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[2012] ACTSC 136
General information, not legal advice.
Supreme Court of the ACT
2012-08-15
Higgins CJ
Original judgment source is linked above.
[2012] ACTSC 136 (15 August 2012)
APPEAL AND NEW TRIAL - In general and right of appeal - Appeal from Magistrates Court - Appeal against sentence - Appeal dismissed.
CRIMINAL LAW - Jurisdiction, practice and procedure - Judgment and punishment - Sentencing - Culpable driving causing grievous bodily harm - Whether manifestly excessive - Not manifestly excessive.
CRIMINAL LAW - Jurisdiction, practice and procedure - Judgment and punishment - Sentencing - Driving while suspended - Whether manifestly excessive - Not manifestly excessive.
CRIMINAL LAW - Jurisdiction, practice and procedure - Judgment and punishment - Sentencing - Whether common elements of multiple offences punished twice.
Bail Act 1992 (ACT), s 56A(2)
Crimes Act 1900 (ACT), s 29
Crimes (Sentencing) Act 2005 (ACT), ss 7, 66
Magistrates Court Act 1930 (ACT), s 216, div 3.10.2, pt 3.10
Apolevski v Kinnane [2010] ACTSC 43
Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
JA v Macdonald [2011] ACTSC 22
Kennewell v Rand [2006] ACTCA 10
Kien v The Queen [2012] ACTCA 25
Ledson v Taylor [2010] ACTSC 42; (2010) 239 FLR 184
MacIntyre (1988) 38 A Crim R 135
Morley (1984) 13 A Crim R 431
R v Alzaabi (Unreported, Supreme Court of the ACT, Higgins CJ, 12 September 2008)
R v Calvert [2010] ACTSC 80
R v Campbell [2010] ACTCA 20
R v Creighton [2011] ACTCA 13
R v Debrueys [2011] ACTSC 178
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Harper [1980] Tas R 16
R v Holder [1983] 3 NSWLR 245
R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209
R v Kurzynski [2001] ACTSC 90
R v Moffat (Unreported, Supreme Court of the ACT, Penfold J, 12 June 2008)
R v Norris (Unreported, Supreme Court of NSW Court of Criminal Appeal, Enderby, McInerney and Badgery-Parker JJ, 13 October 1989)
R v Overhall (Unreported, Supreme Court of the ACT, Crispin J, 19 June 2006)
R v PM [2009] ACTSC 24
R v Slattery (1996) 90 A Crim R 519
R v Williscroft [1975] VicRp 27; [1975] VR 292
Tricklebank (1993) 69 A Crim R 351
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
2. The sentence imposed by the Magistrates Court for the charge of culpable driving causing grievous bodily harm be confirmed to start on 4 June 2012 and end on 3 November 2013 with a non-parole period of two years and three months to start on 4 January 2011 and end on 3 April 2013.
1. In the early hours of the morning of 3 April 2011, the appellant, Kalonga Chifuntwe, was in a black Holden sedan in front of another Holden sedan, blue in colour, stationary at a roundabout in Wanniassa when a marked police car pulled up behind them.
2. Mr Chifuntwe and the other car drove away, accelerating into the streets of the suburb. Police followed the cars, overtaking the blue Holden sedan and pulling in behind the black Holden sedan driven by Mr Chifuntwe, and signalled him to stop. He did not do so, despite the police activating their car's warning lights.
3. Mr Chifuntwe was driving at a speed well above the limit of 60 km per hour; indeed, at one stage, the police were travelling at 120 km per hour and not gaining on the black Holden sedan which he was driving.
4. At an intersection in the suburb, the black Holden sedan collided with a tree. One of the passengers in the back seat was seriously injured and transported to The Canberra Hospital where he was admitted to its Intensive Care Unit. Mr Chifuntwe was found hiding in a drain in adjacent parkland. He smelled of having intoxicating liquor on his breath. He was subsequently subjected to formal breath analysis which showed a breath alcohol reading of 0.109 grams of alcohol per 210 litres of breath, a Level 3 reading under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act).
