Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by Attorney-General or other Crown Law Officer - Application to increase sentence - Offences against the person - Manslaughter caused by culpably negligent driving.

Shipton v R [2003] TASSC 23, applied.

Jurisic v R [1998] NSWSC 423; (1998) 45 NSWLR 209, discussed.

Judgment Number: [2004] TASSC 54

2 Sentence of 18 months' imprisonment, 9 months non-parole period quashed.

3 In lieu thereof a sentence of 3 years' imprisonment to commence on 20 February 2004.

1 The respondent pleaded guilty to one count of manslaughter and one count of causing grievous bodily harm. He was sentenced to 18 months' imprisonment. Licence disqualification, and a nine month non-parole period was ordered. The Director of Public Prosecutions has appealed against this sentence upon the ground that it is manifestly inadequate.

2 The respondent was 18 years old, both at the time of the commission of the crimes and at the time of sentence. About 11pm on 6 July 2003, the respondent drove his car south along Elizabeth Street, Hobart from outside a shop opposite the Elizabeth College, towards the Hobart central business district. In the car with him were Jarrod Gray, aged 17, in the front seat, and James Boyd, aged 16, in the back seat. The respondent was then the holder of a provisional driver's licence.

3 At the same time, a friend of the respondent, Corey Castle, who was aged 17 years, and also the holder of a provisional licence, was driving another car. Castle had with him three male passengers, a 13 year old in the front seat and a 16 year old and a 12 year old in the back seat.

4 The two drivers raced each other as they went down Elizabeth Street, towards its junction with Liverpool Street, crossing all the intersections with green lights. Speeds in excess of 80 kilometres per hour were reached. At one intersection, the respondent attempted to overtake Castle on the inside, but had to drop back because his path was blocked by a parked car. The respondent attempted this manoeuvre at another intersection and this time was successful. In doing so, he forced Castle onto the incorrect side of Elizabeth Street. As the two cars approached the junction with Liverpool Street, the 12 year old rear seat passenger in Castle's car sat on the window with the whole of the upper part of his body outside the car.

5 Both cars stopped in obedience to the red light at the junction of Elizabeth and Liverpool Streets. There, the two drivers discussed which car was the fastest. When the lights turned green, both vehicles turned right and raced off west along Liverpool Street, towards its intersection with Harrington Street. The respondent was in the left lane and Castle was in the right. Speeds up to 100 kilometres per hour were reached as they hurtled though the Murray Street intersection with a green light.

6 As the vehicles went past the junction with Watchorn Street, the lights at the intersection of Liverpool and Harrington Streets were showing red. Castle moved to the left lane, slowed and came to a stop at the intersection.

7 The respondent did not reduce his speed at all. His rear seat passenger called out to him. The respondent said he does not recall hearing this. He entered the intersection at about 100 kilometres per hour and hit a vehicle being driven north along Harrington Street. There was an appalling collision. The driver of the vehicle on Harrington Street was lawfully crossing the intersection with the green light. He died of massive chest injuries shortly after being cut free from his vehicle. The respondent's front seat passenger also suffered massive injuries. He was taken to hospital unconscious. He was still unconscious at the time of sentencing, seven months after the crash, and counsel informed the Court that he remains unconscious, now nearly twelve months after the event. Should he regain consciousness, his prognosis is bad. He will be totally dependent on others for the rest of his life. The rear seat passenger in the respondent's car suffered the relatively minor injury of a fractured collarbone.

8 The respondent's criminal conduct destroyed two lives and had a devastating effect on the families of the deceased and the unconscious boy. Approximately ten days prior to the commission of these crimes, the respondent was served with an infringement notice for travelling at 112 kilometres per hour in a 50 kilometre per hour zone. However, apart from that, the respondent was of good character. At the time he committed the crimes, he was a year 13 student at Rosny College. His home background is good and his prospects for successfully completing tertiary education appear to have been reasonable. At the time of the commission of the crimes, his driving experience was limited to about seven or eight months.

