Baumer v R

[1988] HCA 67

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Deane, Dawson and Gaudron JJ.

BAUMER v. THE QUEEN

(1988) 166 CLR 51

8 December 1988

Criminal Law (N.T.)

Criminal Law (N.T.)—Dangerous acts—Absence of intention to cause specific danger—Sentence—Imprisonment for prescribed term if act causes grievous bodily harm—Further term if offender intoxicated—Criminal Code (N.T.), s. 154.

Decision

MASON C.J., WILSON, DEANE, DAWSON AND GAUDRON JJ. In February 1987 the applicant pleaded guilty in the Supreme Court of the Northern Territory to a charge that on 17 April 1986, whilst under the influence of alcohol, he did a dangerous act in that he drove a motor vehicle inbound on the outbound carriageway on the Stuart Highway and collided with another vehicle thereby causing grievous harm to a passenger in that other vehicle. The offence is commonly referred to as culpable driving causing grievous harm and is created by s.154 of the Criminal Code (N.T.) ("the Code"). That section reads as follows:
"154.(1) Any person who does or makes any act or
omission that causes serious, actual or potential danger to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.

(2) If he thereby causes grievous harm to any

person he is liable to imprisonment for 7 years. (3) If he thereby causes death to any person

he is liable to imprisonment for 10 years. (4) If at the time of doing or making such

act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years. (5) For the purposes of this section

voluntary intoxication is relevant only to penalty."

2. The applicant's offence was obviously a serious one of its kind. It was aggravated by the fact that the applicant was heavily intoxicated at the time. The maximum penalty was imprisonment for eleven years and the applicant was liable to be disqualified from driving a motor vehicle for such period as the court thought fit (the Code, s.390(9)). Furthermore, he had a bad criminal record, including many offences relating to motor vehicles. In sentencing the applicant, the trial judge (Asche J.) noted his record, saying:
"What increases the seriousness of this particular
offence is the literally appalling record of the accused so far as prior offences in relation to driving are concerned."

His Honour also observed that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of society. We will return to these observations later in these reasons. In the result, his Honour, after noting some factors in mitigation, imposed a sentence of eight years imprisonment with a non-parole period of four years and ordered that the applicant be disqualified from obtaining or holding a driver's licence for twenty years.

3. The applicant applied to the Court of Criminal Appeal for leave to appeal against the sentence and the period of disqualification on the ground that both were manifestly excessive in all the circumstances of the case. Leave was granted but by majority (O'Leary C.J. and Muirhead A.J., Maurice J. dissenting) the appeal was dismissed. The applicant now seeks special leave to appeal to this Court.

4. The principal ground advanced in support of the application for special leave is directed to the proper construction of s.154, and s.154(4) in particular. The Chief Justice expressed his view of the effect of s.154(4) in the following terms:

"In my opinion, sub-section (4) of s.154

represents a deliberate and radical departure by the legislature from the previous legislation dealing with offences of the kind covered by the section, including, as I have said, driving offences. ... Whatever weight may have been given under the previous legislation to the fact that an offender was under the influence of an intoxicating substance at the time of the offence, and whatever weight may be given to that fact under other legislation elsewhere, in my opinion, the clear legislative intention as expressed in s.154(4) of the Code is that, not only must that fact be taken into account as an aggravating circumstance of the offence, but as an aggravating circumstance rendering the offender liable to a specific further substantial penalty in addition to any other penalty to which he is liable under the section. In my opinion, therefore, the fact that an offender was under the influence of an intoxicating substance at the time of the offence is a factor to which a sentencing authority must give separate and serious consideration when fixing the appropriate penalty for the offence, and he must do so bearing in mind the further specific penalty provided by the sub-section, a penalty, it is to be noted, almost as severe as that provided for in sub-section (1)."

