Criminal Law - Sentence - Relevant factors - Irrelevant factors - Whether weight given to a mental state that is an element of a more serious offence of a similar nature with which the offender could have been charged, but was not.

Traffic Act 1925, s32(2A), (2B).

Lovegrove v R [1961] TASStRp 13; [1961] Tas SR 106; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; Wahl v State of Tasmania [2012] TASCCA 5, applied.

Filz v Knox [2002] TASSC 82, referred to.

Criminal Law - Sentence - Sentencing orders - Non-custodial orders - Suspended sentence of imprisonment - General principles

Dinsdale (2000) 202 CLR 322; Langridge v R [2004] TASSC 97, applied.

Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - Review of sentence - Whether term of imprisonment manifestly excessive.

Traffic Act 1925, s32(2A), (2B).

House v R [1936] HCA 40; (1936) 55 CLR 499; Hili v R [2010] HCA 45; (2010) 242 CLR 520; Lusted v Kenway [2008] TASSC 47; M v Hibble [2003] TASSC 13; Visser v Smart [1998] TASSC 151, applied.

Judgment Number: [2013] TASSC 64

1 At about 1pm on 12 September 2012 the applicant, Harvey Charnock, was driving a truck towing a tandem trailer on the Bass Highway towards Launceston. On a straight section of road near Elizabeth Town the trailer became detached from the truck. The trailer travelled onto the incorrect side of the highway and collided with a minibus travelling in the opposite direction. The minibus was carrying the driver and nine passengers. Three of the passengers were killed. The driver and three other passengers suffered severe injuries.

2 On 26 June 2013 the applicant pleaded guilty to one count of causing death by negligent driving contrary to s32(2A) of the Traffic Act 1925, one count of causing grievous bodily harm by negligent driving contrary to s32(2B) of the Traffic Act and one count of driving a vehicle that did not comply with the vehicle standards imposed by r4(1)(a) of the Vehicle and Traffic (Vehicle Standards) Regulations 2001. He was sentenced by Magistrate Brown to a term of imprisonment of nine months, three months of which was suspended for two years. In addition he was disqualified from driving for two years from release.

3 The applicant moves the Supreme Court to review the sentence.

4 The applicant pleaded guilty also to other charges on the same complaint. He was fined $1000 for a further count of permitting the use of a vehicle in contravention of vehicle standards on the day of the offence. He was also fined $1000 as one sentence for 25 separate breaches of the Vehicle and Traffic (Vehicle Operations) Regulations 2001 unrelated to the collision. No complaint is made about those sentences.

5 The sole ground expressed in the notice to review is that the sentence is manifestly excessive. At the hearing of the motion the notice was amended to add three further grounds, stated orally by counsel for the applicant, alleging specific error. They will be dealt with as grounds 1, 2 and 3 and the original ground will be dealt with as ground 4. Thus the grounds of the notice to review, as amended, are:

1 That the learned magistrate erred by taking into account "aspects of recklessness" thus "offending the principle in R v De Simoni".

2 That the learned magistrate erred in suggesting that the applicant "had an onus to satisfy him that the matters of mitigation would result in a wholly suspended sentence".

3 That the learned magistrate erred, in considering whether to wholly suspend the sentence of imprisonment imposed on the applicant, by "limiting himself to matters of mitigation contrary to the principles in Dinsdale".

4 That the learned magistrate erred in fact and in law in that the sentence imposed was manifestly excessive.

6 The learned magistrate was given the following facts. The applicant lived in Queensland. He was employed by a transport company and was on a six month work placement in Tasmania. On 12 September 2012, at 6.30am, he reported to work at the yard of Jones Enviro Services at Prospect in Launceston. He was to work that day with Nicholas Towns, a new employee, who was under the applicant's supervision. The applicant was to drive a Jones Mitsubishi Fuso vacuum truck from Prospect along the Bass Highway and then to Railton, a distance of about 77 kms. The purpose of the journey was to use the truck at the Railton Cement Factory to clean up cement dust after the unloading of trains. Just after 7am the applicant checked the truck and attached to it a tandem trailer used to carry vacuum hoses required for the operation of the truck. The draw bar of the trailer was attached by its coupling to the ball on the towbar on the rear of the truck. At about 7.30am the two men left in the truck, towing the trailer. The trailer was equipped with a safety chain affixed to the draw bar near the coupling. The truck was equipped with a metal bracket to which the chain could have been affixed but there was no shackle on the chain with which it could have been attached to the truck. When the truck left Prospect the chain was not attached.

