Criminal Law - Particular offences - Driving offences - Sentence - Culpable or dangerous driving causing death - Tasmania - Whether sentence of four years' imprisonment (non-parole two years and eight months) excessive - Whether sentence imposed recognised differences in situations of appellant and co-accused convicted of more serious crime - Factors considered.

Shipton v R [2003] TASSC 23; Director of Public Prosecutions v Watson [2004] TASSC 54; Jurisic v R [1998] NSWSC 423; (1998) 45 NSWLR 209, referred to.

Judgment Number: [2009] TASSC 84

1 The appellant was jointly charged with Haden Anderson with manslaughter arising out of the death of Aaron Neil Bumford caused by their driving of motor vehicles. Anderson was found guilty of manslaughter. The appellant was found not guilty of that crime, but guilty of causing death by dangerous driving. He was sentenced to imprisonment for four years, with a non-parole period of two years eight months. In addition, he was disqualified from driving for two years six months from his release from prison.

2 He has appealed against the sentence, contending that specific errors were made by the learned judge when determining the sentence, and that the sentence of imprisonment was manifestly excessive.

3 Anderson was sentenced to imprisonment for five years eight months, with a non-parole period of four years, and he was disqualified from driving for three years following his release. However, the sentence of imprisonment was effectively one for almost six years, and the non-parole period effectively one of almost four years four months, the learned judge reducing the sentence by four months, but not the non-parole period, after taking into account 111 days' pre-sentence custody.

4 In his comments on passing sentence, the learned judge made the following findings of fact from the evidence at the trial:

"On the evening of 29 March 2007, each had driven a motor vehicle from Glenorchy to a short distance north of the town of Franklin where Anderson collided with a motorcycle driven by Aaron Bumford, killing him instantly. Gallagher's vehicle was some short distance in front of Anderson immediately before the collision. The two drivers, who had been drinking, each had a passenger on the journey. Anderson returned a reading of a blood alcohol concentration of 0.124. The two men had been racing.

Anderson was working and living at Geeveston and, intending to travel interstate on the following day, and [sic] was travelling to Geeveston to collect clothing. The accompanying vehicle was, presumably, to be used for the return journey. The vehicles set off at approximately 9.15 p.m. and the death was caused soon after 10.00 pm. Each driver had stopped at separate bottleshops in Hobart to purchase additional alcohol. Motorists saw each or both of the vehicles engaged in acts of dangerous driving at Glenorchy, the Southern Outlet, Kingston, Anderson's alone, Lower Longley, Grove, Huonville, and the highway between Huonville and Franklin. Those acts included travelling at speeds of up to one hundred and forty kilometres an hour, passing and re-passing, travelling close together, crossing double line, speeding through a town area, and cutting into the path of oncoming traffic. Gestures were made by one of the passengers consistent with the taunting of the following driver. A number of other drivers were forced to take evasive action to avoid collision. The course of driving occurred during a fifty kilometre journey. That course was repetitive, prolonged, and posed danger to other users at varying sections of the road. The section of the highway between Huonville and Franklin is narrow and windy with few places suitable for overtaking. In Shipton - and I'll omit case references, counsel - the Court of Appeal adopted the matters of aggravation stated in Jurisich, which here relevant, include, extent and nature of the injuries inflicted. Here, a young man driving a motorcycle properly was killed instantly and a passenger injured. A number of people put at risk. A number of other road users between Glenorchy and Franklin were put at risk of death or injury.

Degree of speed - no accurate determination of speed can be determined. Some observers stated in evidence that they'd never seen a vehicle travel as fast over a particular section of the highway. Some estimated a speed at or in excess of a hundred and forty kilometres an hour. The accident investigator calculated conservatively that the speed of Anderson's vehicle was travelling at - was a hundred and forty kilometres per hour when its driver lost control immediately before the collision. The speeds observed were inherently dangerous. Degree of intoxication - both drivers had been drinking. Anderson returned a blood alcohol concentration of 0.124. Length of journey during which other were exposed to risk - the journey was for some fifty kilometres. Ignoring of warnings - the avoiding action of other vehicles ought to have warned both drivers, conversely the inciting gestures of the passenger acted as a firm notice that the race ought continue.

The collision occurred when Anderson lost control of his vehicle at high speed. It travelled onto the verge, travelling out of control onto its incorrect side, slide sideways for a considerable distance and struck the oncoming motorcyclist killing him instantly. The impact was horrendous. The speed of Anderson's vehicle at the time of the loss of control was in excess of a hundred and forty kilometres and hour.

Gallagher, driving the then preceding vehicle that had just passed the motorcyclist turned around and returned to the scene. But, in a panic or fear of implication, did not stop and returned to Hobart.

Each driver was responsible for the death. The jury verdict required a finding that the two had engaged in a common purpose to drive at 'an excessive speed and/or to race and/or to drive in a manner dangerous to the public.' I find each has been consistent with the jury's verdict. There was no evidence at trial of an express agreement. The two were complicit by an understanding or tacit agreement spoken or unspoken that one vehicle would reach Geeveston first, or at least the other vehicle would keep up. The test was between vehicle and vehicle and driver against driver. Chance alone determined which driver would cause harm."

5 The grounds of appeal assert four errors in the findings of fact. Three of them were errors. The other was not.

6 The three errors were that motorists saw each[1] or both of the vehicles engaged in acts of dangerous driving at Glenorchy and on the Southern Outlet, that the length of the journey during which others were exposed to risk was some 50 kilometres, and that a number of other road users between Glenorchy and Franklin were put at risk of death or injury. Those three findings may have been correct for Anderson, but not for the appellant.

