Shipton v R [2003] TASSC 23

Jurisic v R [1998] NSWSC 423; (1998) 45 NSWLR 209; R v Dowie [1989] TASSC 44; [1989] Tas R 167, referred to.

1 The appellant pleaded guilty to one count of manslaughter and was sentenced on 5 August 2002 to seven years' imprisonment with effect from 31 January 2002. He had been taken into custody on the day of the crime, namely 10 October 2001, but was subsequently sentenced to a period of imprisonment for other summary offences. The time in custody in respect only of this offence was calculated to have effectively commenced on 31 January 2002. The learned sentencing judge ordered that he not be eligible for parole before the expiration of five years from the last-mentioned date. He appeals against his sentence on the grounds that the sentence is manifestly excessive and that the learned sentencing judge erred in the exercise of his discretion by fixing a specific non-parole period. Had he failed or declined to do so, then the appellant would have been entitled to apply for parole at the expiration of one-half of his sentence, as the amendment to the Sentencing Act 1997 ("the Act"), s17(3A), did not commence until 1 October 2002.

2 This was a case of motor manslaughter, the particulars specified in the indictment being as follows:

"TROY ASHLEY SHIPTON at Dilston in Tasmania on or about the 10th of October, 2001 unlawfully killed Marian Josephine Elliget when having control of a when having control of a motor vehicle he failed to take reasonable care to avoid danger to human life, such omissions amounting to culpable negligence and thereby causing the death of Marian Josephine Elliget.

The following particulars of culpable negligence are alleged:

(a) Driving a vehicle when his capability was effected by the consumption of alcohol;

(b) Failing to keep as near as practicable to the left side of the road;

(d) Driving at an excessive speed in the circumstances;

(e) Failing to take reasonable precautions to avoid a collision;

(f) Failing to maintain proper control of the vehicle."

It was an appalling case of reckless driving which extended over a period of about 1½ hours during which time the appellant, who was severely affected by alcohol, imperilled numerous members of the public before overtaking a vehicle at a speed in excess of that permitted on that section of the road and drifting across two on-coming traffic lanes before colliding with a vehicle travelling in the opposite direction in its extreme left hand lane. The driver, a mother of two children aged 11 and 13 years, was fatally injured and died shortly after her arrival in hospital. She suffered massive lower limb injuries and had to be cut out of the wreckage of her car. The appellant's own partner, who was a passenger in his vehicle, was 33 weeks pregnant and lost the child in the accident.

3 The learned sentencing judge described the sequence of events as follows in his comments on passing sentence:

"Mr Shipton commenced his journey soon after 3pm on 10 October 2001. He had as a passenger his girlfriend then 33 weeks' pregnant. He was intoxicated, returning a blood alcohol reading of .203 some hours subsequent. The presence of a pregnant partner as a passenger in no way caused him to postpone his journey, nor modify his conduct.

At 3.30pm, his vehicle knocked over a sign adjacent to a small shop at which the offender stopped. The offender was staggering as he visited the shop and his general condition and manner of driving caused the shopkeeper to attempt to notify police. At the same place, Mr Shipton nearly pinned a Ms Flynn to a guard rail.

At approximately 4.10pm, Mr Shipton was seen at a supermarket in Mowbray in a drunken state and urging his partner to hurry up. At 4.20pm, he was further seen at a nearby Pizza Hut intoxicated.

Between about 4.40pm and the time of the fatal collision, the offender drove in such a manner and speed that he endangered the lives of numerous motorists. At about 4.55pm, he attempted to pass a Honda sedan on its inside, endangering the driver and her two young children. It continuously swerved from side to side, attempting to pass another vehicle at a dangerous part of the road and continuing on in the face of an oncoming log truck. He passed a further vehicle and in this portion of the observed driving, endangered the lives of the drivers and occupants of at least four vehicles over a distance of some kilometres. Two of those drivers were so alarmed about future danger to others that they attempted to notify police.

At about 5pm, Mr Shipton had almost reached the township of Dilston. He passed another vehicle containing a mother and her two children and accelerated away from her vehicle. His vehicle exceeded the speed limit and travelled at such a speed and in such a manner that a number of persons in the area were spared, only by fate, from death or injury.

