Banks v Tasmania

[2019] TASCCA 1

[2019] TASCCA 1

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Banks v Tasmania [2019] TASCCA 1

PARTIES:  BANKS, Christopher Craig
  v
  STATE OF TASMANIA

FILE NO:  CCA 1427/2018
DELIVERED ON:  7 February 2019
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2018
JUDGMENT OF:  Brett and Geason JJ, Porter AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Dangerous driving – Where dangerous driving recently made a crime under the Criminal Code and no longer a summary offence – Erratic and high speed driving during lengthy police pursuit – Physical intervention required to stop appellant driving when stationary at a traffic light – Appellant with relevant prior convictions – Relevance of evading police and driving without a licence where such charges pending in lower court – Sentence of 18 months' imprisonment with a non-parole period of 9 months not manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  L Mason SC
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2019] TASCCA 1
Number of paragraphs:  58

Serial No 1/2019

File No CCA 1427/2018

CHRISTOPHER CRAIG BANKS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BRETT J
GEASON J
PORTER AJ
7 February 2019

Order of the Court

Appeal dismissed.

Serial No 1/2019
File No CCA 1427/2018

CHRISTOPHER CRAIG BANKS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BRETT J
7 February 2019

1. I have had the benefit of reading the draft reasons for judgment of Porter AJ.  I agree with everything his Honour has said and his conclusion that the appeal should be dismissed.  However, I would like to comment further on one peripheral aspect of his Honour's reasons.

2. My comments concern the interaction between the offence of dangerous driving and the offence of evading police under s 11A(1) and (2A) of the Police Powers (Vehicle Interception) Act 2000. In this case, the charge of evading police is still pending in the Magistrates Court. I agree with Porter AJ's conclusion that the principle in R v De Simoni (1981) 147 CLR 383 did not preclude the learned sentencing judge from taking into account as an aggravating factor that the appellant drove dangerously in the course of evading police. The fact that such driving occurs in the course of escape from police, adds the factor of desperation to the driving and decision-making during the course of the driving, which, in turn, adds significantly to the potential danger arising from that driving. Accordingly, the circumstance is directly related to the dangerous nature of the driving, and it is therefore appropriate to take that factor into account in assessing the objective seriousness of the dangerous driving, notwithstanding that it would also constitute an offence which is not before the sentencing court. It may also have relevance to other sentencing considerations, including the need for general and personal deterrence.

3. In this case, as Porter AJ has pointed out, the charge of evading police was particularised as being limited to the initial decision of the appellant not to stop for police prior to the commencement of the period of dangerous driving. However, the driving which constitutes the dangerous driving could also have been the subject of such a charge. Section 11A(1) and (2A) create offences where a driver has taken "action to avoid apprehension or interception by a police officer". The ongoing driving which takes place during the course of a police pursuit could rationally fall within the ambit of the offence, so defined.

4. The point I wish to make about this is that my support for the conclusion that the fact that the driving occurred within the context of escaping police pursuit is a relevant factor with respect to sentencing for the dangerous driving, does not depend upon the evading police charge relating only to driving which occurred at a different time to that particularised in respect of the crime of dangerous driving.  In my view, it would still be a relevant sentencing factor in respect of the crime of dangerous driving if the said driving had also been the subject of a charge of evading police. This is the case notwithstanding that s 11A(3C) requires a court sentencing at the same time for evading police and another charge such as dangerous driving, to impose separate sentences.  It is not unusual for one act to give rise to more than one offence.  As the High Court pointed out in Pearce v The Queen (1998) 194 CLR 610, "a complex act by an accused may contain all the elements of more than one offence". Hence, there is no difficulty with a sentence being imposed for multiple offences which incorporate the same act, provided that a person is not punished twice for that act. It follows that a court imposing a separate sentence for evading police which incorporated the driving in question, would need to exercise care not to impose further punishment, where punishment for the act of driving to escape police has already been incorporated within the sentence for another offence, such as dangerous driving.

5. Of course, in this case, that question will not arise because the driving relevant to the evading police charge is different to that relevant to the dangerous driving charge, and the issue has not been the subject of full argument and submissions.  It is not my intention, therefore, to express a concluded or binding view, but simply to point out that my agreement in this case should not be taken as expressing such a view.

File No CCA 1427/2018

CHRISTOPHER CRAIG BANKS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

GEASON J
7 February 2019

1. I have read the judgment of Porter AJ in draft, and I agree with it. I do not wish to add anything.

2. I join in the order dismissing the appeal.

File No CCA 1427/2018

CHRISTOPHER CRAIG BANKS v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER AJ
7 February 2019

Introduction

1. This is an appeal against sentence. The appellant pleaded guilty before Marshall AJ to one count of dangerous driving contrary to s 172A of the Criminal Code.  On 4 May 2018 the appellant was sentenced to 18 months' imprisonment to commence on 12 November 2017, and it was ordered that he not be eligible for parole until he had served nine months.  In addition, the appellant was disqualified from driving for a period of three years from 4 May 2018. 