7 The truck arrived at Railton at about 9am. The cleaning work was completed by about noon. The trailer was uncoupled from the truck while the truck was driven by the applicant to be emptied at a dump site at the factory. Mr Towns stayed with and reloaded the hoses onto the trailer. The applicant then returned and backed the truck up to the trailer. The facts then read by the prosecutor to the learned magistrate are as follows:

"Towns has connected the trailer coupling onto the tow ball of the truck. The defendant has then tied the load down onto the trailer using ropes. Towns has checked the connection at the coupling by trying to lift it off the tow ball. He has then grabbed the safety chain of the trailer and discovered there was no shackle attached to it. As he was holding it the defendant has instructed him to grab a shovel which he apparently forgot to load onto the trailer. Towns has hung the chain over the hitch of the trailer and gone to pick up the shovel as directed by the defendant. Towns has put the remaining shovel onto the trailer and walked past the driver's side of the truck not taking any notice of the chain. He has then seated himself in the front passenger seat thinking that the defendant would check the safety chain before departing."

8 The truck left the factory at about 12.20pm. The safety chain of the trailer was not connected to the truck. The facts read to the magistrate also disclosed that on the previous afternoon Mr Towns had picked up the trailer from another premises in Launceston and taken it to Prospect. He noticed that the safety chain on the trailer did not have on it any shackle to enable it to be attached to the bracket on the truck. As a result he rang his father who worked nearby. He obtained from his father a "D-bolt" so the chain could be affixed. After he delivered the trailer to his employers' yard he removed the D-bolt and gave it back to his father. There were no facts before the learned magistrate indicating that Mr Towns informed the applicant, at any time throughout the day, what he had done the day before or raised with the applicant the issue of a missing chain attachment device.

9 After leaving Railton the truck was driven by the applicant onto the Bass Highway and then east towards Launceston. Just east of Elizabeth Town, after having travelled about 48 kms from Railton, the coupling of the trailer detached from the truck. At that point the Bass Highway is dual lane and the section of road is straight. The speed of the truck was estimated to be about 85 kph.

10 After having become unconnected from the truck the trailer travelled at an angle across the continuous white centre line and onto the incorrect side of the highway. It collided with a Toyota mini-bus travelling in the opposite direction at about 110 kph. The mini-bus was operated by the Tasmanian Cancer Council as the patient transport service. It was being driven by a Mr Tours. The passengers were patients returning home after having been to the Launceston General Hospital for treatment. Mr Tours had no opportunity to avoid a collision with the trailer and the police investigation disclosed no evidence that the mini-bus skidded before impact. The driver of a vehicle following the bus was able to narrowly evade the trailer.

11 The trailer cut into the driver's side of the bus. Following impact the bus rotated and struck a power pole on the southern side of the road. The passenger seated immediately behind the driver and the passenger one further seat back were killed instantly. The passenger behind them died from her injuries later the same day. The driver and three other passengers suffered grievous injuries.

12 The police investigation revealed no mechanical faults with the trailer coupling or tow ball.

The applicant's personal circumstances and record

13 The learned magistrate was told or given documents that indicate the following. The applicant is aged 55. He lives in Queensland. He has been engaged in the transport industry for 37 years during which he has worked as a driver, in dispatching, loading and unloading vehicles and in supervisory positions. He has been with his current employer for about 16 years. He has been married for seven years. His wife is an insulin dependent diabetic in poor health who relies heavily on the applicant for her care. A report from a psychologist indicates that following the collision the applicant suffers from some post-traumatic and depressive symptoms including anxiety and sleep disruption.

14 The learned magistrate was given the applicant's Queensland traffic record. It discloses offences committed between 1995 and 2012. The applicant was disqualified from driving for 11 months for a drink driving offence in 1999. Between 2001 and 2012 he was suspended from driving five times for periods of either one or two months on each occasion for the accumulation of speeding infringements. In 2007 he was fined twice for an offence called "exceed mass requirement for a vehicle", by up to one tonne in one case and by more than five tonnes in the other case. I infer that this concerns driving overweight vehicles. The magistrate also had the applicant's record from New South Wales. It covers the period between 1981 and 1998. Its age means it is of less relevance. It discloses one low range drink driving offence in 1989, a small fine for negligent driving and six fines for driving more than 15 kph but less than 30 kph over the speed limit.