Shortly thereafter, Mr Shipton struck Marian Elliget's Mitsubishi Starwagon as she drove from Lefroy to Launceston. He had veered to the right and, despite attempts by the Mitsubishi to avoid collision, struck that vehicle at its front. The force of impact caused extensive injuries to Marian Elliget and she died shortly after the accident. In the opinion of the accident investigating officer, the speed of the driver's vehicle was 92 km/h.

The accident caused the death of the unborn child, of whom the offender was the father.

The course of driving which took the life of a woman, deprived children of a mother and a partner of his beloved, was prolonged and committed in the face of clear evidence known to the offender that he was intoxicated. The death was a product, not of a terrible misjudgment, but the end result of criminal behaviour committed for over one and a half hours. The conduct, by the very randomness of the eventual victim, touches and awakens the deepest and darkest fears of every responsible user of the roads and members of their families. In this case, a number of persons going about their ordinary lives were imperilled by that conduct and the randomness of the eventual victim is in itself an horrific consequence."

4 The appellant was aged 26 years at the time of the offence. He was a disqualified driver at that time and was awaiting trial on three counts of driving while disqualified, which offences had occurred on 26 July 2000, 4 August 2000 and 8 July 2001, only three months earlier. On the last of these occasions, he was driving with a blood alcohol reading of 0.102 per cent. He was convicted of these offences three weeks after committing the manslaughter. Prior to these convictions, he had been convicted in 1992 of exceeding 0.05 per cent and speeding by more than 35 kilometres per hour in excess of the speed limit; in 1993 of driving with alcohol in his body without authority; in 1997 of a similar offence on two occasions, the concentrations being 0.161 per cent and 0.129 per cent and on a third occasion of driving under the influence of alcohol; and in 1999 of driving while disqualified. He has four additional convictions for driving without a licence and a not insubstantial criminal record for burglary, stealing, assault and drug offences. Included in his record of prior transgressions are a failure to comply with a work or community service order and two separate breaches of suspended sentences. The learned sentencing judge recorded that:

"A psychiatric assessment suggests that he has limited intellectual capability, has a long standing problem with alcohol and drug abuse, shows traits of anti-social and avoidant personality and was immature. His offences for repeated drink driving, especially that leading to his conviction on 16 December 1997 [driving under the influence of alcohol], show a person with absolute disdain for traffic law or the risk to the life and safety of others."

5 The appellant indicated to the prosecutor on the last working day before the trial was due to start, with some 30 witnesses already summoned, that he would plead guilty. The learned sentencing judge said that some, but little, effect would be given to his plea on utilitarian grounds and that he accepted that the appellant was then remorseful for his actions.

6 Counsel for the appellant, while conceding the gravity of his client's misconduct, its appalling effect and the relevant paucity of any mitigating factors, submits that a sentence of seven years' imprisonment so far exceeds sentences for manslaughter arising out of the culpably negligent driving of a motor vehicle previously imposed by this Court in this jurisdiction, that this is a powerful factor to be taken into account in determining whether or not the sentence is manifestly excessive and that it ought at least to put the Court on enquiry (see Burton [2002] TASSC 64 at par42 per Slicer J). Furthermore, it is desirable to achieve consistency in punishment (ibid, at par22 per Crawford J). Counsel concedes that the mere fact that the sentence falls outside the range of sentences for crimes of a similar type is not determinative of the existence of error. This is in accordance with the view expressed by Wright J in R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 185, to the following effect:

"For my part I have considerable difficulty with the notion that to enable sentencing consistency, which is of course one of the primary aims of a sentencing judge, (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at pp 610 - 611 per Mason J), the parameters apparently indicated by sentences actually imposed in previous cases for similar crimes, constitute some sort of a framework within which the impending sentence must fit or be seen to be manifestly inadequate or excessive, as the case may be."

I agree with this view and with that expressed by Wright J, at 186:

"A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, especially if it illuminates the dispositions made where a particular type of relationship exists (see Tracey & Ors v The Queen [1987] Tas R 108), but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances."

