Kennewell v Rand [2006] ACTCA 10

[2006] ACTCA 10

Court of Appeal (ACT)|2006-06-05|Before: Lander JJ

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Court

Court of Appeal (ACT)

Decision date

2006-06-05

Before

Lander JJ

Source

Original judgment source is linked above.

Judgment (30 paragraphs)

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1. On 24 June 2005 the appellant pleaded guilty in the Magistrates Court in the Australian Capital Territory (the ACT) to two counts of causing grievous bodily harm to a person by the culpable driving of his motor vehicle, contrary to s 29(3) (as it was then) of the Crimes Act 1900 (ACT) (the Act). Both counts arose out of the one driving incident. In both offences it was a particular of the charge that the appellant drove his motor vehicle 'while under the influence of alcohol to such an extent as to be incapable of having proper control'. The offences occurred at 1.40pm on 9 June 2004. The appellant was convicted of both counts. He was sentenced to 18 months imprisonment in respect of each conviction. Twelve months of the 18 month term imposed in respect of the second conviction was made cumulative upon the term of imprisonment imposed in respect of the first conviction which resulted in a total head sentence of 30 months. The Magistrate fixed a non-parole period of 18 months commencing on 24 June 2005 and ending on 23 December 2006. The appellant was also disqualified from holding or obtaining a driver's licence for five years.

2. On 12 July 2005 the appellant filed a Notice of Appeal against the severity of the sentence. That appeal came before an additional judge of this Court on 13 September 2005. On 16 September 2005 the appeal was dismissed.

3. On 7 October 2005 the appellant appealed to this Court against the order of the judge dismissing his appeal. The grounds of the appeal to this Court are:

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4. The appellant was born in Queensland on 25 March 1985. In 1992 he moved with his family to Canberra and has resided ever since in the ACT. He has four brothers and a sister. He has the support of his parents and his siblings.

5. The appellant attended a primary school in Queensland, and primary and secondary schools in the ACT. At the age of 14 he left school and commenced studies associated with an apprenticeship in painting and decorating. He only completed six months of that course. He obtained a certificate in Occupational Health and Safety. He left the Canberra Institute of Technology where he had been studying because he said his mental health had deteriorated. Thereafter, he worked in the family business. He was unemployed for approximately 18 months prior to his attendance in Court.

6. The appellant began to drink alcohol at the age of 16. For a period of one to two years, between the ages of 18 and 19 years, he drank about half a bottle of bourbon two or three times a week. Following these offences he underwent alcohol and drug counselling through the ACT Community Health Alcohol and Drug Program between October 2004 and February 2005. By the time he appeared in Court he said that he had managed his alcohol intake and he was by then consuming about three standard drinks two or three times a week.

7. The appellant has suffered from a number of symptoms suggesting mental health problems. From time to time he has suffered from stress, anxiety, panic attacks and hallucinations. About six months prior to these offences he consulted a general practitioner and was diagnosed with anxiety and depression. He was prescribed anti-depressants, Avanza and Xanax. Later, he was also prescribed Diazepam.

8. His medication was changed early in June 2004 and he stopped taking Avanza for about three days before commencing to take Zoloft.

9. The appellant claims to be suffering from bi-polar disorder and although he exhibits some of the traits of bi-polar disorder, he has not been so diagnosed formally. He has been referred to and consulted with a psychiatrist, who diagnosed the appellant as suffering from severe generalised anxiety disorder and depression.

10. The appellant had been drinking alcohol on the day of the accident. He had also been taking the drugs connected with his medical problems. A friend telephoned him and asked the appellant if he could be picked up. The appellant left his house without giving thought to whether his drinking made him over the limit.

11. The appellant exited Magrath Crescent at speed and turned left into Kingsford Smith Drive, heading north towards Kuringa Drive. In making that turn, the appellant's vehicle crossed on to the wrong side of Kingsford Smith Drive.

12. At the intersection of Kingsford Smith Drive and Kuringa Drive, the appellant's vehicle crossed into the intersection without slowing. The vehicle made a right hand turn but lost traction during the turn and slid into the northern kerb of Kuringa Drive. The appellant corrected the slide and drove on to the wrong side of the road colliding with a Commodore motor vehicle being driven by Mr Patrick Rodden. Mr Rodden's wife was a passenger in that motor vehicle.

