Brown v Tasmania [2011] TASCCA 6

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Dangerous driving, assault, motor vehicle stealing, unlawfully setting fire to property, and stealing - Young offender - Totality principle.

Mill v R (1988) 166 CLR 59, referred to.

Judgment Number: [2011] TASCCA 6

2 Sentence of four years' imprisonment with effect from 27 May 2010 and order that the appellant not be eligible for parole until he has served three years of that sentence set aside.

3 In substitution for that sentence, the appellant is sentenced to three years' imprisonment with effect from 8 April 2010 and it is ordered that he not be eligible for parole until he has served 18 months of that sentence.

1 The appellant appeals against the sentence imposed on him in respect of a multitude of crimes and summary offences (the latter being dealt with pursuant to the Criminal Code, s385A) arising from three episodes of offending. Tennent J sentenced him to four years' imprisonment with effect from 27 May 2010 and ordered that he be eligible to apply for parole after serving three years of that sentence. He has appealed against the sentence, his sole ground of appeal being that it was manifestly excessive.

2 The following are the crimes and offences for which he was sentenced and the dates of their commission:

3 The conduct for which the appellant is now before the Court began on 21 December 2009, when he stole a Mazda vehicle from Rosetta and drove it to Triabunna, to drop off two female friends. After driving by himself for a while, he parked the vehicle in Triabunna as it was nearly out of petrol. He then stole another vehicle, a Nissan utility, from outside a house in Triabunna. He drove it back to where he had parked the Mazda, and set fire to the Mazda to destroy evidence. He had driven it without gloves. Once the fire was well established he drove the utility to Hobart.

4 On 23 December 2009, the appellant parked the stolen utility in Lindisfarne, doused the interior with petrol he had taken with him for that purpose and set fire to it. He then ran away.

5 On 29 December 2009, the appellant stole a Nissan Navara from outside an address in Claremont. The following day he set fire to it. It was completely burnt out.

6 In the early hours of the morning of 8 February 2010, the appellant stole a grey Nissan Skyline from outside an address in Lutana. That morning on two occasions (at Brighton, then Sorell) he filled the car with petrol and drove off without paying. The two stealing charges relate to those two thefts of petrol. He came to the attention of police, but they were unable to intercept him as he took off at high speed. He was observed to be driving in a dangerous manner when evading police. A number of police units were deployed to apprehend him.

7 A police officer was in a stationary unmarked police vehicle parked at the side of the road of an intersection in Richmond. The appellant was seen travelling at high speed towards the police vehicle, and as he came past it he swerved hard, directly at it, but corrected the steering and did not collide with it. The first assault charge was a charge of assaulting the police officer in that vehicle by driving directly at it when the officer was sitting in it.

8 Due to numerous reports of the appellant's erratic and dangerous driving, approval was granted for the use of roads spikes to stop him. At about 10.50am police deployed road spikes in Risdon Vale in an endeavour to bring the vehicle to a halt. Both front tyres were deflated as a result, but the appellant continued driving south on Sugarloaf Road through the shopping and residential district of Risdon Vale, travelling at 70 to 80kms per hour in a 50km per hour area that was busy with pedestrians.

9 In Lindisfarne a police officer was out of his car and waiting to deploy road spikes as the appellant approached. The appellant changed lanes and drove straight towards the officer, causing him to take evasive action and move backwards onto the grass verge to avoid being struck by the vehicle. The officer was able to deploy the spikes. The appellant drove over them. The second assault charge was a charge of assaulting the officer who deployed the spikes by driving directly at him.

10 The appellant continued onto the East Derwent Highway. He was speeding and ran a red light. As he travelled north he caused a vehicle in the southbound lane to brake heavily to avoid a collision. As he drove sparks were coming off the wheels of the vehicle.

11 He continued to speed along that highway, not stopping for police and crossing into the path of oncoming traffic. Police turned off the emergency lights and ceased the pursuit. He was travelling at speeds in excess of 100kms per hour on the incorrect side of the road and he overtook several vehicles. The speed limit on that section of the highway was 70kms per hour.

12 At the intersection of Lincoln Street and East Derwent Highway the traffic lights facing him were red. Vehicles were blocking the two forward traffic lanes and the right hand turn lane. The appellant drove between two vehicles waiting at the lights, scraping the sides of both vehicles. He then shunted the first vehicle waiting to turn right into and through the intersection into Lincoln Street for some 50 metres. Fortunately the light had turned to green. The third assault charge was a charge of assaulting the driver of that vehicle by driving into the back of it and pushing it for 50 metres.

13 The appellant continued to drive at speed through the shopping area and a number of streets, before the vehicle's tyres finally deflated in Geilston Bay, where he fled from the vehicle on foot. He was arrested within a short time

14 At all relevant times the appellant was disqualified from driving.

15 As detailed by the learned sentencing judge when sentencing the appellant, he was no stranger to the courts, notwithstanding that he was only 18 years of age. His first conviction for motor vehicle stealing was on 17 June 2008. On that date, he was dealt with for 13 counts of motor vehicle stealing, one count of attempted motor vehicle stealing, one count of contravening a condition of a notice, one count of breach of bail, one count of stealing, and three counts of unlawfully setting fire to property. He was sentenced to three months' detention, of which about seven weeks were suspended. A probation order was also made.

