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[2016] ACTSC 200
Supreme Court of the ACT
2016-07-18
Murrell CJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Appeal against sentence allowed. Respondent convicted. Sentenced to an 18-month good behaviour order and disqualified from driving for three months. Appellant to pay respondent's costs. See [48].
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Punishment - young offender - s 17(2) Crimes (Sentencing) Act 2005 (ACT) - non-conviction order an exceptional outcome - negligent driving causing death - whether sentence manifestly inadequate
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Procedural fairness - sentencing - parties not afforded opportunity to address on penalty - where outcome not contemplated by parties
Magistrates Court Act 1930 (ACT) ss 219B, 219D, 219F
Road Transport (General) Act 1999 (ACT) s 63, 64, 68
Balthazaar v The Queen [2012] ACTCA 26
KC v DPP [2007] NSWDC 25
Nguyen v The Queen [2016] HCA 17
Proud v Sladic [2014] ACTCA 26
R v Duffy [2014] ACTCA 53
Walters v Cooper [2014] ACTSC 331
1. The appellant appealed under s 219B(1)(f) of the Magistrates Court Act 1930 (ACT) (MCA) against a dismissal order under s 17(2)(a) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in relation to an offence of negligent driving causing death, contrary to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).
2. An offence of negligent driving causing death carries a maximum penalty of two years' imprisonment. The maximum penalty for negligent driving simpliciter is 20 penalty units. For negligent driving causing grievous bodily harm, the maximum penalty is one year's imprisonment. A disqualification period applies to an offence of negligent driving causing death: ss 63(1)(e) and (2) of the Road Transport (General) Act 1999 (ACT) (Road Transport (General) Act).
(2) the appellant was not afforded procedural fairness in that, prior to making the dismissal order, the Chief Magistrate did not invite the prosecution to make submissions about whether such a sentencing outcome was appropriate.
4. On 17 June 2015, the day of the offence, the respondent was 17 years old. She had held a provisional driver licence for four months.
5. At 1.10 pm the respondent was driving a Ford Territory SUV on Erindale Drive, a significant road upon which there was moderate traffic. There was a single lane travelling in each direction. The road was wet and rain was falling.
6. The respondent lost control of her vehicle while attempting to negotiate a roundabout at approximately 40 kilometres per hour. The respondent's vehicle swerved to the left and travelled for a short distance before mounting the left kerb. It veered back onto the road and travelled diagonally across the road, impacting with an oncoming vehicle that was being driven by the deceased. As a result of the impact, the deceased was trapped in his vehicle. Once extricated, his condition deteriorated and he could not be revived. He died from head injuries. According to the statement of facts, "Investigating police believed the young person failed to apply the brakes and may not have even released the accelerator".
7. A vehicle travelling at approximately 40 kilometres per hour will stop in about 20 metres with very moderate braking. Braking would have been achievable, even on the wet road. However, after exiting the roundabout, the respondent's vehicle continued for 80 metres before mounting the kerb and then continued for another 54 metres before colliding with the Nissan Pulsar.
10. The Court acknowledges the profound impact of the deceased's death upon his family.
11. As one would expect, the deceased's untimely death has caused severe emotional trauma to his parents and siblings, the oldest of whom is now 22. Members of the family experience feelings of depression, emptiness and lack of motivation.
12. In addition to their emotional loss, the family also lost the financial support that the deceased provided as the oldest son in the family. It has been very difficult for the deceased's sister to complete her university degree because she is now forced to provide financial support to the family. Funeral costs have imposed a heavy burden on the family.
13. The respondent is a person of otherwise excellent character. She enjoyed a positive and stable upbringing. The respondent has always lived at home with her parents and younger brother. The respondent's brother suffers from a condition that has posed challenges for the family, including the respondent.
14. The respondent has no substance abuse problem. Prior to the offence, she had experienced mild depression and anxiety. She had been prescribed medication and had begun to see a psychologist. After the offence, the respondent became more withdrawn and anxious. In July 2015 she commenced a vocational course at CIT but withdrew because she began to fully absorb the magnitude of the offence.
