Supreme Court of the ACT|2015-10-15|Before: Refshauge ACJ

R v Wolter (No 3) [2015] ACTSC 321 (15 October 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. Dylan Wolter be convicted of culpable driving causing death on 16 August 2013.

2. Dylan Wolter be sentenced to four years imprisonment to commence on 4 September 2015 to take into account pre-sentence custody.

3. A non-parole period of two years be set, to commence on 4 September 2015 and to end on 3 September 2017.

4. Dylan Wolter be convicted of driving whilst his licence was suspended.

5. Dylan Wolter be fined $200 and allow no time to pay.

6. Dylan Wolter be disqualified from holding or obtaining a driver licence for a period of 8 years from today, 15 October 2015.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - trial - culpable driving causing death - driving whilst driver licence suspended - driving whilst effect by drugs - speeding - failure to drive to the conditions - efforts at rehabilitation

Road Transport (Safety and Traffic Management) Regulations 2000 (ACT), s 5

Bombardieri v The Queen [2010] NSWCCA 161; (2010) 203 A Crim R 89

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Monfries v The Queen (2014) 68 MVR 385

Murnin v The Queen (Unreported, New South Wales Court of Criminal Appeal, Street CJ, Cantor and Roden JJ, No 240 of 1984, 16 August 1985

R v Creighton [2011] ACTCA 13

R v Kekalainen [2014] ACTSC 132

R v Paton (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 353 of 2010, 2 December 2013)

R v Wright (2013) 63 MVR 250

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Legal Aid ACT (Accused)

SCC 177 of 2014; SCC 178 of 2014

1. Dylan Wolter, the accused, was driving a car along Mawson Drive, Mawson in the ACT on 16 August 2013 when the car collided with a pedestrian, Natalie Ashley, who died as a result of the injuries she received in the collision.

2. Mr Wolter was charged with, among other offences, culpable driving causing death by driving negligently.

3. He pleaded not guilty to the charge. His trial commenced on 31 August 2015 and on 4 September 2015, the jury returned a verdict of guilty.

5. When committed for trial on 7 August 2014, the Magistrates Court also transferred a number of charges to this Court under s 90B of the Magistrates Court Act 1930 (ACT) to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).

6. Those offences, which arose out of the events surrounding the driving of Mr Wolter on that day, were offences of, first, as a first offender, driving while his licence was suspended by law; second, driving, as a first offender, when he had a prescribed drug in his blood; third, exceeding the speed limit by greater than 15 kilometres an hour but equal to or less than 30 kilometres an hour; and, finally, negligent driving occasioning death.

7. Because of the jury's verdict, no evidence was offered on all but one of these offences as the elements or culpability were included in the offence of which he was found guilty. Accordingly, I dismissed them. The exception was the offence of driving whilst his licence was suspended.

8. Culpable driving of a motor vehicle causing the death of another person is an offence against s 29(2) of the Crimes Act 1900 (ACT), which provides for a maximum penalty of fourteen years imprisonment.

9. A person who drives whilst his or her licence is suspended by law commits an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) for which the maximum penalty for a first offender is 50 penalty units (that is, at the time, a fine of $5,500) and imprisonment for six months.

10. In this case, the finding of guilt was made by a jury. It is, therefore, necessary for me to find the facts from any evidence given at the trial. The facts that I find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where Mr Wolter relies on mitigatory facts, I need to find them on the balance of probabilities.

11. These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 12-14. I shall approach my task in this way.

12. There was little in dispute in the trial, other than whether the conduct of Mr Wolter's driving constituted culpable driving, so the facts can, for the most part, be easily found as follows.

13. The deceased, Natalie Ashley, was, amongst other things, an artist who lived on one side of Mawson Drive, but who had a studio and a house on the other side of Mawson Drive, where she would paint. She used to walk across the street to her studio to paint every day, return home for lunch, go back to her studio in the afternoon and return later in the afternoon or early evening. This involved crossing Mawson Drive, a relatively busy street.

14. On 16 August 2013, Mr Wolter was visiting a friend in a house in or around Mawson, not far from Yamba Drive. He was asked if he could buy some cigarettes and borrowed his friend's car to go to Mawson Shops to do so.