7 There was evidence that both vehicles left the appellant's unit in Glenorchy and travelled to Kingston and on to just north of Franklin. There was also evidence from the appellant's passenger that Anderson's vehicle was in front of the appellant's vehicle on the Brooker Highway, which could not have been far from the starting point of the journey, that the appellant stopped at a bottle shop in the city of Hobart, and that the two vehicles did not come together again until they met up at Kingston.

8 An independent witness gave evidence that a car, the description of which matched Anderson's vehicle, overtook her vehicle in Tolosa Street, Glenorchy, when it was unsafe to do so. Another independent witness gave evidence of being overtaken by a similar vehicle, which was accelerating quickly at a speed of about 90 to 95 kilometres per hour in a speed limit area of 80 kilometres per hour. It was heading south towards Kingston on the Southern Outlet, and as it overtook, the front seat passenger stuck his head and arms out the window and yelled something at the vehicle being overtaken. There was no evidence that there was anything dangerous about the speed or manner of driving.

9 I understand it to be accepted that the distance between Glenorchy and Franklin is about 50 kilometres, and the distance between Kingston and Franklin is about 30 kilometres.

10 The respondent concedes that there was no evidence of dangerous driving by the appellant prior to him arriving at Kingston, but it points out that there was ample evidence that the appellant deliberately took part in a sustained course of dangerous driving for the following 30 kilometres.

11 It is the appellant's contention that the errors in the findings of fact were material to the consideration by the learned judge of questions of parity concerning the sentences of Anderson and the appellant. I will return to that subject later. It is the respondent's contention that the erroneous findings were immaterial and did not lead to an erroneous sentence.

12 The fourth finding of fact that is raised is stated in the ground of appeal as a finding "that both drivers had been drinking (inferring that Gallagher had been intoxicated)". The words in parenthesis cannot be inferred from what the learned judge said. I will refer to some of the evidence concerning the matter.

13 Two hours after the accident, Anderson had a blood alcohol content of 0.124 grams of alcohol per 100 millilitres of blood, which suggested about 0.155 at the time of the accident. An expert witness gave evidence that a person with a blood alcohol reading of between 0.10 and 0.15 would suffer impairment of reaction times, balance, motor function, cognitive function, and vision.

14 The appellant did not give evidence. In an interview with the police, he said that on the day of the accident he finished work at 4.30pm, went to his Glenorchy home, showered and had a beer with Anderson. He then travelled to Hamilton. On the way, he stopped at the Gretna hotel and purchased a six pack of beer. He claimed that his companion was drinking them and every now and then offered the appellant one from which he had a sip. The appellant said that they stayed at Hamilton for 15 or 20 minutes and then returned to his home. On the return journey, the rest of the stubbies were consumed, but not by him, he said. However, his companion at the time, Damien Hyland, gave evidence that it was "Cougar bourbon" that was being consumed in the car to and from Hamilton, and that on both journeys the appellant drank out of the can from which Mr Hyland was also drinking.

15 The appellant said to the police that after returning home, he and Anderson, and their respective passengers, left to drive to Franklin. He stopped his vehicle at a 9/11 liquor store in the city of Hobart, bought a carton of Jim Beam and headed off for Franklin via the Southern Outlet. He admitted to drinking one can of Jim Beam while he was driving. One of his passengers, Mr Hyland, gave evidence that the appellant was consuming alcohol between Kingston and Huonville but accepted, somewhat unconvincingly, when asked by the appellant's counsel in cross-examination, that it was likely that the appellant was drinking from a can he was passing to him.

16 The appellant told the police that he did not feel affected by the alcohol he had consumed. He said that by the time of the accident, he had drunk two stubbies of beer and one can of Jim Beam since leaving work. When he realised that the accident had happened, he did not stop at the scene but drove home to Glenorchy, left his car there, went to a hotel and drank "a couple of jugs".

17 In view of that evidence, it was not an error on the part of the learned judge to summarise it by saying that the two drivers had been drinking, and that Anderson returned a blood alcohol concentration of 0.124.

18 Two grounds of the appeal concern these questions. One, ground (c), asserts error by the learned judge "in finding that the only issues to reflect the disparity of sentence between Anderson and Gallagher was only [sic] the verdict and their respective driving records". The other, ground (d), asserts error in failing "to take into account the different factual circumstances of driving when considering the issue of parity". When dealing with the need for disparity between the sentences that were to be imposed on the two offenders, the learned judge said:

"Parity: The jury was entitled, consistent with the directions given at trial to return an alternate verdict in relation to Mr Gallagher. Effect will be given to that verdict, and I quote Barnard and Rau. There is a difference between the respective driving records of each offender. Those factors requires disparity in sentence. It is appropriate that the head sentence be first determined for Anderson and allowance then made for the two factors stated above to be proportionate to the first. An identical proportionate calculation will be made in relation to the non-parole period. The criminality ... of the conduct is not reduced because the death was vehicle related - McKenna."[2]

19 It was submitted for the appellant that the learned judge erred by concluding that the only issues that should require disparity between the sentences of Anderson and the appellant were the respective verdicts and driving records. Counsel pointed to three matters, they being the different lengths of their respective journeys over which the evidence established that others were exposed to risk, the manner in which Anderson drove in the two incidents on Tolosa Street, Glenorchy, and the Southern Outlet near Kingston, and differences in what the evidence established concerning the consumption of alcohol by the two drivers. It was argued for the appellant that his imprisonment should be shortened by this Court to reflect those three matters, otherwise he may well have a justifiable sense of grievance and there will be an appearance of injustice.

20 Questions of parity and disparity more commonly arise where the same crime has been committed by more than one offender. The general principle is that where other things are equal, persons convicted of the same crime shall receive the same punishment, but where other things are not equal, due allowance should be made for them and as a consequence, different sentences may be required. Prestage v R [1979] Tas R 270. An appellate court will interfere where it considers that there is unjustified disparity between sentences imposed upon co-offenders. However, doubts have been expressed about the application of the principle where two offenders have been convicted of different crimes. Bowerman v R [1983] Tas R (NC 17), unreported 55/1983.