15 In the course of the investigation of the collision the police also seized the applicant's "driving hours record". The record disclosed 10 instances between 16 August 2012 and 9 September 2012 of the applicant failing to record a change of activity in his daily driving record contrary to regulation 42A(6)(a) of the Vehicle and Traffic (Vehicle Operations) Regulations 2001 and 15 instances of the applicant failing to properly record his rest breaks contrary to regulation 42A(1) of the same regulations. For those breaches the learned magistrate imposed a fine of $1000.

16 Section 32(2A) of the Traffic Act 1925 provides that "a person must not cause the death of another person by driving a motor vehicle on a public street negligently."

17 Section 32(2B) of the Traffic Act 1925 provides that "a person must not cause grievous bodily harm to another person by driving a motor vehicle on a public street negligently."

18 Regulation 146 of the Vehicle and Traffic (Vehicle Standards) Regulations 2001 required that the trailer being towed by the applicant on the day of the offence was connected to the towing vehicle by at least one chain, cable or other flexible device, as well as the coupling, such that the trailer was kept in tow if the coupling breaks or accidentally detaches. The maximum penalty for breach of the regulation is a fine of $2600. The count subject to the appealed sentence concerned the driving after the truck left Railton. The other count of breach of this regulation concerned the failure to secure the trailer on the journey from Prospect to Railton. On that count the applicant was fined $1000.

19 Both negligent driving counts were particularised to assert that the negligence was that the applicant used a vehicle which he "knew, or should have known, was in an unsafe and dangerous condition."

20 The learned magistrate conducted the sentencing hearing during the morning of 26 June 2013. At its conclusion he adjourned the hearing until 3.30pm and sentenced the applicant then. His Honour produced and published his sentencing remarks which included the following:

"I have taken into account all that is said in mitigation and the contents of all of the material tendered being:-

• your record of prior convictions;
• the photos of the vehicle and scene;
• medical and psychological reports; and
• reference.

The defendant is 55 years old. He is married. His wife enjoys poor health and is dependent on the defendant for many aspects of her care - bathing, medications etc. You have been a professional driver for many years. You have a number of traffic matters in your history. I take into account your plea of guilty and the early indication of that to police. I accept you are remorseful and have an appreciation of the suffering your negligence has caused.

Dealing with the causing death by negligent driving charges I note that the maximum penalty available to me is 12 months and a fine of 10 penalty units. For the charge of causing grievous bodily harm by negligent driving the maximum penalty available is six months imprisonment and a fine of $1,300.

Your counsel has urged me not to send you to prison. He has urged me to impose a wholly suspended sentence on these matters. He has submitted that I should impose the maximum penalty for the offences, but wholly suspend such sentences. I reject that approach.

In my view the appropriate approach is to gauge the degree of culpability involved in your behaviour within the range prescribed by the legislation. In your case, that range is to be judged within the worst, most culpable examples of negligent driving causing death involving an offender with a bad record attracting 12 months imprisonment. Your negligence on this occasion was significant. You were the driver of a commercial vehicle towing a large trailer long distances on busy highways. You are an experienced and professional driver.

The danger presented by uncoupled trailers should have been obvious to you.

You failed to ensure the trailer was properly attached twice that day in those circumstances.

Many drivers tow trailers on our roads. There are particular dangers and risks associated with doing so which must be addressed to ensure tragedies such as this do not occur.

Your failure to attach the safety chain not once, but twice and your failure to properly complete your diary record shows a cavalier attitude to your responsibilities.

General deterrence therefore has a significant role to play in sentencing.

As has been pointed by your counsel, causing death or grievous bodily harm by negligent driving is not and should not be seen as being the most morally culpable offence which causes death or serious injury on our roads.

Moral culpability is not necessarily simply gauged by consequences.

Indeed, on occasions there can be and is a mismatch between the degree of culpability involved in the driving and the consequences which flow from it.

It is therefore often difficult or fruitless exercise to attempt to find some sort of consistent syntheses whereby sentences for driving offences where death or injury result can be objectively divined where the field is covered by different offences with different ingredients and different penalty provisions.

This offending is not aggravated by speed, alcohol or inappropriate driving in the sense that the manner of your driving was improper. Nevertheless, your negligence was, as I say, significant. Your negligence clearly had tragic, even catastrophic consequences. Three people died. Your negligence has affected their families and loves ones. Four people were seriously injured. The injuries they suffered were significant and doubtlessly involved pain and distress for a long period for them and their families. The ramifications of your negligence are therefore major and long lasting. As an experienced, professional driver these ramifications or at least the potential for them, or some of them, should have been apparent to you.