7 The statistical data placed before the Court in this case does show that no sentence imposed for motor manslaughter in this jurisdiction in the last 25 years has exceeded three years' imprisonment. However, a similar significant variation from what had been previously imposed for murder reduced to manslaughter by reason of provocation did not persuade the Court of Criminal Appeal in Kiernan v R, unreported, A80/1968 that a sentence of 12 years' imprisonment was manifestly excessive. At 16 - 17 of his reasons for judgment, Neasey J said:

"Learned counsel for the applicant also contended that the 12 years sentence imposed greatly exceeded any sentence imposed for manslaughter by the Supreme Court of this State in recent years in cases in which reduction from murder by way of provocation was a reasonable hypothesis. It is true that in the more recent cases, of which there are not many, and in all of which I think there was a single killing, 7 years seems to have been a maximum. Within the post-war period, however, considerably longer sentences have been imposed. I support the view that as a general rule, insofar as it is possible to do so, similar punishments ought to be imposed for similar crimes. But the possibility is inevitably limited and circumscribed. For crimes which are common, and which occur from week to week without a great deal of variation in the circumstances in which they are committed, such as in this community breaking entering and stealing, it is possible to set a fairly standardised upper limit of punishment; and this Court has followed that policy. The lower limit of course in such cases will vary according to the character and circumstances of the offender. That must be so, since the objectives of reform and rehabilitation are so important.

But where the circumstances in which a given crime is committed tend to vary greatly, it is difficult to apply any standardised upper limits of punishment other than those which the law prescribes."

8 In Jurisic v R [1998] NSWSC 423; (1998) 45 NSWLR 209 at 223, Spigelman CJ said:

"The seriousness with which society regards offences - reflected in the maximum permissible penalties, as amended from time to time - is an important consideration in sentencing decisions. Significant disparity between public opinion and judicial sentencing conduct will eventually lead to a reduction in the perceived legitimacy of the legal system."

9 In this jurisdiction where, since the enactment of the Criminal Code in 1924, the maximum sentence of imprisonment is a term of 21 years, apart from some crimes such as murder which can attract higher sentences, the legislature does not have the same opportunity to express the public's concern in respect of penalties for specific anti-social behaviour such as motor manslaughter by increasing the maximum penalty which, within the overall range of 21 years, the experience of the Court might indicate as that appropriate to the worst case of such a crime. Nevertheless, legislative concern at the unacceptable road toll caused by irresponsible driving due to excessive speed or alcohol consumption, to name but two factors, has found expression in the creation of certain additional offences against road safety, the facilitation of trial on indictment for some of them, thereby bringing them within the penalty regime of the Criminal Code, and the increase of maximum permissible penalties for those dealt with summarily. Examples are:

* the introduction in 1975 into the Criminal Code (with penalty at large in consequence) of the crime of causing death by dangerous driving (s167A);

* the introduction in 2000 into the Criminal Code (again with penalty at large) of the crime of causing grievous bodily harm by dangerous driving (s167B);

* the introduction in 2000 into the Traffic Act 1925 of the offence of negligent driving causing death, with a maximum penalty of a fine and/or imprisonment for one year for a first offence and one of an increased fine and/or two years' imprisonment for a subsequent offence (s32(2A));

* the introduction in 2000 into the Traffic Act of the offence of negligent driving causing grievous bodily harm, with a maximum penalty of a fine and/or imprisonment for six months and one of an increased fine and/or imprisonment for 12 months for a subsequent offence (s22(2)(b)); and

* increased penalties under the Road Safety (Alcohol and Drugs) Act 1970. When first enacted, the maximum penalty by way of imprisonment for driving under the influence of alcohol contrary to s4 of that Act was one of six months for a first offence and 12 months for a subsequent offence, while that for exceeding the prescribed concentration of alcohol in the blood contrary to s6(1) thereof was one of one month for a second offence and of three months if the offender had more than one prior conviction. Imprisonment was not an option for a first offence. In 1991, mandatory minimum financial penalties and penalties by way of disqualification were introduced in tabular form and the maximum period of imprisonment for driving under the influence of alcohol was doubled and increased to twelve months for a first offence and 24 months for a subsequent offence, while for exceeding the prescribed concentration of alcohol in the blood, the period of possible imprisonment was increased from nothing to 12 months for a first offence and increased eight-fold to 24 months for a subsequent one.

