Director of Public Prosecutions v Monks

[2024] TASCCA 4

[2024] TASCCA 4

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Director of Public Prosecutions v Monks [2024] TASCCA 4
PARTIES:	DIRECTOR OF PUBLIC PROSECUTIONS
v
MONKS, Cameron Robert
FILE NO:	CCA 3552/2023
DELIVERED ON:	17 June 2024
DELIVERED AT:	Hobart
HEARING DATE:	27 May 2024
JUDGMENT OF:	Estcourt J, Martin AJ, Porter AJ
CATCHWORDS:

Criminal law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Crown appeal against dangerous driving sentence – Serious example of dangerous driving with considerable potential for harm – Significant mitigating circumstances including age of respondent, limited prior convictions, and demonstrable rehabilitation – Sentence of 2 months' imprisonment wholly suspended and a 12 month community correction order manifestly inadequate – Appeal allowed and sentence of 9 months' imprisonment wholly suspended substituted.

Aust Dig Criminal Law [3521]
Banks v State of Tasmania [2019] TASCCA 1; Director of Public Prosecutions v Brown [2019] TASCCA 11;
Director of Public Prosecutions v Cowen [2022] TASCCA 10; Director of Public Prosecutions v Broadby,
Cockshutt and Woolley [2010] TASCCA 13; Director of Public Prosecutions v Bradford [2016] TASCCA;
Everett v The Queen (1994) 181 CLR 295; Director of Public Prosecutions (Acting) v Pearce [2015]

TASCCA 1; 14, referred to.

REPRESENTATION:

Counsel:

Appellant:	E Bill, B Luzza
Respondent:	D Geason

Solicitors:

Appellant:	Office of Director of Public Prosecutions
Respondent:	Butler McIntyre & Butler

Judgment Number:	[2024] TASCCA 4
Number of paragraphs:	27

Serial No 4/2024

File No CCA 3552/2023

DIRECTOR OF PUBLIC PROSECUTIONS v CAMERON ROBERT MONKS

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J (Dissenting) MARTIN AJ PORTER AJ 17 June 2024
Order of the Court:

1. Allow the appeal and set aside the order of imprisonment of 2 months.

2            Re-sentence appellant to 9 months' imprisonment.

3            Suspension and all other aspects of the sentence to remain in place.

Serial No 4/2024

File No CCA 3552/2023

DIRECTOR OF PUBLIC PROSECUTIONS v CAMERON ROBERT MONKS

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL ESTCOURT J (Dissenting) 17 June 2024
The appeal

1 On 9 November 2023 the respondent Cameron Robert Monks, who was 19 years old at the time of his offending and without prior conviction for these offences, pleaded guilty to one count of dangerous driving, contrary to s 172A of the Criminal Code on indictment, and to related summary offences of evading police in aggravated circumstances and driving a motor vehicle with a prescribed illicit drug present in oral fluid.

2   Blow CJ imposed the following sentence:

•

On the charge of dangerous driving:

(i)	Two months' imprisonment, wholly suspended on condition that he commit no offence punishable by imprisonment for a period of 18 months; and
(ii)	A Community Correction Order, to operate for 12 months from 1 December 2023, with special conditions that he must (a) during that period submit to the supervision of a probation officer as required by the probation officer; and (b) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.

•

On the charge of driving with an illicit drug in oral fluid:

(i)	A fine of $780; and
(ii)	Disqualification from driving for a period of 6 months from 1 December 2023.

•

On the charge of evading police:

(i)	A fine of $3,900; and
(ii)	Disqualification from driving for an additional period of 2 years.

3             The appellant, the Director of Public Prosecutions, has appealed against the entire sentence on the single ground that it was manifestly inadequate. It does appear however, from the appellant's written submissions, that the gravamen of the appeal concerns the adequacy of the sentence imposed for the crime of dangerous driving.

The circumstances of the offending

4            The following summary of the statement of facts read to the learned sentencing judge on the sentencing hearing is taken from the appellant's written submissions to this Court:

"(a) At the time of the alleged offending, the accused was 19 years old and the
holder of a Provisional 2 driver's licence.