It is submitted that your remorse, contrition and family circumstances regarding your wife's health and the lack of aggravating features should all satisfy me to wholly suspend any sentence of imprisonment. They do not so satisfy me. I accept you are probably very unlikely to offend like this again. Your prospects of rehabilitation, in that sense, are good. However, I must take into account all the factors relevant to sentence in arriving at the appropriate sentence.

The hardship your wife will suffer is one, but only one such factor. It is not determinative of what is appropriate. Your prospects of rehabilitation are likewise not determinative.

However those factors are relevant as to whether I should suspend some or all of a sentence of imprisonment - see Dinsdale (2000) 202 CLR 322 at 329 330 and 349."

21 No one should be sentenced for an offence of which they have not been convicted. Where there are aggravating circumstances which might have led to a more serious charge, or a separate one, it is not proper or fair to sentence on the basis of uncharged conduct. The applicant was to be sentenced for the offences to which he pleaded guilty without regard to circumstances or elements that are ingredients of a more serious offence of a similar nature with which he might have been charged, but was not: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 per Gibbs CJ at 389, Lovegrove v R [1961] TASStRp 13; (1961) Tas SR 106 and Wahl v State of Tasmania [2012] TASCCA 5.

22 This ground of appeal asserts that the learned magistrate offended these principles by punishing the applicant for "elements of recklessness" when he pleaded guilty to negligent driving. A number of passages from the learned magistrate's remarks are relied upon, including in particular his Honour's references to "culpability", that the "danger presented by uncoupled trailers should have been obvious" to him, to the "particular dangers and risks" associated with towing trailers and to the applicant's "cavalier attitude" to his responsibilities.

23 In Robertson v Watts (1964) 14 Tas R 18, Crawford J considered what constituted negligent driving in Tasmania. He followed Wintulich v Lenthall [1932] SAStRp 8; [1932] SASR 60, Neale v Walsh [1932] SAStRp 56; [1932] SASR 429, Brownette v Purcell (1941) 58 WN (NSW) 68 and Dennis v Watt (1943) SR (NSW) 32 and concluded that the question to be determined is whether the defendant exercised the degree of care that a reasonable and prudent driver would exercise in the circumstances. At [13] he referred to the passage in Wintulich at 63 where Murray CJ said:

"Negligence is the breach of a legal duty to take care, and the duty imposed by the law on persons who drive vehicles on a public road is that they shall manage them with the same degree of care as an ordinary prudent man would deem necessary in the circumstances presented to him, in order to avoid injury, or causing damage to the person or property of others who may be using the road. The standard, it will be noted is not of the exceptionally careful man, nor it is that which the actual driver may consider to be sufficient, but the standard of the average man who has regard for the safety and rights of others."

24 Robertson v Watts was followed by Burbury CJ in Price v Fletcher [1972] TASStRp 6; [1972] Tas SR 35. In Filz v Knox [2002] TASSC 82 Crawford J (as he then was) found that the test applied in Robertson v Watts applies to the charge of causing death by negligent driving under the Traffic Act 1925, s32(2A).

25 The combined effect of those authorities and s32(2C) of the Traffic Act is that the applicant, by his plea of guilty, accepted that taking into account the circumstances of the case, the nature, condition and use of the public street on which he was driving and the amount of traffic that was actually at the time, or that might reasonably be expected to be, on the public street, he breached the duty of care that a reasonable and prudent driver would exercise in the circumstances. His plea also involved acceptance that his negligence caused the death of three people and grievous bodily harm to four others.

26 The offences created by s32(2A) and s32(2B) of the Traffic Act 1925 are the least serious in a hierarchy of driving offences involving death and grievous bodily harm. In ascending order of seriousness a driver causing death may be charged with causing death by negligent driving contrary to s32(2A), causing death by dangerous driving contrary to s167A of the Criminal Code or manslaughter. A driver causing grievous bodily harm may be charged with an offence under s32(2B), dangerous driving causing grievous bodily harm contrary to s167B of the Criminal Code or grievous bodily harm contrary to s172 of the Code.

27 The crimes of dangerous driving causing death in s167A of the Criminal Code and dangerous driving causing grievous bodily harm in s167B require proof that death or harm was caused through dangerous speed or manner of driving. No state of mind is an element of the crimes and the standard of driving is to be judged objectively: Wahl v State of Tasmania [2012] TASCCA 5 per Evans J at [14]. In R v Coventry [1938] HCA 31; (1938) 59 CLR 633, the majority of the High Court said, at 638:

"[S]peaking generally, the expression 'driving at a speed, or in a manner, which is dangerous to the public' describes the actual behaviour of the driver and [in general] does not require any given state of mind as an essential element of the offence."