15. It appears that he drove approximately north along Yamba Drive and then turned left into Mawson Drive.

16. While Mawson Drive is a relatively wide street, it has only one lane in each direction. It is subject to a speed limit of 60 kph. It has houses on both sides of the street for much of its length and, in particular, the area leading up to where the collision occurred.

17. From Yamba Drive, Mawson Drive rises in a westerly direction to a ridge. At the time of the collision, about 4.54 pm in August, the sun shines directly down Mawson Drive and can blind drivers travelling west along it, especially as they approach the ridge.

18. As Mr Wolter drove along Mawson Drive, he was blinded by the sun and attempted to improve his visibility by putting the car's sun visor down. He still found it very difficult to see. Nevertheless, he continued to drive at speed. At about 3.5 seconds before the impact of his car with Mrs Ashley, he was driving at 87 kph and, though reducing his speed a little, was still travelling, at the time of impact, at 76 kph.

19. At the time, Mrs Ashley was crossing the road. The evidence was that she was safety conscious, being very careful to observe any traffic, ensuring, as best she could, that she had reasonable time to cross the road. She was not disabled in any particular way.

20. Mr Wolter's car collided with Mrs Ashley and she died at the scene.

21. After the collision, Mr Wolter stopped his car and tried to render assistance to Mrs Ashley, but other persons, including an off-duty paramedic, attended to Mrs Ashley and Mr Wolter, who was obviously very upset at the incident, was tended to by other passersby.

22. Mr Wolter was taken to The Canberra Hospital by ambulance and provided a blood sample. This was analysed and methamphetamine was detected in his blood at a level of 0.14mg/L. He was also seen by psychiatric services because of his reaction to the incident.

23. At the time, Mr Wolter's provisional licence had been suspended. He had been issued an infringement notice for the offence of driving while using a hand-held mobile phone.

24. Mr Wolter requested an extension of time within which to pay the penalty amount. On 10 September 2012 the extension was granted and he was notified that he had until 25 February 2013 to pay the penalty amount.

25. When the penalty amount was not paid by that date, a reminder notice was sent on 4 March 2013 and, on 18 April 2013, a notice was sent advising him that suspension action would occur on 13 May 2013 if the infringement notice was not paid prior to that date.

26. On 16 May 2013, a confirmation of suspension was sent to Mr Wolter confirming that his licence had been suspended. His licence remained suspended until 18 June 2015 when he applied for a work or development program to allow him to discharge the debt incurred by the infringement notice.

27. I had a Pre-Sentence Report and two reports of the Court Alcohol and Drug Assessment Service (CADAS). Together with counsel's submissions and the evidence at trial, especially that of Dr Vanita Parekh, a forensic medical practitioner, I make the following findings.

28. Mr Wolter is 22 years old. He was born in Canberra, the elder of two children. He had a positive childhood and, although his father was absent from home due to long working hours, he had warm relationships with his parents. The family moved around and Mr Wolter attended three different primary schools and two different high schools in three States and this Territory.

29. It appears that Mr Wolter started showing problematic behaviour during his mid teens due to him starting to use illicit drugs.

30. Mr Wolter left school before completing Year 11 and commenced an apprenticeship, training as a chef. He completed a certificate in restaurant management. He maintained regular employment after leaving school until December 2014 when he lost his job through absenteeism and his chaotic lifestyle, and for the periods in 2013 to the 2015 he has been in receipt of youth allowance.

31. Mr Wolter has used illicit drugs. He was introduced to heroin by his peers when he was seventeen years old and, for about eighteen months, his use was social and irregular but, by the time he was nineteen, he was smoking between ½ a gram and 1 gram daily.

32. Mr Wolter has also used methylamphetamine (Ice), though this was occasional until, by April 2015, he was smoking it about once a week.

33. His drug taking became a significant problem leading to him being ejected from the family home. It also affected his employment. He recognises the negative effect it has had on his family.

34. Mr Wolter appears to have engaged in some drug treatment in late 2012, attending some counselling and a short period of residential treatment which he described as very effective. He managed to remain abstinent for a while, enabling him to return home. The offence, however, caused him to relapse into heroin use.

35. Earlier this year, he was offered an opportunity to engage in residential rehabilitation but did not complete the program.

36. He has, however, re-engaged with counselling and, prior to his recent incarceration, has been attending Directions ACT Alcohol and Other Drugs Counselling. In April 2015, he spent three weeks in a residential program at Arcadia House but was discharged for smoking a cigarette.

