Director of Public Prosecutions v Cowen

[2022] TASCCA 10

[2022] TASCCA 10

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Director of Public Prosecutions v Cowen [2022] TASCCA 10
PARTIES:	DIRECTOR OF PUBLIC PROSECUTIONS
v
COWEN, Shayden James
FILE NO:	CCA 1598/2022
DELIVERED ON:	8 September 2022
DELIVERED AT:	Hobart
HEARING DATE:	22 August 2022
JUDGMENT OF:	Blow CJ, Pearce J, Brett J
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 – Disqualified driver – Breach of bail condition requiring no driving – Evasion of police – Firearm offences – Sentences of 8 months' imprisonment and 15 months' home detention manifestly inadequate.

Banks v Tasmania [2019] TASCCA 1, 31 Tas R 342 and Director of Public Prosecutions v Brown [2019]
TASCCA 11 applied.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:

Appellant:	D G Coates SC
Respondent:	F Cangelosi

Solicitors:

Appellant:	Director of Public Prosecutions
Respondent:	Logan and Partners

Judgment Number:	[2022] TASCCA 10
Number of paragraphs:	49

Serial No 10/2022

File No CCA 1598/2022

DIRECTOR OF PUBLIC PROSECUTIONS v SHAYDEN JAMES COWEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ

PEARCE J

BRETT J

8 September 2022

Orders of the Court:

1. Appeal allowed.

2            Sentencing orders made on 14 June 2022 quashed.

3            On Indictment 168/2021 (dangerous driving), the respondent is convicted and sentenced to 2 years' imprisonment, to be served cumulatively with the sentences imposed by a magistrate on 29 September 2021. He will not be eligible for parole until he has served 1 year of that sentence. He is disqualified from driving for 4 years from his release from prison. Any driver licence that he may have is cancelled.

4            On count 3 on Complaint 11152/2020 (evading police), the respondent is convicted and sentenced to 6 months' imprisonment, to be served cumulatively with the sentence imposed on Indictment 168/2021. He will not be eligible for parole until he has served 3 months of that sentence. He is disqualified from driving for 3 years from his release from prison.

5            On count 1 on Complaint 11152/2020 (driving whilst disqualified), the respondent is convicted and sentenced to 4 months' imprisonment, to be served concurrently with the sentence imposed on indictment 168/2021. He is disqualified from driving for 1 year from his release from prison.

6            On count 2 on Complaint 11152/2020 (breach of bail), the respondent is convicted and sentenced to 1 month's imprisonment, to be served concurrently with the sentence imposed on indictment 168/2021.

7            On Indictment 254/2021 (possessing a stolen firearm) and Complaint 8909/2021 (possessing a shortened firearm), the respondent is convicted and sentenced, as a global penalty, to 8 months' imprisonment to be served cumulatively with the sentences imposed on indictment 168/2021 and count 3 on complaint 11152/2020. He will not be eligible for parole until he has served 4 months of that sentence.

8            Each of these sentences is to take effect as if it was imposed on 5 October 2021.

9 For the purposes of s 92A of the Sentencing Act 1997 it is specified that the total period of imprisonment that the respondent is liable to serve for the offences to which this appeal relates is 3 years and 2 months, to be served cumulatively with the sentences of imprisonment imposed by a magistrate on 29 September 2021, and with eligibility for parole after having served 1 year 7 months of the period totalling 3 years 2 months.

Serial No 10/2022

File No CCA 1598/2022

DIRECTOR OF PUBLIC PROSECUTIONS v SHAYDEN JAMES COWEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
8 September 2022

1   I agree that this Court should make orders as proposed by Pearce J, for the reasons stated by

him.

2 No 10/2022
File No CCA 1598/2022

DIRECTOR OF PUBLIC PROSECUTIONS v SHAYDEN JAMES COWEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
8 September 2022

2   This a prosecution appeal against sentences imposed by Geason J on the respondent's plea of

guilty to:

• dangerous driving contrary to the Criminal Code, s 172A;

• evading police contrary to the Police Powers (Vehicle Interception) Act 2000, s 11A(2A);

• driving while disqualified contrary to the Vehicle and Traffic Act 1999, s 13(1);

• breaching bail contrary to the Bail Act 1994, s 9;

• possessing a stolen firearm contrary to the Firearms Act 1996, s 107A(1);

• possessing a shortened firearm contrary to the Firearms Act 1996, s 116(b).

3             The sentencing orders were made on 14 June 2022. On all charges except the dangerous driving charge the learned sentencing judge imposed separate but concurrent terms of imprisonment the combined effect of which was to require the respondent to serve a term of imprisonment of eight months from 21 December 2021. No orders permitting eligibility for parole were made. For dangerous driving, the sentencing judge made a home detention order with an operational period of 15 months to commence on the respondent's release from prison. For that charge the sentencing judge also made what his Honour described as a "supervision order", more correctly a community correction order with a condition requiring the respondent to submit to the supervision of a probation officer, with an operational period of 12 months commencing on the respondent's release from prison. Orders disqualifying the respondent from driving were made resulting in a total period of disqualification of four years.

