[2022] QCA 148

COURT OF APPEAL

McMURDO JA
DALTON JA
FLANAGAN JA

CA No 106 of 2022
DC No 1633 of 2021
DC No 2076 of 2021
DC No 925 of 2022

R

v

COLEGATE, Philip Paul	Applicant

BRISBANE

FRIDAY, 12 AUGUST 2022

JUDGMENT

McMURDO JA:  The applicant was convicted on his own pleas of guilty of two offences, the first of which was committed on 10 July 2019 and the second less than four weeks later.
In the first offence, the applicant attempted to enter a dwelling house at night-time, intending to alarm a man who lived there and who was threatened with a knife. This man was unknown to the applicant, who came to be at the man’s house in this way.  The applicant was driving on a suburban street when he passed a house with a car parked outside it which the applicant believed, without justification, to be his car which had been lost to him whilst he had been in prison.  The applicant stopped, approached the house, knocked on the front door and confronted the man, who told him to go away.  The applicant’s response was to produce a twisted bladed dagger and to grab the locked screen door which separated the two men.  He was unable to pull it open and left.  The man complained to police, and ultimately the applicant was identified by his DNA being found at the scene.
In the second offence, the applicant dangerously operated a car causing grievous bodily harm to a woman who was driving her car in an attempt to get away from him.  The applicant and this young woman had been in a relationship until the night before the incident when they argued and she told him that she intended to end it.  Early on the following morning, she left the house in her car and the applicant pursued her, driving aggressively.  During the previous night, the applicant had used methylamphetamine.  He pursued her over a distance of some 19 kilometres through suburban streets during which she felt compelled to drive dangerously herself to get away from him.  The cars weaved in and out of traffic and through red lights.
Ultimately, the applicant drove on the wrong side of the road and accelerated into the rear right side of her car, causing her car to spin, mount a footpath and crash into a fence.  The young woman was unconscious following the crash and had to be removed from her car by Queensland Fire and Emergency Services.  She suffered a number of injuries, including a scalp laceration, fractures of the skull, facial fractures, a collapsed lung, a fractured collarbone and pelvis fractures.
The grievous bodily harm involved an injury which caused haemorrhages to the brain for which she was two months in hospital in a Brain Injury Rehabilitation Unit.  That injury has caused her serious and ongoing problems.  She suffers from dizziness and has a limited sense of smell and taste.  When the applicant was sentenced in May of this year, she was still receiving medical treatment at a hospital and had ongoing support from an occupational therapist who attended her home.  She is medicated with Valium.  Her victim impact statement described how the injury affects her in many ways, including in her ability to look after her children.  She is constantly anxious and often angry.  She said that the incident has turned her life and that of her children upside down.
On the first offence, the applicant was sentenced to a term of 15 months imprisonment.  On the second offence, that of the dangerous operation of a vehicle causing grievous bodily harm while adversely affected by an intoxicating substance, he was sentenced to a term of six years imprisonment.  He was sentenced also for offences of possession of dangerous drugs and utensils, for which he received terms of two months and one month.  All of those terms were ordered to be served concurrently.  A total of 649 days between 31 July 2020 and 10 May 2022 were declared as pre-sentence custody.  His parole eligibility date was fixed at 31 July 2022, which was the date by which he would have served two years imprisonment.
He applies for leave to appeal against his sentence, or, more precisely, the sentence of six years for the second offence, upon two grounds.  His first ground is that the judge erred by failing to take into account a relevant and necessary consideration, namely, that he suffered from the effect of a traumatic brain injury which he sustained in March 2014.  His second ground is that the sentence is manifestly excessive.
The applicant was born in 1977.  He was aged 42 at the time of these offences and 45 when he was sentenced.  Prior to these offences, he had been convicted of a number of offences in Queensland, Victoria and New South Wales of the nature of serious offences of violence, property matters, breaches of domestic violence orders and firearms offences over a period between 1996 and 2020.  He had served periods of actual custody.  Most significantly, he was sentenced to four years imprisonment in 1999 for aggravated robbery offences, another five years imprisonment in 2006 for robbery offences, and in 2015 a term of three years for assault offences.
