Bishop v Tasmania

[2019] TASCCA 21

[2019] TASCCA 21

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

CITATION:              Bishop v Tasmania [2019] TASCCA 21

PARTIES:  BISHOP, Adam James
  v
  STATE OF TASMANIA

FILE NO:  2349/2019
DELIVERED ON:  26 November 2019
DELIVERED AT:  Hobart
HEARING DATE:  13 November 2019
JUDGMENT OF:  Wood J, Geason J, Martin AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Dangerous driving and summary offences including evading police with aggravating circumstances – Offender drove more than 50 kilometres involving multiple instances of danger and high risk – Sentence of 3 years and 9 months’ imprisonment with non-parole period of 2 years not manifestly excessive.

Banks v State of Tasmania [2019] TASCCA 1; Director of Public Prosecutions v Brown [2019] TASCCA 11, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  J Hartnett
Solicitors:
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2019] TASCCA 21
Number of paragraphs:  27

Serial No 21/2019

File No CCA 2349/2019

ADAM JAMES BISHOP v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
GEASON J
MARTIN AJ
26 November 2019

Order of the Court (13 November 2019)

Appeal dismissed.

Serial No 21/2019

File No CCA 2349/2019

ADAM JAMES BISHOP v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
26 November 2019

1For the reasons expressed by Martin AJ, I joined in the order made on 13 November 2019 dismissing this appeal.

File No CCA 2349/2019

ADAM JAMES BISHOP v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

GEASON J
26 November 2019

2I joined in the order dismissing the appeal for the reasons given by Martin AJ.  There is nothing I wish to add.

File No CCA 2349/2019

ADAM JAMES BISHOP v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARTIN AJ
2019
26 November 2019

Introduction

3The appellant pleaded guilty to dangerous driving contrary to s 172A of the Criminal Code.  He also entered pleas of guilty to summary offences of making off without payment, driving while not the holder of a driver's licence, evading police with aggravating circumstances and failing to stop at the scene of a crash, in which he was the driver.  Porter AJ imposed a sentence of imprisonment of 3 months for the offence of evading police. For the dangerous driving and other summary offences, his Honour imposed a sentence of 3 years and 6 months' imprisonment, to be served cumulatively upon the first sentence of 3 months.  In respect of the total sentence of 3 years and 9 months, his Honour ordered that the appellant be eligible for parole after serving 2 years.  In addition, the appellant was disqualified from driving for a period of 3 years commencing at the time of his release from prison.

4The appellant was unrepresented.  He prepared his own notice of appeal which contains the single ground of appeal that the sentence was manifestly excessive in all of the circumstances.

5At the conclusion of submissions the appeal was dismissed.  I now set out my reasons for agreeing with that order.

Facts

6On 25 February 2019 the appellant stole a motor vehicle from premises in New Town.  Three days later he was seen by police sitting in the stolen vehicle in a street in Lenah Valley.  When an officer approached the driver's side door, the appellant locked it and started the engine.  An officer instructed the appellant to open the door and tried to enter the vehicle, but the appellant drove off at speed.  The appellant's actions in this regard comprise the offence of evading police with aggravated circumstances.

7As to the events that followed, the learned sentencing judge summarised the appellant's conduct as follows:

