R v Creighton [2011] ACTCA 13

Court of Appeal (ACT)|2011-07-22|Before: Gray P, Lander JJ

IN THE SUPREME COURT OF THE ) No. ACTCA 44-2010

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

1. This is an appeal from a sentence imposed by a Judge of this Court on 28 October 2010. On 5 May 2011, we dismissed the appeal and said we would give reasons later. These are those reasons.

(a) culpable driving of a motor vehicle causing the death of Megan Bridget Minney, in contravention of s 29(2) of the Crimes Act 1900 (ACT);

(b) culpable driving of a motor vehicle causing the death of Steven Anthony Rial; and

(c) culpable driving of a motor vehicle causing grievous bodily harm to Rochelle Monique Taylor, in contravention of s 29(4) of the Crimes Act 1900 (ACT).

3. The first and second charges have a maximum penalty of seven years imprisonment. The third charge has a maximum penalty of four years imprisonment.

4. A person who is a first offender and who is convicted of either offence is automatically disqualified from holding or obtaining a driver's licence for a period of six months: s 62(1)(a) of the Road Transport (General) Act 1999 (ACT).

5. On the first count, the respondent was sentenced to 18 months imprisonment. On the second count, he was sentenced to 18 months imprisonment, 9 months of which was concurrent with the sentence on the first count and 9 months of which was consecutive to that sentence. On the third count, he was sentenced to 10 months imprisonment, 4 months of which was concurrent with the second sentence and 6 months of which was consecutive to the second term of imprisonment.

6. He was therefore sentenced to be imprisoned for a total period of 2 years and 9 months.

7. The sentencing Judge directed that the first 6 months of the sentence be served in full-time custody and thereafter the respondent serve periodic detention for a period of 12 months.

8. The balance of the sentence was suspended for a period of 2 years on the respondent signing an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 3 years from 28 April 2011. A probation condition that the respondent be subject to the supervision of an officer of ACT Corrective Services was imposed.

9. Finally, the respondent was disqualified from holding a driver's licence for a period of 3 years.

(a) The sentences imposed were manifestly inadequate.

(b) His Honour erred in failing adequately to cumulate the sentences.

11. The orders sought in the Notice of Appeal are:

(a) That the orders of His Honour be substituted by sentences that:

(ii) requires the respondent to serve a greater term of imprisonment, as full time detention.

(b) Such further other order or orders as considered appropriate by this Honourable Court.

12. On Sunday, 29 March 2009 at 1:10 am, the respondent was driving a Holden Special Vehicle Clubsport Sedan in Clift Crescent, Richardson. Ms Megan Minney was seated in the rear passenger side and Mr Steven Rial was seated in the rear driver's side. Ms Rochelle Taylor was seated in the front passenger side of the vehicle.

13. Clift Crescent is a residential road with a single lane for traffic travelling in an east west direction. The speed limit along the road is 60 kilometres per hour.

14. Whilst driving along Clift Crescent at a speed which has been estimated at 113 kilometres per hour, the respondent lost control of his vehicle when travelling around a slight bend as a result of which the vehicle travelled in excess of 120 metres along Clift Crescent rotating through 270 degrees which allowed the rear passenger side of the vehicle to collide with a tree, and the vehicle sustained extensive impact damage.

15. The evidence was that the four occupants of the car were making a good deal of noise and that loud music was being played. The respondent was taunted by one of the women: "Is that all your car can do? Is that as fast as it goes?" He reacted by increasing his speed and the accident occurred.

16. Ms Minney died at the scene. Mr Rial was removed to the Canberra Hospital, but died about five hours after the accident. Ms Taylor survived but suffered extensive injuries including a fracture of the T1 and T2 vertebrae, a comminuted fracture of the left shoulder blade, fracture of the sternum, fractured ribs, fractured pelvis and fracture of the right tibula together with contusions, a collapsed lung and general bruising.

17. A mechanical inspection of the motor vehicle showed that there were no faults in the vehicle.

18. A blood sample was taken of the respondent which showed no traces of alcohol and a small trace of tretrahydrocannabinol but not sufficient to affect the respondent's driving.

20. He was charged and appeared in the Canberra Magistrates Court on 26 October 2009 where he pleaded not guilty to the charges. The charges were adjourned to 21 January 2010 and then again to 4 March 2010 when the respondent pleaded guilty and was committed to the Supreme Court for sentence.

