R v Hawkins [2019] ACTSC 103

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6

Road Transport (Driver Licensing) Act 1999 (ACT) s 31

Road Transport (General) Act 1999 s63

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cantwell v Nozhat [2017] ACTSC 14

Choi v R [2007] NSWCCA 150

Douglas v The Queen [1995] FCA 41; 56 FCR 465

Lutz v JK [2016] ACTSC 200; 310 FLR 392

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

R v Ang [2014] ACTCA 17

R v Hawkins [2015] ACTSC 333

R v Hawkins [2019] ACTSC 10

R v Henry [1999] NSWCCA 111; 46 NSWLR 364

R v Martin [2007] VSCA 291; 20 VR 14

R v Meyboom [2012] ACTCA 48

R v MMK [2006] NSWCCA 272; 164 A Crim R 481

R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394

R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103

Zdravkovic v The Queen [2016] ACTCA 53

1. On 27 March 2019, Christopher Hawkins (the offender) pleaded guilty to negligent driving causing grievous bodily harm (CC2019/3643) contrary to s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (at the time of the offending, maximum penalty 1 year of imprisonment, a fine of $15,000 and 3 months disqualification).

2. Subsequently, on 28 March 2019, before me, the offender pleaded guilty to the following offences:

(a) driving unlicensed (repeat offender) having never held an Australian drivers licence (CC2017/12205) contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act) (at the time of the offending, maximum penalty 6 months of imprisonment, a fine of $7,500, or both, and a licence disqualification of 3 years);

(b) exceeding the speed limit by equal to or less than 15 km/h in a non-school zone (CC2017/12206) contrary to rule 20 of the Australian Road Rules (at the time of the offending, maximum penalty a fine of $3,000); and

(c) dishonestly driving a motor vehicle without consent (CC2017/12483) contrary to s 318(2) of the Criminal Code 2002 (ACT) (at the time of the offending, maximum penalty 5 years of imprisonment, a fine of $75,000, or both).

3. The prosecution discontinued an associated charge.

4. The agreed facts are set out in the Statement of Facts, which forms part of the Crown tender bundle.

5. Some years prior to these offences, the brother of the victim had purchased a Valiant Ranger XL as his first car with an intention to restore the car. Following the death of the victim's brother, the victim acquired the Valiant and it was therefore of sentimental value and he too hoped to restore the vehicle.

6. On 15 December 2016, when the victim left for work, the Valiant was parked on the street at the front of his house in Yarralumla in the ACT. When he returned home that afternoon, it was gone. The victim reported the car stolen to police and posted on a number of social media sites requesting assistance from the public.

7. Later on 15 December 2016, the victim received information that the Valiant had been sighted in the Philip area. The victim and his friend went to Philip to search for the Valiant. The victim took a wooden bat to defend himself in case he was confronted by the driver of the Valiant.

8. At 6:40pm, they sighted the Valiant turning left onto Hindmarsh Drive in Philip and travelling east. The victim and his friend followed. Speed cameras on Hindmarsh Drive, between Palmer Street and Dalrymple Street, recorded that the Valiant travelled at an average speed of 92 km/h. The Valiant turned left onto Jerrabomberra Avenue and drove into a unit complex situated in Narrabundah.

9. The victim and his friend stopped at the entry of the unit complex and his friend called police. The victim exited the vehicle and followed the Valiant on foot, taking with him the wooden bat. After the offender parked, the victim approached the Valiant and the offender immediately locked the car doors, although the driver's side window was down approximately 30cms.

10. The victim asked the offender who owned the car but the offender did not respond, instead attempting to restart the car. The victim said, "you've fucked up, mate, this is my car, it's stolen". The offender replied, "I've just bought the car".

11. The offender managed to start the Valiant and was attempting to put the Valiant in gear when the victim then thrust the bat through the driver's side window of the Valiant. The end of the bat made contact with the right side of the offender's forehead, causing a small cut that started to bleed.

12. The offender started to drive forward and the rear of the Valiant swung in the direction of the victim. The victim pulled himself onto the bonnet of the Valiant to avoid being hit. As the Valiant gathered speed the victim decided it was too dangerous for him to jump off the moving car. He struck the front windscreen of the Valiant several times to make a hole in the glass, then pushed the bat through the windscreen. He used the bat as a grip to remain on the bonnet of the Valiant. The offender drove out of the unit car park and turned right while the victim yelled at him to stop.