28 The crime of manslaughter involving the use of a motor vehicle is, by virtue of the Criminal Code, ss156(2)(b) and 159, committed when death is caused "by an omission amounting to culpable negligence to perform a duty tending to the preservation of human life". Culpable negligence is negligence that shows such disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment: Gallagher v State of Tasmania [2009] TASSC 84, Hall v R Tas unreported, Serial No 122/1962. See also the recent discussion of criminal negligence in driving offences involving death and injury King v R [2012] HCA 24; (2012) 245 CLR 588.

29 The crime of grievous bodily harm requires proof of either an intent to cause grievous bodily harm or foresight and likelihood of that outcome: Wahl at [8].

30 Sentences under the Criminal Code for crimes I have referred to are at large, that is punishable by imprisonment for up to 21 years.

31 The first point to be made is that in contrast to s32 of the Traffic Act 1925, which refers to both reckless driving and dangerous driving, there is no element of recklessness in either s32(2A) and s32(2B) or s167A of the Criminal Code. For both negligent driving and dangerous driving, the driving of the accused is to be viewed objectively, and neither requires proof of a mental element. The applicant submits that the sentencing magistrate took into account "elements of recklessness" thus indicating that he sentenced the applicant for a more serious offence involving that element. What he meant by "elements of recklessness" was not explained other than by reference to the passages in the magistrate's sentencing remarks referred to. It may have, in this context, been intended to mean a failure to give thought to an obvious and serious risk or a conscious and wilful disregard of an appreciated risk.

32 The learned magistrate said nothing to suggest that the sentence was imposed on the basis that the applicant foresaw but ignored the likelihood that death or grievous bodily harm may result from his actions. As to some lesser category of recklessness, if one exists, with one arguable exception nothing said by the learned magistrate suggested that he included as a factor in his sentence that the applicant failed to appreciate a risk. He did however say that "The danger presented by uncoupled trailers should have been obvious to you". Even if that statement does avert to a failure to appreciate a risk, and if that amounts to recklessness in this context, it takes the applicant nowhere. Such a failure is not an element in either of the two more serious offences in the hierarchy I have referred to and could not have formed the basis of a more serious charge. It did not offend the principle in De Simoni.

33 Complaint was also made about his Honour's references to the applicant's culpability. None of those references suggest a sentence on the basis of culpable negligence. The substance of what his Honour said, not just the form of words used, make clear that he was referring to moral culpability of the applicant and the extent, on his assessment, to which the applicant's driving departed from the standard of care of a reasonable and prudent driver; refer to the passages in SBF v R [2009] NSWCCA 231 at [119] and [128] also referred to by Evans J in Wahl at [20] and [21]. Further, the learned magistrate's first reference to the degree of culpability was not a reference to the applicant's conduct at all. The magistrate referred to the most serious, he used the word "culpable", example of offending which may attract the maximum sentence and then went on to assess the applicant's culpability within the range proscribed by that example.

34 The applicant's submission also referred to his Honour's use of the word "danger" in his remarks. Although not strictly covered by the ground in the amended notice to review, I have considered whether the remarks disclose that the learned magistrate fell into error by sentencing, having regard to elements or ingredients of dangerous rather than negligent driving. In R v Robert Borkowski [2009] NSWCCA 102 at [56], the NSW Court of Criminal Appeal discussed the offence in place in that State in the following terms:

"As the law presently stands, there is a rational, logical and cohesive hierarchy of offences concerned with the infliction of death or serious injury by the use of a motor vehicle. The offences range from negligent driving causing grievous bodily harm (s 42(1)(b) of the Road Transport (Safety and Traffic Management) Act with a maximum penalty of 9 months imprisonment) through the driving offences in the Crimes Act to manslaughter by gross criminal negligence. All of these offences involve varying degrees of negligence, however the actual conduct may be described, ranging from a lack of care and proceeding through dangerousness to culpable negligence: R v Buttsworth [1983] 1 NSWLR 658."

35 The reference in Borkowski to "varying degrees of negligence" is now to be read in light of the decision of the High Court in King v R [2012] HCA 24; (2012) 245 CLR 588. King involved a comparison of the criteria of liability for the offences of culpable driving causing death and dangerous driving causing death. The majority determined that for dangerous driving proof of the quality of driving referred to in McBride [1966] HCA 22; (1966) 115 CLR 44 is required, rather than proof of negligence, although negligence may and, in many if not most cases will, underlie dangerous driving causing death or serious injury. Thus negligence is not a necessary element of dangerous driving causing death or serious injury; see at [38]. The court applied the test for dangerous driving expressed by Barwick CJ in In McBride at 49 - 50:

"This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place.