9 For the appellant, Mr Coates SC submitted that the circumstances surrounding the commission of the crimes was so bad, that notwithstanding the respondent's youth and prospects, a sentence of 18 months' imprisonment was manifestly inadequate. He contended that to restrict the relevant "tariff" to cases of manslaughter involving a motor vehicle was an inappropriate approach and regard should be had to cases of manslaughter generally. Further, Mr Coates submitted that in the light of this Court's decision in Shipton v R [2003] TASSC 23, the prevailing standard of penalties for manslaughter involving culpably negligent driving of a motor vehicle should be increased.

10 Mr Chopping, who appeared as counsel for the respondent, contended that the penalty was in the median range of penalties imposed in cases of manslaughter involving a motor vehicle and therefore reflected a proper exercise of the sentencing discretion.

11 According to Professor Warner's Sentencing in Tasmania, (2nd edn) at par11.219, from 1978 to 1989, penalties for manslaughter involving the use of a motor vehicle ranged from 12 months to 36 months, with 15 months being the median. The learned author noted that there were only seven such sentences during the decade commencing 1990 and they ranged from 1 to 2 years, with 18 months being the median.

12 I have examined the Court's record of sentences imposed for manslaughter involving the culpably negligent driving of a motor vehicle over the last ten years. There are eight such sentences. Leaving to one side the case of Shipton to which I shall refer in a moment, in four cases a sentence of 18 months' imprisonment was imposed, in one case the sentence was 12 months, in one case it was 15 months, and in the last, the sentence was 2 years' imprisonment.

13 Although this was a very bad case of culpable negligence with many aggravating features, and involved an additional count of causing grievous bodily harm, a sentence of 18 months' imprisonment is clearly one that falls within the range set by other cases involving death caused by culpably negligent driving of a motor vehicle.

14 Consistency in punishment is a fundamental tenet of the criminal justice system. I venture to repeat the oft quoted words of Mason J (as he then was) in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611:

"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."

15 However, consistency in punishment does not necessarily mean slavish adherence to any so called "tariff". In R v Dowie [1989] TASSC 44; [1989] Tas R 167, Wright J said, at 185 - 186:

"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 pp610-611 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 subscribe to the view enunciated by Adam and Crockett JJ in R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 at p299, where they accepted that it is the seriousness of the criminal conduct, rather than the category of crime of which the offender has been convicted, which is of paramount importance. This view is not inconsistent with the approach taken by the Court in Lovegrove v The Queen [1961] Tas SR p106, and The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383. Rather, it places emphasis upon the fact that conduct giving rise to liability for prosecution and conviction for a particular crime, may vary greatly in its seriousness if proper account is taken of all the circumstances, including those of the offender and his victim, (if any) and the public interest. For these reasons I find the so called 'tariff' approach to sentencing of little value, particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable. 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 38/1987), 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. Indeed, in some cases the very multiplicity of the examples placed before it may convince the court that the offence has become one of great prevalence in respect of which lenient sentences have had an inadequately deterrent effect."

16 In Devine v R A70/1993 at 5, the joint judgment of this Court adopted the above passage in Wright J's judgment in Dowie. The same judgment, also at 5, cited this passage from the judgment of Dowsett J in Ryan & Anor v R (1988) 33 A Crim R 288 at 294:

"To treat the range of sentences inferred from past decisions as itself comprising a binding decision of this Court would be to distract the attention of sentencing judges from the true range of sentences open in each case, namely that prescribed by Parliament."

17 The court in Devine concluded its judgment by saying that:

"The so called tariff, or range of sentences imposed in the past is but one factor to be taken into account in the proper exercise of the discretion. It does not set limits on the sentencing discretion. Limits are set by the Code."

18 I turn now to Shipton v R [2003] (supra). In that case, a sentence of 7 years' imprisonment with a 5-year non-parole period for one count of manslaughter arising out of the use of a motor vehicle was held not to be manifestly excessive. It was a very bad case. It was common ground that the facts of that case bore no resemblance to the facts of the present case. However, Shipton is relevant for its statement of principle, and because this sentence is the first sentence that has been imposed for manslaughter arising out of the use of a motor vehicle since that decision of this Court. All the members of the Court affirmed the correctness of the view expressed by Wright J in Dowie that is set out above. According to the judgment of Cox CJ at par7, the Court received statistical data that "no sentence imposed for motor manslaughter in this jurisdiction in the last 25 years has exceeded 3 years' imprisonment". However, the learned Chief Justice, with whose reasons for judgment Evans J expressed agreement, noted that over the years, society's views with respect to the seriousness of offences can change. In this respect, the Chief Justice cited the following passage from the judgment of Spigelman CJ in the guideline judgment of Jurisic v R [1998] NSWSC 423; (1998) 45 NSWLR 209 at 223:

"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."

