SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v Callaghan [2006] QCA 243 PARTIES: R v CALLAGHAN, Christopher Andrew (applicant) FILE NO/S: CA No 41 of 2006 DC No 157 of 2005 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against sentence DELIVERED ON: 23 June 2006 DELIVERED AT: District Court at Toowoomba Brisbane HEARING DATE: 12 May 2006 JUDGES: ORDER: CATCHWORDS: Jerrard JA, White and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made 1. Application for leave to appeal against sentence granted 2. Appeal against sentence allowed 3. Original sentence set aside and in lieu thereof substitute a sentence of three years imprisonment, suspended after the applicant has served nine months, with operational period of three years CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS APPLICATIONS TO REDUCE SENTENCE WHEN GRANTED GENERALLY applicant convicted of dangerous operation of a motor vehicle causing death when adversely affected by alcohol sentenced to four years imprisonment, suspended after serving 16 months, with four year operational period whether sentence was manifestly excessive in all the circumstances R v Anderson [2005] QCA 304; CA No 71 of 2005, 23 August 2005, considered R v Balic [2005] QCA 212; CA No 57 of 2005, 17 June 2005, considered R v Cusak; ex parte A-G (Qld) [2000] QCA 239, CA No 90 of 2000, 16 June 2000, considered

2 2 COUNSEL: SOLICITORS: R v Merrill; ex parte A-G (Qld) [2002] QCA 263; CA No 86 of 2002, 25 July 2002, considered R v Murphy [2003] QCA 128; CA No 21 of 2003, 20 March 2003, considered R v Quinn [2003] QCA 417; CA No 241 of 2003, 22 September 2003, considered R v Tabakovic (2005) 154 A Crim R 30; [2005] QCA 90; CA No 3 of 2005, 8 April 2005, considered R v Thumm; ex parte A-G (Qld) [1999] QCA 355; CA No 186 of 1999, 27 August 1999, considered The applicant appeared on his own behalf D L Meredith for the respondent The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent [1] JERRARD JA: On 24 January 2006 Mr Callaghan pleaded guilty to the offence of dangerously operating a motor vehicle and causing the death of Mathew Raymond Callaghan, when adversely affected by an intoxicating substance, namely alcohol. He was sentenced the next day to four years imprisonment, to be suspended after he had served 16 months, with an operational period of four years; he was also disqualified from holding or obtaining a driver s license for three years. He has applied for leave to appeal against his sentence, contending that it is manifestly excessive in all the circumstances. [2] The person killed was his 16 year old son. The facts described in the sentencing remarks by the learned judge were that the collision occurred on the Warrego Highway near Bowenville, when Mr Callaghan was driving towards Brisbane and in a line of traffic travelling at about or close to the 100 kilometres per hour speed limit. The Warrego Highway is the main arterial road between Toowoomba and Dalby, and at that part had two lanes, one in each direction, separated by a broken white line. The surface was bitumen and the weather was fine. [3] The driver of another vehicle travelling in the same direction, a Mr Lamb, was carrying out an overtaking manoeuvre in which Mr Lamb was passing a number of cars. As Mr Lamb, driving his vehicle at a speed above the speed limit, came up behind Mr Callaghan s vehicle, Mr Callaghan began to move his vehicle out of its lane and onto the incorrect side of the road, also intending to overtake one or more of the vehicles in the line of traffic. As a result of Mr Callaghan s manoeuvre, which Mr Callaghan executed without maintaining a proper lookout for any other overtaking vehicle approaching from behind his, a collision occurred between the rear driver s side of Mr Callaghan s vehicle and the front passenger side of Mr Lamb s vehicle. Both drivers lost control of their vehicles, and Mr Callaghan s 16 year old son, a passenger in Mr Callaghan s vehicle, died at the scene as a result of injuries received. Mr Callaghan saw his son die. [4] The offence to which he pleaded has a maximum of 10 years imprisonment. He had a very minor criminal history, and a prior conviction 21 years earlier for driving with a blood alcohol concentration ( BAC ) of 0.12 per cent, and a conviction incurred in 1984 for unlicensed driving. His traffic history included an offence committed in 1999

