R v Wurzbacher

[1996] QCA 347

IN THE COURT OF APPEAL	[1996] QCA 347
SUPREME COURT OF QUEENSLAND	C.A. No 264 of 1996
Brisbane
Before	Fitzgerald P. Lee J. Fryberg J.

[R. v. Wurzbacher]

T H E Q U E E N

v.

PETER KLAUS DIETER WURZBACHER (Applicant)

FITZGERALD P.
LEE J.

FRYBERG J.

Judgment delivered 20/09/1996

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND LEE J., FRYBERG J.

DISSENTING

Application for leave to appeal against sentence granted.
Appeal against sentence allowed.
Sentence imposed below set aside , and in lieu order that the applicant be imprisoned for two
and a half years from 17 May 1996 with a recommendation that he be considered eligible for
release on parole after serving eight months of that sentence.
Order that the applicant be disqualified from holding or obtaining a driver’s licence for a

period of three years from 17 May 1996.

CATCHWORDS:	SENTENCE - dangerous driving causing griveous bodily harm - 24 year old applicant - affected by liquor - good work history - no prior criminal record of significance - both applicant and passenger suffered injuries as a result of the offence - passenger did not sustain permanent injury - applicant had leg amputated.
Queensland Criminal Code, s. 328A
Clauss (CA No. 42 of 1993, unreported, 16 August 1993) de Rooy (CCA No. 105 of 1991, unreported, 1 August 1991) Edwards (CA No. 430 of 1995, unreported, 31 January 1996) Gardiner (CA No. 452 of 1995, unreported, 13 February 1996) King (CA No. 516 of 1995, unreported, 20 March 1996) Martin (CCA No. 231 of 1990, unreported, 25 September 1990) McAnelly (CA No. 375 and 408 of 1995, unreported, 10 May 1996) Shedlock (CA No. 60 of 1996, unreported, 31 May 1996)
Counsel:	Applicant appeared on his own behalf B. Reilly for the Crown
Solicitors:	Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	11 September 1996

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND LEE J.

Judgment delivered 20/09/1996

The applicant has applied for leave to appeal against a sentence imposed in the District Court at Ipswich on 17 May 1996. The applicant was convicted on his own plea of dangerous driving causing grievous bodily harm while having a blood alcohol concentration equal to or exceeding 150 mg of alcohol per 100 ml of blood and was sentenced to imprisonment for four years with a recommendation that he be eligible for release on parole after serving 12 months of that sentence, and was disqualified from holding or obtaining a driver’s licence for a period of three years from the date on which he was sentenced.

The offence was committed on 17 October 1993, when the applicant was aged 24 years. Neither then nor at the time when he was convicted and sentenced did he have any relevant criminal history; he had three minor traffic offences for which he was fined late in 1988, when he was aged 19 years. The prosecutor informed the sentencing judge that he could not offer any explanation for the lengthy delay between the accident and the date when the applicant was charged; the applicant was at all times available to the police, either in hospital or in the Toogoolawah area where his family lived.

The offence occurred when the applicant and his step-brother were returning from an Oktoberfest celebration on 17 October 1993. They had travelled there on the applicant’s motorcycle and spent the day there. The applicant consumed a quantity of German beer and, at about 6.30 p.m., his step-brother indicated that he wanted to return home that evening as he had to work the next day. It was decided that the applicant’s step-brother would ride the motorcycle for at least part of the return journey and they set off with the applicant as passenger. After a period they stopped for a cigarette, and then continued with the applicant riding the motorcycle with his step-brother as passenger. The applicant’s step-brother was aware that the applicant had had too much to drink to be able to drive the motorcycle safely and, after a period of travel with the applicant riding the motorcycle, persisted in requests that the applicant stop and pull over to the side of the road. The applicant’s step-brother noticed the motorcycle weaving within its own lane and over the centre line into the lane used by oncoming traffic and travelling at an excessive speed (up to 130 km per hour) and, on occasions, the applicant almost lost control of the motorcycle as it rounded corners.