2. The sole ground of appeal pursued is that the sentence was manifestly excessive in all of the circumstances. It is well entrenched that for such a ground to succeed, the appellant needs to demonstrate that the sentence was unreasonable or plainly unjust or, to put it another way, that the sentence was outside the range of sentences reasonably available in the exercise of a sound discretionary judgment.

The circumstances of the offending

1. The following is the Crown statement of facts as put to the sentencing judge:

   "At approximately 12:20 pm on Sunday the 12^th of November 2017 Constable Gough was on duty and driving a police car in Parsonage Place, Sorell which is near the Coles Shopping Plaza. He observed a black Toyota Celica registration FD9002 driving at excessive speed in nearby Cole Street. Traffic at the time was heavy. The accused, Christopher Craig Banks was the driver of the Celica. Constable Gough managed to position himself behind the accused's car. At this stage both vehicles were on the Tasman Highway. He attempted to intercept the vehicle by activating the emergency lights, sounding his horn and flashing the headlights. The accused failed to stop. Constable Gough followed the accused's vehicle as he drove along the Sorell Causeway. He observed the accused's vehicle to veer within the lane it was travelling in. He also observed the accused ducking down and leaning towards the passenger front floor area.

   Constable Gough continually observed the accused fail to stay within his own lane during this period of travel. Due to the busy traffic conditions along the causeway Constable Gough did not make any attempt to intercept the vehicle. However upon reaching the western side of the causeway he again activated his emergency lights and sirens. The accused failed to pullover and drove across the McGee's bridge section of the Midway Point causeway. Whilst travelling across the bridge the accused pulled out of his lane abruptly, without indicating and overtook a four wheel drive. The traffic at the time was medium to heavy. The Police Officer estimated the accused was travelling at a speed of about 120km/h at the time of overtaking. The speed limit for that section of the road is 80km/h. The accused continued driving in a westerly direction. By this stage authorisation had been granted for another police unit to deploy road spikes in order to immobilise the accused's vehicle. They travelled along the Tasman Highway and entered South Arm Link Road. Road spikes were set up in Mornington in anticipation of the accused travelling in that direction. As the accused approached the road spikes he swerved to avoid them which resulted in his car leaving the road, cutting a corner and driving over a nature strip. The accused travelled around the Mornington round-about and continued along the Tasman Highway, towards the Tasman Bridge. Whilst travelling along this route, Constable Gough observed the accused's vehicle change lanes on 4 occasions without indicating. Before approaching the Tasman Bridge the accused took the off-ramp onto the East Derwent Highway.

   Another police vehicle was assisting at this time and the driver of that vehicle, Constable Vandenbroek, observed the accused's vehicle travelling along the East Derwent Highway. The accused's vehicle had slowed and stopped at a red traffic light and was placed behind three cars waiting at the traffic lights. Constable Vandenbroek pulled his police car up alongside the accused's who looked at the police officer, wound his window up and appeared to lock the door. Constable Vandenbroek exited his vehicle and approached the accused's door. He yelled at him to turn his engine off and exit the vehicle however the accused ignored his request and revved the vehicle's engine. Constable Vandenbroek believed the accused was about to drive off so he smashed the driver's side window with his baton and instructed the accused to turn the engine off and exit the vehicle.

   The accused again refused and put one hand on the gear stick and the other on the steering wheel. Given his belief that the accused was about to drive off, the Constable struck the accused three times with his baton. Constable Vandenbroek managed to reach through the window, turn the vehicle off and remove the keys. The accused was becoming increasingly agitated to the point where the police officer used OC spray to subdue him. Another police officer assisted in removing the accused from the car. He was handcuffed, placed in a police van and taken to the Hobart Police Station."

2. The sentencing judge was told that during the charging process, police established that the appellant's licence had been suspended indefinitely because of non-payment of fines. The appellant was charged and detained for court. Bail was refused and the appellant had been in custody since the day of the incident.

The circumstances of the appellant

1. The appellant was 34 years old at the time of the offending; 35 at the time of being sentenced.  A list of prior convictions was put before the sentencing judge.  The appellant's recorded history of offending starts in May 2002.  Before May 2011, the appellant accumulated convictions for a number of traffic offences of different types along with convictions for offences of dishonesty, and drug and anti-authority type offences.  Included in that list are two convictions for "drink driving", seven convictions for driving whilst disqualified and, more particularly, convictions in January 2010 for dangerous driving and evading police. On the latter, he was initially sentenced to six months' imprisonment, the execution of five months of which was suspended on conditions.  He was later twice re-sentenced on that matter, having breached the conditions. Additionally, the appellant was convicted of failing to have proper control of a vehicle – May 2002, and driving without due care and attention and failing to give way at a pedestrian crossing – September 2007. 