4             The sole ground of appeal is that the sentence was manifestly inadequate. Although the ground of appeal refers to "the sentence", there were a number of sentencing orders. The ground of appeal should be taken to assert that the combined effect of the sentencing orders was a manifestly inadequate response to the respondent's overall criminal responsibility.

5             For the following reasons the appeal should be allowed. This was a bad case of dangerous driving. The firearm offences also required separate punishment. When all of the circumstances relevant to sentence are considered, both as to the objective seriousness of the respondent's overall criminal conduct and to factors personal to him, the total effect of the sentences imposed was erroneously lenient.

The respondent's record and the offending context

6             The sentencing orders are to be considered in the context of the respondent's criminal history.

It was also of particular relevance to the sentencing principle of totality that the respondent had been

sentenced by a magistrate on 29 September 2021 for numerous other offences committed by the

respondent between 5 July and 29 December 2020. A description of his personal circumstances more

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generally, and more details of the offences which are the subject of this appeal, will be given later in
these reasons.

7             The driving offences for which the respondent was sentenced by Geason J, which included the breach of bail, were committed on 29 December 2020. At the time of all of those offences the respondent was aged 26. He had an extensive record, commencing when he was a youth, for dishonesty, bail, driving and firearm offences. He had prior convictions including, on my count, 11 counts of driving while disqualified, four counts of driving without a licence, three counts of driving while alcohol or drugs were present in his body, one count of reckless driving, three counts of evading police, 21 counts of motor vehicle stealing or attempted motor vehicle stealing and one count of trafficking in firearms. The respondent had been sentenced to terms of detention and imprisonment. Most relevantly:

• on 7 June 2012 he was sentenced to a wholly suspended term of detention, mostly for dishonesty, but also for reckless driving;

• on 19 November 2012 he was sentenced to a partially suspended six month term of imprisonment, again mostly for dishonesty but also for motor vehicle stealing and two counts of driving while disqualified;

• on 22 March 2013 he was sentenced to imprisonment for three years, two years of which was suspended, for offences including four counts of unlawfully setting fire to property, eight counts of motor vehicle stealing and four counts of driving while disqualified. He breached that sentence by re-offending. On 8 October 2014, one year of the suspended term was activated but, again, one year was suspended;

• on 7 August 2015, he was sentenced to imprisonment for eight months from 28 July 2015, the balance of which was suspended on condition that he perform community service, for unlawful trafficking in firearms, motor vehicle stealing, driving while unlicensed and possessing ammunition without the appropriate licence. The firearm offence was committed when he was 20. He armed himself with a shotgun he had stolen, and ammunition, and went looking for a person who had fired shots into his friends' house. He told the police that his plan was to "shoot them up." The Chief Justice suspended the sentence so as to give the respondent a chance, but he breached the community service condition of that sentence. On 18 October 2017 it was ordered that the suspended part of the sentence be served from 11 April 2016;

• on 23 October 2017 he was sentenced to imprisonment for 13 months from 9 January 2017 for numerous offences of dishonesty, but also for motor vehicle stealing and driving with an illicit drug in his blood; and

• on 23 July 2019, as the sentence was corrected on 12 August 2019, he was sentenced to imprisonment for nine months and twenty days from 22 May 2019 for offences including five counts of driving while disqualified, three counts of evading police in aggravated circumstances (offences which were committed over three consecutive days in February

2018), bail and dishonesty offences and two counts of motor vehicle stealing.

8             The respondent was released from prison in February 2020. Commencing in July 2020, and until his eventual arrest and remand in custody on 29 December 2020, he committed a large number of offences. He was sentenced for most of those offences on 29 September 2021. Some explanation of those offences and the sentences which were imposed is necessary to understand the context and effect of the sentencing orders which are the subject of this appeal. The following is a chronological summary:

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• on 5 July 2020 and again on 14 July 2020 he drove while disqualified. The second occasion was in breach of a bail condition that he not drive;

• on 8 October 2020 he drove while disqualified and in breach of a bail condition that he not drive;

• on 5 November 2020 he drove while disqualified and stole petrol from a service station;

• on 9 November 2020 he twice drove while disqualified and in breach of a bail condition that he not drive. When the police attempted to apprehend him he evaded them and in the course of doing so he drove recklessly, including by speeding, failing to keep to the correct side of the road and by failing to stop at a red traffic light;

• on 8 December 2020 he received $11,000 worth of stolen property;

• on 10 December 2020 he received a further $3,000 worth of stolen property;

• on 14 December 2020 he committed a burglary of a vessel at a yacht club, used the vessel without consent and stole goods worth $700;

• on 19 December 2020 he drove while disqualified, in breach of a bail condition that he not drive and at a time when he was in breach of a curfew condition. On that day he committed the offence of reckless driving including by, in a number of suburban streets, travelling at excessive speed, failing to keep left and overtaking when it was unsafe to do so;

