For the reasons which I have explained in the preceding part, on the material before the sentencing judge and as the matter was advanced on behalf of the appellant in this Court, I am not persuaded that the sentence was manifestly excessive. The appeal should be dismissed.
Banks v Tasmania [2019] TASCCA 1 (7 February 2019)
I have had the benefit of reading the draft reasons for judgment of Porter AJ. I agree with everything his Honour has said and his conclusion that the appeal should be dismissed. However, I would like to comment further on one peripheral aspect of his Honour's reasons.
My comments concern the interaction between the offence of dangerous driving and the offence of evading police under s 11A(1) and (2A) of the Police Powers (Vehicle Interception) Act2000. In this case, the charge of evading police is still pending in the Magistrates Court. I agree with Porter AJ's conclusion that the principle in R v De Simoni(1981) 147 CLR 383 did not preclude the learned sentencing judge from taking into account as an aggravating factor that the appellant drove dangerously in the course of evading police. The fact that such driving occurs in the course of escape from police, adds the factor of desperation to the driving and decision-making during the course of the driving, which, in turn, adds significantly to the potential danger arising from that driving. Accordingly, the circumstance is directly related to the dangerous nature of the driving, and it is therefore appropriate to take that factor into account in assessing the objective seriousness of the dangerous driving, notwithstanding that it would also constitute an offence which is not before the sentencing court. It may also have relevance to other sentencing considerations, including the need for general and personal deterrence.
In this case, as Porter AJ has pointed out, the charge of evading police was particularised as being limited to the initial decision of the appellant not to stop for police prior to the commencement of the period of dangerous driving. However, the driving which constitutes the dangerous driving could also have been the subject of such a charge. Section 11A(1) and (2A) create offences where a driver has taken "action to avoid apprehension or interception by a police officer". The ongoing driving which takes place during the course of a police pursuit could rationally fall within the ambit of the offence, so defined.
The point I wish to make about this is that my support for the conclusion that the fact that the driving occurred within the context of escaping police pursuit is a relevant factor with respect to sentencing for the dangerous driving, does not depend upon the evading police charge relating only to driving which occurred at a different time to that particularised in respect of the crime of dangerous driving. In my view, it would still be a relevant sentencing factor in respect of the crime of dangerous driving if the said driving had also been the subject of a charge of evading police. This is the case notwithstanding that s 11A(3C) requires a court sentencing at the same time for evading police and another charge such as dangerous driving, to impose separate sentences. It is not unusual for one act to give rise to more than one offence. As the High Court pointed out in Pearce v The Queen[1998] HCA 57; (1998) 194 CLR 610, "a complex act by an accused may contain all the elements of more than one offence". Hence, there is no difficulty with a sentence being imposed for multiple offences which incorporate the same act, provided that a person is not punished twice for that act. It follows that a court imposing a separate sentence for evading police which incorporated the driving in question, would need to exercise care not to impose further punishment, where punishment for the act of driving to escape police has already been incorporated within the sentence for another offence, such as dangerous driving.
Of course, in this case, that question will not arise because the driving relevant to the evading police charge is different to that relevant to the dangerous driving charge, and the issue has not been the subject of full argument and submissions. It is not my intention, therefore, to express a concluded or binding view, but simply to point out that my agreement in this case should not be taken as expressing such a view.
After the 2011 appearance and sentence, the appellant was convicted of further offences of dishonesty and violence. As far as traffic offending is concerned, there is a conviction in March 2015 for driving without a licence, and convictions in June 2015 for objecting to a blood sample being analysed, and driving without a licence. There are other convictions for breaches of traffic regulations. It would appear that the frequency of traffic offending has lessened in the last few years, although the appellant has continued to regularly offend in other ways. In broad terms the appellant is no stranger to suspended and actual terms of imprisonment.
Counsel who appeared for the appellant before Marshall AJ made the following submissions:
The appellant had wanted to dispose of the matter by way of pleading guilty as quickly as possible. He had been awaiting the filing of an indictment for the charge under s 172A of the Code; the original complaint charged him with dangerous driving under s 32(1) of the Traffic Act1925, an offence which had been removed from that Act and made a crime under the Code from 19 September 2017.
In the circumstances, there was an early plea.
The case could not be categorised as the most serious case of dangerous driving, given the facts and circumstances; it was not "an example of high end dangerous driving".
The appellant had been told by his uncle to collect a dog so he had driven to do so, became aware of the police, then became concerned (no doubt because of his licence status) "and fundamentally what has occurred is that he's engaged in the process of evading the police".
The appellant was concerned about the circumstances of his arrest and the way in which he was treated.