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(b)	At approximately 10.00pm on Friday, 28 October 2022 members of Tasmania Police were on duty in the Cambridge area when they were made aware of reports of a number of vehicles driving dangerously in Cherokee Drive, Cambridge. Senior Constable Keygan was travelling in a marked police vehicle. Police attended the area and observed the accused driving a red Holden Barina hatch (registration EJ 3177) from Kennedy Drive into Cherokee Drive. The marked police vehicle was approximately 30 metres from the accused's vehicle when the accused conducted a U-turn and exited Cherokee Drive, turning left onto Kennedy Drive without indicating.
(c)	S/C Keygan accelerated and drove towards the accused. As the accused drove onto Kennedy Drive, S/C Keygan activated his emergency lights and sirens. As S/C Keygan approached the accused's vehicle he noted the registration number and observed two rear seat passengers turn and look at the police vehicle from the rear window. The accused continued to accelerate away from police. S/C Keygan kept the lights and sirens activated and flashed his headlights.
(d)	As the accused drove on Kennedy Drive, he was driving at an estimated speed of 110km/h in a marked 80km/h zone and then an estimated 110km/h through a marked 60km/h roadworks zone. The accused was observed turning off Kennedy Drive onto the Tasman Highway, towards Sorell.
(e)	The accused continued driving on the Tasman Highway and was observed making a U-turn at the intersection of Pittwater Road. As the accused travelled back towards police (towards Hobart), police again activated their emergency lights and sirens and flashed their headlights. The vehicle accelerated rapidly, travelling at an estimated 100km/h in the 60km/h marked roadworks zone. The accused continued driving towards Hobart on the Tasman Highway.
(f)	At approximately 10.00pm Constable Newell and Constable Curtis parked their marked police vehicle on Cambridge Road outside the Mornington Inn, facing towards the Mornington roundabout in an attempt to observe the accused. At approximately 10.15pm the accused was observed approaching the roundabout. The accused drove past the parked police vehicle and drove along Cambridge Road, towards Pass Road. Constable Newell conducted a U-turn and attempted the intercept the accused. The accused took off at speed, and overtook a vehicle without indicating. After overtaking the vehicle the accused continued travelling on the incorrect side of the road for approximately 5-10 seconds before returning to the correct side.
(g)	The accused continued driving along Pass Road in the direction of Rokeby. At the intersection of Pass Road and the South Arm Highway the accused drove through a red light and turned left onto the South Arm Highway.
(h)	The accused drove onto Burtonia Street, Rokeby with the vehicle's headlights turned off as it turned onto Rokeby Road. The accused then turned the headlights on and drove onto Diosma Street before making a right turn onto Banyalla Street, and then back onto Burtonia Street and back onto the South Arm Highway.

(i)          Police set up a road spike point on South Arm Highway in the vicinity of Ralph Terrace. A second road spike was also set up at a roundabout on the intersection of South Arm Highway and Oakdowns Parade.

(j) As the accused drove towards the road spikes near Ralph Terrance he was travelling in excess of 100km/h in a 60km/h zone. The vehicle failed to stop as directed by a marked police van. An immobilisation device was used to puncture the vehicle's tyres. The accused continued to drive, with a police divisional van following with their lights and sirens activated, before slowing

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and coming to a stop. The accused was seated in the driver's seat and had

three passengers.

(k)	The accused was arrested and cautioned, both at the scene and at the Bellerive Police Station. Under caution he admitted that he failed to stop the vehicle because he has a bad driving record - he had smoked cannabis and consumed one beer, and was worried about losing his licence and the car, which is (sic) not his. When he saw police he panicked. He admitted that he drove from Cambridge during the evade, and that he was the one driving 100km/h through the roadworks. He only stopped because the steering became hard and a passenger yelled at him to stop. These admissions are captured on BWC footage.
(l)	Whilst at the police station the accused submitted to an Oral Fluid Collection which later returned a positive result for THC (CN 1320/23).
(m)	At the time of the offending the conditions were wet, it was raining, and there was a moderate amount of traffic on the road.
(n)	The overall distance travelled by the accused was approximately 23 kilometres. The dangerous driving occurred over a period of approximately 30 minutes." (Appeal book references and particular numbers omitted.)