5. He was arrested and charged with the following offences:
(i) Culpable driving, namely, negligently causing grievous bodily harm, an offence under s 29(4) of the Crimes Act 1900 (ACT), which carries a maximum penalty of four years imprisonment;
(ii) Driving, as a first offender, while his licence was suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), rendering him liable to a maximum penalty of 50 penalty units (that is a fine of $5 500) or imprisonment for six months or both;
(iii) Failing to stop when signalled by a police officer, prohibited by s 109 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), for which the maximum penalty is 20 penalty units (that is a fine of $2 200);
(iv) Failing to comply with bail conditions not to drive a motor vehicle or consume alcohol, but this is not an offence; it merely entitles the police under s 56A(2) of the Bail Act 1992 (ACT), to arrest Mr Chifuntwe and bring him before the Court;
(v) As a first offender and being a special driver, driving a motor vehicle on a public street with a Level 3 breath alcohol reading, an offence against s 19(1) of the Alcohol and Drugs Act, the maximum penalty for which is, under
s 26 of that Act, 10 penalty units (that is a fine of $1 100), or imprisonment for six months or both;
(vi) Doing a burnout in a vehicle, an offence under s 5B(2) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), for which the maximum penalty is 20 penalty units (that is a fine of $2 200).
6. He appeared in the Magistrates Court on 4 April 2011 and, after several adjournments, pleaded guilty to the offence of culpable driving causing grievous bodily harm on 26 May 2011. Presumably he also pleaded guilty to the other offences. A Pre-Sentence Report was ordered and sentence was imposed on 8 August 2011.
7. The following were the sentences that were imposed:
(i) Culpable driving causing grievous bodily harm - 17 months imprisonment, reduced from 20 months because of his plea of guilty, to commence on 4 June 2012.
(ii) Driving while suspended - three months imprisonment commencing on 4 June 2012.
(iii) Driving with the prescribed concentration of alcohol - to the rising of the Court.
(iv) Failing to stop - fined $200 with no time to pay.
(v) Doing a burnout - fine of $200 with no time to pay.
8. He was also disqualified from holding a driver licence for two years in respect of the charge of culpable driving causing grievous bodily harm and for varying periods in respect of some of the other offences but, in those cases, the disqualifications were each for a lesser period and directed to be concurrent with the two year period.
9. On 15 March 2012, Mr Chifuntwe sought leave to appeal against sentence and on 23 March 2012, the Master granted leave. A Notice of Appeal was filed on 3 April 2012.
10. This court has power under pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court; div 3.10.2 regulates appeals in criminal matters such as this appeal.
11. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.
12. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.
13. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
14. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
15. In this case, that stay commenced on 3 April 2012, well after the imposition of the sentences. That means that the sentences for all but two of the offences have now been completed. The sentence on the charge of driving with the prescribed concentration of alcohol, namely to the rising of the Court, was completely served that day. The sentences for the charges of failing to stop and doing a burnout were fines with no time to pay; accordingly, he has no liability to pay them as a result of the operation of s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT) and they were not stayed for his liability for them has been reduced to zero.
16. While the facts have been generally outlined above, there are a few matters that should also be mentioned.
17. I did not have a statement of facts in relation to the charge of doing a burnout. The only reference in the reasons for sentence of the learned Sentencing Magistrate is that it occurred "a couple of hours or so before this more serious incident occurred".
18. Since the penalty for it was a modest fine, which was reduced completely concurrently with the sentence of imprisonment he was then serving, I need not trouble about it further.
19. The manner of driving was referred to by the learned Sentencing Magistrate as "grossly negligent driving and aggravated by the fact that he was engaged in a police pursuit, driving contrary to a direction by police to stop".
20. Of course, strictly the failure to stop is a separate offence for which he was separately punished and this cannot be taken into account for the sentencing for the charge of culpable driving causing grievous bodily harm because of the principle set out in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383.
21. The injured passenger was, as noted above (at [4]), hospitalised and a detailed report was tendered to the Court. It was prepared by Dr Catherine Sansum and was based on an examination of the medical records of the victim. The report is, relevantly, as follows:
Collision/Assault History as I understand it from the documentation provided
Injuries Sustained as I understand it from the documentation provided
Treatment Required as I understand it from the documentation provided
22. Dr Sansum then expressed her opinion as follows:
23. At the time that Mr Chifuntwe was sentenced, he was serving a sentence of imprisonment that had been imposed by Nield AJ for an offence of aiding and abetting an aggravated robbery committed on 3 February 2010.
24. On 24 May 2011, Nield AJ sentenced Mr Chifuntwe on that charge to imprisonment for two years and one month to commence on 4 January 2011 and a non-parole period of one year and five months to end on 3 June 2012.