The conduct before the sentencing judge can be distinguished from that dealt with by Evans J.
The appellant had been unsuccessful in finding stable accommodation, which affected his ability to seek bail and is a problem he will face on release.
Counsel went on to refer to the appellant's mental health issues, effectively repeating the point made by Dr Jordan in his report to Evans J; that is, that when compliant with his medication regime and able to avoid conflict, he can maintain a constructive role in the community. Counsel submitted that given the appellant's mental health issues, he was not necessarily a suitable vehicle for the expression of general deterrence, nor was personal deterrence to be given significant weight. It was further suggested that, rather than making "premeditated" decisions, the appellant acts when his decision-making is impaired.
Counsel for the respondent submitted that guidance to sentencing for the present crime can be found in cases relating to 'motor' manslaughter, ss 167A and 167B, contending that the "general upward trend of sentences demonstrates the increasing concern for dangerous driving generally." This concern, it is said, "underscores the need for sentences which meet the aims of general deterrence and denunciation." Counsel noted that the trend of increasing sentences for driving-related crimes has been the subject of appellate comment, citing Shipton v The Queen[2003] TASSC 23 - a manslaughter case - at [9]-[10] per Cox CJ.
His Honour there noted some legislative changes in relation to driving offences, including the introduction of ss 167A and 167B, and said:
Counsel submitted that the comments of Cox CJ in Shipton "are equally applicable to the insertion of s 172A into the Code." In this respect, I note that the sentiments expressed in Shipton and Watson have been applied to driving offences causing death or grievous bodily harm; ss 167A and 167B: see Moyle v Tasmania[2010] TASCCA 2, 198 A Crim R 592 at [28], [63]-[66], Director of Public Prosecutions v Smithurst[2011] TASCCA 19 at [14]. The upward movement in such sentences was noted by Tennent J in Director of Public Prosecutions (Acting) v Rushton[2015] TASCCA 20 at [16] (Blow CJ and Wood J agreeing).
Counsel for the respondent further observed that general deterrence is the prominent sentencing consideration with respect to the three crimes discussed, and in this respect referred to Gallagher v Tasmania[2009] TASSC 84 at [61], [84] and Moyle (above) at [51], [65]. The resultant submission was that, given the fault element in ss 167A and 167B, common to s 172A, this approach applies equally to dangerous driving as such.
As to these submissions, I make the following comments. First, the specification of the maximum penalty for a particular offence of course limits the exercise of the sentencing discretion. It goes without saying that sentencing courts have close regard to any legislative increase in the maximum penalty set by a statute for a particular offence. The Court is mindful of such a "guidepost": Muldrock v The Queen , at . See for instance 41/1960 at 2, per Burbury CJ (Crisp and Crawford JJ agreeing).
With the written submissions, counsel for the respondent put before the Court a table detailing eight sentences imposed since the introduction of s 172A up to 7 September 2018, excluding the appellant's sentence. There are now 15 sentences for the crime, excluding the appellant's; a further five were handed down before the hearing of the appeal, and two afterwards. The usefulness or otherwise of statistics and tables of sentences have been the subject of much authoritative discussion: see for instance Hili v The Queen[2010] HCA 45, 242 CLR 520 at [54]; R v Kilic[2016] HCA 48, 259 CLR 256 at [22]; Director of Public Prosecutions (Acting) v Poole[2015] TASCCA 10 at [28]- [29]; Connelly v Tasmania[2015] TASCCA 15 at [45]; R v Dowie [1989] Tas R 167 at 186.
A summary is as follows. For statistics tables to be of any real value, the number of cases must be such as to provide a discernible and established range, and the sentences must be for comparable offending. In that respect, that the particular crime may be committed by a wide range of conduct is a particular difficulty, compounded by the variation in circumstances from case to case. Historical data does not establish that a discernible range is correct, nor that the upper and lower limits are correct. That a sentence is outside an established range of comparable offending is not determinative in relation to a particular sentence; that simply calls for closer scrutiny. At best, such material amounts to a "yardstick", providing a broad understanding of the range of sentences that would ensure consistency, but does not fix boundaries.
On a number of occasions, this Court has referred to the list of relevant factors set out by the New South Wales Court of Criminal Appeal in R v Jurisic[1998] NSWSC 423; (1998) 45 NSWLR 209 at 231 for offences of dangerous driving causing death or grievous bodily harm: see for example, Shipton (above), Gallagher (above) and Moyle (above). The presence of these factors and their degree, or their absence, assists in determining the appropriate penalty. The first identified factor is the extent and the nature of the injuries inflicted. The remainder of the list is as follows:
Number of people put at risk.
