Cowen v Tasmania
[2018] TASCCA 17
•1 November 2018
[2018] TASCCA 17
COURT: SUPREME COURT OF TASMANIA
CITATION: Cowen v Tasmania [2018] TASCCA 17
PARTIES: COWEN, Kristel Cee Anne
v
STATE OF TASMANIA
FILE NO: CCA 1696/2018
DELIVERED ON: 1 November 2018
DELIVERED AT: Hobart
HEARING DATE: 12 October 2018
JUDGMENT OF: Blow CJ, Estcourt J, Martin AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Manslaughter – Intoxicated motorist caused fatal collision with motorcycle – Sentence of six years' imprisonment with non-parole period of four years not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: T Kovacic
Respondent: L Mason SC, M Figg
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 17
Number of paragraphs: 23
Serial No 17/2018
File No CCA 1696/2018
KRISTEL CEE ANNE COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
ESTCOURT J
MARTIN AJ
1 November 2018
Order of the Court (12 October 2018)
Appeal dismissed.
Serial No 17/2018
File No CCA 1696/2018
KRISTEL CEE ANNE COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
1 November 2018
On the night of 14 October 2016 the appellant, Kristel Cowen, became very intoxicated, drove south along the northbound lanes of the Brooker Highway, and collided with a motorcycle, killing its rider. She was charged with manslaughter, pleaded guilty, and was sentenced by Brett J to six years' imprisonment, with a non-parole period of four years, and an order disqualifying her from driving for five years after her release from prison.
Ms Cowen appealed to this Court, contending that the head sentence of six years and the non-parole period of four years were manifestly excessive. On 12 October 2018, at the conclusion of the hearing of the appeal, this Court dismissed the appeal, reserving its reasons for publication at a later date.
The facts, circumstances, and applicable legal principles are fully set out in the reasons for judgment of Estcourt J, with which I fully agree. There is a little that I would like to add.
In my view the head sentence of six years' imprisonment was a moderate one, but the non-parole period of four years was a long one. A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. In this case, the learned sentencing judge made it clear that he considered a non-parole period of four years to be the minimum time that the appellant should spend in custody "because of the seriousness of the circumstances of the crime". I decided that that conclusion was reasonably open to the learned sentencing judge, and that it did not indicate any sort of error in the exercise of his sentencing discretion.
File No CCA 1696/2018
KRISTEL CEE ANNE COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
1 November 2018
The appeal
The appellant, Kristel Cee Anne Cowen, appeals against a sentence imposed upon her by Brett J on 6 June 2018.
The learned sentencing judge convicted the appellant of one count of manslaughter constituted by driving a motor vehicle with culpable negligence.
The appellant appeals on the sole ground that the sentence was manifestly excessive.
The law
The legal principles applicable to appeals against sentence on the ground of manifest excess are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J. 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. The sentence must be unreasonable or plainly unjust so as to give rise to the inference that there has been an error in the exercise of the discretion.
The facts
The learned sentencing judge summarised the Crown facts stated on the sentencing hearing and drew relevant inferences as follows:
"The crime was committed at about 11pm on 14 October 2016, when the motor vehicle that you were driving collided with the motorcycle being driven by Dion Hardy. The collision occurred on the Brooker Highway in the northbound lanes, just past the Elwick Road junction. Mr Hardy was just leaving the junction, after stopping for a red light. He was travelling at about 45 km/h at the time of the collision. You had driven your vehicle onto the incorrect side of the central dividing fence of the highway at a point well north of the collision site, and were travelling south in the same northbound lane in which Mr Hardy was travelling north. It is estimated that your vehicle was moving at a speed of approximately 62 km/h at the point of impact. The relevant speed limit was 40 km/h. It was regulated at that level because of extant roadworks.
As a result of the collision, Mr Hardy was thrown from the motorcycle and came to rest approximately 10.4 metres from the point of impact. He was wearing a helmet but this came off at the time of impact. He suffered head injuries which were almost instantaneously fatal.
It is clear that the collision, and hence Mr Hardy's death, occurred because you were travelling at high speed on the incorrect side of the Brooker Highway. Although there were two northbound lanes at the point of impact, it is probable that your vehicle swerved into Mr Hardy's path. Irrespective of this, your culpable negligence was completely responsible for the collision. Mr Hardy was riding his motorcycle on the correct side of the road at a relatively modest speed. There was no evidence of alcohol or drugs in his blood, and eyewitness testimony confirms that, for some distance prior to the collision, he was riding his motorcycle in an appropriate manner and well within the speed limit. There is no suggestion that his actions or manner of driving contributed to the collision in any way.