"The officers pursued the defendant.  He was travelling over the speed limit and ultimately police lost sight of him.  Police units and the police helicopter were deployed.  About half and hour later, the defendant was seen by another police officer driving along the Channel Highway. The officer took up a position behind the defendant's vehicle who then sped up.  The defendant drove around a number of streets in Kingston and Kingston Beach, followed by the police officer. The defendant was travelling at excessive speed and at one point drove passed a road worker who was holding up a stop sign.  Several workers were on the road at this time.  The location was near the beach and the area was busy.  A short time later, at about 12.15pm, the defendant drove into a service station in Blackmans Bay.  He put about 30 litres of fuel into the vehicle worth a total of about $50, and then drove off without paying.  A number of police officers were in the area keeping a lookout for him.  One officer was stopped at a major roundabout watching for traffic coming out of Blackmans Bay.  He had with him a set of road spikes.  As the defendant was seen to approach, the officer went to deploy the road spikes but the defendant turned hard left, engaged the handbrake and, in trying to execute a U-turn, slid sideways and lost control of the vehicle.  The defendant then accelerated heavily across the continuous centre line and drove off in the opposite direction. As the defendant passed a school he was travelling at some 70 – 80 km/h in a 50 km/h zone.  He overtook two vehicles.  Another officer was then stationed at a nearby roundabout and a second attempt to use road spikes was made, but the defendant swerved into the oncoming traffic lane and drove around the device, going the wrong way through a roundabout and almost colliding with a vehicle travelling in the opposite direction.  Police then lost sight of him.  A short time later he was again seen driving in Kingston Beach.  He drove through a red light and drove away.  A short time later he was seen by police travelling on the Southern Outlet towards Hobart.  His speed was estimated at about 140 km/h in a 100 km/h zone.  He was weaving in and out of traffic.  At one point he came up behind cars in two lanes and overtook the vehicles off the roadway on the left hand side.  The defendant then left the Southern Outlet at the top of Mt Nelson.  Police lost sight of him.  A short time later he was seen driving at the bottom of the Nelson Road bends.  Again road spikes were utilised.  Again the defendant attempted to drive around them but the left front wheel was damaged.  This notwithstanding, the defendant continued to drive.  Road spikes were again deployed; the defendant again attempted to avoid the device, but the left front tyre was further damaged as were the rear tyres.  The defendant continued to drive away at speed, going the wrong way around a roundabout in Churchill Avenue, causing the driver of an oncoming vehicle to brake heavily and swerve to avoid a collision.  The defendant then drove along a number of streets in Sandy Bay, at one point driving on the wrong side of the road.  Eventually he travelled towards Davey Street, a one way street, where he turned right onto that street and drove the wrong way in an easterly direction.  Traffic was heavy and the defendant continued to drive in the face of that oncoming traffic.  He was travelling at a low speed at around 15 km/h when, at about 12.55pm, he collided with two oncoming vehicles.  He abandoned the vehicle and fled towards Anglesea Barracks but was chased down by a member of the public and held until police arrived.  Much of this is evident from what I have said, but the particulars of dangerous driving are as follows:

1Travelling at 65–70 km/h in a 50 km/h zone on Rattle Street, Lenah Valley. 

2Travelling at speed through an area where road workers were working on a roundabout in Pedder Street, Lenah Valley.

3Overtaking vehicles at 65 km/h in a 40 km/h zone on Osborne Esplanade, Kingston Beach.

4Failing to stop at a stop sign and travelling at speed through an area where road workers were working on Osborne Esplanade, Kingston Beach.

5Performing a handbrake turn and losing control of the vehicle before accelerating heavily across a continuous centre line, causing vehicles travelling in both directions on the roadway to brake to avoid a collision.  This was on Algona Road, Blackmans Bay.

6Overtaking vehicles at 70-80 km/h in a 50 km/h zone on Roslyn Avenue, Kingston.

7Failing to keep left by driving through a roundabout on the wrong side of the road, almost colliding with a vehicle travelling in the opposite direction, in order to avoid a vehicle immobiliser device. This was on Roslyn Avenue, Kingston.

8Disobeying a red light on Beach Road, Kingston Beach.

9Travelling at 140 km/h in the 100 km/h zone, weaving in and out of traffic and overtaking vehicles on the left, on the Southern Outlet.

10Failing to keep left by swerving to the opposite side of the road, in order to avoid a vehicle immobilisation device, on Nelson Road, Sandy Bay.

11Travelling at 60 to 80 km/h in a 50 km/h zone and failing to keep left by swerving to the opposite side of the road, in order to avoid a vehicle immobilisation device, on Nelson Road, Sandy Bay.

12Failing to keep left by driving through a roundabout on the wrong side of the road, causing an oncoming vehicle to brake heavily and swerve to avoid a collision, on Alexander Street, Sandy Bay.

13Travelling on the incorrect side of the road, on Sandy Bay Road, Sandy Bay.

14Mounting a traffic island, overtaking a line of vehicles waiting at a traffic light and traveling on the incorrect side of the road, causing oncoming traffic to swerve to avoid a collision, on Byron Street, Sandy Bay. 

15Driving against the flow of traffic and colliding with two vehicles, on Davey Street, Hobart."