Degree of speed.
Degree of intoxication or of substance abuse.
Erratic driving.
Length of the journey during which others were exposed to risk.
Ignoring of warnings.
Escaping police pursuit.
To that list should be added "degree of sleep deprivation" and "failing to stop": R v Whyte[2002] NSWCCA 343 at [217] per Spigelman CJ. The respondent submits that this list is relevant to the crime of dangerous driving as such. That submission ought be accepted.
As to this case, I make the following observations. In relation to the number of people put at risk, the material before the sentencing judge was non-specific. At the commencement of the pursuit, traffic was described as "heavy", with traffic conditions being "busy". The appellant's vehicle veered within its lane and at that point the appellant seemed intent on doing something else in his car and not focussing his attention on what he was doing. At the time of driving across the causeway bridge, traffic was "medium to heavy". The appellant overtook another vehicle at this point, travelling at about 120km/h. Nothing was said about traffic flow during the later stages. However, from the descriptions of traffic conditions earlier in the pursuit, from the time of day on a Sunday, and from the major nature of the roadways being travelled on, it would be reasonable to infer that actual or expected traffic flow was more than insignificantly sparse.
(1981) 147 CLR 383
(1998) 194 CLR 610
(1998) 45 NSWLR 209
(1996) 6 Tas R 70
Counsel suggested to the sentencing judge that a form of supervision be imposed to assist the appellant on his release. Counsel submitted that if the appellant were released "with some stability and perhaps with some supervision" the appellant may be able to be managed in a way that will stop the offending; supervision on release would afford the opportunity for treatment: "[T]hat could ... produce the outcome where his decision-making is improved and where he becomes more constructive in the way that he's engaging with people."
In reply to these submissions, Crown counsel told the sentencing judge that in relation to the submission concerning general and personal deterrence, "the Crown would require some expert evidence if the principles of Verdins were to be enlivened", a reference to R v Verdins[2007] VSCA 102, 16 VR 269 which deals with the role of impaired mental functioning. Counsel for the appellant then told the sentencing judge he withdrew the submission but then said, "... the principle is there for you to consider ... that's about as far as I'm willing to take it."
The sentencing judge was not told by either counsel about the status of the supervision order, nor did his Honour enquire. As it transpires, there is no record of it having been revoked by a judge of the Supreme Court: see s 30 of the Criminal Justice (Mental Impairment) Act1999. On enquiry, the Crown has confirmed that it is still current.
Second, the general increase in severity of sentences for 'motor' manslaughter and crimes under ss 167A and 167B, is something which should be generally borne in mind when fixing a sentence for the crime of dangerous driving, to the extent of current trends in respect of those crimes. That is subject to what I will say later.
Third, there is no doubting the proposition that general deterrence is a prominent factor in sentencing for dangerous driving. That has long been the case, pre-dating the 2017 legislative changes. Judges of the Supreme Court have long been able to sentence offenders convicted of dangerous driving, primarily on the basis of a verdict of guilty of dangerous driving as an alternative to manslaughter, and later one is respect of ss 167A and 167B on their enactment. Additionally, for many years up to 2000, an accused person could elect to be tried by a jury on a charge of dangerous driving, or a magistrate could decide that the case was of such seriousness that it should be tried on indictment. See the now repealed s 32(4) and (4AA) of the Traffic Act. In Sheldrick (above), Burbury CJ stressed the need for a sentence having the effect of general deterrence. See also Wise v The Queen[1965] TASStRp 14; [1965] Tas SR 196 at 201 per Crisp J (Neasey J agreeing), at 209 per Crawford J; Parker v Gleeson A66/1991, AustLII [1991] TASSC 82. However, it must be accepted that the legislative change means an increased focus on deterrence and denunciation.
Having said all of that, in broad terms the fundamental principles of sentencing are unchanged. Subject to such things as statutory maxima and the availability of certain options as may be regulated by the Sentencing Act, the exercise of the discretion remains unfettered, although guided by authoritative pronouncements of the weight to be given to particular factors. Competing considerations need to be balanced and the sentence must be a proportionate response to the offending. A punitive sentence should be no more than is necessary to act as a deterrent: Sheldrick (above), George v The Queen [1986] Tas R 49 at 57 per Cosgrove J. Various factors may have more or less weight, depending on the circumstances of the offence and of the offender. Individualisation of sentences remains open.
