Director of Public Prosecutions v Brown

[2019] TASCCA 11

[2019] TASCCA 11

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

CITATION:                 Director of Public Prosecutions v Brown [2019] TASCCA 11

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  BROWN, Cody David

FILE NO:  742/2019
DELIVERED ON:  20 August 2019
DELIVERED AT:  Hobart
HEARING DATE:  3 June 2019
JUDGMENT OF:  Blow CJ, Pearce J, Marshall AJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Dangerous driving – Many motorists forced to take evasive action – One collision – Fourth conviction – Never licensed – Breach of bail condition requiring no driving – Evasion of police – Sentence of 22 months' imprisonment with non-parole period of 12 months manifestly inadequate.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC, A C Norton
             Respondent:  F Cangelosi
Solicitors:
             Appellant:  Director of Public Prosecutions

Judgment Number:  [2019] TASCCA 11
Number of paragraphs:  48

Serial No 11/2019

File No 742/2019

DIRECTOR OF PUBLIC PROSECUTIONS v CODY DAVID BROWN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
MARSHALL AJ
20 August 2019

Orders of the Court

1. Appeal allowed.

1. Sentence of 22 months' imprisonment set aside.

1. In substitution for that sentence, the respondent is sentenced to 2 years 8 months' imprisonment with effect from 25 July 2018.

1. That the sentence of 4 months' imprisonment imposed on the charge of evading police on complaint 6702/18 be served cumulatively with the sentence of 2 years 8 months' imprisonment.

1. Order as to parole made on 20 March 2019 set aside.

1. In substitution, that the respondent not be eligible for parole until he has served half of the sentence of 2 years 8 months' imprisonment and half of the cumulative sentence of 4 months' imprisonment.

1. For the purposes of s 92A of the Sentencing Act 1997, it is specified that:

(a)the total term of imprisonment that the respondent is liable to serve for the said sentences of 2 years 8 months and 4 months is 3 years;

(b)the respondent will not be eligible for parole until he has served a total of 18 months' imprisonment in respect of those two sentences; and

(c)the sentences imposed upon the respondent by a magistrate on 1 April 2019 are each to be served cumulatively with the sentences of 2 years 8 months' imprisonment and 4 months' imprisonment.

Serial No 11/2019

File No 742/2019

DIRECTOR OF PUBLIC PROSECUTIONS v CODY DAVID BROWN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
20 August 2019

1. This is a Crown appeal against sentence. On 8 March 2019 the respondent pleaded guilty to one count of dangerous driving contrary to the Criminal Code, s 172A, and to a number of related summary offences including evading police contrary to the Police Powers (Vehicle Interception) Act 2000, s 11A. He was sentenced by Geason J. The effective result of the sentencing orders made by his Honour was imposition of a term of imprisonment for 22 months from 25 July 2018 and disqualification from driving for three years. His Honour ordered that the respondent not be eligible for parole until he had served 12 months of the term. The Director of Public Prosecutions appeals on the sole ground that the sentence is manifestly inadequate. For the following reasons we would allow the appeal.

2. Sentences for dangerous driving, and the principles to be applied, were recently reviewed by this Court in Banks v Tasmania [2019] TASCCA 1. The sentence now under appeal is a bad case of dangerous driving associated with other serious offending. Other circumstances, including the respondent's bad record, pointed to a high level of criminal culpability. In our view, when all of the circumstances relevant to sentence are considered, the sentence imposed was unreasonable or plainly unjust. Only a limited number of sentences have been imposed since dangerous driving was made a crime under the Criminal Code in September 2017. Some are harsher than the sentence in this case, and some are less harsh. The limited use which can be made of such sentences was explained by Porter AJ, with whom Brett and Geason JJ agreed, in Banks at [38]-[43]. The degree of culpability in dangerous driving cases may vary widely because of the wide range of behaviour which may constitute the offence. However, this is a serious case, and the intervention of this Court is required so as to "maintain adequate standards of punishment for crime ... and ... to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience": DPP v Dalgliesh (a pseudonym) [2017] HCA 41, 262 CLR 428 per Kiefel CJ, Bell and Keane JJ at [63] citing Griffiths v The Queen (1977) 137 CLR 293 at 310; Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Osenkowski (1982) 30 SASR 212 at 213; Wong v The Queen [2001] HCA 64, 207 CLR 584 at 591-592 [8].