8The total distance covered by the appellant in the course of his dangerous driving was in excess of 50 kilometres.  At that time the appellant did not hold a driver's licence and was on bail in relation to dishonesty offences.  He was in breach of his bail by failing to obey a curfew and by failing to report as required by the conditions of his bail.

9Following the appellant's arrest, an oral fluid sample was taken from him which subsequently revealed the presence of methylamphetamine.  When interviewed, the appellant made full admissions in relation to his conduct.  He told police he was in Lenah Valley to meet his drug dealer, and when he realised police were approaching he locked the doors, started the engine and drove off.

10No victim impact statements were provided to the sentencing judge, but his Honour made the observation that the collisions in Davey Street were undoubtedly a shock to the drivers involved.  Those vehicles were insured and had been repaired.

11As to matters personal to the appellant, the trial judge summarised the relevant circumstances:

"His parents separated when he was very young and he had significant behavioural problems.  Regrettably, when he was 7 years old, he was struck by a car and has ongoing chronic pain issues.  Highly prominent in his history is a longstanding substance abuse problem.  His dishonesty relates to obtaining money for drugs.  He has what was described as an on and off relationship with a woman which started when he was 19.  They have a 6 year old child.  She has no involvement with drugs and has attempted to prove guidance to him.  Various attempts at rehabilitation over the years have failed.  He has had the benefit of two drug treatment orders, in respect of which I am told he attempted to do his best, but did not succeed.  That ultimately led to his partner withdrawing her support and he found himself without accommodation.  Shortly before these events, contact with his daughter was withdrawn.  His substance abuse worsened as a result.  The defendant's counsel frankly said there was very little to be said for the events. It seems to be the case that he did not intentionally drive the wrong way in Davey Street, but made a mistake. Counsel pointed out that he made significant admissions. I am told that he is still motivated and 'desperate' to attempt rehabilitation.  He felt at a very low ebb in the period before this offending.  He has some incentive to reform due to the fact that his mother is ill and he wants to be able to care for her."

12The appellant has a lengthy record of prior offending commencing in 1999.  The sentencing judge noted that, in the main, the prior offending related to offences of dishonesty, but also observed that the appellant regularly offended with respect to conditions of bail and committed breaches of community service orders.  In 2009 the appellant was convicted of driving while disqualified and, in 2018, for driving without a licence and with an illicit drug present in his system.  The appellant has been the subject of actual terms of imprisonment, as well as terms of imprisonment which were suspended.  In January 2016, while serving a sentence of imprisonment for 20 months, the appellant was released on parole, but that parole was revoked approximately 3 weeks later.  The appellant was resentenced on 30 December 2018 for matters of dishonesty, together with fresh dishonesty offences and breaching bail. He was sentenced to imprisonment for 7 months, but 4 months of that sentence were suspended. The offending with which the sentencing judge was concerned was committed in breach of that suspended sentence.

13As the sentencing judge correctly observed, the appellant's drug addiction has been at the heart of his offending, but there was a need to "give full weight to the requirements for specific deterrence and community protection".  His Honour added that "general deterrence and denunciation of this type of conduct are prominent factors".

14The sentencing judge took into account the utilitarian value of the pleas of guilty and found that the appellant was entitled to "some discount" for those pleas.  His Honour also had regard to the issue of totality and the requirement that the sentence "must reflect the overall criminality of the behaviour".  In his Honour's view, with which I agree, the appellant's conduct was a "most serious example of this type of offence".  His Honour continued:

"First, to put things in context, you should not have been driving at all.  You were driving a stolen motor vehicle.  As to the driving, you persisted in driving over a very considerable distance, and which involved multiple instances of actual danger and high risk.  The risk of serious consequences to other road users and pedestrians was indeed very high, although fortunately they did not materialise.  Many people were put at risk.  Several police officers were involved in the attempt at apprehending you.  Having first evaded the police by driving away from them, much of the subsequent driving conduct was deliberately done to avoid being caught. You repeatedly ignored police attempts to stop you. That shows a high disregard for authority, and the motivation adds a factor of desperation to the driving, and hence adds to the potential danger. You had also used methylamphetamine, further adding to the dangers you posed.  I take into account the little that can be said in your favour."

Appellant's submissions

15The appellant read brief submissions during which he acknowledged that he had done the "wrong thing".  He explained background personal circumstances which caused him to reach his "lowest point ever" and to resume taking drugs.  The appellant said he is determined not to offend again and is anxious to avoid a long period in prison because he fears becoming institutionalised and wishes to care for his mother.