While the general level of sentences in cases of 'motor' manslaughter, and under ss 167A and 167B provide some assistance, it is not determinative. The circumstances in which the crime of dangerous driving can be committed vary markedly. The crime can be committed by way of a momentary lapse of attention or, on the other end of the scale, by a deliberate and prolonged course of conduct. Depending on the circumstances, some cases of dangerous driving, as such, might be regarded as more serious than at least crimes under ss 167A and 167B, even though the risk of death or injury has not materialised. Severe punishment for dangerous driving does not necessarily depend on the existence of actual consequences: Wise (above) at 201-201 per Crisp J.
Of the 15 sentences referred to above, only two have been for a single count of dangerous driving and nothing else. Of the remainder, two involved two counts of the crime, and all involved the court dealing with other offences. In the main those offences were evading police, and traffic offences such as driving whilst disqualified or without a licence. Some additionally involved offences of dishonesty such as stealing or motor vehicle stealing. Except in the cases that involved evading police which, of course, required a separate sentence to be imposed, global sentences were imposed for the whole of the offending. In detailing these sentences, I will not refer to non-parole periods.
The two sentences passed for single counts of dangerous driving and no other offending are ones of 12 months' imprisonment cumulative to an existing sentence - high speed and erratic driving over a relatively short distance[1], and one of 22 months' imprisonment - prior relevant convictions, serious example of dangerous driving and relevant prior convictions with a number of related summary offences dealt with in the lower court[2]. Of the remaining 13 sentences, the most lenient one was one of eight months' imprisonment, with two months' imprisonment cumulative for evading police, the total term being suspended on conditions. The offender had no prior convictions.[3]
At the other end of the range, in respect of an offender with a relevant offending history, there is a sentence of two years and six months' imprisonment for dangerous driving, driving whilst disqualified and refuse breath analysis, with three months cumulative for evading police.[4] There is also a sentence of two years and four months' imprisonment for dangerous driving, driving whilst disqualified, driving with an illicit drug present in the blood, and breaching bail, with a cumulative sentence of 10 months' imprisonment for evading police.[5] (There is a further case involving a sentence of three years and three months' imprisonment, but there are crimes of injuring property and assault police on the indictment, with charges of evading police, motor vehicle stealing, a drug offence and an offence of dishonesty dealt with under s 385A.[6])
There are four reasonably comparable cases involving offenders with relevant prior convictions and not dissimilar circumstances of police pursuit. Bearing in mind the sentences are global sentences taking into account summary offences, the terms imposed are 22 months' imprisonment, the execution of 12 months of which was suspended, and a community service order of 210 hours[7], 21 months' imprisonment, together with six months for evading police to be served concurrently[8], 21 months' imprisonment with six months for evading police cumulative[9], and 22 months' imprisonment with four months for evading police, four weeks cumulative for evading police.[10] All in all, there is some assistance to be gained but it is quite limited and caution needs to be exercised.
I have already mentioned the degree of speed. The appellant was estimated to be travelling at 120 km/h in an 80 km/h zone on the causeway bridge. In the later stages of the pursuit, it was perhaps more the manner of driving from which the risk emanated than the speed. This leads to the factor of erratic driving, an aspect of which I have already mentioned. In addition, the appellant deliberately avoided road spikes by leaving the road, cutting a corner and driving over a nature strip. As to the length of the journey, the sentencing judge was not given any information, and his Honour made no attempt at an estimate. But prominent roadways and features were identified and common knowledge would fairly lead to an inference that the distance covered was up to say, 15 to 20 kilometres. Lastly, the appellant's motivation in driving the way he did was to escape the police pursuit, and he foiled an attempt to stop him. This brings me to a consideration of the extent to which the last factors, along with one other, had proper relevance in the sentencing process.
The sentencing judge only had before him an indictment containing the one count of dangerous driving. His Honour was told that at the time, the appellant's licence was suspended. This Court was informed that in fact the appellant had been charged with a number of summary offences arising out of the same incident, for which he is yet to be sentenced. For some reason, no application was made under s 385A of the Code to the sentencing judge for those matters to be dealt with at the same time as the indictment.
The summary charges are making off without payment (it being alleged that earlier in the day the appellant had obtained petrol without paying), resisting a police officer, evading police, and driving while not the holder of a driver's licence. It is the last two that need to be looked at, in particular, perhaps, the charge of evading police under s 11A(2A) of the Police Powers (Vehicle Interception) Act2000. Section 11A(3C) requires a court that is imposing a sentence for the offence of evading police, at the same time as imposing a sentence for one or more other offences, not to include a sentence for evading police as part of a general sentence or mixed sentence, and to impose a separate sentence.
