"DRI" (A Child) v Read
[2004] WASCA 240
•7 OCTOBER 2004
"DRI" (A CHILD) -v- READ [2004] WASCA 240
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 240 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:141/2004 | 7 OCTOBER 2004 | |
| Coram: | STEYTLER J MCKECHNIE J SIMMONDS J | 7/10/04 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed. Sentence imposed by President of the Children's Court set , aside. In lieu the appellant is sentenced to a period of 9 months, suspended , for 2 years., Appellant disqualified from holding or obtaining a motor vehicle driver's , licence for a period of 2-1/2 years from 29 June 2004. | ||
| D | |||
| PDF Version |
| Parties: | "DRI" (A CHILD) ROBERT STANLEY READ |
Catchwords: | Criminal law and procedure Sentence Road traffic Dangerous driving causing death Sentence of imprisonment Whether sentence should have been suspended No new principles |
Legislation: | Nil |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Wood v The Queen [2002] WASCA 95 Ainsworth v D (a child) (1992) 7 WAR 102 Casserley v The Queen; SCt of WA; Library No 990164; 31 March 1999 Kay v The Queen [2004] WASCA 222 Parsons v The Queen (2000) 32 MVR 319 R v Guilfoyle [1973] 2 All ER 844 Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "DRI" (A CHILD) -v- READ [2004] WASCA 240 CORAM : STEYTLER J
- MCKECHNIE J
SIMMONDS J
- Appellant
AND
ROBERT STANLEY READ
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT
Coram : HIS HONOUR JUDGE REYNOLDS
File Number : CC 2281/04
Catchwords:
Criminal law and procedure - Sentence - Road traffic - Dangerous driving causing death - Sentence of imprisonment - Whether sentence should have been suspended - No new principles
(Page 2)
Legislation:
Nil
Result:
Appeal allowed. Sentence imposed by President of the Children's Court set aside. In lieu the appellant is sentenced to a period of 9 months, suspended for 2 years.
Appellant disqualified from holding or obtaining a motor vehicle driver's licence for a period of 2-1/2 years from 29 June 2004.
Category: D
Representation:
Counsel:
Appellant : Mr I Weldon
Respondent : Mr R E Cock QC & Mr S P Formby
Solicitors:
Appellant : Altorfer & Stow
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
R v Wood (2000) 130 A Crim R 518
Case(s) also cited:
Ainsworth v D (a child) (1992) 7 WAR 102
Casserley v The Queen; SCt of WA; Library No 990164; 31 March 1999
Kay v The Queen [2004] WASCA 222
Parsons v The Queen (2000) 32 MVR 319
R v Guilfoyle [1973] 2 All ER 844
Ravi-Pinto v Power, unreported; SCt of WA; Library No 930647; 26 November 1993
(Page 4)
1 MCKECHNIE J: This is an expedited appeal against a sentence of 9 months' imprisonment with a parole eligibility order imposed by the President of the Children's Court on 29 June 2004, following the appellant's conviction after his plea of guilty to the charge of dangerous driving causing death. The appellant's motor vehicle driver's licence was suspended for a period of 2½ years.
2 The facts giving rise to the offence were recounted by the President in that the accident occurred on 19 April 2003, although the subsequent death did not occur until 30 April 2003. After noting that the consumption of alcohol and other substances was not material, and putting them to one side, the President continued:
"…it was an Easter weekend in the April of 2003. [The appellant's] parents were away and the appellant stayed at home and the deceased, his best friend, came to stay over with him. There was a relative's car, a Commodore, at the house. I won't go into what happened the night before. Suffice to say that [the appellant] and the deceased went out, they consumed some drinks and generally socialised and they returned home later in the night. They stayed up doing one thing or another during the course of the early - - the early hours of the morning and then a decision was made on the spur of the moment to go for a drive.
At the time, [the appellant] was on 'L' plates. He wasn't licensed. He'd got to the stage of doing nearly all or all of his 25 hours under his learners permit, but wasn't licensed to drive alone. He was 17 years of age at the time, as I've mentioned.
He got into the car behind the driving wheel and in the driver's seat and the deceased was sitting in the front left passenger seat of the Commodore motor vehicle. Whilst driving up the street, [the appellant] remembered that he had a text message. He went to pull over to access the text message on his mobile phone and the deceased told him that it would be all right and that he would steer. So [the appellant] kept going with the deceased steering the Commodore motor vehicle. They came to an intersection and slowed down. The deceased steered the Commodore around the corner. Having negotiated the corner, [the appellant] then accelerated up Mitchell Street. When doing so, the deceased had hold of the steering wheel. [The appellant was] operating the pedals and in particular as [the appellant was] accelerating, the accelerator. [The appellant] didn't have
(Page 5)
- [his] hands on the steering wheel and [he was] looking down at his mobile phone."
3 The President accepted, in counterpoint to a submission by prosecution, that the appellant was reading a text message and not sending one but, as he noted, that made no real difference because the appellant was looking down, occupied with the mobile phone and not looking ahead:
"… So you weren't steering at all and you weren't looking where you were driving the motor vehicle.
Having gone 150 metres and reached the speed of 50 or 60 kilometres per hour, the car left the road and hit a tree. The Commodore was extensively damaged. The front left wheel was forced back to the front passenger's footwell. The deceased later died from his injuries."
4 The appellant was originally charged with manslaughter but at an early stage offered to plead guilty to dangerous driving causing death. The offer was finally accepted by the prosecution, and the appellant pleaded guilty on 26 May 2004. A pre-sentence report was obtained.
