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

[2002] QCA 501

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wilde; ex parte A-G (Qld) [2002] QCA 501

PARTIES:

R
v
WILDE, Sandra Jaye
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 283 of 2002
DC No 2062 of 2002
DC No 2104 of 2002
DC No 2171 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2002

JUDGES:

de Jersey CJ, Jerrard JA and Mullins J
Judgment of the Court

ORDERS:

1.   That the sentences imposed in the District Court on 13 August 2002 be varied, by substituting, for the term of two years four months imprisonment imposed for count one on indictment 2171/02, imprisonment for five years; and by varying the recommendation for consideration of eligibility for post-prison community based release, to provide for eligibility after the serving of three years imprisonment in lieu of 18 months imprisonment, that is, on 13 August 2005 (three years from the date of sentencing in the District Court). 

2.   In all other respects the orders made in the District Court on 13 August 2002 remain unchanged.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRIVING OFFENCES – CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM – GENERALLY – where Attorney-General appeals against sentence – where dangerous operation of a vehicle caused death – where sentences cumulative upon term for unrelated previous offending – whether manifest inadequacy in the sentence imposed – consideration of significance to sentence of flight from scene – whether rendering sentence cumulative warranted substantial reduction of sentence otherwise to be imposed


Penalties and Sentences Act 1992 (Qld), s 9

R v Conquest; ex parte A-G (Qld) [1995] QCA 567; CA No 395 of 1995, 19 December 1995, considered
R v Kiripatea [1991] 2 Qd R 686, applied
R v McAnelly; ex parte A-G (Qld) [1996] QCA 126; CA No 375 of 1995, 10 May 1996, considered
R v Melano; ex parte A-G (Qld) [1995] 2 Qd R 186, applied
R v Richards [1981] 2 NSWLR 464, followed

COUNSEL:

C W Heaton for the appellant
R V Hanson QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Qld) for the appellant
Legal Aid Queensland for the respondent

1. THE COURT:  The Honourable the Attorney-General appeals against an effective three year ten months term of imprisonment imposed on the respondent for various offences.  The ground is that the penalty is manifestly inadequate.

1. The respondent pleaded guilty in the District Court to a series of charges contained in three indictments.

1. The first indictment contained charges of aggravated unlawful use of a motor vehicle, receiving, and burglary and stealing.  The respondent was found on 20 June 2001 in a vehicle unlawfully taken from a shopping centre car park on 19 June 2001.  The vehicle contained property stolen previously from premises burgled earlier on 20 June 2001 and at which that stolen car had been seen.  For burglary and stealing, the respondent was sentenced to 18 months imprisonment, with another 15 month concurrent term for the unlawful use of the motor vehicle and receiving.

1. The second indictment charged receiving.  Following the events described below, the police located a stolen backpack at the respondent’s residence.  She was given 15 months imprisonment on this count, to be served concurrently with the terms of imprisonment imposed on the third indictment.

1. The third indictment charged dangerous operation of a motor vehicle causing death, for which she was imprisoned for two years four months, with a concurrent 12 months term for negligent act causing harm and a concurrent 18 months for unlawful use of a motor vehicle.  The effective two year four month term in respect of this third indictment is to be served cumulatively upon the 18 months effective sentence on the first indictment.  The learned sentencing judge arrived at the two years four months sentence by deducting eight months from three years.  The eight months represented the aggregate of periods for which the respondent had been in custody on one or other of the three indictments together with 38 days for an assault charge which was not proceeded with.

1. The consequence is that the respondent is presently subject to imprisonment for an overall term of three years ten months.  The learned judge recommended that the respondent be considered for parole after serving 18 months, and disqualified her absolutely from obtaining or holding a driver’s licence.

1. We set out now the circumstances of the most serious of the offences, dangerous operation of a motor vehicle causing death.

1. At about 6.15 am on 12 January 2002, she was, as sole occupant, driving a stolen vehicle in fine weather in Bermuda Street, Mermaid Waters, which is a four lane road with two lanes in each direction.  The vehicle being driven by the respondent collided with a group of cyclists, killing Luke Harrop and injuring Craig O’Connell.  The cyclists were travelling in a 1.9 metre wide lane adjacent to the vehicle lanes, and separated from them by a single unbroken line.

1. The respondent was seen to be driving erratically prior to the collision.  At an intersection controlled by lights 1,350 metres back, the respondent failed to move off promptly as the light changed to green.  She was fiddling about on the front passenger side floor of the car or seat.  When she did move off, she overtook a Mr Alcock’s vehicle and cut in front of him without indicating.  The respondent was still looking down and not attending to the road ahead.  Her vehicle swerved in and out of her lane.  She came to the vicinity of the group of cyclists.  Nearing the front riders, Mr Harrop and Mr O’Connell, the respondent’s vehicle straddled two lanes.  She then over-corrected to the left and struck the cyclists wholly within the cyclists’ lane.  Mr Harrop was catapulted 18 metres through the air and over a cement barrier.  The respondent did not apply her brakes before hitting Mr Harrop.  Her vehicle then skidded 8.6 metres before colliding with Mr O’Connell and catapulting him also about 18 metres from the point of impact.