The applicant declined to pull over and, after proceeding further, crossed an unbroken white centre line to overtake a motor vehicle. It was struck by a motor vehicle travelling in the opposite direction and then collided with the rear of the motor vehicle which the applicant had been attempting to overtake.

The applicant and his passenger were conveyed to hospital where, about one and a half hours later, a specimen of the applicant’s blood was obtained and later analysed to reveal a blood alcohol concentration of 190 mg of alcohol per 100 ml of blood.

The applicant’s step-brother’s injuries included a compound fracture of the tibia and fibula, a slight fracture of the 12th vertebra of his back and a wound to his right knee which required 27 stitches. A skin grafting procedure was needed and he was in extreme pain for three weeks with no control over his right ankle. After he had been released from hospital, he had to return in October 1995 because the fracture to his right leg had not knitted correctly and he was then hospitalised for a further three weeks and four days. However, so far as the material before the Court indicates, he suffered no permanent injury or disability and is currently in full time employment.

The applicant was not so lucky. Apart from cuts, he received a badly broken leg which became infected in the course of treatment in hospital, leading to its amputation.

The applicant represented himself before this Court, and it is apparent that favourable references which he had received were justified. The referees ranged from his family doctor, who has known the applicant all his life and spoke of his unfortunate life, including the separation of his parents and the death of his mother, adding that the applicant “has always been the same pleasant, respectful and polite young man who has earned my respect for the way he has coped with his difficulties in view of the early tragedies in his life.” Employers also provided references, one describing him as “a hard working, honest young man who is well presented and eager to please” and another speaking of his “skills and dedication” and that he was “polite, honest and reliable at all times”.

All told, the applicant was in hospital for about ten months after the accident, with only brief interruptions. After he came out of hospital, he attempted to pursue employment in the timber industry but was unable to do so with his artificial leg, whereupon he rented premises at a hostel and worked as a gardener despite his disability, first on a voluntary basis and then in a paid position. The supervisor/manager of the hospital spoke of his popularity with residents and staff and that he was always “conscientious, prompt and pleasant”. His previous position is still available to him when he is released from prison.

The sentencing judge was provided with little assistance by counsel who appeared before him, who informed his Honour that they agreed that a head sentence of four years was appropriate and provided him with only one decision of this Court, which was of no real assistance and was understandably not relied upon by the prosecution on appeal since it involved a worse offence by an older man with a very bad criminal record who caused death by his dangerous driving and had previous convictions, including convictions for disqualified driving and driving while under the influence. The offence occurred when he was on bail in respect of offences of driving whilst disqualified. The victim’s husband suffered substantially as a result of his wife’s death. The person in question, McAnelly was uninjured. He pleaded guilty, but did not cooperate with the police and showed no remorse. He was sentenced to imprisonment for four years with a recommendation that he be eligible for release on parole after eight months. This Court refused to interfere on an appeal by the Attorney-General except to the extent of replacing the five year licence disqualification for an absolute disqualification: see McAnelly (C.A. No. 375 and 408 of 1995, unreported, 10 May 1996).

The prosecution placed four decisions before this Court, Martin (CCA No. 231 of 1990, unreported, 25 September 1990), de Rooy (CCA No. 105 of 1991, unreported, 1 August 1991); Clauss (CA No. 42 of 1993, unreported, 16 August 1993) and King (CA No. 516 of 1995, unreported, 20 March 1996). When closely compared with the present case, none of those decisions supported the sentence imposed upon the applicant; indeed, in only two of them, Clauss and Martin, were head sentences as severe as imprisonment for four years imposed. Clauss involved dangerous driving causing death by a person who was described as having an “appalling history of drinking while driving, an offence for which he has been convicted on five previous occasions”; further, his blood alcohol concentration at the time of the accident was 309 mg of alcohol per 100 ml of blood. The factual situation of the offences in Martin and other cases cited as well as the overall circumstances of the offenders were quite different to those in the present case.

Reference has been had to other recent cases in this Court, including Edwards (CA No. 430 of 1995, unreported, 31 January 1996), Gardiner (CA No. 452 of 1995, unreported, 13 February 1996) and Shedlock (CA No. 60 of 1996, unreported, 31 May 1996). Again, none of these cases involved a head sentence of imprisonment for four years.