The circumstances of the offences

1. Just after 3 pm on Thursday 12 July 2018 police in an unmarked car parked in Goodwood, a residential suburb of Hobart, saw a Hyundai Excel drive past. They recognised the respondent as the driver. A female was in the front passenger seat and another person was in the back. The respondent knew that he should not have been driving because he had no driver licence and had been admitted to bail by a magistrate that morning on condition that he not drive. Having been spotted by the police, he sped off along Barron Street. The speed limit in that area is 50 kph. The police activated the emergency lights on their car and followed. To avoid being held up by a car waiting at the intersection of Barron Street and Howard Road, the respondent drove onto the incorrect side of the road around the central traffic island and turned right. He drove along Howard Road to the roundabout at the corner with Acton Crescent. Without indicating he turned right, cutting through the roundabout on the incorrect side of the road, before accelerating to about 90 kph. He drove onto Renfrew Circle towards the Brooker Highway. The Brooker Highway is the major arterial road for vehicles travelling into and out of Hobart from the north. It is almost always subject to heavy traffic, especially during the mid-afternoon on a school day. There are multiple traffic lanes in both directions. There were traffic lights at the intersection which the respondent drove to. Against a red light he drove across both lanes of the highway, causing cars on the highway to brake heavily to avoid a collision. The police lost sight of him.

2. A few minutes later, he was spotted by different police officers. He was crossing the intersection of the Brooker Highway about two kilometres away, headed into another residential area with a 50 kph speed limit. The police followed and again the respondent saw them. He accelerated to 90 kph. There was not much traffic but the respondent had to brake heavily at an intersection to give way to a car coming from his right. Once the path was clear he turned right onto Michael Street and right again onto Lennox Avenue, accelerating to 80 to 90 kph. He turned right onto Ashbolt Crescent without giving way, causing cars from both directions to take evasive action. Again he headed for the Brooker Highway and reached a different intersection, also controlled by traffic lights. At the time, the intersection was subject to road works and there was a well signposted 40 kph speed limit. Road workers in high visibility clothing were present. When the respondent reached the intersection, he drove around cars waiting at a red light and continued across the highway. There was heavy traffic in both directions all crossing the intersection with a green light. Cars on the highway were forced to slow down or take other evasive action to avoid a collision. Not all were successful. One driver accelerated heavily to try to get out of the respondent's way, but the respondent's car clipped the rear of his car. Fortunately that driver was not injured.

3. The respondent did not stop. He exited the highway onto Bowen Road, travelling onto the wrong side of the road and over a traffic island as he did so. More cars had to get out of his way. A marked police car joined the chase, but all of the police deactivated their lights and sirens when they realised that the respondent was accelerating heavily and not stopping. He entered the intersection with Central Avenue at such speed that his car slid sideways onto the wrong side of the road. At the intersection of Central Avenue and Hopkins Street he turned right at high speed through the incorrect side of the roundabout when his vision of traffic was reduced by buildings and topography. Again, the police lost sight of him due to his speed.

4. He was seen again four minutes later, a couple of kilometres away, in Highfield Street. He drove past a police car travelling in the opposite direction. He accelerated away, overtaking a car in Amy Street as he did so. He then sped through the streets of Springfield, sometimes veering onto the incorrect side of the road, causing at least one other car to have to evade him. The police lost him again. By 3.21 pm, the use of road spikes had been authorised. On the way to setting up the road spikes a police car drove past the respondent travelling in the opposite direction on Barossa Road. He was driving in excess of the speed limit and straddling the centre line. As they followed, the respondent performed an illegal turn, and drove back past them at speeds of up to 100 kph and sometimes on the incorrect side of the road. He drove to Tolosa Street. When he saw that road spikes had been set up there he performed a U-turn to avoid them. He drove back along Barossa Road on the incorrect side of the road and into the path of an oncoming police car. About five metres before impact the respondent veered back to his correct side of the road, continued past and again sped off out of sight. He was seen again a few minutes later by a marked police car near the corner of Reibey Street and Ashbourne Grove. He drove around a sharp turn at such speed as to cause his car to slide towards the police car which was forced up onto the footpath to avoid him. He was last seen by a member of the public who he overtook, speeding off towards Claremont.

5. The respondent was not located and arrested until the following day.

The respondent's circumstances

1. The respondent was aged 24 when sentenced. He comes from circumstances of disadvantage. As a child he left the family home with his mother after she was exposed to family violence. Thereafter his living arrangements became unstable and he started using illicit drugs, principally cannabis and amphetamines. He has had a serious problem with abuse of illicit drugs since then. He now has three children of his own. They live with their mother, but he has contact with them from time to time.

2. The respondent was first sentenced to detention when he was 14 for numerous counts of burglary, aggravated burglary, stealing and motor vehicle stealing. Between then and now he has been sentenced on many occasions for dishonest offending of that kind and has been in and out of detention and prison. His record also includes 23 convictions for driving while disqualified, four for evading police, and three for dangerous driving. He has never held a driver licence. On our count there are also four prior convictions for driving without a licence. A drug treatment order was made on 16 September 2015 but was quickly breached, and on 13 January 2016 he was ordered to serve a term of imprisonment of ten months, cumulatively with other suspended terms of imprisonment and detention which were activated at the same time. One of the offences which led to the cancellation of the drug treatment order and activation of the suspended sentences was dangerous driving, committed on 9 October 2015 while he was subject to the drug treatment order. That case of dangerous driving was associated with an attempt to evade the police. He was released on parole on 8 February 2017. The custodial sentences expired on 15 November 2017.

