R v Shedlock and Attorney-General of Queensland

[1996] QCA 164

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND [1996] QCA 164

C.A. No. 60 of 1996

Brisbane

[R. v. Shedlock]

THE QUEEN
v.
ANDRE CLIVE LEASHON CECIL SHEDLOCK

Respondent

ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Fitzgerald P
Williams J

Byrne J

Judgment delivered 31/05/1996

Separate reasons of Fitzgerald P and Byrne J agreeing as to the order. Williams J dissenting.

APPEAL ALLOWED. VARY THE ORDER TO INCREASE THE FINE TO $10,000.00 TO BE PAID WITHIN THREE YEARS FROM THE DATE OF ORIGINAL ORDER AND TO ADD DISQUALIFICATION FROM OBTAINING OR HOLDING A DRIVER'S LICENCE FOR 5 YEARS. SENTENCE TO OTHERWISE STAND.

CATCHWORDS:  CRIMINAL - APPEAL AGAINST SENTENCE. Dangerous driving causing grievous bodily harm - level of intoxication - serious example of dangerous driving - appalling traffic history - mitigating circumstances - plea of guilt - resettled into community - permanently employed - performed part of penalty imposed.

S. 20 Traffic Act 1949

Counsel:  Mr M Byrne QC for appellant Mr M Griffin for respondent

Solicitors: Qld Director of Public Prosecutions for the

appellent

Legal Aid Office for the respondent

Hearing Date: 15 May 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 31/05/96

The circumstances giving rise to this appeal are set out in the judgment of

Williams J.

For the reasons given by his Honour, the sentence imposed on the respondent was manifestly inadequate and orders such as he proposes might appropriately have been made by the sentencing Judge. However, I do not agree that those orders are now called for.

This is an area of the law in which unintended consequences play a part in the sentencing process; in this instance, the injury suffered by the victim of the respondent’s driving was serious but by no means as bad as commonly occurs.

More importantly, the respondent pleaded guilty, was returned into the community and to his domestic and work patterns by her Honour after awaiting his fate for a considerable period, has performed a significant part of the penalty imposed and so far complied with all obligations imposed on him. In the circumstances, I would not now send him to jail if some reasonable alternative can be found.

While the penalty must be increased and that cannot be done by increasing the period of imprisonment to be served by intensive correction in the community (see Part 6 of the Penalties and Sentences Act 1992), the fine imposed by the sentencing Judge can be increased (see s. 328A of the Code and s. 5 and Part 4 of the Penalties and Sentences Act). Indeed, as I read the latter Act, a fine of more than $300,000.00 could be ordered.

The respondent is working hard as a chef and making a reasonable salary. He has already paid a significant amount of compensation and has more, plus a fine, still to pay. That will take time, and the longer it takes the more the gravity of his misconduct will be brought home to him. On the other hand, sending him to jail belatedly will be unlikely to have any social benefit but will certainly cost him his job and increase his anger and propensity to reoffend. In all the circumstances, I consider it preferable to increase the fine to $10,000.00, which I would allow the respondent an additional 12 months to pay. It was not disputed that he should be disqualified from obtaining or holding a driver’s licence for 5 years.

I would therefore allow the appeal, but only to the extent indicated. The sentence should otherwise not be disturbed.

REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered the 31st day of May 1996.

This is an appeal by the Attorney-General of Queensland against the sentence imposed on the respondent consequent upon his pleading guilty to a charge that on 29 September 1994 he drove a motor vehicle dangerously and thereby caused grievous bodily harm. It was alleged as a circumstance of aggravation that at the relevant time and place the concentration of alcohol in his blood equalled or exceeded 150 milligrams of alcohol per 100 millilitres of blood. After hearing submissions the learned District Court judge imposed the following sentence:

(a)Imprisonment for one year to be served by way of an intensive correction order, including a requirement that the respondent undergo such medical, psychological, psychiatric and other examination, treatment, counselling and advice as may reasonably be required to assist in overcoming the respondent's disposition towards anger or his predilection for alcohol;
(b)It was further made a term of the intensive correctional order that the respondent pay compensation in the sum of $13,639 to the Registrar of the District Court at Brisbane, such compensation to be paid within one year;

(c)A fine of $4,000 to be paid within two years; pleaded guilty were a particularly serious example of dangerous driving. For a period of at least 20 minutes the respondent drove a Nissan utility around inner city streets in a highly erratic and dangerous manner. At 5.40am on the day in question it was seen travelling along Charlotte Street with the passenger door wide open. The vehicle turned left into George Street and left again into Mary Street; the door remained open throughout.