The most useful of these cases for present purposes is Shedlock, in which an appeal by the Attorney-General was partially successful. The offender had an appalling traffic history over a ten year period and committed other serious offences whilst on bail for this offence. He had a blood alcohol reading of .165 and caused permanent serious injury to the victim. The dissenting judge, Williams J., would have imposed a heavier sentence than the other members of the Court, Fitzgerald P. and Byrne J.; even so, Williams J. would have sentenced the respondent in that case to a significantly lesser sentence than the applicant is serving, namely, imprisonment for two and a half years with a recommendation that he be eligible for parole after serving eight months of that sentence.

The applicant’s artificial limb will seriously affect him during his time in custody and in his personal life and employment opportunities for life. He worked a substantial unexmplained period whilst facing this charge during which he made substantial efforts to rehabilitate himself including some voluntary work, as the references demonstrate. He pleaded guilty at an early stage and showed genuine remorse. His step-brother suffered no permanent injury.

In our opinion, no heavier sentence than that in Shedlock should have been imposed in this case, and we would substitute such a sentence for that imposed by the sentencing judge.

Accordingly, we would grant the application, allow the appeal, set aside the sentence imposed below, and in lieu order that the applicant be imprisoned for two and a half years from 17 May 1996 with a recommendation that he be considered eligible for release on parole after serving eight months of that sentence. We would also order that the applicant be disqualified from holding or obtaining a driver’s licence for a period of three years from 17 May 1996.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 20th day of September, 1996

In this matter I have had the benefit of reading the joint judgment of the President and Lee J. in draft. It is unnecessary to repeat the facts therein set out.

Carl Wurzbacher was the applicant's step-brother. He was only 16 years of age. He lived with his parents at Rockhampton. He had just left school. He was due to commence employment on 18th October 1993. The applicant, who was then nearly 25, was visiting Rockhampton to see their father.

On 17th October, the applicant took Carl to the Oktoberfest at Emu Park on his motorcycle. It may be inferred that the applicant drank heavily throughout the day. It does not appear what if anything was consumed by Carl. They did not stay together all day, but reunited at about 5.30p.m. In the next 40 minutes Carl must have had adequate opportunity to observe the applicant. He thought the applicant was unsteady on his feet and was concerned about his ability to ride the motorcycle. For that reason he suggested that he ride the motorcycle and the applicant ride pillion, even though he did not hold a driving licence. The applicant agreed, and they travelled a little more than halfway back to Rockhampton in that way. Then the applicant asked Carl to pull over so that he could have a cigarette and relieve himself. This Carl did.

After the applicant had his cigarette he indicated to Carl that he would be all right to ride the motorcycle. Carl apparently showed some dissent, but the applicant said, "If you don't want to ride with me, you can walk home. Nothing is going to happen to us". As they were still some distance from Rockhampton, Carl got onto the pillion seat. After one or two kilometres the applicant was weaving within his lane. Carl became concerned, hit the applicant and told him to pull over. The applicant responded, "No, I am fine". Within less than a kilometre his driving again became erratic. On a winding section of road he was weaving and speeding, travelling almost onto the gravel shoulder. Carl became "very scared and concerned for his own safety". He yelled at the applicant to pull over but he would not do so. It must have been terrifying for Carl. Shortly afterwards, the collision occurred.

A blood sample taken from the applicant an hour and half later contained 194 mg of alcohol

per 100 ml of blood.

It was in my judgment a bad case of dangerous driving.