15. In September 2015, the respondent herself was the victim in a serious car collision involving a police pursuit. She was not seriously injured but her car was extensively damaged.
16. In November 2015 a psychologist diagnosed the respondent as suffering from an adjustment disorder with depression. Her medication was increased and she was referred to a child and adolescent mental health clinic.
17. The respondent was empathetic towards the victim and demonstrated insight into her criminality. She accepted responsibility and was remorseful. The Chief Magistrate said that the "[respondent]'s remorse was palpable". The respondent was assessed as at low risk of general re-offending.
18. During the sentencing hearing, the Chief Magistrate noted that there had been no submission that a custodial sentence was appropriate. Her Honour referred to the options of community service (finding it to be unwarranted), a good behaviour order and a financial penalty. Her Honour concluded that the appropriate outcome was that no conviction should be recorded, and gave the following reasons:
the lack of any prior criminal history, the low level of criminal culpability, the significance of the recording of a conviction for a young woman at this age and a lack of any need in my estimation for specific deterrence and the low role to be played by general deterrence.
19. Pursuant to s 219D(e) of the MCA, the Supreme Court may review a decision of the Magistrates Court on the ground that the sentence or penalty is manifestly inadequate or otherwise in error. On a review appeal pursuant to s 219F(1), the Court may set aside in whole or in part the decision of the Magistrates Court. Pursuant to s 219F(2)(c), if the sentence is manifestly inadequate the Supreme Court may impose the sentence or penalty that the Court considers to be appropriate.
20. Under s 219F(8) of the MCA the Supreme Court must order that the costs of and incidental to the appeal be paid by the appellant.
21. In submissions to the Chief Magistrate, the respondent argued that "a simple good behaviour order" would be appropriate. The prosecution did not contest that proposition.
22. At no time did the Chief Magistrate indicate that she was contemplating an order under s 17 of the Sentencing Act, let alone a dismissal under s 17(2)(a), without the imposition of a good behaviour order.
23. A sentencing court should afford the parties an opportunity to address on penalty. This does not mean that the court must signal its intention in relation to sentence, but it does mean that, if the court is contemplating a sentencing outcome that has not been raised by the parties and is not for other reasons obviously "on the table", then the parties should be offered the opportunity to address that matter. In this case, the prosecution was not offered an opportunity to make submissions about the outcome.
24. A non-conviction order is an exceptional outcome: Proud v Sladic [2014] ACTCA 26 at [42]. As noted in that case, the ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The offence was not trivial; the respondent's negligent driving had resulted in a death. The respondent's counsel had addressed the Chief Magistrate on the basis that a good behaviour order (inferentially, a good behaviour order under s 13 of the Sentencing Act) would be appropriate. He had not suggested that a more lenient outcome may be appropriate. In those circumstances, a s 17 dismissal was not obviously "on the table".
25. Consequently, the failure to invite the appellant to make submissions about the appropriateness of a s 17 dismissal amounted to a denial of procedural fairness.
26. The grounds of lack of procedural fairness and manifest inadequacy are interrelated; had it been moderately obvious that a dismissal under s 17 was "on the table", then it would not have been something that the sentencing court needed to clearly identify and, inferentially, such a sentence may not have been manifestly inadequate.
27. The questions of what constitutes manifest inadequacy and when it is appropriate for the prosecution to appeal against sentence on that basis were extensively considered by the Court of Appeal in R v Duffy [2014] ACTCA 53. The Court said:
(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
(ii) Occasions may arise for the bringing of a Crown appeal: (a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and (f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (Crown appeals) under s 5D of the Criminal Appeal Act 1912 (NSW) is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons".
(Citations omitted)
The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.
28. Recently in Nguyen v The Queen [2016] HCA 17 at [66], the High Court agreed that a sentence for manslaughter was manifestly inadequate, robustly describing the sentence as "so plainly short of the mark as to bespeak error of principle and therefore necessitate appellate intervention".
