Cutler v Zollar [2015] QDC 10

DISTRICT COURT OF QUEENSLAND CITATION: Cutler v Zollar [2015] QDC 10 PARTIES: Carl Cutler (appellant) v Jurgen Zoller (respondent) FILE NO: 2221/14 DIVISION: Appellate PROCEEDING: s222 Appeal ORIGINATING COURT: Brisbane Magistrates Court DELIVERED ON: 05.02.15 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 05.02.15 JUDGE: Farr SC DCJ ORDER: 1. The appeal is allowed. 2. The order imposed in the Magistrates Court on the 14th of May 2014 fining the respondent $300 is set aside. 3. The respondent is fined $700 in default, seven days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registrar for registration. 4. No conviction is recorded. 5. The respondent is disqualified from holding or obtaining a driver’s licence for two months. 6. The order for compensation made in the Magistrates Court on the 14th of May 2014 in the amount of $500 is affirmed. CATCHWORDS: APPEAL - Justices Act 1886 s222 – whether order inadequate – leave to add grounds of appeal granted. APPEAL –one charge of driving without due care and attention – where the learned Magistrate placed too much emphasis on the fact that the respondent’s conduct was not deliberate - where no reference was made to general deterrence – where appellant drove up against the kerb and onto the footpath- where serious injury occasioned - where the sentence imposed was inadequate and inconsistent with Tschirpig v Martin (2011) QDC 111. -- 1 of 5 -- COUNSEL: SOLICITORS: McCartny Durie Lawyers Office of the Director of Public Prosecutions The respondent entered a plea of guilty on the 7th of April 2014 in the Cleveland Magistrates Court to one charge of driving without due care and attention. His matter was adjourned to allow him the opportunity to attend an Attitudinal Drivers Workshop which he successfully undertook. He then next appeared in Court on the 14th of May 2014 and was fined $300 and ordered to pay the complainant $500 compensation. The appellant has appealed that order on the ground that it is manifestly inadequate in the circumstances. Leave has also been sought to add the following grounds: (1) the learned Magistrate erred by not imposing a disqualification period; (2) the learned Magistrate erred by placing too much weight on the respondent’s conduct at the time of the collision; and (3) the learned Magistrate erred by placing insufficient weight on matters of denunciation and deterrence. The respondent has not voiced any opposition to leave being granted to add those grounds of appeal. In the circumstances it is appropriate to grant such leave, and I so order. I turn now to the circumstances of the offending conduct. On Tuesday the 5th of November 2013 at approximately 4.15 pm, the respondent drove his four-wheel drive vehicle east along Gordon Road at Redland Bay. The route he drove was his usual route to his residence. The complainant, Mr Meehan, was simultaneously riding his bicycle west along the footpath which ran alongside the same side of the roadway that the respondent was driving on. The tyres on the left-hand passenger side of the respondent’s vehicle impacted with the kerbing along the edge of the roadway for a distance of approximately 50 metres before the left- hand tyres mounted the kerb. His vehicle then continued along the grass verge for approximately 23 metres, up to half the width of the car over the left kerb. That course of driving was observed by Mr Meehan, and had Mr Meehan continued in the course that he was riding, the respondent’s vehicle would have collided with him. Mr Meehan was unable to veer right due to the presence of fencing around a garden. He therefore chose to turn to the left and out on to the roadway. It would appear, though, that the same time that he did that the respondent veered back onto the roadway, or at least in that direction, and despite Mr Meehan’s attempt to take evasive action, the two collided. Mr Meehan was thrown from his bicycle into the middle of the road. He sustained injuries which the prosecutor at sentence described as life threatening. The complainant’s statement was also tendered at sentence which outlined those injuries. He suffered some level of permanent injury to his right arm. The other injuries noted in the tendered statement included a fractured right hip and femur, fractured left femur, right elbow fracture and dislocation that needed reconstructive surgery, and fractured vertebrae. As at the date of that statement, which was the 4th of January 2013, he was still in hospital, and it was suggested or identified that he -- 2 of 5 -- may have permanent loss of the full usage of his right arm and was not sure how well his legs would heal, but no formal victim impact statement was tendered. When spoken to by police at the scene and asked who was at fault, the respondent stated that he was at fault, and he thought that he was veering to the left and was perhaps daydreaming. Testing was conducted which revealed that no other factors other than the respondent’s own operation of the vehicle contributed to the incident, and it was accepted that daydreaming, as suggested by he, was probably the best guess as to the cause of him veering off the road. Accordingly, those facts reveal that this course of driving was very serious given that it involved the vehicle driving up onto the footpath and hitting someone and causing that person a serious injury. Whilst there is no evidence as to the speed that the respondent’s vehicle was travelling, and I note that there is no suggestion that it was travelling over the speed limit, but if it was travelling at 60 kilometres per hour, which I infer was the speed limit in that built up area, then the vehicle would have taken approximately four and a half seconds to traverse the distance covered by the vehicle from when it first struck the kerb to when the collision occurred. In the context of the driving of a motor vehicle, something which carries with it onerous responsibility, that is a significant period of time to be daydreaming and not paying due care and attention. Turning now to the submissions, the appellant has submitted that: (1) the respondent has displayed a disregard for road rules, other road users and those nearby; (2) that the Magistrate failed to give sufficient consideration to the sentencing considerations of deterrence and denunciation; (3) that whilst discretionary, a disqualification period should have been imposed given the seriousness of the offence; (4) the Magistrate placed too much reliance on the fact that the respondent did not drive in a deliberate matter; (5) the circumstances of this matter place it in the mid to upper end of the scale of seriousness for this type of offence; and (6) the respondent has a traffic history which consists of speeding offences dating back to 1993. The respondent has submitted that: (1) the learned Magistrate considered the issue of imposing a period of disqualification and decided against it, and that such a decision was within the reasonable exercise of his discretion; (2) that there were no aggravating features such as speed or alcohol or drugs or deliberateness involved in the manner of