• between 20 and 26 December 2020 he failed to report to the police as required by a condition of his bail. Police checks at his address also revealed that he was not complying with the bail curfew;

• on 25 December 2020 he committed an aggravated burglary and stole goods worth almost $3,000. On the same day he drove while disqualified and in breach of his bail. When the police attempted to apprehend him he again evaded them. In doing so his driving conduct included speeding, disobeying a red traffic light and failing to give way at an intersection;

• on 26 December 2020 he, on separate occasions, twice drove while disqualified and in breach of a bail condition that he not drive. On that same day he stole goods from Bunnings worth more than $2,000;

• on 29 December 2020, the same day as the dangerous driving, he stole almost $6,000 worth of goods from a business on which he trespassed, committed motor vehicle stealing, drove while disqualified on two other occasions, drove in breach of bail and drove with an illicit drug in his body.

9             On 29 September 2021 a magistrate sentenced the respondent to three cumulative terms of

imprisonment backdated to 29 December 2020. For all counts except the two counts of evading police
the magistrate imposed a global sentence of imprisonment for 12 months with eligibility for parole
after eight months. Orders disqualifying the respondent from driving were made. The magistrate
complied with the obligation imposed by the Police Powers (Vehicle Interception) Act 2000, s
11A(3C), to impose separate sentences for the two counts of evading police. On each of those charges
a term of imprisonment of three months was imposed with eligibility for parole after six weeks. The
Sentencing Act 1997, s 17(3), provides that the non-parole period for a sentence of imprisonment is

not to be less than one-half of the period of the sentence. It must therefore be assumed that, for both of

the sentences imposed for evading police, the magistrate's intention was to permit parole eligibility

after the respondent had served half of the respective terms (although six weeks is less than half of

5   No 10/2022

three months). On that assumption, the effective result was a total term of imprisonment of 18 months from 29 December 2020, the date of the respondent's remand in custody, with eligibility to apply for parole after having served 11 months of the total term.

The offending subject to this appeal

10           On 10 October 2020, during the same period of offending just described, the police searched a home in Gagebrook. The respondent was present although he did not live there. The police found a Ruger .22 calibre bolt action rifle hanging in a rifle bag in a manhole in the hallway. The rifle had been stolen between January and March 2020. By his plea of guilty to possession of a stolen firearm the respondent admitted that he was in possession of the rifle. His DNA was on the gun although he told the police, when interviewed in December 2020, that the rifle was not his but he had "probably touched it" and that he "probably looked at it."

11           A little over a month later, on 26 November 2020, the police searched the respondent's home in West Moonah. The respondent was the only one at home. During the search he directed the police to a sporting bag in the roof space which contained a sawn off .22 Stirling rifle. The bag also contained 36 .22 cartridges. Other ammunition was found under the house. All of the charges relating to the ammunition were dealt with by the magistrate.

12           The respondent was admitted to bail on 30 November 2020. He was a disqualified driver. A bail condition was imposed that he not drive. A couple of weeks later he again found himself in custody but was released on police bail on 12 December 2020 with a condition that he not drive. Within a short time, he was wanted by the police for other offences and they were on the lookout for him. As has already been explained, he evaded them on 19 and 25 December 2020, was in breach of the curfew and reporting conditions of his bail and was committing offences of dishonesty.

13           At about 4.00 pm on Tuesday 29 December 2020 a police officer in a police car saw the respondent driving a Subaru Forester wagon on Grove Road in Glenorchy, from the direction of Main Road. He had one passenger, Corey Wordsworth. It was a residential area. The respondent saw the police car perform a U-turn and realised, correctly, that the police intended to apprehend him. He accelerated away. He overtook a car on Grove Road without indicating. He turned left into Herbert Street and overtook another two cars, driving in excess of 90 kph when the speed limit was 50 kph. As a result of the respondent's driving the police quickly lost sight of him.

14           His vehicle was next seen at 5.10 pm, about an hour later, driving on a rural section of Elderslie Road, near Brighton, a small town on the outskirts of Hobart. More attempts were made to apprehend him. He drove in excess of 150 kph in an area where the speed limit was 100 kph. He drove over road spikes which the police had placed across Elderslie Road near a bridge. After having driven over the spikes his vehicle dangerously swerved to the left towards the verge where police were standing behind a safety barrier. The police followed the respondent and quickly saw rubber and marks on the roadway consistent with his car being driven on one or more wheel rims. He was not caught until 10 minutes or so later. During that intervening period he drove for a further eight kilometres notwithstanding that for a substantial period of that time two of the tyres on his vehicle were shredded and it was being driven on the rims. He drove in and around the residential and commercial parts of Brighton, in excess of the 50 kph speed limit which applied. Given the time of day and the day of the week, the vehicle traffic was medium to heavy. In the course of his driving he drove past a park immediately adjacent to the road in which a large group of people, including children, were gathered. He repeatedly drove onto the incorrect side of the road and drove the wrong way around roundabouts, into the path of oncoming vehicles, thereby forcing the drivers of the other cars to take evasive action to avoid head on collisions. A number of examples were given to the sentencing judge. On Grove Road, an oncoming vehicle was forced to brake and swerve to avoid a head on collision. On Seymour Street, Brighton, he drove onto the incorrect side of the road and an