2. In May 2011 on charges of aggravated assault, stealing and two charges of unlawfully injuring property, along with charges of evading police and driving whilst disqualified, the appellant was sentenced in this Court to 15 months' imprisonment. It was ordered that he not be eligible for parole until he had served eight months. For reasons that will soon become clear, the sentencing judge, Evans J, ordered that the appellant be made subject to a supervision order pursuant to s 75(2A) of the Sentencing Act 1997. In the present case, Crown counsel put before the sentencing judge the comments on passing sentence of Evans J.

3. The charges dealt with by Evans J constituted a course of conduct on the part of the appellant.  In November 2010 the appellant went to a car yard and sat in the driver's seat of a new vehicle.  Avoiding an attempt to stop him by locking the door, he drove away with the vehicle.  Shortly after, he was seen by two police officers driving the stolen vehicle.  Police followed until he stopped at an intersection.  With the police vehicle immediately behind, the appellant reversed the stolen vehicle at full throttle into the police vehicle causing a significant impact.  That conduct resulted in two charges of aggravated assault.  When the officers tried to stop the appellant he accelerated heavily and drove away.  A further attempt by police a short time later to intercept the appellant failed and he evaded the police manoeuvre. With police following, the appellant drove through areas of Richmond and Colebrook at speeds of up to 120 to 130 km/h.  He was driving erratically.  He again evaded a police attempt to stop him, and ultimately abandoned the vehicle in Bridgewater and fled. 

4. In his comments on passing sentence, Evans J referred to a comprehensive report provided by Dr Michael Jordan, the Clinical Director of Forensic Mental Health Services.  His Honour said:

   "The defendant has a chronic psychotic illness.  As to the precise nature of his illness, it has variously been described to be schizophreniform schizophrenia concurrent with the symptoms associated with affective disorder, schizoaffective disorder, solely manic, and on at least one occasion, bipolar disorder. 

   He was briefly admitted to a psychiatric unit in Queensland in 2006.  In the same year, on several occasions, he was admitted to the psychiatric unit at the Royal Hobart Hospital.  Since then he has been admitted to that unit a further six times and he has been admitted to a secure mental health unit, the Wilfred Lopes Centre, on four occasions. When possible, he has been treated with anti-psychotic and mood-stabilising medication. At times it has been necessary to enforce the delivery of medication by community treatment orders, and on at least one occasion, by a guardianship order.  His treatment has been complicated by illicit substance misuse, particularly cannabis and, to a lesser extent, amphetamine. 

   Following a period of inpatient psychiatric care that concluded on 19 January 2010, for a period of almost six months, the defendant's progress in the community went well.  He took his medication, abstained for the most part from illicit substances, lived independently and, at times, held down employment.  During this period he was apprehended once for driving whilst disqualified.  In September 2010, his behaviour became increasingly chaotic. 

   ...

   In summary, the report provided to the Court says that the defendant has a history of serious mental illness, relapses of which have led to multiple inpatient psychiatric admissions. These admissions, for the most part, have been precipitated by concurrent illicit substance misuse which is detrimental, both directly to his mental state, and also to the structure and order of his life in the community.  There is evidence that when he is compliant with medication, abstains from illicit substances, and avoids conflict with those around him, he is able to work and maintain a more constructive capacity in the community.  However, his mental illness makes him fragile and predisposes him to significant deterioration when either he takes illicit substances, faces a difficult event, or becomes non-compliant with medication; any one of these factors can destabilise him."

5. After the 2011 appearance and sentence, the appellant was convicted of further offences of dishonesty and violence.  As far as traffic offending is concerned, there is a conviction in March 2015 for driving without a licence, and convictions in June 2015 for objecting to a blood sample being analysed, and driving without a licence. There are other convictions for breaches of traffic regulations.  It would appear that the frequency of traffic offending has lessened in the last few years, although the appellant has continued to regularly offend in other ways.  In broad terms the appellant is no stranger to suspended and actual terms of imprisonment.

6. Counsel who appeared for the appellant before Marshall AJ made the following submissions:

   · The appellant had wanted to dispose of the matter by way of pleading guilty as quickly as possible. He had been awaiting the filing of an indictment for the charge under s 172A of the Code; the original complaint charged him with dangerous driving under s 32(1) of the Traffic Act 1925, an offence which had been removed from that Act and made a crime under the Code from 19 September 2017.

   ·     In the circumstances, there was an early plea.

   ·     The case could not be categorised as the most serious case of dangerous driving, given the facts and circumstances; it was not "an example of high end dangerous driving".

   ·     The appellant had been told by his uncle to collect a dog so he had driven to do so, became aware of the police, then became concerned (no doubt because of his licence status) "and fundamentally what has occurred is that he's engaged in the process of evading the police".

   ·     The appellant was concerned about the circumstances of his arrest and the way in which he was treated.

   ·     The conduct before the sentencing judge can be distinguished from that dealt with by Evans J. 