25. Mr Chifuntwe was born in Zambia and came to Australia with his parents when he was two years old and his parents were looking for a better life. He is the eldest of his parents' four children and, at the time of the offence, was 19 years old.
26. He had, it appears, a happy and enjoyable childhood, but, in his adolescence, the relationship with his parents became strained due to him engaging in poor behaviour and being argumentative with them. He left home when he was 16 and went to live with friends.
27. He attended school in Canberra, completing his schooling at Year 11 at Erindale College in 2009. He was reasonably popular at school but had some good and bad friends - the latter having criminal records. He was also in trouble for fighting and was suspended from time to time. His grades were inconsistent as he was easily distracted and was asked to leave as he did not have appropriate credits for graduation. He enrolled at the Canberra Institute of Technology to complete Year 12 but failed to continue because, he said, he could not concentrate.
28. Mr Chifuntwe has had some short term employment in fast food outlets, but usually only for a week or two. He had a casual job in a local supermarket for some weeks but lost the position when he failed to attend for work.
29. It appears that at some stage he was granted bail to attend the Koolamon Restoration, a drug rehabilitation facility. He generally complied with the rules of the program, reasonably participating and contributing until his enrolment was terminated after four months for "failing to adhere to Koolamon Restoration policies", namely taking three days unapproved leave contrary to direction. He said, however, he learnt some positive communication skills whilst attending.
30. During this time, however, he was employed through a labour-hire company to assist a glazing business with its contract to fit windows in a shopping centre. He held the position for about two months. He enjoyed the work and his workmates and boss and that he was gaining skills and remaining in employment.
31. He is single, but has had one intimate relationship when he was 18, though it ended when he lost interest in his partner. He has no children.
32. Mr Chifuntwe first drank alcohol at age 15 and continued to do so until he was taken into custody. He started using illicit drugs when he was 16 and used them continuously before his residency at the Koolamon Restoration.
33. He told the author of the Pre-Sentence Report tendered in the Supreme Court, and which was also tendered in the Magistrates Court, that he stopped using illicit drugs when he entered the Koolamon Restoration and has not done so since then. He did, however, use some cannabis before he was exited from the facility. He has completed the First Steps Program at the Alexander Maconochie Centre.
34. Mr Chifuntwe has no physical injuries and is in good health. His mental health has also been fine, though he has been depressed as a result of his involvement in the various criminal activities that have brought him before the courts.
35. Mr Chifuntwe has accumulated a disturbing criminal record. [Redacted for legal reasons]. He has also been convicted of possessing MDMA. As noted above, he was, before the sentence for these offences, convicted and sentenced for aiding and abetting an aggravated robbery committed before them.
36. The learned Sentencing Magistrate had before him Victim Impact Statements from the victim, his partner and his mother.
37. The victim noted that, before the accident, he had participated in his College's "talented sports program", had just signed a school-based apprenticeship with a glass company and played football at the weekends with a local club. These matters have all been adversely affected.
38. He also missed much of his schooling so that he was not able to complete his Year 12 studies till about six months after he had intended to do so. He is no longer able to participate in sport, which has affected his "school package". He has been told he will not be able to play football again.
39. He cannot lift heavy objects which has put his apprenticeship and job in jeopardy.
40. He has lost his feeling of pride in himself, and has a "horrendous scare [sic] across [his] torso followed through to [his] back which embarrasses [him]".
41. He noted that his injuries and hospitalisation worried his parents, leading to his mother relying on medication to manage.
42. His recovery, he said, is going to be "long and hard", with his liver remaining fragile and due to nerve damage he may never feel parts of his abdomen again. He will have to undergo further treatment, including further operations.
43. His mother confirmed how her life had also been disrupted and described the pain of being told, while her son was hospitalised, "that he may not pull through". She has had to give up her part-time work and now suffers extreme anxiety, not being able to drive for about two months after the accident. Even travelling as a passenger in a car causes her "anguish".
44. Her social life has been affected and she is under medical care, necessary so that she can function on a daily basis.
45. The victim's partner stated that the accident and the victim's injuries had affected her mentally and physically, leading to her having trouble with her schooling, working and their relationship with his friends. Her absence from work also had a financial effect.
46. She found it very hard when the victim began blaming her for some delays in his recovery. She also had to explain to his friends how he would not be able to play sport with them or socialise in the same way again.
47. These things also affected her physically and her stress made her ill, especially as she was not sleeping or eating properly because of the stress she was experiencing.
