288

DAVIES JA
McPHERSON JA

THOMAS J

CA No 197 of 1992

THE QUEEN

v.

STUART RADFORD	Applicant
BRISBANE ..DATE 13/08/92
JUDGMENT

130892
DAVIES JA: The applicant was convicted on 2 July 1992 with the offence of dangerous
driving on 16 May 1992. He was sentenced to three months imprisonment and he was
disqualified from holding a driver’s licence for a period of two years.

The circumstances relating to the offence were that at about 9.45 am on the day in question, which was a Saturday morning, an elderly woman was crossing Howard Street, Nambour, pushing a shopping trolley. Howard Street is a two-lane bitumen road in the business sector of Nambour. It is perhaps not the main street, but it is a busy city street bordered by business premises on each side. There was heavy traffic, both pedestrian and vehicle, in the vicinity. Howard Street runs in an east-west direction.

The applicant, who had apparently been at a Repco shop in that street, outside which was parked his motorcycle, walked to his motorcycle on the southern side of the street, did what was really a complete circle outside Repco, during the course of which he caused an oncoming vehicle to brake lightly, and then set off along Howard Street in a westerly direction.

The circular movement, it appears, was during the course of showing off in front of some of his friends. After doing so, he accelerated loudly and rapidly down the street during the course of which he performed what was known as a wheel-stand, that is, he caused the motor cycle to stand on its back wheels over a distance of about 40 metres, before resuming its normal position on the road. He continued to accelerate along the road reaching, over a distance of about 160 metres or so, a speed of 80 to 90 kilometres an hour. It is perhaps not surprising that at the end of that journey, he collided with the pedestrian whom I have just mentioned. He braked heavily before the collision but nevertheless struck the unfortunate woman about half-way across the southern laneway of the road.

The woman sustained serious injuries and it is consequently perhaps fortunate for the applicant, that he was not charged with a more serious offence. We must, however, ignore those serious injuries because he was not, though, as counsel for the Crown pointed out, we can take into account the fact that she was in fact hit because that turns the potentiality of danger into what was an actuality.

The Magistrate described the driving as displaying a scant regard for the safety of the public generally. I would agree with that comment. The driving was dangerous, indeed, very dangerous, and showed a high degree of irresponsibility in a man who at 32, now 33 years of age, one would have thought would have shown a good deal more responsibility than that.

Notwithstanding the seriousness of his conduct, there is much to be said generally in this man’s favour. It is true that he had shown due responsibility in his driving conduct over a period of nine years prior to this event. He had committed ten offences of speeding over that period, all involved with riding his motorcycle. However, he had no criminal convictions and whilst it would be impossible to excuse the conduct on this occasion, it was not deliberate. It was done on the spur of the moment and, apparently, in the course of showing off in front of his friends or associates.

He is, apparently, it can be said in his favour, a well-respected and popular man. He has a stable family relationship. He is self-employed and apparently has a stable business and it would be unfortunate if sending this man to gaol in these circumstances, a man who has otherwise led a relatively blameless life, were to do him harm rather than good. He has in fact had a short taste of gaol. He was in gaol for about seven days.

Having regard to the circumstances I have mentioned with respect to his previous history, I would, notwithstanding the seriousness of the conduct on this occasion, set aside the sentence and substitute for it a period of community service, a period of 240 hours community service, and I would leave the disqualification stand at two years.

McPHERSON JA: I agree.

THOMAS J: To my mind, the action of the prosecuting authorities in failing to charge any circumstance of aggravation in this matter is inexplicable. Because of this circumstance, we are obliged to take an artificially blinkered view of the facts. If the Crown does not charge appropriately, the Courts will not fill the gap by punishing an offender for something of which he has not been charged.

A custodial sentence would, in my view, have been quite appropriate if the Court could have taken account of the consequences produced by this driving. But the driving in itself was not of the character that demands a custodial sentence in the absence of those results in the case of a person of good character who has the antecedents of the applicant. I therefore think that in imposing the three months imprisonment the sentencing discretion miscarried and I agree with the orders proposed by my brother.

DAVIES JA: Mr Godsall, I think I need to direct your client to report within a certain time to a community correctional officer. Is that correct?

MR GODSALL: At Maroochydore, Your Honour, yes.

DAVIES JA: At Maroochydore. The orders will be as I have indicated and the Court directs that the applicant report within - 24 hours?

MR GODSALL: Tomorrow he can do it, Your Honour.

DAVIES JA: Within 24 hours to the community correctional officer at Maroochydore.

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