The Queen –v- CAREY
[2004] QDC 314
•10 September 2004
DISTRICT COURT OF QUEENSLAND
CITATION: | The Queen –v- CAREY [2004] QDC 314 |
PARTIES: | The Queen v David Charles CAREY |
| FILE NO: | 133 / 2003 |
| PROCEEDINGS: | Sentence following trial |
| DELIVERED ON: | 10 September 2004 |
| DELIVERED AT: | Mackay |
| HEARING DATES: | 7 & 8 September 2004 |
JUDGE: | CF Wall QC |
ORDER: | Conviction Recorded. Imprisonment for 12 months wholly suspended for 2 years. 100 hours community service. Disqualified from holding or obtaining a drivers licence for 12 months. |
| CATCHWORDS: | CRIMINAL LAW – SENTENCE – Dangerous driving causing grievous bodily harm – driver fatigue – driver fell asleep causing vehicle to veer off the road – injury to passenger – no speed or alcohol - relevant considerations to sentencing. Case referred to: |
| COUNSEL: | Mr A. Edwards for the Crown |
| SOLICITORS: | Director of Public Prosecutions for the Crown Taylors Solicitors for the Accused |
DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE C.F. WALL QC
THE QUEEN
v.
DAVID CHARLES CAREY
MACKAY
..DATE 10/09/2004
SENTENCE
HIS HONOUR: David Charles Carey, this is a serious offence that the jury have convicted you of. During the adjournment I have read the decision of the Western Australia Court of Criminal Appeal in the matter of Wood. There are certain distinguishing features between that case and yours. That was a case dangerous driving causing death where no defence under section 24 of the Criminal Code arose. A sentence of imprisonment for 18 months was imposed in that case, and by a majority, was upheld by the Court of Criminal Appeal.
The offence is very serious and it has had serious, and apparently lasting, consequences for Mr Marshall. Details of his initial treatment are contained in the report of Dr Olsen and I need not repeat those details here.
Objectively, you displayed disregard for the safety of other road users and, in particular, your passenger, and to that extent it could be said you acted with some degree of recklessness. I do not think, unlike the situation in the case of Wood, that it was so much a selfish disregard as you did stop when you felt fatigued, and you did attempt to refresh yourself at the top of the Sarina Range, and you did, I am satisfied, honestly believe that it was safe for you to proceed.
Now, knowingly driving in a state of real fatigue, which is the finding of the jury, is behaviour which does increase the seriousness with which an offence of dangerous driving caused by that fatigue is regarded by Courts. There was a warning to you as to the onset of sleep that caused you to stop at the top of the range. That provides evidence of the degree of tiredness that you were suffering from. The jury's verdict is that you were so tired that in the circumstances your driving, your continued driving, was a danger to the public.
The maximum sentence for this offence is imprisonment for seven years. The maximum sentence in the Western Australian case was imprisonment for four years.
In the Western Australian case Justice Murray said that Courts in Australia rank general deterrence high on the list of relevant considerations in cases such as yours, and that is done for the purpose of ensuring that the sentences imposed do adequately provide for the protection of the road-using public by attempting to deter the commission of serious traffic offences, particularly those which have the effect of taking human life or causing serious injury. So far as the causing of grievous bodily harm is concerned, much depends also on the nature and extent of the injury caused.
On my calculations, you had only about 45 minutes sleep in the previous 21 to 24 hours. In the case of Wood, the accused there had no sleep for some 23 hours and she had only some five to seven hours sleep in the preceding 48 hours. The jury also in her case rejected her version that she did not see the deceased pedestrian due to a sneezing fit immediately before impact. That was clearly a more serious case than yours and the circumstances were quite different.
I agree though with the sentencing Judge in the case of Wood that - and this is also my experience in dealing with these matters - fatigue along with alcohol and speed appear to be the three principal causes of fatalities and, I would also add, serious injury on our roads.
I also agree with the sentencing Judge in that case that the message must be conveyed to other road users that people who risk driving tired, risk imprisonment if their driving puts the life and health of other road users at risk. There is thus a need for general deterrence which may, depending on the circumstances, outweigh factors personal to the offender.
Also in that case Mr Justice Miller referred to the observations of the Western Australian Chief Justice as follows, in paragraph 109 of the judgment:
"The loss of life and personal injury caused by dangerous or negligent driving on our roads has been rightly described as one of the most serious social problems facing the Australian community. In these circumstances it is necessary to impose a sentence which will hopefully act as a deterrent to others and mark the seriousness with which Parliament and the community regard, the kind of driving behaviour exhibited by (the respondent in that case.) The tragedy and misery caused by the deaths and injuries to innocent road users is compounded in a case such as this where the deaths and injuries were quite unnecessary and could so easily have been avoided."