The 2015 sentence was imposed in the District Court by Judge Martin SC, whose sentencing remarks were tendered in the present case.  Their relevance here is that they refer to the traumatic brain injury suffered by the applicant in 2014.  Judge Martin said that despite the applicant’s criminal history, he had succeeded in taking positive steps towards his rehabilitation, including sustaining full-time employment after he had been released from prison on 2011, but that this had been interrupted by the head injury which he sustained.  The injury had triggered his return to substance abuse and in turn resulted in the loss of his employment.
Judge Martin said that the applicant had suffered fits or seizures from the time he sustained the head injury, and that the evidence was clear that he had suffered such a seizure the evening before the episode of violence which had brought him to Court on that occasion.  He said that counsel then appearing for the applicant had argued that a contributing factor to his offending on that occasion was his post-seizure irritability, which was said to be an acknowledged consequence of such seizures.  As to that argument, his Honour said:
“That may be so, but, in my view, it is unlikely that your behaviour would have occurred in the absence of your consumption of illicit drugs.”
Nevertheless, the judge accepted that prison life would be somewhat more difficult for him because of the effects of his brain injury.  It is to be noted that the 2015 sentence was for what the judge described as an “appalling episode of offending” involving serious and sustained assaults on the applicant’s then wife while he was armed with a loaded sawn-off shotgun and in which he threatened to kill her and a 20 month old baby.  The shotgun had, in fact, discharged during the struggle with that complainant and projectiles had struck the ceiling before the complainant managed to escape, leaving him in the house with the baby.  When police arrived, at one stage he pointed the shotgun at the baby, threatening to shoot him if police entered the house.  This siege lasted for several hours before eventually he surrendered to police with the baby unharmed.
In the present matter, the judge received extensive submissions from counsel before reserving his decision overnight.  The details of these two offences were set out in schedules of facts which were not disputed.  The judge also received CCTV footage of the applicant’s car crashing into a child care centre.  The complainant’s car had already hit a brick pillar at the entrance to those premises.  Fortunately, there were no children present at the time.
According to the schedule of facts for the second offence, the applicant was treated by paramedics at the scene and transported to hospital where he said he had consumed ice on the previous night.  He then stated that he believed that he was being followed and that it was he who was driving at high speed to get away.  He said that he had no recollection of hitting the complainant’s car.  He was experiencing bruising, pain and tenderness to his rib area and pain in his leg and buttock region.  The judge received evidence and medical records which recorded his having suffered pelvis and hip fractures and a liver laceration which had been caused in a motor vehicle accident in 2019, which is referable to the date of the commission of this offence.
I go then to the first ground of the proposed appeal.  The argument for the applicant emphasises the absence of any reference in the judge’s sentencing remarks to the applicant’s brain injury suffered in 2014.  The argument cites the judgment of the Victorian Court of Appeal in R v Verdins (2007) 16 VR 269 which has been followed in Queensland.  See, for example, R v Yarwood [2011] QCA 367.
In Verdins, the potential relevance of an impaired mental functioning of an offender was explained.  It was said that such an impairment might be relevant in several ways, namely, by reducing the moral culpability of the conduct, making denunciation less likely as a relevant sentencing objective, having a bearing on the kind of sentence that is imposed and the conditions in which it should be served, moderating the significance of general deterrence and specific deterrence, making a given sentence more onerous than it would be for a person in normal health and having a significant adverse effect on the offender’s mental health.
The submissions for the applicant point out that these principles and the cases to which I have referred were not put to the sentencing judge.  The respondent’s argument is that the judge could not have overlooked the materiality, if any, of the 2014 injury.  It is said that not only did the judge have the sentencing remarks of Judge Martin, he also had exchanges with counsel about the injury in the sentencing hearing.  The absence of any reference to the injury in the sentencing remarks, it is said, does not indicate that the judge overlooked the consideration.
The ongoing effect upon the applicant of his 2014 injury was relevant, although only in one of the ways which were discussed in Verdins, namely, that it would make his incarceration more onerous than it would be for a prisoner without that condition.
