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IN THE SUPREME COURT OF THE ) No. ACTCA 15-2004

) No. SC 121, 152 of 2003

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: COLIN BOOTH

Respondent

Judges: Crispin P, Gray and Weinberg JJ

Date: 22 November 2004

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This is a Crown appeal against the perceived leniency of a number of sentences imposed upon the respondent by Higgins CJ on 14 May 2004. The respondent had pleaded guilty to four offences, namely: recklessly inflicting grievous bodily harm; illegally taking and using a motor vehicle; burglary and arson. In sentencing the offender, the Court had been asked to take into account a further 18 offences pursuant to s 357 of the Crimes Act 1900 (ACT) (“the Crimes Act”).

2. All of the offences for which the respondent was sentenced had been committed on the evening of 16 July 2003 when the respondent, who was then 19 years of age, embarked upon a spree of criminal conduct with a number of other young people. They began by breaking into a number of cars parked on suburban streets in Canberra, gaining entry by smashing windows. They proceeded to the suburb of Hall where they stripped an abandoned car of its wheels and put them on the respondent’s own unregistered and uninsured car. The respondent then stole a Subaru Forrester (“the Forrester”), broke into a garage and stole $750 worth of alcohol and tools and broke into another five cars before driving to an area adjacent to premises at 10 Alexandra Street, Hall which were occupied by Michael Joseph Bower and his family.

3. The respondent and his companions broke into two or three cars parked outside those premises and stole property from one of them. An alarm in one of the cars was activated and they returned to the respondent’s vehicle. However, it would not start. The respondent then went to get the stolen Forrester, leaving two young accomplices in his own vehicle. Mr Bower, his wife and daughter came out to investigate the alarm and located the two young people still in the respondent’s car.

4. Mr Bower and his daughter, Genevieve, held the doors of the vehicle shut to prevent their escape. Whilst they were doing so, the respondent returned in the Forrester and drove the vehicle directly towards Mr Bower, colliding with him and causing his body to be thrown some 11 metres from the point of collision. The respondent then executed a U-turn and drove back towards the position where Mr Bower was lying on the ground unconscious but, at the last moment, swerved away from his body. The respondent’s two companions ran to the Forrester which was driven away.

5. The respondent later drove the vehicle to the suburb of Spence and set fire to it, apparently in an attempt to destroy any evidence that he had been the person who ran down Mr Bower. The vehicle was burnt beyond repair.

6. When subsequently interviewed by the police, the respondent admitted that he had been at the scene but initially he claimed that another person named “Neil” had been driving the Forrester when it struck the victim. He also claimed that he had set fire to that vehicle at Neil’s request. In further explanation for his conduct, he said that he had been drinking alcohol and smoking cannabis on the night in question.

7. Tragically, Mr Bower suffered an extremely severe traumatic brain injury and injuries to his left leg. He remained in a coma from 17 July to 25 August 2003, breathing by a tracheostomy tube and feeding by a nasogastric tube. He was able to be transferred to the Brain Injury Rehabilitation Unit at Liverpool Hospital on 3 December 2003.

8. At the time the statement of facts was prepared for submission to Higgins CJ, Mr Bower still required physical restraints to prevent him from falling and continued pharmacological treatment. He remained unable to name close family members, was incontinent and required a wheelchair for overall mobility, though he could walk with a walking frame and assistance. It is likely that he will have permanent, severe cognitive deficits and will require a full time carer for all personal care and assistance with mobility. His long term prognosis for independent living is poor.

9. His daughter also suffered minor injuries as a consequence of the respondent’s conduct.

10. In sentencing the respondent his Honour made the following observations:

It is difficult to find any ameliorating circumstance in the conduct of this offender. He was highly intoxicated. He drove in that condition for a long period of time. He put at risk his under age passengers during the whole of that time. He committed other serious offences in the course of that evening. And, although he is not to be regarded as guilty of intentionally inflicting grievous bodily harm, he nevertheless recklessly ran the car directly at the victim, apparently in order to effect the escape of his friends who had burgled the victim’s car. He continued then to drive, in order to effect an evasion or escape from police. And the nature of the injuries suffered by the victim are quite horrendous.

This offender has numerous prior records for assault, property and driving offences and, albeit that he was not on parole at the time, he nevertheless had been subject to various orders in the past, and there are other matters which were, as the Schedule indicates, already outstanding. At the time he was on a supervision order.

The only thing I can say in favour of this offender is that he is still a young man and there may be some prospect for rehabilitation at some stage in the future. I am not greatly impressed with his expressions of remorse. I rather take the same view as the pre-sentence report that he really does not seem to appreciate the harm he has done.