6   No 10/2022

oncoming vehicle was required to swerve to avoid a collision. On Brighton Road he went onto the incorrect side of the road and continued on the incorrect side around the roundabout at the intersection with Jordan Downs Drive forcing other vehicles to take evasive action to avoid a collision. He continued further along Brighton Road on the incorrect side into the path of more oncoming vehicles. On Ford Road he rounded an uphill left hand blind corner on the incorrect side forcing another driver to take evasive action to avoid a head on collision. He drove into the path of oncoming traffic on Tea Tree Road and on Andrews Street, and, back on Brighton Road, again onto the incorrect side of the road. Much of the driving occurred in residential and commercial parts of the town of Brighton. All of the driving occurred when his car was being driven over the speed limit even though for most of the time there were tyres on only two of the wheels and the other two wheels were on the rims.

15           As a result of the damage to the tyres, wheels and engine of the vehicle he was driving it eventually could no longer be driven. It came to a stop on Brighton Road at 5.20 pm. When the police approached, the respondent refused to exit the car and violently resisted his removal. Following his arrest, the respondent was tested for the presence of drugs and alcohol and analysis of the samples disclosed the presence of methylamphetamine and amphetamine in his body.

16           Mr Wordsworth, the respondent's passenger, told the police that he was scared by the way the respondent was driving, that he feared for his own safety and had asked the respondent on multiple occasions to stop so he could get out. However the respondent refused and told Mr Wordsworth that he could not stop.

17           Later, when the respondent was interviewed after his arrest, he told the police that he did not stop, and wanted to get away from the police, because he did not want to go to gaol. He said that he had been using Ice heavily for the previous month, injecting about a gram a day. He had last injected Ice the previous evening and was still feeling the effects of it while he was driving.

The respondent's personal circumstances

18           The material before the sentencing judge about the respondent's personal circumstances came from submissions made by his counsel, and from a report dated 14 January 2022 of an assessment of the respondent's suitability for home detention. The author of the report described the respondent's childhood as tumultuous, characterised by his parents' illicit substance use, heavy alcohol consumption, gambling and violence. The respondent spent long periods away from home. He began drinking alcohol at age 12 or 13. He used drugs from age 14, including Ice from age 15. Apart from limited periods of abstinence, he had used between 0.1 and 0.2 grams of that drug each day ever since. From about age 18 he had little contact with his parents, but had recently reconciled with his father. His education was disrupted and he had no formal history of employment.

19           I have already outlined the respondent's criminal history. He had served terms of imprisonment and, from the beginning of 2016, had spent a significant portion of his life in custody. When released in February 2020 he had a partner and they were expecting a child. However, he claimed that stress from limited opportunities for employment led to tension in his relationship and a return to the use of methylamphetamine. By July 2020 his partner had left and he was resorting to crime to fund his habit. By December 2020 his use of the drug was so heavy that he had little recall of his life at that time and, he claimed through his counsel, no recollection of the driving on 29 December 2020.

20           Notwithstanding the respondent's history of drug use and crime, and his conduct during the

six months or so leading up to his arrest, his counsel submitted to the sentencing judge that the

respondent was capable of rehabilitation, and that there was little opportunity for that to occur if he
was sentenced to a prolonged term of imprisonment in addition to the sentence he was, at the time of

the sentencing proceedings, already serving. It was further submitted that prison was unlikely to deter

7   No 10/2022

or divert the respondent from committing further offences because his record indicated a pattern of quickly re-offending after each release from custody. The author of the assessment report recorded the respondent as understanding that use of illicit drugs was the major contributing factor to his criminal behaviour and that he had expressed a willingness to engage in drug and alcohol counselling and pharmacotherapy. The report also recorded that the respondent's history of compliance with community based sentencing orders was poor. All three community service orders to which he had previously been made subject, in 2012, 2013 and 2015, were cancelled for non-compliance. All of the community based supervision orders were cancelled or breached, either because of imprisonment following further offending or a failure to engage when in the community.

The sentences imposed on 14 June 2022

21           The sentencing proceedings commenced on 5 October 2021 with the statement of facts and plea in mitigation for most of the offences. However, the proceedings then continued for an extended period. The home detention assessment report was ordered. The hearing resumed on 16 November 2021, on 10 December 2021 and again on 8 February 2022 but no assessment report had been received. By 21 February 2022 the report was prepared but it had become apparent that the facts on the charge of possessing a shortened firearm had not been read to the Court. Once that occurred the hearing was further adjourned. His Honour asked for and heard further submissions as to his sentencing options on 8 April 2022 and then proceeded to sentence on 14 June 2022. The sentencing judge convicted the respondent on all counts for which he was to be sentenced and imposed:

• for evading police, a term of imprisonment of eight months from 29 December 2021;

• for driving while disqualified, a term of imprisonment of six months to be served concurrently;

• for breaching bail by driving, a term of imprisonment of one month to be served concurrently;

• for possessing a stolen firearm, a term of imprisonment of six months to be served concurrently;

• for possession of a shortened firearm, made no further order;

• for dangerous driving, a home detention order with an operative period of 15 months from the respondent's release, combined with a community correction order with an operative period of 12 months from release with a condition requiring that the respondent submit to the supervision of a probation officer while that order was in force; and

• disqualification from driving for four years from his release from prison.