...This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby." (emphasis added)

36 In King the High Court did not deal with the relationship between dangerous driving and negligent driving causing death or injury. Nevertheless it follows from the court's reasoning that the offences involve different elements, not just to be determined on the basis of differing degrees of negligence. In SBF at [128] it was said that there is "no bright line test to be applied in a case such as this to guard against a breach of the De Simoni principle". The court was there referring to offences higher in the hierarchy but the same applies in this case. Although Bell J disagreed with the ultimate conclusion of the majority in King, her Honour at [87] made the obvious point that driving a motor vehicle on or near a public road is attended by risk of injury to persons in the vicinity. In my view the extent of the risk of death and injury posed by the negligence is a permissible sentencing consideration. The factors for determining negligence expressed in s32(2C) of the Traffic Act make clear that they are relevant also to that risk, that is that in considering negligence the risk of harm created by those factors is relevant to whether, and if so to what, extent the driver has breached the duty of care.

37 No complaint was made either before the sentencing magistrate or before this Court about the particulars of negligence which referred to use of a vehicle in "an unsafe and dangerous condition". The substance of what his Honour said, rather than the form of words used, refer to the risk posed to others of driving a vehicle in that condition. His Honour was explaining how the risk posed illustrated the extent of the applicant's departure from the standard of driving expected of the applicant. It would seem to me to be an entirely artificial and unsatisfactory situation if a magistrate, when sentencing for negligent driving which resulted in death or serious injury, could not take into account his assessment of the degree of the risk of injury and death posed by the negligent driving. I am satisfied that his Honour properly sentenced the applicant for negligent driving. His remarks do not disclose that he impermissibly took account of elements of a different offence. I am not satisfied that error is established.

Grounds 2 and 3 - the decision to not wholly suspend the sentence

38 I will deal with grounds 2 and 3 together as they both relate to the learned magistrate's decision not to wholly suspend the sentence of imprisonment. In the course of his remarks he said:

"It is submitted that your remorse, contrition and family circumstances regarding your wife's health and the lack of aggravating feature should all satisfy me to wholly suspend any sentence of imprisonment. They do not so satisfy me. I accept you are probably very unlikely to offend like this again. Your prospects of rehabilitation, in that sense, are good. However, I must take into account all the factors relevant to sentence in arriving at the appropriate sentence.

The hardship your wife will suffer is one, but only one such factor. It is not determinative of what is appropriate. Your prospects of rehabilitation are likewise not determinative.

However those factors are relevant as to whether I should suspend some or all of a sentence of imprisonment - see Dinsdale (2000) 202 CLR 322 at 329, 330 and 349."

39 The grounds of appeal assert that his Honour suggested that the applicant bore some onus to satisfy him that the sentence should be wholly suspended and confined himself to matters of mitigation in deciding whether to suspend the sentence. I am not persuaded that either ground has any merit.

40 In sentencing the first step is to determine whether a sentence of imprisonment and not some lesser sentence is called for. The separate, next step is to consider whether its execution should be wholly or partly suspended: Dinsdale per Kirby J at 346, [79]. All the circumstances of the case, not just the effect of the sentence on the rehabilitation of an offender, are relevant to the exercise of the discretion to conditionally suspend the whole or a part of the sentence: Langridge v R [2004] TASSC 97 at [26] - [34]. The remarks made by the learned magistrate in this case do not disclose any departure from these principles. He correctly stated that he must take into account all the factors relevant to sentencing in arriving at the appropriate sentence. His reference to matters of mitigation disclose that he took those matters into account. He did so because reliance was placed on them by counsel for the applicant. However his remarks do not disclose that he took only those matters into account. In his remarks his Honour went into all the circumstances of the offences and the circumstances of the applicant in some detail and it is obvious that he took all of those circumstances into account.

41 Before the learned magistrate the applicant faced no presumption that he should actually serve a sentence of imprisonment and bore no onus to persuade the learned magistrate that it ought be wholly suspended. The learned magistrate did not suggest the contrary. The words he used simply expressed his conclusion that, contrary to the submission of counsel for the applicant, he had decided not to suspend all the sentence.