21. The respondent was born in Cooma on 18 December 1984, the third of five children, and, at the time he was sentenced, was living with his parents in the ACT and working as an apprentice plumber in a business owned by his eldest brother.

22. Until the age of 15, he was involved in sporting activities, but at that age began to use marijuana which he continued to use throughout high school.

23. He was accepted as a student at the University of Tasmania but was unable to succeed in his studies and after three years left university and returned with his family to Cooma.

24. He then commenced an apprenticeship as a chef, but his employment was terminated after an outburst of temper. However, the respondent's present employer described him as a "hard working, conscientious and punctual worker".

25. He has been assessed by a psychologist as having an intellect probably in the top two per cent of the population, but is a person who has suffered from low frustration tolerance and poor impulse control for most of his life. He has lived outside social norms and rules in many ways and this has led to a downward spiral in social engagement and life success.

26. A psychiatrist, Dr William Knox, has diagnosed the respondent as suffering from Attention Deficit Hyperactivity Disorder (ADHD).

27. Dr Knox was of the opinion that Mr Creighton suffered ADHD for the whole of his life and it had interfered with his mental capacity, behaviour and capacity for planning and forethought.

28. The sentencing Judge identified the respondent's relevant history and had regard to the victim impact statements which had been provided to the Court. He said that the respondent had expressed considerable remorse in his evidence before him and to Dr Knox. He said that he would take into account the respondent's plea of guilty which, although not entered at the first available opportunity, had been entered in the Magistrates Court thereby avoiding the need for a trial, the absence of any prior traffic offences and the respondent's significant remorse.

29. His Honour then had regard to a number of decisions of this Court and other courts in relation to the principals for sentencing for offences of this kind and, in particular, whether the sentences should be cumulative. He said that because the respondent had put three people at risk, his culpability required that part of the sentence on each count be accumulated.

30. The question for this Court is whether the sentences as constructed are manifestly inadequate.

31. The principles relating to Crown appeals are now well settled. An appeal by the Crown against sentence should be brought only where it is necessary to enable the Court to maintain adequate standards of punishment for the particular crime, to correct an idiosyncratic view of an individual Judge or to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: The Queen v Osenkowski (1982) 30 SASR 212 at 213. Such an appeal should be a rarity: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 310; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300.

32. A Crown appeal contradicts an underlying principle of the administration of the criminal law by putting in jeopardy, for a second time, the respondent's freedom beyond the sentence imposed.

33. On this appeal, the respondent has served the period of immediate imprisonment that was imposed upon him and if this appeal were to be allowed, it would mean that the respondent, who has been released to serve the period of periodic detention imposed by the sentencing Judge, would have to return to full-time imprisonment.

34. That result will only obtain if this Court is satisfied that the sentence imposed was so manifestly inadequate that it would shock the public conscience.

35. The Crown contends that the sentences on each count were inadequate, especially having regard to the maximum penalty for the offences and the nature of the circumstances of the offences.

36. Moreover, it was contended that the component of periodic detention was excessive, unexplained and unwarranted and that the overall sentence imposed did not adequately recognise the seriousness of the offences and the culpability of the respondent. It was contended there was a failure to address general deterrence.

37. The Crown contended that there was no reason for leniency in this case. Although the respondent had expressed remorse and the sentencing Judge had described his remorse as significant, the Crown contended the respondent tried to shift the blame for the occurrence of the accident to his passengers by inciting him to speed. Although he did plead guilty, it was not at the first available opportunity and for those two reasons it would be an overstatement to describe his remorse as significant.

38. The Crown contended that in particular the period permitted to be served as periodic detention was too long and that the respondent should have been obliged to serve a longer period of full-time imprisonment.

39. It was suggested that the sentencing Judge had had too much regard to the subjective circumstances of the respondent and thereby failed to impose a sentence which reflected the gravity of the offences.

40. In particular, it was put that his Honour, in ordering 12 months of the sentence to be served by way of periodic detention, did not have due regard to the question of general deterrence. It was contended that service of a sentence of imprisonment by periodic detention was more lenient than service of immediate imprisonment.

41. The Crown took the Court to other jurisdictions for the purpose of comparing the sentences which had been imposed in those jurisdictions, being New South Wales and Victoria. Such a comparison is somewhat dangerous in relation to the ACT offences because these offences carry significantly shorter maximum penalties than the maximum penalties in New South Wales and in Victoria.