19 Cox CJ then outlined, at par9, the legislative changes that had been made over relatively recent times with respect to offences involving the use of motor vehicles and said, at par10:

"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."

20 With respect to the argument that there was no reason in principle to confine the "tariff" to manslaughter cases arising out of culpably negligent driving of a motor vehicle, Blow J observed in Shipton at par 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."

There is good reason and common sense in adopting this approach. The respondent's criminal conduct was just as dangerous, if not more so, as firing a gun down Liverpool Street and across its intersection with Harrington Street. Indeed, a motor car being driven at very high speeds by an inexperienced driver through city streets could well be regarded as far more dangerous than a single shot fired from a rifle.

21 Death and injury from negligent driving is now widely recognised by the community as a serious social and financial problem. Courts are expected to impose penalties that will be sufficiently severe to deter both the offender and others who might be minded to act like him or her. In the case of crimes such as this one, the significance of youth and good antecedents has to yield in substantial measure, to the need to deter the offender and others. I venture to repeat what I said in R v O'Brien A43/1987 at 7:

"Any consideration of the deterrent aspect of sentences for crimes where death is caused by dangerous driving involving conscious risk taking, must acknowledge the fact that a high proportion of offenders fall into the youthful category. It is a notorious fact that young people consume alcohol, often to excess, and then resort to driving motor vehicles thereby putting members of the public at grave risk. In the sentencing process, the need to deter this class of offenders weighs heavily against the reformative and rehabilitative factors leading to the conclusion that, in most cases, a substantial immediate custodial sentence is appropriate."

22 In my view Shipton v R (supra) made it clear that in cases involving death or injury caused by culpably negligent driving, the Court was required to impose higher penalties than had been the case in the past. As I noted earlier, this is the first sentence to have been imposed for manslaughter caused by culpably negligent driving of a motor vehicle since the decision in Shipton was handed down on 28 April 2003.

23 The proposition that an increase in the prevailing standard should only occur after "due warning" had been given was dealt with in Devine v R (supra). The Court referred to (inter alia) Yardley v Betts (1979) 22 SASR 108 and the authorities discussed in that case, and Poyner v R (1986) 66 ALR 264 and held that "due warning" was not a necessary prerequisite for increasing the prevailing standard of sentence for a particular offence, but was a relevant factor to take into account in the sentencing process. In this sentencing process "due warning" was given by Shipton. As I have said, this was a very bad case of manslaughter and causing grievous bodily harm. Although the consumption of alcohol was not a factor, the degree of culpability was particularly high. Receipt of an infringement notice for excessive speed just days before was a warning the respondent ignored. At 11 o'clock in the evening, one might expect the streets over which the respondent drove to be used by pedestrians and other road users. Although the period of driving was relatively short, throughout the respondent was racing another motor vehicle driven by another young person. The respondent attempted to overtake that other vehicle, and later did overtake that other vehicle on the incorrect side of the road. On the latter occasion, the other vehicle was forced onto its incorrect side of the road. With only a few months' driving experience, to drive at 100 kilometres per hour through the central business district of Hobart was a chillingly dangerous thing to do. The consequences of these two crimes were totally devastating and, in my view, the sentence imposed was manifestly inadequate. Notwithstanding the mitigating circumstances that arise from the respondent's youth and relatively good record, the sentence failed to satisfy the need to send a clear message to youthful drivers that society will not tolerate this kind of criminal behaviour, nor excuse it on the basis of youthful exuberance and foolishness. I would double the sentence and non-parole period.