(d)A conviction was recorded.
The learned sentencing judge did not make any specific
order disqualifying the respondent from holding or obtaining a
driver's licence. In consequence it would appear that there was
an automatic suspension for a period calculated in accordance
with the provisions of s. 20 of the Traffic Act 1949. The
respondent was sentenced on 16 February 1996, and the court was
told that as at the date of hearing of the appeal (15 May 1996)
the respondent was the holder of a provisional driver's licence.

The vehicle then travelled through a red light at the intersection of Charlotte and Albert Streets causing another vehicle to take evasive action to avoid a collision. The utility then continued along Charlotte Street before turning left into George Street again travelling through a red light. Subsequently the vehicle was seen to travel along Charlotte Street again and then execute a right-hand turn into George Street; the turn was from the far left lane of Charlotte Street into the far right lane of George Street. The vehicle accelerated towards the intersection of George and Elizabeth Streets and when it was approximately 50 metres from the intersection the traffic light facing it turned red. The vehicle continued into the intersection without any application of brakes and collided with a motor vehicle being driven by Kerry John Heilbronn. That collision occurred at 6.00am.

Heilbronn suffered a serious, permanent injury to his hand.
He sustained a "comminuted displaced impacted intra-articular
fracture" of the middle knuckle of the right middle finger.
Reconstruction of that joint under general anaesthetic with pins

and wire was required. The joint will need to be fused or

replaced within five years.