22           It is necessary to refer to one preliminary matter relevant to the overall effect of the sentencing orders to which the respondent was made subject. In his sentencing remarks the learned sentencing judge correctly recognised that the respondent was sentenced by a magistrate on 29 September 2021 to a total term of imprisonment of 18 months from 29 December 2020, although his Honour made no mention of the parole orders then made. However, during the hearing before his Honour on 21 February 2022 he was incorrectly informed by counsel for the prosecution, with the acquiescence of counsel for the respondent, that the magistrate's sentence was for a term of 12 months and that, accordingly, any sentence of imprisonment his Honour might impose should commence on 29 December 2021. That was a misstatement of the magistrate's sentence which then transposed into his Honour's sentencing orders. The respondent in fact became eligible to apply for parole on 29 November 2021. Had he been granted parole he would have been eligible for release then. However,

8   No 10/2022

in the absence of a grant of parole he was not due for release until 29 June 2022. By reason of that ambiguity it is a little difficult to determine the total effect of the sentences imposed by the magistrate and the sentences under appeal. Viewed most favourably to the respondent, and assuming he would have been granted parole on 29 November 2021, the result was that he was required, after having served 11 months, to serve an additional nine months (eight months from 29 December 2021). That is, a total term of 20 months before release subject to a 15 month home detention order.

23           Throughout the sentencing proceedings counsel for the prosecution made it tolerably clear that the State did not accept that a home detention order was an adequate sentencing response to the respondent's criminal conduct.

The driving offences

24          The charges of evade police, dangerous driving, breach of bail and driving while disqualified all concern the respondent's driving behaviour between the time he was first seen by the police at 4.00 pm on Tuesday 29 December 2020 and his eventual apprehension just over an hour later. The charge of evading police contrary to the Police Powers (Vehicle Interception) Act, s 11A was particularised as relating to the respondent driving away from police when he was first seen in Grove Road. For that offence the sentencing judge was required to impose a separate sentence: s 11A(3C)(b). The respondent was to be sentenced under s 11A(2A) of that Act, and so, as a subsequent offender, the offence was punishable by either or both a fine of not less than 20 penalty units and not more than 100 penalty units and imprisonment for a term of not more than five years. Those provisions point to heavy penalties for offenders. Disqualification from driving for at least two years was mandated by s 11A(4A). His Honour imposed a term of imprisonment of eight months. For the offence of driving while disqualified, as a subsequent offender, the respondent was punishable by a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months. The respondent was sentenced for that offence to imprisonment for six months. For driving in breach of a condition of his bail, the respondent was liable to a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both. He was sentenced to imprisonment for one month.

25           Two other summary charges arose from the same series of events. The respondent was charged with resisting police contrary to the Police Offences Act 1935, s 34B(1) and with driving with prescribed illicit drug in blood contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 6A(1). Both of those charges were dealt with by the magistrate on 29 September 2021. The sentence imposed for driving with an illicit drug in blood formed part of the global term of 12 months, in addition to which the respondent was disqualified from driving for six months. For resisting arrest, the respondent was fined $500.

26           There was some overlap between the criminality involved in each of the offences. All arose from the same act of driving. However it is also to be observed that the punitive and deterrent effect of the sentences was considerably reduced because of his Honour's decision to make each of the sentences concurrent, including with the term of imprisonment imposed for being in possession of a stolen firearm.

27           The principles to be applied when sentencing for the crime of dangerous driving were

considered by this Court in Banks v Tasmania [2019] TASCCA 1, 31 Tas R 342 and Director of
Public Prosecutions v Brown [2019] TASCCA 11. Much of what was said in those cases applies to

this case and need not be repeated. The circumstances of Brown bear a distinct similarity to this case.
No sentencing range can be identified because of markedly varying circumstances in which the crime
of dangerous driving can be committed. However there has been a general upward trend of sentences

for serious driving offences. That increase reflects an increasing community concern for dangerous
driving behaviour. See, for example, the comments of Tennent J in Director of Public Prosecutions

(Acting) v Rushton [2015] TASCCA 20, and the discussion by Porter AJ in Banks at [26] and

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following. Dangerous driving was made a crime in September 2017. Amendments increasing penalties for evading police were made as part of the same suite of legislative changes. For those reasons, the dominant sentencing aims to be applied were general and specific deterrence, punishment, denunciation and protection of the public.