16 He was back before the court on 21 May 2009 for another batch of offending, most of which occurred over the same timeframe in 2008 when the earlier matters occurred. An almost identical sentence was imposed.

17 On 10 December 2009, he pleaded guilty to 4 counts of aggravated burglary, 23 counts of motor vehicle stealing, 14 counts of driving while disqualified, 6 counts of stealing, 1 count of unlawful possession, 3 counts of burglary, and 2 counts of unlawfully setting fire to property. On that occasion, a 12 month detention order was imposed and wholly suspended. He was also disqualified from driving for 12 months and ordered to perform some community service. Less than a fortnight later, he committed the first of the groups of offences that the learned sentencing judge was dealing with. The offending was, in part, exactly the same type of offending as that for which he had just been dealt with.

18 On 20 April 2010, he was back again before the courts. On that occasion, he pleaded guilty to 2 counts of attempted motor vehicle stealing, 1 count of driving while disqualified, 3 counts of stealing, 1 count of aggravated burglary and a breach of bail. All that offending occurred prior to him being sentenced on 10 December 2009, when he was sentenced to another wholly suspended period of detention.

19 On 27 May 2010, he again appeared in court and pleaded guilty to a number of offences. These included another 9 counts of motor vehicle stealing and 8 counts of driving while disqualified. By the time he appeared for sentence on those matters, he had been in custody since his arrest on 8 February. A term of imprisonment was imposed and backdated to 8 February, with the balance after 27 May suspended. All of this offending occurred in January and February 2010. He was also placed on probation for 12 months.

20 The appellant's only offence involving violence was an assault in 2007. He had no prior convictions for dangerous driving or reckless driving.

21 Mitigatory matters raised in the course of the sentencing hearing included:

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The age of the appellant. He turned 18 shortly before the period of his offending began.

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The admissions made by the appellant when interviewed shortly after being apprehended. On the material before the learned sentencing judge it seems that the appellant would not have been convicted of the offences that occurred prior to 8 February 2010 had it not been for his admissions.

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His early pleas of guilty.

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He had not previously spent time in Risdon Prison. His previous periods of incarceration, totalling about five months, had been served at the Ashley Detention Centre.

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His childhood had been very hard as his mother left when he was of a young age, his father was on occasions violent towards him, and he was often evicted from the family home.

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In 2009 he was diagnosed to be suffering from depression and anxiety.

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He was keen to obtain work and there was a possibility of work being available to him.

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His offending occurred during times when his life was disrupted and he was required to leave the family home and had no stable accommodation. When sentenced his father was supportive, they were rebuilding their relationship, and his father was willing to provide him with accommodation.

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He was remorseful.

22 It is necessary to determine whether the global sentence of four years' imprisonment, with a non-parole period of three years, was a manifestly excessive sentence for all the crimes and offences that we have described. In order to address that task, it is appropriate to consider sub-groups of the appellant's crimes and offences separately, and to consider what an appropriate sentence would have been for various sub-groups, considered in isolation from the other sub-groups, and then whether the sentence actually imposed was appropriate for the totality.

23 In our view the most serious of the offences in question was that of dangerous driving. Someone could have been killed or very seriously injured. Damage was caused to the stolen vehicle and three other vehicles at the Lincoln Street intersection. The driving was very dangerous. It continued for a long time. It continued even after tyres had been spiked and deflated. It ceased only when the vehicle could not go any further. The maximum penalty for the offence of dangerous driving, it being the appellant's first such offence, was two years' imprisonment and/or a fine of 20 penalty units: Traffic Act 1925, s32(1)(a). In the years from 1980 to 2000, the highest sentences imposed by single judges for single counts of dangerous driving were sentences of nine months' imprisonment: Warner, Sentencing in Tasmania, 2nd ed, par14.513. In Hunter v White B38/1994 at 9, when re-sentencing an offender who had successfully sought the review of sentences imposed by a magistrate, Crawford J (as he then was) said that, if the applicant in that case was before the Court for dangerous driving only, a sentence of at least 15 months' imprisonment would be justified. Professor Warner, (supra) at 407, said that "9 months should not be regarded as an upper limit". We agree. It is appropriate to consider the three assault charges together with the charge of dangerous driving since those assaults all formed part of the one course of conduct. He drove dangerously for a selfish reason: he was trying to get away from the police. In the process, he exposed two police officers and an innocent motorist to real danger. If the dangerous driving and those three assaults had been the only matters before the Court, a head sentence of 18 months' imprisonment would certainly not have been excessive.