24 Counsel for the respondent did not make any submissions with respect to the so-called "double jeopardy" principle that arises in cases of Crown appeals against sentence. It is now settled authority that upon a Crown appeal against sentence, even if manifest inadequacy is made out, the appeal will be dismissed if to do otherwise would result in an injustice to the accused. See R v Tait (1979) 24 ALR 473; Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234_; Griffiths v R_ [1977] HCA 44; (1977) 137 CLR 293 at 310_; R v Harland-White_ CCA 23/1997_; Attorney-General v McDonald_ [2002] TASSC 120; R v Dowie (supra).

25 There is, of course, no finite list of what constitutes an injustice in the case of a successful Crown appeal, but I am unable to see any basis in this case for not allowing the appeal and re-imposing sentence. At the sentencing hearing, Mr Coates referred the learned sentencing judge to Shipton and the relevant circumstances of aggravation listed by Blow J in his judgment in that case. Mr Coates submitted to the learned sentencing judge that by reason of the Shipton decision, the prevailing standard of sentences for manslaughter caused by culpably negligent driving should be lifted. So, the issue agitated by this appeal was put squarely before the learned sentencing judge and the respondent had full opportunity to make any relevant submissions through his counsel. Further, this is not a case where the respondent has been released from custody so that resentencing would see him lose his liberty and be returned to prison.

26 I would allow the appeal, quash the sentence, and in lieu thereof order a sentence of three years' imprisonment to commence on 20 February 2004, with a non-parole period of 18 months.

27 The Director of Public Prosecutions seeks review of a sentence of imprisonment of 18 months imposed upon the respondent's conviction of one count of manslaughter and one count of causing grievous bodily harm contrary to the Criminal Code, ss159 and 172. The sole ground advanced is:

"The learned Justice erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case."

28 The ground, as advanced, claims that the sentence itself manifests error of principle in some undefined way which resulted in manifest inadequacy.

29 The respondent, the driver of a motor vehicle, was engaged in a race or contest with another driver through the streets of the centre of Hobart. There were two passengers in the respondent's vehicle aged 17 and 16 respectively. The other vehicle was occupied by four persons, which included three passengers aged 16, 13 and 12. The drivers were engaged in an agreed or mutual contest and the race involved a journey over seven blocks at speeds of up to 100 kilometres per hour. On at least two occasions, the respondent attempted to overtake the other vehicle on its inside forcing it onto the incorrect side of the road. The journey was prolonged and of a nature which caused one of the passengers to call out and warn the driver of impending danger. The respondent either failed to heed the warning or was so preoccupied with his own driving that it failed to register. Had the warning been heeded, the respondent would have had sufficient time to avoid the eventual collision. Immediately before that collision, the respondent had driven through a red light at which the competing vehicle had stopped. The respondent's vehicle crossed into the intersection colliding with a third vehicle which was travelling through its green and permitted signal. The driver of that vehicle was trapped inside and although removed and taken to hospital, died shortly afterwards as a result of massive chest injuries. The front passenger of the respondent's vehicle received massive head injuries and as of the date of sentence, had not regained consciousness and his prognosis was poor. The Court was told that if he did regain consciousness, then his quality of life would remain poor and he would continue to be dependent on others because of the severe brain injury suffered. His second passenger received a fractured collarbone.

30 The driving occurred at 11pm and although it might be expected that traffic would be light, the area chosen for the race, namely the centre of the city, meant increased risk to not only the passengers (R v Smith [1969] Tas SR 159) but to the occupants of the other vehicle and public users of the road generally.

31 The respondent, aged 18, had two previous convictions for driving at an excessive speed. Significantly, some ten days previous, he had been issued with an infringement notice for travelling at 100 kilometres per hour in a 50 kilometre per hour zone.

32 The sentencing court was told that the respondent resided with his mother and was enrolled as a matriculation student intending to undertake a university degree. He has lived in a stable family environment and shown himself to have well developed work ethic, undertaking seasonal and casual employment to support his studies. He had been driving for some eight months and had purchased the vehicle driven at the time of these offences. The Court was further told that he had been active in sport and had a history of being a good member of his community.

33 The consequences of the driving have been horrendous. One person has been killed and another young life utterly destroyed, with a family devastated. The offender is doubtless remorseful and his own life fractured.

34 The contention of the Director is three-fold, namely:

(1) That sentence for the crime of motor manslaughter ought be brought into line with those applicable to other forms of dangerous conduct resulting in death.