37. He did smoke heroin in May 2015, just before he was returned to custody.

38. He lived with his family until his drug use made that unacceptable to his parents. He then lived with various friends, described as "couch surfing", until he was able to return home for a period. This did not work out, however, because of his daily drug use and unsocial behaviour and he returned to couch surfing.

39. Since he has been in custody, however, he has further engaged with rehabilitation. He commenced a methadone maintenance program when he entered the Alexander Maconochie Centre. His current dose is 40 mg daily. He has completed the SMART Recovery Program. He has said that his goal is to remain abstinent for all illicit drug use and was willing to remain on the methadone program if it will "help [him] stay off heroin".

40. Mr Wolter has proactively engaged in other treatment in the Alexander Maconochie Centre and has regular counselling sessions with a social worker from the ACT Health Alcohol and Drug Counselling and Treatment team.

41. Mr Wolter also suffered significant mental and emotional difficulties as a result of this offence. He struggled to cope psychologically and his mental health deteriorated. Although he was initially treated in hospital, he did not seek or access counselling and psychological support for his mental health until about twelve months after the offence. He gained some assistance from his general practitioner who diagnosed him with Post Traumatic Stress Disorder and prescribed medication including for sleep disturbance. He remains on that medication.

42. He has participated in the Alexander Maconochie Real Understanding of Self Help (RUSH) Program designed for a prison population teaching emotional regulation. He attends two group sessions weekly which are facilitated by mental health professionals. He intends to remain in treatment to assist him to build a drug-free life and wishes to pursue tertiary study in the future.

43. While in custody, Mr Wolter has engaged in a number of other programs, including the Fundamental Skills Pre-Tertiary Educational Program.

44. Mr Wolter has accepted full responsibility for his actions and was assessed by the author of the Pre-Sentence Report as displaying "a high level of victim empathy". He had reflected on the effect that his actions has had on his family also. His counsel expressed Mr Wolter's regret and apology to the family of Mrs Ashley and his intention to write a letter of apology to them.

45. Mr Wolter indicated to the author of the Pre-Sentence Report that he had abstained from drug use for several days prior to the offences and stated that his prior ignorance of the half life elimination of the drug meant that he was unaware of the fact that he was still subject to the effects of the drug. He did not, however, suggest that this was a mitigating factor.

46. The Crown submitted that I should give this material no weight. It was unsworn evidence given to the author of the Pre-Sentence Report and unsupported by sworn evidence that would be subject to cross-examination and so unable to be tested. See Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at 377; [58]- [59], where Smart AJ, with whom Spigelman CJ expressly agreed, said:

[58] ...In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.

[59] There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.

47. While Mr Wolter's statement must be viewed in the light of that approach, the absence of oral evidence from Mr Wolter does not, of itself, enable me to find, as urged by the Crown, that Mr Wolter had used methylamphetamine shortly before he drove. That would enable an inference to be drawn that he deliberately drove while impaired. That would be an aggravating feature. Such a conclusion must be drawn beyond reasonable doubt. See R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27]. It is also important to recognise in this case, as explained in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at 638; [24], that the absence of satisfaction that a mitigating factor has been proved is not the equivalent of satisfaction that the opposite and aggravating factor has been made out. That requires evidence and proof to the required standards.

48. The evidence of Dr Parekh was that after recreational use of methamphetamine, medical practitioners expect to find concentrations of 0.1 to 2.5 mg/L of the drug in a person's blood. The toxic level is above 0.15 mg/L, just above the amount found in Mr Wolter's blood. Dr Parekh also said that it was not possible to calculate from a concentration of amphetamine in blood back to what it would have been at an earlier time. Further, Dr Parekh said that at levels of concentration below 0.2 mg/L, the effects of methamphetamine on a person's ability to pay attention or exercise appropriate judgement is variable and it was not possible to be "absolutely convinced ... this [concentration] was going to cause adverse effects". The major effect she mentioned was a slowing of the dilation of the pupils when exposed to sunlight and possibly on response time. She agreed that she was not able to state with any certainty or confidence that Mr Wolter's driving was impaired with the amount of methamphetamine he had in his blood.