   ·     The appellant had been unsuccessful in finding stable accommodation, which affected his ability to seek bail and is a problem he will face on release.

7. Counsel went on to refer to the appellant's mental health issues, effectively repeating the point made by Dr Jordan in his report to Evans J; that is, that when compliant with his medication regime and able to avoid conflict, he can maintain a constructive role in the community.  Counsel submitted that given the appellant's mental health issues, he was not necessarily a suitable vehicle for the expression of general deterrence, nor was personal deterrence to be given significant weight. It was further suggested that, rather than making "premeditated" decisions, the appellant acts when his decision-making is impaired.

8. Counsel suggested to the sentencing judge that a form of supervision be imposed to assist the appellant on his release.  Counsel submitted that if the appellant were released "with some stability and perhaps with some supervision" the appellant may be able to be managed in a way that will stop the offending; supervision on release would afford the opportunity for treatment: "[T]hat could … produce the outcome where his decision-making is improved and where he becomes more constructive in the way that he's engaging with people." 

9. In reply to these submissions, Crown counsel told the sentencing judge that in relation to the submission concerning general and personal deterrence, "the Crown would require some expert evidence if the principles of Verdins were to be enlivened", a reference to R v Verdins [2007] VSCA 102, 16 VR 269 which deals with the role of impaired mental functioning. Counsel for the appellant then told the sentencing judge he withdrew the submission but then said, "… the principle is there for you to consider ... that's about as far as I'm willing to take it."

1. The sentencing judge was not told by either counsel about the status of the supervision order, nor did his Honour enquire. As it transpires, there is no record of it having been revoked by a judge of the Supreme Court: see s 30 of the Criminal Justice (Mental Impairment) Act 1999. On enquiry, the Crown has confirmed that it is still current.

The sentencing judge's comments

1. After setting out the facts as had been stated to him, the sentencing judge said:

   "You are 35 years old and have a lengthy criminal history with many driving-related matters. You were sentenced for dangerous driving in May 2010.  In May 2011 you were sentenced to 15 months' imprisonment. You were convicted in respect of driving-related matters. You also have several prior offences relating to dishonesty, and one of aggravated assault. On 21 December 2015, you were convicted of breaching a restraint order, and sentenced to three months' imprisonment, which was wholly suspended for three years on condition that you not commit another offence punishable by imprisonment.  You now appear to have breached that condition.

   The level of your dangerous driving was particularly serious. You endangered the lives of other motorists by your erratic driving in medium to heavy traffic. You resisted multiple requests by police to cease driving. Your criminal history is extensive, and you appear to have little to no respect for the law. You failed to co-operate with police.  The only matter in your favour is your guilty plea. 

   I convict you as charged. I sentence you to a term of imprisonment of 18 months with a non-parole period of nine months. The sentence is to take effect from 12 November 2017.  In addition, you are disqualified from driving for a period of three years from today's date."

The appeal

1. The appellant's notice of appeal was drafted by him.  Using pro-forma single page notices of appeal, the appellant wrote out many complaints and comments, not only dealing with the present matter, but covering convictions and sentences going back, it seems, to 2007. He later obtained representation, and counsel – different from the one who appeared in the sentencing proceedings – drafted written submissions filed on 26 September 2018.  Those submissions made it clear that the only ground of appeal being pursued was that the sentence was manifestly excessive. 

2. On 2 October 2018 the appeal came before a differently constituted Court.  Counsel who had prepared the written submissions appeared and told the Court the appellant had indicated that he did not want counsel, and that there was a "lack of desire to continue on with the appeal". The Court granted leave to counsel to withdraw and then sought to hear from the appellant as to whether he wanted to proceed.  The appellant was then reported to the court as being hostile with the potential of self-harm. The Court adjourned to arrange a video link to the prison, but was later told that the appellant had refused to appear.  In the appellant's absence, the appeal was adjourned to 16 November at 10am. In the meantime, Brett J held a directions hearing and confirmed with the appellant that he wanted to proceed, and that the sole ground was that of manifest excess.

3. In the written submissions for the appellant, counsel acknowledged that the appellant had an unenviable record of prior convictions involving the use and abuse of motor vehicles. He also acknowledged the appellant had one directly relevant prior conviction; a reference to the sentence imposed by Evans J in May 2011, the conduct having occurred in 2010.  It is submitted that the conduct on that day was much more serious than the present offence.  Counsel submits that the sentencing judge was incorrect in characterising the level of dangerous driving as "particularly serious".  It is said that while the appellant overtook a vehicle in medium to heavy traffic, without indicating, he was only moderately speeding in excess of the speed limit, there was no suggestion that the overtaking, manoeuvre, or any of the other driving complained of, caused other vehicles direct danger, and there was nothing put to the court that would suggest vehicles travelling in either direction were forced to take evasive action.  Further, counsel notes the absence of any suggestion that leaving the road, cutting the corner and driving over a nature strip was a loss of control: "It was simply a manoeuvre to avoid the road spikes." 