3 3 of exceeding the speed limit by at least 15 kilometres per hour but less than 30 kilometres per hour, and a 2002 offence of failing to wear a seatbelt. The learned sentencing judge described Mr Callaghan as having a good work record and the judge referred to a very favourable reference. Mr Callaghan, who was 39 years old when he offended and 41 when sentenced, has two surviving children now aged 16 and 13, and was unable to work for a period of between 12 and 18 months after the accident. He had suffered two broken vertebrae in the neck and some other minor injuries, had been hospitalised for six days, and required physiotherapy and other rehabilitation. [5] Mr Callaghan had originally been charged with a further circumstance of aggravation, namely that the concentration of alcohol in his blood exceeded 150 milligrams of alcohol per 100 millilitres of blood, and he pleaded not guilty to the indictment with that further circumstance of aggravation. When it became apparent that the prosecution would be unable to establish that circumstance on the evidence on the day that a trial commenced and after considerable legal argument the prosecution accepted a plea without that circumstance in full discharge of the indictment. The learned judge expressly passed sentence on the basis that the BAC, by agreement, was accepted to have been below 0.15 per cent but not by much. The judge remarked that a person driving with, say, per cent is driving with two and a half times the maximum permissible level. In the circumstances which had transpired, the judge took into account the plea of guilty as having manifested co-operation in the administration of justice. [6] An examination of some other sentences, including those upon which the respondent Director relies, has persuaded me that the head sentence in this matter was manifestly excessive. The Director relied firstly on the five and a half year sentence imposed by this Court in the successful appeal in R v Balic [2005] QCA 212 1, but that applicant s driving and general circumstances were considerably worse than Mr Callaghan s. Mr Balic was convicted after a trial of the offence of dangerous driving causing grievous bodily harm while adversely affected by an intoxicating substance (methylamphetamine); he had taken 13 times the therapeutic quantity of that drug and had been seen to drive dangerously over a distance of one kilometre, drifting in and out of the correct lane and then into a pole. He had a significant criminal and traffic history, including three prior convictions for driving under the influence of liquor or a drug. He had offended while on bail; and prior to his collision had had no sleep for 24 hours. In every respect his was a more serious case, save that the person he harmed was his niece, a passenger in his motor vehicle. [7] The respondent also referred to R v Thumm; ex parte A-G (Qld) [1999] QCA That matter was a successful appeal by the Attorney-General, in which that driver s sentence for the offence of dangerous driving causing death while adversely affected by alcohol was increased by this Court to one of 4.5 years, with parole recommended after 21 months. Mr Thumm pleaded guilty, but after a committal hearing in which the victim s daughter was cross-examined, and after the victim s family had had to prepare themselves for the ordeal of a trial on three separate occasions. Mr Thumm s offending driving happened when he was unlicensed, and travelling at a greatly excessive speed of a powerful motorcycle while affected by alcohol. The Crown Prosecutor described his as a case of deliberate reckless driving, which included that Mr Thumm had accelerated heavily and consistently over 300 metres along a suburban 1 2 CA No 57 of 2005, 17 June CA No 186 of 1999, 27 August 1999.