48. The learned Sentencing Magistrate described the offences and the circumstances under which they were committed and referred to the Pre-Sentence Report which he had read. His Honour summarised the medical report of Dr Sansum and referred to the Victim Impact Statements, noting the victim's recounting of "very, very significant, it seems, permanent change in his life as a result of the injuries he's sustained". His Honour quoted from part of the Statement.
49. His Honour described the offending as follows:
The offence, of course, is aggravated by the stated fact that it was conducted ... after having been requested by police to stop, and refusing to stop. [It] [m]ight be also aggravated it by the fact that he had a level 3 reading of alcohol in his system, and although the Crown does not wish to - or seem to resist wanting to particularise that as being one of the aspects of the culpable driving, it seems to me that a person with a reading that he had - 0.104 - with a limit of 0.09, must have been a condition so as to not be able to properly or incapable of having proper control of the vehicle.
At that level he may have some control, but clearly the very fact that we charge people with drink-driving and a sea [sic] of penalties apply is recognised that if you have that amount of alcohol in your system you're not capable of having proper control of the vehicle. So in my view that's part and parcel of the culpable driving, and an aggravating factor.
Of course, a serious aggravating factor is the fact that on the time he was on Supreme Court bail with specific condition not to drive a motor vehicle. So he is in breach of that bail both by the fact of being on bail, but specifically breaching a condition of his bail to not drive his motor vehicle.
50. His Honour also noted that Mr Chifuntwe, and another occupant of the car, ran away after the accident, leaving the victim in a very serious condition in the car. Of course, the police arrived at the scene of the accident very shortly afterwards.
51. His Honour referred to Mr Chifuntwe's record, noting that he had no prior convictions or findings of guilt for traffic offences. His Honour also noted that he was still relatively young but referred to what Lee CJ at CL said in MacIntyre
(1988) 38 A Crim R 135 at 139:
In dealing with a commission of a serious crime by a young man, the courts make every effort, if it can be properly done, to avoid the penalty of gaol. But against that, it must be said that when young men are able to hold licences of 17 years of age and drive their cars after drinking excessive quantities of alcohol, and at a high rate of speed as in this case, and cause death, no significant reason can be found for differentiating between their driving and that of persons who are older. Each is a potential killer on the roads. The lack of foresight in youth, the reckless spirit of youth will always be there and must always be recognised by courts, but that cannot, when punishment is under consideration, be recognised to the point of leading young drivers - who, regrettably, form a significant proportion of motor traffic offenders - to believe that an offence [of culpable driving] resulting in death will lead to light punishment.
52. His Honour considered that the same principles applied to charges of culpable driving causing grievous bodily harm.
53. His Honour referred to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT), and described as "two very significant factors" the adequate and just punishment of the offender and the prevention of crime by deterring the offender and other people from committing the same offence.
54. His Honour considered that no other punishment than imprisonment was appropriate and considered but dismissed as inappropriate in these circumstances the serving of the term of imprisonment by periodic detention or as a suspended sentence.
55. His Honour gave Mr Chifuntwe credit for his plea of guilty, noting that it saved the community the expense of a trial and the victim the requirement to give evidence. Even though, his Honour noted, it was a strong case, the plea of guilty should attract some discount.
56. His Honour then imposed the sentences set out above (at [7]). His Honour set a non-parole period (which had to be re-set under s 66 of the Crimes (Sentencing) Act) to start on 4 January 2011 (when the earlier non-parole period started) and to expire on 3 April 2013, namely, adding a further 10 months to that of the earlier sentence.
57. His Honour, however, initially expressed the end of the non-parole period to be 3 December 2012; his Honour then corrected himself to 3 April 2012, clearly an error or slip of the tongue.
58. Mr Chifuntwe initially sought an extension of time within which to appeal because of the inconsistencies with the sentence. It was heard by Penfold J on 17 February 2012.
(i) he was re-setting the non-parole period to be 27 months from 4 January 2011, namely to expire on 3 April 2013;
(ii) he noted that Nield AJ had set a non-parole period of 17 months (one year and five months) from 4 January 2011; and
(iii) he intended to add a further 10 months of non-parole period.
60. All these clearly point to a non-parole period expiring on 3 April 2013. His Honour's expression appears to have been an error.