Implicit in the Chief Justice's approach was the view that the effect of s.154(4), when applicable, is to require a two-stage approach to sentencing. That view was made express by Muirhead A.J. when he said:

"... in the course of sentencing, the court must consider sub-section (4) as a separate exercise. ... Where the intoxication is coincidental, rather than causative or in itself dangerous, the 'loaded' maximum of 4 years may not justify a significant increase in the substantive sentence. But where it looms large in causation and in assessment of the degree of danger the policy of the legislature cannot be ignored by the sentencing court. So, in the present case, his Honour in exercising his sentencing discretion under sub-sections (1) and (2) was required to impose a sentence within a maximum range of 7 years. The degree of intoxication then fell for consideration ... I consider this approach, i.e. separate

consideration of sub-section (4), is required by reason of its wording 'liable to further imprisonment for 4 years'... ."

5. On the other hand, Maurice J., in his dissenting opinion, said as follows:
"I cannot find in s.154 of the Criminal

Code any directive justifying a wholesale increase in penalties for culpable driving causing grievous bodily harm. The section is not specifically targeted at driving; potentially it covers an infinite range of human activity, at one end of the scale creating only limited potential danger to the health or safety of one member of the public and at the other involving actual grave danger to the lives, health and safety of many. ... So far as alcohol is concerned, at least in

culpable driving cases, there is nothing novel about treating it as an aggravating circumstance calling for the imposition of a higher penalty than otherwise. In this regard, s.154(4) merely reflects universally established judicial practice. The subsection does no more than make alcohol an aggravating feature. Care must be taken in driving cases to ensure that it is not brought into account twice: once in assessing culpability in accordance with past judicial practice when dealing with this type of offence, and again when considering subsection (4). It must be remembered the Act is a code: it sets out to state this area of the law in its entirety. For the most part, it reflects the existing law and s.154(4) ought to be seen in this light, not as a prescription for some radical departure from past sentencing practice."

6. We have cited these passages from the reasons for judgment of their Honours in order to demonstrate the marked conflict of opinion, expressed in the Court of Criminal Appeal, concerning the operation and effect of s.154(4). We are of the opinion that the truth lies somewhere between the two positions.

7. Section 154 of the Code is an unusual section. As Maurice J. observed, it is not specifically aimed at driving. It casts a wide net, so as to cover all acts or omissions endangering the life, health or safety of any member of the public where the risk ought to have been clearly foreseen and the act or omission avoided. The offence so created can therefore cover an enormous range of conduct from the comparatively trivial to the most serious. The maximum penalties prescribed are to be seen and applied in that light. The predecessor in the Northern Territory to s.154, in relation to culpable driving causing grievous harm, was s.16A(1) of the Criminal Law Consolidation Act and Ordinance. That sub-section read as follows:
"16A.(1) Any person who
(a) drives a motor vehicle in a culpably

negligent manner, or recklessly, or at a speed, or in a manner, which is dangerous to the public; and

(b) by such negligence, recklessness, or other conduct, causes the death of, or grievous bodily harm to, any person,

Shall be guilty of a misdemeanor. Penalty: Imprisonment for 7 years or a fine of 500 dollars or both."

8. The provisions of s.154(4) are unique to the Northern Territory in so far as the sub-section prescribes a further maximum penalty to which an offender is liable if, at the time of the act or omission constituting the offence, he is under the influence of an intoxicating substance. The identification of a separate penalty coupled with the presence of the word "further" led the majority in the court below to construe the sub-section as "a deliberate and radical departure" by the legislature from previous legislation; it requires the sentencing authority to give "separate and serious consideration" to the question of intoxication when fixing an appropriate penalty for an offence, remembering that the offender is liable to a specific further substantial penalty in addition to any other penalty to which he is liable.

9. One problem with this construction is the practical difficulty, if not impossibility, of giving effect to it. It is important to note the elements of the substantive offence created by s.154(1): an act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it; in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger; and not have made that act or omission. An intention to cause a particular result is not an element of the offence. But foreseeability of the danger to "an ordinary person similarly circumstanced" is an element. Presumably, in an appropriate case, the words "an ordinary person" are intended to comprehend a person who, while in other respects is similarly circumstanced to the offender, is nevertheless not under the influence of an intoxicating substance.

