R v Ross

[2007] QDC 383

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Ross [2007] QDC 383

PARTIES:

R

v

SHANE PAUL ROSS

FILE NO/S:

Indictment 369/2007

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court

DELIVERED ON:

9 November 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

9 November 2007

JUDGE:

Dearden DCJ

ORDER:

The defendant sentenced to 18 months imprisonment to be wholly suspended, with an operational period of 3 years. Disqualified from holding or obtaining a driver licence for a period of 9 months.

CATCHWORDS:

CRIMINAL LAW – SENTENCE AFTER PLEA – dangerous driving causing death – momentary inattention – “non-custodial” sentence as per R v Gruenert ex parte Attorney-General imposed

LEGISLATION:

Criminal CodeAct 1899 (Qld)

CASES:

R v Gruenert; ex parte Attorney-General [2005] QCA 154

COUNSEL:

Ms Farnden for the Director of Public Prosecutions

Mr Smith for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions

Gilmore and Associates for the Defendant

[1] HIS HONOUR: Stand up, please, Mr Ross. Mr Ross, you pleaded guilty here today to a single count of dangerous driving causing death.  Every one of us who drives on the road has an ongoing obligation at all times to ensure that we drive safely, not just for our own sake, because of course that is an important part of the obligation, but for the sake of all other road users.

[2] You, of course, more than most people, would be both aware, and would understand that obligation, because your entire career has been involved in the motor vehicle industry as a mechanic.
[3] As part of that obligation, it is the requirement of every driver, at literally every second of being behind the wheel, to pay sufficient attention at all times to ensure the safety of all other road users, as well as the safety of yourself.
[4] One of the most significant parts of that obligation, of course, is just the merest fall by any driver below the appropriate level of attention required can have catastrophic consequences, and it is clear, and I do not need to repeat it, but on this particular evening, that momentary inattention on your part had a catastrophic consequence for the rider of the motor bike, Mr Dulac.
[5] Ultimately, of course, having pleaded guilty to a charge of dangerous driving, for that you must receive a sentence.  In passing that sentence, I will indicate very clearly on the record, that I have taken account of all of the facts and circumstances, and, in particular, I have been assisted by reading the victim impact statement.  That statement, as well as the significant number of character references tendered on your behalf, all indicate to me that, more than anything else, both those who have give you references, and Ms Stephanie Dulac who has provided a victim impact statement, all reflect in one way or another on our shared humanity.
[6] Your life itself has had its share of tragedy, perhaps some would say more than its fair share of tragedy.  You lost your father at an early age, both for him and for you, and as a result of that it seems you have made a considered, and might I say commendable, decision neither to drink nor smoke.  You lost a daughter of SIDS at a very young age, and that is a tragedy which would leave a lengthy shadow across any family, and it clearly has in respect of your family.
[7] On the other hand, you have achieved remarkably well.  You are highly regarded in your trade, in your business.  You are highly regarded within and without your family.  You have brought significant praise from members of the community who have had the opportunity of dealing with you in your community commitment.  You are a dedicated family man, and the references speak extraordinarily highly of you in all of those aspects of your life.
[8] Dangerous driving is classically one of the offences where the behaviour, which may be literally momentary, and for just a few brief seconds, is criminalised because of the awful consequences of what happens, and in your case you have pleaded guilty to a criminal offence from that brief period of inattention on dusk, at a road intersection where you were dealing with a highway that travels at 100 kilometres per hour in both ways.  Your lapse, as I have said before, has had awful consequences, and ultimately, then, it falls upon this Court to consider an appropriate sentence.
[9] Both your counsel, Mr Smith, and the Prosecutor, Ms Farnden, have relied on the decision in R v Gruenert ex parte Attorney-General [2005] QCA 154, where Keane JA, at paragraph 16, usefully sets out an approach to the sentencing exercise in a case such as this, and it is accepted that Gruenert is a fair and reasonable and appropriate guide to the exercise of my sentencing jurisdiction.
[10] What Keane JA said at paragraph 16 and follows is:-

"From a consideration of the decisions of this Court in Harris, R v Balfe R v Balfe; R v Manners; ex parte A-G (Qld) and R v Anderson; ex parte A-G (Qld), it emerges that in a case of dangerous driving which causes death:

(a) a head sentence of 18 months imprisonment is    at the bottom end of the range;
(b) the considerations of deterrence, and of the    gravity of the consequences involved in the   offence, mean that it will be a rare case that does not attract a custodial term;
(c) the imposition of a custodial sentence is not, however inevitable in every case; and
(d) cases of "momentary inattention" are among rare cases of dangerous driving which may attract a non-custodial sentence because, in such cases, the claims of the consideration of deterrence are less compelling."