This offence of recklessly inflicting grievous bodily harm is almost at the top of the scale for such offences, but I remind myself, as I just did a moment ago, that he is still a young man and may have some prospects for rehabilitation. Nevertheless, the offence is so serious that an immediate custodial sentence of considerable length is indicated.

11. Having made these remarks, his Honour proceeded to sentence the respondent to a term of 6 years’ imprisonment for the offence of recklessly inflicting grievous bodily harm upon Mr Bower; a term of 6 months’ imprisonment for the offence of illegally taking and using the Forrester; a term of 12 months’ imprisonment for the offence of burglary committed by breaking into the garage and stealing alcohol and tools; and a further term of 12 months’ imprisonment for the offence of arson. His Honour indicated that in imposing the first of these sentences he had taken into account the offences set out in Schedule 1 pursuant to s 357 of the Crimes Act. His Honour ordered that all sentences be served concurrently. A non-parole period of 3 years was imposed. The sentences and the non-parole period were back dated to 17 July 2003, when the respondent was first taken into custody.

12. The Director of Public Prosecutions, Mr Refshauge SC, submitted that the individual sentences had been too lenient and that the order that they be served concurrently had resulted in an overall response to the respondent’s criminality that had been manifestly inadequate.

13. Whilst conceding that the offence of recklessly inflicting grievous bodily harm to Mr Bower may not have fallen within the worst class of cases to which the relevant section applied, Mr Refshauge argued that its objective gravity would have warranted a sentence approaching the maximum. He conceded that there were three subjective factors which his Honour had been obliged to take into account: namely, the youth of the respondent; his “chaotic” childhood and its apparent impact upon his subsequent psychological condition; and the fact that he had pleaded guilty to the offences in question. Mr Refshauge argued, however, that the cumulative weight of these factors did not justify the leniency reflected in the sentence actually imposed for this grave offence.

14. These submissions must be considered in the context of the maximum penalty of 10 years’ imprisonment set by s 20 of the Crimes Act for offences of this kind. Whilst we are conscious of the fact that the determination of maximum penalties is a matter for the legislature rather than the judiciary, it is difficult to do justice to the submissions made in the present appeal without observing that a sentence of 10 years’ imprisonment seems quite inadequate for cases in which offenders have committed acts of violence with reckless indifference as to whether others might suffer grave injuries as a result.

15. Nonetheless, his Honour was obliged to approach the matter on the basis that the maximum penalty of 10 years’ imprisonment was appropriate for only the worst class of offences of this nature, though, as his Honour quite properly observed, this case almost fell into that category. Due allowance had to be made for the three subjective factors within this context.

16. The respondent was only 19 years old at the time of the offence and the senior probation and parole officer who prepared the updated pre-sentence report said that he had seemed immature.

17. He had been the eldest of four siblings and three half siblings and as a child had been exposed to substance abuse and promiscuity in the home. He had apparently had only a distant relationship with his father who was an alcoholic and a volatile relationship with his mother due to her drug use. He had been asked to leave home for the first time at the age of 11 and, whilst he returned about 8 months later, he had been able to stay for only for a brief period before again being asked to leave. There had been significant hostility between himself, his mother and her partner.

18. He first pleaded guilty to all four charges on 1 August 2003 and was committed to the Supreme Court for sentence. In November 2003 he indicated that he would not adhere to his plea in relation to the charge of recklessly inflicting grievous bodily harm but on 19 February 2004 indicated that he had changed his mind and would adhere to his plea of guilty in respect of that charge. A plea of guilty, particularly one entered at a relatively early stage of the proceedings, may be relevant to the sentencing process for a number of reasons. It may be evidence of contrition on the part of the offender, it may spare victims and/or their relatives the trauma of having to give evidence about the relevant incident and it may save the community the time and expense of a trial. In the present case, whilst expressing scepticism about the extent of the respondent’s remorse, his Honour was clearly obliged to take the other benefits of the plea of guilty into account.

19. The low maximum penalty and the other factors to which we have referred clearly imposed substantial constraints upon the magnitude of the sentence that could properly have been imposed upon the respondent for this offence. Nonetheless, we are inclined to accept Mr Refshauge’s submissions that a more substantial sentence would have been warranted, especially given the further offences that were listed on the schedule and taken into account pursuant to s 357 of the Crimes Act.