42. The sentences in those jurisdictions therefore have to be measured against the maximum penalties under the corresponding legislation. It is not appropriate to try and carry out some mathematical exercise which compares the maximum penalties in the various jurisdictions and thereby explains the sentences in the separate jurisdictions.

43. What guidance can be obtained in relation to sentence for these offences must, in view of the different penalties, be dictated by sentences of this jurisdiction.

44. On this appeal, the culpable driving for which the respondent was convicted was the speed at which the appellant was driving. There were no aggravating features such as alcohol or drugs. The culpable driving had the catastrophic consequences that two persons died and another one suffered serious injuries from which she will never make a full recovery.

45. Because the respondent was driving the vehicle at speed, he was guilty of culpable driving and, because of the consequences, he needed to be imprisoned.

46. So much was recognised by the sentencing Judge and he imposed a sentence of 2 years, 9 months imprisonment which might be described as light but cannot in our opinion be described as manifestly inadequate.

47. The sentencing Judge required the respondent to serve 6 months of that period immediately and 12 months by way of periodic detention. A sentence of 12 months periodic detention is a sentence of imprisonment and whilst it remains a sentencing option, it should be understood in that light.

48. The Crown contended during oral submissions that this Court ought to give guidance in relation to sentencing principles for offences of this kind, although the Crown conceded that if this Court were of the opinion that it should not intervene, then this case would not be an appropriate vehicle for that exercise.

49. In our opinion, this is not the appropriate case to give guidance of the kind sought by the Crown for two reasons. First, because this Court is of the opinion that the sentence is not so inadequate as to require the Court to intervene. Secondly, because it was not contended by the Crown that his Honour had erred in principle in relation to the imposition of the sentence. The gravamen of the Crown's case on appeal was that the sentencing Judge had, in applying the correct principles, imposed a sentence which was manifestly inadequate.

50. However, we should say something about one contention that was put by the Crown and that was that a sentence of imprisonment, which is to be served by way of periodic detention, does not address questions of general deterrence. No authority was put for that proposition and indeed the proposition is without authority. Whilst it might be said, as the Crown contended, that it is less onerous that a prisoner to serve his or her term of imprisonment by periodic detention, it is not right to say that service of imprisonment in that way cannot address questions of general deterrence.

51. The fact of the matter in this case is that the respondent was sentenced to 2 years and 9 months imprisonment for the three separate offences, the second of which was made partly cumulative upon the first, and the third of which was made partly cumulative on the first and second. A sentence of imprisonment of 2 years and 9 months is not, in our opinion, manifestly inadequate. It is light and indeed, having regard to the circumstances of this case, it is at the lower end of the range, but it is not able to be described as manifestly inadequate. Other Judges might have imposed a longer term of imprisonment or might have required the respondent to serve a longer term of immediate imprisonment. Indeed, the members of this Court all might have imposed a longer term of imprisonment and required more time to be served.

52. However, that is not the question of appeal. It is not for this Court to substitute its opinion for the sentencing Judge's opinion. This Court can only intervene, as the authorities make clear, where it has been established that the sentence is such that the sentence would shock the public conscience.

53. For the reasons we have given, that is not the case here.

54. Because of the principle of double jeopardy which continues to underpin the administration of the criminal law, this Court must be slow to react to Crown appeals which would have the effect of returning a person to prison after that person had served the term of immediate imprisonment imposed by the sentencing Judge.

55. This is not a case for intervention by this Court and, in our opinion, the appeal should be dismissed.

I certify that the preceding fifty five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours President Gray and Justice Lander.

56. I agree with Gray P and Lander J that this appeal must be dismissed, and generally with their reasons.

57. However, lest it be thought that the decision to dismiss the appeal reflects any failure to give proper recognition to the terrible tragedy that has been suffered by the victims of the respondent's offences, I wish to put on record some further explanation for dismissing the prosecution's appeal against the respondent's sentence.

58. First, like Gray P and Lander J, I would at first instance have imposed a heavier sentence on the respondent, although whether it would have involved any longer period in full-time custody is not so clear.

Effect of respondent having finished term of full-time custody

59. Secondly, as noted by Gray P and Lander J, one of the matters influencing the dismissal of this appeal was that the respondent had already finished the full-time custody portion of his sentence and had been released from prison.

60. The Director of Public Prosecutions (DPP), who appeared in person, pointed out, not unreasonably, that the reluctance of an appeal court to return a person to full-time custody after his release from such custody may place an inappropriate restraint on the appeal process. This is because such reluctance has the potential to make it almost impossible for the prosecution to appeal successfully against a sentence whose full-time custodial component is perceived as too low, at least where the period of full-time custody is so low that it is less than the usual period between the imposition of sentence and the hearing of an appeal.