28           In Banks, Porter AJ at [44]-[45] accepted that the presence or absence of the factors stated in the guideline judgment of the Court of Criminal Appeal of New South Wales in Jurisic v The Queen [1998] NSWSC 423; 45 NSWLR 209, along with sleep deprivation and failing to stop, were relevant to determination of the appropriate sentence for dangerous driving. Modified to omit reference to the severity of injury, which is relevant to the crimes of causing death or serious injury by dangerous driving, but which has no application here, the list comprises:

• 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.

29           In this case, all of those factors are present. Pedestrians, his passenger, and the occupants of a considerable number of other vehicles, were put at serious risk. Having regard to the nature of the roads on which he was driving and the condition of the vehicle, the respondent drove at dangerous speeds. His substance abuse was such that he later had little recollection of his driving. The inference that his drug use contributed to the manner of his driving and substantially impaired his judgment while driving is overwhelming. To describe his driving as "erratic" is an understatement. It was submitted by the appellant that the dangerous driving was prolonged in that the respondent drove for a period of one hour and 14 minutes. The respondent was to be sentenced on the basis that the period of his dangerous driving was the relatively short period between when he was first seen in Grove Road, and when the police lost sight of him, and the period between when he was seen again on Elderslie Road and when his vehicle came to a stop on Brighton Road. Even so, the second instance of driving can properly be described as prolonged in the sense that it lasted more than ten minutes and extended for a distance of about eight kilometres. The respondent ignored police requests to stop and the impact of the road spikes. He ignored repeated requests by his passenger to stop. He drove on despite repeated instances of actual danger, motivated only by a wish to avoid the consequences of his criminal conduct.

30           It was an aggravating factor that the respondent drove to avoid apprehension by the police. The respondent was also sentenced for evading police. As Brett J pointed out in Banks, at [2], care was to be taken to not punish the respondent twice for the same act. However, I agree with his Honour's statement 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."

31           The appellant's submission that the respondent's level of moral culpability was high should be accepted. The respondent continued to commit serious and dangerous driving offences despite having been repeatedly punished for them and having been released on bail for others. He should not have been driving at all. He was a disqualified driver. By driving he breached conditions of his bail. As was

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stated in DPP v Brown at [19], the respondent thereby displayed "a contemptuous disregard for the law and authority" and increased the weight to be placed on deterrence and protection of society. See also Wisniewski v Tasmania [2007] TASSC 25 per Crawford J (as he then was) at [10]–[11]. All of those considerations pointed to an increased need for retribution, deterrence and protection of society as sentencing factors.

The firearm offences

32           Although the main focus of counsel for the appellant was the driving offences committed by the respondent, the firearm offences should not be overlooked. Possession of a stolen firearm is an indictable offence punishable under the Code, although it may be prosecuted summarily. If dealt with summarily it is punishable by a fine not exceeding 100 penalty units, or imprisonment for a term not exceeding five years, or both. Those provisions reflect the concern of the community and the legislature about the association between stolen firearms and other crimes of dishonesty and violence, and make clear that those found in possession of a stolen firearm should face harsh punishment: Williams v Parker [2016] TASSC 39. Viewed in isolation, I do not see that the term of imprisonment for six months imposed on the respondent for this offence, in the circumstances in which it was committed, was manifestly inadequate. However it is relevant to his overall criminality and to the total

sentence.

33           I have a different view about the adequacy of the sentence imposed for possessing a shortened rifle. The maximum penalty for the offence of possessing a shortened firearm is a fine not exceeding 50 penalty units or imprisonment for a term not exceeding two years, or both. As with stolen firearms, one of the reasons that possession of that type of firearm is unlawful is the connection between such weapons and other criminal conduct. The respondent kept the firearm in a bag in the roof space, implying an awareness that he should not be in possession of it. He had no firearm licence. There could have been no proper reason for the respondent's possession of such a firearm and no licence would have authorised possession of it in any event. He told the police that he had been in possession of the gun for eight or nine months but that it did not work. That assertion was not challenged, although the suggestion that the gun was useless seems hardly consistent with his possession of the ammunition found with it. The offence was committed only about a month after he had been found in possession of the stolen rifle. He had prior convictions for firearm offences including the trafficking in firearms charge explained earlier in these reasons. The sentencing judge ordered a conviction but imposed no other penalty. It is the overall sentencing response, not the specific sentence, which is the subject of challenge. However, viewed in isolation, that offence required a substantial sentence. It was necessary that some consequence attach to that offence and a conviction, without more, was unjust and unreasonable.

Consideration of the adequacy of the sentences

34           The circumstances which justify the intervention of this Court in an appeal on the grounds that a sentence is manifestly inadequate or excessive have been stated on many occasions. Allowing for the broad discretion to be permitted a sentencing court, the appellant must demonstrate that the sentence is unjust and unreasonable.