Section 172A of the Criminal Code – general considerations

1. As previously noted, dangerous driving was made a crime under the Code in September 2017. Removing the offence of dangerous driving from the Traffic Act and making it a crime had the effect of increasing the maximum penalty from two years' imprisonment to 21 years. Counsel referred to the Attorney-General's second reading speech in relation to the Criminal Code Amendment (Dangerous Driving) Bill 2017 which effected the change. The then Attorney said:

   "Unsafe driving has significant social, health and economic consequences for individuals and for the Tasmanian community.  It is in the interests of all Tasmanians to ensure that users of our roads remain safe. ...

   [D]riving unsafely is inherently dangerous. ... Deaths and serious injuries on the road have obvious and terrible physical and emotional effects on those directly involved.  Beyond the immediate victims, harm on our roads causes trauma to family and friends, witnesses, emergency services personnel and hospital staff.

   Our roads must be as safe as we can make them and we must ensure that criminal laws allow courts to deal appropriately with people who put other road users at risk."

2. In that speech, the Attorney referred to the report of the Sentencing Advisory Council, "Sentencing of Driving Offences that Result in Death or Injury", which had been released in April of that year. In that report, the Council stated its view that dangerous driving is "… a serious driving offence involving exposure of members of the public to danger".  The Council explained that although injury or death has not materialised, the offence has the same fault element as applies to dangerous driving causing death or grievous bodily harm: "[It] is a serious driving offence given that the fault element ... is the same as driving that causes death or grievous bodily harm and the role of risky driving behaviour in cases where death or injury is caused."

3. That fault element is driving "at a speed, or in a manner, that is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the street, and the amount of traffic which is actually at the time, or which might reasonably be expected to be, on the street": These words appear in each of ss 167A, 167B and 172A.  The Sentencing Advisory Council further noted:

   "An offender convicted of dangerous driving has the same level of fault as an offender convicted of dangerous driving causing death or grievous bodily harm; however, the harm caused is different. In the case of dangerous driving, it is the risk of harm that is punished, whereas it is the realisation of that harm that is punished where death or serious injury results from an offender's dangerous driving."

4. Counsel for the respondent submitted that guidance to sentencing for the present crime can be found in cases relating to 'motor' manslaughter, ss 167A and 167B, contending that the "general upward trend of sentences demonstrates the increasing concern for dangerous driving generally."  This concern, it is said, "underscores the need for sentences which meet the aims of general deterrence and denunciation."  Counsel noted that the trend of increasing sentences for driving-related crimes has been the subject of appellate comment, citing Shipton v The Queen [2003] TASSC 23 – a manslaughter case – at [9]-[10] per Cox CJ.

5. His Honour there noted some legislative changes in relation to driving offences, including the introduction of ss 167A and 167B, and said:

   "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."

   (See also Director of Public Prosecutions v Watson [2004] TASSC 54, 146 A Crim R 223 at [21], [50] – another manslaughter case.)

6. Counsel submitted that the comments of Cox CJ in Shipton "are equally applicable to the insertion of s 172A into the Code." In this respect, I note that the sentiments expressed in Shipton and Watson have been applied to driving offences causing death or grievous bodily harm; ss 167A and 167B: see Moyle v Tasmania [2010] TASCCA 2, 198 A Crim R 592 at [28], [63]-[66], Director of Public Prosecutions v Smithurst [2011] TASCCA 19 at [14]. The upward movement in such sentences was noted by Tennent J in Director of Public Prosecutions (Acting) v Rushton [2015] TASCCA 20 at [16] (Blow CJ and Wood J agreeing).

7. Counsel for the respondent further observed that general deterrence is the prominent sentencing consideration with respect to the three crimes discussed, and in this respect referred to Gallagher v Tasmania [2009] TASSC 84 at [61], [84] and Moyle (above) at [51], [65]. The resultant submission was that, given the fault element in ss 167A and 167B, common to s 172A, this approach applies equally to dangerous driving as such.

8. As to these submissions, I make the following comments.  First, the specification of the maximum penalty for a particular offence of course limits the exercise of the sentencing discretion.  It goes without saying that sentencing courts have close regard to any legislative increase in the maximum penalty set by a statute for a particular offence. The Court is mindful of such a "guidepost": Muldrock v The Queen [2011] HCA 39, 244 CLR 120 at [27]. See for instance Sheldrick v The Queen 41/1960 at 2, per Burbury CJ (Crisp and Crawford JJ agreeing).

9. Second, the general increase in severity of sentences for 'motor' manslaughter and crimes under ss 167A and 167B, is something which should be generally borne in mind when fixing a sentence for the crime of dangerous driving, to the extent of current trends in respect of those crimes.  That is subject to what I will say later.

