Glenn William Bowman v Gavin Alan Campbell
[2011] ACTSC 104
•24 June 2011
GLENN WILLIAM BOWMAN v GAVIN ALAN CAMPBELL [2011] ACTSC 104
(24 June 2011)
CRIMINAL LAW – appeal from Magistrates Court – appeal against sentence – whether Magistrate sentenced as if for the worst case – whether Magistrate sentenced as if for a more serious offence – significance of availability of fine in assessing severity of sentence of imprisonment – significance of immediate custodial period in assessing severity of sentence of imprisonment.
EVIDENCE – admissibility of fresh evidence on appeal – evidence of events since sentence not admitted on appeal.
Crimes (Sentence Administration) Act 2005 (ACT), s 110
Crimes (Sentencing) Act 2005 (ACT), ss 10, 12, 37
Crimes Act 1900 (ACT), ss 26, 27(3)(c)
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1)
Crimes Act 1958 (Vic), s 17
Sentencing Act 1995 (WA), ss 6(4), 76(2)
Cotter v Corvisy [2008] ACTSC 64
Dinsdale v The Queen (2000) 202 CLR 321
DPP v Coleman (2001) 120 A Crim R 415
Kennewell v Rand [2006] ACTCA 10
Myers v Swan [2001] ACTSC 60
R v Bright [1916] 2 KB 441
R v Szeto [1999] NSWCCA 296
The Queen v De Simoni (1981) 147 CLR 383
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 57 of 2007
Judge: Penfold J
Supreme Court of the ACT
Date: 24 June 2011
IN THE SUPREME COURT OF THE )
) No. SCA 57 of 2007
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GLENN WILLIAM BOWMAN
Applicant
AND:GAVIN ALAN CAMPBELL
Respondent
ORDER
Judge: Penfold J
Date: 24 June 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld and the appellant will be re-sentenced.
The parties will be heard about the re-sentencing.
Introduction
Glenn William Bowman has appealed from sentences imposed in the Magistrates Court for an offence of dangerous driving under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Road Transport Act) and one of common assault under s 26 of the Crimes Act 1900 (ACT). The offences were committed on 16 August 2006.
Mr Bowman initially sought also to appeal against his convictions (which would have involved him seeking to withdraw his pleas of guilty) but that aspect of the appeal was withdrawn when the hearing began on 29 June 2009.
Background
The circumstances of the offence
On the evening of 16 August 2006, Mr Bowman and his partner Ms Heffernan were at a pool hall in Weston, ACT. They were having an argument, in the course of which Mr Bowman picked up Ms Heffernan and carried her out of the pool hall. He was observed by several other people who had followed him out of the pool hall, including Bill Pesi, who demanded that he let Ms Heffernan go; eventually Mr Bowman put Ms Heffernan down and walked away. Some of the observers gathered on the footpath near Ms Heffernan.
Shortly afterwards, Mr Bowman, driving a silver Toyota van, approached the area where the group had gathered. He drove the car in the direction of Mr Pesi, accelerating as he approached and mounting the kerb only a few metres away from Mr Pesi, who feared that he would suffer serious injury, and had to dive out of the way to avoid being hit by the van. Fortunately, no one was hit or otherwise hurt. Witnesses to the incident contacted the police.
Meanwhile, Mr Bowman had returned to his home in Kambah, and had also called the police. When police arrived there they found him apparently intoxicated and still drinking alcohol. He admitted having driven at two men earlier in the evening. Police observed a silver Toyota van in the garage of Mr Bowman's house.
Court processes
Mr Bowman was taken to the City Watch House, where he was charged initially with an act endangering life contrary to s 27(3)(c) of the Crimes Act 1900 (ACT) (specifically, intentionally and unlawfully using against another person an offensive weapon likely to endanger human life or cause a person grievous bodily harm), and dangerous driving contrary to s 7(1) of the Road Transport Act. At some point the charge of endangering life (carrying a maximum penalty of 10 years imprisonment) was dropped, but when Mr Bowman appeared in court on 14 December 2006, a charge of assault in relation to Mr Pesi was added.
On 28 June 2007, Mr Bowman was sentenced in the Magistrates Court to nine months imprisonment for dangerous driving, and three months imprisonment for the assault, to be served concurrently. Six months of the longer sentence was to be served in full-time custody and the remainder of the term was to be suspended. Mr Bowman began serving his sentence immediately. On 29 June 2007 he lodged an appeal against the sentence, but he remained in custody until 20 July 2007 when he was released on bail.
Delays
This matter has been inappropriately drawn out in all respects. The original proceedings were not completed in the Magistrates Court until nearly ten months after Mr Bowman was charged. The appeal was lodged very promptly on the day after sentence was imposed, but the appeal index was not settled until February 2008. The appeal first came before me in April 2008 and was adjourned until May 2008. In May 2008 counsel requested a mental health report on Mr Bowman, and the matter was adjourned until the end of July 2008. In July 2008, the matter was further adjourned because the mental health report was not available, and I had to direct Mr Bowman to co-operate in the preparation of the report. In September 2008, the appeal was adjourned to a date to be fixed; this was because ACT Mental Health were not able to conduct an assessment of Mr Bowman at that time. It is not clear whether this was because he was distracted by the ill-health of his young baby, born in May 2008, who had a serious liver problem and was on a waiting list for a liver transplant, or whether an extended stay in Sydney while the baby was receiving treatment made the assessment logistically impossible. The matter came before me again in April 2009, when I noted that Mr Bowman still had an appointment with a psychiatrist outstanding, and adjourned the matter until late June 2009. The hearing finally began on 29 June 2009 and finished on 2 July. This decision has also been unfortunately delayed.
