Demur v The Queen
[2014] NTCCA 15
•8 OCTOBER 2014
Demur v The Queen [2014] NTCCA 15
PARTIES:DEMUR, SAM STEFAN
-v-
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:21326467 (CCA No. 7 of 2014)
DELIVERED: 8 OCTOBER 2014
HEARING DATES: 24 SEPTEMBER 2014
JUDGMENT OF: RILEY CJ, BLOKLAND and HILEY JJ
CATCHWORDS:
APPEAL – CRIMINAL LAW – Application for extension of time – Application for leave to appeal against sentence – Rehearing of refusal to grant leave – Single ground of appeal – Manifestly excessive sentence – Discretionary order – Disqualification of driver’s licence – Punitive and protective elements of sentencing – General deterrence – Youth, prior good character and rehabilitation – Impact upon employment prospects of offender compelling – Application for extension of time allowed – Leave to appeal granted – Appeal allowed – Resentenced – Length of disqualification reduced – Sentencing Act 1995 (NT), s 98.
Sentencing Act 1995 (NT).
Cranssen v The Queen (1936) 55 CLR 509; Director of Public Prosecution v Oates (2007) 47 MVR 483; Liddy v The Queen [2005] NTCCA 4; R v Franklin [2009] VSCA 77; R v Jurisic (1998) 45 NSWLR 209; R v Musumeci (1997) NSWCCA (30 October 1997); R v Tait and Bartley (1979) 24 ALR 473; R v Veatufunga [2007] NSWCCA 54; R v Whyte (2002) 55 NSWLR 252; Rich v Australian Securities and Investment Commission (2004)220 CLR 129, applied.
Baumer v The Queen (1989) 40 A Crim R 74; Baumer v The Queen (1988) 166 CLR 51; Baumer v The Queen (1987) 48 NTR 1; Director of Public Prosecutions v Neethling (2009) 22 VR 466; R v Dang Hai Nguyen [2009] VSCA 64; R v Lefebure [2000] VSCA 79; R v Sean Douglas Lynch SCC 21011383 (20 October 2010); Veen v The Queen (No 2) (1988) 164 CLR 465, referred to.
REPRESENTATION:
Counsel:
Appellant:I Read SC
Respondent: S Robson
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: BLO 1412
Number of pages: 16
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDemur -v- The Queen [2014] NTCCA 15
No. 21326467
BETWEEN:
DEMUR, SAM STEFAN
Appellant
AND:
THE QUEEN
Respondent
CORAM: RILEY CJ, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 8 OCTOBER 2014)
The Court:
Introduction
This is a re-hearing of an application for an extension of time and leave to appeal against a sentence passed on 25 March 2014. A single judge refused the application on 17 June 2014. The re-hearing before this Court is confined to proposed ground three of the appeal:
“That the Learned Sentencing Judge imposed a licence disqualification period that was manifestly excessive”.
Proceedings Before the Supreme Court
On 19 March 2014 the appellant pleaded guilty to the following four counts, arising out of one driving episode on 9 June 2013:
Count 1: drove a motor vehicle dangerously and caused serious harm to James Monfries; contrary to s 174F(2) of the Criminal Code.
Count 2: recklessly endangered serious harm to Clinton Cobb; contrary to s 174D of the Criminal Code.
Count 3: recklessly endangered serious harm to Jason Hoepner; contrary to s 174D of the Criminal Code.
Count 4: recklessly endangered serious harm to Trent Lawton; contrary to s 174D of the Criminal Code.
Each charge carries a maximum penalty of seven years.
On count 1 the appellant was sentenced to three years and three months imprisonment. On each of counts 2, 3 and 4, the appellant was sentenced to eight months imprisonment, to be served concurrently with the sentence imposed on count 1. The total sentence of three years and three months was ordered to be suspended after the appellant served a term of 18 months imprisonment. Additionally, and of primary relevance to this application, the appellant’s licence to drive was cancelled and he was disqualified from driving for 10 years from the date of sentencing. Given the appellant is to be in custody for 18 months, the disqualification period post release is eight and a half years.
The principles relating to an appeal against discretionary orders are well known. An appellate court does not interfere with the sentence or order because it takes the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or wrongly assessing a salient feature of the case. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error. The presumption is that there is no error. An appellant relying on this ground must show that the sentence is clearly and not just arguably excessive.[1] We have given full consideration to the discretionary nature of the disqualification order. We have concluded the disqualification period was manifestly excessive.