1. Mr Harrop died as a result of the injuries he suffered in the collision.  Mr O’Connell suffered a fracture of the right heel bone and lacerations and abrasions.

1. The respondent stopped briefly following the collision, but did not leave her car.  Then she drove off.  Other motorists who had witnessed the collision followed her vehicle, attempting to have her stop.  She refused, travelling at excessive speeds and through a red light at an intersection.  She eventually stopped at Carrara.  Two of the witnesses approached her and endeavoured unsuccessfully to detain her.  She was verbally aggressive and left.

1. The police tracked the respondent down from papers contained in the vehicle, and made arrangements for her to surrender to the police on 13 January 2002.  She failed to do so.  She was eventually apprehended in Brisbane on 15 January 2002.

1. These circumstances preceding her apprehension, from the time of the offence, constituted a seriously aggravating feature in relation to penalty.  To state the obvious, first, her immediate flight meant she was not tested for the presence in her system of drugs or alcohol; second, she demonstrated a reprehensible concern to escape the consequences of her conduct; and third, there was callous disregard for the plight of the victims of that conduct.

1. Police inquiries in relation to the respondent’s mobile telephone indicated that she was on the phone almost constantly between 10.05 am on 11 January to the time of the collision on the 12^th , save for the period 10.43 pm on 11^th to 14 minutes past midnight on the 12^th.  The Crown contended before the Judge that assuming she slept for only that one and a half hours, she could not have been sufficiently alert responsibly to manage the vehicle in the early morning of the 12^th.

1. At the time of the driving offence, the respondent was on bail in respect of the charges contained in the first indictment, which demonstrates the brazenness of her disregard for the law. 

1. The respondent’s driver’s licence had been cancelled only two days before these events.  She was at the time aged 41 years.  She had a substantial criminal history dating back to 1976, covering offences committed in New Zealand, New South Wales and Queensland.  It includes many convictions for offences of dishonesty and drugs.  The respondent also had a bad traffic history, including many convictions for speeding, a conviction for careless driving, and a conviction for driving under the influence of liquor.  Her licence had four times been cancelled because of the accumulation of demerit points.

1. The learned judge took the view that it was not a case of momentary inattention, referring to “a course of erratic driving marked by reckless inattention and showing a selfish disregard for the safety of other road users”.  He also regarded as a significant feature, the “contemptible display of callous disregard for the two persons … injured”, pointing out that the respondent was under “a legal duty as well as a moral duty to remain at the scene”.  Those observations were undoubtedly justified.

1. The learned judge considered four years imprisonment an appropriate starting point in relation to the dangerous operation causing death conviction.  As will emerge, we consider that manifestly low.  It should have been six years.

1. His Honour then reduced that four years to three years because of his intention to require the term to be served cumulatively upon the imprisonment imposed on the first indictment.  We consider that to have been unwarranted, allowing for the reason why such terms are made cumulative.  These were discrete instances of serious offending, separated in time and nature, therefore warranting penalties imposed successively.  Where cumulative treatment is appropriate, then absent any co-called “crushing” effect, there should not be any such substantial reduction as occurred here.

1. His Honour then further reduced the three years by eight months as previously explained, which was justified.

1. The maximum penalty for this offence is seven years’ imprisonment.

1. The respondent pleaded guilty to the charges in respect of the events of 12 January 2002 on an ex officio indictment.  While she should therefore be given some credit in relation to penalty because she facilitated the administration of justice, it must be acknowledged that the respondent was in effect caught

   
   

   red-handed and faced a prospectively overwhelming Crown case.  Nevertheless some accommodation should be extended for the pleas.

1. Before the Judge, the Crown Prosecutor suggested a range of three to four years in respect of the dangerous operating causing death count.  That was far too low.  On appeal, counsel for the Attorney advanced a range of four to five years, to be served cumulatively upon the imprisonment for the first indictment.  That also was too low.  The appellant’s approach would produce a nominal head sentence of five and a half to six and a half years.  Allowing credit for the eight months pre-sentence custody and considering the totality principle, counsel reached five to five and a half years.  The pleas of guilty would then, it was submitted, justify a recommendation in relation to post-prison community based release after two to two and a half years.  Counsel for the respondent challenged this shift in ground, referring to Everett (1994) 74 A Crim R 241 and other cases. We believe nevertheless this sentence should have been five years, increased to six and one-half years with the cumulative term, with parole recommended after three years, a level substantially beyond the submission of counsel for the Attorney, but one to which the court should hold.