3. The respondent is charged with committing more offences after his release from prison in February 2017. For some of the time between then and the commission of this crime he was in custody. This crime was committed on 12 July 2018 in the afternoon. He had appeared in the Magistrates Court during the morning of that day. He was granted bail on condition that he not drive a motor vehicle. The respondent's counsel told the sentencing judge that, at the time, the respondent was using drugs to excess. After leaving the court that morning, and before he drove, he used drugs again.

The offences and sentences

1. We agree with the analysis of the sentencing considerations for dangerous driving, since it was made a crime in September 2017, undertaken by Porter AJ in Banks, at [26]-[37]. That passage is set out in full in the reasons of Marshall AJ and it is not necessary for us to repeat it. Amendments to the charge of evading police contrary to the Police Powers (Vehicle Interception) Act, s 11A, made as part of the same suite of legislative changes, require imposition of a separate sentence for that offence. It was accepted that the respondent was to be sentenced under s 11A(2A) of that Act, and so the offence was punishable by either or both a fine of not less than 20 penalty units and imprisonment for up to three years. Disqualification from driving for at least two years was mandated by s 11A(4A). Those legislative provisions point to heavy penalties for offenders.

2. The other summary offences for which the respondent was also to be sentenced should not be overlooked. By failing to stop and stay at the scene of the crash on the Brooker Highway, the respondent committed an offence under the Traffic Act 1925, s 33(2). That offence is punishable by a fine not exceeding 80 penalty units or imprisonment for a term not exceeding two years, or both. By the Vehicle and Traffic Act 1999, s 8(1), driving without a licence is punishable, for a second or subsequent offence, by a fine not exceeding 40 penalty units or imprisonment for a term not exceeding three months. By driving in breach of a condition of his bail, the respondent committed an offence under the Bail Act 1994, s 9, punishable by a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both. It was an offence under the Vehicle and Traffic Act, s 27(1), for the respondent to use a vehicle which was not registered. Because it was not the first time he had committed that offence, it was punishable by a fine not exceeding 40 penalty units or imprisonment for a term not exceeding three months. No premium had been paid for the vehicle's use contrary to the Motor Accidents (Liabilities and Compensation) Act 1973, s 29(1). That offence was punishable by a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both.

3. For the crime of dangerous driving, and the offences of driving without a licence, failing to stop and driving an unregistered and uninsured vehicle, the learned sentencing judge imposed a single sentence. The respondent was sentenced to imprisonment for 22 months from 25 July 2018. It was ordered that he not be eligible for parole until having served 12 months of that sentence. The respondent was also disqualified from driving for three years from his release.

4. Separate sentences were imposed for the remaining three offences. For evading police, the respondent was convicted and sentenced to imprisonment for four months, to be served concurrently with the other term of imprisonment, and disqualified from driving for three years, also to be served concurrently with the other period of disqualification. For the charge of breaching bail, a conviction was recorded. The respondent also pleaded guilty to failing to wear a seatbelt contrary to the Road Rules 2009, r 264(1). On that charge the sentencing judge recorded a conviction but imposed no further penalty. For obvious reasons that order makes no material difference to the outcome of this appeal.

Consideration of the sentence

1. Counsel for the respondent accepts that this was a serious case of dangerous driving, but submits that the sentence adequately addresses all of the relevant sentencing considerations, is within the proper exercise of the sentencing discretion and that error is not disclosed. We do not agree. With respect to the learned sentencing judge, a total effective sentence of imprisonment for 22 months, with eligibility for parole after 12 months, fell erroneously short of meeting the dominant sentencing aims of general and specific deterrence, punishment, denunciation and protection of the public. The nature of the offences and the circumstances of this offender demanded a significantly higher sentence. The sentence must be corrected so as to maintain adequate standards of sentencing for crimes of this type. Although, for dangerous driving, harm in the form of death or serious injury has not materialised, the crime has the same fault element as the crimes of dangerous driving causing death or grievous bodily harm contrary to ss 167A and 167B of the Code. The equivalent provisions in New South Wales were the subject of the guideline judgment of the Court of Criminal Appeal of New South Wales in Jurisic v The Queen (1998) 45 NSWLR 209. In that case, Spigelman CJ, at 231, listed factors, the presence or absence of which are relevant to determination of the appropriate sentence:

   ·     extent and nature of the 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.

2. Such factors were accepted in this State as relevant to dangerous driving causing death and grievous bodily harm in Shipton v The Queen [2003] TASSC 23, 39 MVR 143; Gallagher v The Queen [2009] TASSC 84, 54 MVR 6; and Moyle v Tasmania [2010] TASCCA 2, 198 A Crim R 592, 55 MVR 61. The same factors, together with "degree of sleep deprivation" and "failing to stop" were accepted as relevant to dangerous driving in Banks, per Porter AJ at [44]-[45].