10 This series of legislative increases in the potential for punishment is a clear indication that the public, through their representatives, regard bad cases of misconduct in the management of motor vehicles as a serious problem requiring considerably higher penalties than in the past. The desirability of maintaining in the public interest consistency of punishment cannot be allowed to outweigh the public interest in safeguarding road users against reckless drivers, especially where Parliament so manifestly demonstrates its concern in this respect.

11 In Jurisic (supra), the Court of Criminal Appeal of New South Wales delivered a guide-line judgment in respect of the offences of dangerous driving causing death or grievous bodily harm under the Crimes Act 1900 (NSW), s52A. Among the aggravating factors listed by Spigelman CJ at 231 are:

* Length of the journey during which others were exposed to risk.

All were present in this case and alluded to by the learned sentencing judge. He concluded:

"In a case such as this, the nature of the criminal conduct, its consequence and the need for general deterrence and retribution require less weight to be given to subjective mitigating matters (Punch (1993) 67 A Crim R 46). In cases of manslaughter involving motor vehicles, the need for general deterrence is of greater importance than matters purely personal to the offender (McKenna (1992) 63 A Crim R 452."

I agree and would add that the protection of the public is a significant factor in determining the length of an appropriate sentence in this instance. The appellant has demonstrated by his amassing of eight convictions since 1988 for driving without a licence or driving while disqualified that the lack of a licence is no deterrent to his driving. Provided the sentence does not offend the principle of proportionality, protection of the public is clearly a matter relevant to sentence (Veen v R (No 2) (1987 - [1988] HCA 14; 1988) 164 CLR 465 at 475). The principle finds legislative reinforcement in the Act, s3, which states that one of its purposes is to "promote the protection of the community as a primary consideration in sentencing offenders".

12 This case was undoubtedly one within the worst category of motor manslaughter cases and deserving of severe punishment. There were few mitigating factors. Notwithstanding the fact that a sentence of seven years' imprisonment does indicate a significant departure from the previous sentencing practice of the Court for motor manslaughter, it was, in my view, warranted in the circumstances of this case. It was not manifestly excessive.

13 As to parole, the learned sentencing judge clearly had a discretion to impose a specific non-parole period in excess of one-half of the head sentence even though at the time he was not under the obligations imposed by the Act, s17(3A). In exercising the discretion whether or not to impose a non-parole period in excess of one-half of the sentence, and if so of what duration, the Act, s17(4) enables the Court to:

"... have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:

(c) any other sentence to which the offender is subject."

Both matters specified in pars(a) and (b) were applicable here, it being a very bad example of the offence and the antecedents and character of the appellant indicating, as his Honour found, an absolute disdain for traffic law and the risks his driving posed to the life and safety of others. In my view, there was ample justification for the setting of a non-parole period. One of 18 months in excess of the statutory minimum but still two years short of the head sentence (ignoring remission) was within the proper exercise of the learned sentencing judge's discretion. I would dismiss the appeal.

14 I have had the advantage of reading the reasons for judgment prepared by Cox CJ and Blow J and agree that the appeal should be dismissed.

15 The appellant's conviction for manslaughter resulted from a truly appalling period of reckless driving which culminated in the death of a 46 year old woman and caused the appellant's pregnant partner, a passenger in his vehicle, to lose their child.

16 In the determination of what was an appropriate penalty for the appellant's crime a most significant matter was his past failure to heed efforts made to keep him from driving a motor vehicle with alcohol in his body. When the crime was committed, the appellant was disqualified from driving and was the subject of three outstanding charges of driving whilst disqualified. The last of these charges related to the appellant driving with a blood alcohol reading of .102 per cent about three months prior to the tragic incident which is the subject of the appellant's manslaughter conviction. The appellant having shown himself to be incorrigible, it was incumbent upon the learned sentencing judge to impose a penalty which protected the community from the appellant's driving. It must be borne in mind that a primary consideration when sentencing an offender is the protection of the community; the Sentencing Act 1997, s3(b).

17 Whilst I find statistical data on sentences imposed for a particular type of crime to be of considerable assistance in assessing the appropriateness of a penalty, the reliance which should be placed on the data is greatly reduced when considering a sentence imposed on an offender whose incorrigibility is so well demonstrated as to make a long period of incarceration the only means of protecting the community from the repetition of his criminal conduct. In my view, the sentence imposed on the offender was justified and was not manifestly excessive.