The sentencing judge described the offending as very serious, and said that the appellant bore a high level of moral culpability for his offending. That was clearly the case. His Honour also made observations about the appellant’s youth and good character. Of the appellant’s prospects of rehabilitation, his Honour said, that while the prospects were difficult to assess, they were not without some hope. Clearly his Honour intended the principles of general deterrence and the protection of the community were to be well reflected in the overall sentence. His Honour’s approach was consistent with relevant authorities that deal with sentences in cases of this kind.[2] This was evident in his Honour’s remarks made immediately after the order cancelling the appellant’s licence and disqualifying him from driving for 10 years. His Honour said:
“Young men must learn that offences such as these will not be tolerated. Dangerous driving such as this is a serious crime and passengers and other road users must be protected. Not only can people’s lives be utterly devastated by such conduct but the cost to the community and the burden placed on the community’s health and medical resources is enormous”.
It is helpful to set out the main features of the offending and the personal circumstances of the appellant to place the assessment of the length of the disqualification, in its proper context.
Broadly, the facts accepted by his Honour were that late on the evening of 8 June 2013 and early on 9 June 2013, the appellant consumed alcohol with others at ‘Bojangles’, Alice Springs. James Monfries, the victim in respect of count 1, was working as a DJ at Bojangles and was drinking and socialising at various times with the appellant. The appellant and James Monfries knew each other, but not well.
At around 6:05am on 9 June 2013, the appellant left Bojangles and walked to his car with two friends, Jason Hoepner and Trent Lawton. They intended to continue drinking at the appellant’s residence.
The appellant, Mr Hoepner and Mr Lawton all got into the appellant’s utility. The appellant drove a short distance and stopped where James Monfries and Clinton Cobb were standing. Mr Monfries intended to walk home but Mr Cobb suggested they get a lift with the appellant, who agreed to give them a lift. Mr Monfries jumped into the rear tray of the utility and Mr Cobb got into the driver’s side passenger seat. The appellant then drove in a southerly direction down Gap Road. He drove erratically, at speed, swerving across the roadway. Mr Monfries was crouched down in the tray, partly on his back, keeping himself low.
At the approach to the Tom Brown roundabout, Clinton Cobb told the appellant that Mr Monfries was in the back of the utility. The appellant applied the brakes, stopping the utility in the middle of the roundabout and said “ah, shit mate I didn't know. Is he in the back mate?” The appellant then got out of the utility and spoke to Mr Monfries in the back of the utility before getting back inside and driving off.
He drove at high speeds along a number of streets in Alice Springs and lost control of the vehicle when attempting to negotiate a slight left-hand curve in the road between Woolla and Karee Courts. The utility entered a counter clockwise yaw and the rear driver’s side struck a tree on the opposite side of the road. The utility then rotated in a clockwise direction, the front passenger side tyre collided with the curb which caused the vehicle to roll twice before coming to rest on its wheels. Mr Monfries was thrown from the rear tray of the vehicle and came to rest on the road. He was unconscious and suffered serious injuries (summarised further below) that are likely to result in ongoing impairment.
The appellant, James Hoepner and Trent Lawton got out of the vehicle at the scene. The appellant assisted Clinton Cobb to get out of the vehicle. Mr Cobb realised Mr Monfries was seriously injured. He placed him in the recovery position and called out for someone to call an ambulance.
The appellant suggested to the other passengers that they should leave, saying “just run just run”. A nearby resident who witnessed some aggressive behaviour between the appellant and others after the accident, called police.
When police arrived, enquiries were made with Mr Cobb and Mr Hoepner. Mr Lawton had already left the scene. The attending police officer asked the appellant whether he was driving. The appellant did not reply. The appellant was asked to produce his licence and he did so. When asked again whether he was driving he replied “yes, I was driving”. He did not answer police questions about how many people were in the utility. Police at the scene were attempting to account for all persons who may have been in the vehicle. The appellant did not cooperate with police who attended the scene. Mr Monfries was taken to hospital in one ambulance; Mr Cobb and Mr Hoepner were taken in another ambulance.