The comments on passing sentence

5   The learned sentencing judge's comments were relatively brief and I set them out in full.

They are as follow:

"Mr Monks has pleaded guilty to a charge of dangerous driving and to two other charges – evading police and driving with an illicit drug in his oral fluid. I am dealing with those two summary offences under s 385A of the Criminal Code.

The charges relate to events that occurred on the night of Friday 28 October 2022. At that time Mr Monks was 19 years old and the holder of a provisional driver's licence. He was driving a vehicle in Cambridge after smoking some cannabis. A police officer drove towards him in a marked police vehicle in a side street named Cherokee Drive. Mr Monks panicked, made a U-turn, and sped away. The officer activated his emergency lights and sirens, indicating to Mr Monks that he should stop, but he drove away at high speeds.

He drove about 23kms over the next half hour before police officers managed to stop him. Initially he drove onto Kennedy Drive and then onto the Tasman Highway towards Sorell. Just past the Hobart Airport he made a U-turn and returned along the Tasman Highway to the Mornington roundabout. From there he travelled along Cambridge Road and Pass Road, and then through Rokeby, detouring into some residential streets at one stage. Road spikes were deployed on the South Arm Highway at two places. His tyres were punctured in the vicinity of Ralph Terrace but he still continued to drive. Eventually he slowed and stopped. At the end he was having difficulty steering the vehicle. He had two passengers, and one of them was yelling at him to stop. As well as travelling at dangerous speeds Mr Monks made turns without indicating, overtook a vehicle without indicating, travelled on the wrong side of Cambridge Road, drove through a red light, and failed to stop when pursued by a marked police van with its lights and sirens activated. The roads were wet. It was raining. There was a moderate amount of traffic on the roads.

After Mr Monks stopped his vehicle he was arrested and cautioned. He cooperated with the police and made admissions. In particular he admitted that he had been smoking cannabis, and that he had driven through roadworks at about 100 Km/h.

Mr Monks is now 20 years old. He does not have a bad criminal record. He was ordered to perform 21 hours' community service for offences committed against a

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police officer in 2022, fined for speeding later that year, and fined this year for a hooning offence committed in August of last year. He has recently completed a period of six months driving disqualification imposed as a result of that offence.

Mr Monks is single. He lives with his parents. He has full-time employment. He went through an unhappy period of his life in 2022 after being retrenched by an impecunious employer very close to the end of his second year of a carpentry apprenticeship. He became unemployed, became estranged from his parents, suffered from depression, started taking drugs, and lived an itinerant homeless life, sometimes couch surfing. He ended up spending two weeks in hospital. He was prescribed anti- depressant and anti-psychotic medication. He became reconciled with his parents. He now sees his general practitioner and a psychologist at regular intervals. He has been in his current employment for about six months, and works six days per week. His counsel told me that he had been drug free for four months, and had returned to participation in sport.

A probation officer has assessed him as unsuitable for court-ordered community service[1] but has recommended that I make a community correction order with provision for at least 12 months' supervision by a probation officer.

I will sentence him separately in relation to each of the three offences. I will fine him and disqualify him from driving in relation to the charges of driving with THC in his system and evading the police. On the charge of dangerous driving I will impose a short wholly suspended prison sentence and make the recommended community correction order.

Mr Monks, if you get into any more trouble in the next 18 months, there is a chance that you will be sent to prison.

I convict you on all charges. On the charge of driving with an illicit drug in your oral fluid, I order you to pay a fine of $780 within 28 days and disqualify you from driving for six months from today. On the charge of evading police I order you to pay a fine of $3,900 within 28 days and disqualify you from driving for an additional period of 2 years. On the charge of dangerous driving, I sentence you to 2 months' imprisonment, wholly suspended on condition that you commit no offence punishable by imprisonment for a period of 18 months, and I make a community correction order, to operate for 12 months from today, with special conditions that (a) you must during that period submit to the supervision of a probation officer as required by the probation officer; and (b) you must during that period submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer." (My Emphasis.)