3. In this case, although there were no injuries, most of the other factors which add to the gravity of the crime are present. The danger arose from both the manner of the respondent's driving and the speed at which he drove. The respondent engaged in a deliberate course of conduct which persisted for more than 15 minutes, continued over a considerable distance, and which involved multiple instances of actual danger and high risk. The risk of catastrophic consequences to pedestrians and other road users was extreme, although they did not materialise. The respondent drove at high speed through residential areas. He twice drove across a busy multi-lane highway against a red light. Many persons were put at risk including road workers, the drivers and occupants of the many cars which had to take action to avoid him, the occupants of the five police cars engaged in the chase, and his own passengers. On two occasions he drove at high speed towards a police car. The respondent repeatedly ignored warnings to stop. He admits having used illicit drugs that day before driving, thereby adding to the danger he posed.

4. The charge of evading police was particularised as being confined to the initial decision to drive away from the police in Howard Road in Goodwood, before the dangerous driving occurred. So particularised, it involved separate criminality at a different time to the dangerous driving. As was explained by Porter AJ in Banks at [53], that the dangerous driving occurred as a means of escaping the police is relevant because it demonstrates a disregard for authority and an intentional and deliberate course of conduct. We also agree with Brett J in Banks, when he stated at [2] that the "fact that such driving occurs in the course of escape from police, adds the factor of desperation to the driving and decision-making during the course of the driving, which, in turn, adds significantly to the potential danger arising from that driving."

1. There were factors which were particular to the respondent which added to the need for a stern response to his crime. The sentence must be proportionate to the respondent's crimes, but the respondent's prior criminal history is relevant in the ways explained by the High Court in Veen v The Queen (No 2) (1998) 164 CLR 465 at 475, and by this Court in Dobson v Tasmania [2017] TASCCA 19. It demonstrated that his moral culpability was high. He had been punished for dangerous driving before. He should not have been driving at all. The respondent was not disqualified from driving, but must have known that, with his record, he would not have been granted a licence had he applied for one. Added to that, he drove in breach of a condition of his bail imposed by a court only a few hours earlier, thereby displaying a contemptuous disregard for the law and authority, and increasing the weight to be placed on deterrence and protection of society: Wisniewski v Tasmania [2007] TASSC 25 per Crawford J (as he then was) at [10]–[11]. The pattern of his offending showed that he was a danger when at large, and was not acting uncharacteristically. It showed a need for harsh punishment to deter him, and demonstrated a strong need to protect the public from the danger he posed. One of the purposes of the Sentencing Act 1997 is to "promote the protection of the community as a primary consideration in sentencing offenders": s 3(b).

2. Counsel for the respondent submitted to the sentencing judge that the respondent had, while in custody on previous occasions, continued to use drugs. In contrast, he had, since being in custody on this occasion, remained drug free. He contended that the respondent had resolved to stay away from drugs in prison and to work towards his rehabilitation, thus demonstrating insight he had not shown before. In our view, the prospect of the respondent's rehabilitation as a sentencing factor is far outweighed by the need for punishment, deterrence and protection of the public. The respondent's counsel also correctly pointed out that the respondent is still a relatively young man. He was 23 when these offences were committed. However he has, by his repeated offending, substantially forfeited any mitigation which may have arisen from his age. In any event, youth provides limited mitigation for crimes of this nature as was explained by Underwood J (as he then was) in Director of Public Prosecutions v Watson [2004] TASSC 54, 146 A Crim R 223 at [21], and by Spigelman CJ in Jurisic at 228. That is so because a high proportion of crimes in which motor vehicles are driven in a culpably negligent and dangerous manner are committed by young offenders, and there is a particular need to deter that class of offender from crimes of that type.

3. No mitigation arises from any co-operation with the police, or remorse. When arrested, the respondent made no comment. The car was found abandoned with the number plates removed. He pleaded not guilty to the charges. Some mitigation arises from his plea of guilty, but the plea did not come until after the matter had been prepared for trial and shortly before the trial was due to commence. Nevertheless, a plea of guilty, even if delivered at a late stage of proceedings, attracts a discount: Director of Public Prosecutions v Harris [2013] TASCCA 5, 22 Tas R 448 at [40]-[41] per Estcourt J.

4. We are satisfied that the sentence is manifestly inadequate. We are also satisfied that this is not a case in which the Court should exercise the "residual discretion"; that is, to dismiss the appeal notwithstanding that it is satisfied that the sentence is erroneously lenient and that a different sentence ought to have been passed: Director of Public Prosecutions v Swan [2016] TASCCA 9.

Re-sentence

1. The matters which lead us to conclude that the sentence imposed is manifestly inadequate are relevant to the sentence which ought now be imposed. We may also take into account any matter relevant to the sentence that has occurred since the respondent was dealt with by the sentencing judge: s 402(4A).