18 The appellant was convicted of manslaughter and sentenced to 7 years' imprisonment, with an order that he not be eligible for parole until 5 years from the commencement of his sentence. He contends that the sentence was manifestly excessive, and that the learned sentencing judge ought not to have made an order fixing a non-parole period. When he was sentenced, the Sentencing Act 1997, s17, had not been amended. Without an order fixing a non-parole period, he would have been eligible for parole after serving half his sentence. He was also disqualified from driving until further order - something that can be done under the Sentencing Act, s55(2)(a). There is no challenge to the disqualification order in this appeal.

19 The appellant committed the crime of manslaughter as the driver of a motor vehicle. In the words of the indictment, "when having control of a motor vehicle he failed to take reasonable care to avoid danger to human life, such omissions amounting to culpable negligence and thereby causing ... death". By virtue of the Criminal Code, ss156(2)(b) and 159, the crime of manslaughter is committed when death is caused "by an omission amounting to culpable negligence to perform a duty tending to the preservation of human life".

20 The Court of Criminal Appeal of New South Wales published a guideline judgment concerning sentencing for "dangerous driving causing death" in R v Jurisic [1998] NSWSC 423; (1998) 101 A Crim R 259. In that case, at 277, Spigelman CJ listed a number of factors relevant to sentencing in such a case, as follows:

(vii) Length of the journey during which others were exposed to risk.

It is convenient to use this list of factors as a starting point for the purpose of considering how wicked a crime the appellant committed. All such factors except the last are relevant.

21 The appellant caused a head-on collision. A woman driving the other vehicle was killed. She did not die instantly. She remained conscious at the scene but was no doubt in shock. In the words of one witness, "The steering wheel was completely into her abdomen". A pathologist who conducted a post-mortem examination reported severe comminuted compound fracturing to both lower limbs with associated lacerations, disrupted pubic symphysis, and retroperitoneal and intraperitoneal haemorrhage. He stated the cause of death as "shock and haemorrhage due to severe lower limb/pelvic and abdominal injuries". The deceased died a painful death. She was 46 years old. She was survived by her two children, aged 13 and 11, and their father.

22 The appellant's girlfriend was travelling with him in the front seat of his vehicle. She was 33 weeks pregnant. She lost her baby as a result of the collision. Passing motorists and rescue workers assisted at the scene of the collision. This was no doubt an upsetting experience for some, if not all, of them, but there is no suggestion that any individual has suffered any lasting psychological damage as a result.

23 The appellant had been driving drunkenly and dangerously over a period of about 80 minutes prior to the collision. As he was driving away from a bakery, he nearly ran over a woman who had just alighted from her car. She had to jump out of the way. About ten minutes before the collision, a woman driving with her two children noticed the appellant tailgating her vehicle, and swerving from the right side of her car to the left side of it, as if wanting to pass it on either side. Eventually he crossed some unbroken double white lines and overtook it. Shortly afterwards, another motorist noticed that the appellant was all over the road, and pulled well over to the left to let him pass. It seems clear that, in the course of his journey, the appellant must have endangered many other people - drivers, passengers, and at least one pedestrian.

24 At the time of the collision, the appellant was travelling at about 92 kilometres per hour. The speed limit was 80 kilometres per hour. About ten minutes before the collision, when he crossed double white lines to overtake, the overtaken vehicle was travelling at 100 kilometres per hour, which was the speed limit for that area.

25 There is no suggestion that the appellant was affected by anything other than alcohol. A blood sample taken pursuant to the Road Safety (Alcohol and Drugs) Act 1970 revealed a blood alcohol content of 0.203 grams of alcohol per 100 millilitres of blood. Various witnesses made observations which establish that the appellant was severely intoxicated. His vehicle collided with a sign at the edge of the roadway when he was leaving the bakery. He subsequently went to a supermarket. One witness there noticed that the appellant could not walk properly, and appeared to be unable to get his legs to go where he wanted them to. Another observed that the appellant was very staggery, and could not stand up by himself. The manner of the appellant's driving speaks for itself. The collision occurred on a straight section of highway in open country. The highway had one northbound lane and two southbound lanes. The appellant was travelling north. He pulled out from the northbound lane to overtake, but drove in such a manner that the rear of his vehicle began to slip out to his left. He then oversteered to the left, with the result that the rear of the vehicle began to slip out to his right. While doing this, he crossed the centre lane, and continued in the lane on his far right, in which the deceased was travelling. His rear right tyre had moved out onto the right hand grass verge before the collision. At impact, his vehicle was pointing about 25 degrees to the left of his intended direction of travel.