35           It is convenient to begin with the home detention order made by the learned sentencing judge

for the crime of dangerous driving. Home detention orders were introduced in Tasmania upon the
commencement, on 14 December 2018, of the Sentencing Amendment (Phasing Out of Suspended
Sentences) Act 2017. A home detention order may be imposed if the Court would have sentenced the

offender to a term of imprisonment whether or not it would have suspended all or part of the
sentence: Sentencing Act 1997, s 42AC(1)(b). The principles relevant to the sentencing of offenders to

home detention were considered by this Court in Director of Public Prosecutions v King [2020]

TASCCA 8. As Blow CJ pointed out in that case at [28], because of the restrictions that a home

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detention places on the liberty of an offender, home detention might be regarded as a type of imprisonment, but it is obviously less onerous than being in prison. The point was also made by Wood J at [50]-[58] and by Estcourt J at [118].

36           The appellant does not submit that, as a matter of principle, home detention is not an appropriate sentence for dangerous driving. Although the Sentencing Act, s 8(1), does not permit imposition of a home detention order in combination with a term of imprisonment for a single offence, it was open to structure such a combined order in this case because the respondent committed more than one offence. However the appellant submits that, given the seriousness of this case and the personal circumstances of the respondent, a home detention order was manifestly inadequate. The submission should be accepted. All of the circumstances relevant to sentence, most particularly the objective seriousness of the crime and the respondent's high moral culpability, pointed overwhelmingly to punishment, deterrence and protection of the public as the dominant sentencing considerations. In my view, imposition of a home detention order for this crime inappropriately undermined achievement of those sentencing objectives: see R v Dell [2016] SASCFC 156, at per Doyle J at [57]-[60], cited with approval by Estcourt J in DPP v King at [112]. This crime demanded a substantial term of imprisonment.

37           The conclusion I have reached is reinforced when the sentences imposed by the sentencing judge for the related driving behaviour and the firearm offences are brought into account. I have already explained why the firearm offences were to be regarded seriously. A sentence which effectively added nothing to the sentence imposed for the driving offences resulted in an overall sentence response which was manifestly inadequate.

38           I do not suggest that the prospect of rehabilitation and reform were not relevant sentencing considerations. Counsel for the respondent correctly pointed out that there had been a cycle of the respondent quickly re-offending on release. However, in this case, rehabilitation was to be subordinated to other sentencing considerations and there was no proper justification for it to be given much weight. The respondent was no longer to be regarded as a youthful offender. Whilst he professed to the sentencing judge and the author of the assessment report a willingness to take advantage of rehabilitative programmes, he had done little or nothing through his actions to demonstrate any genuine intention to reform and had repeatedly spurned opportunities offered to him through earlier community based orders. Proper allowance for rehabilitation was to be made in this case by permitting eligibility for parole. The only mitigating factor was the respondent's plea of guilty. It facilitated justice but provided no real indication, in his case, of any remorse or acceptance of responsibility. He presented an ongoing risk to the public.

39           The conclusion that the sentences imposed on the respondent were erroneously lenient remains valid even when the issue of totality is considered. The sentence imposed for dangerous driving was to be considered with the sentences of imprisonment imposed for the other offences for which the respondent was sentenced at the same time and with the sentences imposed by the magistrate. As was stated in Director of Public Prosecutions v Fletcher-Jones [2019] TASCCA 18 at [16]:

"The totality principle requires a judge who is sentencing an offender for a number of offences, or when the offender is already serving or is liable to serve other sentences of imprisonment, to have regard to the total effect of the sentences, the final penalty, to ensure it is a just and appropriate measure of the totality of the criminal behaviour: Mill v The Queen (1988) 166 CLR 59 at 63; Postiglione v The Queen [1997] HCA 26; 189 CLR 295; R v Gordon (1994) 71 A Crim R 459; Rae v State of Tasmania [2010] TASCCA 8 per Crawford CJ at [18]; Director of Public Prosecutions v Broad [2018] TASCCA 5 per Wood J at [4]. As Hunt CJ at CL in R v Gordon pointed out at 466:

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'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable'."

40          In this case, the adequacy of the home detention order was to be assessed with the eight month term also imposed by the sentencing judge and the terms totalling 18 months from 29 December 2020 ordered by the magistrate. Regardless of the uncertainty about the commencement date for the eight month term sentence to which I have already referred, that sentence, when taken with the home detention order, did not adequately reflect the respondent's overall criminality or achieve the dominant sentencing aims.

41           The sentences imposed by the magistrate were for offences which involved substantial separate criminality including, but not limited to, two instances of reckless driving, two instances of evading police, numerous counts of driving while disqualified, burglary of a yacht, an aggravated burglary, two counts of receiving and other counts of stealing and motor vehicle stealing. The separate harm to the victims of the offences of dishonesty was to be recognised. Those offences deserved substantial separate punishment. As Wood J stated about the extent to which totality should result in a moderation of sentence in Director of Public Prosecutions v Broad [2018] TASCCA 5 at [5]:

"There are limits to the operation of the sentencing principle and the extent to which aggregate sentences should be reduced to take account of totality. It does not permit an adjustment of a penalty downward to a point where it fails to adequately reflect the gravity of the crimes, and the penalty is not justly proportionate to the totality of the criminal offending."