13. A Statement of Facts was tendered to the Magistrate. The Statement read:

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17. The pharmacologist assumed that the appellant had consumed half a bottle of bourbon between 10.00am and just before the accident at 1.40pm. He assumed the appellant's weight to be 115 kilograms.

18. The pharmacologist report did not support the appellant's case in any material particular. Indeed, the tendered report was probably contrary to the appellant's own interests. It established first, that the reading taken by the police was probably likely to be reliable; and secondly, that the combination of the drugs which the appellant had taken and the alcohol which he had consumed made him significantly more likely to be involved in a motor vehicle accident. Professor Starmer opined that a person with a blood alcohol concentration of 0.104 was approximately five times the risk of a driver who had not consumed alcohol.

19. As already observed, the appellant was charged with two counts of culpable driving causing grievous bodily harm. The victims were, of course, Mr and Mrs Rodden. Both Mr and Mrs Rodden suffered serious injuries and were admitted to the Canberra Hospital. Mr Rodden suffered multiple fractures to his ribs, a crushed fracture of his 11th thoracic vertebra, a depressed fracture to his sternum and bruising. He was in hospital between 9 June 2004 and 30 July 2004. Mr Rodden had a complicated pre-accident medical history. During his rehabilitation he suffered severe chronic and unrelenting pain despite narcotic analgesia. His injuries are such that it is unlikely that he will ever work again.

20. Mrs Rodden suffered a fractured sternum, a fractured cervical spine, an avulsion fracture of the right elbow and interdigital webbing laceration of the right hand which required a skin graft. Mrs Rodden suffers from neck and shoulder pain which it is expected will take up to two years to resolve.

21. Their victim impact statements testified to the way in which their lives had been changed by the injuries which they had suffered. In his victim impact statement, Mr Rodden described the accident and the appellant's conduct as having 'completely destroyed our way of life'. They both gave evidence in the Magistrates Court verifying those statements. They were not cross-examined.

22. The appellant has no previous convictions. He is a young man. He was at the time of the offences only 19 years of age. He was only 20 when sentenced to imprisonment.

23. The appellant cooperated fully with the police and entered his plea at the first available opportunity. Both of those matters indicate a degree of contrition and remorse. There was other evidence before the sentencing Magistrate also indicating that the appellate was contrite and remorseful.

24. The Magistrate gave extensive reasons for the sentence which she imposed. She dealt with the appellant's illnesses and disorders and whether, in the circumstances, it would be appropriate to give weight to the question of general deterrence. She said that there was no rule of law that general deterrence can only be given slight weight in sentencing a person who has a mental condition. She said that each case must be decided on its own facts.

25. She said:

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28. In the end result, his Honour determined that the sentence was neither manifestly excessive nor infected by any error.

29. Whilst it is from his Honour's decision that this appeal lies, the success or otherwise of the appeal must be measured against the Magistrate's sentence. The circumstances in which an appeal court may interfere with the exercise of the discretion reposing in the sentencing judge are well known and do not need repeating: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

30. The maximum penalty for an offence of this kind is four years: s 29(3) of the Act (as it was then). Parliament has taken the view that this offence is less serious than a like offence which causes the death of another person. For that offence the penalty is seven years: s 29(2) of the Act.

31. The Magistrate could not pass a sentence of imprisonment greater than two years. Section 375 of the Act provides that the Magistrates Court can dispose of a matter carrying a maximum sentence of this kind where a party pleads guilty to the charge and the Court is of the opinion that the case can properly be disposed of summarily by sentencing the accused person, and the defendant has consented to the Magistrates Court so disposing of the matter. If the Magistrates Court disposes of a case summarily under the Act, the Court may not impose a sentence of imprisonment exceeding two years: s 375(10) of the Act. If, on the other hand, the Court is of the opinion that the case cannot properly be disposed of summarily or the defendant has not consented to it being so disposed of, then the Court must commit the accused person to the Supreme Court. In those circumstances, the procedure is governed by s 90A of the Magistrates Court Act 1930: s 375(9) of the Act.

