R v Vessey; ex parte A-G (Qld)

[1996] QCA 11

IN THE COURT OF APPEAL	[1996] QCA 011
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No.453 of 1995
[R. v. Vessey]

THE QUEEN

v.

RONALD JAMES VESSEY Respondent

ATTORNEY-GENERAL OF QUEENSLAND Appellant

Fitzgerald P. Davies J.A. Mackenzie J.

Judgment delivered 16/2/1996
Judgment of the Court

APPEAL AGAINST SENTENCE ALLOWED. THE SENTENCE OF 6 AND A HALF YEARS WITH A RECOMMENDATION FOR CONSIDERATION FOR PAROLE AFTER 26 MONTHS SHOULD BE SET ASIDE AND A SENTENCE OF 9 YEARS IMPRISONMENT WITH A RECOMMENDATION THAT THE RESPONDENT BE CONSIDERED FOR RELEASE ON PAROLE AFTER 4 YEARS SHOULD BE IMPOSED.

CATCHWORDS: CRIMINAL LAW - SENTENCE - Attorney-General appeal -Dangerous Driving Causing Death - Respondent severely intoxicated -History of DUI offences - History of licence disqualifications - disqualified at time of offence - 6½ years imprisonment with recommendation for parole after 26 months - whether manifestly inadequate.

Counsel:	Mr M. Byrne for the appellant Mr S. Hamlyn-Harris for the respondent
Solicitors:	Director of Prosecutions for the appellant Legal Aid Office for the respondent
Hearing date:	31 January 1996

JUDGMENT OF THE COURT

Judgment delivered 16 February 1996

The applicant pleaded guilty to dangerous driving causing death. He was sentenced to 6 and a half years imprisonment with a recommendation that he be considered for parole after 26 months. The Attorney-General has appealed against this sentence on the ground that it is manifestly inadequate.

The offence had very serious features. The applicant was under the influence of alcohol at the time. A sample of urine taken one and a half hours after the collision demonstrated that at the time the sample was taken the applicant had at least a concentration of .2 per cent alcohol in his blood.

The vehicle driven by the applicant had been observed making a U-turn sometime before the collision and was observed to travel on the wrong side of the road for about 150 metres causing another vehicle to take evasive action. After it turned a corner into the street where the fatal collision occurred the left-hand indicator remained on, the vehicle was driven to the intersection where the collision occurred and, without any sign that the brakes had been applied, was driven through a "give way" sign colliding with the victim's vehicle in the middle of the driver's side and overturning it. It was not suggested that the speed of the appellant's vehicle had of itself been excessive prior to the collision. The victim was a well respected school teacher whose death after several days on a life support system caused significant distress to his parents and the community of the school at which he taught.

A further aggravating aspect of the applicant's conduct is that he has a bad history of driving under the influence of liquor with high blood alcohol concentrations. On each occasion he was disqualified from driving (including 2 absolute disqualifications). He was disqualified for a period of 15 months as a result of the last of these offences at the time of the offence. On two of the occasions he was also convicted in the Magistrate's Court of dangerous driving.

The behaviour of the vehicle demonstrated that the applicant was incapable of controlling the vehicle in a way that was not a danger to others and the facts that he drove at all having regard to his condition and that he was not licensed to drive demonstrates a failure to heed adequate warnings of the consequences of driving under the influence of liquor and contempt for the order of disqualification.

Before the sentencing judge and in this Court, the Crown submitted that a head sentence of about 10 years was appropriate having regard to the high concentration of alcohol, the previous offences and the circumstances of the driving. It was submitted that these factors placed the case into the most serious category of offence. It was submitted that as the maximum was 14 years imprisonment a sentence of 10 years was appropriate. It was conceded that the applicant had manifestly cooperated with the authorities and that an early recommendation for parole was appropriate, although qualified by the circumstance that conviction was all but inevitable. The sentencing judge felt constrained by the absence of precedent for sentences beyond the range of 5 to 6 years for serious cases of dangerous driving causing death. He was referred to R. v. Burton (CA 91 of 1983) where 10 years had been imposed for an offence of manslaughter. He expressed the view that that case which involved an intoxicated driver driving a semi-trailer for many kilometres in an aggressive and dangerous manner before going through a red light at a major intersection and killing the occupants of another vehicle was worse than the present case. While that might be so the present case is a very bad example of dangerous driving causing death. The respondent is a mature aged man with a persistent history of driving under the influence of liquor and dangerous driving. On the evening of the collision he was demonstrably incapable of exercising proper control over the vehicle but nonetheless drove it, with tragic consequences.

In Sheppard (CA No 391 of 1994) the principle that judges should not always consider themselves entirely fettered by sentences which have been previously imposed or a range of sentences for a particular offence, but should impose sentences which are appropriate in the circumstances of the particular case, was stated in various ways by each of the judges. The need to avoid the perception that a particular offender has been treated more severely than like offenders because his case has been used to effect a substantial raising of the general level of sentences was also adverted to. However, the need to give effect to increased maximum penalties prescribed by the legislature was also recognised.

The sentencing judge clearly gave detailed consideration to the question of appropriate sentence including discussion of authority. However in the particular circumstances of the case, in the end he gave undue weight to what was urged upon him as an established range for serious offences of dangerous driving causing death. Having regard to the bad features of the case the sentencing discretion miscarried in this regard. The appeal should be allowed. The sentence of 6 and a half years with a recommendation for consideration for parole after 26 months should be set aside and a sentence of 9 years imprisonment with a recommendation that the respondent be considered for release on parole after 4 years should be imposed.