The sentence passed below
16 During the plea in mitigation before the judge below, considerable emphasis was placed on the respondent's youth and immaturity, his plea of guilty and what was said to be his genuine contrition and remorse, and upon the difficult circumstances of his upbringing. As the judge noticed in his sentencing remarks, the man whom the respondent had known as his father died when the respondent was approximately six years of age. Later the respondent saw one of his uncles dead after he committed suicide, and he also saw his mother assaulted by another of his uncles. The respondent left school after completing only part of year 11, and although he began a school-based carpentry apprenticeship, he dropped out of that course after injuring his leg. Then, at the age of 18 years, he inherited a sum of $15,000, left to him by his stepfather, and at about that time he moved out of his mother's home and began to live in the shared house. In no time at all he had squandered the legacy. He spent $6,000 of it in buying the car in which he committed the subject offences, $1,500 on a caravan and the remainder on parties, alcohol and drugs, in the space of only four to five weeks.
17 The judge below adjourned the plea hearing so that the respondent could be assessed for suitability for a youth training centre order, and the assessment was favourable. In a pre-sentence report dated 23 February 2006, it was stated that the respondent was very immature, but not difficult to manage within the Juvenile Justice Centre environment, that he was participating in programmes at the centre, and that his attitude and motivation for a change in lifestyle appeared to be strong. It was said that he had completed a number of TAFE programmes and had commenced woodworking classes, and that he was on the waiting list for a motor mechanics course and a forklift driver's licence course, and that he wished to study for the written component of the driver's licence test. In the opinion of both the co-ordinator of Juvenile Justice and the manager of Juvenile Justice, the respondent was suitable to serve any period of incarceration which he might receive in a youth training centre. In their view, the respondent's age and immaturity and the fact that this was to be his first custodial sentence meant that he would be particularly vulnerable in the adult prison system and that his long-term rehabilitation would be best promoted in the youth training centre regime.
18 In the result, the judge sentenced the respondent on the count of culpable driving to a sentence of three years in a youth training centre and on the count of negligently causing serious injury to two years in a youth training centre, thereby making for a total effective sentence of three years in a youth training centre, to be served cumulatively upon a sentence then being served for breach of a community-based order.
The Director's contentions
19 The Director contends that the individual sentences, the degree of cumulation and the total effective sentence are all manifestly inadequate. He submits that the judge failed to reflect adequately or at all the gravity of the offences generally, and in this particular case failed to take into account or at least to give sufficient weight to the need for general and specific deterrence; that he gave insufficient weight to the respondent's prior criminal history and the applicable maximum penalties, the effect of the offences on the victims and their families; and that he gave too much weight to factors going to mitigation.
20 Counsel for the Director emphasises the continuing importance of general deterrence against offences of culpable driving and, in this case, the need for specific deterrence, made plain, he said, by the respondent's repeated offending and by the lack of insight apparent in the record of interview. In counsel's submission, the grave circumstances of the respondent's offending dictate that he be sentenced to a substantial term of imprisonment and, despite the respondent's youth and immaturity, that a term of three years in a youth training centre is palpably short of the mark. As counsel would have it, it is indeed so plainly inadequate that it must be the consequence of the sentencing judge giving too much weight to factors going to mitigation and too little weight to the nature and gravity of the offences, the respondent's culpability, the death of the deceased, and the debilitating effects of the injuries inflicted upon the other victim and family members.
The respondent's submissions
21 On behalf of the respondent, it has been submitted to the contrary that the respondent's age was in this case central to the sentencing process, and that there is nothing so unusual about the sentence that was imposed as a consequence as to warrant appellate interference. It is evident, it is contended, that the sentencing judge well understood the gravity of the offences in issue, both in general and in terms of the need for specific deterrence, and that his Honour fashioned a sentencing order which accorded with the requirements of general and specific deterrence and just punishment, while at the same time giving full weight to the respondent's youth, immaturity and chances of rehabilitation. In any event, it is submitted for the respondent, the sentencing order was well within the range of sound discretionary judgment, or at least not so far below it that it is appropriate for this Court to interfere.
The sentence was manifestly inadequate
22 In my judgment the individual sentence imposed on the count of culpable driving and the total effective sentence were manifestly inadequate. In my view the nature and gravity of the respondent's offending, the undoubted need for general and specific deterrence, and the necessity for punishment proportionate to the effects of the crime upon the victims and their families, necessitated the imposition of a substantial term of imprisonment.
23 With great respect to his Honour, I recognise the difficulty of the task which he faced and the considerations which he took to militate in favour of a youth training centre order. There was a considerable amount of material before the judge in terms of a pre-sentencing report and psychological assessment which suggested that the respondent's best chances of rehabilitation lay in the youth training centre environment. There is, moreover, now additional material before this Court to not dissimilar effect. As it appears from that material, the respondent has now turned 19 years of age, but yet he remains immature and impressionable, and therefore easily led, and accordingly it is thought that he is best suited to the sort of structured environment which a youth training centre can provide.
