PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Causing death by dangerous driving - Sentence of 21 months' imprisonment with parole ineligibility period of 10½ months and no driving disqualification - Manifestly inadequate.

Appellant: Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 20

2 Sentence of 21 months' imprisonment, with parole ineligibility period of half that sentence, quashed.

1. Respondent sentenced to two years nine months' imprisonment with effect from 10 March 2015.

1. Respondent not to be eligible for parole until he has served half of that sentence.

1. Respondent disqualified from driving for two years after his release from prison.

1. On 16 February 2015, the respondent pleaded guilty to one count of causing death by dangerous driving contrary to the Criminal Code, s 167A. On 25 March 2015, he was sentenced to serve 21 months' imprisonment and an order made that he not be eligible for parole until he had served one half of that sentence. Despite it being a likely order in this type of proceedings, no order of disqualification was made.
2. The State now seeks to appeal the sentence imposed on the sole ground that it is manifestly inadequate.

1. On Sunday, 9 March 2014 (that is the Sunday in the middle of a long weekend), the respondent spent the morning at his home at Dover. He had lived in Dover for about six months. The respondent was doing some gardening and drinking some beer as he did so. At about noon, a Mr Allen arrived. The pair had known each other about two months. They decided to drive to Southport. They stopped at a beach there and consumed more beer. They were in Mr Allen's car and when they decided to leave the beach, he drove. At one point the men stopped for a toilet break. When they resumed their journey, the respondent drove. Approximately 15 kilometres after he began to drive and about two kilometres before Dover, the respondent lost control of the car on a bend and there was a crash. Mr Allen was not wearing a seat belt, and was thrown from the car and killed.
2. The respondent was not familiar with the road. He had driven it perhaps three times before this day. About 300 metres before the actual crash site, tourists saw the vehicle begin to go out of control. An accident investigator observed:

"... the driver had entered the curve and in doing so the outside tyres had entered the gravel shoulder. The driver has attempted to steer around the curve with the outside tyres on the gravel. The vehicle has been travelling too fast for the radius in which the driver was attempting to steer and as a result the vehicle has yawed. It continued in its yaw, rotating about its vertical axis before sliding a short distance in a broadside skid. The leading tyres have dug into the soft shoulder and this has resulted in the vehicle tripping."

Prior to the bend there was a 45 km/h advisory sign. The respondent was travelling at approximately 75 km/h. A number of other road users were on the scene very quickly.

1. The respondent initially indicated to people at the scene that he was not the driver of the vehicle and requested a lift to his home at Dover. He in fact got into the car of a bystander and asked for a lift. Someone else stopped them and said police had been called. The respondent admitted his role to police the next day. The respondent was taken to the Royal Hobart Hospital on the day of the accident and a blood test revealed his blood alcohol level to be .147, and traces of THC in his blood. There was no evidence one way or the other as to the effects of that THC.
2. At the time of this accident, the respondent was a disqualified driver. On 24 February 2014, that is 13 days before the accident, the respondent had been convicted of a drink driving offence. The offence had occurred on 23 January 2014. His blood alcohol level on that occasion was .182. On 24 February the respondent was convicted, fined and ordered to perform community service. He was also disqualified from driving for a period of two years with effect from 23 January 2014. The respondent had been convicted twice before of drink driving offences, once on 21 December 1992 and then on 18 February 2002. In effect, the date of the accident was the fourth time he had been found to be driving with greater than the prescribed level of alcohol in his blood. It seems the respondent has been charged with driving whilst disqualified arising from the accident, but that charge has not been dealt with by the courts.