The injury to Mr Marshall here could so easily have been avoided if you had stopped and slept.
Having said that, you are a young man with an extremely good background and the two references that have been tendered on your behalf speak highly of you and of the extent to which you are normally a very responsible young man. I accept that you made a mistake on this occasion and that you are unlikely to do so again. There was no erratic driving save for the instance where you veered off the road. There is no suggestion that traffic was heavy. There were no aggravating factors such as drink or speed.
Unlike the situation in the case of Wood, the defence under section 24 was raised here and was, I think, the issue which most concerned the jury. In Wood the conclusion reached by the sentencing Judge was that whether or not the accused had previously had a warning of drowsiness before the onset of sleep. She well knew that because of her tiredness she might fall asleep and she should not be driving. She well knew that she was in such a physical state that she ought not to have driven. She admitted to police that she knew that she was not in a fit condition to drive without the risk of an accident.
I accept that you are very remorseful for what happened and for the injuries caused to Mr Marshall. I also accept that putting the matter to trial relying on section 24, does not detract from that remorse. I find that you have in practical terms accepted responsibility for what you did. You have no relevant traffic history and no criminal history at all.
I accept that you did not intend to stay out so long and intended to be home by about midnight. Two intervening events occurred. Your dogs got lost for three hours and your vehicle broke down for two hours.
I accept the submission by Mr Bagley that you did not take a deliberate risk, rather you objectively fell below the required standard.
In my view, a sentence of imprisonment is appropriate and no other sentence is a sufficient response for this type of offence, but having said that, I consider that you can be adequately punished by wholly suspending that imprisonment. A suspended term of imprisonment can mark the disapproval by the community of your conduct.
For the offence, I record a conviction and I sentence you to imprisonment for 12 months, but I wholly suspend that sentence for two years.
I also propose to order you to perform a hundred hours community service. Do you know what community service is?
PRISONER: Yes, your Honour.
HIS HONOUR: Are you willing to perform community service?
PRISONER: Yes, your Honour.
HIS HONOUR: Well, listen to the requirements of your community service order:
(a) You must not commit another offence during the period of the order, and you will have 12 months to complete the community service;
(b) You must report to an authorised Corrective Services officer at the Community Corrections Office, Mackay, by 4.30 p.m. next Monday. Mr Worsley will explain to you where that office is;
(c) You must report to and receive visits from an authorised corrective Services Officer as directed by the officer;
(d) You must perform in a satisfactory way community service directed by an authorised Corrective Services Officer for 100 hours and at the times directed by the officer;
(e) You must notify an authorised Corrective Services Officer of every change of your place of residence or employment within two business days after the change happens;
(f) You must not leave or stay out of Queensland without the permission of an authorised Corrective Services Officer, and you must comply with every reasonable direction of an authorised Corrective Services Office.
Do you understand those requirements?
PRISONER: Yes, your Honour.
HIS HONOUR: Are you prepared to perform community service subject to those requirements?
PRISONER: Yes, your Honour.
HIS HONOUR: Do you understand the purpose and effect of community service? I should also indicate that I am satisfied that you are a suitable person to perform community service under the order. If you contravene the requirements of that order, that contravention will in itself amount to an offence and you will be liable to be re-sentenced for this offence. Do you understand that?
PRISONER: Yes, your Honour.
HIS HONOUR: I am also required to tell you that the order may be amended or revoked on application by yourself, an authorised Corrective Services Officer or the Director of Public Prosecutions.
Now, I am also going to make an order in respect of your driver's licence. I order that you be disqualified from holding or obtaining a driver's licence for 12 months commencing on the 8th of September 2004. The causing of grievous bodily harm is, in my view, a factor such that there should be a period of disqualification above the mandatory minimum of six months which applies even in the situation of dangerous driving simpliciter.
Now, the fact that the period of the suspended imprisonment which I have imposed on you is the same as that imposed by Judge Dick in the case of Kunde, is entirely coincidental because I had decided upon the sentence I was going to impose on you before reading the newspaper report of that case.
Now, do you understand the sentence that has been imposed on you?
PRISONER: Yes, your Honour.
HIS HONOUR: It is imprisonment for 12 months, wholly suspended for two years. You must not commit an offence punishable by imprisonment within the next two years, otherwise you will be liable to serve the sentence of imprisonment. Do you understand that?
PRISONER: Yes, your Honour.
HIS HONOUR: You have also been ordered to perform a hundred hours community service and you have been disqualified from holding or obtaining a driver's licence for 12 months from Wednesday this week.
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