29. Was the sentence in this case "so plainly short of the mark" as to necessitate appellate intervention?
30. The starting point is s 17 of the Sentencing Act, which relevantly provides:
(1) This section applies if an offender is found guilty of an offence.
(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender's character, antecedents, age, health and mental condition;
(c) any extenuating circumstances in which the offence was committed.
(4) The court may also consider anything else the court considers relevant.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender's conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
31. The Chief Magistrate's reasons for proceeding under s 17 are set out above. I will deal with each of the four reasons that her Honour advanced.
32. First, her Honour referred to the fact that the respondent had no prior convictions. That is true. It is also true that antecedents is a matter referred to in s 17(3) of the Sentencing Act. However, offences of this type are frequently committed by persons with no prior criminal history and that factor did not differentiate this matter in any significant way.
33. Second, her Honour referred to the significance of a conviction for a young person. Convictions always have the potential to impact upon offenders and the younger the offender, the greater the likelihood that a conviction will have an impact at some point in their life. However, a conviction impacts to some extent on all offenders. There was no evidence that a conviction would have any particular impact on the respondent. This was not a matter that made this case in any way different from many cases.
34. Third, her Honour referred to the fact that there was no need for specific deterrence. I accept that proposition, but I have difficulty seeing that it provided a basis for proceeding under s 17.
35. Finally, her Honour referred to the fact that the offence was one involving a low level of culpability. In relation to the objective seriousness of the offence, the Chief Magistrate referred to the distance travelled past the roundabout, 134 metres, over which the appellant had failed to properly control her vehicle stating:
the nature of that failure to properly control the vehicle is somewhat speculative. It may be that she entered the roundabout a little too quickly for the circumstances. It may be that she didn't apply the brakes as she should have done or that she over steered. The statement of facts did not make that entirely clear although the police proffer some explanation.
36. The prosecution had sought to adjourn the proceedings in order to obtain more evidence about the nature of the respondent's negligence. That application was refused. The Chief Magistrate went on to find that the offence was at the low end of the range of objective seriousness for an offence of the type stating, "[the negligence] was the failure to properly steer a vehicle in the circumstances". Her Honour was of the view that, regardless of what caused the respondent to lose control of the vehicle, the core negligence was what occurred afterwards, i.e. the failure to properly steer and control the vehicle over the distance of 134 metres. Later in her reasons, the Chief Magistrate referred to the objective seriousness of the offence as "at the bottom end of the range for offences of this type".
37. I disagree with the Chief Magistrate's assessment of the objective seriousness of the offence. The objective seriousness of the offence was significant. A determination of the level of objective seriousness rests on a consideration of two factors: the nature of the negligence and the nature of the damage. As to the degree of negligence, the respondent lost control of her vehicle when driving a relatively large vehicle on an obviously wet road in an area of moderate traffic and thereafter failed to regain control of the vehicle over a distance of 134 metres. As noted above, there was evidence that a vehicle travelling at 40 kilometres per hour could have stopped with moderate braking.
38. Before the Magistrates Court, there was reference to the expression "momentary inattention". That expression has been employed in the quite different context of charges of culpable driving where the prosecution relies upon gross negligence. It has very limited relevance in the context of offences against s 6 because prolonged or multifaceted negligence will very often qualify as the sort of gross negligence that justifies a charge of culpable driving. In other words, as most offences against s 6 will involve "momentary inattention" the presence of "momentary attention" is unlikely to be a critical consideration when determining relative objective seriousness.
39. As the respondent's counsel submitted, it may be difficult to assess degrees of negligence within the spectrum of what constitutes s 6 negligence as opposed to gross negligence. However, when one has regard to the circumstances in which the respondent was driving and the distance for which the vehicle was out of control, it is my view that the offence was not at the bottom end in terms of objective seriousness. The degree of negligence gave the offence significant objective seriousness.