5 The President, in careful reasons which referred extensively to authorities of this and other courts, concluded:
"In my view, this is a case where, weighing all of the circumstances in their entirety and taking into account and applying the principles and objectives of sentencing young persons under the Young Offenders Act, the seriousness of this offence and the need for general deterrence outweigh the combination of matters personal to you; your excellent personal antecedents, your offer and plea of guilty and the consequences resulting from the delay in your offer being accepted, such that a custodial sentence will have to be served in an adult prison."
6 The President then continued:
"Driving requires the driver to observe his or her environment and react to it and what is happening in it, and to anticipate what may happen and drive accordingly. No one can abrogate or give away any of the responsibilities of a driver to a passenger, particularly not steering. Not looking where you were going because you were focusing your attention on your
(Page 6)
- mobile phone and not taking in the environment around you, not holding onto the steering wheel and yet accelerating to 50 or 60 kilometres per hour is, in my view, extremely dangerous.
Regrettably, the real potential for danger was realised in this particular situation and in a most extreme way, namely the loss of human life."
7 The President then dealt specifically with the question of general deterrence by saying:
"It is to be noted that in recent times there has been a proliferation of mobile phones and use of them by young persons under and over 18 years of age for text messaging. That is all very well, but not when driving a motor vehicle on a public road. There needs to be a loud and clear message to all young persons and adults for that matter, that if when driving a motor vehicle they focus their attention on their mobile phone to the extent that you did and in the same or similar circumstances to this case, then the consequences will be severe. That message needs to be heeded by everyone. In appropriate cases, even people - - and even young people, people under the age of 18 years at the time of the commission of the offence and with excellent antecedents, expose themselves to the sentence of last resort."
8 The President concluded that a sentence of 18 months was appropriate. Having regard to the transitional provisions of the Sentencing Act, that sentence was reduced to one of 12 months. He further discounted the sentence to one of 9 months:
"…because of the history as outlined, because of the rejection of the plea of guilty and the consequences that have flowed from that which now necessitate the sentence of - - the custodial sentence to be served in an adult prison…"
9 The appellant, by his grounds of appeal, challenges the imposition of a custodial penalty and the decision not to suspend the sentence. The general principles for sentencing for this type of offence, although not young offenders, have been recently restated in R v Wood (2000) 130 A Crim R 518 per Murray and Miller JJ in their respective judgments, where, by a majority, the appeal was dismissed. The President referred to Wood in the course of his sentencing remarks.
(Page 7)
10 In my opinion, the decision to impose a term of imprisonment was open to the President. The circumstances of the offence and the need for general deterrence as outlined were such that, notwithstanding the antecedents of the appellant, the decision to imprison was one within the proper exercise of discretion.
11 I turn to the question of suspension of the sentence. The issue which arises here is whether the President erred in his decision that the sentence ought not be suspended. In that respect, he said:
"…I'm of the view that a suspended sentence is not appropriate in this case."
12 The President then referred to Wood and the reference in the judgment of Murray J to Dinsdale v The Queen (2000) 202 CLR 321. The President also referred to the judgment of Miller J where he quoted from Dinsdale and the judgment of Kirby J at [85] – [86]:
"This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment.
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations…"
13 In the passage I have just quoted, the President set out the correct principles but there is no indication what factors he took into account in the second weighing of the factors which led to his decision to impose a term of imprisonment to be served forthwith. I infer that he regarded the objective features of the offence as so serious that they outweighed all other matters which were personal to the appellant.
14 Miller J also reminds me in Wood at [118] - [119] that where a particular sentence was open to the learned trial Judge, it is quite wrong for an appellate court to interfere with it. Giving full weight to the exercise of the President's discretion, I am nevertheless of the view that the discretion not to suspend the sentence miscarried to such a degree as to warrant the intervention of this Court. Principles of general deterrence
(Page 8)
- were largely achieved by the imposition of a sentence of imprisonment. A sentence of a suspended imprisonment is a very serious sentencing disposition.
15 In revisiting the facts and circumstances to determine whether justice requires that a sentence be suspended, there are a number of features to be considered. The President gave weight to them in determining the initial length of sentence, but it is unclear - and I conclude - that he did not re-evaluate them fully in considering the question whether the sentence ought to be suspended.
16 These features include:
• The principles of sentencing young offenders as set out in the Young Offenders Act;
• general deterrence, which was largely accomplished, in my view, by the initial term of imprisonment;
• the demonstrated deep remorse of the appellant, manifested also by an early intention to plead guilty;
• the youth of the appellant;
• his prior good character;
• the lack of need for personal deterrence;
• matters specifically found by the President;
• the fact that the sentence would be served in an adult prison;
• the attitude of the victims of crime, the deceased's parents, who did not press for imprisonment;
• the attitude of the prosecution, which was a relevant though not a decisive factor; and
• the short length of the total sentence which was imposed.
17 It is now well accepted that short sentences do not generally accomplish the terms of punishment and deterrence and specifically here, of course, there was no need for personal deterrence.
18 While none of these factors by themselves may be decisive, the combination of them in this case required that the sentence should be suspended. In consequence, in my opinion, the decision of the President failing to suspend the sentence was one that was not open to him. I would allow the appeal to the extent of making an order suspending the term of imprisonment of 9 months.
(Page 9)
19 In respect of the driver's licence suspension, I would also order that the appellant be disqualified from holding or obtaining a motor driver's licence for a period of 2½ years from 29 June 2004.
20 STEYTLER J: I agree generally with what has been said by McKechnie J and with his Honour's conclusion that this was not a case in which it was not appropriate to use the option of suspended imprisonment provided for by s 39(2)(f) of the Sentencing Act 1995.
21 I agree also with McKechnie J that the trial Judge's exercise of discretion miscarried in the respects to which his Honour has referred and that the disposition of the appeal should be as his Honour has outlined.
22 SIMMONDS J: I agree also with both the reasons and the conclusion of McKechnie J and, for those reasons, would agree that this appeal be disposed of in that way.
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