Significantly in the present case, unlike in his 2015 case, the applicant did not seek to explain, even in part, his offending by the effect of his brain injury.  He did not say that he committed this offence whilst under the effect of a recent seizure.  The judge was not to speculate as to whether that was the case.  In this case, the judge remarked that it was clear that issues of deterrence, denunciation and community protection were prominent.  That statement is said to be a further indication that his Honour overlooked the effect of the brain injury.  That submission cannot be accepted.  Absent an argument, and some evidentiary basis for it, that the present offence was at least partly the result of his brain injury, there was no reason to diminish the importance of considerations of deterrence and denunciation.
The judge did have regard to the injuries which the applicant suffered and to his counsel’s submission as to “how hard incarceration has been for you this time around”.  He said that having regard to those matters, he would “reduce the penalty” accordingly, for which he cited R v KAX [2020] QCA 218.  It therefore appears that his Honour did have regard to the relatively heavy burden of his incarceration and pre-sentence custody.  Otherwise, his brain injury in 2014 had no particular significance in this case.
The applicant’s submission seeks support from what I said, with the agreement of the other members of the Court, in R v Volkov [2022] QCA 57.  That involved a different question, namely, in the context of a challenge to a sentence as manifestly excessive, the relevance or otherwise of defence counsel having submitted for that outcome.  The present point is that it was for the applicant through his counsel to advance an argument, and, if necessary, evidence in support of it, that his brain injury was a mitigating factor in any of the ways described in the authorities.  For these reasons, the contention that there was a particular error by the judge must be rejected.
I turn to the second ground, namely, the complaint that the sentence is manifestly excessive.  This argument is made upon the premise that the applicant’s brain injury was a relevant consideration by reference to the principles set out in Verdins and Yarwood.  As I have explained, with one qualification, that is not the case.
It was open to the judge to impose the sentence for the second offence cumulatively upon the sentence for the first offence, and comparable sentences would support a sentence of five years or more for the second offence alone.
It is sufficient to refer to three comparable cases.  In R v Turner [2016] QCA 282, this Court declined to interfere with a sentence of six years imprisonment for an offence of the dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by an intoxicating substance.  This was declared to be a serious violent offence, and it was that declaration which was said to have made that sentence manifestly excessive.  The circumstances of that offence might be considered even more serious than in the present case, where that offender had driven dangerously when pursued by police before colliding with a parked car and injuring three of his passengers, each of whom sustained injuries amounting to grievous bodily harm.  Nevertheless, in the present case, the harm to the complainant was caused by the ramming of her car after what must have been a terrifying ordeal for her.
In R v Barker [2013] QCA 340, this Court refused leave to appeal against a sentence of four years imprisonment to be served cumulatively upon a sentence already being served by the applicant with a parole eligibility date 18 months after the expiry of the prior sentence.  That offending involved the applicant driving towards a police officer who had ordered him to stop for a random breath test.  The officer avoided injury by taking evasive action, after which the applicant drove for less than a kilometre before he lost control of the car and hit a stationary truck.  His passenger suffered an injury to her ankle which without medical treatment would have been a very debilitating injury.  That sentence was held to be not manifestly excessive.  It was a less serious case than the present one.
In R v Balic [2005] QCA 212, this Court resentenced the applicant to a term of five and a-half years for an offence of dangerous driving causing grievous bodily harm whilst intoxicated.  That was after a trial, but the case was not as serious as the present one, where, again, here there is the feature that the applicant deliberately pursued the victim over a lengthy period before driving into the rear of her car.
A sentence of six years imprisonment to reflect the totality of the offending for these two offences was not such as to indicate that there must have been some error in the exercise of the sentencing discretion.  It is not manifestly excessive.  I would order that the application for leave to appeal be refused.
DALTON JA:  I agree.
FLANAGAN JA:  I agree.