This matter be referred to the Registrar of the Magistrates Court to confirm that the orders made by the Magistrates Court to give effect to Magistrate Dingwall's orders, do indeed reflect the Magistrates orders, and either:
- To arrange for the correction of the order if they are not correct, and notify Corrective Services of the corrected orders; or
- If the orders are correct, to notify Corrective Services again of the correct form of the order and request Corrective Services to check their records are consistent with the orders made by Magistrate Dingwall.
62. While that referral back was appropriate, it seems to me that the error in his Honour's articulation of the sentence should have been corrected in open Court on notification to the parties as explained in Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178 at 192-4; [81]-[93]. See, for example, R v Calvert [2010] ACTSC 80; R v Debrueys [2011] ACTSC 178.
63. It appears that amended warrants and committal orders were prepared. I am not aware whether any hearing was held as required.
64. No point has been taken about that and, given what his Honour said, the orders as they now appear in the Appeal Papers show the non-parole period expiring on 3 April 2013.
65. Mr Chifuntwe challenged the severity of the sentences. He was unrepresented on the appeal, though he had been represented in the Magistrates Court proceedings.
66. His argument was that he considered that, for a young man, he had been sentenced too severely. This was compounded by the fact that the Sentence Administration Board actually received an application for parole from Mr Chifuntwe and on 28 February 2012 and had resolved to hold an enquiry into the application on 8 May 2012. Subsequently, however, the Board informed Mr Chifuntwe that as he was not then eligible for parole the enquiry date had been vacated. This, no doubt, was a motivation for his appeal.
67. The respondent submitted that there were aggravating features of the offence which needed to be considered. These were that:
(a) the offences were committed while Mr Chifuntwe was on bail;
(b) not only was he on bail but he was, in committing the offences, in breach of two bail conditions;
(c) the nature of the victim's injuries were life-threatening; and
(d) the negligence of Mr Chifuntwe showed a total disregard for traffic laws, court orders, law enforcement officers' directions and the safety of the passengers.
68. Mr Chifuntwe did not articulate his submissions clearly. Indeed, it is not to be expected that he would do so. It is, of course, important for the Court to see that any reasonable point of appeal that is apparently available to him is identified. This does not require the Court to "hunt" for such a point, but merely to ensure that the rights of an unrepresented litigant are respected where to do so would not be unfair to the respondent.
69. There seem to me to be two issues on the appeal. The first is whether the learned Sentencing Magistrate, in imposing the sentences and describing them, imported into them elements of the other offences (failing to stop, drink-driving), which impermissibly aggravated the penalties contrary to the principles in R v De Simoni and Pearce v The Queen (1998) 194 CLR 610.
70. The principle in R v De Simoni may be stated that, while a sentence imposed on an offender should take into account all the circumstances of an offence, it must be subject to a fundamental principle that an offender should not be sentenced for an offence of which he or she has not been convicted.
71. As a result, multiple charges are, as here, often laid to encapsulate the whole of the criminality of an offender and this will result in overlapping offences. In Pearce v The Queen, the High Court decided that a sentencer must impose a proper sentence on each offence and not simply rely on concurrency (wholly or in part) to ensure that the total sentence for multiple offences thereby imposed is just as appropriate but no more severe than that. It also requires that, in imposing sentences for multiple offences, there be no double punishment where the elements of offences overlap.
72. The question in this case is whether the learned Sentencing Magistrate erred when he referred to the issues of Mr Chifuntwe's alcohol use and to his failing to stop.
73. Mr Chifuntwe was, of course, charged also with a drink-driving offence under s 19 of the Alcohol and Drugs Act and an offence of failing to stop. These contain, however, factors which are relevant to a charge of culpable driving which partly overlap with such offences but which are still relevant to that offence.
74. As Badgery-Parker J, with whom McInerney J agreed, said in R v Norris (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Enderby, McInerney and Badgery-Parker JJ, 13 October 1989):
There is ample authority for the proposition that evidence of a person's ingestion of alcohol to such a degree as to be likely to affect his ability to control a motor vehicle is relevant as one of the surrounding circumstances against which the quality of his driving, charged as driving in a manner dangerous to the public is to be judged. See, for example, Reg v McBride [1962] 2 QB 167; and Reg v Guthrie (1981) 52 FLR 171.
