R v Russo

[1994] QCA 388

IN THE COURT OF APPEAL [1994] QCA 388

SUPREME COURT OF QUEENSLAND

C.A. No. 140 of 1994

Brisbane

[R v. Russo]

T H E Q U E E N

v.

PATRICIA ROSE RUSSO

(Applicant)

Fitzgerald P McPherson JA

Ambrose J

Judgment delivered : 05/10/1994

Reasons for judgment of McPherson JA and Ambrose J; separate dissenting reasons of Fitzgerald P.

APPLICATION FOR LEAVE TO APPEAL DISMISSED.

CATCHWORDS:	CRIMINAL LAW - Sentence - to record a conviction for momentary inattention is not manifestly excessive - Not shown by applicant that the conviction would impede her present work direction.
Counsel:	P. Lafferty for the Appellant

L. Clare for the Respondent

Solicitors:  Spina Kyle Roati for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:  26 August 1994

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 05 /10/94

While I acknowledge the force of the reasons given by Ambrose J. for refusing the application for leave to appeal, I would set aside the recording of the conviction.

This is a tragic case in which the consequences, the deaths of two persons, are totally disproportionate to the applicant's material misbehaviour, momentary inattention. Young people with much more culpable conduct but who are of good character and unlikely to offend again regularly do not have convictions recorded, and the applicant should not be placed in any worse position. While a conviction might not impede the applicant's progress through her chosen profession, it can scarcely be doubted that it might hurt her chances of obtaining employment and would adversely affect her economic and social wellbeing: Penalties and Sentences Act 1992 subsections 12(1) and (2).
Since I cannot identify any reason for doing so, a conviction being unnecessary to punish the applicant, unlikely to be material to deterrence and irrelevant to any future punishment for other offences, I would not jeopardise her prospects by recording a conviction.

The application for leave to appeal should be granted, the appeal allowed and the sentence imposed below varied to remove the order that a conviction be recorded and to substitute an order that a conviction not be recorded. The sentence imposed below should otherwise stand.

JOINT REASONS FOR JUDGMENT OF McPHERSON JA
AND AMBROSE J
Judgment Delivered: 05/10/1994

This is an application for leave to appeal against a sentence passed on the applicant upon her conviction upon a charge that on 4 December 1992 she drove a motor vehicle dangerously, thereby causing two deaths.
The applicant appealed against her conviction and sought leave to appeal against the sentence imposed. However, when the matter was brought on for hearing, the appeal was abandoned and therefore struck out and the applicant then pursued her application for leave to appeal against sentence.
Stated briefly, the applicant was driving a motor vehicle along Heaths Road on the northern outskirts of Mackay, with two friends as passengers, at a speed of between 60 and 80 kilometres per hour, when she failed to slow down or stop at a stop sign at the intersection of Glenella Road with Heaths Road.
She collided with a motor vehicle proceeding along Glenella Road and in the collision with that vehicle, two of its occupants were killed.
The applicant who gave evidence said that she was probably travelling at about 80 kilometres per hour when the collision occurred.

The evidence showed that at the time of the collision there were two sign posts on the left hand side of Heaths Road in the direction in which the applicant was travelling. The first sign post indicating that there was an intersection ahead was located 100 metres before the intersection. There was a stop sign about 60 centimetres in width that was located just before the intersection.

The evidence showed that the stop sign was visible from a distance of about 180 metres from the intersection, although from a further distance back visibility of the stop sign was obscured by the sign on the side of the roadway indicating an intersection ahead.

The evidence indicated that the applicant had lost her way and that this was of concern to her and to one of her passengers in the rear seat of the vehicle who was apparently looking at a road map. For whatever reason, the applicant failed to see either the sign indicating an intersection or the stop sign, or the approach of the other motor vehicle towards the intersection, at which she was required to stop, at any time prior to the collision.
The applicant was a student at James Cook University in North Queensland where she was taking a course in nursing. She had a good character. She had never been convicted of any criminal offences, nor for that matter of any traffic offences.

The learned sentencing Judge observed that at the time of the offence she was 18 years of age. She was 19 at the time of sentence. It was conceded by the Crown that the applicant had an excellent background and that prior to this collision on the day in question she had driven safely. The sentencing Judge said that he was satisfied that her driving did not involve recklessness and that he regarded her offence as the result of momentary inattention. It was shown that the applicant was very remorseful and the learned sentencing Judge observed:

"No sentence I impose can ever compensate for those who have died. I can only sentence you on the basis of the criminality of your conduct".

The learned sentencing Judge then imposed a fine of $1,500 and in default of payment imprisonment for six months. He disqualified her from holding or obtaining a driver's licence for a period of three years and ordered that the conviction for the offence be recorded against her.

On behalf of the applicant it was contended that having regard to her background and the fact that the offence was due to momentary inattention, it was manifestly excessive to record a conviction against her. The applicant of course has a right to apply for a variation of the period of disqualification from holding a driving licence within the period of three years' disqualification imposed upon her. Little complaint was made concerning the size of the fine imposed.

In our view, having regard in particular to the two deaths that resulted from the applicant's dangerous driving, it cannot be said that the recording of the conviction against the applicant imposed a manifestly excessive sentence upon her. The conviction recorded is based upon momentary inattention while driving a motor vehicle leading to the death of two people; it casts no slur upon the applicant's honesty or morality and it was not shown that it would impede her progress through the nursing profession to gain entry to which she is presently studying.

In our view, the application for leave to appeal should be

dismissed.