49. I am satisfied from the evidence that the ingestion of methamphetamine before driving is undesirable and, in any event, prohibited. I also accept that there is, of the concentration found in Mr Wolter's blood, the capacity for impairment, but I am not satisfied that Mr Wolter consumed the drug so shortly before driving that he must have known that he was driving whilst impaired by the drug nor that the drug had an appreciable effect on the cause of the collision.

50. Mr Wolter has a criminal record. He first came to notice in 2011 when he committed an offence of obtaining property by deception. He was dealt with on 25 September 2012 for that and one other similar offence. He later breached the Good Behaviour Orders then imposed.

51. Since he committed this offence, he has been dealt with by the courts for eleven offences of dishonesty, mainly minor thefts, and one breach of a bail undertaking. These offences cannot directly affect the sentence I must impose because they occurred after the commission of the offence. Nevertheless, it has some effect on an assessment of the prospects of Mr Wolter's rehabilitation.

52. He complied with the Good Behaviour Order imposed in 2013 but, for offences committed in 2014 and 2015, his attendance at supervision was poor and he failed to comply with his obligations resulting in the sentence of imprisonment he is now serving.

53. Mr Wolter has been assessed as suitable for the SOLARIS Therapeutic Community within the Alexander Maconochie Centre but his current custodial term is too short for his participation.

54. In June 2015, Mr Wolter was assessed as medium to high risk of re-offending. The author of the Pre-Sentence Report considered that, in order to reduce this risk, Mr Wolter "will require ongoing support to maintain abstinence from illicit substances use and continuing psychological services/counselling to manage his mental health concerns."

While Mr Wolter has previously led a lifestyle encompassed by drug use and unlawful behaviour, he has considered he has demonstrated a capacity to be a productive member of the community, evidenced by his past work history and supporting involvement.

Mr Wolter expressed 'considerable regret' for his actions and acknowledged the devastating consequences resulting from his poor judgement.

56. I accept that Mr Wolter is remorseful and has shown genuine steps at rehabilitation whilst in custody.

57. As we know only too well, a motor vehicle is a lethal weapon, that it is widely available and used regularly by a vast proportion of the population.

58. In Murnin v The Queen (Unreported, New South Wales Court of Criminal Appeal, Street CJ, Cantor and Roden JJ, No 240 of 1984, 16 August 1985) at 9, Street CJ, with whom Cantor and Roden JJ agreed, said:

A motor vehicle is a potentially dangerous - indeed, lethal - machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The legislature has always placed a premium on human life and the taking of human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness.

59. In this case, Mr Wolter was clearly driving too fast. It was not just above the speed limit, but well above the speed limit and, given the time of day, circumstances of the road and the conditions, much too fast.

60. That is to say, there were clearly pedestrians about, though the evidence does not permit me to say how many or whether they were close to or crossing the road. There is an oval on the northern side of Mawson Drive. Mr Biddington was there with his wife and two dogs. He saw a number of other people on the oval. When he heard the collision, he went over to it and found a group of people already around Mrs Ashley.

61. Mr Hurst was driving at 60 kph along Mawson Drive shortly after the collision and found a number of cars in front of him, some turning around to avoid the congestion that the collision was causing. He then had to slow down.

62. Ms Johnston, a neighbour of Mrs Ashley, was walking her dogs along Mawson Drive on the footpath. She saw there was traffic. She described it as "normal traffic" going past.

63. Another witness, Ms Osborne, was also driving along Mawson Drive from Yamba Drive and appears to have been immediately behind Mr Wolter. She was driving at about 40 to 50 kph. She said that when she stopped after the accident to render assistance, "people came from everywhere".

64. Ms Moore was a passenger in a car also driving along Mawson Drive also from Yamba Drive. She saw no cars ahead of her. As the car proceeded, she saw Mrs Ashley on the road. The driver stopped the car and they got out to render assistance to Mrs Ashley and Mr Wolter.

65. From this evidence, I find that there were a number of cars driving along Mawson Drive at the time so there was traffic on the road and there were pedestrians in the vicinity. That made Mr Wolter's speed a danger to other persons.

66. The Crown submitted that Mr Wolter drove in an aggressive manner. No evidence was relied on for this submission. For example, Ms Osborne, who was, it appears, driving behind Mr Wolter, was not asked by the Crown to describe his manner of driving and did not describe any of what she saw in terms that could meet this description. Indeed, in cross-examination, she was asked:

And you didn't notice anything about the manner of the car being driven? ---. No. Look, didn't look. Wasn't doing - didn't appear to be doing anything silly.