42 Ground 4 alleges that the sentence was manifestly excessive. This appeal is brought pursuant to s107 of the Justices Act 1959. It is not a re-hearing. The applicant must establish error in the exercise of the sentencing discretion. The applicant contends that the learned magistrate erred by imposing a sentence which is manifestly excessive. In such an appeal the Court must be persuaded of error of the type referred to in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505, that is that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". It must be established that the order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: see Bresnehan v R [1992] TASSC 55; (1992) 1 Tas R 234 at [13], Lusted v Kenway [2008] TASSC 47 at 38.

43 It is not enough that the appeal court would have imposed a different sentence: Tanner v Brown [2011] TASSC 59 at [49]. A sentencing magistrate has a very wide discretion to exercise. The imposition of a sentence involves the "exercise of judgment and evaluation upon which minds can differ"; per Kirby J in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 339. In determining a sentence, there is not a "single correct answer arrived at by some process admitting of mathematical precision": Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 624. An applicant is not entitled to ask this Court to substitute its opinion for that of the magistrate: M v Hibble [2003] TASSC 13 at [14] where Crawford J (as he then was) cited Whittle v McIntyre [1967] Tas SR (NC 6) and Jones v Fleming [1956] TASStRp 20; [1957] Tas SR 1. The applicant must establish that the sentence imposed by the sentencing magistrate was "outside the permissible range of dispositions": AB v R [1999] HCA 46; (1999) 198 CLR 111 per Hayne J at [129] - [130]. An appellate court should intervene to overcome a departure of such gravity that it is essential in the administration of justice that the error be corrected: Visser v Smart [1998] TASSC 151. As to when it is appropriate for an appeal court to intervene in sentencing in appeals of this nature, Gaudron, Gummow and Hayne JJ, said in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605:

"In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons."

44 Manifest excess in a sentence is revealed when regard is given to all the matters that are relevant to determining that sentence: Hili v R [2010] HCA 45; (2010) 242 CLR 520 at 539.

45 The starting point in considering whether the sentence imposed on the applicant is manifestly excessive is examination of the level of the applicant's culpability. It is not suggested that speed, drugs, alcohol or manner of driving contributed to the collision. There was no factor beyond the circumstances of the offence itself which demanded a sentence of imprisonment. The applicant pleaded guilty and demonstrated remorse. He has never been to prison. He has committed no other offence involving serious criminality. His record discloses a history of regulatory driving offences which deny him any particular lenience when dealing with offences of that type, but are not so bad as to indicate that a sentence of imprisonment is required for reasons of personal deterrence or protection of the public. He is well regarded by his employer. He had no intention of harming anyone. He is unlikely to offend again and is not in need of rehabilitation. He has some health issues which may make prison difficult for him although not any more so than many other offenders.

46 Counsel for the applicant placed particular emphasis on the effect of the applicant's imprisonment on his wife. His wife is in very poor health and relies almost entirely on the applicant for her care. However for the reasons explained by Crawford CJ in Gibbins v White [2004] TASSC 8 at [19] generally speaking hardship to dependants is not a significant mitigatory factor although in exceptional cases hardship to family has been taken into account. See also R v Georgiadis (No 5) [2001] TASSC 88.

47 I regard the level of negligence demonstrated by the applicant in this case as high. It is a serious example of the offences with which he was charged. The negligence that caused the death and grievous bodily harm was to drive the truck and trailer when he had not attached the safety chain to the trailer or ensured that it was attached. The trailer was unsafe because there was nothing to secure the trailer if the coupling failed or was accidentally detached. Whilst the applicant was not the person who physically attached the trailer before the truck left Railton for Launceston he must have known, having attached the trailer before the truck left Launceston, that the absence of a shackle on the chain meant that it could not have been secured to the truck. He was a senior employee and had considerable experience in transport vehicles. He did nothing to secure the trailer and did not suggest to the sentencing magistrate that he had no opportunity to take steps to secure it. The truck and trailer were to be driven on one of Tasmania's principal highways which carried a high volume of traffic at high speed. It would have been obvious to a reasonably prudent driver that the consequence of the trailer becoming detached from the truck could be catastrophic, as they turned out to be.

48 The fact that death and grievous bodily harm was caused is not to be treated as an aggravating factor because they are, in each case, ingredients of the offences. It is also the case that the same negligence constitutes the two most serious of the three counts subject to the sentence. Nevertheless the number of people killed and injured justified an increase in the severity of the sentence. Those who were injured suffer ongoing consequences of their injuries.