4 4 street, to a speed of between 90 kilometres per hour to 100 kilometres per hour, when he collided with the right hand side of a vehicle which had been stationary in the street (waiting for pedestrians to cross a driveway) and which was commencing a right hand turn into that driveway. Mr Thumm s unregistered and uninsured motorcycle hit the male pedestrian. The other, his daughter, was the witness at the committal. Mr Thumm had one prior conviction for driving with a BAC above the limit. [8] Mr Thumm s driving was significantly worse than Mr Callaghan s. Mr Thumm was the unlicensed driver of an unregistered vehicle, and deliberately drove it at an excessive speed on a suburban street. Mr Callaghan was driving at or about the speed limit on a major highway. [9] Likewise the decision in R v Merrill; ex parte A-G (Qld) [2002] QCA 263 3, does not help the Director. That driver drove with a BAC of at an excessive speed, calculated to be 150 kilometres per hour in an 80 kilometres per hour zone. His car did not remain on the road in a sweeping bend, and slid across it, and a head-on collision happened in which a young woman was killed. That respondent at first claimed that it was the other vehicle that was on its incorrect side of the road, but later admitted his culpability. This Court remarked that that was not a case of momentary inattention, but of grossly dangerous speed, and that respondent s car had been on its wrong side of the road for at least 50 metres. He had a prior conviction for driving while under the influence of alcohol, and an extensive record of breaches of the Traffic Act 1949 (Qld), including eight for driving in excess of the speed limit. [10] He was sentenced to four years imprisonment, and this Court ordered that that be suspended after he had served 15 months; he had pleaded to a charge of dangerous operation of a motor vehicle causing death while adversely affected by alcohol. Accordingly, he faced the same head sentence as Mr Callaghan (as did Mr Balic and Mr Thumm, namely 10 years), and his dangerous driving and driving history were both worse than Mr Callaghan s. Mr Merrill deliberately drove in a dangerous manner, and Mr Callaghan did not. [11] The respondent did get support from the decision in R v Murphy [2003] QCA 128 4, where that applicant pleaded guilty to dangerous driving causing death, and this Court dismissed his application for leave to appeal his sentence of four years imprisonment with a recommendation for release on post-prison community-based release after 12 months. That applicant was 51, and by his driving he killed his wife when they were returning from her son s wedding. He was driving at or below the 100 kilometres per hour speed limit, like Mr Callaghan, and Mr Murphy s car veered off to its left hand side of the road, travelled parallel with the road for a distance, returned up an embankment and over a dirt shoulder onto the bitumen, hit a guide post, went back onto the roadway and then spun around and crossed the road and went down an embankment. That applicant fractured his spine and spent some 11 days in hospital; he had three prior convictions for driving under the influence of liquor, two being quite old but one in His daughter suffered from a life threatening medical condition and was dependent for support and assistance on Mr Murphy, who gave her accommodation and monetary help. [12] Mr Murphy faced a maximum sentence of 14 years imprisonment because he admitted by his plea a BAC in excess of It was calculated to be between and CA No 86 of 2002, 25 July CA No 21 of 2003, 20 March 2003.

5 5 at the time of his wife s death. His driving was more demonstrably dangerous than Mr Callaghan s was, he faced a higher maximum sentence, and his driving history was worse. Mr Callaghan could expect a lesser sentence than either Mr Murphy or Mr Merrill. [13] Mr Callaghan represented himself on the appeal, and he referred the Court to some of its earlier decisions. Those included R v Anderson [2005] QCA 304 5, where that offender was convicted after a trial of the dangerous operation of a motor vehicle causing both death and grievous bodily harm, while adversely affected by alcohol. She was sentenced to 3.5 years imprisonment, and her application for leave to appeal that sentence was dismissed. She had driven from a rural home where a party had been held onto the Cunningham Highway, and when driving on that highway about 30 minutes after leaving the party, drove onto the incorrect side of the road and collided with an oncoming car. She was expressly sentenced on the basis that hers was not a case of momentary inattention. Her BAC at the time of the collision was probably 0.071, but she was observed at the party to be stumbling, smelling strongly of alcohol, and having blood-shot eyes. She had no prior convictions. Her act of dangerous driving was worse than Mr Callaghan s, and she had been observed to be more demonstrably adversely affected than Mr Callaghan was shown to have been. [14] Mr Callaghan also referred to R v Quinn [2003] QCA 417 6, where that applicant was convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol, and sentenced to three years imprisonment suspended after 12 months. She had been drinking heavily, and argued with her boyfriend. He left to walk home, and when she picked him up in her car he realised that she was under the influence of liquor and he twice asked her to stop. She did not and drove through a stop sign at 70 kilometres per hour, colliding with a mini taxi which rolled over. The complainant suffered a badly fractured left arm and shoulder, with permanent disfigurement. That applicant had remarked to the police that she never stopped at that particular stop sign, because she considered it to be on the wrong road. She had a BAC of 0.188, was 25 years old when she offended, and had no criminal history. She was due to give birth to a child in October It follows that her personal circumstances had matters of mitigation as did Mr Callaghan s, but her dangerous driving was both deliberate and worse than his, and she had been told that she was demonstrably adversely affected by alcohol. [15] Mr Callaghan also referred to the decision in R v Tabakovic [2005] QCA 90 7, where that applicant was convicted of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol. Mr Tabakovic had a BAC of per cent when he offended; this Court allowed his application for leave to appeal and reduced his sentence to one of three years imprisonment to be suspended after he had served 10 months. He had been stopped at a set of traffic lights in Kangaroo Point, and had been heard to rev his engine very loudly. When the light turned green he accelerated heavily as he turned into Main Street, and his car began to fishtail and then veered up onto the curb and into a bus stop, where the complainant was sitting. She suffered serious injuries. He had been drinking heavily the night before and had had at the most three hours sleep. The sentencing judge had stated that his was not a case of momentary inattention, but of deliberately foolish driving over a CA No 71 of 2005, 23 August CA No 241 of 2003, 22 September CA No 3 of 2005, 8 April 2005.