61. The DPP said, when asked, that he had sought an expedited hearing of the appeal, but did not explain why this had not eventuated. The Court's reluctance to return an offender to full-time custody should not allow offenders to subvert the appeal process by delaying an appeal hearing until after the end of a custodial term, but an appeal court should not assume, without evidence, that the respondent offender has been responsible for any delay in the hearing of the appeal.

62. No submission was made in this case that the respondent was responsible for delaying the appeal hearing until after his release, so there was no basis on which the court could discount the general undesirability of returning a person to prison after he has finished serving the full-time custody originally imposed. In such a case, the Court is placed in a difficult position if the Crown nevertheless insists that a return to full-time custody is the only proper outcome of the appeal.

63. Thirdly, the three grounds of appeal identified by the Crown and set out at [10] above were not adequately argued.

64. By way of introduction to my comments about how the grounds of appeal were argued, I note the remarks of Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (Dinsdale) about Crown appeals. At [62] his Honour noted that:

where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains.

65. Later in his judgment Kirby J explained at [66] the importance of an appeal court properly identifying the grounds on which it upholds an appeal against sentence:

So far as principle was concerned, the obligation of the appellate court to state and identify the relevant error is important for the function which that court performs in setting standards to be observed by courts that are subject to its authority. Moreover, that obligation maintains the appellate court's proper role in the judicial hierarchy. Unless error is stated and demonstrated, the appellate court has no legal authority to substitute a sentence which by law belongs to the primary judge. Adhering to strictness in this matter is also a protection to the prisoner who may wish to be advised on rights of further appeal. (citation omitted)

66. In other words, an appeal court should not uphold an appeal if it cannot identify the basis on which it does so.

67. The claim that a sentence is manifestly inadequate does not require any specific error by the sentencing Judge to be identified. However, while recognised as a conclusion rather than a reason (Dinsdale at [6], Gleeson CJ and Hayne J), a claim of manifest inadequacy generally needs some kind of supporting commentary. Inadequacy cannot be manifest if no content can be given to the concept of adequacy.

68. Despite having based the appeal on "manifest inadequacy", the DPP took a somewhat different tack in argument. He referred the Court to a table identifying sentences imposed in 10 relevant ACT cases since 1996 (it was not clear whether these were all the relevant ACT cases in that period). However, rather than criticising the challenged sentence by reference to sentencing practices as revealed in those cases, the DPP said in written submissions that:

[I]t is difficult to discern a pattern in these cases, [but] there is nothing in the authorities from this jurisdiction to justify the particularly lenient sentence handed down by His Honour on this occasion. In particular while there are some sentences that are more lenient, there are others where the head sentence in particular is a higher proportion of the available maximum. This includes the cases where the charge was the less serious charge of negligent driving causing death, or negligent driving causing grievous bodily harm.

69. Given the difficulty in discerning a pattern, the DPP sought "guidance" (although expressly not a guideline judgment) from the Court of Appeal for future such sentencing exercises. There were two problems with the DPP's request for "guidance".

70. First, the request for "guidance" was not clear. In particular, the DPP did not explain exactly what he sought from the Court that would be useful in future sentencing processes without falling foul of the High Court's comments in Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584 (Wong) to the general effect that the guidance to be given by Courts of Appeal should be as to the consistent application of relevant legal principles rather than of specified numbers or sentencing ranges. In Hili v R; Jones v R [2010] HCA 45; (2010) 272 ALR 465, the majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) commented at [49]:

The consistency that is sought is consistency in the application of the relevant legal principles. ... When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters "the court must take into account" in fixing a sentence, if those matters are relevant and known to the court. (citations omitted)

71. Secondly, as already mentioned, the DPP did not attempt any serious analysis of relevant sentences imposed in this jurisdiction over time. The ACT is a small jurisdiction, and fortunately there are not many offenders sentenced each year for offences of causing death through culpable or negligent driving. These are crimes of risk-taking or carelessness rather than of intent and (as is recognised in the NSW Guideline Judgment in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at [204]) many such offences involve offenders of otherwise good character. It is thus inevitable that there will be a variety of different circumstances in which the offence is committed and a variety of different subjective circumstances of offenders. There was, however, no attempt to identify, by reference to previous ACT sentences, what an adequate sentence might have looked like.