10. Third, there is no doubting the proposition that general deterrence is a prominent factor in sentencing for dangerous driving. That has long been the case, pre-dating the 2017 legislative changes. Judges of the Supreme Court have long been able to sentence offenders convicted of dangerous driving, primarily on the basis of a verdict of guilty of dangerous driving as an alternative to manslaughter, and later one is respect of ss 167A and 167B on their enactment. Additionally, for many years up to 2000, an accused person could elect to be tried by a jury on a charge of dangerous driving, or a magistrate could decide that the case was of such seriousness that it should be tried on indictment. See the now repealed s 32(4) and (4AA) of the Traffic Act.  In Sheldrick (above), Burbury CJ stressed the need for a sentence having the effect of general deterrence. See also Wise v The Queen [1965] Tas SR 196 at 201 per Crisp J (Neasey J agreeing), at 209 per Crawford J; Parker v Gleeson A66/1991, [1991] TASSC 82. However, it must be accepted that the legislative change means an increased focus on deterrence and denunciation.

11. Having said all of that, in broad terms the fundamental principles of sentencing are unchanged.  Subject to such things as statutory maxima and the availability of certain options as may be regulated by the Sentencing Act, the exercise of the discretion remains unfettered, although guided by authoritative pronouncements of the weight to be given to particular factors. Competing considerations need to be balanced and the sentence must be a proportionate response to the offending. A punitive sentence should be no more than is necessary to act as a deterrent: Sheldrick (above), George v The Queen [1986] Tas R 49 at 57 per Cosgrove J. Various factors may have more or less weight, depending on the circumstances of the offence and of the offender. Individualisation of sentences remains open.

12. While the general level of sentences in cases of 'motor' manslaughter, and under ss 167A and 167B provide some assistance, it is not determinative.  The circumstances in which the crime of dangerous driving can be committed vary markedly. The crime can be committed by way of a momentary lapse of attention or, on the other end of the scale, by a deliberate and prolonged course of conduct.  Depending on the circumstances, some cases of dangerous driving, as such, might be regarded as more serious than at least crimes under ss 167A and 167B, even though the risk of death or injury has not materialised. Severe punishment for dangerous driving does not necessarily depend on the existence of actual consequences: Wise (above) at 201-201 per Crisp J.

The sentencing range

1. With the written submissions, counsel for the respondent put before the Court a table detailing eight sentences imposed since the introduction of s 172A up to 7 September 2018, excluding the appellant's sentence. There are now 15 sentences for the crime, excluding the appellant's; a further five were handed down before the hearing of the appeal, and two afterwards. The usefulness or otherwise of statistics and tables of sentences have been the subject of much authoritative discussion: see for instance Hili v The Queen [2010] HCA 45, 242 CLR 520 at [54]; R v Kilic [2016] HCA 48, 259 CLR 256 at [22]; Director of Public Prosecutions (Acting) v Poole [2015] TASCCA 10 at [28]-[29]; Connelly v Tasmania [2015] TASCCA 15 at [45]; R v Dowie [1989] Tas R 167 at 186.

2. A summary is as follows. For statistics tables to be of any real value, the number of cases must be such as to provide a discernible and established range, and the sentences must be for comparable offending. In that respect, that the particular crime may be committed by a wide range of conduct is a particular difficulty, compounded by the variation in circumstances from case to case.  Historical data does not establish that a discernible range is correct, nor that the upper and lower limits are correct. That a sentence is outside an established range of comparable offending is not determinative in relation to a particular sentence; that simply calls for closer scrutiny.  At best, such material amounts to a "yardstick", providing a broad understanding of the range of sentences that would ensure consistency, but does not fix boundaries.

3. Of the 15 sentences referred to above, only two have been for a single count of dangerous driving and nothing else.  Of the remainder, two involved two counts of the crime, and all involved the court dealing with other offences.  In the main those offences were evading police, and traffic offences such as driving whilst disqualified or without a licence.  Some additionally involved offences of dishonesty such as stealing or motor vehicle stealing.  Except in the cases that involved evading police which, of course, required a separate sentence to be imposed, global sentences were imposed for the whole of the offending.  In detailing these sentences, I will not refer to non-parole periods.

4. The two sentences passed for single counts of dangerous driving and no other offending are ones of 12 months' imprisonment cumulative to an existing sentence – high speed and erratic driving over a relatively short distance[1], and one of 22 months' imprisonment – prior relevant convictions, serious example of dangerous driving and relevant prior convictions with a number of related summary offences dealt with in the lower court[2].  Of the remaining 13 sentences, the most lenient one was one of eight months' imprisonment, with two months' imprisonment cumulative for evading police, the total term being suspended on conditions.  The offender had no prior convictions.[3] 

   [1]   Price, Geason J, 18 October 2018.

   [2]   Devine, Blow CJ, 31 January 2019.

   [3]   Hyland, Wood J, 25 September 2018.