The appellant's submissions

[1] As summarised in the appellant's written submissions, "the respondent was assessed as not suitable to participate in Court ordered

6             Counsel for the appellant in her written submissions set out, at some length, the sentencing principles relevant to the crime of dangerous driving. I repeat them here, although it can be said that they are now very well settled[2] and very well understood by judges of this Court. I note the appellant's observation that the learned sentencing judge made no mention of general deterrence in his comments on passing sentence, however there is no reason to think that his Honour would fail to appreciate the relevant principles, and in particular the need for general deterrence. The submissions are as follows:

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

5   No 4/2024

"12	Parliament enacted s172A of the Criminal Code with effect from September 2017, thereby creating the crime of dangerous driving and removing it from the Traffic Act 1925. This had the effect of increasing the maximum penalty from 12 months' to 21 years' imprisonment.
13	The enactment followed the release in April 2017 of the Sentencing Advisory Council's report 'Sentencing of Driving Offences that Result in Death or Injury'. In relation to sentencing for driving offences the report states, at 108:

'Sentencing data presented for the period 1980–89, indicated that 78% of sentences for single counts of 'dangerous driving' in the Supreme Court were custodial and for the period from 1990–2000, 93% were custodial. It was observed that in the Supreme Court, less than 25% of prison sentences were suspended. In both periods, the median sentence was three months. In these periods, there was limited data from the Magistrates Court and reported sentences for single counts of dangerous driving imposed in the Magistrates Court in the southern Tasmania in 1999 and 2000, found that 93% of sentences were custodial with most being wholly suspended. The sentences ranged from 28 days to four months with a median of three months'.

As a consequence, the DPP suggested considering giving jurisdiction to hear dangerous driving cases back to Supreme Court by putting the offence in the Criminal Code (Tas) to reflect the seriousness of the offence. Similarly, it is the Council's view that this is a serious driving offence involving the exposure of members of the public to danger. Although injury or death has not materialised, the offence has the same fault element as applies for dangerous driving causing death or grievous bodily harm. Although there are some difficulties in making comparisons with sentencing data for earlier periods given that there was limited data from the Magistrates Court, the data available suggests that there has been a decrease in the use of imprisonment as a sanction and a decrease in the use of custodial sanctions. The median sentence has remained unchanged. This does not reflect the changing view expressed by the Supreme Court about the seriousness of offences involving risky driving behaviour and the need to increase the appropriate sentence.

[…] The Council's view is that this is a serious driving offence given that the fault element for this offence is the same as dangerous driving that causes death or grievous bodily harm and the role of risky driving behaviour in cases where death or injury is caused. Accordingly, the Council has identified several responses that may be considered to address sentencing concerns in relation to this offence…

14          In the Second Reading Speech on 10 August 2017, the then Attorney-General 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. This Bill was developed following consideration of the Sentencing Advisory Council's final report "Sentencing of Driving Offences that Result in Death or Injury" released in April this year'.

…

Mr Deputy Speaker, driving unsafely is inherently dangerous. It is tragic that each year around 300 people are seriously injured and killed on Tasmanian roads. 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.

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Our roads must be 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.

15          Guidance as to the relevant sentencing principles when considering the crime of dangerous driving can be found in the crimes of motor manslaughter, dangerous driving causing death or dangerous driving causing grievous bodily harm. It is contended that the general upward trend of sentences for those crimes demonstrates the increasing concern for dangerous driving behaviour generally. The concern for such behaviour, as demonstrated by Parliament's enactment of dangerous driving as an indictable offence, underscores the increased focus on deterrence and denunciation (Banks v State of Tasmania [2019] TASCCA 1 per Porter AJ at [35].