You were the sole occupant of your vehicle. Although it is not known with precision where you commenced to drive your motor vehicle on the incorrect side of the Brooker Highway, the nearest opportunity for you to do so was approximately 2 km north of the site of the collision with Mr Hardy's motorcycle. This is consistent with observations of your vehicle made shortly prior to the collision. Within that 2 km distance of the collision site, you had passed at least three other vehicles travelling north along the Brooker. At least two of those vehicles were forced to take evasive action to avoid collision with you. You did not reduce the speed of your vehicle as you went past the three vehicles, and your speed was estimated by one of them to be between 100 and 120 km/h. This was at a point where the speed limit was 80 kph. It is clear that the collision with Mr Hardy occurred very soon after you drove past the last of these vehicles.
You were heavily affected by alcohol at the time of the collision. A blood sample taken from you after the collision revealed a blood alcohol concentration of 0.213 grams of alcohol per 100 mL of blood. This is an extremely high reading which is well over four times the legal alcohol limit of .05. A number of prescription drugs were also found in your blood. While these drugs may have had some impact on your capacity to safely drive the vehicle, particularly when they were combined with the effect of the alcohol, the level of alcohol concentration in your blood, by itself, would have made it impossible for you to be able to control your motor vehicle safely. The presence of the alcohol is consistent with the very high level of culpable negligence involved in travelling onto the incorrect side of a major highway, and continuing to drive on that side at relatively high speed, notwithstanding the fact that oncoming traffic had been forced to take evasive action on a number of occasions. As soon as you commenced to drive the vehicle with that level of alcohol in your system, there was an extremely high risk that you would cause death or serious injury to yourself or to somebody else. Tragically, in this case, that risk manifested in the death of Mr Hardy."
Victim Impact
The learned sentencing judge made the following observations drawn from his consideration of the victim impact statements presented to him on the sentencing hearing:
"Mr Hardy was 48 years of age at the time of his death. He was married and had three children, as well as some grandchildren. Unsurprisingly, his death has devastated his family. I have received and considered a lengthy impact statement from his wife. That statement eloquently describes the shock, grief and practical and financial consequences which have been experienced by her and her family as a result of your crime. The experience of grief is an ongoing and predominant feature of Ms Fisher's life. She has required medication for ongoing depression, and is struggling financially. Mr Hardy's father has also felt his son's loss keenly, and is suffering from severe depression. Your culpable negligence cost this man his life and has taken him away from, and permanently and harshly affected, the lives of those who were closest to him."
The appellant's personal circumstances
His Honour summarised the appellant's personal circumstances as follows:
"At the time that you committed this crime, you were 36 years of age. You have two children aged 10 and 8. The early part of your life is unremarkable and seems to have been relatively happy and stable. You had a good upbringing, your time at school was positive and after you left school, you maintained regular employment. You met your late husband when you were 16. You and he later married and had your children. You were together for 19 years, until he passed away suddenly from an accidental overdose of prescription medication. This occurred three years before you committed this crime. His death affected you deeply, and seems to have precipitated an extremely difficult period of your life. Initially, you were medicated to deal with reactive depression and ongoing shock arising from his death. As time went on, your consumption of alcohol, which had not been a problem before his death, increased, and you eventually fell into a pattern of binge drinking on weekends. Your use of alcohol remained at a problematic level and then escalated and intensified shortly before the commission of this crime. [...].
By the time that you committed the crime with which I am dealing today, you were drinking significant quantities of alcohol on a daily basis. The psychiatrist considers that at the time of this crime, you were suffering from a severe Alcohol Use Disorder, and experiencing symptoms consistent with a diagnosis of acute stress disorder and a major depressive episode. These symptoms relating to the latter conditions have intensified since the collision, and it is now considered that they are symptoms indicative of post-traumatic stress disorder. The psychiatrist was unsure about the current level of your alcohol consumption. It would seem, that since the collision you have continued drinking, but I do note that since the latter part of 2017, you have engaged with a number of services relevant to treatment for your alcohol problem. In terms of the relationship between these psychological conditions and this crime, the psychiatrist considers that the abduction and related crimes, three weeks before and their psychological consequences, explains the increase in your alcohol consumption. However, in the opinion of the psychiatrist, these conditions 'did not deprive you of your awareness that you should not drink and drive'. The psychiatrist notes that your decision to drive seems to have been deliberate, and notes that you had fitted your seatbelt, started the car and driven to the Brooker Highway with your headlights on."