On the way to the hospital the appellant told paramedics he did not know that there was anyone in the tray of the utility and did not know who the guy in the back of the ute was. He was asked how much he had to drink and he said he was “smashed”. He was asked whether he had taken anything else that night and he replied “yes, but that was earlier”. After being told that another person would tell police there were two other people in the car, the appellant said: “I’m going to kill that fat fuck”.
On 11 June 2013 the appellant participated in a record of interview with police. He stated he was unable to recall the crash or related events. He admitted to being intoxicated at the time. Testing of his blood alcohol concentration on 9 June 2013 revealed a blood alcohol level of 0.132 % as well as the presence of Delta-9-tetrahydrocannabinol (THC).
The injuries suffered by James Monfries were very serious and were a significant factor in relation to the assessment of the gravity of the offending.
On admission to Alice Springs Hospital Mr Monfries was intubated and ventilated. He was in a comatose state. A CT scan revealed a left frontal subdural haematoma and spinal fractures. He was transferred to the spinal unit of the Royal Adelaide Hospital on 9 June 2013. The following injuries were revealed after examination: left frontal subdural haematoma and scalp lacerations; bilateral nasal bone fractures; a C6 surgical vertebral fracture; T3 and T4 thoracic vertebral fractures; right L2 spinal fractures; fractured right clavicle; fracture of the right scapula; multiple rib fractures; fractured right thumb; and bilateral pulmonary contusions.
On 13 June 2013 surgery was performed with respect to some of the injuries Mr Monfries suffered. He was required to wear a neck collar for six weeks and stay in the acute and neuro-surgical ward of the Royal Adelaide Hospital. He experienced life-threatening neurologic disorders including seizures and required further intensive care treatment.
On 30 July 2013 Mr Monfries was transferred to the Hampstead Rehabilitation Centre. His conscious state slowly improved. He was in a state of post-traumatic amnesia until 28 August 2013. It was determined he had suffered an extremely severe brain injury. His vision was noted to be defective, most significantly in his left eye, and there was some hearing impairment. He was transferred to the Epworth Rehabilitation Centre in Richmond, Victoria and was assessed as having been in post-traumatic amnesia for 80 days. A later assessment showed he had slow speed of information processing, sustained inattention, problems with his memory and reasoning, and that he experienced behavioural changes. Although discharged from inpatient care on 31 October 2013, he still required assistance with some personal tasks and supervision with outdoor mobility due to poor scanning because of his vision defects.
His Honour concluded that had Mr Monfries not been treated he would have most likely died from the injuries.
The victim impact statements from Mr Monfries’ father confirmed the ongoing serious disabilities both physical, psychologically and cognitively that were experienced by Mr Monfries. At the time of writing the second victim impact statement (on 7 March 2014) Mr Monfries was being cared for by his parents. His disabilities were categorised as long term.
His Honour concluded the appellant did not show any remorse for his conduct until sometime after the accident. He found the appellant’s remorse to be qualified by the fact that he had not tried to contact Mr Monfries or his parents or assist them. His Honour took into account the appellant’s relatively young age, his previous good driving record and his early pleas of guilty. His Honour noted that the appellant had shown responsibility while he was at work, leading to the conclusion that his prospects of rehabilitation were “not without hope”.
Consideration
Section 98(a) of the Sentencing Act confers a wide discretion on a Court to cancel an offender’s driver’s licence and impose a disqualification. The period of disqualification may be “for such time as [the Court] thinks fit”.
The appellant argued the disqualification period was manifestly excessive because, unlike cases involving repeat driving offenders, the appellant had no criminal history. He had no record of any driving offending and had been driving since he was 17. He was 22 at the time of the offending. It was argued that lengthy disqualification periods should be reserved for recalcitrant drivers and those who cannot be entrusted with the privilege to drive because their prospects of rehabilitation are poor. Further, it was submitted that the appellant’s prospects of work upon release would be significantly increased if he were permitted to drive. In our opinion, in this particular case, the appellant and the community would benefit from the appellant being permitted to drive at some reasonable time after his release.