2. We have been informed that, on 1 April 2019, the respondent was sentenced by a magistrate on his plea of guilty to a large number of summary offences including one count of evading police, one count of reckless driving, ten counts of motor vehicle stealing and one count of attempted motor vehicle stealing, two counts of stealing, five counts of breaching bail, four counts of contravening the conditions of a notice, two counts of driving while an illicit drug was present in his blood and three counts of driving without a licence. The date and circumstances of those offences reinforce the comments we have already made about the respondent's contempt for the law and authority, and the danger he posed to the community. He was on bail for those offences when he committed the offences on 12 July 2018 which are subject to this appeal. He had driven without a licence and while an illicit drug was present in his blood on two separate occasions, on 7 December 2017 and 19 December 2017. Then, on 5 June 2018, the respondent evaded police in a stolen car, drove without a licence and in breach of a bail condition that he not drive, and drove recklessly. The particulars of the reckless driving were that he twice disobeyed a red light on the Brooker Highway, failed to keep left on the Brooker Highway and drove at night without lights. Reckless driving, although a summary offence, is serious because it, unlike dangerous driving which involves no mental element, imports a reckless state of mind: Wise v The Queen [1965] Tas SR 196. Those offences are of a frighteningly similar nature to those we are considering, which were committed only a month or so later.

3. The magistrate imposed a term of imprisonment for three months for evading police, and a cumulative term of imprisonment for six months for the remaining offences, resulting in a total term of imprisonment of nine months. That total sentence was expressed to be cumulative to the sentence imposed by Geason J. The respondent now submits that, because the magistrate imposed sentence having regard to the principle of totality informed by the length of sentence imposed by Geason J, it would now be unjust to increase the sentence under appeal. In other words, there is a chance that had the magistrate been aware that the respondent was facing a longer term as a result of the orders of this Court, he would have made a greater allowance for totality than he did. That submission is to be assessed in light of our view of the total effect of any new sentence to be imposed.

4. In our view, taking account of the circumstances of the offences and the offender, this case demanded a total effective sentence of imprisonment of three years. The law requires imposition of a separate sentence for evading police: Police Powers (Vehicle Interception) Act, s 11A(3C). The sentencing judge imposed a term of imprisonment of four months and ordered that it be served concurrently. In some cases it is within the proper exercise of the sentencing discretion to order that a sentence of imprisonment for evading police should be concurrent with a term imposed for dangerous driving. Much will depend, for each case, on the circumstances and seriousness of that offence, the extent to which it involves separate criminality, and the total effect of the sentences imposed. In this case, we see no error in the length of the term but consider that it should be served cumulatively. To take account of the respondent's plea of guilty, and for totality, we would therefore impose a head sentence of two years and eight months for the charges of dangerous driving, using an unregistered motor vehicle, using a motor vehicle with no premium cover, driving whilst not the holder of a licence and being a driver involved in a crash and failing to stop, in substitution for the sentence of 22 months imposed by the sentencing judge.

5. Combined with the sentences imposed by the magistrate, the result would be a total aggregate term to be served by the respondent of three years and nine months. The offending for which the respondent was sentenced by the magistrate involved quite serious and separate criminality and deserved additional punishment. In our view, the increase in the head sentence we propose will not result in a punishment which is more than a just and appropriate measure of the respondent's overall criminality: Mill v The Queen (1988) 166 CLR 59. However, the total sentence is relevant to parole. The combined effect of the Corrections Act 1997, s 70, and the Sentencing Act 1997, s 17, is that it would have been open to the magistrate to permit eligibility for parole after having served half of the total sentence imposed. However, no parole order was made, the result of which is that the respondent is not eligible for parole for that sentence: Sentencing Act, s 17(3A). He will, however, be eligible to apply for remissions: Evans v Job [2018] TASFC 3. To ensure that the sentences imposed by this Court provide adequate punishment and deterrence, we would have ordered a longer non-parole period than the minimum. However, given the absence of an eligibility for parole for the other sentences the respondent is to serve, we would permit the earliest eligibility for parole for the terms we impose. Accordingly, we would order that he not be eligible for parole until having served half of the three years. There is no error in the length of the period of disqualification imposed.

6. We do not propose to interfere with the remaining orders made by the sentencing judge.

Orders and disposition

1. We would allow the appeal and impose a different sentence. We would vary the orders of the sentencing judge by setting aside the sentence of imprisonment of 22 months imposed by his Honour and substituting a sentence of imprisonment for two years and eight months from 25 July 2018. We would vary the sentence of imprisonment for four months imposed for evading police by ordering that the sentence be served cumulatively. For each of those sentences we would order that that the respondent not be eligible for parole until having served half of the sentence. We would not interfere with the balance of the sentencing orders made by his Honour which will remain in place.

2. In accordance with the Sentencing Act, s 92A, we would specify the total term of imprisonment that the respondent is liable to serve as a result of the orders of this Court is three years from 25 July 2018, and that the respondent is not eligible for parole until the expiration of one year and six months of that term. When taken with the sentence imposed by the magistrate on 1 April 2019, the result would be that the respondent is liable to serve a total term of imprisonment of three years and nine months from 25 July 2018, and is not eligible for parole until having served two years and three months of the total term.