6 6 very short period. His traffic history included five speeding offences and one failure to stop at a red traffic light. His personal circumstances included a previously tragic life in Yugoslavia before coming to this country. [16] This Court observed that the following matters are relevant when sentencing for this offence: the BAC, with the specific statutory increase in the maximum penalty from 10 to 14 years if the intoxicating substance is alcohol and the offender was over 0.15; the duration of the unbroken journey in which the offender had driven; the distance over which the offender had been observed to drive in a manifestly dangerous way; whether the manifestly dangerous driving was a result of deliberate choice by the offender or of carelessness or inattention; and if the latter whether prolonged or momentary, and whether the result of drowsiness or drugs; the offender s prior traffic history and criminal history; the plea; the extent of co-operation or non co-operation with investigating bodies; other conduct indicative of remorse or its absence; and matters personal to the individual offender. [17] There is also the sentence in R v Cusak; ex parte A-G (Qld) [2000] QCA That applicant was sentenced to three years imprisonment, suspended after nine months, on the order of this Court on an Attorney-General s appeal; he had been drinking at the Buffalo Club at Mt Isa and then driven away from it in a Land Cruiser with some passengers in the open tray of the vehicle. His BAC was 0.17 and he had a minor traffic history; he failed to negotiate the first corner he came to, and his car travelled to its incorrect side of the road. When he regained the correct side he failed to negotiate the next corner and the vehicle rolled over, killing one of the passengers. [18] Mr Callaghan failed to keep a proper lookout for vehicles overtaking from behind, the reason being alcohol, but did not exhibit any prolonged course of manifestly dangerous driving. His period of keeping a poor lookout seemed indistinguishable from a momentary misjudgement. He drove in a manifestly dangerous way for the few meters in which he began his own overtaking manoeuvre. He was injured and his son was killed. An appropriate sentence is no higher than that imposed by this Court in Tabakovic. [19] I am satisfied from an examination of those other sentences that the appropriate sentence in this case was one of three years imprisonment suspended after nine months. I add that Mr Callaghan told this Court that he had completely stopped drinking alcohol as and from the date of the accident, but that was not a fact which was put before the learned sentencing judge; and I found unconvincing Mr Callaghan s 8 CA No 90 of 2000, 16 June 2000.

7 7 explanation that he had intended to tell the jury about that and had not told it to his counsel. I do not say that information is untrue, but only that it is not appropriate to act on it. [20] The application for leave to appeal should be granted, the appeal allowed, the sentence set aside, and in lieu thereof there should be substituted a sentence of three years imprisonment suspended after Mr Callaghan has served nine months, with an operational period of three years in which he must not re-offend if he is to avoid being dealt with under s 146 of the Penalties and Sentences Act 1992 (Qld). [21] WHITE J: I have read the reasons for judgment of Jerrard JA and agree with his Honour s analysis of previous decisions concerning sentences for dangerous driving causing death whilst adversely affected by alcohol. I agree with the orders proposed by his Honour. [22] PHILIPPIDES J: I agree with the reasons of Jerrard JA and with the orders proposed.