The case may be compared with R v Martin1. In that case, the car Martin was driving collided with a post, killing a passenger. Weather and road conditions at the time were good. The car was travelling in excess of 100 kms per hour in a 60 km per hour zone. Martin had an inferred blood alcohol level at the time of the accident of 0.171%. He suffered severe injuries himself and had to undergo major spinal surgery. He had no previous convictions, he pleaded guilty, he gave early notice of his intention so to plead, he had a good background and was well regarded. The deceased passenger was his fiancée and he was greatly distressed by her death. On the Attorney- General's appeal, McPherson J.A. said:

"Over the last several years the maximum penalty for offences of this kind has undergone substantial increase by legislation. As recently as 1989 the maximum was lifted from seven to 14 years' imprisonment, reflecting a corresponding level of community concern about offences of this kind. Before the most recent increase, the decisions on the subject, that is the sentences imposed, had been reviewed in this Court in The Queen v Calder in 1986. We have been referred to this and other later decisions which, speaking in general terms, tend to show a range of about three to five years' imprisonment with periods of disqualification in cases that are more or less comparable with this. Considering recent judicial and more particularly legislative trends, exemplified in the cases mentioned and specifically in the doubling of the maximum penalty to 14 years' imprisonment, I consider that the penalty imposed here of 18 months' imprisonment as the head sentence is too low. I consider that the sentence should be increased to four years' imprisonment. I arrive at that result bearing in mind as I do that the sentencing judge, as in this case, always enjoys some advantages that we on appeal do not share and that some weight ought to be given to that factor."

It is plain that but for the leniency which had been shown by the sentencing judge, his Honour would have imposed a sentence even higher than four years. Ryan and Byrne JJ. agreed with him.

In my judgment, that passage is applicable to the present case. Under s.328A of the Criminal Code the maximum penalty of 14 years' imprisonment for dangerous driving causing grievous bodily harm where the concentration of alcohol in the offender's blood equals or exceeds 150 mg of alcohol per 100 ml of blood is no different from that for dangerous driving causing death with the same concentration. Four years' imprisonment is well short of that figure. In the present case, the appellant ignored advance warnings not to drive, forced Carl to be a passenger and then terrorised him. None of those factors was present in Martin.

R v Clauss2 was primarily an appeal against conviction. There was also an appeal against sentence. However as Davies J.A. said:

"The application for leave to appeal against sentence was not seriously argued. That is not surprising. A sentence of four years' imprisonment for an offence of this kind is well within the permissible range, particularly when one has regard to the appellant's appalling history of drinking while driving... ."

The Chief Justice thought the matter so obvious that he gave no reasons at all for dismissing the application for leave to appeal against sentence. Only Demack J. expressed the view that in the circumstances four years was an appropriate sentence. In the absence of an appeal by the Attorney- General, it was unnecessary for the Court to decide whether the sentence ought to have been higher; but it certainly cannot be said that it should not have been. The case proves only that in such circumstances, four years is not too high. It does not seem to me that in the present case we should, because the applicant's record is not as bad, regard four years as a figure beyond the range of reasonable sentences.

I do not propose to review all of the cases which were cited to us. I should however briefly mention R v Shedlock3. That was an appeal by the Attorney-General against a sentence of imprisonment for one year to be served by way of an intensive correction order. All members of the Court agreed that that sentence was manifestly inadequate. The problem for the Court of Appeal in that case was that, as the President put it:

"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."

Williams J. (dissenting) would have imprisoned the respondent for 2½ years after taking those matters into account. Byrne J. (who, with hesitation, agreed with the orders proposed by the President) said:

"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 the 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."4

Only the President thought that the orders proposed by Williams J. on appeal would have been appropriate to have been made by the sentencing judge. If the case be regarded as the most useful of those cited for present purposes, it does not demonstrate that less than four years is appropriate.

I agree with the President and Lee J. that it was apparent from the applicant's presentation of his case to the Court that the favourable references which he had received were justified. Unfortunately, that is a factor which is present in many cases of offences against s.328A of the Criminal Code. It is a factor which is always to be given some weight in the offender's favour; but in my view, care must be exercised to ensure that it is not given undue weight simply because of the more visible and direct impact it has upon the Court when an applicant appears in person.

Taking all of the factors into account, it does not seem to me that it can be said that the sentencing discretion miscarried. On the contrary, in my view the trial judge was right.

I would dismiss the application.

1       Unreported, C.A. No. 231 of 1990, 25th September 1990.

2       Unreported, C.A. No. 42 of 1993, 16th August 1993.

3       Unreported, C.A. No. 60 of 1996, 31st May 1996.

4       My emphasis.