49 As was pointed out by Underwood J (as he then was) in Director of Public Prosecution v Watson [2004] TASSC 54 at [21], death and injury from negligent driving is now widely recognised by the community as a serious social and financial problem. In that case his Honour was dealing with an appeal against a sentence imposed for manslaughter by culpably negligent driving which involved factors different than in this case. The change in the legislative regime arising from concern about driving offences involving death and injury, including an increase in the maximum permissible penalties for those dealt with summarily, was referred to by Cox CJ in Shipton v R [2003] TASSC 23 at [9]. In Moyle v Tasmania [2010] TASCCA 2 the Court of Criminal Appeal reviewed a sentence for causing grievous bodily harm by dangerous driving. In the course of doing so the Court reviewed the sentences imposed by the Supreme Court in Tasmania for dangerous driving causing death or grievous bodily harm. Crawford CJ, although dissenting in the ultimate resolution of the appeal, referred to his analysis in Gallagher v State of Tasmania [2009] TASSSC 84 and recognised that in recent years the Court had "made it clear that the general level of sentences for serious driving offences should be increased from what it was in the past".

50 The cases to which I have just referred do not deal with charges based on negligent driving. The applicant was not charged with dangerous driving or culpable negligence and was not to be sentenced on that basis. I referred to the hierarchy of such offences in terms of seriousness earlier in these reasons. Nevertheless the authorities to which I have referred make clear that for serious driving offences general deterrence is a significant sentencing consideration. As Bray CJ said in R v Thompson (1975) 11 SASR 217 at 222:

"... there are offences where the deterrent principle must take priority and where sentences of imprisonment may properly be imposed, even on first offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour."

51 No complaint is made about the period of disqualification imposed on the applicant. At the sentencing hearing and at the hearing of this application counsel for the applicant did not submit that a custodial sentence was inappropriate. To the contrary he submitted to the learned magistrate that he could impose the maximum custodial sentence, by which I infer he meant a sentence of 12 months imprisonment, but suspend all of it. If that reasoning is to be applied then it is not the sentence of imprisonment or the length of the head sentence which constitutes the sentence as manifestly excessive, but the failure to suspend all of it. In determining whether to suspend all or part of the sentence the magistrate was entitled to take all of the circumstances of the case into account: Langridge v R [2004] TASSC 97 at [34]. By extension, I am to take all the circumstances into account in determining whether the sentence was manifestly excessive.

52 I have been referred to no other sentences previously imposed in this State for the offences for which the applicant was sentenced. That is most likely because such sentences are imposed by magistrates and details are not readily available. I was referred to no appeals that suggest a sentencing range or standard. From my experience of sentencing in the Magistrate's Court the offence of causing death by negligent driving commonly attracts sentences of imprisonment which are wholly suspended. Nevertheless I would bear in mind the comments of Wright J sitting as a member of the Court of Criminal Appeal in R v Dowie (1989) Tas R 167 at [61]:

"A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, especially if it illuminates the dispositions made where a particular type of relationship exists (see Tracey & Ors v The Queen 38/1987), but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances."

53 The sentence imposed on the applicant is to be considered in light of the sentencing range contemplated in the legislation. For causing death by negligent driving the maximum penalty for a first offence is imprisonment for a term not exceeding one year and a fine not exceeding $1300. For causing grievous bodily harm by negligent driving the maximum penalty for a first offence is imprisonment for a term not exceeding six months and a fine not exceeding $1300. In each case the maximum penalty for a subsequent offence is doubled. The learned magistrate imposed one sentence, which was three months less than the maximum penalty for a first offender provided by the legislation for the most serious count. He then determined to suspend three months of that sentence.

54 It seems to me also that the sentence imposed by the learned magistrate sits comfortably against the range of sentences imposed for more serious offending discussed in Shipton, Watson Gallagher and Moyle.

55 Having regard to the circumstances of the applicant's offences, especially the degree of negligence of the applicant and its consequence, a custodial sentence of the term imposed does not demonstrate error. His Honour took the view that having regard to the importance of general deterrence for offences of this nature that he would require the applicant to immediately serve six months of the sentence. This was a case in which his Honour was entitled to conclude that, even for a person of otherwise good character, the gravity of the offence and the need to condemn and deter others from such negligence required imposition of a sentence of actual imprisonment. A strong punitive measure was appropriate, notwithstanding the personal circumstances which could be properly taken into account. I am not persuaded that the sentence imposed was outside the permissible range of sentences.

56 The specific errors asserted in grounds 1, 2 and 3 of the notice to review have not been made out. As to ground 4 I conclude that while the sentence imposed was a high one, it was not so high as to demonstrate error on the part of the sentencing magistrate. The sentence was not manifestly excessive. The notice to review is dismissed.