5. At the other end of the range, in respect of an offender with a relevant offending history, there is a sentence of two years and six months' imprisonment for dangerous driving, driving whilst disqualified and refuse breath analysis, with three months cumulative for evading police.[4] There is also a sentence of two years and four months' imprisonment for dangerous driving, driving whilst disqualified, driving with an illicit drug present in the blood, and breaching bail, with a cumulative sentence of 10 months' imprisonment for evading police.[5] (There is a further case involving a sentence of three years and three months' imprisonment, but there are crimes of injuring property and assault police on the indictment, with charges of evading police, motor vehicle stealing, a drug offence and an offence of dishonesty dealt with under s 385A.[6]) 

   [4]   Cleaver, Pearce J, 13 June 2018.

   [5]   Halbwirth, Brett J, 6 December 2018.

   [6]   Standage, Pearce J, 17 May 2018.

6. There are four reasonably comparable cases involving offenders with relevant prior convictions and not dissimilar circumstances of police pursuit.  Bearing in mind the sentences are global sentences taking into account summary offences, the terms imposed are 22 months' imprisonment, the execution of 12 months of which was suspended, and a community service order of 210 hours[7], 21 months' imprisonment, together with six months for evading police to be served concurrently[8], 21 months' imprisonment with six months for evading police cumulative[9], and 22 months' imprisonment with four months for evading police, four weeks cumulative for evading police.[10]  All in all, there is some assistance to be gained but it is quite limited and caution needs to be exercised.

Specific considerations in this case

[7]   Eiszele, Blow CJ, 8 March 2018.

[8]   Dare, Porter AJ, 14 August 2018.

[9]   Shultz, Porter AJ, 7 September 2018.

[10] Upton, Blow CJ, 13 September 2018.

1. On a number of occasions, this Court has referred to the list of relevant factors set out by the New South Wales Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209 at 231 for offences of dangerous driving causing death or grievous bodily harm: see for example, Shipton (above), Gallagher (above) and Moyle (above). The presence of these factors and their degree, or their absence, assists in determining the appropriate penalty.  The first identified factor is the extent and the nature of the injuries inflicted.  The remainder of the list is as follows:

   ·     Number of people put at risk.

   ·     Degree of speed.

   ·     Degree of intoxication or of substance abuse.

   ·     Erratic driving.

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

   ·     Ignoring of warnings.

   ·     Escaping police pursuit.

2. To that list should be added "degree of sleep deprivation" and "failing to stop": R v Whyte [2002] NSWCCA 343 at [217] per Spigelman CJ. The respondent submits that this list is relevant to the crime of dangerous driving as such. That submission ought be accepted.

3. As to this case, I make the following observations. In relation to the number of people put at risk, the material before the sentencing judge was non-specific.  At the commencement of the pursuit, traffic was described as "heavy", with traffic conditions being "busy".  The appellant's vehicle veered within its lane and at that point the appellant seemed intent on doing something else in his car and not focussing his attention on what he was doing.  At the time of driving across the causeway bridge, traffic was "medium to heavy".  The appellant overtook another vehicle at this point, travelling at about 120km/h.  Nothing was said about traffic flow during the later stages.  However, from the descriptions of traffic conditions earlier in the pursuit, from the time of day on a Sunday, and from the major nature of the roadways being travelled on, it would be reasonable to infer that actual or expected traffic flow was more than insignificantly sparse.

1. I have already mentioned the degree of speed.  The appellant was estimated to be travelling at 120 km/h in an 80 km/h zone on the causeway bridge.  In the later stages of the pursuit, it was perhaps more the manner of driving from which the risk emanated than the speed. This leads to the factor of erratic driving, an aspect of which I have already mentioned.  In addition, the appellant deliberately avoided road spikes by leaving the road, cutting a corner and driving over a nature strip.  As to the length of the journey, the sentencing judge was not given any information, and his Honour made no attempt at an estimate.  But prominent roadways and features were identified and common knowledge would fairly lead to an inference that the distance covered was up to say, 15 to 20 kilometres.  Lastly, the appellant's motivation in driving the way he did was to escape the police pursuit, and he foiled an attempt to stop him.  This brings me to a consideration of the extent to which the last factors, along with one other, had proper relevance in the sentencing process. 

2. The sentencing judge only had before him an indictment containing the one count of dangerous driving.  His Honour was told that at the time, the appellant's licence was suspended.  This Court was informed that in fact the appellant had been charged with a number of summary offences arising out of the same incident, for which he is yet to be sentenced.  For some reason, no application was made under s 385A of the Code to the sentencing judge for those matters to be dealt with at the same time as the indictment.

3. The summary charges are making off without payment (it being alleged that earlier in the day the appellant had obtained petrol without paying), resisting a police officer, evading police, and driving while not the holder of a driver's licence. It is the last two that need to be looked at, in particular, perhaps, the charge of evading police under s 11A(2A) of the Police Powers (Vehicle Interception) Act 2000. Section 11A(3C) requires a court that is imposing a sentence for the offence of evading police, at the same time as imposing a sentence for one or more other offences, not to include a sentence for evading police as part of a general sentence or mixed sentence, and to impose a separate sentence.