Verdins considerations
His Honour considered the application of the principles stated in Verdins (R v Verdins, Buckley and Vo [2007] VSCA 102, 16 VR 269) as follows:
"It is common ground between counsel that the first four Verdins principles are not engaged in this case, having regard to the psychiatric evidence. This would seem to me to be self-evident. I have no doubt that your horrific experience three weeks before caused your drinking to escalate dramatically, and probably affected your overall capacity to exercise appropriate judgment about your behaviour. Having said that, in my judgment, the fact that you suffered as a result of those crimes, and that you seemed to have lost the capacity by the time that you committed this crime to control your alcohol intake, did not directly affect your decision to get behind the wheel of a motor vehicle in a drunken state and drive the vehicle with resultant culpable negligence. Even in the case of heavy and uncontrolled drinking, the decision to drive is still that, a deliberate decision not motivated nor made more irresistible by the effect of alcohol. To the extent that heavy drinking affects the capacity for clear judgment, that fact alone cannot mitigate the culpability arising from a decision to drive a motor vehicle in such a state. Further, it will not mitigate the objective seriousness of the culpable negligence demonstrated by your manner of driving. Viewed objectively, driving on the incorrect side of a busy highway at considerable speed for a considerable distance, past vehicles which have needed to take evasive action to avoid collision with you, and then colliding with another vehicle which was then driving in a safe manner on the correct side of the road places this case among the more serious examples of this crime. It is common knowledge that the Brooker is a major arterial highway, and hence can, at all times, be expected to carry significant traffic in both directions. I accept that this manner of driving occurred because of your intoxicated state. In that sense, this case can be contrasted with cases where the dangerous manner of driving has arisen from deliberate and sober decision-making, such as competitive driving, showing off, bravado, flight, or simply a desire to drive without sensible restriction. However, in my view, the fact that the driving occurred because of alcohol voluntarily consumed provides no significant mitigation, and there is little effective distinction in personal culpability from a case where the manner of driving has arisen from other causes. Accordingly, I agree with the Director's submission that, although the events three weeks before may affect in a modest way your personal culpability and are generally relevant to your personal circumstances, they do not operate in any other significant way to reduce the seriousness of your conduct or the sentence which should be imposed.
It is however accepted by the prosecution that principles five and six of Verdins may have some relevance in this case. According to the psychiatrist, imprisonment will weigh more heavily on you because of your mental health and, in particular, may have an adverse effect on your depressive illness. The psychiatrist points out that this will need to be monitored and treated while in prison, but there is nothing to suggest that appropriate treatment will not be available. The psychiatrist also makes what I again regard to be a relatively self-evident point, that imprisonment will have a positive effect on your alcohol use disorder, as it will mandate abstinence from alcohol. This may also have a longer term positive effect on your symptoms of depression."
Mitigating circumstances
As to circumstances to be taken into account in favour of the appellant the learned sentencing judge made the following comments:
"There are some matters which can be taken into account in your favour in a general way. Apart from driving offences and some minor offences relating to your own possession of drugs, you do not have any significant criminal history. Further, despite the recent difficulties in your life and your problems with the abuse of alcohol, you have generally maintained employment. At the time of commission of this crime, you were utilising qualifications you had obtained after your husband's death to work as a disability support worker. You remain committed to your children, although it seems in recent times they have been living with your parents who reside in the property adjacent to yours. Your parents and wider family are supportive of you and I have received a number of references which speak well of your general character. You have expressed remorse and sought counselling to assist you to come to terms with what you have done. Your plea of guilty provides some evidence of remorse. Although the plea has come relatively late in the day, this can be explained by the decision of your former legal advisors to obtain extensive psychiatric evidence, and then controversy among the parties as to the relevance and legal effect of this evidence. At the very least, your plea has meant that the deceased's family will not have to endure the ordeal of a trial. You should receive some credit for this.