13. The offender drove approximately 150 metres until he came to an intersection. The Valiant then travelled on the wrong side of the road, up and over the right-hand side of the traffic island and turned left. The offender started to swerve the Valiant a number of times. Approximately 50 metres later the offender suddenly applied the brakes of the Valiant, and the Valiant skidded. As a result, the victim was thrown from the bonnet of the Valiant onto the road. The offender then drove off.

14. On 16 December 2017, police recovered the Valiant from a driveway of a residence in Narrabundah.

15. On the same day, the victim underwent an open reduction and internal fixation of a left tibial plateau fracture at the Canberra Hospital under general anaesthetic. He was discharged from hospital on 23 December 2016.

16. At the time of the offence, the offender was driving unlicensed. He was a repeat offender and had never been the holder of an Australian driver's licence.

17. There was no Victim Impact Statement from the victim of the offence.

18. Nevertheless, the serious injury and consequent impact upon the victim is clear. The court acknowledges the significant impact that the offences have had on the victim. His leg was fractured and he was in hospital for over a week.

19. In relation to the dishonestly driving a motor vehicle offence, it was submitted by counsel for the offender that the offence was a "relatively typical" example of the offence and that the offender is charged only with driving, not taking, the vehicle. Moreover, it was submitted that the offence occurred on a single day and over a short duration.

20. In relation to the unlicensed driving, counsel for the offender submitted the offending was over a short duration and, in isolation from the other offences, the offence "speaks for itself".

21. In relation to the speeding offence, counsel for the offender noted that this occurred sometime before the negligent driving offence and that it was 12 kilometres per hour over the limit.

22. In assessing the objective seriousness of the negligent driving offence, counsel for the offender referred the Court to the decision of Cantwell v Nozhat [2017] ACTSC 14 (Cantwell) at [12] for the proposition that it was primarily relevant to consider the degree of departure from the proper standard of driving and the degree of grievous bodily harm inflicted (also citing Lutz v JK [2016] ACTSC 200; 310 FLR 392 (Lutz)).

23. As to harm, counsel for the offender noted the broad range of injuries that are encompassed by grievous bodily harm and that in this context the harm suffered by the victim was "well towards the bottom of the range of objective seriousness".

24. As to the negligence component, counsel for the offender noted that the driving occurred over approximately 200 metres, not being a lengthy period of driving. However, counsel for the offender noted the serious circumstances of the offence: an individual on the bonnet, the car crossed on to the wrong side of the road and the brakes were applied so as to cause the victim to fall from the bonnet. While "abhorrent" viewed in isolation, counsel for the offender noted that these circumstances needed to be weighed against the fact that the offender had "just been attacked by a person with a weapon", had suffered a head injury and was fearful of a further attack, which "would have been likely to have continued".

25. The prosecution submitted that, in relation to the speeding offence, it was "relatively unremarkable", there being no aggravating factors and the circumstances simply being the offender was driving too fast. I accept this submission as it accords with my view.

26. In relation to the unlicensed driving, the prosecution observed that the distance was approximately 10 kilometres, which while "not a long distance...[was] not an insignificant distance", also noting the offender's history of driving offences. Again, I accept this submission.

27. In relation to the driving a stolen vehicle offence, the prosecution observed that the offence contained an element of dishonesty, in the context of the offender having a significant history of dishonesty offences and that the Court should note substantial maximum penalties for this offence. I take into account the prosecution submissions in this regard.

28. The prosecution conceded that the distance of the negligent driving was relatively short, between 200m to 250m and that the period of time would have been short. Nevertheless, it was submitted that given the circumstances of the offending, the negligence was not "fleeting" or "inadvertent", but rather sits higher than such conduct. The prosecution noted the victim was in hospital for a week as a result of his injuries and the operation required the insertion of screws to help mend the fracture, among other treatments. The prosecution submitted that the injury was "not inconsequential".

29. The prosecution submitted that the attack by the victim was not a 'vigilante' action as initially suggested by counsel for the accused, but rather a lawful assault in defence of property. I agree with the submission of the prosecution in this regard as it accords with my view.

30. It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, "it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case" (R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24]).

31. In accordance with the principles outlined in Lutz and Cantwell, it is clear that this negligent driving was serious, taking into account the injury and the nature of the driving.

