R v Welch and Attorney-General of Queensland

[1996] QCA 165

IN THE COURT OF APPEAL [1996] QCA 165

SUPREME COURT OF QUEENSLAND

C.A. No 64 of 1996

Brisbane

[R v. Welch]

THE QUEEN
v.
STEVEN MARCUS WELCH

(Respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

Fitzgerald P
Williams J

Byrne J

Judgment delivered 31/05/1996
Judgment of the Court

THE COURT ALLOWS THE APPEAL, SETS ASIDE THE SENTENCE IMPOSED BELOW, SENTENCES THE RESPONDENT TO A TERM OF IMPRISONMENT OF ONE YEAR TO BE SERVED BY WAY OF AN INTENSIVE CORRECTION ORDER, IMPOSES A FINE OF $500, AND FURTHER DISQUALIFIES THE RESPONDENT FROM HOLDING OR OBTAINING A DRIVER'S LICENCE FOR A PERIOD OF FIVE YEARS.

CATCHWORDS:	CRIMINAL - APPEAL AGAINST SENTENCE. Dangerous driving causing death - previous driving history - mitigating circumstances - partially completed community service order - regularly employed since sentencing - imprisonment would contribute to the grief suffered by victim's family.
R. v. Shedlock; Attorney-General	of Queensland (C.A. 60 of 1996)

R. v. Nunn (1996) Crim. L.R. 210

R. v. Palframan; Attorney-General of Queensland (C.A. No 75 of

1996, j udgment delivered 14 May 1996)

S. 20 Traffic Act 1949

Counsel:	Mr MJ Byrne QC for the appellant Mr C Reid for the respondent
Solicitors:	Director Public Prosecutions for the appellant Baker Johnson Solicitors for the respondent

Hearing Date: 15 May 1996

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 31st day of May 1996.

The Attorney-General of Queensland appeals against the sentence imposed on the respondent after he pleaded guilty to a charge of dangerous driving causing death. The learned judge of District Courts recorded a conviction, fined the respondent $4,000, placed him on probation for a period of twelve months (with a special condition that he should undertake a defensive driving course), ordered him to perform 240 hours community service, and ordered that he be disqualified from holding or obtaining a driving licence for a period of three years.

At the outset it is worth noting the following dates:

(i)The offence occurred on 2 July 1994.

(ii)Proceedings with respect to the charge were initiated by

summons served June 1995.

(iii)The committal hearing took place on 26 October 1995.
(iv)The respondent was sentenced on 9 February 1996.
(v)The appeal was heard on 15 May 1996.

The circumstances relevant to the commission of the offence can be briefly stated. The respondent was born on 7 April 1973 and was thus 21 when the incident occurred. He was at his residence at Stafford at approximately 11.30pm when he received a telephone call from his cousin Paul Jacobson asking that he be picked up in the city and driven home. Jacobson was then residing with the respondent, and the respondent used Jacobson's Ford Laser sedan to drive to the city and back. The respondent's father accompanied him; at all material times he was travelling in the front passenger seat. The respondent picked up Jacobson and his girlfriend in the city. Jacobson had been drinking and did not drive; he and his girlfriend sat in the back seat. At the material time Jacobson was in the rear seat on the passenger side.

The respondent then drove towards Stafford and that took him along Raymont Road, Alderley. It was stated to the sentencing judge that he was not very familiar with that road as he had only driven along it once before and then in the opposite direction. There are number of crests in Raymont Road with short dips between them; they are apparently locally referred to as "camels' humps". The vehicle being driven by the respondent came over the last of those humps at speed, skidded sideways, collided with a parked Nissan sedan, and then spun a further 80 metres. It was the rear passenger side door which came into contact with the Nissan, and as a result of the impact Jacobson received fatal injuries. At the scene the respondent indicated to investigating police officers that he was travelling at about 80 kilometres per hour.

The police investigations provided evidence that the speed of the Ford Laser was at least 90 kilometres per hour and probably higher. The whole of the roadway in question was within a 60 kilometre per hour speed zone.
There was no suggestion of the respondent being affected by alcohol at the material time.

The prosecutor submitted to the sentencing judge that this was a case of deliberate dangerous driving, though at the lower end of the scale. The learned sentencing judge was not persuaded that that was so. She was also not satisfied that the respondent was "speeding for an appreciably long time". In so concluding she was influenced by the fact that others in the car, including the respondent's father, were not alerted to any excessive speed or other indicia of dangerous driving prior to the collision occurring.

The learned sentencing judge was also influenced by the
fact that Jacobson was the respondent's cousin and best friend.
In her view it was in the respondent's favour that he had not
put Jacobson's mother, the respondent's aunt, to the ordeal of a
trial. There was what the learned sentencing judge described as
a "very clear and very moving letter" from Jacobson's mother
tendered as an exhibit. In that letter she asked that the
respondent not be sent to prison, saying that to do so would add
to the many difficulties that her family was suffering. The
learned sentencing judge concluded that Jacobson's mother
believed that the tragedy of his death could be eased for her if
the respondent was not imprisoned. That was a matter that

significantly affected the decision not to impose a custodial

sentence.
There are aspects of the respondent's driving at the time in question which justify the description deliberately dangerous. However, given the findings of the sentencing judge - in particular the fact that the respondent was not all that familiar with the particular road features - the manner of driving can properly be regarded as being at the bottom end of the scale of driving so described.