File No 742/2019

DIRECTOR OF PUBLIC PROSECUTIONS v CODY DAVID BROWN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

MARSHALL AJ
20 August 2019

1. This is an appeal by the Director of Public Prosecutions ("the appellant") from the sentence imposed by Geason J on 20 March 2019 in respect of one count of dangerous driving contrary to s 172A of the Criminal Code, and several associated summary offences.

2. The summary offences were:

   ·     Use unregistered motor vehicle: (s 27(1) of the Vehicle and Traffic Act 1999).

   ·     Use a motor vehicle with no premium cover: (s 29(1) of the Motor Accidents (Liabilities and Compensation) Act 1973).

   ·     Drive whilst not the holder of a driver licence: (s 8(1) of the Vehicle and Traffic Act 1999).

   ·     Evade police (aggravated circumstances): (s 11A(2A) of the Police Powers (Vehicle Interception) Act 1999).

   ·     Driver involved in crash and failing to stop: (s 23(2) of the Traffic Act 1925).

   ·     Breach of bail: (s 9 of the Bail Act 1994).

   ·     Fail to wear a seatbelt: (r 264(1) of the Road Rules 2009).

3. On 20 March 2019, the sentencing judge imposed a global sentence of 22 months' imprisonment backdated to 25 July 2018, with no eligibility for parole until the respondent had served 12 months of that sentence.  The respondent was also disqualified from holding or obtaining a driver licence for three years from release.  Convictions were recorded separately for breach of bail, fail to wear a seatbelt and evade police.  On the evade police charge, a concurrent term of four months' imprisonment and a three year licence disqualification was imposed.

4. The sole ground of appeal is that the sentence was manifestly inadequate in all the circumstances. It is well established that for such a ground to be made out, the appellant must show that the sentence was unreasonable or plainly unjust "or outside the range of sentences reasonably available in the exercise of a sound discretionary judgment".  See Banks v State of Tasmania [2019] TASCCA 1 at [9], per Porter AJ.

The circumstances of the offending

1. The relevant facts underlying the sentence are not in dispute.  These are set out at par 4 of the appellant's written submissions, as follows:

   "4   The facts relevant to the crime and offences are contained at pages T2 to T8 of the Appeal Book (Volume 2). In summary, they include:

   (a)On the morning of 12 July 2018, the respondent was bailed from the Hobart Magistrates Court in relation to numerous summary charges. The conditions of bail included that he not drive or be found behind the steering controls of a motor vehicle (AB V2 T2 L15).

Goodwood (3:12pm)

(b)On Thursday 12 July 2018 at approximately 3pm, police observed the respondent driving a maroon Hyundai Excel ('the Hyundai') as it turned into Barron Avenue in Goodwood. Believing the respondent was unlicensed, police activated their emergency lights and conducted a U-turn to follow the Hyundai and attempt to intercept it (AB V2 T2 L23).

(c)Following this the respondent crossed onto the incorrect side of Barron Avenue to overtake a vehicle waiting at the intersection with Howard Road. The respondent turned right into Howard Road (AB V2 T2 L37).

(d)The respondent drove at a speed greater than 50 km/h along Howard Road. Police followed the respondent along Howard Road and observed him enter the roundabout at Gepp Parade, Acton Crescent and Howard Road without indicating and travelling through it in the incorrect direction. The respondent continued driving along Acton Road and accelerated to an estimated 80 to 90 km/h, in a 50 km/h zone, before turning onto Renfrew Circle without indicated. Police deactivated their emergency lights (AB V2 T2 L44).

(e)At the intersection of Renfrew Circle and the Brooker Highway, the respondent crossed onto the incorrect side of the road to pass a number of vehicles which were waiting at a red light, holding traffic on Renfrew Circle. The respondent drove through the red light, entering the Brooker Highway upon which heavy traffic was flowing in both directions. A number of vehicles travelling on the Brooker Highway were forced to brake heavily. Police lost sight of the Hyundai (AB V2 T3 L11).

Lutana (3:14pm)

(f)A few minutes later a second police vehicle observed the respondent driving the Hyundai across the Brooker Highway, from Bowen Road to Ashbolt Crescent. Police activated their emergency lights and sirens and attempted to intercept the Hyundai on Ashbolt Crescent, however it turned into Wattle Avenue. The respondent drove at an estimated 80 to 90 km/h in a 50 km/h zone along Wattle Avenue. There was minimal traffic on the street at the time, however the Hyundai did have to brake heavily at the intersection with Michael Street in order to give way to an oncoming vehicle. The respondent turned right without indicating onto Michael Street and Lennox Avenue, upon which he drove at an estimated 80 to 90 km/h in a 50 km/h zone. The respondent again turned right without indicating onto Ashbolt Crescent, causing two vehicles to take evasive action to avoid a collision (AB V2 T3 L23).