42           For those reasons, I am persuaded that the sentencing orders under appeal resulted in sentences which in total were manifestly inadequate. Different sentencing orders should be made. I would allow the appeal. I am satisfied that this is not a case in which the Court should exercise the residual discretion to dismiss the appeal: Director of Public Prosecutions v Swan [2016] TASCCA 9, 26 Tas R 32. Intervention by this Court is required to maintain public confidence in the administration of justice and maintenance of proper sentencing standards.

Re-sentence

43           The factors which lead to the conclusion that the appeal should be allowed are relevant to re- sentence. Nothing relevant to sentence has occurred since the sentence was imposed on 14 June 2022: the Code, s 402(4A). But for the issue of totality, the crime of dangerous driving and the offences of evading police, driving while disqualified and breaching bail, together require a sentence of imprisonment for a total term of three years. That term should be cumulative to the terms of imprisonment imposed by the magistrate on 29 September 2021. The firearm offences require additional punishment. For those offences I would impose a cumulative term of imprisonment of eight months. To allow for any remaining prospect of rehabilitation I would, for each term of imprisonment, permit eligibility for parole after serving half of the term. That would enable the respondent's supervised release into the community and a further opportunity to address his abuse of drugs. The driving disqualification orders made by the sentencing judge are appropriate and will be incorporated into the orders I would make.

44           The combined effect of the re-sentencing orders is a term of imprisonment of three years and

eight months with eligibility for parole after serving half of that term. Together with total 18 month

term imposed by the magistrate, with eligibility for parole after 11 months, that would result in a total
period of imprisonment of five years and two months with eligibility for parole after serving two years
and nine months. To allow for totality I would reduce the head sentence for dangerous driving by six

months. Because the Police Powers (Vehicle Interception) Act, s 11A(3C), requires imposition of a

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separate sentence for evading police I would sentence the respondent to imprisonment for six months for that offence, but order that the term be served cumulatively with a two year term for dangerous driving. For clarity I would impose separate but concurrent sentences for the offences of driving while disqualified and breaching bail.

45           The final result is a total effective term for the offences subject to this appeal of three years and two months with eligibility for parole after having served half of that term. When taken with the sentences imposed by the magistrate on 29 September 2021 the result is a total effective term to be served by the respondent of four years and eight months from 29 December 2020 with eligibility for parole after having served two years and six months of that period.

Orders

46   For those reasons I would order that:

1            the appeal be allowed.

2            the sentencing orders made on 14 June 2022 be quashed.

3            on Indictment 168/2021 (dangerous driving), the respondent is convicted and sentenced to 2 years' imprisonment, to be served cumulatively with the sentences imposed by a magistrate on 29 September 2021. He will not be eligible for parole until he has served 1 year of that sentence. He is disqualified from driving for 4 years from his release from prison. Any driver licence that he may have is cancelled.

4            on count 3 on Complaint 11152/2020 (evading police), the respondent is convicted and sentenced to 6 months' imprisonment, to be served cumulatively with the sentence imposed on Indictment 168/2021. He will not be eligible for parole until he has served 3 months of that sentence. He is disqualified from driving for 3 years from his release from prison.

5            on count 1 on Complaint 11152/2020 (driving whilst disqualified), the respondent is convicted and sentenced to 4 months' imprisonment, to be served concurrently with the sentence imposed on indictment 168/2021. He is disqualified from driving for 1 year from his release from prison.

6            on count 2 on Complaint 11152/2020 (breach of bail), the respondent is convicted and sentenced to 1 month's imprisonment, to be served concurrently with the sentence imposed on indictment 168/2021.

7            on Indictment 254/2021 (possessing a stolen firearm) and Complaint 8909/2021 (possessing a shortened firearm), the respondent is convicted and sentenced, as a global penalty, to 8 months' imprisonment to be served cumulatively with the sentences imposed on indictment 168/2021 and count 3 on complaint 11152/2020. He will not be eligible for parole until he has served 4 months of that sentence.

8            each of these sentences is to take effect as if it was imposed on 5 October 2021.

47 For the purposes of s 92A of the Sentencing Act 1997 I would specify that the total period of imprisonment that the respondent is liable to serve for the offences to which this appeal relates is 3 years and 2 months, to be served cumulatively with the sentences of imprisonment imposed by a magistrate on 29 September 2021, and with eligibility for parole after having served 1 year 7 months of the period totalling 3 years 2 months

48           When the terms imposed by a magistrate on 29 September 2021 are taken into account, the total period to be served by the respondent is 4 years and 8 months from 29 December 2020, with eligibility for parole after having served 2 years and 6 months of that period.

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File No CCA 1598/2022

DIRECTOR OF PUBLIC PROSECUTIONS v SHAYDEN JAMES COWEN

REASONS FOR JUDGMENT BRETT J
8 September 2022

49   I agree with the orders proposed by Pearce J and his Honour's reasons for those orders.