32. In evidence before me is the Pre-Sentence Report for the offender, prepared for the sentence hearing in R v Hawkins [2019] ACTSC 10 (Hawkins). Murrell CJ has summarised the offender's subjective circumstances at [39]-[49], [56]-[59] of Hawkins. In addition to that decision, counsel for the offender drew the Court's attention to the summation of the offender's subjective circumstances by Refshauge ACJ in R v Hawkins [2015] ACTSC 333. As it was noted by Murrell CJ in Hawkins of the offender:

The offender is an Aboriginal man who had an extremely disadvantaged upbringing. He was the second oldest of 12 children, two of whom are now deceased. His parents abused drugs and alcohol. His father was often absent as he was incarcerated. The offender's father introduced the offender to weapons at a young age.

The offender's mother died from a drug overdose in 2016 while the offender was in custody. With 12 children to contend with, an absent husband and a substance abuse problem, it is little wonder that the offender's mother struggled to cope with her brood, or that the offender had behavioural problems as a child. From the age of about nine or 10, the offender was the subject of various foster and refuge arrangements. This string of placements disrupted his schooling as it caused numerous changes of school.

...

For about two years, the offender has been in a relationship with Ms Andrews. In May 2014, Ms Andrews was diagnosed with an aggressive cancer and treated as a matter of urgency. By the time that she commenced a relationship with the offender, her condition was in remission, although the prognosis remains uncertain. Together, the couple has made a concerted effort to forgo substances and build a better lifestyle. Ms Andrews' letter to the Court indicates that she is an intelligent and motivated person. She is probably well paired with the offender, as his employer's reference indicates that he is of a similar disposition

33. I adopt and have taken into account these subjective matters.

34. In addition to the factors outlined in the offender's prior cases, counsel for the offender in oral submissions sought to specifically highlight a number of subjective factors, including: that the offender was 24 at the time of the offending, had an unstable childhood where his father was regularly incarcerated and that the offender was introduced to weapons and crime at an early age.

35. It was also noted that the offender was in foster care between the ages of 9 and 13 from which he regularly absconded to return to care for siblings. At the age of 10 or 11 the offender's uncle, whom he viewed as a father figure, passed away and at around this age the offender developed a significant alcohol problem. At the age of 13 or 14 the offender began smoking cannabis daily which progressed to methylamphetmine use by the age 19.

36. Counsel for the offender noted that in recent times two significant life events, the diagnosis of his partner with cancer and the death of this mother (which occurred while the offender was in custody), have caused the offender to "turn his life around" and realise what he risks missing out on in life, resulting in him reducing his intake of drugs and, for the first time in his life, holding paid employment (see the observations of Murrell CJ in Hawkins at [56]-[59]), although this being cut short by his most recent incarceration. Counsel for the offender further noted that between 9 August 2017 and 21 December 2018 (when he was arrested on a further charge to which he has pleaded not guilty), the offender had spent the longest period of time in his adult life in the community.

37. The offender has participated in the Solaris Rehabilitation Program on two occasions, a harm minimisation program, signed up for the CALM program and expressed interest in participating in a cognitive skills program.

38. The prosecution conceded that the offender is a relatively young man who has had an unfortunate upbringing, but nevertheless presents with a significant criminal history including relevant convictions.

39. In evidence before me was a letter in support of the offender from his partner, originally tendered in the proceedings before Murrell CJ. The offender's partner was present at the sentencing hearing in support of the offender.

41. The offender has a substantial criminal history, which was summarised in some detail by Murrell CJ in Hawkins at [26]-[38]. In addition to that summary, the offender was convicted for two offences of aggravated robbery, one offence of obtaining property by deception and one offence of riding in a motor vehicle without consent by her Honour in Hawkins. The offender received a sentence of four years and eight months of imprisonment for those offences, with a non-parole period of two years and four months.

42. Counsel for the offender conceded that the offender's criminal history was "very significant", although noted that of all the driving offences, only two prior matters were relevant to the manner of his driving. Further, counsel for the offender noted that of the four prior offences of driving unlicensed, three were committed while the offender was juvenile. Accordingly, the offender was only considered 'repeat' offender for the purposes of s 31 Driver Licensing Act for the offence sentenced on 15 May 2017.