16The appellant acknowledged being under the influence of drugs, but asserted that he was aware of his surroundings and of other road users.

17As to the length of sentence, the appellant referred to other sentences which he suggested demonstrated that his sentence is excessive.

Principles

18There is no apparent error in the approach of the sentencing judge to the task of arriving at an appropriate sentence for the total criminal conduct.  Dangerous driving was made a crime under the Criminal Code in September 2017, and the relevant principles to be applied in sentencing for this crime were discussed in the judgment of Porter AJ, with which Brett and Geason JJ agreed, in Banks v State of Tasmania [2019] TASCCA 1 at [26]-[37]. In particular, his Honour identified general deterrence as a "prominent factor" in sentencing for dangerous driving, and provided a list of factors relevant to an assessment of the seriousness of the dangerous driving (in addition to the extent and nature of injuries inflicted):

·"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."

19In addition, his Honour added "degree of sleep deprivation" and "failing to stop" to that list.

20The judgment of Porter AJ was applied by the Court of Criminal Appeal in DPP v Brown [2019] TASCCA 11.  In a joint judgment, Blow CJ and Pearce J observed that the degree of culpability and dangerous driving cases may "vary widely" because of the wide range of behaviour which may constitute the offence.  In addition, their Honours noted with approval the discussion by Porter AJ concerning the limited use which can be made by the appellate court of previous sentences for the crime of dangerous driving.  Having observed that the usefulness or otherwise of statistics and tables of sentences had been the subject of "much authoritative discussion[1]", Porter AJ summarised the position at [39]:

"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."

[1] 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.

21The Director of Public Prosecutions (DPP) provided a table of 25 sentences imposed for the crime of dangerous driving as at 14 May 2019.  In oral submissions, counsel advised that there have been 14 relevant sentences since 14 May 2019.

22The introduction of the crime of dangerous driving into the Code in September 2017 resulted in a large increase in the maximum penalty from 2 to 21 years, and in an increased focus on deterrence and denunciation.  Although the sentence imposed upon the appellant is the highest sentence imposed for the crime since it was introduced into the Code, penalties have increased and are demonstrative of not only the legislative change, but of a change in community attitudes to this type of offending.

23Recently an offender was sentenced to imprisonment for 3 years for two crimes of dangerous driving and multiple offences of dishonesty.  In addition, a cumulative sentence of 10 months was imposed for a number of offences of evading police, making a total sentence of 3 years and 10 months.[2] Prior to that sentence, the previous highest were two sentences of 3 years and 3 months' imprisonment.  In each of those matters summary offences were included in the total sentence.

[2] Andrew James Brennan, sentenced 5 August 2019.

24The limited number of sentences imposed for the crime of dangerous driving over two years, is insufficient to provide a "sentencing range" for this crime.  In addition, as the circumstances can vary infinitely, it is unlikely that any form of fixed sentencing range will ever be established[3].  However, as Porter AJ observed, previous sentences amount to a "yard-stick" which provide a "broad understanding of the range of sentences that would ensure consistency, but do not fix boundaries".  His Honour noted that in these circumstances the fact that a sentence is outside the existing range of comparable offending "simply calls for closer scrutiny".

[3] Manslaughter is an example of a crime involving such a variety of circumstances that a fixed range or tariff cannot be established.

25Further, in the absence of specific error by the sentencing judge, this Court can only interfere if the sentence is "unreasonable or plainly unjust". The relevant principles were helpfully identified by Pearce J, with whom Blow CJ and Porter J agreed, in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA1 at [8]:

"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

Conclusion

26I agree with the sentencing judge that this was a particularly serious crime of dangerous driving committed over a long distance and over a lengthy period.  Great risk was caused to numerous road users and persons in the vicinity.  High speed in residential streets, and continued offending despite extensive police efforts to bring the conduct to a halt, were involved. It is pure good fortune that no one was injured or killed.  There were no mitigating circumstances and the crime was committed by an offender with a lengthy and significant record of prior offending.

27In these circumstances, in my opinion the sentence is within the range of the sentencing discretion.  It is undoubtedly a heavy sentence but, in my view, it is an appropriate sentence.