De Simoni and other cases of that kind are not concerned with the same question. They establish the principle that it is not permissible in sentencing to rely on circumstances of aggravation not alleged in the indictment which could have been the subject of a distinct and more serious charge. The distinction here is that, as the authorities I have cited make clear, the circumstances of an offender's ingestion of alcohol is relevant to determining whether his driving was indeed dangerous to the public. If such evidence be given, it still remains the case that he is charged with, convicted of and sentenced for driving in the manner dangerous to the public, not driving under the influence of liquor.
75. In my view, this approach is applicable to the offence of culpable driving causing grievous bodily harm, even though there are two ways in which it may be proved. Thus, s 29(6) of the Crimes Act provides:
For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle -
(a) negligently; or
(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.
76. That the prosecution chose to rely on negligence (s 29(6)(a)) or, indeed, could only prove the offence that way, does not render the intoxication of the driver offender irrelevant on sentencing. Of course, the evidence of a breath analysis alone is insufficient, there must be some evidence which shows that intoxication has a relevant relationship to the driving: R v Harper [1980] Tas R 16 at 21.
77. The fact that Mr Chifuntwe was also charged with a drink-driving offence does not make this factor irrelevant or a breach of the principle in R v De Simoni. The drink-driving offence is an offence created under s 19 of the Alcohol and Drugs Act committed by driving and a certain analysis of breath; the relevance to sentencing for the charge of culpable driving causing grievous bodily harm is the actual effect it had or was likely to have on the actual driving, as explained by McPherson JA, with whom Demack J agreed, in Tricklebank (1993) 69 A Crim R 351 at 357-8.
78. In this case, there was evidence that Mr Chifuntwe was actually affected by his consumption of alcohol; the Statement of Facts described him in the following terms: "[his] face was red, his eyes were bloodshot, his speech was slurred and he had an odour of intoxicating liquor on his person." That his speech was slurred was a real sign of impairment of motor and, probably, cognitive function which would have been liable to affect his driving. Thus, his Honour did not err in taking into account Mr Chifuntwe's intoxicated state as an aggravating feature of the offence.
79. So far as the reference to the pursuit was concerned, it was, of course, a consequence of the failure to stop when directed by the police officers, but it was an additional issue. Fleeing from a police officer when one is not arrested is not an offence, but doing so by driving at speed in suburban streets is a circumstance of aggravation of the manner of driving. It is a matter of which a court can take judicial notice that such behaviour has a high likelihood of causing death or serious harm.
80. The only other matter in regard to the first issue, is that Mr Chifuntwe was actually charged with these offences also. This raised the question of double punishment raised in Pearce v The Queen. Thus, it was said in that case (at 623; [40]):
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in the area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
81. In this case, his Honour imposed sentences that were, looked at in isolation, very lenient in respect of the drink-driving offence (sentenced to the rising of the Court) and failing to stop (a $200 fine).
82. Insofar as there were common elements with these offences in the offence of culpable driving causing grievous bodily harm and circumstances that were relevant to the elements of that offence, it was proper to reduce the sentences for those other offences to avoid the double punishment proscribed by the High Court in Pearce v The Queen. Had that not been the situation, it would have meant that these penalties were manifestly inadequate. Whether those sentences were manifestly inadequate even in those circumstances (they were certainly lenient) is not a matter which I have to consider as no challenge to them has been mounted by the prosecution.
83. The second issue is whether the penalties actually imposed for the charges of culpable driving causing grievous bodily harm and of driving whilst suspended were too severe, that is, manifestly excessive.
84. The Court of Appeal has recently, on a number of occasions, set out what needs to be addressed when an appeal on the ground of manifest excess (or manifest inadequacy) is brought. See R v Campbell [2010] ACTCA 20 at [32]-[35], approved in R v TW (2011) 6 ACTLR 18 at 27; [60]; Kien v The Queen [2012] ACTCA 25 at [27]. See also Hawkins v Hawkins (2009) 3 ACTLR 210 at 218-21; [39]-[54].
85. I shall apply the principles set out in those decisions.
86. As to the first offence, there has been in recent years some consideration by the Court of Appeal of the offence of culpable driving, both when it causes death and when it causes grievous bodily harm.
87. In Kennewell v Rand [2006] ACTCA 10, the Court had to consider two questions. The first was whether two sentences of imprisonment of 18 months each imposed in respect of one of the two victims should have been served concurrently or partly cumulatively. The Court held that they should have been served concurrently. That is not relevant to this appeal.
88. The second was whether a sentence of 18 months imprisonment was manifestly excessive. The Court held that it was not.