24 But, be all that as it may, I am unable to accept that a head sentence of only three years' detention is near to adequate to reflect the nature and gravity of the offences in issue, given the respondent's previous criminal history; and, since a youth training centre order may not exceed three years in duration, it follows, in my view, that the sentence which was imposed was not within the range.
25 Culpable driving is a grave offence. As has been observed repeatedly in this Court, it is a species of involuntary manslaughter which falls to be punished as such.[2] Thus the maximum sentence for culpable driving is 20 years' imprisonment, which is the same as the maximum sentence for manslaughter. Society regards the taking of human life by acts of gross negligence as intolerable, and accordingly the community expects that offences of this kind will be visited with stern punishment.
26 In this case the offences were made worse by a succession of aggravating circumstances. The respondent drove while unlicensed and having already been punished for driving while unlicensed, indeed only a few months before the tragedy. His vehicle was to his knowledge unregistered and unroadworthy. He drove at massive speed in a built-up area, under the significant influence of alcohol and cannabis, and after ignoring the warnings of friends not to drive in that state of inebriation. He approached the intersection over the viaduct well knowing that the intersection was fitted with traffic lights that could not be seen until he was upon them, and yet, as he told police, not caring one way or the other what the consequences of that would be. He committed the offences while still undergoing the community-based order imposed for previous offences, and thus in breach of the order, and in consequence he destroyed one young life and he maimed another, and he has left the family of the deceased stricken with grief.
27 As the Director submits, the need for general deterrence of offences of this kind cannot be overstated. Equally, in this case, the need for specific deterrence is obvious. The fact that the respondent drove as he did, unlicensed and under the influence of alcohol and cannabis, and so shortly after being detected and convicted of driving while unlicensed, implies that he had learnt nothing from the previous experience. The lack of insight demonstrated in the course of his interview with police is breathtaking, and even now, according to the most recent assessments with which we have been provided, it remains limited.
28 So to say is not to exclude from consideration the respondent's youth or immaturity, or his deprived circumstances, or, of course, the fact that he pleaded guilty at the first opportunity and has shown a degree of improvement in attitude and maturity since his incarceration. Nor is it to understate the recalcitrance with which this Court should and does respond to Crown appeals against sentence, particularly in the case of young offenders. But, as authority makes plain, occasion may arise for the bringing of a Crown appeal when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error of principle,[3] and in my view this is one of those cases.
29 Whereas sentences of less than five years for culpable driving were once not uncommon, today such a sentence is a relative rarity, except perhaps where one is concerned with a first-time offender and the death of the victim has been more the consequence of bad luck than out and out stupidity. Where, however, one is dealing with an offender with a history of relevant criminal conduct and aggravating circumstances, of the order of magnitude with which we are here concerned, it is to be expected that the sentence imposed will be substantially more.
30 It follows, in my view, that the appeal should be allowed and the sentence imposed below should be set aside.
Re-sentencing
31 In re-sentencing the respondent, I would have regard to the nature and gravity of the respondent's offending, the degree of his culpability, the need for general and specific deterrence, and the need for denunciation and for just punishment. As against that, however, must be balanced his early plea of guilty, such remorse as he appears now to have shown, his youth and immaturity, his personal circumstances, and of course the principle of double jeopardy as it applies to Crown appeals.
32 In the result, I would re-sentence the respondent on count 1, the count of culpable driving, to a term of imprisonment of five years, and on count 2 to a term of imprisonment of two years. I would order that one year of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, thereby making for a total effective sentence of six years' imprisonment. I would further order that the total effective sentence of six years be served cumulatively on the sentence to which the respondent is now subject, but, having regard to the material with which we have been provided and the chances of rehabilitation of the respondent, I would, pursuant to s.14 of the Sentencing Act 1991, set a non-parole period of three-and-a-half years in respect of all sentences which the respondent is to serve or complete.
33 I add that, although I consider that it is necessary to re-sentence the respondent to imprisonment for the reasons that I have given, I am persuaded by the materials put before us that it is plainly desirable that he be permitted to serve part, if not all, of the sentence in a youth training centre. If, therefore, the other members of the Court agree with the disposition of the appeal that I think to be appropriate, I would propose to have the relevant materials submitted to the Adult Parole Board to facilitate consideration by the Board of the exercise of its power under s.244 of the Children and Young Persons Act 1989. It goes without saying, of course, that this Court has no control or influence over the Board, and, in formulating the period of imprisonment to which the respondent is to be sentenced, I take no account of the course which the Board may choose to adopt. But I would be disposed to facilitate their consideration of the respondent's case so that, if their decision is that he be transferred to a youth training centre after he has been sentenced, it can be done without delay.