1. Counsel for the State submitted that the sentence of imprisonment of 21 months was a light sentence and, when coupled with the minimum non-parole period and no order of disqualification, was manifestly inadequate in all the circumstances of this case. The factors which the learned sentencing judge had to consider were:
   • The respondent drove for approximately 15 kilometres on a road he was not particularly familiar with.
   • The act of driving occurred in the middle of Sunday afternoon on a long weekend on a main road.
   • The act of driving occurred at a time when it would have been expected there would be other road users in the area, and in fact there were.
   • The respondent drove knowing he had consumed alcohol and that he had been disqualified only 13 days earlier for drink driving.
   • The respondent continued to drive in circumstances where his passenger was obviously affected by alcohol, and himself behaving in a dangerous manner.
   • The respondent entered a bend in the road at a speed of 75 km/h in circumstances where he was unfamiliar with the road and there was a speed advisory sign on the bend of 45 km/h (there was no dispute that the respondent's speed did not exceed the posted speed limit).
   • The sentence had the effect of negating the effect of the period of disqualification imposed in February 2014, because that period continued to run while the respondent was in custody. It would expire prior to his release. While there was nothing the learned sentencing judge could do about that period of disqualification, the absence of a further period of disqualification meant the respondent could re-apply for his licence as soon as he was released. There was, as a consequence, no protection for the public.
2. Counsel also referred to the decision of this Court in Director of Public Prosecutions v Smithurst [2011] TASCCA 19. That was a case of causing death by dangerous driving in which the then Director of Public Prosecutions successfully appealed the inadequacy of the sentence imposed. At [12]-[15], I summarised the Director's position. While counsel in the present case did not specifically refer to it, it is useful to repeat it because it demonstrates the change in approach of the Court it relation to charges such as that being dealt with here. I said:

"12 The Director conceded in argument that manifest inadequacy of the sentence under appeal would not be demonstrated by comparisons with earlier sentences for the particular crime, and did not seek to make those sorts of comparisons. Rather, what he sought to do was persuade the Court to accept that sentences for this type of offending had been low, and, as a matter of policy, it was appropriate for the Court to set a higher standard. In particular, the Director referred to a decision of the Court of Criminal Appeal in Moyle v State of Tasmania [2010] TASCCA 2; (2010) 198 A Crim R 592 which was an unsuccessful appeal against the severity of a sentence.

13 In Moyle's case, the appellant was found guilty by a jury of one count of causing grievous bodily harm by dangerous driving, and two counts of pervert justice. The pervert justice matters arose out of attempts made by the appellant to suggest he was not the driver of the vehicle at the relevant time. His then female partner was severely injured in the accident which gave rise to the charges. The appellant was sentenced to imprisonment for two years and six months, and it was ordered he serve at least half of that sentence before being eligible for parole. He was also disqualified from driving for a period of three years from his release from prison.

14 Each of the members of the Court in Moyle, of which I was one_,_ acknowledged that previous sentences for serious driving offences had not been severe enough and should be increased. Indeed in Gallagher v Tasmania [2009] TASSC 84; (2009) 54 MVR 6, Crawford CJ analysed sentences imposed for causing death by dangerous driving between 1989 and 2008. In Moyle at [28], the Chief Justice said in relation to such sentences:

'There were 33 such sentences. In effect, the most severe for the crime itself was two years imprisonment. Only five exceeded 12 months. Upon the basis of that analysis, the present sentence would be regarded as manifestly excessive, without question, for the appellant's manner and speed of driving were not as culpable as in many of those cases, and death was the consequence in all other than in this case.'

15 In Gallagher's case, as in Moyle, there was an acceptance the sentence imposed was at the high end of what might be described as the existing range. In both cases, an appellate court declined to interfere."

1. Counsel for the appellant accepted that the driver's blood alcohol level in Smithurst was higher than that of the respondent, and that there were other factors in that case which were more aggravating than those in the present case. He referred to what I said at [25] in Smithurst. I said:

"While the learned sentencing judge recognized the charges being faced by the respondent were serious and the need for deterrence, any sentence needed to reflect the many aggravating factors in this case, the harm done by the respondent by his recklessness, and the need to protect the community from drivers such as the respondent. It also needed to reflect the approach being more commonly adopted in serious cases of bad driving, that is to see the range of penalties generally increased."

1. Counsel for the respondent submitted that the sentence as it related to a sentence of imprisonment was not inadequate. She conceded it was open to the learned sentencing judge to disqualify the respondent from driving, and that he perhaps should have done so. She submitted that while the sentence of imprisonment may have been light, that does not of itself warrant appellate intervention.
2. She submitted that it was worthy of note that:
   • The respondent did not set out to drink and drive.
   • This was an example of poor judgment arising out of his concern to get his friend home.
   • It was not suggested that the respondent's manner of driving was generally dangerous throughout the whole of the period he drove. It was in fact only the last 300 metres or so where he lost control.
   • The respondent was not breaking the speed limit.

She accepted that driving with the level of alcohol the respondent drove with was inherently dangerous, but there was no evidence of any other obvious dangerous driving than that immediately before the accident. It was also accepted that a number of other road users were potentially put at risk.

1. It was also submitted that the mitigating factors were not insignificant. The respondent had shown obvious remorse. He had been significantly affected psychologically by causing the death of his friend, and continued to struggle with that. He had pleaded guilty. He had significantly reduced his alcohol intake. He had few prior convictions, save the drink driving matters.
2. Since counsel for the appellant had sought to highlight factors in Smithurst, counsel for the respondent made submissions about the differences between that case and the present one. She pointed out that in Smithurst the blood alcohol level was very high, there were issues of sleep deprivation, the offender drove some distance, drank alcohol and then drove again, and there were no signs of rehabilitation. She submitted that Smithurst was a more blatant disregard of the law.
3. Counsel also addressed factors the Court might need to consider were it to allow the appeal and need to re-sentence the respondent. She submitted:
   • The respondent had employment within the prison until about four weeks ago and as a consequence had a deal of freedom within the prison.
   • He had relinquished that position for medical reasons. He needed a hip replacement and was in a deal of pain.
   • He had completed the Gonnawanna program in relation to his alcohol use and had responded well.
   • He was completing a computer course.
   • He was seeing a counsellor regularly.
   • He had developed a condition which resulted in uncontrollable shaking and dealt with it by specific breathing exercises.
   • He did not believe that he could drive in any event because of panic attacks.

1. There is little doubt having regard to a number of cases in recent years involving death by dangerous driving that the Court has recognised the need to impose sentences that more obviously reflect society's condemnation of driving behaviour which results in the death of a person or persons. As a consequence, sentences imposed for this crime have trended upward. That however does not mean that, in every case where a sentence which, on its face appears light, is handed down, that sentence should be overturned and increased. Appellate courts must still have regard to principles relating to appellate intervention in sentences generally. A sentence simply "light" is not necessarily manifestly inadequate, unless that inadequacy is to the point of clear error or is demonstrative of manifest disparity or inconsistency in sentencing standards.
2. I accept that there are mitigating factors in this case and that they needed to be given appropriate weight. However, there were, in my view, factors which showed that the act of driving by the respondent which caused Mr Allen's death was deserving of a significant sentence. The respondent had been disqualified from driving on three prior occasions for drink driving. At the time of this act of driving, he was a disqualified driver. That fact alone is not the important factor, although it is relevant to sentence. It is that the disqualification was imposed only 13 days before the accident in this case for exactly the same behaviour, that is, drink driving. The respondent's breach of the order of disqualification was blatant and deliberate. It was explained on the basis he was concerned about Mr Allen's emotional state. With respect, he could have parked the car and found some other way to get home. He did not have to drive. He chose to do so.
3. Mr Allen was seen to be hanging out the passenger window of the car. He was far more intoxicated than the respondent. That action by Mr Allen was dangerous. That dangerous act by Mr Allen could easily have affected the respondent's ability to drive the car. The respondent however continued to drive.
4. There were other cars on the road. It was a long weekend. The potential risk to those other cars was high given the demonstrated inability of the respondent to control the car on the bend where the accident occurred.
5. While the inappropriateness of comparing outcomes in cases which might, on their face, be similar, is regularly noted, those other cases provide some guidance as to the range of what might be an appropriate sentence for this type of offending. The present case was not one involving an action of short duration. The respondent's ability to control a car was adversely affected by the amount of alcohol he had consumed from the moment he got behind the wheel. The decision to drive was a deliberate one in blatant disregard of a very recent court order which banned him from so doing for the exact same behaviour. The respondent's explanation for driving did not suggest any level of emergency or urgency. As a result Mr Allen died.
6. In my view, in those circumstances a sentence which sees the respondent potentially serve a period of only 10½ months' imprisonment with no accompanying period of disqualification is so far outside expected standards as to demonstrate error in the exercise of the sentencing discretion in this case. I am satisfied the sentence imposed is manifestly inadequate and that the appeal should be allowed. I would quash the sentence imposed and order that the respondent serve a period of two years and nine months' imprisonment. Given the mitigating factors identified and the matters raised by counsel as to the respondent's current circumstances, I would still allow for the minimum non-parole period. I would also disqualify the respondent from driving for a period of two years from the date of his release from custody.

1. I agree with the reasons for judgment of Tennent J, and with the orders proposed by her Honour.