24 The offence of "motor vehicle stealing" involves the unlawful use of a motor vehicle, and is subject to a maximum penalty of three years' imprisonment and/or a fine of 50 penalty units: Police Offences Act 1935, ss37B and 37E. The offences in question included four counts of motor vehicle stealing. With the appellant's appalling record of similar offences, a significant sentence of imprisonment would have been appropriate just for those four offences. But he also had to be sentenced for unlawfully setting fire to three of the vehicles. It is appropriate to consider the four charges of motor vehicle stealing and the three charges of unlawfully setting fire to property together. According to Professor Warner (supra, par12.408), between 1978 and 2000 sentences of about six months were imposed on offenders for setting fire to stolen and stripped cars in order to avoid detection, but offenders with bad records attracted longer sentences. In Honner v R (unreported, Court of Criminal Appeal, 35/1977) the applicant had been sentenced to 15 months' imprisonment for unlawfully setting fire to three cars, one of which belonged to his wife's lover. It was held that that sentence was not manifestly excessive. In our view, if the charges of motor vehicle stealing and unlawfully setting fire to property had been the only charges before the Court, a sentence of imprisonment for a period in the vicinity of 15 to 18 months would not have been excessive.

25 The three charges of driving while disqualified can conveniently be considered together. The appellant was a repeat offender. The maximum penalty on each charge, apart from a period of disqualification from driving, was 12 months' imprisonment and/or a fine of 80 penalty units: Vehicle and Traffic Act 1999, s13(1). If the appellant had been before the Court only on a single count of driving while disqualified, a sentence of six months' imprisonment or thereabouts would not have been excessive in his case. For three such offences and nothing more, a sentence in the vicinity of nine to twelve months' imprisonment would not have been excessive.

26 The only remaining offences for which the appellant was sentenced were the two charges of stealing. They related to a total of $110 worth of petrol. With the appellant's record, a sentence of imprisonment for one month would not have been excessive if those had been his only crimes.

27 In Thomas, Principles of Sentencing, 2nd ed (1979), at 56 - 57, the learned author quoted an English judge in a case referred to as "Barton 6.10.1972, 1546/B/72", who said this:

"when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

That principle was approved by the High Court in Mill v R (1988) 166 CLR 59 at 63. If it were a simple matter of arithmetic, the sentences we have suggested for the various sub-groups of offences could be totalled and a head sentence of four years' imprisonment would be seen as justified. A mechanical arithmetical calculation would produce a global sentence in the range of 43 to 49 months. However, once one makes allowance for the "totality principle" as discussed in Mill, the result, in our view, is that a sentence in that range would be so disproportionate to the totality of his offending as to be manifestly excessive.

28 The appellant was sentenced as an 18 year old. He was not someone who had served a lengthy prison sentence and then re-offended. It may be shown that a period of incarceration in an adult prison will operate as a personal deterrent. The non-parole period of three years meant that he could not be released until he was at least 21 years old. In our view that resulted in a crushing sentence, bearing in mind not only his age, but also the fact that his previous periods of incarceration had all been short, and the fact that he had never previously been sent to an adult prison. His appeal must succeed.

29 At this point it is necessary to say a little more about the totality principle. Although the sentence appealed from was backdated to 27 May 2010, it is significant that the appellant has been in custody since 8 February 2010, and that the period from then until 27 May 2010 represented the active part of the sentence imposed by a magistrate for offences committed between 1 January 2010 and 8 February 2010 inclusive. Nearly all those offences involved motor vehicle stealing or driving while disqualified. The application of the totality principle requires this Court, in re-sentencing, to impose a sentence which will result in the appellant's total period of incarceration commencing on 8 February 2010 not being too long for the totality of the offences for which he was sentenced by the magistrate and is to be sentenced by this Court.

30 The appellant represented himself on the hearing of this appeal. As at the date of the hearing, he had been in prison for nearly 16 months. He impressed us as an intelligent, articulate individual, with considerable insight into the way young offenders can end up in prison for a long time as a result of pointless and unthinking criminal conduct. It was clear that he also had considerable insight into the problems of recidivism and institutionalisation.

31 The shortest possible non-parole period that can be ordered in this State is one half of the head sentence: Sentencing Act 1997, s17(3). A long period of parole, because it involves conditional release and supervision, can be of great assistance in the rehabilitation of a young offender. In our view the appellant's age and his prospects for rehabilitation are such that we ought to make an order that enables him to apply for parole once he has served half of the substituted sentence that we are about to impose.

32 The appellant's crimes and offences were so serious that, in all the circumstances, we think a head of sentence of three years' imprisonment was appropriate. Having regard to the sentence imposed by the magistrate for other offences, and to the totality principle, we have decided to backdate that sentence to 8 April 2010, which was two months after the appellant was taken into custody. The magistrate's sentence and this Court's substituted sentence, as partly concurrent sentences, will have the same effect as if the appellant had been sentenced to a total of 3 years 2 months' imprisonment, with eligibility for parole after 1 year 8 months.

33 The appeal is allowed. The sentence of four years' imprisonment and the order that the appellant not be eligible for parole until he has served three years of that sentence are both set aside. In substitution for that sentence, the appellant is sentenced to three years' imprisonment with effect from 8 April 2010, and it is ordered that he not be eligible for parole until he has served 18 months of that sentence.