Testing established that the respondent's blood alcohol

What makes the position worse for the respondent is that he
had what could only be described as an appalling traffic
history. There were some 20 breaches over a 10 year period, and
his provisional driver's licence has been cancelled five times
and his learner's permit once. Included in the traffic history
are two convictions for driving whilst unlicensed, eight
offences of speeding, and three offences of disobeying a traffic
sign or signal. At the time of the present offence he held only
a provisional licence. His other criminal history prior to the
date of the offence was irrelevant, but it is not without
significance that whilst on bail for the present offence he
committed other offences. Most significantly in August 1995 he
pleaded guilty to possession of a dangerous drug and being in
possession of a pipe used in connection with smoking a dangerous
drug. He was dealt with in the Magistrates Court; no conviction
was recorded and he was fined $500.
In her sentencing remarks the learned District Court judge
described the respondent's driving as "deliberately reckless"
which was contributed to by the alcohol he had consumed. There
were as she said "repeated instances of deliberately reckless
driving" during the 20 minute time span. She referred to his
past traffic history as "appalling". But she then went on to
say that he had shown remorse because he had "accepted your
responsibility for the accident in an honest and straight
forward way". That was a reference to the fact that by the date
of sentence the respondent had paid about $15,000 of the $27,000
damage bill occasioned to Heilbronn's vehicle. That was a
proper matter to take into account, though it must be said that
the respondent was under a legal obligation to pay for the
damage he had caused. The learned sentencing judge rejected
submissions by the prosecutor to the effect that the
respondent's abuse of Heilbronn at the accident scene and his
belated plea of guilty indicated little or no genuine remorse.
In the circumstances it would appear that the learned sentencing
judge gave greater weight to the evidence of remorse than was
appropriate in all of the circumstances.
She also noted in her sentencing remarks, presumably as a
mitigating factor, that the respondent had not driven since the
accident and "that is for some considerable period". But that
is hardly a mitigating factor when one bears in mind the
respondent's appalling traffic record, and the fact that a
conviction for the offence carried an automatic period of
disqualification from holding or obtaining a driver's licence.
Finally, on the issue of mitigation, the learned sentencing
judge referred to the fact that the respondent had sought and
received psychiatric help and counselling for anger management
and had since the incident attended Alcoholic Anonymous.
In the course of argument reference was made to appellate
court decisions in comparable cases. Particular reference was
directed to R. v. Conquest; Attorney-General (C.A. No 395 of
1995, judgment delivered 19 December 1995), R. v. Woods;
Attorney-General (C.A. No 368 of 1990, judgment delivered
4 March 1991), and R. v. de Rooy; Attorney General (C.A. 105 of
1991, judgment delivered 1 August 1991). In addition reference
could be made to the recent decisions of this court in R. v.
McAnelly; Attorney-General (C.A. 408 of 1995, judgment delivered
10 May 1996), R. v. Gardiner (C.A. No 452 of 1995, judgment
delivered 13 February 1996), and R. v. Gartside (C.A. No 374 of
1994, judgment delivered 15 November 1994). Given the
respondent's traffic history, the nature of his driving, the
severe injury caused to Heilbronn, the respondent's level of
intoxication, and the sentences in comparable cases, the
sentence imposed here was, in my view, clearly inadequate.
Particularly given the appalling traffic history, the level of
intoxication and the reckless nature of the driving a sentence
of imprisonment was called for. Woods was a case of dangerous
driving causing death. The respondent was aged 19 years and had
no significant prior criminal history. Alcohol was not involved
in the offence. Because the driving was described as reckless
the court on appeal held that a sentence of imprisonment should
be substituted for the 240 hours community service imposed by
the sentencing judge. The court imposed a sentence of two
years' imprisonment with a recommendation that he be eligible
for parole after serving eight months. In that case there was a
three year disqualification from holding or obtaining a driver's
licence. de Rooy can also be regarded as a comparable case.
There the charge was dangerous driving causing grievous bodily
harm. The respondent there drove through a stop sign and had a
blood alcohol reading of .15. He was aged 26 and had no
previous convictions or previous traffic offences. The order
for community service was set aside and he was sentenced to
imprisonment for three years with a recommendation that he be
eligible for parole after one year. In that case there was a
disqualification from holding or obtaining a driver's licence
for a period of four years. McAnelly was another case of
dangerous driving causing death. In that case there was a
substantial course of dangerous driving which ended with the
respondent's vehicle being on its incorrect side of the road at
the material time. When the offence was committed he was on
bail for driving whilst disqualified, such disqualification
arising from a drink driving conviction. He had other drink
driving convictions and other criminal history. There a
sentence of four years' imprisonment with a recommendation that
he be eligible for parole after 18 months was not disturbed.
The period of disqualification in that case was five years.
Imprisonment was imposed in both Gardiner and Gartside (in each
case the offence was dangerous causing death) though in neither
case was alcohol involved and in the latter the offender was a
young man with no criminal or traffic history.
The court was told that in this case the respondent has
been attending for 12 hours per week pursuant to the intensive
correction order and during that time has received both
counselling and been obliged to do community service. He has
now been subject to the intensive correction order for three
months and he must receive credit for that.
The fine of $4,000 has not been paid. Adding together
payments before and after the date of sentence it appears the
respondent has now paid some $22,500 compensation for damage to
the vehicle, but as noted above that is an obligation he had
independent of the question of sentence.
Counsel for the respondent strongly submitted that even if
this court considered some imprisonment should have been imposed
originally it would be inappropriate to impose such a sentence
now. He pointed to the fact that the respondent now had a
significant job as a chef and was working six days a week
earning a reasonable salary. He also emphasised aspects of the
respondent's upbringing which had been highlighted in a
psychological report tendered to the sentencing judge. He is
now aged 26.

concentration at the time was 0.165%. that the sentence imposed was manifestly inadequate and inappropriate having regard to all the circumstances of the case. Bearing in mind the order which has been in place for the last three months, the plea of guilty, and the relevant matters I have referred to, I would set aside the sentence imposed in the District Court and in lieu thereof order that the respondent be imprisoned for a period of two and a half years with a recommendation that he be eligible for parole after serving eight months of that sentence. I would also disqualify him from holding or obtaining a driver's licence for a period of five years.

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered 31/05/1996

The respondent's driving was a bad example of an aggravated offence carrying a maximum sentence of 14 years imprisonment. He has a frightening traffic history. And his victim is permanently injured. These and other circumstances are mentioned by Williams J. I agree that, for the reasons his Honour gives, the sentence was manifestly inadequate.

If the resource savings resulting from the guilty plea were to be reflected in a recommendation for earlier than usual parole rather than a reduced head sentence, in my opinion a head sentence of not less than 2½ years imprisonment should have been imposed, coupled with a disqualification from holding or obtaining a driver's licence for 5 years. But the question now is not the same as that presented to the sentencing judge. We must also consider whether the respondent should be taken from the community to which he has been returned by the judge, and incarcerated.

The reasons of the other members of the Court show that this issue is finely balanced. With hesitation, I think that the preferable course is to increase the fine and impose a 5 year disqualification. I agree generally with the President's reasons for that conclusion. I also agree with the orders the President proposes.