89. While, of course, that is a decision in a particular case, it is a decision of the Court of Appeal which has, as Street CJ put it in R v Holder [1983] 3 NSWLR 245 at 253, "the responsibility for the appellate jurisdiction over sentencing policy and practice by first instance courts in the matter of indictable crime."
90. Street CJ further referred to what was said by Jacobs J in Griffiths v The Queen
[1977] HCA 44; (1977) 137 CLR 293 at 326:
[D]isparity of sentencing standards is a very serious deficiency in a system of criminal justice. ... It is the task of a court of criminal appeal to minimize disparities of sentencing standards yet still recognize that perfect uniformity cannot be attained and that a fair margin of discretion must be left to the sentencing judge.
91. In this task, the principles applied by courts of appeal are the same for appeals by the Crown and appeals by accused persons, as noted in R v Williscroft [1975] VicRp 27; [1975] VR 292 at 297; Morley (1984) 13 A Crim R 431 at 435.
92. Accordingly, this Court should pay particular heed to decisions of the Court of Appeal and the sentencing standards set by the Court of Appeal.
93. In Kennewell v Rand, the Court dealt with the offence of culpable driving causing grievous bodily harm committed by a young man, 19 years old at the time of the offences. He co-operated with police and entered a plea at the first opportunity, evidence, the Court found, of contrition and remorse.
94. The offender had certain illnesses and disorders which, the learned Sentencing Magistrate held in that case, did not significantly moderate the role of general deterrence on the sentence.
95. The offender had no prior convictions. While the manner of his driving was egregious, it was not in the context of a police pursuit.
96. The Court of Appeal held (at [41]), that in the case of offences of this kind, general deterrence was important, notwithstanding the youth of the offender (R v Slattery (1996) 90 A Crim R 519) and notwithstanding his mental disorders (R v Leach
(2003) 85 SASR 139). The Court added (at [42]), that "[t]he courts must make it clear to the public generally that it views conduct of this kind seriously. The courts have a duty to ensure that persons who use the highways are not put at risk by persons who would drive like this appellant."
97. Importantly, the Court of Appeal noted (at [47]) that, in argument on the appeal, the appellant's counsel accepted that a sentence of 18 months imprisonment was within the appropriate range having regard to the circumstances of the offence and the matters subjective to the appellant.
98. In R v Kurzynski [2001] ACTSC 90, Higgins J (as his Honour then was), referred to the Guideline Judgment of the NSW Court of Criminal Appeal, namely R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, as relevant to the sentencing decisions of this Territory. His Honour followed that decision by imposing a sentence of five years imprisonment, though the offence there was culpable driving causing death.
99. In R v Jurisic the following factors were considered relevant to sentence (at 231):
(iv) the degree of intoxication or of substance abuse;
(vii) the length of the journey during which others were exposed to risk;
100. In respect of all of these factors, with the possible exception of (v), erratic driving, and (vi), competitive driving and showing off, there was a degree of aggravation in this case. There appeared only to be two people other than Mr Chifuntwe in the car, but both were put at risk. This did not very significantly aggravate the offence as would have been the case if the driving had been through a busy street with other drivers and pedestrians.
101. I note, too, that, more recently, Teague AJ in JA v Macdonald [2011] ACTSC 22 dismissed an appeal against the severity of a sentence which included a sentence of
18 months imprisonment for a charge of culpable driving causing grievous bodily harm, despite the offender being a young person under the age of 18 years and subject to ch 8A of the Crimes (Sentencing) Act.
102. In R v Creighton [2011] ACTCA 13, the Court of Appeal considered that the sentence I had imposed was within a proper sentencing range and not so inadequate to require the Court to intervene by that it was a light sentence. Indeed, Gray P and Lander J commented (at [51]), that "the members of this Court all might have imposed a longer term of imprisonment and required more time to be served."
103. In that case, I had sentenced the offender to 10 months imprisonment for the count of culpable driving causing grievous bodily harm, four months of which was cumulative on the other counts.
104. There were, however, in that case, none of the more serious aggravating features of the kind here: there was no alcohol or drugs involved, there was no police pursuit or warnings to stop, though there were more passengers and, of course, two of them died in the accident, though their deaths were the subject of separate charges.