[11] By his reference there to "non-custodial", I take it to be a reference to the imposition of a custody sentence which does not necessarily involve a period of actual custody as part of its outcome.
[12] In that particular case of Gruenert, Keane JA considered, firstly, that the characterisation of the defendant's driving as being an issue of momentary inattention was correct, and noted that the defendant in that case had a blameless record, both as a driver and as a citizen, and spoke of the impressive body of references vouching for his good character.
[13] You have no criminal history.  You have a traffic history which is not particularly flash, but one would not say that it was a particularly bad traffic history, and, as I have already said, there is a body of references tendered in this Court which vouch overwhelmingly for your good behaviour.
[14] An important consideration in matters such as this is, of course, what is placed before the Court by way of information in respect of the deceased, and it is appropriately and properly put before this Court, in this case by way of a victim impact statement.  I can indicate very clearly that I have read that victim impact statement, and I note, for the benefit of the family, that, having carefully read the victim impact statement, I understand completely, as well as anyone can in my position, the effect that this has had on them, and, of course, the ongoing tragedy that an event such as this leaves in respect of all members of the family, be they those closest to Patrick, or those further distanced from him.
[15] But the victim impact statement in this particular case I consider bears quoting, because probably more eloquently than any such statement that I have read, it puts the view point of the family of Patrick Dulac in a way that is, in many ways, of enormous assistance to this Court, and I quote:-

"Life can sometimes be hard.  It can make you bitter, or it can make you better.  It's a choice.  I choose not to bear any personal vengeance or ill feeling towards Shane Ross or malice.  I choose not to hate, as this serves no positive purpose for myself or my boys.(I note there that it was a reference by Ms Dulac to her sons who were then five and three at the time of this accident.)
Hate will not help us heal.  I choose to accept fate, as nothing I can say or do will bring my Pat back, and I choose to be a better person as a result.  I choose to accept whatever punishment the Court deems appropriate.  However, I feel that something good must result.  There must be a purpose that Patrick was taken from us.
I would like this purpose to be that Shane Ross, his family, friends, acquaintances, and all other people associated with this tragedy, are safer drivers as a result.  I would like them all to consciously and consistently watch for motor bikes, push bikes, pedestrians, and any other traffic on our roads before pulling out into traffic.  If this saves but one other life, I am satisfied.

Signed Stephanie Michelle Dulac".
[16] Ms Dulac there has, in far more eloquent language than I can put, echoed some themes that I constantly find myself referring to when sentencing offenders in this Court.  Firstly, that there is nothing that this Court can do to restore the life of the person that has been taken.  Much as we would like to do it, it is impossible.  We know that; we understand that; and as sentencing Courts, what we do within the limits of the comparatives by which we are bound, the sentencing principles which we must impose, and the facts placed before us, dictate the sentence which must be imposed, and that sentence acknowledges, by its compliance with those comparatives and principles, that it does all that a sentence can do, but the one thing it can never do is restore the life taken away.
[17] Secondly, and again, it is something I have repeated constantly to people in your position, you cannot restore the life taken, but if, in your actions in the future, be they just within your family, or be they because you choose to go out into the broader community and participate in the ongoing conversation about this never-ending and appalling tale of death that we see on the roads every day, if, in that process, whether it be one within your family and friends, or one in which you choose to go into the broader community, if you can stop just one other death, then in some way you will have balanced the ledger in respect of what has happened.
[18] The third, and most important, part of Ms Dulac's victim impact statement is the fact that she has chosen neither to carry personal vengeance, nor to carry hate, because, as much as sentencing Courts would want to advise victims or their families, the one lesson that I have learnt over a very long period, both as a practitioner in the law, and subsequently as a Judge, is that neither of those emotions in the long term serve the person who experiences them any good, and if, and I am sure this is a difficult pathway to take, but if Ms Dulac follows through with those expressed feelings, which are clearly put very forcefully, then that quite clearly is the best opportunity for her and her family to heal, and the Court expresses its gratitude for the terms in which that particular victim impact statement is placed before the Court.
[19] Having made those points in this sentencing process, and to the family of the deceased, it seems to me that your circumstances, revealing as they do momentary inattention with a catastrophic consequence, fit entirely appropriately within the sentence submitted for both by Ms Farnden and your counsel, Mr Smith.
[20] (1) you are convicted and sentenced to 18 months'  imprisonment.
[21] It is an inevitable consequence of that sentence that there will be a minimum period of disqualification of six months, which is what your counsel, Mr Smith, submits for, and Ms Farnden submits for a disqualification period of 12 months.  Ultimately, it seems to me, and I understand in doing this that it is going to have an extraordinarily difficult and expensive effect on your business, but it seems to me that a disqualification period, a little above the mandatory minimum but below that of 12 months is appropriate.
[22] (2)   You are disqualified from holding or obtaining a driver's licence in Queensland for a period of nine months.
[23] The sentence of 18 months which I have imposed on you will be wholly suspended.  It does seem to me, again, and this is accepted by both the Crown and the defence, that this is one of those rare cases in which the consideration of deterrence is less compelling than it might otherwise have been, and in which it is appropriate, whilst reflecting the catastrophic nature of the dangerous driving in this case, by a head sentence, to wholly suspend the sentence.
[24] (3)   The sentence is wholly suspended.
[25] (4)   There will be an operational period of three years.
[26] If you commit any offence punishable by imprisonment in the next three years, you will be brought into this Court and called upon to show cause effectively why you should not serve the whole, or some portion, of the suspended sentence.  Looking at your history to date, of course, I would think that most unlikely, but ultimately, of course, that is a matter for you.
[27] I have no doubt that the impact of what has happened, as I clearly observed from the report of Mr Hatzipetrou will go with you for the rest of your life, just as it will for the rest of the lives of the family of Patrick Dulac, but, as I said before, if you can, in some small or large way contribute to the education of the public in Queensland and thereby prevent the unnecessary loss of even one life, then in some way you will have made some sort of amends for the tragedy caused by your momentary inattention on this day.
[28] (5)   A conviction is automatically recorded.