16          The trend of increasing sentences for driving-related crimes has been the subject of appellate comment. In Shipton v R [2003] TASSC 23, Cox CJ said at [9]-[10]:

'In this jurisdiction where, since the enactment of the Criminal Code in 1924, the maximum sentence of imprisonment is a term of 21 years, apart from some crimes such as murder which can attract higher sentences, the legislature does not have the same opportunity to express the public's concern in respect of penalties for specific anti-social behaviour such as motor manslaughter by increasing the maximum penalty which, within the overall range of 21 years, the experience of the Court might indicate as that appropriate to the worst case of such a crime. Nevertheless, legislative concern at the unacceptable road toll caused by irresponsible driving due to excessive speed or alcohol consumption, to name but two factors, has found expression in the creation of certain additional offences against road safety, the facilitation of trial on indictment for some of them, thereby bringing them within the penalty regime of the Criminal Code, and the increase of maximum permissible penalties for those dealt with summarily. Examples are:

• the introduction in 1975 into the Criminal Code (with penalty at large in consequence) of the crime of causing death by dangerous driving (s167A);

• the introduction in 2000 into the Criminal Code (again with penalty at large) of the crime of causing grievous bodily harm by dangerous driving (s167B);

• the introduction in 2000 into the Traffic Act 1925 of the offence of negligent driving causing death, with a maximum penalty of a fine and/or imprisonment for one year for a first offence and one of an increased fine and/or two years' imprisonment for a subsequent offence (s32(2A));

• the introduction in 2000 into the Traffic Act of the offence of negligent driving causing grievous bodily harm, with a maximum penalty of a fine and/or imprisonment for six months and one of an increased fine and/or imprisonment for 12 months for a subsequent offence (s22(2)(b)); and

• increased penalties under the Road Safety (Alcohol and Drugs) Act 1970. When first enacted, the maximum penalty by way of imprisonment for driving under the influence of alcohol contrary to s4 of that Act was one of six months for a first offence and 12 months for a subsequent offence, while that for exceeding the prescribed concentration of alcohol in the blood contrary to s6(1) thereof was one of one month for

7   No 4/2024

a second offence and of three months if the offender had more than one prior conviction. Imprisonment was not an option for a first offence. In 1991, mandatory minimum financial penalties and penalties by way of disqualification were introduced in tabular form and the maximum period of imprisonment for driving under the influence of alcohol was doubled and increased to twelve months for a first offence and 24 months for a subsequent offence, while for exceeding the prescribed concentration of alcohol in the blood, the period of possible imprisonment was increased from nothing to 12 months for a first offence and increased eight-fold to 24 months for a subsequent one'.

This series of legislative increases in the potential for punishment is a clear indication that the public, through their representatives, regard bad cases of misconduct in the management of motor vehicles as a serious problem requiring considerably higher penalties than in the past. The desirability of maintaining in the public interest consistency of punishment cannot be allowed to outweigh the public interest in safeguarding road users against reckless drivers, especially where Parliament so manifestly demonstrates its concern in this respect.

17 His Honour's comments about legislative changes signalling Parliament's intention to reflect public concern about criminal conduct related to driving are equally applicable to the insertion of s 172A into the Code.

18          In Director of Public Prosecutions (Acting) v Rushton [2015] TASCCA 20 at [16], Tennent J commented:

'There is little doubt having regard to a number of cases in recent years involving death by dangerous driving that the Court has recognised the need to impose sentences that more obviously reflect society's condemnation of driving behaviour which results in the death or a person or persons. As a consequence, sentences imposed for this crime have trended upwards'.

19          It has been recognised that general deterrence is the prominent sentencing consideration with respect to crimes involving driving behaviour of either a dangerous or negligent character (Gallagher v Tasmania [2009] TASSC 84, per Tennent J at [84]; Moyle v Tasmania [2010] TASCCA 2; Director of Public Prosecutions v Watson [2004] TASSC 54; Banks v State of Tasmania supra; Director of Public Prosecutions v Smithurst [2011] TASCCA 19 per Tennent J at [13-15]).

20 The criminality at the heart of the crimes of motor manslaughter, dangerous driving causing death and dangerous driving causing grievous bodily harm is the act of dangerous driving itself and the risk it poses. Therefore, in sentencing for s 172A of the Code, the consideration of general deterrence has no significantly lesser weight than it does where the crime produces the specific harm of death or grievous bodily harm. The Sentencing Advisory Council Report notes at page 72 that:

'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'.

21          Further dominant sentencing aims in relation to dangerous driving include specific deterrence, punishment, denunciation and protection of the public (Director of Public Prosecutions v Cowen [2022] TASCCA 10 at [27]).

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22          As was noted by Porter AJ in Banks v State of Tasmania supra at [37]:

'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'.

23          Factors relevant to sentence in dangerous driving matters were identified by the New South Wales Court of Criminal Appeal in the guideline judgment of R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209. These factors have been accepted and adopted in Tasmania (Shipton v R supra per Cox CJ at 5 and Blow J at 8, Director of Public Prosecutions v Watson [2004] TASSC 54, per Slicer J at 11, and Gallagher v The State of Tasmania [2009] TASSC 84, per Crawford CJ at [57] and Tennent J at [81]; Moyle v State of Tasmania [2010] TASCCA 2 per Wood J at [59]); Banks v Tasmania supra per Porter AJ at [44]-[45]. Absent factors relating to death or harm caused, these factors include (per Spiegelman CJ at 231):

(i)	…
(ii)	Number of people put at risk.
(iii)	Degree of speed.
(iv)	Degree of intoxication or of substance abuse.
(v)	Erratic driving.
(vi)	Competitive driving or showing off.
(vii)	Length of the journey during which others were exposed to risk.
(viii)	Ignoring of warnings.
(ix)	Escaping police pursuit.

24          Failing to stop has also been added as a relevant consideration in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.

25          As can be seen at paragraph 5(a)-(n), a number of these factors have been engaged.

26          The underlying principle from the previous sentences is that since the enactment making dangerous driving an indictable offence the Court has imposed sentences that demonstrate general deterrence as being the primary factor (Director of Public Prosecutions v Fletcher Jones [2018] TASCCA 9 per Martin AJ at [37])."

7   Turning to the aggravating features of the case, counsel for the appellant points out:

• the driving lasted for approximately 30 minutes during which time the respondent travelled approximately 23 kilometres.

• a number of motorists were exposed to the risk given the extent of the driving and the nature of the roads travelled on, which included a major carriage way, highway and numerous residential streets.

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• the traffic across the areas travelled was moderate.

• there was a high degree of speed involved, particularly on the residential streets.

• on three occasions, the respondent drove through roadworks at speeds 40 and 50 km/h above the sign posted speed limit.

• the dangers associated with not obeying the limit in road works zones are well known - there are commonly changes to lanes, direction of traffic and road surfaces.

• the driving was at times erratic, including driving on the wrong side of the road to overtake a vehicle and/or in disobedience of traffic signs and signals.

• the driving occurred at night in wet conditions and included a period when he drove with his lights off in dark conditions.

• the respondent was pursued by a number of different police vehicles. The course of driving was motivated by a wish not to be intercepted by police.

• at the time of the offending the respondent was the holder of a provisional licence

• at the time of the driving the respondent had cannabis in his system.

• the driving only ceased after road spikes were deployed and the respondent was no longer physically able to control the vehicle, due to a front tyre being deflated by the police intercept.

• there were three passengers in the vehicle at the time of the dangerous driving.

Discussion

8             The appellants submissions cannot be gainsaid, save perhaps to say that while this was a serious example of the crime of dangerous driving, it is by no means the worst of its kind to come before this Court.

9             There is no tariff for this crime and no sentencing range can be identified because of markedly varying circumstances in which dangerous driving manifests itself[3]. And the upward trend in the harshness of sentences observable in recent years does not render a lenient sentence manifestly inadequate. There is certainly no principle that requires a period of actual imprisonment in every case, or that dictates a minimum sentence or that precludes the imposition of a suspended sentence in an appropriate case.

[3] Director of Public Prosecutions v Cowen [2022] TASCCA 10 per Pearce J at [27]

10           This was not just an appropriate case; it was a classic case[4] for the imposition of a suspended sentence. The learned sentencing judge was dealing with a youthful offender who had not committed the crime of dangerous driving before and who had turned his life around in the ways noted by his Honour in his comments on passing sentence.

[4] In Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, Evans J said at [13] "[t]he youth of an offender, particularly a first offender, frequently persuades a sentencer to suspend a sentence and thereby place more emphasis on rehabilitation than general deterrence, punishment and denunciation."

11           It is unfortunate that community service was not open as an additional sentencing modality, however that was not because of any turpitude on the respondent's behalf and its unavailability does not compel actual imprisonment as a result. His Honour was however able to make a community

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correction order, to operate for a period of 12 months with special conditions, to aid the respondent's
patent prospects of rehabilitation.

12           It might legitimately be said that the length of the suspended sentence imposed by his Honour could have been some months more, but the function of this Court is not to tinker with a sentence under appeal. And, in any event, as I have already noted, the principles for the guidance of sentencing judges in relation to the crime of dangerous driving have been laid down by this Court[5] and this is not a case which is likely to undermine public confidence in the administration of justice[6].

[5] Director of Public Prosecutions v Bradford [2016] TASCCA 14 by Pearce J at [14]

[6] Everett v R (1994) 181 CLR 295 per McHugh J at 306

13           In my view it cannot be said that the sentence was manifestly excessive in the sense in which that term has so frequently been explained[7]. It is not unreasonable or plainly unjust. Both the length of the sentence of imprisonment imposed and its suspension were within the very wide discretion afforded to sentencing judges.

Conclusion

[7] The principles relevant to such an appeal were adumbrated by Pearce J in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]. An appellate court only sits to rectify a genuine error: Dinsdale v The Queen [2000] HCA 54. Where no specific error is alleged, the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499. This requires something beyond being too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion: Bresnehan v The Queen [1992] TASSC 55.

14   I would dismiss the appeal.

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File No CCA 3552/2023

DIRECTOR OF PUBLIC PROSECUTIONS v CAMERON ROBERT MONKS

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL MARTIN AJ 17 June 2024
Introduction

15 The respondent pleaded guilty to one offence of Dangerous Driving contrary to s 172A of the Criminal Code, and also to summary offences, committed at the same time, of evading police in aggravated circumstances and driving a motor vehicle with a prescribed illicit drug present in oral fluid. Blow CJ imposed a number of penalties which are identified in the reasons for judgment of Estcourt J.

16           Included in the penalties was a sentence of imprisonment for 2 months in respect of the offence of Dangerous Driving, which sentence was wholly suspended on conditions which included a community correction order. The Director of Public Prosecutions (the Director) has appealed against all aspects of the sentence on the basis that the sentence was manifestly inadequate. It is clear, however, from the Director's written and oral submissions that the gravamen of the complaint is that the sentence of imprisonment for 2 months was manifestly inadequate. During oral submissions counsel for the Director conceded that suspension of an appropriate sentence was within the range of the sentencing discretion.

17           I have had the benefit of reading the reasons of Estcourt J. For the reasons that follow, I respectfully disagree with his Honour's conclusion that the appeal should be dismissed. I would allow the appeal, but only to the extent of setting aside the sentence of 2 months' imprisonment. I would impose a sentence of imprisonment for 9 months, leaving in place suspension of that sentence on conditions imposed by the learned sentencing judge. I would not interfere with any other aspect of the sentence.

[8] Including the judgment of Porter AJ in Banks v Tasmania [2019] TASCCA 1, 31 Tas R 342 which has consistently

Facts
18	Estcourt J has helpfully set out the relevant facts and the findings of the sentencing judge, including findings as to matters personal to the respondent which provided factors deserving of significant weight in mitigation. His Honour has also canvassed the relevant submissions and authorities.[8] I gratefully adopt his Honour's review.
19	Notwithstanding the matters of mitigation, the objective circumstances of the respondent's offending required the imposition of a sentence of imprisonment. The course of dangerous driving was prolonged and involved the respondent criss-crossing the suburbs at high speed, covering in excess of 20 kilometres. The respondent persistently resisted attempts by police to cause the respondent to cease driving, and he did so in a deliberate, dangerous and sustained course of conduct. Although no person was physically harmed by the respondent's driving, nevertheless there was considerable potential for harm, or even death, to have been caused by the respondent's dangerous driving. Such driving included high speed in residential areas and through road works, overtaking another vehicle and remaining on the incorrect side of the road, disobeying a red traffic light and

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driving at night in wet and dark conditions with head and tail lights turned off. The course of driving lasted for approximately 30 minutes placing a number of motorists, police officers and passengers in the respondent's vehicle, at risk.

20           As mentioned, significant facts of mitigation arising out of the personal circumstances of the respondent existed. Those matters of mitigation are relevant to all aspects of sentencing, including the length of a sentence of imprisonment and the question of suspension. Significantly, although the appellant's conduct on the roads in recent times appeared to be escalating in seriousness, his arrest on the charges under consideration provided both a brake on his conduct and the impetus to turn his life around. His progress in rehabilitating between arrest and sentencing was substantial and included reconciliation with his parents, rehabilitation with respect to the use of illicit drugs and obtaining full- time casual employment which continues today. These factors remain relevant to the length of the sentence, but they weigh more heavily in respect of suspension of the sentence.

Sentencing – dangerous driving

21           General deterrence, denunciation and the protection of the public loom large as sentencing factors with respect to offences of dangerous driving.[9] Parliament signalled the community concern about this crime in 2017 when it removed the crime from the Traffic Act and enacted s 172A of the Criminal Code. The legislative action in this regard increased the maximum penalty for dangerous driving from imprisonment for 12 months to 21 years' imprisonment. Sentences have accordingly demonstrated an upward trend, a trend that existed before the amendment.

[9] DPP v Cowen at [27].

22           The circumstances of the crime of dangerous driving vary infinitely. Accordingly, there is no tariff for the crime, but limited assistance can be gained by reviewing sentences imposed over recent years for similar offending. Such a review of such sentences demonstrates that a sentence of imprisonment for 2 months is at the lowest end of sentences of imprisonment imposed over a number of years for dangerous driving.

Principles

23          The principles governing Crown appeals against sentence are well settled and not in doubt.[10] Speaking broadly, in the absence of specific error, the appellate court must be persuaded that the sentence is unreasonable or plainly unjust, to the point where a court is satisfied that, although not obvious, error in the sentencing process has occurred. Part of the function of the appellate court is to maintain sentencing standards and levels, and to maintain public confidence in the administration of justice.

Conclusion

[10] Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8]; Director of Public Prosecutions v

24           In my opinion, the sentence of imprisonment for 2 months is manifestly inadequate and demonstrative of unidentified error. I have reached this conclusion notwithstanding the significant factors of mitigation that existed. The offending was too serious to justify such a low head sentence, and to allow the sentence to stand would undermine sentencing standards and public confidence in the administration of criminal justice.

25           Further, I agree with the Crown's submission that public confidence in the administration militates strongly against exercising the residual discretion to dismiss the appeal. Maintaining

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appropriate sentencing standards is a particularly important factor in cases of Dangerous Driving
which are too prevalent and place many innocent road users in peril of serious injury and/or death.

26           For these reasons, I would allow the appeal to the extent of setting aside the order of imprisonment for 2 months. After allowing for the plea of guilty and other strong matters of mitigation personal to the appellant, I would substitute a sentence of imprisonment for 9 months. I would leave the suspension and all other aspects of the sentence in place, including the conditions associated with suspension of the sentence.

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File No CCA 3552/2023

DIRECTOR OF PUBLIC PROSECUTIONS v CAMERON ROBERT MONKS

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
17 June 2024

27   I agree with the reasons for judgment of Martin AJ and with the orders he has proposed.

community service due his significant mental health barriers to engagement; (namely anxiety and depression); his full-time employment; and being unlicensed and reliant upon family members for transport. In particular, he told the probation officer that he frequently works in excess of full-time hours, which was opined to adversely impact his availability to attend community service work sites."

been applied, for example, in Director of Public Prosecutions v Brown [2019] TASCCA 11; Bishop v State of Tasmania
[2019] TASCCA 21 and Director of Public Prosecutions v Cowen [2022] TASCCA 10.


Bradford [2016] TASCCA 14 at [14].