105. It is true that there are a number of decisions where much more lenient sentences than that imposed on Mr Chifuntwe have been imposed at first instance in the past, even in cases involving culpable driving causing death, ranging from bonds (R v Overhall (Unreported, Supreme Court of the ACT, Crispin J, 19 June 2006)), to imprisonment for 12 months with a six month non-parole period (R v Alzaabi (Unreported, Supreme Court of the ACT, Higgins CJ, 12 September 2008)). In R v Moffat (Unreported, Supreme Court of the ACT, Penfold J, 12 June 2008), Penfold J summarised six sentencing decisions in respect of the offence of culpable driving causing death in which only two resulted in any period of full-time custody. Her Honour then imposed, for the offence of culpable driving causing death, a sentence of two years imprisonment to be served initially for 12 months by periodic detention and then suspended.
106. While accepting that such sentences are relevant, they do not of themselves answer the question to be answered in this case, namely whether the sentence imposed by the learned Sentencing Magistrate is manifestly excessive.
107. It is, of course, true that Mr Chifuntwe is a young person who is entitled to the benefit of the approach that courts take to such offenders. Those principles have been set out in GDP (1991) 53 A Crim R 112 at 116, in a passage to which I referred in R v PM [2009] ACTSC 24 at [53]. Nevertheless, as the Court of Appeal decided in Kennewell v Rand, they do not outweigh the need for deterrent sentences in cases of this kind. See, also, above (at [51]), the passage from MacIntyre cited by the learned Sentencing Magistrate.
108. Having carefully considered this matter, in particular the aggravating features of the offending, but also Mr Chifuntwe's subjective circumstances and the decisions of the Court of Appeal, I have come to the firm view that the sentence imposed is not manifestly excessive.
109. It is a long sentence, especially as it is cumulative on the sentence for the aiding and abetting the aggravated robbery, but it was a serious offence with life-long consequences for the victim and an offence aggravated by a number of factors. A deterrent sentence was called for and was imposed. It was separate from the earlier offence and cumulative punishment was appropriate.
110. As to the charge of driving whilst suspended, the learned Sentencing Magistrate imposed a sentence of three months imprisonment. That is, of course, a severe sentence.
111. I considered the sentencing of offenders for driving whilst disqualified in Cotter v Corvisy (2008) 1 ACTLR 299. This is a somewhat different offence, though the principal vice, namely driving whilst his previous driving had justified removing his right to drive, remains. I held that a sentence of imprisonment was the appropriate sentence for contumacious offending in this way. In Ledson v Taylor [2010] ACTSC 42; (2010) 239 FLR 184 at 193-4; [69]-[75], I considered the two offences and concluded (at [75]) that the argument "that a lesser penalty should be imposed because the suspension was imposed by the Road Transport Authority and not by the court."
112. In Cotter v Corvisy, the appellant had been previously convicted of five offences of driving without a licence and seven charges of driving whilst disqualified. He was sentenced to nine months imprisonment. In Ledson v Taylor, the appellant was dealt with a number of charges of driving whilst disqualified, in respect of most of which a term of three months imprisonment was imposed.
113. In Apolevski v Kinnane [2010] ACTSC 43, I upheld an appeal against a sentence of four months for driving whilst disqualified by re-imposing that sentence but suspending portion of it. The appellant there had a history of traffic offences.
114. Here Mr Chifuntwe has no such history, but it was a contumacious example of driving. While at the upper end of the range, I would not interfere with the sentence. Had Mr Chifuntwe not been sentenced otherwise to full-time imprisonment, I would have suspended part or all of the sentence.
116. I note that in the formal order of the Magistrates Court the non-parole period is stated to commence on 4 June 2012. That is not correct. Under s 66 of the Crimes (Sentencing) Act, it commences on the date on which the sentence of Nield AJ commences, namely, 4 June 2011. His Honour pronounced the sentence correctly (apart from the year), but it has not translated into an order that complies with the statute.
117. When adjusting the sentences to take account of the stay under s 216 of the Magistrates Court Act, I will also correct that error.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Solicitor for the appellant: ACT Director of Public Prosecutions
Chifuntwe
Gardiner [2012] ACTSC 136
(2010) 5 ACTLR 151
(2008) 1 ACTLR 299
(2010) 241 FLR 178
(1977) 137 CLR 293
(2009) 3 ACTLR 210
(2010) 239 FLR 184
(1998) 194 CLR 610
(1981) 147 CLR 383
(1998) 45 NSWLR 209
(2003) 85 SASR 139
(2011) 6 ACTLR 18
(1981) 52 FLR 171