Finally, I note that a psychologist considers that you may have suffered a traumatic brain injury as a result of the collision. The effect of this injury is not serious enough to be consistent with a normative disability, and any cognitive impairment should resolve within 2 years after the injury."
Aggravating circumstances
As to circumstances to be taken into account in aggravation of the appellant's offending the learned sentencing judge made the following comments:
"A further matter which is relevant to your personal culpability is your record of prior offending. There is a relatively lengthy record of traffic offending. There is a relatively lengthy record of traffic offending, which includes a number of speeding infringements, and the serious offences of driving whilst disqualified. You did not have any convictions prior to the commission of this crime for drink-driving. However, at the time of commission of this crime, you were on bail in respect of two counts of driving a motor vehicle while exceeding the prescribed alcohol limit. You have subsequently been convicted of those offences. The first was committed on 21 July 2016, which is prior to the commission of the crimes against you, and the consequent escalation in your drinking behaviour. The second was committed, presumably while on bail for the first, on 2 October 2016, some 12 days before the commission of this crime. In my view, the fact that you committed this crime in the context of drunken driving, while on bail for two other charges involving driving while over the alcohol limit, is a factor which significantly aggravates your culpability."
Comments on passing sentence
His Honour made the following comments on passing sentence:
"It is necessary for the sentence in this case to take into account and, as far as possible, balance these various factors. There is nothing I can say or do in these proceedings which will restore Mr Hardy to his family, nor even, I suspect, provide any real or long term relief of their pain. Looked at objectively, this is a serious case of manslaughter by culpable negligence and it was committed while you were subject to bail in respect of two other acts of drink-driving. General deterrence and denunciation are, in my view, the most significant sentencing factors in this case, but personal deterrence also has some relevance. There should be a modest reduction in the sentence to take account of your plea of guilty and the personal factors to which I have referred.
KC, you are convicted of the crime of manslaughter and sentenced to imprisonment for a period of six years. But for your plea of guilty the sentence would have been one of seven years' imprisonment. This sentence will be backdated to the day on which you were remanded in custody, which is 23 May 2018. It is appropriate to make an order which will facilitate your early release on parole, having regard to the desirability of allowing you to integrate back into the community under supervision. However, because of the seriousness of the circumstances of the crime, I consider that the minimum time which you should spend in custody is a period of four years. Accordingly, pursuant to s 17(2) of the Sentencing Act 1997, I order that you not be eligible for parole until you have served that period of four years' imprisonment. You will be disqualified from driving for a period of five years from the date of your release from custody."
Discussion
In The Director of Public Prosecutions v Watson [2004] TASSC 54, Underwood J (as he then was), with whom Blow J (as he then was), agreed, made the following observations in relation to the crime of manslaughter committed by the culpably negligent driving of a motor vehicle at [11]-[23]:
"11 According to Professor Warner's Sentencing in Tasmania, (2nd edn) at par 11.219, 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 (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 par 7, 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 …"
The factual matrix in Shipton v The Queen [2003] TASSC 23, was set out in the judgment of Cox CJ at [3]:
"The learned sentencing judge described the sequence of events as follows in his comments on passing sentence:
'Mr Shipton commenced his journey soon after 3pm on 10 October 2001. He had as a passenger his girlfriend then 33 weeks' pregnant. He was intoxicated, returning a blood alcohol reading of .203 some hours subsequent. The presence of a pregnant partner as a passenger in no way caused him to postpone his journey, nor modify his conduct.
At 3.30pm, his vehicle knocked over a sign adjacent to a small shop at which the offender stopped. The offender was staggering as he visited the shop and his general condition and manner of driving caused the shopkeeper to attempt to notify police. At the same place, Mr Shipton nearly pinned a Ms Flynn to a guard rail.
At approximately 4.10pm, Mr Shipton was seen at a supermarket in Mowbray in a drunken state and urging his partner to hurry up.At 4.20pm, he was further seen at a nearby Pizza Hut intoxicated.
Between about 4.40pm and the time of the fatal collision, the offender drove in such a manner and speed that he endangered the lives of numerous motorists. At about 4.55pm, he attempted to pass a Honda sedan on its inside, endangering the driver and her two young children. It continuously swerved from side to side, attempting to pass another vehicle at a dangerous part of the road and continuing on in the face of an oncoming log truck. He passed a further vehicle and in this portion of the observed driving, endangered the lives of the drivers and occupants of at least four vehicles over a distance of some kilometres. Two of those drivers were so alarmed about future danger to others that they attempted to notify police.