26 From what I have already said, it is clear that the appellant had been driving very erratically throughout his journey.

27 The appellant was travelling faster than other vehicles on the road, and was overtaking them, but there is no suggestion that he tried to engage in any racing. One witness observed that the appellant did "a bit of a screechy" as he left the bakery. Another observed that he did two "wheelies" after he left the supermarket.

(vii) Length of the journey during which others were exposed to risk

28 As I have said, the journey lasted some 80 minutes. That represents the period from the appellant's departure from the bakery to the time of the collision. He was not driving for all of that time, since he stopped briefly at the supermarket.

29 There is no suggestion that anyone spoke to the appellant about the wisdom of not driving, but it is clear that he ignored a number of events that should have acted as warnings to him. He collided with the sign at the bakery. He nearly hit the pedestrian there. He had trouble standing up at the supermarket.

30 The appellant had five prior convictions for drink driving offences. In December 1997 he was sentenced to a total of three months' imprisonment in respect of two of them. In March 1999 he was given a suspended sentence for driving whilst disqualified. He has other prior convictions for breaching bail conditions, unlicensed driving, giving a false name to a police officer, hindering his conveyance to a police station, failing to stop at the direction of a police officer, leaving the State without permission when on probation, consuming liquor in a moving vehicle, assault, carrying an open container of liquor in a central area, possessing stolen property, resisting a police officer, assaulting police, threatening police, injuring property, destroying property, speeding, minor drug offences, failing to attend a work order, burglary, stealing, motor vehicle stealing, receiving, and minor traffic offences. He had twice been dealt with for breaching the conditions of suspended sentences. When he committed this crime on 10 October 2001, he was already disqualified from driving until the year 2005. Whilst he had received a number of suspended sentences, he had only been sentenced to actual imprisonment on the one occasion that I have referred to. On that occasion he was also sentenced to a cumulative term of one month for breaching bail conditions, making a total of four months.

31 To make matters worse, there were some serious traffic charges pending against the appellant when he committed this crime. He must have been on bail in relation to them. He was convicted of them on 1 November 2001, three weeks after committing this crime. Those offences included three of driving whilst disqualified, committed on 26 July 2000, 4 August 2000, and 8 July 2001. The fourth offence was one of driving with alcohol in his body on 8 July 2001. His blood alcohol concentration then was 0.102 per cent.

32 To make matters worse, driving on the day he committed this crime constituted a breach of the conditions of a suspended sentence of 14 days' imprisonment that was imposed on the appellant on 26 March 1999. That sentence was suspended on condition that he commit no offence under the Road Safety (Alcohol and Drugs) Act for three years. By driving whilst disqualified, he contravened s19A of that Act. By driving under the influence of alcohol to the extent that he was incapable of having proper control of his vehicle, he contravened s4(a) thereof. By driving with alcohol in his body, he contravened s6(2).

33 There was little for the learned sentencing judge to take into account by way of mitigation. The appellant pleaded guilty, but the Crown was not advised of his intention to do so until about 4pm on a Friday, when preparations had been made for his trial to start at 10am on the following Monday, with dozens of Crown witnesses to be called. A psychologist's report revealed he had an intelligence quotient of 84. A psychiatrist reported that he had been abusing alcohol since his early teens; that he was of borderline intellect and educationally backward; that these matters had adversely affected his self-esteem; that he appeared to be genuinely remorseful; that he was undertaking measures to correct his problems; and that he appeared to have some redeeming features in his make-up, including feelings of loyalty to his de facto wife and children, and a desire always to do a good day's work. It also appears that the appellant was suffering from some symptoms of post-traumatic stress disorder as a result of the collision.