(2) The attitude of the community to the consequences of dangerous driving, especially those forms which result in death, has altered over a number of years and that change ought be reflected in the sanctions administered by the courts.

(3) That change was recognised within this jurisdiction in the case of Shipton v R [2003] TASSC 23 and such ought to have been reflected in the assessment of this particular sentence. The sentence itself shows error in that it was not reflective of that change. There is merit in the approach advanced on behalf of the appellant.

35 It would seem that traditionally the community, through its representatives acting as jurors, has drawn a distinction between death caused through an everyday activity, namely driving, although the particular act was inherently dangerous and what became to be called "involuntary manslaughter" (R v Bindoff [1953] SR NSW 489). In R v Barnard [1956] Tas SR 19, Crisp J stated at 35 - 36 his conclusion that:

"... it is the general opinion that juries are loath to convict in cases of motor manslaughter, and those responsible for administering the criminal law have sought, not only in this State, but elsewhere, to find alternatives which might prove, shall I say, more acceptable to the ordinary common jury. Whether that be a wise thing or not is not for me to say, although I do offer this comment - that I think it is a mistake to suppose that merely because a man presented for manslaughter is acquitted by a jury that he has escaped punishment. I think juries are far more alive to the punishment that is in fact suffered by a person who appears in this court on a charge of this sort notwithstanding his acquittal than perhaps those of us who are from day to day accustomed to see the machinery of the law in motion."

Chambers J shared this opinion, stating in R v Rau [1972] Tas R 59, in relation to creation of a charge of "dangerous driving" through the Traffic Act 1925, s32, at 68:

"The reason for these provisions is notorious and the Court ought not to pretend that it is unaware of it. They were introduced because of the reluctance of juries to convict motorists of the crime of manslaughter and it was thought to be in the public interest that juries should be given the opportunity of convicting for this special statutory offence rather than that the defendant should escape punishment altogether in cases where he had been guilty of driving to the danger of the public."

36 Parliament has responded to that perceived distinction by its enactment of differing forms of proscribed conduct, namely causing death by dangerous driving and causing death by negligent driving (see Traffic Act 1925, s32). It may be that traditionally members of the community regarded an isolated, but dangerous, act which was not necessarily directed at another and which involved significant risk to the actor as driver, as coming within a different form of proscribed conduct.

37 Any distinction made by the community might reflect the historic development of the law in relation to manslaughter. In Andrews v Director of Public Prosecutions [1937] UKHL 1; [1937] AC 576, Lord Atkin stated the general development of the law and its more modern application in the following terms at 581 - 583:

"... of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days when any homicide involved penalty the law has gradually evolved 'through successive differentiations and integrations' until it recognizes murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill but with the presence of an element of 'unlawfulness' which is the elusive factor. In the present case it is only necessary to consider manslaughter from the point of view of an unintentional killing caused by negligence, that is, the omission of a duty to take care. I do not propose to discuss the development of this branch of the subject as treated in the successive treatises of Coke, Hale, Foster and East and in the judgments of the Courts to be found either in directions to juries by individual judges or in the more considered pronouncements of the body of judges which preceded the formal Court of Crown Cases Reserved. Expressions will be found which indicate that to cause death by any lack of due care will amount to manslaughter; but as manners softened and the law became more humane a narrower criterion appeared. After all, manslaughter is a felony, and was capital, and men shrank from attaching the serious consequences of a conviction for felony to results produced by mere inadvertence. The stricter view became apparent in prosecutions of medical men or men who professed medical or surgical skill for manslaughter by reason of negligence. As an instance I will cite Rex v Williamson [1807] EngR 87; (1807) 3 C & P 635 where a man who practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. 'To substantiate that charge' - namely, manslaughter - Lord Ellenborough said, 'the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.' The word 'criminal' in any attempt to define a crime is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in Rex v Bateman 19 Cr App R 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson's case [1807] EngR 87; (1807) 3 C & P 635. In a considered judgment of the Court the Lord Chief Justice, after pointing out that in a civil case once negligence is proved the degree of negligence is irrelevant, said 19 Cr App R 11, 'In a criminal Court, on the contrary, the amount and degree of negligence are the determining question. There must be mens rea.' After citing Cashill v Wright [1856] EngR 744; (1856) 6 E & B 891, a civil case, the Lord Chief Justice proceeds 'In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as "culpable," "criminal," "gross," "wicked," "clear," "complete." But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.' Here again I think with respect that the expressions used are not, indeed they probably were not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise. The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'reckless' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for 'reckless' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman's case 19 Cr App R 8 is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly."