It is the respondent's driving history, both prior to the incident and between the incident and sentence, which calls for a consideration of a more severe penalty. The respondent had no previous criminal history. However, his driver's licence had been cancelled in January 1994 consequent upon the accumulation of demerit points for, inter alia, four major speeding offences and disobedience to a red traffic signal. His licence had been restored in April 1994 and in the next month he had committed the offence of exceeding the speed limit by 30 kilometres an hour or more. As noted above this offence was committed on 2 July 1994. The next offence was speeding (exceed limit by between 30 and 44 kilometres per hour) in April 1995. On 16 May 1995 he drove a motor vehicle whilst his blood alcohol concentration was .08 and on 9 June 1995 he was fined for that offence and disqualified from holding or obtaining a driver's licence for a period of three months. On the day before he appeared in court to face that charge he was caught speeding, exceeding the limit by between 15 and 30 kilometres per hour. He committed a similar offence on 4 October 1995. That latter offence was some two weeks prior to his committal proceedings for this offence.

But it must be said that apart from that bad driving history the respondent has been of good character (as is evidenced by a number of references tendered before the sentencing judge) and he has had secure employment in the automotive repair industry.

This court was informed that he had completed 53½ hours community service since being sentenced, and has also paid $500 of the fine imposed. It would appear that he has adjusted satisfactorily to the community based orders originally imposed on him.

In R. v. Shedlock; Attorney-General of Queensland (C.A. 60 of 1996), an appeal from the same sentencing judge and heard on the same day as this appeal, Williams J had occasion to review a number of recent authorities dealing with the appropriate penalty for dangerous driving causing death. It is not necessary to repeat that review in these reasons. The cases there considered indicate that a custodial sentence could well have been imposed for an offence such as this, particularly bearing in mind the respondent's traffic history. However (as is demonstrated by R. v. Brown; Attorney-General (1994) 2 Qd. R. 182) the failure to impose such a sentence was not demonstrative of error.

In this case it appears that the learned sentencing judge gave great weight to the fact that the deceased was the respondent's cousin, and to the deceased's mother view that a non-custodial sentence would be preferable from the family point of view.

Counsel for the appellant submitted that the opinions of a surviving member of the deceased's family about the appropriate level of sentence did not provide any sound basis for reassessing a sentence. In support of that proposition reliance was placed on a decision of the Court of Appeal (Criminal Division) in R. v. Nunn (1996) Crim. L.R. 210. However, as counsel for the respondent pointed out, that proposition is found in a lengthy passage all of which should be considered in a case such as this. In the circumstances it is worth quoting the passage in full:

"The Court had been supplied with statements from the mother of the deceased and one of his sisters, who had attended the hearing of the appeal. The Court was moved by the sentiments expressed by the mother and the sister of the deceased; it was an elementary principle that the damaging and distressing effects of a crime on the victim represent an important factor in the sentencing decision, and those consequences might include the anguish and emotional suffering of the victim, or in the case of a death, his surviving close family. The opinions of the victim or the surviving member of his family about the appropriate level of sentence did not provide any sound basis for reassessing a sentence. If the victim felt utterly merciful towards the criminal, as some did, the crime had still been committed and must be punished as it deserved. If the victim was obsessed with vengeance, as sometimes happened, the punishment could not be made longer than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely different ways, leading to improper and unfair disparity. If carried to its logical conclusion, the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death to play a part in the sentencing process which many would find painful and distasteful. This was very far from the court being kept properly informed of the anguish and suffering inflicted on the victim. In the present case the court was concerned not with the judgment of the deceased's mother and sister about the level of sentence imposed on the applicant, but with the clear evidence that the sentence by its very length was adding to the grief and anxiety which they were suffering consequent upon the death of the deceased. These adverse consequences of the sentence could not be disregarded. The sentence would be reduced as far as it could, in mercy to them, consistent with the court's continuing public duty to impose appropriate sentences for those who cause death by driving dangerously under the influence of alcohol." (210- 211)

That whole passage was not the subject of detailed submissions from counsel and this is not the appropriate case in which to determine the extent to which the approach therein endorsed should be adopted in this jurisdiction. We are now in an era where courts on sentence are required to have regard to the impact of a crime upon the victims. (cf. Criminal Offence Victims Act 1995). Here it is appropriate to have regard to the deceased's mother's statement as a victim impact statement. The adverse consequences of a custodial sentence, namely the aggravation of the grief and anxiety she was suffering as a result of the death of the deceased, could not be disregarded. In an appropriate case the court may have regard to the wishes of the deceased's family; indeed this court referred to such views as being of some relevance in R. v. Palframan; Attorney- General of Queensland (C.A. No 75 of 1996, judgment delivered 14 May 1996).

Whilst a custodial sentence could well have been imposed here, the overall circumstances of the case, including the matters in mitigation which have been referred to, justified no more than imprisonment for a short period of time. The sentence imposed was manifestly inadequate but it would be unfair to the respondent to put him in prison now for a few months, given that some two years has elapsed since the offence was committed and he has been in regular employment throughout that period.

In consequence the court is of the view that the appropriate sentence in this case is a sentence of imprisonment by way of intensive correction order pursuant to Part 6 of the Penalties and Sentences Act 1992. We would also order that there be a fine of $500, the amount of which having already been paid. Given the bad driving history the respondent should be disqualified from holding or obtaining a driver's licence for a period of five years.

The court allows the appeal, sets aside the sentence imposed below, sentences the respondent to a term of imprisonment of one year to be served by way of an intensive correction order, imposes a fine of $500, and further disqualifies the respondent from holding or obtaining a driver's licence for a period of five years.