21 The principles concerning parity and disparity between sentences are not in issue here. The complaint of the appellant is that the learned judge erred when, having decided to determine the appellant's sentence after first determining Anderson's sentence and then lessening its severity for the appellant's sentence by making due allowance for any mitigating or less aggravating factors, he failed to have regard to the three matters to which counsel referred.

22 I do not accept there is merit in the complaint. The different verdicts, Anderson guilty of manslaughter and the appellant guilty of causing death by dangerous driving, were taken into account by his Honour, and they could be accounted for by the possibility that the jury had regard to those three matters, particularly the evidence of Anderson's blood alcohol content and the absence of such evidence in regard to the appellant. It was not argued that the learned judge erred by not attempting to explain the reasons for the different verdicts in his sentencing comments. I add that another explanation for the different verdicts is that it was Anderson, and not the appellant, who lost control of his vehicle and collided with the deceased.

Shipton v R and Director of Public Prosecutions v Watson

23 In his sentencing comments, the learned judge said that he accepted a prosecution submission that he "ought determine the appropriate penalty as one between the parameters of Watson and Shipton". The references were to Shipton v R [2003] TASSC 23 and Director of Public Prosecutions v Watson [2004] TASSC 54; (2004) 146 A Crim R 223. A ground of the appeal asserts that acceptance of the submission was erroneous.

24 The prosecution submissions with respect to both Anderson and the appellant were made at the same hearing. At the outset of his submissions, counsel for the Crown submitted that the different verdicts could be accounted for by the fact that there was evidence of a high level of consumption of alcohol by Anderson, but no proof of a high level of consumption by the appellant. Counsel then submitted that there appeared to have been a significant difference in sentences between those for manslaughter and those for causing death by dangerous driving, and particularly so since Shipton and Watson.

25 Both of those cases concerned sentences for manslaughter arising out of the driving of motor vehicles.[3] In Shipton a sentence of seven years' imprisonment was upheld on appeal and in Watson a sentence of 18 months' imprisonment was increased on appeal to three years' imprisonment.

26 Counsel for the Crown submitted to the learned judge that "it's not as serious as Shipton it's more serious than Watson ... And the reason why I say it's more serious is in that this is a much longer period of driving, there was alcohol involved, and I know it's not an aggravating factor it's lack of a mitigating factor, Mr Anderson's record is worse in this case."

27 It was that submission the learned judge must have had in mind when he said that he accepted that he ought to determine the appropriate penalty between the parameters of Watson and Shipton. Counsel for the appellant submitted that such a course was erroneous because the appellant was not being sentenced for manslaughter. However the learned judge was well aware of that and it is fanciful to think that his Honour overlooked it. He was sentencing Anderson for manslaughter, and three sentences earlier in his comments said that it was appropriate that he determine Anderson's sentence first. His references to the parameters of Watson and Shipton were made in that context. There was no error.

Was there a failure to have regard to earlier sentences for causing death by dangerous driving?

28 Following on from what I have just said, I will deal with two grounds of appeal that assert errors by the learned judge "in failing to have regard to the prosecutors [sic] submission in sentencing Gallagher that Gallagher be sentenced in relation to sentences of death by dangerous driving" and "in failing to have regard to the sentences imposed by the Court on sentences for causing death by dangerous driving".

29 Neither ground has merit. There is no basis for concluding that the learned judge did not have regard to such a submission from Crown counsel, and there is no basis for concluding that his Honour failed to have regard to previous sentences for causing death by dangerous driving. He may have had regard to a great number of them. If he did, there is no obligation to refer to them in his sentencing comments. If he did not, he committed no appealable error.

30 In sentencing submissions, Crown counsel referred to the sentencing of two people, Komarzynski and Morley, on 20 December 2007, each to 12 months' imprisonment. Both men were found guilty of causing death by dangerous driving and of causing grievous bodily harm by dangerous driving. Counsel pointed out that a race between drivers was involved and he submitted that the present case was a worse example of the offence. Counsel for the appellant also referred to the sentences in that case, to the sentence in Jarvis, 6 March 2008, and to Sentencing in Tasmania, 2 ed, by Professor Warner at 281, 282.

31 When considering this ground of appeal, the first consideration is the seriousness of the crime, that is to say, the level of criminality.

32 As I observed earlier, there was no evidence that the appellant drove dangerously until he reached Kingston. There was evidence that Anderson drove dangerously in Tolosa Street, Glenorchy, possibly 20 kilometres before reaching Kingston, by overtaking a vehicle when it was not safe to do so. There was also evidence that Anderson drove at about 10 - 15 kilometres in excess of the speed limit at one point on the Southern Outlet. Having regard to all of the evidence, and in particular the evidence that the two vehicles raced each other after leaving Kingston, the evidence of how Anderson drove earlier had little value in the assessment of the disparate nature of their respective criminalities. In that regard, two particular matters distinguished them. The first was that Anderson had a significant blood alcohol reading, whereas there was no evidence that the appellant had one, and it was Anderson who lost control of his vehicle and collided with the deceased, and not the appellant.

33 The evidence established that from the time the two drivers met up at Kingston, there was a sustained course of dangerous driving by both of them until the fatal accident about 30 kilometres later. I will refer to some of the evidence in the order in which the events occurred.

34 Mrs Oates described being overtaken by two cars going extremely fast at the top of Lower Longley hill. They crossed double lines when doing so and were no more than a car length apart from each other. She estimated their speed at well over 100 kilometres per hour and possibly 120 kilometres per hour. The passenger in the leading vehicle signalled at her with his finger up.