38 Tasmania has recognised the historic difference in the Criminal Code, s156, which provides for intentional conduct, unlawful act and omission amounting to culpable negligence in its definition of culpable homicide. The Code, s159, then provides for culpable homicide not amounting to murder as constituting the crime of manslaughter. The distinction was recognised by Wright J in R v O'Brien 43/1987 when he stated:

"Whilst it may be difficult to jurisprudentially distinguish it from the analogous offence of dangerous driving causing death (R v Seymour [1983] 2 AC 493), it is perceived by lawyers and laymen alike as being a more serious crime and therefore, one deserving more severe punitive measures. It matters not whether the concept of 'recklessness' required to sustain a conviction for manslaughter is that embraced by the House of Lords in Reg v Lawrence [1982] AC 510 or the more traditional definition in terms of subjective awareness of danger by the offender. In practice an indictment for manslaughter is reserved for those cases involving homicide caused by extreme culpability arising out of situations of patent danger created, typically, by the combination of high speed and intoxication."

39 In Bateman (1925) 133 LT 730, Lord Hewart CJ had stated, at 732 and 734:

"In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, the judges have used many epithets, such as 'culpable,' 'criminal,' 'gross,' 'wicked,' 'clear,' 'complete.' But, whatever epithet he used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment ...

To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment ...

It is, nevertheless, most desirable that in trials for manslaughter by negligence it should be impressed on the jury that the issue is not negligence or no negligence, but felony or no felony. It is desirable that, as far as possible, the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime."

40 At the same time Parliament has initiated regimes designed to enhance road safety or responded to that concern by the community in its enactment of legislation such as breathalyser, refusal, reduction of speed limits and the like. Here the proscribed conduct took the form, not of a single dangerous act such as an impetuous overtaking, but a course of driving all of which subjected passengers and other users of the road to prolonged risk. There is no reason not to equate that form of conduct with that involving actual hostility to another. Statistics compiled by Warner in her Sentencing in Tasmania (2nd ed) show that between 1978 and 1989, penalties for manslaughter by culpable negligence in the use of a motor vehicle ranged from 12 months' imprisonment to 36 months' imprisonment, with a 15 month median. Between 1990 and 2000, sentences for equivalent conduct ranged between 1 - 2 years, with a median of 18 months. Her tables for non-motor vehicle related manslaughter shows a different median, namely three years, whilst the cases of "involuntary manslaughter", four years. The lower range of such cases usually encompassed single and brief acts of criminal conduct (R v Holness and Banks 36/1970).

41 Notwithstanding historic distinction and modern legislative change, culpability for manslaughter as found by a jury, ought be equivalent to other forms of "involuntary manslaughter". Where death is a consequence of criminal conduct, especially prolonged, there is little reason to distinguish the consequence.

42 In McKenna v R (1992) 63 A Crim R 452, Ipp J stated at 465 that "... criminality is not reduced simply because the crime can be characterised as 'motor vehicle manslaughter'."

43 It is not that the distinction as recognised by Wright J in R v O'Brien (supra) was wrongly made, but that the social expectation and the standard required by the community has altered. The tension between a sentencing tribunal or a judicial officer and public opinion was recognised by Lord Bingham in his address to the Police Foundation, a speech referred to with approval by the New South Wales Court of Appeal in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209. In that address, Lord Bingham stated:

"...when differences of opinion arise on issues of sentencing between the judges and an identifiable body of public opinion, the judges are bound to reflect whether it may be that the public are right and they are wrong. In two instances which occur to me, rape and killing by dangerous driving, I think it is true that public opinion (reinforced in the latter case by legislation) brought home to the judges that they had on occasion failed in their sentences to reflect the seriousness with which society regarded these offences."