There remains the possibility that the appellant will be punished for the summary offences. The question therefore arises as to the extent to which the facts of the separate offences, if relevant, can be taken into account in relation to the sentence for the dangerous driving. As a general rule, a sentence should take account of all the circumstances of the offence, subject to the principle that an offender cannot be punished for an offence of which he has not been found guilty or which is not before the court: R v De Simoni(1981) 147 CLR 383 at 387 per Gibbs CJ; Lovegrove v The Queen[1961] TASStRp 13; [1961] Tas SR 106. But notwithstanding that principle, in some cases it is permissible to take into account certain circumstances although they might have been, or are, the subject of a distinct charge. The practical difficulties and the risk of artificiality arising from the strict application of the principle are discussed in K Warner, Sentencing in Tasmania, 2nd ed (2002), at [2.322]-[2.328], 41-46.
Just what circumstances are properly taken into account in a particular case is a matter of degree: R v Lane [2011] SAFC 101 at [35]. To enable a sentencing court to take into account conduct amounting to a separate offence either not charged or not before the court, the facts of that offence must in some way form part of, or be directly related to one of the ingredients of the charge for which the offender is being sentenced: R v Causby[1984] TASRp 9; [1984] Tas R 54 at 58 per Green CJ; Walsh v The Queen[1996] TASSC 59; (1996) 6 Tas R 70 at 94 per Crawford J (as he then was); TGW v Tasmania[2017] TASCCA 10, 26 Tas R 106 at [18]- [21]. That may be simply by way of providing "context surrounding the commission of the offence": Quarrell v White[2004] TASSC 45 at [19].
In Moyle (above) the appellant had been charged with driving whilst disqualified and a "drink driving" offence, but had not been dealt with at the time of the Supreme Court sentence for an offence under s 167B of the Code. At [19]-[20], Crawford CJ (in dissent as to the dismissal of Moyle's appeal) said that the appellant's driving whilst disqualified was a relevant consideration: "For example, it could be used to deny him leniency and to demonstrate the need for personal deterrence." His Honour said that similar comments applied to the fact that at the time of the driving, the appellant had a blood alcohol level of at least 0.15. The dangerous quality of the driving was to be assessed in light of the consumption of alcohol, "but the sentence should not have been increased simply because of those matters".
As to the present case, the offence of evading police is made out if a driver of a vehicle takes action to avoid apprehension or interception by a police officer who is exercising powers or performing functions under any Act. The charge against the appellant is particularised as having occurred at Midway Point when he failed to pull over when police indicated for him to do so by turning on lights and sirens. The evasion was just before the pursuit commenced, and there is no suggestion of dangerous driving being involved in the failure to stop. However, the evasion is relevant to the course of conduct the subject of the crime, because it is what gave rise to it. It explains the appellant starting to drive in the way he did. For the whole of the episode thereafter the appellant was escaping police pursuit. That is a relevant 'Jurisic' factor. The significance of escaping pursuit is that it shows a complete disregard for authority. It also relates to the speed and manner of the driving, because it shows an intentional and deliberate course of conduct.
Similarly, for the reasons stated by Crawford CJ in Moyle, the fact that the appellant should not have been driving at all - because he was not the holder of a driver's licence - is relevant to a consideration of the circumstances of the dangerous driving.
At the risk of taking a trivial point, I am respectfully not inclined to agree with the sentencing judge's description of the level of the appellant's dangerous driving as "particularly" serious. More serious examples can be seen within the sentences I have just discussed where collisions with other road users actually happened, and the level of potential danger very high. However, the appellant's offending was of a serious enough nature to warrant a stern and robust response in the form of a lengthy term of imprisonment in order to give effect to general deterrence and denunciation. There is also the question of personal deterrence. That brings me to the appellant's personal circumstances.
It is quite plain that the appellant suffers impaired mental functioning. That Crown counsel told the sentencing judge expert evidence would be required if the Verdins principles were to be enlivened, might be taken as an indication that the opinion of Dr Jordan, set out at some length by Evans J in May 2011, ought no longer be relied on. Alternatively, it might be that the point was directed to proof of a causal connection between the impairment and the offending, so as to reduce moral culpability. Then counsel for the appellant left it on the basis that the principle was "there to consider", but did not explain what aspects of Verdins he was referring to, and how the material supported any application of the principles. The sentencing judge was entitled to have regard to the appellant's record of general traffic offending and, in particular, the sentence imposed for the quite similar incident in November 2010.
There was nothing put to his Honour with any specificity to justify moderating the deterrent aspects of the sentence. Additionally, although the previous incident was of some age, the need for public protection and consequent incapacitation might well have a role to play.