10. It would not be surprising if in many cases under s.154, there being no necessity to prove an intention to cause a specific result, the influence of an intoxicating substance was the only explanation for the commission of the offence. If, in such circumstances, the section requires a two-stage approach to the sentencing process, it is difficult to envisage how the court could avoid taking the factor of intoxication into account twice. Take the present case. It would be highly artificial for the court to evaluate, for the purpose of fixing a primary sentence within the limit prescribed by s.154(2), culpability of the applicant in driving his vehicle the wrong way in a one-way section of a highway and causing grievous harm to a person without having regard to the fact that he was drunk, for the court would then be left with a set of circumstances which probably would never have happened. To the extent that reality is injected into the evaluation, that must prevent the "separate and serious consideration" of the additional penalty that constitutes the second phase of the process.

11. On the other hand, the view expressed by Maurice J. in dissent fails to pay sufficient regard to the change in the law effected by s.154(4). In the application of the sub-section to cases of culpable driving, his Honour said that it "merely reflects universally established judicial practice" and "does no more than make alcohol an aggravating feature". Furthermore, in his discussion of what would be an appropriate penalty in the present case, Maurice J. did not appear to concede any effect to the generally higher terms of imprisonment prescribed by the section.

12. In our opinion, s.154(4) is a clear expression of concern by the legislature over the effect of intoxication on the level of crime in the community in the context of dangerous acts or omissions lacking an intention to cause a specific result. It does not require a court to engage in a two-stage approach to sentencing with separate consideration being given to the fact that an offender was under the influence of an intoxicating substance. But, in such a case, it does require a court to have regard to the higher maximum penalty resulting from the cumulative effect of s.154(4) on the other sub-sections of the section.

13. The applicant's conviction exposed him to liability to imprisonment for a maximum term of eleven years. This is a higher maximum term than the term which was applicable to a similar offence in similar circumstances prior to the enactment of the Code in 1983. The change, therefore, required some adjustment to the range of sentences that would formerly have been considered appropriate. This is so, notwithstanding the variety of dangerous acts that may be embraced within the section. As we have noted, some of these offences could attract far more serious consequences than the ordinary case of culpable driving and this consideration could have the effect of limiting the impact of the higher maximum on the latter kind of offence. There may be much truth in the observations of King C.J. in Reg. v. Johnston (1985) 38 SASR 582, at p 586, cited by Maurice J.:
"The typical dangerous driver is not a hardened
criminal. The thought of prison is as frightening to him as it is to almost all citizens who are not hardened offenders. The deterrent to such a person is the threat of imprisonment rather than the duration of the threatened imprisonment. If a driver is not deterred from a dangerous course of driving by the threat of imprisonment for eighteen months or two years, is it realistic to suppose that he will be deterred by the prospect of two and a half or three and a half years imprisonment? The truth is that in the great majority of cases, he simply does not expect to be involved in a serious accident." Nevertheless, the fact remains that a clear expression of legislative will, while permitting some latitude in application, must be given effect.

14. In the present case, therefore, the task of the sentencing judge was to evaluate the circumstances of the offence in their entirety, including the influence of alcohol, and to determine an appropriate term of imprisonment having regard to the prescribed maximum of eleven years and to the possible range of offences to which it applied. His Honour purported to proceed in this way. However, the manner in which his Honour performed the task is open to question in two respects. We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of the public is open to misunderstanding. Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more. In applying a section like s.154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence.

15. The question of law concerning the proper construction of s.154(4) is a question of general importance which warrants the grant of special leave to appeal. Since we have expressed a different opinion to the opinions expressed in the court below, it is appropriate that we enable the Court of Criminal Appeal to impose a fresh sentence and disqualification. There should be an extension of time in which to make application for special leave to appeal. Special leave should be granted, the appeal allowed and the order of the Court of Criminal Appeal, in so far as it dismisses the appeal to that Court, set aside. The matter should be remitted to the Court of Criminal Appeal to be dealt with according to law.

Orders

Application for an extension of time in which to apply for special leave to appeal granted.

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of the Supreme Court of the Northern Territory in so far as it dismisses the appeal to that Court.

Remit the matter to the Court of Criminal Appeal for the appeal to that Court to be dealt with according to law.