43. Counsel for the offender prepared a chronology of offender's history, Exhibit 2 on sentence, to illustrate that:

(a) These offences occurred before the offences which were sentenced by Murrell CJ in Hawkins; and

(b) Following the commission of current offences, the offender spent five months imprisonment from 7 March 2017 to 9 August 2017, following parole being cancelled. Counsel for the offender submitted that this period should be taken into account when structuring a sentence, being relevant to rehabilitation and totality, given it has allowed the offender to reflect upon the offences and has been an impetus for change in his life.

44. The prosecution also submitted the offender's criminal history was "significant".

45. I have taken into account the offender's significant criminal history on sentence.

46. Before me at the sentence hearing the offender entered three pleas of guilty in relation to the charges of: dishonestly driving a motor vehicle, unlicensed driving and exceeding the speed limit. He also pleaded guilty to one charge the previous day, being the negligent driving charge. The Court was informed by counsel for the offender that the matter had resolved and that the offender would enter pleas of guilty six days prior to the trial, which had been listed.

47. Counsel for the offender noted that while a plea of not guilty had been entered in relation to the dishonestly driving offence, it had been understood that this was not contested, the parties accepting that this was known since 9 October 2018. In addition, the speeding and unlicensed driving offences, counsel for the offender submitted that it had been understood between the parties for "significant period of time" that these offences were not in contention, and that the trial estimate was limited to two to three days, noting the degree of negligence to be the essence of debate. Counsel noted that negotiations regarding the negligent driving offence had been ongoing for some time.

48. In light of the above, counsel for the offender submitted a discount in the range of 15 to 20 per cent was appropriate. The prosecution submitted it "had no major objection" to this submission.

49. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.

50. I will allow a discount of 20% in relation to these offences.

51. The offender has spent no time in custody solely referable to this offence.

52. The offender is currently serving a term of imprisonment of 4 years and 8 months, which commenced 21 December 2018. The offender's existing non-parole period ends on 20 April 2021, a period of two years and four months.

53. Counsel for the offender made the submission that the offender has in recent times attempted to "turn his life around". In particular, counsel for the offender referred to recent events in the offender's life which have provided the impetus for this change, as summarised by Murrell CJ in Hawkins at [55]-[59]:

55. However, at the time of the offences he was only 25 years of age - still relatively young. However, rehabilitation does assume a high level of significance in this case. The events prior to and during the period of August 2017 to December 2018, when the offender was at large, indicate that he may well be at a turning point in his life where he is able to seize upon opportunities for rehabilitation and build a law-abiding lifestyle, despite his extremely disadvantaged upbringing and the very significant criminal history.

56.Two important events have motivated the offender to make significant changes to his life. First, he commenced a relationship with Ms Andrews and became aware of her very serious medical problem. The offender is now in a relationship with someone who is clearly motivated to change her own lifestyle and very supportive of the offender doing the same thing.

57.Second, the fact that the offender's mother died in 2016 while he was in custody and unable to be with her, and that her death was caused by a drug overdose, was a "wake-up call" to the offender.

58.When he was at large between August 2017 and December 2018, the offender responded by making some obvious lifestyle improvements. Perhaps the most significant objective evidence of his commitment to change was his strong engagement with employment. It is commendable that someone with his background of disadvantage and lack of employment experience proved himself to be an outstanding employee within the short period of employment during the latter part of 2018. In the future, consistency in employment will be a very stabilising influence and a motivator to refrain from substance abuse.

59.Although the offender has failed to seize the many opportunities offered in the past, I am reasonably optimistic about his future. Accordingly, I am prepared to impose a relatively short nonparole period to enable him to demonstrate to the parole authority a continuing commitment to change and to allow for the possibility of support for an extended period while he reintegrates into the community.

54. These circumstances call for a consideration of the principle outlined in R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 discussed in R v Ang [2014] ACTCA 17, that the sentencing discretion of judges should not be unduly circumscribed in such circumstances.

55. In my view the offender is at a crossroads and I take this into account on sentence.

56. The principles relating to accumulation, concurrence and totality are well established. The Court in R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [13] made clear "the discretion is generally circumscribed by a proper application of the principle of totality". The Court emphasised in relation to concurrency and accumulation that:

It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.

57. Further, in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 66 it was underlined that the totality principle is applied where an offender is serving an existing sentence: see also Choi v R [2007] NSWCCA 150 at [157].

58. Counsel for the offender submitted that given these offences all occur in a single course of conduct, the Court would be "more than entitled to impose sentences that would be largely served concurrently." Counsel for the offender also noted that, taking into account the five months incarceration referred to above at [43] and the sentence imposed by the Chief Justice in Hawkins, there will have been a period of 33 months the offender will have spent in custody following these offences. Counsel for the offender conceded that the offences could not be served entirely concurrently, but "at least partially".