35 Mrs Harvey described one of the vehicles scaring her as it overtook her at a speed that was a lot faster than 140 kilometres per hour between Vince's Saddle and Grove, with another vehicle following about a metre behind it.

36 Mr Richards was standing outside the Grand Hotel, just off the main street of Huonville. He saw Anderson's Statesman flying past with a person hanging out the passenger side window, gesturing with his arm. The appellant's vehicle followed only two or three metres behind. Mr Richards estimated their speed to be at least 140 kilometres per hour. It may safely be assumed that the speed limit in Huonville was 50 or 60 kilometres per hour.

37 Mrs Foster was in a vehicle being driven by her son in the opposite direction to the appellant's vehicle, just south of Huonville. She noticed the headlights of two approaching vehicles at a point where there were some bends. She thought the front vehicle was travelling faster than 100 kilometres per hour and the one behind it was faster at about 120 kilometres per hour. Her son reacted to the two vehicles by pulling well over, until he was three quarters of the way off the bitumen. The first of the two cars was about half way across onto the wrong side of the highway. Her description of the vehicles placed the appellant's vehicle in front.

38 Mrs Price was driving north from Franklin towards Huonville when she saw two approaching vehicles that were only three or four metres apart and travelling at well over the 100 kilometre per hour speed limit. She had not seen vehicles travel so fast in that area. She took evasive action by moving half off the left edge of the highway, believing that if one vehicle hit the other, she would have been hit. The two vehicles were gone in a flash.

39 Ms Bull was driving south at about 80 kilometres per hour, possibly only a kilometre or so before the accident scene, when two vehicles overtook her at a very high speed and on the wrong side of double white lines. They were only a metre or so apart. Her description placed the appellant's vehicle in front. She said she had never seen a car travel so fast. Shortly after that, she came upon the scene of the fatal accident.

40 Mr Pearce was driving north in his utility. The deceased's motorcycle must have been fairly close behind him. He described the weather conditions as drizzling and the road as being wet enough to be slippery. Just north of the place where the accident happened, he saw two approaching cars. His description of the first vehicle resembled Anderson's. The two vehicles were within a car's length of each other. He described their speed as the fastest he had ever seen on the road and faster than 120 kilometres per hour.

41 At the time of the accident, the appellant's vehicle was leading what must have been a race. The evidence established that just before the accident, one vehicle overtook the other on at least two occasions at horrific speeds on a road that had many bends and crests, and which was wide enough for only one vehicle travelling in each direction. Mr Pearce said that after the two vehicles passed him, he noticed that the rear one was partly across onto the wrong side of the road. It is likely that the appellant was about to overtake Anderson's vehicle at that point. He was in front when Anderson went into the gravel on the left on a corner. Anderson over-corrected, crossed onto the wrong side of the road, and collided with the deceased's motorcycle. Evidence was given by an expert witness that Anderson's speed at impact was 142 kilometres per hour.

42 The appellant's manner and speed of driving were highly dangerous over a distance that is likely to have been about 30 kilometres. That the two drivers travelled so fast and so close to each other made an accident with fatal consequences a likelihood.

43 The appellant was 21 years old at the time of the offence. He was single. He had a sound family upbringing and was well educated. He came to Tasmania from New Zealand for work and was gainfully employed at the time of the offence. Although his counsel expressed remorse on his behalf, he downplayed his involvement when interviewed by police and did not acknowledge responsibility for causing a death.

44 He had a poor driving record, particularly for alcohol-related driving. In New Zealand in 2003 he was convicted of operating a vehicle carelessly and of failing to stop after an accident. In this State, on 1 December 2006, he drove with a blood alcohol reading of 0.133. For that he was fined and disqualified for eight months on 25 May 2007. On 11 March 2007, only 18 days before this offence, he drove with a blood alcohol reading of 0.132. On 16 April 2007, he was fined and disqualified for driving for six months for that offence. Twice in April 2007 he received infringement notices for speeding. On 6 April 2007, he once again drove with an excessive blood alcohol reading, this time 0.132, for which, on 16 May 2007, he was fined and disqualified for seven months. Later in 2007 he returned to New Zealand, where on 15 December 2007, he drove with an excessive amount of alcohol and was disqualified from driving for six months. His record demanded a sentence that was particularly of personal deterrence to him.

45 Anderson was 22 years old at the time of the offence. He was single. He was raised in a supportive home. He came from New Zealand to Australia in 2004 and to Tasmania in October 2005. He had been employed consistently, and, at the time of the offence, was an electrical linesman earning good money. As with the appellant, his counsel expressed remorse on his behalf, but his version of the events to the police was self-serving and must have been rejected by the jury. He had an appalling driving record, worse than the appellant's record. He had shown disdain for court orders disqualifying him from driving. He had convictions in New Zealand in 2003 for driving while suspended, a month later for driving while disqualified, and in 2004 again for driving while disqualified. At the time of the manslaughter, he was a disqualified driver. He had a prior Tasmanian conviction on 27 March 2006 for unlicensed driving and driving with alcohol in his body (0.028), and on 26 February 2007 he was convicted for driving with a blood alcohol reading of 0.161, for which he was fined and disqualified from driving for two years. The last of those convictions was only a month before the manslaughter. Although he was not convicted for them until three months later on 22 June 2007, he committed two other prior offences involving driving with excessive blood alcohol readings, on 3 February 2007 (0.084) and on 25 February 2007 (0.115).

46 The sentencing database kept by the Court contains 33 other sentences for causing death by dangerous driving from 1989 until the appellant's sentence. Ignoring disqualification and probation orders, the sentences were:

•

one of imprisonment for two years four months, but the offender was also sentenced for five other offences and the component for causing death by dangerous driving is unlikely to have exceeded two years' imprisonment;

•

one of imprisonment for two years;

•

three of imprisonment for 15 months, one of which was partly suspended;

•

eight of imprisonment for 12 months, one of which was partly suspended;

•

twelve of imprisonment for nine months, two of which were wholly suspended;

•

two of imprisonment for eight months;

•

seven of imprisonment for four months, one of which was partly suspended;

•

one of community service for 150 hours.