1. We mention R v McAnelly; ex parte A-G (Qld) [1996] QCA 126; CA No 375 of 1995 and R v Conquest; ex parte A-G (Qld) [1995] QCA 567; CA No 395 of 1995, to which we were referred. The Court of Appeal in McAnelly considered a four year sentence for comparable driving and comparable personal circumstances to be lenient, but declined to interfere, its being an Attorney’s appeal.  This respondent’s dreadfully callous flight from the scene substantially – in our view – aggravated her crime by contrast with McAnelly’s.  McAnelly was decided, it was also pointed out, prior to the legislative strengthening of s 9 of the Penalties and Sentences Act.  McAnelly would in this case suggest a starting point substantially higher than four years – we consider of the order of six years.  The gravity of this respondent’s immediate flight, in particular, should not be understated, and the court referred to the leniency of McAnelly’s four years with some emphasis.

1. Conquest, who was only 17 years old, was sentenced on an Attorney’s appeal to three years imprisonment for what was considered to be “reckless skylarking”, and so that case is immediately distinguishable.  But it is helpful nevertheless to note what McPherson JA and Thomas J said:

“The factors that would take a sentence further towards the maximum level would include the seriousness of the driving, callousness or attitude that falls in the murky area between recklessness and deliberate harm, the period for which the dangerous driving was sustained, the seriousness of the consequences to the victims, the seriousness of the offender’s criminal record (with particular emphasis upon his driving history and his attitude to fellow citizens) and whether the offender has little prospect of rehabilitation”.

None of those circumstances would in this case warrant the court’s taking any particularly moderate approach to the matter: they should have led the sentencing court to a high level. 

1. The learned judge noted the Court of Appeal has indicated that, with legislative changes which have occurred from time to time in particular, sentencing courts in relation to this crime should not consider themselves unduly fettered by previous trends.  The variety of circumstances confronting sentencing courts in cases like this means it can be especially difficult to translate the result in one case to another.  What is abundantly clear is that the community expects, and rightly expects, appropriately deterrent penalties, and they were not achieved here.

1. This was a case where the sentencing judge should have worked from a level approaching the maximum penalty of seven years.  The case approaches the category of the worst examples of the offence, when one fully acknowledges the aggregation of the respondent’s reckless inattention over a substantial distance, her reduced alertness through fatigue, her callous flight from the scene, her lengthy criminal and traffic history, her being unlicensed at the time, her then being on bail for other charges (cf R v Richards [1981] 2 NSWLR 464, 465, as to the need for “severely deterrent sentences (for those who) abuse their freedom on bail”), and her driving a stolen vehicle. While other cases have involved more sustained dangerous driving as such, it is the aggregation of all those many adverse features which put this case into a particularly serious category.

1. (Because the circumstances of the flight should be taken into account in respect of this offence, no further penalty should be imposed on the respondent for any related summary offence.)

1. We work from a starting point of six years’ imprisonment.  The six years should then be reduced, to allow for the eight months pre-sentence custody and the ‘totality’ principle in the context of cumulative terms, to five years, to which one and a half years would be added, producing the effective overall sentence of six years six months.  This could not reasonably be considered as “crushing” for offending of this gravity (R v Kiripatea [1991] 2 Qd R 686, 702).

1. To this point, no allowance would have been made for the pleas of guilty, insofar as they aided the administration of justice.  A large purpose of sentencing in this area is general deterrence.  The head sentence should remain without reduction in this case, as a signal that the courts react sternly to driving of this character with such consequences.  The appropriate way to take account of the plea of guilty is in relation to the parole recommendation, but in those overall circumstances, the accommodation should not be substantial.  In respect of that effective overall sentence of six and one-half years, parole should be recommended after three years.

1. This sentence would be at a much higher level than has been sought by counsel for the appellant.  This Court is not controlled by counsel’s submissions in that regard, although the court welcomes the submission of ranges and gives them careful consideration.  Having reached the view that the sentence imposed was plainly well outside the range of an appropriate sentencing discretion, and where the offender is already incarcerated, this court should substitute an appropriate sentence: R v Melano; ex parte A-G (Qld) [1995] 2 Qd R 186. The Crown contention as to level of penalty was much too lenient, bearing in mind the characteristics of the offending to which we earlier referred.

1. We have mentioned the difficulty of relying with precision on other cases in this area.  To the extent this result may involve any lifting of the range of penalty, it is warranted, and in accord with contemporary, reasonable community expectations.  It is, however, we consider, justified by comparison with McAnelly in particular.

1. The effect of this judgment would be that the present effective sentence, of three years ten months, would be increased to six and one-half years imprisonment, and eligibility for parole consideration would arise, not after 18 months as at present, but after three years.

1. We order that the sentences imposed in the District Court on 13 August 2002 be varied, by substituting, for the term of two years four months imprisonment imposed for count one on indictment 2171/02, imprisonment for five years; and by varying the recommendation for consideration of eligibility for post-prison community based release, to provide for eligibility after the serving of three years imprisonment in lieu of 18 months imprisonment, that is, on 13 August 2005 (three years from the date of sentencing in the District Court).  In all other respects the orders made in the District Court on 13 August 2002 should remain unchanged.