(g)The respondent continued along Ashbolt Crescent, toward the Brooker Highway and travelled onto the incorrect side of the road to overtake vehicles waiting at a red light. The Hyundai drove through the red light and onto the Brooker Highway, upon which heavy traffic was flowing in both directions. A number of vehicles slowed down or took evasive action to avoid a collision. One driver (Mr Bester) accelerated heavily to avoid the Hyundai, however the respondent clipped the rear driver's side of that vehicle. At the time of driving through this intersection of the Brooker Highway, road works were active and workers in high visibility clothing were in attendance at the site (AB V2 T3 L41).

(h)After passing through the intersection the respondent drove onto the incorrect side of Bowen Road and over a traffic island, causing further vehicles to take evasive action. A third police vehicle activated its emergency lights and followed the respondent along Bowen Road and into Butler Avenue. The respondent accelerated heavily and turned into Central Avenue at such speed that the Hyundai slid sideways onto the wrong side of the road. The respondent drove the incorrect way around the roundabout at Hopkins Street and turned right at speed, on a corner with impeded visibility. Police lost sight of the vehicle as it drove off at speed along Hopkins Street (AB V2 T4 L10).

West Moonah (3:18pm)

(i)Four minutes later the Hyundai was observed by a fourth police vehicle in Highfield Street, West Moonah. The respondent turned right into Amy Street, upon which it travelled at speed, veering onto the incorrect side of the road to overtake a vehicle in its path. The Hyundai then failed to indicate as it took a series of turns through Cranleigh Crescent, Seventh Avenue and Springfield Avenue. The Hyundai drove at high speed and on the incorrect side of the road on Springfield Avenue, causing another driver to take evasive action to avoid a head on collision. The Hyundai turned into Corinda Grove without indicating and onto Devines Road, where police lost sight of it (AB V2 T4 L29).

Barossa Road (3:21pm)

(j)A fifth police vehicle observed the Hyundai at 3:21 pm, it was driving at speed along Barossa Road, whilst straddling the centre dotted line. Police conducted a U-turn and followed the Hyundai, which conducted an illegal three-point turn into the oncoming lane at Nagle Place, where it intersects with Barossa Road. Vehicles travelling on Barossa Road were forced to slow or stop to enable the Hyundai to complete this turn. The Hyundai drove back along Barossa Road at an estimated 70 to 80 km/h in a 50 km/h zone, increasing to up to 100 km/h before police lost sight of it heading towards Tolosa Street (AB V2 T5 L1).

(k)After entering Tolosa Street, the Hyundai conducted a U-turn to avoid a vehicle immobilising device that had been set up further down the road. The Hyundai drove back along Barossa Road, on the incorrect side of the road and into the path of the oncoming police vehicle. Approximately five metres before impact, the Hyundai returned to the correct side of the road and drove up Barossa Road at an estimated 70 km/h in a 50 km/h zone, before police lost sight of it (AB V2 T5 L17).

Reiby Street (3:26pm)

(l)At 3:26pm, the third police vehicle observed the Hyundai again, this time on Reiby Street. As it approached the intersection with Ashbourne Grove, the Hyundai travelled around a sharp bend at speed, causing it to slide towards the police vehicle, which was forced onto the footpath to avoid a collision (AB V2 T5 L28).

(m)Shortly after 3:30pm, the Hyundai was last spotted by a member of the public as it overtook her at speed on Claremont Link Road, Chigwell (AB V2 T5 L36).

(n)The respondent travelled from Goodwood to Lutana, West Moonah, Barossa Road and Reiby Street over a period of approximately 15 minutes. The distance travelled during that period was in excess of 10 kilometres (AB V2 T6 L12).

(o)The respondent was arrested at 8:15am on Friday, 13 July 2018 (AB V2 T5 L42).

(p)At 10:30am on 13 July, the Hyundai was located abandoned in Newman Court, Claremont, not far from where it had last been observed. A forensic examination was conducted, which included swabs being taken from the steering wheel. Those samples returned a positive DNA profile to the respondent (100 billion in favour) (AB V2 T5 L46).

(q)A swab was taken from the steering wheel of the Hyundai, which later returned a DNA profile matching the accused (AB V2 T6 L4).

(r)On the day of the driving, the respondent had been using drugs (AB V2 T11 L45 – T12 L3).

(s)The respondent has relevant prior convictions, including three convictions for dangerous driving, a conviction for negligent driving and four convictions for evade police (AB V1 P20-67)."

The circumstances of the respondent

1. The respondent was 24 years old at the time of the offending.  His counsel accepts that he has a very poor record of prior offending.  His record is extensive.  His previous driving-related offences date back to 2009.  He has 23 convictions for driving whilst disqualified, a conviction for negligent driving, three convictions for dangerous driving, and four convictions for evading police.  This is despite his young age.

2. The respondent pleaded guilty.  The primary judge observed that the respondent has achieved some insight into his offending, including the seriousness of the conduct in which he had engaged.  The primary judge discounted the penalty he would otherwise have imposed only by 5%, given the lateness of the plea.

