R v Purcell [2017] QCA 111 –  3 May 2017, District Court of Queensland, Lynch QC DCJ

Criminal Law — appeal and new trial — appeal against sentence — grounds for interference — sentence manifestly excessive or inadequate — where the applicant pleaded guilty to dangerous operation of a vehicle causing death and five summary traffic offences — where four of the summary offences were committed while the applicant was on bail for the indictable offence — where the applicant was sentenced to eight years’ imprisonment for the indictable offence, six months’ imprisonment for failing to stop and two months’ imprisonment for each of the other summary offences to be served concurrently — where the applicant will be eligible for parole after serving one-third of his head sentence — where the applicant was also disqualified from holding a driver’s licence for two years — where the learned sentencing judge considered the range reflecting the totality of the offending and arising from comparable sentences was eight to nine years’ imprisonment — where the learned sentencing judge adopted an eight year sentence because the applicant’s driving was not deliberately reckless — whether the learned sentencing judge erred in concluding the sentencing range was between eight and nine years — whether the sentence was manifestly excessive

Issues: P was charged with one count of dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance (s 328A(4)(b) of the Criminal Code), and a summary charge of driving over the general alcohol limit but not over the middle alcohol limit while being the holder of a provisional licence (s 79(3)(a) of the Transport Operations (Road Use Management) Act 1995). While on bail 19 months later he was charged with 4 summary offences, namely:

• Failing to stop a motor vehicle (s 754(2) of the Police Powers and Responsibilities Act 2000);
• Obstructing police (s 790(1) of the Police Powers and Responsibilities Act 2000);
• Failing to provide a specimen of breath (s 80(5A) of the Transport Operations (Road Use Management) Act 1995);
• Driving over the no alcohol limit but not over the general alcohol limit while being the holder of a provisional licence.

Sentence:

• Dangerous operation: 8 years
• Failing to stop: 6 months
• All other offences: 2 months each
• All concurrent
• 122 days pre-sentence custody
• Parole eligibility at ⅓ of head sentence

Commentary:  In the first and more serious offending P and the deceased had spent some hours drinking. They were joined by two female acquaintances. At 11:00 p.m. they commenced a trip home. P was later found to have a blood alcohol concentration of 0.091%. The vehicle’s rear tyres had insufficient tread and needed replacing, as P knew. The deceased was lying down on the back seat without a seat belt. There was torrential rain and the windscreen fogged up. At one point P veered onto the wrong side of the road and a female passenger yelled at him to correct his driving. After a stop to pick up more alcohol, the journey continued with loud music playing in the car. A passenger shouted at P to slow down but she was ignored. P lost control on a left hand bend and the rear driver’s side door slammed into a light pole causing the eventual death of the deceased. The car slid on for another 100m. The subsequent offending occurred when P drew attention to himself by failing to give way to pedestrians.

On appeal it was argued that there was an error in adopting a sentencing range of 8 to 9 years and that the sentence was manifestly excessive. Reference was made to R v Hopper [2011] QCA 296, R v Blackaby [2010] QCA 84 and R v Thomas [2015] QCA 20. In the Court of Appeal it was accepted that the cases did support a range down to 6 or 7 years, but in P’s case a head sentence of 8 years was not manifestly excessive.

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