At about 5pm, Mr Shipton had almost reached the township of Dilston. He passed another vehicle containing a mother and her two children and accelerated away from her vehicle. His vehicle exceeded the speed limit and travelled at such a speed and in such a manner that a number of persons in the area were spared, only by fate, from death or injury.
Shortly thereafter, Mr Shipton struck Marian Elliget's Mitsubishi Starwagon as she drove from Lefroy to Launceston. He had veered to the right and, despite attempts by the Mitsubishi to avoid collision, struck that vehicle at its front. The force of impact caused extensive injuries to Marian Elliget and she died shortly after the accident. In the opinion of the accident investigating officer, the speed of the driver's vehicle was 92 km/h.
...
The accident caused the death of the unborn child, of whom the offender was the father.
The course of driving which took the life of a woman, deprived children of a mother and a partner of his beloved, was prolonged and committed in the face of clear evidence known to the offender that he was intoxicated. The death was a product, not of a terrible mis-judgment, but the end result of criminal behaviour committed for over one and a half hours. The conduct, by the very randomness of the eventual victim, touches and awakens the deepest and darkest fears of every responsible user of the roads and members of their families. In this case, a number of persons going about their ordinary lives were imperilled by that conduct and the randomness of the eventual victim is in itself an horrific consequence.'
The speed limit was 80 kilometres per hour."
The Court of Criminal Appeal of New South Wales delivered a guideline judgment in Jurisic v The Queen (1998) 45 NSWLR 209 in respect of the offences of dangerous driving causing death or grievous bodily harm under the Crimes Act 1900 (NSW), s 52A. Among the aggravating factors listed by Spigelman CJ at 231 were the extent and nature of the injuries inflicted, the number of people put at risk, the degree of speed, the degree of intoxication or of substance abuse, and the length of the journey during which others were exposed to risk.
The appellant was not, of course, charged with an offence the gravamen of which involved a series of erratic driving events, but some of the relevant features of her crime could hardly be more egregious. Unlike Mr Shipton the appellant did not drive for an hour and a half while heavily intoxicated but she did drive for a distance of 2 kilometres prior to the fatal collision on the wrong side of one of Tasmania's most trafficked suburban highways at 11pm on a Friday night in summer. She had passed at least three other vehicles travelling north along the Brooker Highway, at least two of which were forced to take evasive action to avoid a collision with her, apparently without her noticing. She did not reduce the speed of her vehicle as she went past the three vehicles on her wrong side of a divided road, and her speed was estimated to be between 100 and 120 kilometres per hour, when the speed limit was 80 kilometres per hour. She was obviously grossly affected by alcohol at the time of the collision as evidenced by a blood alcohol concentration of 0.213 grams of alcohol per 100 millilitres of blood.
In Watson (above) Underwood J said of Shipton (above), that "it was a very bad case". So was the present case. The matters I have alluded to in the light of the observations in Shipton and Watson would be sufficient to justify the head sentence and the non-parole period in the present case. However were any authority required to reinforce the availability of longer sentences for crimes of this nature 15 years on since Shipton, it can be found in the comments of the High Court in R v Kilic [2016] HCA 48, 259 CLR 256 at [21]:
"Section 5(2)(b) of the Sentencing Act 1991 (Vic) required Judge Montgomery, and the Court of Appeal, to have regard to 'current sentencing practices'. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders]. Consideration of 'current sentencing practices' will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations." [Footnotes omitted.]
Disposition
It follows from the foregoing that, to my mind, the sentence imposed by the learned sentencing judge was within the range of sentences available to him in the exercise of his discretion, and that it cannot be said that the sentencing order was so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion. General deterrence and denunciation were powerful sentencing considerations in this case and the sentence rightly recognised them, in my view.
For these reasons I joined in the order dismissing the appeal.
File No CCA 1696/2018
KRISTEL CEE ANNE COWEN v STATE OF TASMANIA
REASONS FOR JUDGMENT MARTIN AJ
1 November 2018
I agreed that the appeal should be dismissed for the reasons given by Estcourt J.
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