driving; (3) the respondent’s attendance at the attitudinal driving workshop is demonstrative of his remorse and indicative of a desire to ensure this type of driving is never repeated in the future; (4) the inattention involved in the driving was momentary; (5) the driver demonstrated immediate remorse by remaining at the scene of the accident and attending to the complainant and his injuries; and (6) the respondent entered an early plea of guilty after making full admissions to police. By way of antecedents, the respondent is 48 years of age, married, has a nine year old dependent child, and is in longstanding stable employment as a radiographer. I note that the respondent has also submitted that the prosecutor’s submission in the Court below that the complainant’s injuries were life threatening was unfounded and exaggerated, and that the true extent of his injuries are unknown. I reject that submission. If there was to be any challenge to that submission, it ought to have -- 3 of 5 -- been done in the Court below where the respondent was legally represented. That did not occur and it is not for this Court to now reject that submission, particularly when there is no evidence to the contrary. I turn now to my consideration of these matters. In my view, the Magistrate placed too much emphasis on the fact that the respondent’s conduct was not deliberate. I refer to a passage by way of example at page 15, line 35 of the transcript. That it was not deliberate is hardly surprising given the nature of the charge. Were it deliberate, there would be no doubt that the driving would have amounted to dangerous operation of a motor vehicle. The very nature of the charge of drive without due care and attention connotes a lack of deliberateness. It is a charge that is designed to reflect unintentionally, yet criminally, substandard driving. In my view, this is a serious instance of such driving. Insofar as the considerations of deterrence and denunciation are concerned, the Magistrate made the following comment in the course of his sentencing remarks after identifying the appropriate considerations on sentence by reference to the sentencing guidelines in the Penalties and Sentences Act of 1992. That passage, which is found at the bottom of page 2 of the decision, reads as follows: So in the circumstances today, I’m going to take the sentencing guidelines into account. I don’t see the value, in the sense of punishment – I don’t know – you don’t deserve a high punishment. That’s my view of the matter. Rehabilitation is not a goer at all, doesn’t make any sense to me. Deterring the offender or other persons – well, you know, it wasn’t as if you deliberately went about doing what you did, and I accept that that’s the case. Denunciation – well, I don’t know. Protecting the Queensland Community – I don’t know. So when you look at it overall in the circumstances, you’ve got the attitudinal driving workshop, you do what you do, and now you’ve – I daresay that you’re a changed person in respect of what we’ve talked about earlier. It is not clear from that passage whether the issues of deterrence and denunciation played any role in the determination of sentence. Deterrence, of course, can refer to both general and personal. No reference was made by the learned Magistrate to general deterrence whatsoever, despite the fact that it, in my opinion, was of particular significance. I’ve also been referred by way of comparison to the case of Tschirpig v Martin (2011) QDC 111. In that matter, the appellant was driving his motor vehicle in a northerly direction when his vehicle crossed over the centre white line and side swiped a vehicle travelling in the opposite direction, thus causing that vehicle to collide with a third vehicle. The appellant had not been speeding; he was not affected by alcohol; nor was he using his mobile phone or his CD player, nor distracted in any other way at the time. One of the other drivers suffered an injury to his right arm resulting in the loss of his elbow joint, and had to undergo a number of surgical procedures. The appellant in that matter was only 18 years old and had no traffic or criminal history and was in steady employment. He conceded at the accident scene that he may have been inattentive for a split second. He entered a timely plea of guilty, and on appeal he was fined $700 and was disqualified from holding or obtaining a driver’s licence for approximately five months. -- 4 of 5 -- It should be noted, however, that he had endured that five month disqualification period from the time of his original sentence until his appeal was heard and determined. Judge Irwin made it clear, however, that were it not for the fact that he had already served that term of disqualification, his Honour considered that the appropriate period of disqualification would have been in the range of one to three months. It is impossible to reconcile the outcome in that matter with the present matter. Here, the respondent is much older, has a traffic history, although I acknowledge that it is not overly serious given how many years he has driven, and his driving was more serious given that he drove for 50 metres up against the gutter before mounting the footpath. Also, it seems to me that the injuries that the complainant sustained in this matter are at the very least as serious as those sustained by the complainant in Tschirpig v Martin. Those injuries are of relevance in the determination of sentence pursuant to the provisions of section 9 subsection (2)(b)(i) and section 9 subsection (2)(d) of the Penalties and Sentences Act. In my view, the sentence imposed in the Court below is inadequate in all the circumstances and quite inconsistent with the sentence imposed in Tschirpig v Martin. I should note for the record, however, that the learned Magistrate in the Court below was not referred to that authority during the course of submissions. Taking all relevant matters into account, including the fact that the respondent undertook that attitudinal driving workshop, and the fact that he has had to face the potential consequences of his actions a second time because of this appeal, and thus for that reason should be afforded some moderation in sentence, I’m of the view that an appropriate sentence would be one of a fine of $700 and a disqualification period of two months. In reaching that term of two months, I have also taken into account the appellant’s family and work responsibilities and his reliance on a driver’s licence in that regard. Accordingly, the orders of the court are as follows: 1. The appeal is allowed. 2. The order imposed in the Magistrates Court on the 14th of May 2014 fining the respondent $300 is set aside. 3. The respondent is fined $700 in default, seven days imprisonment, with the proper officer of the court to give particulars to the State Penalties Enforcement Registrar for registration. 4. No conviction is recorded. 5. The respondent is disqualified from holding or obtaining a driver’s licence for two months. 6. The order for compensation made in the Magistrates Court on the 14th of May 2014 in the amount of $500 is affirmed. -- 5 of 5 --