In Jurisic, Spigelman J agreed with that proposition, adding, at 223:

"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.

As in England, it appears that trial judges in New South Wales have not reflected in their sentences the seriousness with which society regards the offence of occasioning death or serious injury by dangerous driving. The existence of such disparity constitutes an appropriate occasion for the promulgation of a guideline judgment by a court of criminal appeal. That is what occurred in England with respect to offences cognate with that in the instant case."

44 A single act of dangerous conduct involving the use of a motor vehicle and which results in death, might still attract a lesser penalty than an equivalent act which involves what has traditionally been described as containing an act of hostility to another. However where there is an extended course of conduct, as here, then there ought be greater equivalence. The absence of personalised or focused hostility is offset by the prolonged conduct, each minute of which is fraught with danger.

45 In R v O'Brien (supra), the Court of Criminal Appeal upheld an appeal against a four month sentence of imprisonment as being manifestly inadequate and substituted therefor a sentence of 12 months' imprisonment. The offender had been driving with a blood alcohol concentration of .209 per cent and had driven through the city of Burnie at a speed of approximately 140 kilometres per hour and had travelled through some five red lights before being involved in the inevitable conclusion. The passenger had been killed. There were no mitigating circumstances. However in that case the court was not asked to consider equivalence with other forms of manslaughter, nor examine the existing sentencing tariff or regime.

46 In R v Jurisic (supra), the Court of Criminal appeal, constituted in order to provide sentencing guidelines, reviewed and analysed the principles which ought govern an assessment of penalty in relation to driving occasioning death or grievous bodily harm. Although it is dangerous to simplistically equate penalties imposed in differing jurisdictions, that court's approach is relevant. In their opinion, where there is present aggravating factors, a custodial sentence of less than three years ought be exceptional. Spigelman CJ reviewed a long list of cases argued in New South Wales in which the Crown had been successful in impugning sentences which it regarded as being inadequate. In most of those cases, the Crown had been successful and a more severe penalty imposed. His Honour identified, at 231, the element of abandonment of responsibility of conduct as a test for deciding aggravation. He stated a series of factors which were relevant to the determination of the appropriate penalty, namely:

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

47 That approach was followed by this Court in Shipton (supra) which involved a course of driving, the consequence of which received wide publicity within this jurisdiction. In Shipton, the Court upheld a sentence of 7 years' imprisonment as being not "manifestly excessive". In his reasons for judgment, the Chief Justice stated, at pars9 - 10:

"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.

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."

48 The course of conduct followed extensive publicity given to the sentence afforded Shipton. Here the crimes alleged were those of manslaughter and causing grievous bodily harm. The sentence ought more properly have reflected greater equivalence with other forms of manslaughter and taken into account the death and ongoing consequence to the "surviving" young person and his family. The appeal ought be upheld.

49 The consequence to the youth grievously harmed remains unaltered. He is still in a coma and his prognosis is abysmal. The stress and strain imposed on a loving and caring family remains ongoing and is likely to be so for many years. The respondent had been issued with an infringement notice some short time before his course of driving which resulted in death and injury. He ought to have been alerted to his responsibility as a driver and not, as Spigelman CJ said in Jurisic (supra), "... abandon responsibility". The prolonged course of driving and his ignoring of, or self-induced incapacity, to heed that warning, itself constitutes aggravation. His youth and otherwise good character warrant amelioration as against a person who has a significant driving record. He is likewise entitled to some benefit from the fact that this is a Crown appeal. But for those factors, I would otherwise impose a sentence of imprisonment of at least three years. Taking into account those factors, the appropriate penalty, on re-sentence, in my opinion, is that of 2½ years' imprisonment. Having regard to his age and future prospects, I would impose the minimum one half non-parole period.

50 I agree with the orders proposed by Underwood J and, generally speaking, with his reasons. There is a little that I wish to add in relation to "double jeopardy". In my view the authorities require us, in re-sentencing the respondent, to take into account in his favour the unpleasantness experienced by him as a result of having had to stand for sentence a second time, having first been sentenced to imprisonment some months ago. See Attorney-General v McDonald [2002] TASSC 120. However, making due allowance for that factor, I consider the sentence proposed by Underwood J a most appropriate one.