4. There remains the possibility that the appellant will be punished for the summary offences.  The question therefore arises as to the extent to which the facts of the separate offences, if relevant, can be taken into account in relation to the sentence for the dangerous driving. As a general rule, a sentence should take account of all the circumstances of the offence, subject to the principle that an offender cannot be punished for an offence of which he has not been found guilty or which is not before the court: R v De Simoni (1981) 147 CLR 383 at 387 per Gibbs CJ; Lovegrove v The Queen [1961] Tas SR 106. But notwithstanding that principle, in some cases it is permissible to take into account certain circumstances although they might have been, or are, the subject of a distinct charge. The practical difficulties and the risk of artificiality arising from the strict application of the principle are discussed in K Warner, Sentencing in Tasmania, 2^nd ed (2002), at [2.322]-[2.328], 41-46. 

5. Just what circumstances are properly taken into account in a particular case is a matter of degree: R v Lane [2011] SAFC 101 at [35].  To enable a sentencing court to take into account conduct amounting to a separate offence either not charged or not before the court, the facts of that offence must in some way form part of, or be directly related to one of the ingredients of the charge for which the offender is being sentenced: R v Causby [1984] Tas R 54 at 58 per Green CJ; Walsh v The Queen (1996) 6 Tas R 70 at 94 per Crawford J (as he then was); TGW v Tasmania [2017] TASCCA 10, 26 Tas R 106 at [18]-[21]. That may be simply by way of providing "context surrounding the commission of the offence": Quarrell v White [2004] TASSC 45 at [19].

6. In Moyle (above) the appellant had been charged with driving whilst disqualified and a "drink driving" offence, but had not been dealt with at the time of the Supreme Court sentence for an offence under s 167B of the Code.  At [19]-[20], Crawford CJ (in dissent as to the dismissal of Moyle's appeal) said that the appellant's driving whilst disqualified was a relevant consideration: "For example, it could be used to deny him leniency and to demonstrate the need for personal deterrence." His Honour said that similar comments applied to the fact that at the time of the driving, the appellant had a blood alcohol level of at least 0.15. The dangerous quality of the driving was to be assessed in light of the consumption of alcohol, "but the sentence should not have been increased simply because of those matters". 

7. As to the present case, the offence of evading police is made out if a driver of a vehicle takes action to avoid apprehension or interception by a police officer who is exercising powers or performing functions under any Act. The charge against the appellant is particularised as having occurred at Midway Point when he failed to pull over when police indicated for him to do so by turning on lights and sirens.  The evasion was just before the pursuit commenced, and there is no suggestion of dangerous driving being involved in the failure to stop. However, the evasion is relevant to the course of conduct the subject of the crime, because it is what gave rise to it.  It explains the appellant starting to drive in the way he did.  For the whole of the episode thereafter the appellant was escaping police pursuit.  That is a relevant 'Jurisic' factor. The significance of escaping pursuit is that it shows a complete disregard for authority. It also relates to the speed and manner of the driving, because it shows an intentional and deliberate course of conduct.

8. Similarly, for the reasons stated by Crawford CJ in Moyle, the fact that the appellant should not have been driving at all – because he was not the holder of a driver's licence – is relevant to a consideration of the circumstances of the dangerous driving.

9. At the risk of taking a trivial point, I am respectfully not inclined to agree with the sentencing judge's description of the level of the appellant's dangerous driving as "particularly" serious.  More serious examples can be seen within the sentences I have just discussed where collisions with other road users actually happened, and the level of potential danger very high.  However, the appellant's offending was of a serious enough nature to warrant a stern and robust response in the form of a lengthy term of imprisonment in order to give effect to general deterrence and denunciation.  There is also the question of personal deterrence. That brings me to the appellant's personal circumstances. 

10. It is quite plain that the appellant suffers impaired mental functioning.  That Crown counsel told the sentencing judge expert evidence would be required if the Verdins principles were to be enlivened, might be taken as an indication that the opinion of Dr Jordan, set out at some length by Evans J in May 2011, ought no longer be relied on.  Alternatively, it might be that the point was directed to proof of a causal connection between the impairment and the offending, so as to reduce moral culpability.  Then counsel for the appellant left it on the basis that the principle was "there to consider", but did not explain what aspects of Verdins he was referring to, and how the material supported any application of the principles.  The sentencing judge was entitled to have regard to the appellant's record of general traffic offending and, in particular, the sentence imposed for the quite similar incident in November 2010. 

11. There was nothing put to his Honour with any specificity to justify moderating the deterrent aspects of the sentence.  Additionally, although the previous incident was of some age, the need for public protection and consequent incapacitation might well have a role to play. 

Resolution

1. For the reasons which I have explained in the preceding part, on the material before the sentencing judge and as the matter was advanced on behalf of the appellant in this Court, I am not persuaded that the sentence was manifestly excessive.  The appeal should be dismissed.