47 It can be seen that the appellant's sentence of imprisonment was substantially more severe than all of the previous sentences since 1989. Indeed, the imprisonment was over three times as long as all except two of them and, it can reasonably be stated, over double the length of the remaining two. In all the circumstances, it is not surprising that it is a ground of appeal that the sentence was manifestly excessive.[4]

48 The need for consistency and standardisation in sentencing is clear, although from time to time judges have ignored it in particular cases. The principle of consistency has been stated by this Court many times. For examples of such statements see West v R unreported 31 March 1958 per Burbury CJ at 9, Crisp J at 10 and Gibson J agreeing; Singline v R unreported 15 March 1962; Lovegrove v R unreported 1 June 1961 at 1; Papazoglou v R unreported 8 March 1963, per Gibson J at 2 - 3, Crawford J at 2 - 4, and Cox J; R v O'Brien unreported A43/1987, per Underwood J (as he then was) at 5 - 6; Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1, per Underwood J at 14 - 15, Crawford J at 22.

49 Although concerning disparity between co-offenders sentenced for the same offence, Lowe v R [1984] HCA 46; (1984) 154 CLR 606 is a case that is often cited for the proposition in the judgment of Mason J at 610 - 611:

"Just as consistency in punishment--a reflection of the notion of equal justice--is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

50 From time to time, members of this Court have expressed concern about being shackled by a consideration of sentences in other cases, particularly when they supported a sentence outside the usual range imposed by judges. An oft quoted statement to that effect is of Wright J (in dissent) in R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 185 - 186, where his Honour emphasised that it is the seriousness of the criminal conduct, rather than the category of crime of which the offender has been convicted, which is of paramount importance.

51 Nevertheless, the principles in the statement in Lowe generally should be applied when it is not inappropriate to do so. I observed in Inkson at 22, that a consideration of the range of penalties imposed in other cases is a valuable tool and one which is frequently applied when assessing whether a sentence is manifestly excessive. As a general rule, like cases should attract like sentences, and the imposition of disparate sentences in like cases, understandably, has a tendency to excite public disfavour and criticism of the sentencing practices of courts.

52 Although it was not made the subject of a ground of appeal, I do not favour the approach of the learned judge to the assessment of the appellant's sentence by first fixing Anderson's sentence and then discounting it after having regard to the different verdicts and the different records of the offenders. It is because they were convicted of different offences, one of manslaughter and the other of causing death by dangerous driving, that much of the value that might arise from a comparison of their criminal conduct is lost.

53 Anderson was found guilty of manslaughter because the jury was satisfied, in terms that were directed to them by the learned judge, that he caused the death of the deceased by culpable negligence, in the sense of negligence that showed such a disregard for the life and safety of others as to amount to a crime against the State and deserving of punishment.

54 The appellant was found not guilty of manslaughter. As a consequence, the law prohibited him being sentenced upon the basis that he was culpably negligent in that way, or that he was complicit with Anderson, or had such a common purpose with Anderson, that manslaughter was a likely consequence. Because he was found guilty of causing death by dangerous driving and not guilty of manslaughter, he was to be sentenced only upon the basis that he caused death through a dangerous speed or manner of driving, when objectively assessed, and not upon the basis that he appreciated the danger that was inherent in what he was doing and recklessly ignored it. That must follow from the way in which the learned judge directed the jury.

55 A warning about making a comparison between manslaughter and a dangerous driving that caused death was made in Sheldrick v R unreported 1 August 1960 by Burbury CJ, with whom the other members of this Court agreed, at 5:

"Another matter to be borne in mind is that in the present case, because the jury has acquitted the accused of manslaughter, the sentence imposed should not approach too closely the kind of sentence to be expected in motor manslaughter cases. The ingredients of the offence of dangerous driving make it generally a substantially lesser crime than that of 'motor manslaughter'. A sentence for dangerous driving must bear a proper relationship to the proper sentence in the case of motor manslaughter. And generally it appears that sentences in Tasmania and elsewhere for the offence of dangerous driving are substantially less than sentences imposed for manslaughter."

56 Counsel for the respondent sought to justify the appellant's sentence by calling for an increase in the severity of sentences for causing death by dangerous driving. He argued that since Shipton v R (supra) and Director of Public Prosecutions v Watson (supra) sentences for motor manslaughter have increased, and that sentences for causing death by dangerous driving should correspondingly increase. I am not convinced of that as a matter of principle, but acknowledge that a bad case may demand a sentence at the top of, or above, the usual range for the offence.

57 The guideline judgment of the New South Wales Court of Criminal Appeal in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 concerned sentences for offences that included dangerous driving occasioning death. At 231, Spigelman CJ identified a number of factors, the presence or absence of which might be aggravating or mitigating. The factors were:

4 The degree of intoxication or of substance abuse.

7 The length of the journey during which others were exposed to risk.

58 In this case, factors 2, 3, 5, 6 and 7 were aggravating factors when considering the appropriate sentence for the appellant.[5] The presence of those factors made this a bad case of dangerous driving. There were almost no mitigating factors, and his record of offending called for a sentence of personal deterrence.

59 Having regard to the level of sentencing for the offence since 1989, I conclude that the sentence of four years' imprisonment was manifestly excessive. It was far in excess of any previous sentence for the offence and I conclude that the appellant has a justifiable sense of grievance because of that. I would uphold the appeal and quash the sentence of imprisonment, although leave the order of disqualification for two years six months from his release from prison.