The primary judge's comments on passing sentence

1. The primary judge set out the facts relating to the offending and referred to the guilty plea.  He then said:

   "You have a very bad record of driving offences.  You exhibit an appalling attitude to road use and other road users. You are a menace to the community as a result.  Parliament has made it clear that offences of this nature are to be met with a strong response from the Courts. That is why dangerous driving is now an indictable offence.

   Whilst you are not to be punished twice for your previous offences, I cannot ignore the fact that they evidence your attitude to your responsibilities on the road.  The obligation upon me is to impose a penalty which serves as a personal deterrent, and also a deterrent to others.  A motor vehicle is capable of being used in a dangerous manner very easily.  It does not require considerable planning in order to execute such offending.  But the gravity of the consequences of such offending can be significant.  This offending occurred during the day, when the roads were busy, or likely to be, and other drivers were forced to take evasive action as the result of your conduct.  It is only through good fortune that the consequences were not more serious."

Section 172A of the Criminal Code

1. In Banks at [26]-[37], Porter AJ set out the following general considerations which are relevant to s 172A of the Code:

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

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

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

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

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

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

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

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

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

   'This series of legislative increases in the potential for punishment is a clear indication that the public, through their representatives, regard bad cases of misconduct in the management of motor vehicles as a serious problem requiring considerably higher penalties than in the past.'

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

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

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

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

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

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

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

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

The sentencing range

1. At [38] to [43] in Banks, Porter AJ referred to the 15 sentences which had, until that time (7 February 2019), been imposed for breach of s 172A of the Code. At [39], his Honour noted that the historical data at best amounted to a "yardstick", "providing a broad understanding of the range of sentences that would ensure consistency, but does not fix boundaries".

2. At [42], Porter AJ referred to the higher end of "the range" in respect of an offender with "relevant offending history".  This was the matter of Cleaver (Pearce J, 13 June 2018) in which a sentence of two years and six months' imprisonment was imposed.

3. At [43], after referring to "four reasonably comparable cases involving offenders with relevant prior convictions and not dissimilar circumstances of police pursuit", in which imprisonment for 22 months and 21 months was imposed, Porter AJ concluded by saying:

   "All in all, there is some assistance to be gained but it is quite limited and caution needs to be exercised."

4. Since the appeal in Banks, Estcourt J imposed a sentence in Greig (11 April 2019) of 18 months' imprisonment, with 12 months suspended for two years and subject to a community corrections order.  This was another matter involving an offender with relevant prior convictions and concerned a police pursuit.  There had been another matter involving dangerous driving, as well as other charges involving drugs, where a sentence of two years and six months was imposed (Lee, 13 February 2019).

Specific considerations

1. In Banks, Porter AJ at [44] to [45], identified a list of factors whose presence, degree or absence assists in determining an appropriate penalty in cases under s 172A of the Code. They include:

   ·     the extent and nature of injuries inflicted;

   ·     the number of people put at risk;

   ·     the degree of speed;

   ·     the degree of intoxication or of substance abuse;

   ·     erratic driving;

   ·     the length of the journey during which others were exposed to risk;

   ·     ignoring of warnings;

   ·     escaping police pursuit;

   ·     the degree of sleep deprivation; and

   ·     failing to stop.

2. In this matter the respondent's driving did not result in injuries being inflicted, but that was more as a result of good fortune than anything else.  The primary judge observed that the roads were busy and other drivers were forced to take evasive action.  There was also one minor collision as a result of the respondent's actions.

3. The speed of the respondent's vehicle was excessive and his driving erratic.  His counsel told the primary judge that the respondent was affected by drugs.  The driving was prolonged.  It continued for 15 minutes after the pursuit commenced, during which time the respondent travelled about 10 kilometres.  The respondent ignored warnings and evaded road spikes placed by the police.  The police were not able to intercept the respondent.

Conclusion

1. On the material before the primary judge, I am not able to say that the sentence imposed by him was manifestly inadequate.  This was a case which involved a difficult assessment of an appropriate penalty for a crime which has only carried a 21 year maximum penalty since 2017.  The sentence imposed in this matter was similar to several penalties imposed to date for cases involving relevant prior offending and a police pursuit.  The question for this Court is not whether it would have imposed the same sentence as the primary judge, but whether his sentence was plainly unjust or outside the range of sentences reasonably available in the exercise of sound discretionary judgment.  In my opinion the sentence imposed was within the range of sentences reasonably available in the exercise of sound discretionary judgment. It is not to the point that the sentence of the primary judge may be seen as towards the lower end of the available range. Nothing in this judgment should be interpreted as establishing the penalty in this matter as a marker for all future cases involving dangerous driving where the offender has relevant prior offences and a police pursuit was involved.  Each individual case remains to be dealt with on its merits.  The question on appeal will always be whether there has been an error of principle in the particular case before the Court.

2. For the foregoing reasons I would dismiss the appeal.