34 Counsel for the appellant rightly conceded that this is a very serious case of motor vehicle related manslaughter, but relied heavily on the fact that a sentence of over three years' imprisonment for such a crime in Tasmania is unheard of. Since 1978, sentences in Tasmania for manslaughter by culpable negligence in the use of a motor vehicle have ranged from 12 months to 3 years' imprisonment: Warner, Sentencing in Tasmania, 2ed, par11.219. Counsel did not refer us to any similar Tasmanian case before 1978 in which any longer sentence was imposed. Whilst every case depends upon its own facts, it is fair to say that the facts of some of the Tasmanian "motor manslaughter" cases to which we were referred were not greatly different from the facts of this case.

35 There is a need for consistency in criminal sentencing. In Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310, Barwick CJ said:

"No doubt, consistency in the sentences imposed by the judges of the District Court is a desirable feature of criminal administration. Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle."

In Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611, Mason J (as he then was) said:

"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."

36 However, it is by no means essential that a sentence falls within the normal range. In R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 186, Wright J said:

"A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State, ... but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances."

37 These principles have been applied in recent sentencing appeals: Mansell v R [2001] TASSC 73; Burton v R [2002] TASSC 64.

38 Counsel for the Crown referred us to a number of comparable cases in other Australian jurisdictions in which substantial prison sentences have been imposed. It is necessary to be cautious when having regard to sentencing decisions in other States because of different sentencing regimes and practices. However, I think this is a case in which it has been of assistance to have had information as to sentencing in comparable cases in other jurisdictions.

39 In New South Wales, the Court of Criminal Appeal decided in Jurisic (supra) that, upon a plea of guilty, whenever there was present to a material degree any aggravating factor involving the conduct of the offender, in effect, a head sentence of less than 3 years on a charge of dangerous driving causing death should be exceptional. A sentence in New South Wales is comprised of a minimum term and an additional term. Under the Sentencing Act 1989 (NSW), s5(2), which was then in force, the additional term was not to exceed one third of the minimum term unless there were special circumstances. Thus, what a Tasmanian court would regard as a head sentence of 3 years would ordinarily include a minimum term of at least 27 months.

40 We were referred to a decision of the Victorian Court of Appeal, R v Scholes [1998] VSCA 17. The respondent in that case had been on parole in relation to an earlier conviction for culpable driving involving the death of a pedestrian. When driving erratically, and with a blood alcohol reading of 0.078 per cent in excess of the speed limit, and at a time when his licence was suspended, he collided with another vehicle, causing the death of two passengers in his vehicle. He moved the body of a dead woman into the driving seat and claimed that she had been driving. At first instance he was sentenced to 6 years' imprisonment. On a Crown appeal, that sentence was increased to 8 years' imprisonment, with 6 years to be served before eligibility for release on parole. That case was plainly more serious than this one.

41 We were also referred to two Queensland cases. In R v Vessey [1996] QCA 11, the respondent was sentenced at first instance to 6½ years' imprisonment, with a recommendation that parole be considered after 26 months. On a Crown appeal, his sentence was increased to nine years' imprisonment, with a recommendation that parole be considered after 4 years. The respondent was a disqualified driver, with a bad record for offences involving high concentrations of alcohol. His blood alcohol concentration was measured at 0.2 per cent some 1½ hours after the fatal collision. He drove on the wrong side of the road for 150 metres before the collision, causing another driver to take evasive action, and then drove through a give way sign, colliding with another vehicle, whose driver was killed. The other Queensland case to which we were referred was R v Burton (unreported, Court of Criminal Appeal, CA 91 of 1983). The facts of that case are referred to in Vessey (supra) and in a report of a subsequent application by the respondent for the removal of his disqualification from driving: Burton v Commissioner of Police (Qld) (1990) 10 MVR 329. At first instance Mr Burton was sentenced to 4 years' imprisonment. On a Crown appeal, his sentence was increased to 10 years. He had driven a loaded semi-trailer through three red lights, forcing other vehicles to take evasive action. A collision occurred when he drove through a red light at a major intersection and killed a mother and child in another vehicle. His blood alcohol concentration was 0.13 per cent. He had a bad traffic record.