67. The basis for the Crown's submission was, it appears, that "the level of speed suggests the offender was driving aggressively". In the light of the direct evidence, that is not an inference that can be drawn beyond reasonable doubt.

68. The Crown also referred to "some evidence that he drove close to the kerb". It was never explained how that was relevant to an inference that Mr Wolter drove aggressively. Indeed, r 127 of the Australian Road Rules (made applicable to this Territory by s 5 of the Road Transport (Safety and Traffic Management) Regulations 2000 (ACT), requires, as an offence provision:

A driver on a road (except a multi-lane road) must drive as near as practicable to the far left of the road.

69. I do not accept that, as an aggravating feature, Mr Wolter drove aggressively.

70. Nevertheless, he did not drive to the circumstances, in that the blinding of his vision by the sunlight required an immediate and significant reduction in speed; it is not possible to drive safely while blinded.

71. The Crown also pointed to the fact of Mrs Ashley's death as an aggravating feature. There can be no doubt that, as Street CJ said (above at [58]), the taking of a life is a most serious matter. In this offence, however, that is an element of the offence itself; it cannot be committed unless the victim is killed in or by the collision. The death cannot, therefore, be an aggravating feature.

72. The Court is conscious of the severe and tragic loss suffered by Mrs Ashley's family and friends, especially her husband, who was brave enough to be able to give what must have been very painful evidence to the Court. The sympathy of the Court is extended to them and its hope for some peace in the future. I do hope, however, that they will accept that a just punishment in accordance with the law is what is required - no more and no less. I cannot undo the tragic consequences of the offence.

73. It is also relevant that, in the collision, Mr Wolter caused significant damage to the motor vehicle he was driving. It was not his car.

74. Some sentences try to assess where an offence sits in the range of offences, describing some as mid range, low range, high range. I find it difficult to see how that assists in arriving at the instinctive synthesis that is the required sentence. I prefer to describe, as I have done, the offence in appropriate detail and identify, as I have done, the factors that aggravate or mitigate the offence, and, then, the subjective circumstances of the offender and his or her culpability.

75. It was clearly a serious offence, but not the most serious version of the offence that, regrettably, is seen from time to time in these courts.

76. In my view, the real cause of the collision was the speed at which Mr Wolter was driving, the failure to take appropriate and immediate steps to react to being blinded by the sun and, in particular, to reduce speed sharply when he was effectively blinded.

77. Whether that was a result of impairment from consumption of ice or by a substantial failure to drive properly is not possible to resolve beyond reasonable doubt, but is perhaps not a matter I need to determine as both involve significant culpability and the Crown accepted that, in either case, the culpability was about the same.

78. Let me make it clear, however, lest there be any doubt, that driving whilst impaired by consumption of methamphetamine is unacceptable and where proved will require an appropriate penal response.

79. The purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence is an important factor. Given Mr Wolter's remorse and his reaction to the offence, I do not consider that specific deterrence plays so significant a place in the sentence. Given his efforts whilst in custody, I consider that rehabilitation is a very relevant feature which, subject to the other purposes of sentence which must be balanced, should be facilitated. The current rehabilitation efforts by Mr Wolter should be supported. Nevertheless, it is necessary to acknowledge the harm done to the family of Mrs Ashley and to denounce the conduct which involved a high degree of negligence in the driving engaged in by Mr Wolter.

80. I note the matters set out in s 33 of the Crimes (Sentencing) Act and have set out what I know of these matters above. I have regard to them.

81. Mr Wolter does not come before the Court with an unblemished record. He has spent some time in custody. Indeed, he has been known to ACT Corrective Services since April 2013. Initially, his compliance with a Good Behaviour Order was satisfactory and, indeed, the supervision condition was, as permitted, terminated early.

82. Subsequently, he was the subject of a Deferred Sentence Order with a bail undertaking but his attendance for supervision was poor and he failed to satisfy the obligations of the Deferred Sentence Order, resulting in him being remanded in custody in May 2015. In June 2015, he was sentenced to a term of imprisonment but will be eligible for parole on 8 November 2015.