32. It may be inferred that the Magistrate in this case decided that the case could be disposed of summarily and that the restriction on her sentencing powers did not mean otherwise. In the end result, she sentenced the appellant to a period of imprisonment greater than two years because, presumably, she must have been of the opinion that a sentence of 18 months would not be adequate to address the appellant's criminality. However, the appellant, through his counsel, eschewed any argument based upon the proposition that the penalty imposed by the Magistrate meant that the Magistrate should not have disposed of the matter summarily.

33. The appellant argued on this appeal that the sentence was manifestly excessive in that it 'offended against the principles requiring parity in sentencing across the range of those convicted of the offence in question. The facts did not indicate that this was in the worse case category despite the undoubtedly serious injuries that were caused'. Further, it was submitted the Magistrate had erred in accumulating the sentences in the way that she did which led to a head sentence which was 'one of the longest head sentences imposed in the ACT [in] respect of all culpable driving sentences including offences against s 29(2) of the Act (culpable driving causing death)'.

34. In particular, it was argued that the Magistrate had fallen into error by failing to have sufficient regard to matters personal to the appellant. It was argued that the appellant was only 19 at the time when these offences were committed; he had no prior convictions; he had expressed contrition for his actions; he had pleaded guilty at the first available opportunity; and he suffers from mental health problems.

35. In all of those circumstances, it was submitted he was not the type of offender who should be used as an instrument for general deterrence.

36. The appellant's counsel went even further in his oral submissions. He submitted that the sentencing practice in the ACT was that a sentence in cases of this kind would not involve the serving of full time custody. In the alternative, he contended that there was an established principle that in fixing the period of actual custody the Courts 'will give generous and indeed overwhelming weight to matters subjective to the offender'. The appellant's submissions continued to change during the hearing of the appeal and it will be necessary to say more of those submissions later.

37. There are some matters in the appellant's counsel's submissions that may be disposed of quickly. The appellant was not sentenced as though this was the worst case category. He was sentenced to imprisonment for 18 months on each conviction where the maximum penalty that could be imposed was four years.

38. We do not agree with the appellant's counsel's oral submission that there is any principle that, for offences of this kind, the Court must give generous and indeed overwhelming weight to matters subjective to the offender. Nor do we agree that there is any principle that in relation to offences of this kind any outcome will not involve the serving of a period of imprisonment. Both propositions are contrary to the provisions of the Act and the authorities on sentencing.

39. There were a number of steps that needed to be followed in the process of imposing a sentence upon this offender. First, the Magistrate had to make findings in relation to the circumstances of the offence. Secondly, she had to consider the matters subjective to the appellant. She then had to decide whether, having regard to both of those matters and the other principles relating to sentencing, a sentence of imprisonment needed to be imposed. A sentence of imprisonment would not be imposed unless no other penalty was appropriate in all of the circumstances of the case: s 345 of the Act. If she decided that a sentence of imprisonment was warranted, she next had to decide whether such a sentence ought to be imposed upon both of the convictions. If that was her view, then she had to decide whether the sentence of imprisonment imposed on the two convictions ought to be cumulative or concurrent. Having fixed the head sentence, the Magistrate needed to consider whether the sentence needed to be immediately served or suspended or partly suspended. If the sentence was to be two years or less, the options of periodic detention or community service needed to be considered. If the sentence was of one year or longer, to be served by way of immediate custody, the Magistrate needed to fix a non-parole period.

40. In so proceeding, the Magistrate needed to keep in mind the purposes for which a sentence is imposed: s 341 of the Act. The Magistrate had to take into account the current sentencing practice: s 342(1)(q) of the Act. She also had to take into account all of the relevant matters referred to in s 342 of the Act. One of those matters is deterrence and, in particular, general deterrence. Another is, of course, the personal circumstances of the offender: s 342(1)(i), (j) and (m) of the Act. She also had to have regard to the early plea and any demonstration of contrition or remorse: s 342(1)(r) and (s) of the Act. The Magistrate referred to the circumstances of the motor vehicle collision. She referred to his personal circumstances. She took into account his previous good record and his early plea. She referred to general deterrence.

41. It is clear from the Magistrate's sentencing remarks she was of the view that the question of general deterrence was important for offences of this kind. There can be no doubt that she was right to proceed upon that basis, notwithstanding the appellant's youthfulness (R v Slattery (1996) 90 A Crim R 519) and notwithstanding his mental problems (R v Leach (2003) 85 SASR 139).

42. The courts must make it clear to the public generally that it views conduct of this kind seriously. The courts have a duty to ensure that persons who use the highways are not put at risk by persons who would drive like this appellant.

43. We do not accept therefore that the sentencing Magistrate was not entitled to have regard to aspects of general deterrence. We think this case required the sentencing Magistrate to have regard to that matter. However, that is not to say that she was right to accumulate the two sentences.

44. In our opinion, the Magistrate took into account all relevant matters in considering the sentences which are to be imposed. It was a matter for her as to how she ought to weigh those matters in arriving at the sentence to be imposed.

45. In our opinion, there can be no criticism of the manner in which the Magistrate went about her task. She proceeded to sentence in the logical way explained above. Indeed, the appellant's counsel was unable to point to any aspect of her Honour's sentencing remarks which indicated error in the way in which she proceeded.

46. In the end result, the appellant's counsel was forced to say that the Magistrate must have erred in the exercise of her sentencing discretion because both the head sentence and the non-parole period were too high having regard to the matters subjective to the appellant.

47. However, in putting that submission, the appellant's counsel agreed, during argument, that a sentence of 18 months imprisonment was within the appropriate range having regard to the circumstances of the offence and the matters subjective to the appellant. Having made that concession, he was then forced to argue that the Magistrate was wrong to accumulate 12 months of the 18 months sentence of imprisonment imposed upon the second conviction with the first conviction.

48. In the end result, the appeal turned upon whether the Magistrate erred in the exercise of her sentencing discretion by accumulating the two sentences. In developing what was the appellant's final submission, it was contended that the Magistrate placed too much weight on matters of general deterrence.

49. There was only one incident. Unfortunately, in that one incident, two persons suffered injury. That made the appellant guilty of two offences. However, he had to be sentenced having regard to his criminal behaviour. In Attorney-General v Tichy (1982) 30 SASR 84, Wells J said at 92-93:

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It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

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60. We are not sure what is meant by that observation.

61. In our opinion, the Magistrate erred in making the sentences cumulative. Aspects of general deterrence would still be addressed by making the sentences concurrent. Concurrent sentences would recognise the matters subjective to the appellant.

62. Because we think that a period of imprisonment of 18 months recognises the criminality generally of the appellant's behaviour, we do not agree that this was a case for cumulative sentences. The second sentence of imprisonment should have been made concurrent.

63. We would set aside that much of the Magistrate's sentence which made that part of the sentence of imprisonment in respect of a second offence cumulative on the sentence of imprisonment in respect of the first offence.

64. Upon that basis then, of course, the non-parole period fixed by the Magistrate cannot stand.

65. It was argued, as we have said, that in cases of this kind an offender is not called upon to immediately serve imprisonment. For reasons we have already given, we cannot accept that contention. In our opinion, notwithstanding the matters subjective to this offender, it was necessary that part of the term of imprisonment which was imposed should be actually served. That necessity arose because first, the appellant was taking prescription drugs and knew that he should not mix those drugs with alcohol; secondly, he had consumed a large quantity of alcohol; thirdly, he gave no thought to his condition before he left home; fourthly, his driving, by any standard, was appalling; and fifthly, two persons suffered grievous bodily harm which have left both of them with life long consequences. We would fix a non-parole period of 12 months.

66. We allow the appeal. We confirm the sentence of imprisonment imposed upon the appellant in respect of both counts. We make the sentences of imprisonment concurrent. We fix a non-parole period of 12 months commencing on 24 June 2005 and ending on 23 June 2006. The order for disqualification made by the Magistrate should stand.

Kennewell v Rand [2006] ACTCA 10

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