20. However, the determination of an appropriate sentence involves the exercise of judicial discretion and an appellate court is bound by the principles explained by the High Court of Australia in House v The King (1936) 55 CLR 499 in the following passage from the judgment of Dixon, Evatt and Mc Tiernan JJ at 504-505: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

21. It is true that a sentence may sometimes be so excessive or inadequate as to demonstrate, of itself, an error in the exercise of sentencing discretion: The Queen v Tait (1979) 46 FLR 386 at 388; and Wong v The Queen (2001) 207 CLR 584 at [58]. However, as McHugh J said in Everett v The Queen (1994) 181 CLR 295 at 306: Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.

22. These principles have recently been reaffirmed by successive decisions of the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671-2 and Dinsdale v The Queen (2000) 202 CLR 321 at 334.

23. Furthermore, there is a principle of restraint in Crown appeals based upon the doctrine of double jeopardy which may make it inappropriate for an appellate court, even if satisfied that some error has been demonstrated, to simply impose upon a respondent the sentence that it considers should have been imposed in the first place: R v Clarke [1996] 2 VR 520 at 522; Cruse v Treminio [2001] ACTSC 59 at [18]; R v Relph [2002] ACTCA 6 at [23]; R v SP [2004] ACTCA 16 at [21] and [78].

24. In the present case, no error in the exercise of the sentencing discretion has been demonstrated in setting the penalty for this offence and, having regard to the principles mentioned, we have concluded that the sentence that his Honour imposed in relation to this offence should not be disturbed.

25. On the other hand, we are unable to accept that, viewed overall, the sentences imposed upon the respondent reflected an adequate response to the criminality involved.

26. In our opinion the sentence of 12 months’ imprisonment imposed for the offence of arson was manifestly inadequate, notwithstanding the subjective factors to which we have referred. Arson is a very serious crime and the need for deterrence must generally be given substantial weight when an offender is sentenced: Small (1980) 2 Cr App R (S) 25 at 26; R v James (1981) 27 SASR 348 at 351; and Dowell (1982) 6 A Crim R 113 at 116. We are satisfied that the sentence fell outside the range of discretion properly available to a sentencing judge and should be set aside. Having regard to the principle of restraint normally applied on an appeal of this nature, a sentence of 2 years’ imprisonment will be imposed.

27. We are not satisfied that any appealable error has been demonstrated in relation to the other sentences.

28. On the other hand, we are also satisfied that it was inappropriate to order that all of the sentences be served concurrently. Issues as to when it is appropriate to order that sentences be served concurrently cannot be resolved by reference to principles of universal application. In Johnson v The Queen [2004] HCA 15, Gleeson CJ cited with approval the following passage from the judgment of Wells J in Attorney-General v Tichy (1982) 30 SASR 84 at 92-93: 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 characterised, are really separate invasions of the communities’ 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 characterisation 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.

29. It is clear that the overall impact of cumulative sentences should not be permitted to offend the “totality principle”. In Mill v The Queen (1988) 166 CLR 59 at 63, Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted the following statements from Thomas, Principles of Sentencing, 2nd Ed (1979) at 56-57 (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences have been dealt with and specific punishments in respect of them have been totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when . . . cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.

30. Their Honours added that: Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable the former is to be preferred.

31. In Johnson, Gummow, Callinan and Heydon JJ dealt with a contention that the decision in Mill was inconsistent with that of the later decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 but said, at [26] that: The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.

32. In the present case, we would not disturb the order that the sentence for illegally taking and using a motor vehicle should be served concurrently with the offence of recklessly causing grievous bodily harm. We accept that it was open to his Honour to conclude that the offence of illegally taking and using the Forrester and the offence of recklessly inflicting grievous bodily harm upon Mr Bower should be treated as a single incursion into criminal conduct because the illegal use of the vehicle extended to the act of running him down. However, the offences of burglary and arson appear to have involved separate incursions into the criminal law warranting separate sentences that, subject to the application of the totality principle, should have been cumulative upon the other sentences.

33. In all the circumstances, we have concluded that 6 months of the sentence imposed for burglary should be served consecutively upon the concurrent sentences imposed for the offences of recklessly inflicting grievous bodily harm and illegally taking and using a motor vehicle, and that 12 months of the sentence imposed for arson should be served consecutively upon the completion of all other sentences. That will involve a total effective head sentence of 7½ years.

34. We consider a non-parole period of 4½ years appropriate. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 22 November 2004

Counsel for the Appellant: Mr R Refshauge SC

Solicitor for the Appellant: ACT Director of Public Prosecutions

Counsel for the Respondent: Mr R Livingston

Solicitor for the Respondent: Legal Aid Office (ACT)

Date of hearing: 1 November 2004

Date of judgment: 22 November 2004

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