83. As a result, I will have to re-set a non-parole period which will be cancelled by the sentence that I must impose.

84. I accept that Mr Wolter is remorseful and that he has taken active steps to address his rehabilitation.

85. As a young man, he has obvious potential and much of his life left which, if he is genuinely committed to participating valuably in the community, should be encouraged.

86. I note that Mr Wolter has been assessed as not suitable for a community service work condition to a Good Behaviour Order. The reason is his history of illicit drug substance use in the community. Nevertheless, the Pre-Sentence Report stated:

Following consultation with the community service work team leader, it is considered that while Mr Wolter has taken steps to address his drug dependence in custody and maintained a period of abstinence, he has not demonstrated a period of community-based abstinence. Moreover, Mr Wolter is currently subject to a pharmacotherapy treatment which would likely hinder his capacity to participate wholly in community service work obligation.

He has also been assessed as suitable to serve a term of imprisonment by periodic detention and has signed the appropriate undertaking.

87. Nevertheless, it seems to me that the nature of the offending and the circumstances of Mr Wolter mean that no other sentence other than a term of imprisonment is appropriate.

88. The Crown accepts that the conduct of the trial was facilitated by Mr Wolter's co-operation. There was little challenge to the Crown case. The real issue was whether the conduct of Mr Wolter was negligent to the relevant degree.

89. I accept that there was a challenge to the effect of amphetamines on Mr Wolter's driving, but that was a genuine issue and I do not consider that the Crown has satisfied me beyond reasonable doubt that it was of the significance claimed. Thus, the issue did not compromise the findings that he has assisted in the administration of justice, a finding supported by the Crown.

90. Section 35A of the Crimes (Sentencing) Act permits me to give a sentencing discount in recognition of this factor and I will do so because of the way in which the case was conducted, amounting to assistance in the administration of justice. See R v Paton (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, SCC 353 of 2010, 2 December 2013) at p 7.

91. I have regard to sentencing practice. While decisions from other jurisdictions, especially New South Wales, are frequently cited, it is important to be careful of their applicability. There are different sentencing regimes in other jurisdictions and, while principles articulated in other places can be useful, it is important to apply Territory law, both statutory and common law.

92. Thus, decisions such as R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, and Bombardieri v The Queen [2010] NSWCCA 161; (2010) 203 A Crim R 89 and R v Wright (2013) 63 MVR 250, are useful to distil principles and relevant factors. They have limited use as to more specific comparison and, of course, do not bind this Court. It is clear from Monfries v The Queen (2014) 68 MVR 385 that they should be treated with respect from that jurisdiction.

93. My attention was also drawn to R v Creighton [2011] ACTCA 13, Monfries v The Queen, R v Paton and R v Kekalainen [2014] ACTSC 132. I had, in each case, the sentencing remarks made by the sentencer and I have read them carefully. Each has some similarities and some differences. My attention was also drawn to some decisions of the Court prior to the substantial increase in the maximum penalty from four years imprisonment to fourteen years imprisonment. Those cases provide little assistance, though there are some useful sentencing principles set out in them.

94. Each case has its own special features and care must be taken in comparing such cases, though past cases do provide "a yardstick against which to examine a proposed sentence": Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 536-537; [53]- [54].

1. I convict you of culpable driving causing death on 16 August 2013.

2. I sentence you to four years imprisonment to commence on 4 September 2015 to take into account pre-sentence custody.

3. I set a non-parole period of two years to commence on 4 September 2015 and to end on 3 September 2017.

4. Had you not facilitated the course of justice, I would have sentenced you to a period of imprisonment of four years and nine months with a non-parole period of two years and six months.

5. I convict you of driving whilst your licence was suspended.

7. I disqualify you from holding or obtaining a driver licence for a period of 8 years from today, 15 October 2015.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge.

Road Transport (Safety and Traffic Management) Regulations 2000(ACT)

(Sentencing) Act 2005

Transport (Driver Licensing) Act 1999

Transport (Safety and Traffic Management) Regulations 2000

(Sentencing) Act 2005

Transport (Driver Licensing) Act 1999

Transport (Safety and Traffic Management) Regulations 2000

Road Transport (Safety and Traffic Management) Regulations 2000(ACT)

R v Wolter

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (137 paragraphs)

R v Wolter (No 3) [2015] ACTSC 321 (15 October 2015)

Parties

Legislation Cited (12)

Cases Cited (7)