40. The second factor to be considered when determining the objective seriousness of a s 6 offence is the fact that someone died. There are no degrees of death. Loss of life is the most serious damage that can be sustained. One cannot distinguish between different offenders based on death. Of course, the position is different with offences where grievous bodily harm is caused. The concept of grievous bodily harm captures many serious and often permanent disabilities, ranging from disabilities that have minimal impact on quality of life to those that have grave impact. The maximum available penalty for negligent driving causing grievous bodily harm is one year's imprisonment. That provides some indication of the fact that death is a weighty matter which must receive significant acknowledgement in the sentencing process.
41. In the case of Ngyuen, the High Court identified an error of the type that may have occurred in this case. The High Court emphasised the error at first instance where the sentencing judge compared the gravity of the subject offence of manslaughter with the gravity of what would have been an offence of murder, commenting at [68] that such a comparison "was likely to result in an under-assessment of the relative gravity of the subject offence". In this case, the Chief Magistrate was well aware that the offence was under s 6 and was not an offence of culpable driving. Nevertheless, insofar as her Honour assessed the seriousness of the negligent driving as falling at the bottom end of the range, her Honour may inadvertently have been comparing the negligence in this case not with the most serious form of negligence under s 6, but with the sort of gross negligence that arises in cases of culpable driving.
42. When her Honour sentenced the respondent, she referred to s 33 (incorrectly transcribed as a reference to s 77) and ss 133C and 133D of the Sentencing Act. Her Honour noted that in the case of young people, particularly those with no prior criminal history, the predominant sentencing consideration is rehabilitation. Sections 133C and 133D relevantly provide:
133C Young offenders - purposes of sentencing
133D Young offenders - sentencing - additional relevant considerations
(1) In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
(a) the young offender's culpability for the offence having regard to his or her maturity;
(2) This section applies in addition to section 33 (Sentencing - relevant considerations).
43. Her Honour also referred to the decisions of KC v DPP [2007] NSWDC 25 and Walters v Cooper [2014] ACTSC 331 at [43].
44. I have noted the respondent's subjective circumstances, which were strong. However, it is commonly the case that negligent drivers are otherwise of excellent character. The primary distinguishing feature in this case is the youth of the respondent and the fact that she was a young person at the time of the offence. Given her age and circumstances, rehabilitation was certainly a dominant sentencing purpose. But it would be wrong to think that other sentencing purposes were unimportant. In relation to driving offences, general deterrence is almost always an important sentencing consideration.
45. I have noted above that I agree with the Chief Magistrate's view that specific deterrence was of little importance.
46. However, a sentencing purpose to which reference was not made, but which is critical, is recognition of the grave harm suffered by the victim and his family. In the circumstances of this case, a non-conviction order does not recognise that loss.
47. The s 17 outcome was, as I have mentioned, an exceptional outcome. As the possibility of such an outcome was not drawn to the attention of the parties, reasons for that outcome cannot be discerned from exchanges between the bench and the parties. There was no justification for imposing such an exceptional outcome in the face of the significant negligence involved in the offence and the sentencing purpose of recognising that the victim and his family suffered the most serious possible harm. I am satisfied that the sentence was manifestly inadequate in that it was "so plainly short of the mark as to bespeak error of principle".
48. The appeal against sentence is allowed. I set aside the orders of the Magistrate's Court and in lieu:
(a) the respondent is convicted;
(b) pursuant to s 13 of the Sentencing Act, I make a good behaviour order requiring the respondent to sign an undertaking to comply with good behaviour obligations under the Sentence (Administration) Act 2005 (ACT) for a period of 18 months;
(c) pursuant to ss 63, 64 and 68 of the Road Transport (General) Act the respondent is disqualified from holding or obtaining a driver licence for a period of three months from 18 July to 17 October 2016;
(d) pursuant to s 219F(8) of the MCA, I order that the appellant pay the respondent's costs of and incidental to the appeal.
I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
Lutz
JK [2016] ACTSC 200
(2011) 6 ACTLR 18
(2011) 244 CLR 462
(1977) 137 CLR 293
(2010) 4 ACTLR 153