We were referred to the principles in Baumer v The Queen,[3] that deal with sentencing for culpable driving including setting disqualification periods. Baumer involved a lengthy licence disqualification for a repeat traffic offender who had pleaded guilty to the now repealed offence, “Dangerous Act”[4] with circumstances of aggravation. The circumstances of aggravation were that grievous harm was caused and the offence was committed when the offender was under the influence of alcohol. Maurice J examined the range of penalties, particularly disqualification periods[5] imposed for similar offending in both the Northern Territory and other jurisdictions. His Honour concluded that an appropriate disqualification period in that particular instance would have been five years rather than the twenty year period set by the sentencing judge. His Honour said that the disqualification period “should not exceed the period of imprisonment so greatly as to induce in the appellant a sense of hopelessness”. The majority, in this first appeal by Baumer found no error with the disqualification period set by the sentencing judge.
Although the appeal to the High Court in Baumer turned on the construction of the circumstance of aggravation in s154(4) of the Criminal Code, the High Court also disapproved of an approach that would increase the sentence beyond what was appropriate because of previous convictions.[6] When the case was remitted to the Court of Criminal Appeal (NT), the original 20 year disqualification period was reduced to seven years. One of the reasons the Court reduced the disqualification period was to ensure that previous convictions did not inappropriately elevate the sentence and that the use of previous convictions was consistent with the principles in Veen v The Queen (No 2).[7] The Court also held that due regard should be had to the term of imprisonment to be served when setting a disqualification period and that an offender’s prospects of rehabilitation should be considered, including the effect of any disqualification period on employment prospects.
Although we acknowledge relevant comparisons with Baumer must be considered in the light of the particular issues dealt with and the different statutory regime that applied at that trial, we see no conflict between the approach taken in Baumer when compared with recent cases from other jurisdictions. Nothing in Baumer v The Queen stands for the proposition that first offenders may not receive lengthy disqualification periods for serious driving offences, however, as the setting of a disqualification period is a matter of discretion, inevitably a balancing and weighing of all relevant factors will be required. Some factors may require particular emphasis in a given case.
A number of recent decisions emphasise that because of the prevalence of young people driving dangerously, factors such as youth, prior good character and rehabilitation must be given less weight than general deterrence. In Director of Public Prosecutions v Neethling,[8] the Victorian Court of Appeal, referred to recent guideline judgments on the subject dealt with in the New South Wales Court of Criminal Appeal. The Victorian Court of Appeal adopted a number of propositions set out by Hunt CJ in R v Musumeci,[9] a case of dangerous driving causing death. Relevantly those propositions are:
3) Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in any other types of cases;
4) The courts must tread warily in showing leniency for good character in such cases;
5) So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
The Victorian Court of Appeal in Neethling also adopted principles set out in Director of Public Prosecutions v Oates[10] drawn from relevant New South Wales cases[11] confirming the importance of general deterrence in cases of culpable driving causing death or serious injury. It was said that such sentences must take account of variations in culpability of the person responsible, and that a custodial sentence will usually be appropriate, except in cases where the offender’s level of moral culpability is low. In Neethling the Court also went on to observe that the principle of rehabilitation as the primary concern in sentencing a young offender sometimes gives way to other sentencing considerations. This was said to be because of the tendency of young drivers to drive dangerously, thus elevating the weight to be given to general deterrence and reducing the relative weight given to “youth”.[12] Another observation made in the cases was that young people were often the victims of crimes of this type.
We accept a disqualification period is both punitive and protective.[13] It operates as a powerful public deterrent. With those factors in mind, the following passage from R v Lefebure[14] provides a helpful description of the relevant considerations when setting the term of the disqualification:
“…the following considerations are to be taken into account on the imposition of a period of disqualification. First, since the disqualification falling to be imposed contains a punitive element, it is necessary to evaluate the extent to which disqualification is required in the total punishment in order to mark the dissatisfaction of the community with the offence. In making that evaluation, aggravating or mitigating factors are to be considered, and also is to be weighed the length of the disqualification compared with any period of custody which is ordered. It is not necessary that the two should be equated in length. Sometimes it is desirable, balancing all the facts, that a period of disqualification will exceed the length of the period of any custody…Next, it is usually appropriate that, in assessing the necessary length of any disqualification period, the convicted person’s dependency on a driving licence should be taken into account. To do so it is usually necessary to ensure that the prospects of rehabilitation of the convicted person will not be unduly hampered. Such considerations as the necessity or convenience of a motor vehicle when looking for, obtaining and maintaining employment are to be considered”.