59. Counsel for the offender further noted that, in addition to the sentence imposed for these offences, the offender would be receive automatic disqualification for a period of 4 years, being three years for the unlicensed driving offence (pursuant to s 31(3) Driver Licensing Act) and an additional twelve months for the negligent driving charge (pursuant to s 63 Road Transport (General) Act 1999 (ACT). Counsel for the accused noted this would cumulative upon a 12 months disqualification previously imposed.

60. The prosecution submitted that the sentence imposed should be partly cumulative upon the sentence the offender is currently serving. In particular the prosecution noted the negligent driving and dishonestly driving offences should sit separately from each other, noting all offences were committed within the same day or afternoon.

61. It was accepted by both parties that it was important that the offender not receive a sentence that would be "crushing" in this circumstances of this case.

62. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

63. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations.

64. Rehabilitation is also an important consideration having regard to the offender's youth, being 24 at the time of the offending, the pleas of guilty, his severely disadvantaged background and the stage of life he has reached, being at a crossroads in his life.

65. The prosecution submitted that general and specific deterrence, community protection and offender accountability and denunciation were particularly important factors here. It was accepted that rehabilitation must have some role to play.

66. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.

67. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

68. In relation to the background of the offender, counsel for the offender referred to the decisions of Douglas v The Queen [1995] FCA 41; 56 FCR 465, R v Henry (1999) 46 NSWLR 364 (Henry) and referred to the conclusion of Refshauge J, adopted by Murrell CJ in Hawkins at [47] that:

It is difficult to see how, in the circumstance under which he was brought up, he could realistically have avoided his descent into drugs and crime.

69. Childhood disadvantage does not "diminish with the passage of time and repeat offending" but does not have the same "(mitigatory) relevance for all purposes of punishment": Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].

70. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: Henry at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]- [30].

71. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].

72. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon him. Both the short and long-term consequences of being the victim of these offences must be acknowledged.

73. Counsel for the offender suggested that the period of imprisonment for the dishonest driving offences should be in the range of 8 to 12 months (absent a discount), for the negligent driving charge a sentence in the range of 6 months. The prosecution accepted that past sentences received by the offender for the dishonest driving offences would provide some guidance but suggested given the nature of the negligence a sentence towards the upper end of 12 months, then applying the discount, would be appropriate taking into account the 1 year maximum penalty for this offence.

74. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences, subjective matters, and my assessment of the submissions made by both parties as to penalty.

75. The appropriate sentence for the offence of dishonestly driving a motor vehicle without consent is 12 months reduced to 9 months on account of the discount for the plea of guilty.

76. The appropriate sentence for the offence of driving unlicensed (repeat offender) having never held an Australian driver's licence is 2 months and 15 days, reduced to 2 months on account of the discount for the plea of guilty.

77. The appropriate sentence for the offence of negligent driving causing grievous bodily harm is 10 months reduced to 8 months on account of the discount for the plea of guilty.

78. I will impose a non-custodial sentence for the offence of exceeding the speed limit.

79. Pursuant to s 71(2) of the Sentencing Act, I direct that the sentence will be served partly concurrently, partly consecutively with the existing sentence.

80. Consistent with s 66 of the Sentencing Act, I am required to set a new non-parole period for the offender.

(a) I record convictions in relation to the offences.

(b) In respect of the offence of negligent driving causing grievous bodily harm (CC2019/3643), the offender is sentenced to a term of 8 months of imprisonment, commencing on 20 June 2023 and ending on 19 February 2024.

(c) In respect of the offence of dishonestly driving a motor vehicle without consent (CC2017/12483), the offender is sentenced to a term of 9 months of imprisonment, commencing on 19 December 2023 and ending on 18 September 2024.

(d) In respect of the offence of driving unlicensed (repeat offender) having never held an Australian driver's licence (CC2017/12205), the offender is sentenced to a term of 2 months of imprisonment, commencing on 18 August 2024 and ending on 17 October 2024.

(e) In respect of the offence of exceeding the speed limit (CC2017/12206), the offender is fined $500 with no time to pay.

(f) I set a new non-parole period to expire on 20 December 2021, that being a period of 3 years from the date on which the initial non-parole period commenced (21 December 2018).

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson.