Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Causing death by dangerous driving - Long journey after drinking and taking drugs.

Judgment Number: [2011] TASCCA 19

DIRECTOR OF PUBLIC PROSECUTIONS v THEO JOHN SMITHURST

2 Orders as to sentence, parole and driving disqualification quashed.

3 Respondent sentenced to three years three months' imprisonment with effect from 24 August 2011, and not to be eligible for parole until he has served two years of that sentence.

4 Respondent disqualified from driving for three years, commencing when he is released from prison.

DIRECTOR OF PUBLIC PROSECUTIONS v THEO JOHN SMITHURST

1 I have read the judgment of Tennent J in draft form. I agree with the orders she proposes, and agree substantially with her reasons.

DIRECTOR OF PUBLIC PROSECUTIONS v THEO JOHN SMITHURST

2 On 31 August this year, the respondent, Theo John Smithurst, was convicted on his plea of guilty of the crime of causing death by dangerous driving contrary to the Criminal Code, s167A, and of the offences of driving while not the holder of a driver licence, driving a motor vehicle while exceeding the prescribed alcohol limit, being a driver not holding an Australian driver licence with alcohol in his body, and driving a motor vehicle whilst a prescribed illicit drug was present in his blood. The charges arose out of a motor vehicle collision which occurred on the Midland Highway at Brighton on 15 May 2010. The respondent was sentenced globally by Crawford CJ to serve a term of imprisonment of two years and three months, with effect from 24 August 2011. There was an order made that he not be eligible for parole until he had served one half of that term. He was also disqualified from driving for a period of three years from 31 August 2011.

3 The Director of Public Prosecutions ("the Director") now appeals that sentence on the ground that, in all the circumstances, the sentence was manifestly inadequate.

4 The respondent was born on 29 November 1972, and was therefore aged 37 at the time of the collision, and 38 at the time of sentence. He lived at Stonehenge. On 14 May 2010, he had visited his mother, arriving at her home at Oatlands at about 12 noon. He left her home at about 7pm and drove to the Melton Mowbray Hotel, arriving at about 7.30 to 7.45pm. He had not eaten all day. He stayed at the hotel until the early hours of the following morning. He consumed a considerable amount of alcohol. He also used cannabis and methylamphetamine. He left the hotel and went to sleep in his car. Approximately one and a half hours later, he woke, and decided to drive to his daughter's home at Glenorchy. He began his journey down the Midland Highway. At about 2.50am, approximately 1.5 kilometres south of Brighton, his vehicle collided with one being driven by Leanne Robbins. She was travelling north.

5 The collision occurred at the crest of a hill. The respondent was negotiating a sweeping slight right-hand bend. The speed limit for the section of road where the collision occurred was then 60 kilometres per hour. The road was dry. The centre of it was marked with clearly visible double white continuous lines. There was no evidence of any obstruction on the road prior to the collision. As the respondent drove round the bend, he failed to remain on his correct side of the road. He travelled into the path of Mrs Robbins' vehicle and collided with it head on. She died at the scene.

6 The respondent's blood alcohol level, calculated from a sample of his blood taken when he arrived at the Royal Hobart Hospital, was .193, that is nearly four times the legal limit. The drugs already referred to were also found in his system. The opinion of a chemist from Forensic Science Services Tasmania was to the effect that the relative risk of a driver with the level of alcohol concentration found in the respondent was fifty times that of a driver with no alcohol. The same chemist was of the view that both THC (cannabis) and methylamphetamine have been found to adversely affect driving performance and, when taken in combination with alcohol, the adverse effects would be enhanced.

7 While a low level of alcohol was found in the blood of the deceased, as were traces of cannabis, there was no suggestion her driving ability was in any way compromised, or that she contributed in any way to the collision. The Court had before it victim impact statements. The death of Mrs Robbins had a devastating effect on her parents and in particular her daughter, Bree. Because of her mother's death, Bree went to live with her father, with whom until then she had not had a lot of contact.

8 The respondent's counsel accepted the facts as put by the prosecutor, although said that his client was not a methylamphetamine user usually, and could not explain how that drug came to be found in his blood. He was a regular user of cannabis. The respondent had been in receipt of a disability support pension for over two years as a consequence of a back injury. He was single and lived in rented accommodation. His daughter lived in Hobart. Counsel accepted the respondent was, at the relevant time, a seriously impaired driver. The respondent told police he had no memory of events between leaving the Melton Mowbray Hotel and waking on the road after the collision. He also said that, when he decided to drive to Hobart, he thought he had been asleep for about six hours, although there was no reasonable basis for that assumption by him. He suffered some injuries which included a broken leg and other fractures. He spent some time in hospital. He was co-operative with police otherwise, and entered an early plea. His counsel described him as being genuinely remorseful.

9 There were no witnesses to the collision or to the manner of driving of either the respondent or Mrs Robbins prior to the accident. It was not possible for police to determine the speed of either vehicle. The Crown's case was put on the basis that the mere driving by the respondent, given the lack of sleep and consumption of alcohol and drugs, was dangerous. The factors identified by the Director in support of that contention were:

•

the respondent was not licensed to drive at all,

•

he drove some distance to an isolated hotel where he proceeded to drink alcohol for some hours,

•

he drank alcohol to such an extent that he had no memory of events after leaving the hotel,

•

he consumed cannabis,

•

he was found to have ingested methylamphetamine in some way, although said he did not know he had,

•

after drinking alcohol, he commenced a lengthy journey on a major highway, without any real consideration for his state of sobriety, when he did not need to do so,

•

his intention when he commenced the journey from the hotel was not only to drive on a major highway, but also to drive through a densely populated suburb,

•

he was ultimately found to have driven with a blood alcohol concentration almost four times the legal limit.

The level of culpability of the respondent was, in all the circumstances, significant.

The respondent's prior relevant offending history

10 The respondent had a history of drinking and driving. On 16 November 1990, he was convicted of being a first year driver, driving with alcohol in his body and failing to keep left. His blood alcohol level on that occasion was .135. He was fined and disqualified from driving for ten months. On 30 June 1992, he was convicted of drink driving offences again, this time with a blood alcohol level of .139. The offences on this occasion had actually occurred early in 1990 prior to those for which he was convicted on 16 November 1990. On 23 July 1993, he was convicted again of a drink driving offence. He was ordered to perform community service and to pay a fine, although payment was suspended. He was disqualified from driving for 18 months. On 30 November 1993, he drove a motor vehicle while disqualified. He was convicted for that offence on 15 July 1994. He was given a suspended term of imprisonment, and disqualified from driving for nine months which was to be cumulative to the period of disqualification imposed on 23 July 1993.

11 On 25 July 1996, the respondent committed another drink driving offence. He was convicted for it on 25 September 1996. Again, he was given a suspended term of imprisonment, and disqualified from driving for nine months. In 2006, 2007 and 2008, the respondent was convicted of driving without a licence. At some stage thereafter, the respondent obtained a provisional licence. However it expired on 28 June 2009. The respondent needed to have a liver function test before he could apply again for a licence. He had completed that, but not applied for a licence. He was therefore an unlicensed driver at the time of the collision. However, he had been convicted on four separate occasions between 1990 and 1996 of offences involving driving with alcohol in his body.

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.

16 Counsel for the respondent submitted that this was a Crown appeal and that, only in clear cases, should an appellate court intervene in a sentence. He relied upon a summary appearing in the text of Professor Warner, Sentencing in Tasmania, 2nd ed, The Federation Press, Sydney, 2002, at 447.

17 Counsel then referred to a decision of the Court of Appeal in Victoria in Director of Public Prosecutions v Michael Francis Oates, a 2007 unreported decision numbered BC200702458. The Court there considered a Crown appeal against a sentence in respect of one count of dangerous driving causing death, and three counts of dangerous driving causing serious injury. The respondent in that matter was sentenced to community based orders. The learned sentencing judge accepted that, having regard to the circumstances of the driving, the absence of aggravating features and the respondent's response to the accident, a term of imprisonment was not warranted. The level of moral culpability was accepted as being low. Neave J said at [28]:

"28 Even if I were to take the view that her Honour erred and that the sentencing discretion should be re-opened, I would not impose a different sentence. This is a case, as I think Mrs Quin conceded, in which the double jeopardy principle should be given considerable weight. As Kirby J explained in R v Hayes,

'If the sentence was "wrong" in the first place, it is upon the appeal that the only "true" sentence according to law is passed. But in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court. In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position (citations omitted).'"

18 Counsel however made no reference to the impact of the Criminal Code, s402(4). He also made no reference to the impact of s402(4A), a subsection inserted in 2008. That provides:

"(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) -

(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."

19 The question of the impact of this amendment upon Crown appeals was considered in some depth in Director of Public Prosecutions v Chatters [2011] TASCCA 8 because counsel for the appellant in that case submitted that, as a result of the amendment, Crown appeals should now be allowed just as readily as defence appeals, and should not involve any leniency because such an appeal might succeed. At pars[50] - [52] the Court there said:

"50 In our view the decisions of the intermediate appellate courts in Western Australia, New South Wales and Victoria were plainly correct, and there is every reason why this Court should follow them. In our view s402(4A) has the same effects as the corresponding provision in New South Wales, as outlined by Spigelman CJ in R v JW at [141], as quoted in [16] above, although with respect, we do not want to be taken as agreeing with any proposition that the concept of double jeopardy is confined to presumptive stress and anxiety; see [9] to [11] above.

51 In our view, s402(4A)(a) would operate so as to allow this Court to take into account any actual stress and anxiety established in the usual way, and which has occurred after the sentence has been imposed at first instance. See, in any event, Director of Public Prosecutions (Cth) v De La Rosa (above). Further, the residual discretion to dismiss a Crown appeal, in spite of the sentence being manifestly inadequate, on some basis other than double jeopardy survives in Tasmania. In such a case, it cannot be said that a more severe sentence "is warranted in law" within the meaning of s402(4).

52 The questions whether the respondent's sentence was manifestly inadequate, and whether a more severe sentence 'is warranted in law and should have been passed' must therefore be considered in accordance with the new body of case law, and not in accordance with the old body of case law as summarised in Allpass and in Clarke."

20 In the present case, of course, nothing was put before the Court to suggest any actual stress and anxiety had been suffered by the respondent.

21 Counsel also submitted that, having regard to the various cases to which the Director referred, the sentence imposed on the respondent was at the low end of the scale for such sentences, but was not so far out of the range as to warrant appellate intervention. The respondent had entered an early plea, there was no lack of co-operation, and there had been no attempt on his part to attempt to justify what occurred.

22 It is accepted the respondent entered early pleas, and expressed remorse for his actions. His pleas of guilty must however be categorized as a bowing to the inevitable. Further, in terms of Oates' case, the level of his moral culpability was high. The factors I have identified in par[8] demonstrate that the respondent gave absolutely no thought on any level to the possible consequences of his driving. On the particular day, the respondent drove from his home to his mother's home. There is no suggestion he had, prior to that trip, consumed any alcohol. However, he should not have been driving at all. He had no driver licence, and despite apparently being in a position to apply for one, had simply not done so. Instead, he had chosen to drive without a licence. That was a choice his record discloses he had made more than once before.

23 The respondent then made the choice to drive from his mother's home to a hotel some considerable distance away, again disregarding the fact he was not licensed to drive. He then made the choice to consume a large amount of alcohol and drugs. It seems that, having done that, the respondent made at least one correct decision, which was to go to sleep in his car. However, on waking, he clearly made no effort to determine how long he might have slept for, and what his level of sobriety then was. Instead, he simply drove yet again, this time embarking on a lengthy journey on a major highway. He was completely reckless as to the potential consequences of his acts, and Mrs Robbins paid the ultimate price for that recklessness.

24 It cannot be said the respondent took any reasonable steps to mitigate the potential impact of his alcohol and drug consumption upon his manner of driving. It cannot be said this collision was the consequence of a momentary loss of concentration, which the respondent was aware of, and took steps to address. The respondent crossed to the wrong side of the road and collided head on with Mrs Robbins' vehicle. It also cannot be said that this sort of driving, that is driving while under the influence of alcohol, was out of character. While the respondent had not been convicted of a drink driving offence for some 14 years at the time of the collision, his record over the six years prior to that was unenviable.

25 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. The factors identified in this, and the preceding paragraph, in my view, lead to the conclusion that the sentence imposed on the respondent was manifestly inadequate. In those circumstances, I am of the view that a more severe sentence was warranted in law, and should have been passed.

26 I would quash the sentence and order that the respondent serve a period of three years and three months' imprisonment to commence from 24 August 2011, and that he not be eligible for parole until he has served two years of that sentence.

27 The period of disqualification imposed on the respondent also needs to be considered. The respondent was disqualified from driving for three years from 31 August 2011. If the sentence imposed on the respondent is not interfered with, the respondent will serve an effective period of disqualification of about 22 months at most because the rest of the three years will have passed while he was in custody. Such an effective period of disqualification is wholly inadequate for the crimes the respondent committed. Of course, if the sentence of imprisonment is extended, that reduces even further the effective period of disqualification. Whether the sentence of imprisonment imposed on the respondent is increased or not, I would quash the order of disqualification insofar as it is to commence from 31 August 2011, and order that the period of three years' disqualification commence from the date upon which the respondent is released from custody.

DIRECTOR OF PUBLIC PROSECUTIONS v THEO JOHN SMITHURST

28 I agree that for the reasons given by Tennent J, the appeal should be allowed. I am prepared to join in the making of the further orders which her Honour has proposed.