72. What the DPP offered, instead of an analysis of ACT sentences, was a mathematical comparison between the sentence under appeal and sentences imposed in New South Wales and Victoria for equivalent offences that in those jurisdictions carry significantly higher maximum penalties.

73. The DPP submitted that the appropriate ACT penalties should represent the same percentages of the respective maximum penalties as did the "standard" sentences in those other jurisdictions. In making those submissions he did not address either the risks of error inherent in any adoption of a mathematical approach to sentencing (Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357), or the risks, absent a clear statutory basis for doing so, in attempting to set a numerical norm or range as commented on in Wong and Hili. In the latter case, the majority said at [48]:

Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes.

74. The DPP did not explain how the Court could have made any use of the comparisons he provided without falling into some kind of error.

75. In the context of "manifest inadequacy", the DPP also made one other contentious submission that was not argued effectively.

76. As noted by Gray P and Lander J, the sentence in this case involved six months of full-time custody and a further 12 months of periodic detention. The DPP asserted that periodic detention was not an adequate form of deterrence for the purposes of general deterrence. However, he made no attempt to establish the proposition that periodic detention was not adequate. Nor did he even grapple with the question of how such a proposition could be made out. This failure to engage with his own submission may reflect the fact that it is a particularly difficult submission to support in relation to offences of this kind.

77. It is probably true that to any given offender, a risk of periodic detention may be relatively less of a deterrent to offending than a risk of full-time custody. It may also be true that for some regular offenders with previous experience of full-time custody, a risk of periodic detention, by comparison with a risk of full-time custody, is not an effective deterrent at all.

78. However, this does not mean that periodic detention as such would be an inadequate deterrent in relation to offences that, as has been noted, are commonly committed by persons who are otherwise law-abiding and of good character. Losing one's weekends for an extended period (possibly up to three years in the ACT), and having to spend those weekends in old and very basic accommodation, doing either menial tasks or nothing at all, in company with other offenders many of whom will not be generally law-abiding and of good character, is not a punishment to be lightly risked by people who are not accustomed to custodial punishments in any form. This becomes starkly clear when one considers the often minor pleasures (a chance to show off, driving faster, one drink too many, answering a mobile phone call or adjusting the radio) that can produce the disastrous results that bring offenders before the courts on charges of culpable or negligent driving causing death or serious injury. It seems unlikely that a rational assessment by a driver would lead him or her deliberately to risk even a term of periodic detention simply because he or she wants to drive a bit faster or to answer the phone.

79. Nor did the DPP provide, for instance, statistics that establish that the relevant offences are less common in jurisdictions where average penalties imposed involve full-time custody rather than periodic detention, or opinions from road-safety experts that the effectiveness of advertising campaigns aimed at reducing road accidents was hampered in jurisdictions where lower average penalties including periodic detention are imposed.

80. In short, the DPP has offered no support for the proposition that, if general deterrence is effective at all in relation to offences of the relevant kinds, such deterrence will not be provided by the likelihood of a custodial period served wholly or in part in periodic detention.

81. The specific errors mentioned in the grounds of appeal (a failure to adequately cumulate the sentences, and a failure to impose sentences that adequately reflected the objective seriousness of the offences) appeared to have no independent substance. The DPP did not point to any specific error in how the sentencing Judge had chosen to accumulate the three sentences. Nor did he point to any specific failure by the sentencing Judge to recognise, or to take account of, the objective seriousness of the offences. Indeed, he noted that his Honour had said all the right things, but had nevertheless reached what the DPP maintained was the wrong result.

82. The specific appeal grounds were in effect simply re-statements of the DPP's basic claim that the total sentence was too low, although they might also have been attempts to identify the error that, the DPP said, could be inferred from the manifestly inadequate sentence. Either way, their mention did not contribute to an enhanced understanding of the relevant sentencing principles to be applied in this jurisdiction, they did not directly provide any ground for upholding the appeal, and they did not indirectly provide any ground for upholding the appeal by adding weight to the claim that the sentence was manifestly inadequate.

83. Thus, despite the view already mentioned that the sentences imposed in this case were lower than the members of this Court of Appeal would have imposed at first instance, there was no basis on which this Court could identify error by the sentencing Judge that would have permitted the appeal to be upheld.

I certify that the preceding fifty-six to eighty-three (56-83) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.

Solicitor for the Appellant: The Office of the Director of Public Prosecutions

(Sentence Administration) Act 2005

Transport (General) Act 1999

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