60 Because of the many factors of aggravation, and almost none of mitigation, a relatively severe sentence of imprisonment was demanded, but one appropriate for an offender the jury determined was not guilty of causing death by culpable negligence. I would re-sentence the appellant to imprisonment for two years eight months with a non-parole period of one year eight months.

61 I agree with the reasons of Tennent J and would also dismiss the appeal.

62 The appellant has appealed against his sentence imposed 18 June 2008 upon his conviction for one count of causing death by dangerous driving, contrary to the Criminal Code, s167A. The appellant was sentenced to serve a period of four years' imprisonment backdated to 28 May 2008. It was further ordered that he not be eligible for parole until he had served a period of two years and eight months of that sentence.

63 The appellant and Haden Anderson were jointly charged with one count of manslaughter. On the night of 29 March 2007, the appellant and Anderson drove separate cars from Glenorchy towards Geeveston. Just north of Franklin, the appellant overtook Anderson. Shortly after that, Anderson lost control of his vehicle and veered on to the wrong side of the road. He collided with a motor bike travelling in the opposite direction, killing the rider. The appellant, on becoming aware Anderson was no longer behind him, turned round. He came upon the accident scene. He did not call an ambulance or provide any help. Instead, he drove away. He drove back to Hobart and went to a hotel where he consumed alcohol.

64 It was the State's case that the appellant and Anderson had, in effect, been driving in convoy, that both had been consuming alcohol, and that each drove dangerously for a considerable distance prior to the accident. It was the State's case that the two drivers were at times racing each other and, in effect, trying to outdo each other in the way they drove. At the time of the accident, it was estimated that Anderson was travelling at about 140kph. He had a blood alcohol level of .142 when breathalysed after the accident with an estimate that, at the time of it, his blood alcohol level was in excess of three times the legal limit. On the basis of his blood alcohol level, his manner of driving was bound to have been affected by his consumption of alcohol. The appellant was not breathalysed after the accident. He had left the scene. He was not directly involved in the actual collision.

65 The learned trial judge directed the jury as to manslaughter and as to the alternative crime of causing death by dangerous driving. The jury found Anderson guilty of manslaughter. While the jury, by its verdict, accepted that the two men were acting pursuant to a common purpose, the appellant was convicted of the lesser charge of causing death by dangerous driving on the basis of his different role in the matter and different circumstances affecting him. Both the appellant and Anderson were sentenced on the same day. Anderson had however spent 111 days in custody at the time of sentence. The learned sentencing judge determined the appropriate sentence for Anderson was six years, with a non-parole period of four years. Rather than backdate his sentence, the learned sentencing judge sentenced him to a term of five years and eight months' imprisonment effective from the same date as the appellant's sentence, with a non-parole period of four years. There was therefore an effective difference of two years in the head sentences imposed on the appellant and Anderson, and a difference of one year and four months in the non-parole periods.

66 The grounds of appeal were in the following terms:

(a) The Trial Judge erred in fact in finding that Gallagher:

(i) Engaged in acts of dangerous driving at Glenorchy and on the Southern Outlet.

(ii) That the course of driving occurred during a fifty (50) kilometer journey.

(iii) That a number of other road users between Glenorchy and Franklin were put in risk of death or injury.

(iv) That both drivers had been drinking (inferring that Gallagher had been intoxicated).

(b) That the Trial Judge erred in fact and in law in finding that Gallagher's act of driving was equally as culpable as the driving of Anderson.

(c) The Trial Judge erred in fact and in law in finding that the only issues to reflect the disparity of sentence between Anderson and Gallagher was only the verdict and their respective driving records.

(d) That the Trial Judge failed to take into account the different factual circumstances of driving when considering the issue of parity.

(e) The Trial Judge erred in fact and in law in that in determining the issue of parity that the head sentence be first determined for Anderson and then allowance made for disparity be proportionate to Anderson's head sentence.

(f) The Trial Judge erred in fact and in law in sentencing Gallagher on the basis that the prosecutor submitted that the Court ought to determine the appropriate penalty as one between the parameters of Watson and Shipman.

(g) The Trial Judge erred in fact and in law in failing to have regard to the prosecutor's submission in sentencing Gallagher that Gallagher be sentenced in relation to sentences of death by dangerous driving.

(h) The Trial Judge erred in fact and in law in sentencing Gallagher in failing to have regard to the sentences imposed by the Court on sentences for causing death by dangerous driving.

(i) The sentence is, in the circumstances of the case, manifestly excessive."

Notwithstanding the terms of the grounds of appeal, counsel for the appellant divided his oral submissions into two areas. The first was that of parity as between the sentences imposed upon the appellant and Anderson, and the second related to the excessiveness of the penalty itself.

67 The learned sentencing judge was clearly mindful of this issue. He identified the different verdict reached by the jury in respect of the appellant and noted that effect would be given to it.

68 In his written submissions, counsel for the appellant identified what he described as factual errors made by the learned sentencing judge in his sentencing comments. His Honour said as to the acts of driving and factors of aggravation:

"Motorists saw each or both of the vehicles engaged in acts of dangerous driving at Glenorchy, the Southern Outlet, Kingston (Anderson's alone), Lower Longley, Grove, Huonville, and the highway between Huonville and Franklin........The course of driving occurred during a 50 kilometre journey.........A number of other road users between Glenorchy and Franklin were put at risk of death or injury.......Both drivers had been drinking. Anderson returned a blood alcohol concentration of 0.124."

69 Counsel for the appellant submitted there was no evidence that the appellant engaged in acts of dangerous driving at Glenorchy or on the Southern Outlet and that, as a consequence, there was nothing to substantiate a finding that he had engaged in a course of dangerous driving over a distance of 50 kilometres. He also submitted it was not open to the learned sentencing judge to find that a number of road users had been put at risk between Glenorchy and Franklin. It was conceded there were acts of dangerous driving between Kingston and Franklin. Counsel for the State conceded these errors but submitted they were not such, having regard to the whole of his Honour's comments, to demonstrate such level of error as to impact on the exercise of his Honour's discretion. He also submitted that a consideration of the evidence showed that the major portion of Anderson's dangerous driving was between Kingston and Franklin.

70 It is perhaps relevant to note that the learned sentencing judge sentenced Anderson and the appellant at the same time. If regard is had to the transcript of what he said at the time, and the written versions of the comments on passing sentence distributed, it is apparent that a number of paragraphs in the sentencing comments were common to both accused, and that in fact what his Honour did was deliver comments apposite to both accused to describe the situation generally, and then diverge into comments particular to each accused. Indeed the course of dangerous driving in a general sense did occupy about 50 kilometres although not necessarily driving by both drivers all the time.

71 In his written submissions, counsel for the appellant also submitted that, whilst the appellant had consumed some alcohol, he was not affected by it, nor was his driving impaired by it. His consumption of alcohol had no impact on his ability to control his vehicle as opposed to the situation of Anderson. Ground 1(a)(iv) of the grounds of appeal asserted that the learned sentencing judge made an error when he said that both drivers had been drinking, because, it was argued, the implication was that both were intoxicated. Counsel asserted that thereby the judge failed to differentiate between the degrees of impairment induced by alcohol as between Anderson and the appellant.

72 During the course of oral submissions, counsel for the appellant conceded that there was evidence that the appellant consumed alcohol both before and while he drove between Glenorchy and Franklin. He also conceded there was no evidence one way or the other as to the degree, if any, of impairment of the appellant's driving due to his alcohol intake. It must follow from counsel's concessions that there could be no error in what the learned sentencing judge actually said about alcohol consumption of Anderson and the appellant. What ultimately came to be counsel's submission was that the learned sentencing judge failed to expressly differentiate between the appellant and Anderson as far as the degree of impairment due to alcohol consumption was concerned, and therefore he made an error.

73 Counsel for the appellant also conceded, when pressed, that the issue of alcohol consumption would have been a reason for the differing verdicts between the appellant and Anderson, and that the only other reason he could identify was that Anderson lost control of his vehicle and directly caused the death. Notwithstanding these concessions, counsel for the appellant maintained the appellant had a justifiable sense of grievance in relation to the issue of parity between his own and Anderson's sentence.

74 At 116 in her text Sentencing in Tasmania 2nd ed_,_ Professor Warner said as to the role of an appellate court in matters such as the present:

"Therefore, an appellate court will interfere where there is an unjustified and marked disparity between sentences imposed upon co-offenders whether by the same or different courts, even if the sentence under appeal was appropriate when considered alone. Similarly, intervention will occur when respective conduct and/or antecedents warrant disparate sentences imposed upon co-offenders, but similar sentences are imposed. The power of the Court of Criminal Appeal, on an appeal against sentence, to quash the sentence imposed and to substitute another 'if it is of opinion that some other sentence whether more or less severe, is warranted in law and should have been passed' is wide enough to empower the court to reduce a sentence not in itself manifestly excessive in order to avoid an unjustified marked disparity. In such cases, intervention is justified not merely because a marked and unjustified disparity is indicative of undisclosed error, but because such a disparity is itself the ground for intervention."

75 While it may be said there were errors by the learned sentencing judge in his comments as to precisely where the appellant's course of dangerous driving was undertaken, the distance over which it occurred, and about whether he could have put people at risk in certain places because of those errors, there can be no argument that the appellant drove in a dangerous manner for a significant distance and, during that passage of driving, put other road users at risk of death or injury. Further, on the evidence, the bulk of the dangerous driving of Anderson was between Kingston and Franklin. The descriptions by witnesses of the manner in which the appellant drove and the interaction between he and Anderson, leaves no doubt at all as to the danger they both presented to others. More than one witness described taking evasive action.

76 If regard is had to the fact that the learned sentencing judge dealt with both the appellant and Anderson together, that he specifically referred to Anderson's blood alcohol level and its impact on his driving, while making no such comment about the appellant, and that he specifically commented on the different verdicts and the need to give effect to that factor, it is perfectly clear his Honour was mindful of the need to distinguish the sentences by reference to the impact of alcohol consumption upon the appellant and Anderson, and that he did so.

77 From the submissions made by counsel for the appellant, and a consideration of the sentencing remarks, the only possible grievance the appellant might have would have to relate to the failure of the learned sentencing judge to expressly state that the level of alcohol consumption was a point of difference between the two sentences. Having regard to the comments I have already made, that failure to express in direct terms the difference that the appellant said, unsupported by evidence, existed, cannot amount to a justifiable sense of grievance.

78 The other issue, to which the appellant's grounds of appeal were directed, was the penalty itself. Counsel's submission was that the sentence was so far out of line with other sentences in respect of this crime as to be manifestly excessive in all the circumstances.

79 The learned sentencing judge accepted the prosecutor's submission that the appellant should be sentenced within the parameters of the sentences imposed in Shipton v R [2003] TASSC 23 and Director of Public Prosecutions v Watson [2004] TASSC 54. In Shipton, the driver had been convicted of manslaughter and sentenced to a term of seven years' imprisonment with a non-parole period of five years. He appealed unsuccessfully. Cox CJ described the circumstances in the following terms at par2:

"It was an appalling case of reckless driving which extended over a period of about 1½ hours during which time the appellant, who was severely affected by alcohol, imperilled numerous members of the public before overtaking a vehicle at a speed in excess of that permitted on that section of the road and drifting across two on-coming traffic lanes before colliding with a vehicle travelling in the opposite direction in its extreme left hand lane. The driver, a mother of two children aged 11 and 13 years, was fatally injured and died shortly after her arrival in hospital. She suffered massive lower limb injuries and had to be cut out of the wreckage of her car. The appellant's own partner, who was a passenger in his vehicle, was 33 weeks pregnant and lost the child in the accident."

80 In Watson, the driver was convicted of manslaughter and causing grievous bodily harm, and sentenced to a term of 18 months' imprisonment. On appeal, that sentence was increased to three years imprisonment with a non-parole period of 18 months. That case involved a young provisional driver driving at high speed in the city, racing another driver. He hit another car being driven by a stranger lawfully passing through an intersection. The driver of that car was killed and one of the accused's passengers was badly injured. The court examined a number of sentences imposed prior to the one with which it was dealing, and commented upon the need for consistency in sentencing. However, Underwood J (as he then was) said at par15:

"However, consistency in punishment does not necessarily mean slavish adherence to any so called 'tariff'."

81 Counsel for the appellant submitted both the above sentences were in respect of the crimes of manslaughter, and not the lesser crime of causing death by dangerous driving. He argued that the sentence in this case should have reflected that, and the range of sentences which had been imposed by the court since those cases had been dealt with, in cases involving convictions for causing death by dangerous driving. Counsel for the State pointed out that, in both Shipton and Watson, the court relied on Jurisic v R [1998] NSWSC 423; (1998) 45 NSWLR 209, a case in which a guideline judgment was delivered in respect of the offences of dangerous driving causing death or grievous bodily harm.

82 Counsel for the appellant referred to a number of sentences in this Court imposed between 2006 and 2008 in respect of the crime of causing death by dangerous driving. In the matters of Dallas (8 February 2006), Yates (31 March 2006), Dowling (27 October 2006), SJP (27 June 2007), Jarvis (6 March 2008) and Stonehouse (1 August 2008, after the appellant was sentenced), each accused pleaded guilty. The sentences ranged from 12 months to four years' imprisonment. However, both Jarvis and Stonehouse involved sentences which dealt with other offending as well. The more usual sentences, if they can be described as such, were in the range of nine to 12 months' imprisonment. The nature of the acts of driving was similar. Most involved speed and alcohol. None however involved a course of dangerous driving such as the appellant's, over a sustained distance with the added factor of his interaction with Anderson. None of the accused, save perhaps Jarvis, had a driving record similar to the appellant's. Most were young inexperienced drivers. That comment cannot be made about the appellant.

83 A sentence of 12 months' imprisonment imposed in the matter of Blake (19 June 2006), was imposed following a jury verdict. That involved a young man with prior convictions for driving offences. The accident which killed his passenger was caused by inattention and impairment due to alcohol consumption. It did not involve the type of driving the appellant engaged in with Anderson. In M and K (20 December 2007), two young men were convicted following a jury verdict of causing death by dangerous driving and grievous bodily harm by dangerous driving. These matters involved drivers driving in concert over a relatively short distance at speed. The passengers killed and injured were not passengers in the cars of these two drivers, but were in a third with which they were racing. Again, these matters did not involve the type of driving undertaken by the appellant with Anderson, nor the distance over which the appellant drove.

84 A comparison of these sentences demonstrates just how difficult, and perhaps unwise, such a comparison can sometimes be. The factors which led to the sentences imposed varied, often significantly. The common theme however was the need to treat the crime of causing death by dangerous driving as one which, community mores dictated, required a significant deterrent sentence.

85 Counsel for the State referred to some decisions from Queensland, South Australia, Victoria and Western Australia where courts had imposed significantly higher sentences than those in this State for similar offending. His submission was that the Court should have regard to the trend evidenced by these sentences. He accepted that any direct comparison could be misleading because of the terms of the legislation and issues with which the courts were dealing. However, he maintained his submission that sentences generally in this State for similar offending were lower than those imposed interstate.

86 The difficulty in assessing the appropriateness or otherwise of sentences for this type of offending is that, if they are intended to act as a deterrent to others, a view often expressed, they should be seen as operating as such. A consideration of media reports about motor vehicle accidents which continue to occur, makes it abundantly clear that sentences imposed to date are not deterring others from dangerous acts of driving with the potential to harm others.

87 In this case, the appellant's acts of dangerous driving were sustained and over a long distance. They involved acts of driving at high speed, acts of overtaking at high speed, and acts of what might be termed "tail gating" by a driver who had consumed alcohol prior to driving and continued to do so while driving. Other road users during this period were required to take evasive action because of the manner of driving. The appellant had a bad driving record indicating a complete disregard for the general traffic and drink-driving laws of this State and his home country of New Zealand over a number of years. In all of those circumstances, a significant sentence, beyond that which might have been seen as the norm, was entirely justified. It reflected the need for general deterrence and the circumstances of aggravation identified in Jurisic which are accepted by this Court as relevant to sentencing in this State.

88 The sentences imposed on Anderson and the appellant reflected the factors I have just identified. The difference between the sentences imposed, in effective terms, two years in the head sentences, in my view reflected the different verdicts and the points of difference identified by the learned sentencing judge.

[1] If his Honour had said "either" instead of "each" there would have been no error, factually or grammatically.

[2] The references to Barnard, Rau and McKenna were to R v Barnard [1956] Tas SR 19, R v Rau [1972] Tas SR 59 and McKenna (1992) 7 WAR 455; (1992) 63 A Crim R 452.

[3] Watson was also sentenced for causing grievous bodily harm to his passenger. The manslaughter conviction related to the innocent driver of a vehicle with which Watson's vehicle collided.

[4] I have not ignored a sentence of four years imprisonment' imposed only six weeks after this sentence on 1 August 2008 in Stonehouse. The sentencing judge was influenced by statements made by the Court in the manslaughter cases of Shipton and Watson.

[5] The first factor does not apply here because the causation of death was an element of the offence.