We found the argument on behalf of the appellant with respect to employment prospects to be compelling. The appellant’s counsel told the sentencing judge that at the time of the offending he was employed in the Alice Springs convenience store and at the time of sentencing as an attendant at an Alice Springs service station. Although the details provided to his Honour about employment and the associated need to possess a licence were scant, it may readily be inferred that the appellant’s prospects of employment and therefore rehabilitation will be significantly enhanced when he is in a position to obtain his licence. Apart from his dreadful driving on this occasion, there is no evidence that suggests he is likely to engage in similar behaviour again. Rather, his clean record and the various character references tendered show him to be a well-respected and responsible member of the community.
Unlike the offender in The Queen v Sean Douglas Lynch,[15] who was disqualified for a period of 10 years, the appellant here had no previous traffic or other convictions.
In Lynch, a case involving serious injuries of similar severity to those suffered by the victim in this case, the sentencing judge characterized the offender’s driving history as “horrendous”. The lengthy disqualification period may be readily understood in that context as emphasizing protection of the public.
In principle the disqualification period should be longer than the period of imprisonment so that the disqualification has some “real and manifest sting”[16] from both the point of view of personal and general deterrence. That said it has also been held that disqualification should not inhibit the offender’s rehabilitation “too greatly”,[17] particularly where it is determined that there is no need to protect the public. Rehabilitation may be heavily dependent upon an offender’s ability to obtain employment.
In R v Dang Hai Nguyen[18] Williams AJA concluded the offender’s dependency on a driving licence was relevant in setting the term for disqualification so that prospects of rehabilitation were not undermined. Although in Nguyen there was no direct evidence about the future need for a licence, his Honour inferred that rehabilitation prospects would be enhanced by the ability to obtain a licence. The same may be readily inferred here.
In our opinion the punitive elements of sentencing and general deterrence are satisfied in this case by the imposition of a disqualification period that is significantly less than the period originally imposed.
We consider that the sentence was manifestly excessive in relation to the disqualification period.
Orders
The application for an extension of time in which to appeal is allowed. Leave to appeal is granted in respect of the single ground of appeal. The appeal is allowed.
We order that the disqualification period be reduced from ten years to five years from the date of the imposition of sentence, on 25 March 2014.
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[1]R v Tait and Bartley (1979) 24 ALR 473 at 476; Cranssen v R (1936) 55 CLR 509; Liddy v R [2005] NTCCA 4 at [12].
[2] See, Director of Public Prosecution v Neethling (2009) 22 VR 466 at [27]-[28]; R v Musumeci (1997) NSWCCA (30 October 1997), 30 October 1997, unreported; R v Whyte (2002) 55 NSWLR 252; R v Jurisic (1998) 45 NSWLR 209; Director of Public Prosecution v Oates (2007) 47 MVR 483 at 487.
[3] (1987) 48 NTR 1; and the later decision in relation to re-sentencing after the High Court appeal, Baumer v The Queen (1989) 40 A Crim R 74.
[4] Contrary to s 154 of the Criminal Code.
[5] Baumer v The Queen (1987) 48 NTR 1 at 5-13.
[6] Baumer v The Queen (1988) 166 CLR 51 at 57.
[7] (1988) 164 CLR 465.
[8] (2009) 22 VR 466 at [27] – [28] (Neethling).
[9] Unreported, NSW Court of Criminal Appeal, 30 October 1997, as cited in Neethling (above) at [28].
[10] (2007) 47 MVR 483 at 487.
[11] R v Whyte (2002) 55 NSWLR 252; R v Musumeci (1997) NSWCCA (30 October 1997); R v Jurisic (1998) 45 NSWLR 209.
[12] Neethling at [53]-[55].
[13] In the sense discussed in Rich v Australian Securities and Investment Commission (2004)220 CLR 129 at 146 dealing with disqualification from management of a corporation.
[14] [2000] VSCA 79, per Tadgell JA at [7]-[8].
[15] SCC 21011383 (20 October 2010).
[16] R v Veatufunga [2007] NSWCCA 4, at [40] per Sully J; The Queen v Franklin [2009] VSCA 77.
[17] The Queen v Franklin [2009] VSCA 77 at [37] per Warren CJ.
[18] [2009] VSCA 64.