42 We were also referred to a Western Australian case, R v White [2000] WASCA 118. At first instance, the respondent in that case was sentenced to 2 years' imprisonment, with eligibility for parole. On a Crown appeal, that sentence was increased to 4 years' imprisonment, with eligibility for parole. The respondent was an unlicensed driver with four alcohol related convictions and four convictions for driving without a licence. His blood alcohol concentration was 0.138 per cent at the time of the collision. He drove erratically along suburban streets, and collided with a tree. One of his passengers, who had not been wearing a seat belt, died as a result.

43 In my view these cases suggest that, at least according to the standards of other Australian States, the appellant's sentence and a non-parole period would not be regarded as manifestly excessive.

44 Since the Criminal Code does not create a separate crime of "motor manslaughter", it is appropriate to have regard to the range of sentences that have been imposed for the crime of manslaughter in other circumstances. Professor Warner's research has revealed that Tasmanian sentences for manslaughter between 1978 and 2000 have ranged from 9 months to 10 years: Sentencing in Tasmania (supra), par11.209. Of course, the crime of manslaughter can be constituted by a deliberate killing after provocation, or by an intentional act when death is an unintended and unforeseen consequence. Given the range of sentences that have been imposed in Tasmania in manslaughter cases generally, the serious aggravating factors in this case, and the weakness of the mitigating factors, I do not think it can be said that a sentence of 7 years' imprisonment is disproportionate for this crime.

45 From another perspective, I think this crime was almost as evil as a murder within the scope of the Criminal Code, s157(1)(c). Under the second limb of that provision, "culpable homicide is murder if it is committed ... by means of any unlawful act ... which the offender ... ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person". Self-induced intoxication is irrelevant when considering what an accused person ought to have known as to the consequences of his or her conduct: Attorney-General's Reference No 1 of 1996 (1997) 7 Tas R 293. In this case, it was unlawful for the appellant to drive because he was a disqualified driver, and because he was under the influence of alcohol. His driving was inherently dangerous. He was driving in such a manner that his driving was likely to cause death if he did not stop or slow down. He ought to have thought about the consequences of continuing to drive in the way he had been. If he had thought about that, he ought to have realised that he was likely to cause a fatal collision. There is little difference between his moral culpability and that of a person who commits the crime of murder within the scope of the second limb of s157(1)(c).

46 Having regard to all the matters that I have referred to, particularly the aggravating factors relating to the appellant's antecedents and his dangerous erratic drunken driving, I do not think a sentence of 7 years' imprisonment was manifestly excessive, despite it being well outside the normal range of sentences for such crimes in this State. I turn to the challenge to the order concerning parole.

47 The most favourable course that the learned sentencing judge could have taken in relation to parole would have resulted in the appellant's non-parole period being half his sentence, ie 3½ years: Corrections Act 1997, s68(1). The non-parole period of 5 years is equal to about 71 per cent of the head sentence of 7 years. In determining how to exercise his discretion as to a non-parole period, the learned sentencing judge was entitled to have regard to such matters as he considered necessary or appropriate, including the nature and circumstances of the offence, the appellant's antecedents or character, and any other sentence to which the appellant was subject: Sentencing Act, ss17(4) and 18(2). A sentencing judge should "give weight to his estimate of the capacity of the prisoner for reformation": Power v R [1974] HCA 26; (1974) 131 CLR 623 at 629. Another relevant consideration is the possibility of "protecting the public from further criminal conduct by the prisoner by keeping him locked away": Gill v R 34/1990, per Crawford J (with whose reasons Neasey J agreed), at 7. Despite the faint optimistic comments in the psychiatric report, it is evident from the appellant's record of prior convictions that he has shown no sign of learning from experience that he should not commit drink driving offences. Despite the fact that his drunken driving put at risk his life and the lives of his girlfriend, their unborn child, and other road users, he persisted in dangerous driving over a lengthy period. It is apparent that his "capacity for reformation" is low. If ever there was a "motor manslaughter" case where the need to protect the public warranted a substantial non-parole period, this was it.

48 An order fixing a non-parole period "forms, for all purposes, part of the sentence to which it relates": Sentencing Act, s17(5). In my view, neither the 7-year sentence, nor the 5-year non-parole order, nor the combination of the two was manifestly excessive.