Some of the delays mentioned have been caused by resource shortages in this Court and possibly other agencies, and some are attributable to the ill-health of Mr Bowman’s baby. However it is apparent from the file that considerable delays have been caused directly by Mr Bowman, who has not done anything promptly except lodging this appeal. I mention these delays specifically only because the outcome of this appeal appears likely to be that Mr Bowman is to be returned to prison for at least two months, for an offence that he committed, and was charged with, nearly five years ago.
Grounds of appeal
The Notice of Appeal was prepared by Mr Bowman personally and specified “conviction and severity of sentence” as the appeal grounds; the grounds of appeal identified in counsel’s written submissions were as follows:
(a)the learned Magistrate gave excessive weight to the seriousness of the offence;
(b)the learned Magistrate gave insufficient weight to the state of mind of the appellant at the time of the offence;
(c)the learned Magistrate gave insufficient weight to the subjective circumstances of the appellant;
(d)the learned Magistrate gave insufficient weight to the plea of guilty; and
(e)the sentence is manifestly excessive.
The relationship between these several grounds of appeal was not clear. None of them points directly to any particular sentencing error by the sentencing Magistrate; only ground (e), that the sentence was manifestly excessive, is in effect a claim that the sentence is so obviously wrong that error, albeit unable to be identified, can be inferred. It may be that grounds (a) to (d) were intended to support the claim that the sentence was manifestly excessive, but this seems to overlook the fact that manifest excess is assessed by reference to the sentence actually imposed, rather than the process undertaken in determining to impose it.
I note also that grounds (a) and (b) refer to “the offence” without identifying which of the two offences is intended. The written submissions appear to focus on the dangerous driving offence, although given that the two offences emerge from the same conduct, the intent of the written submissions is somewhat obscure.
For all those reasons, instead of trying to consider the grounds of appeal as set out by counsel in written submissions, I have considered the grounds of appeal as argued by counsel at the hearing to see if any of them in fact suggest an error on the part of the sentencing Magistrate.
Appeal grounds (a) and (d)
As argued, these two appeal grounds, that excessive weight was given to the seriousness of the offence and that insufficient weight was given to the plea of guilty, rely on different interpretations of the same agreed or assumed facts in relation to the dangerous driving offence. Those facts are as follows:
(a)The sentence imposed was 75% of the maximum sentence.
(b)The sentencing Magistrate noted Mr Bowman’s plea of guilty.
(c)A standard plea of guilty discount would be in the order of 25%.
(d)If a standard plea of guilty discount was given then the starting sentence must have been the maximum sentence of 12 months imprisonment.
The conclusion drawn from these facts is that the sentencing process went wrong because either:
(a)the sentence was imposed on the basis of an incorrect assessment of the seriousness of Mr Bowman’s offence; or
(b)the sentence imposed involved an inadequate plea of guilty discount.
I note first that the difficulty of choosing which of these options to argue arises because, although her Honour did refer to the plea of guilty and its significance, she did not comply with s 37 of the Crimes (Sentencing) Act 2005 (ACT) by specifying the penalty that she would have imposed in the absence of such a plea.
The seriousness of the offence
Counsel’s argument about the seriousness of the offence can, I think, be summarised as follows:
(a)if the sentencing Magistrate gave the standard plea of guilty discount, she must have treated Mr Bowman’s offence as the worst possible example of the offence, or very close to it;
(b)her Honour could only have reached this conclusion if she had taken account of aspects of Mr Bowman’s actions that were relevant to the more serious offence with which he was initially charged.
Counsel did not take the next step and mention to what is often referred to as the De Simoni error, from The Queen v De Simoni (1981) 147 CLR 383, in which the High Court by a majority (Gibbs CJ, with whom Mason and Murphy JJ agreed) appeared (at 390) to approve the principle stated in R v Bright [1916] 2 KB 441 that:
the judge “must not attribute to the prisoner that he is guilty of an offence with which he has not been charged—nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation”.
What was the sentencing Magistrate’s starting point?
Counsel argued that in sentencing Mr Bowman, after a plea of guilty, to imprisonment for nine months for an offence carrying a maximum penalty of 12 months imprisonment, the sentencing Magistrate must have started with a penalty that was very close to the maximum penalty for the relevant offence, which could only be justified by a view that the offence was close to the worst example of the offence.
Counsel for the respondent rejected the argument that, if a 25% plea of guilty discount had been given, the nine-month sentence showed a view of the offence as involving the worst possible example of the offence, and referred me to the case of Cotter v Corvisy [2008] ACTSC 64. In that case, Refshauge J considered an argument that a sentence of nine months imprisonment for an offence with a maximum imprisonment penalty of 12 months, imposed in a case where the offender had pleaded guilty, implied that the sentencing Magistrate had considered the offence to fall into "the worst category of cases" covered by the offence concerned. As in this case, the argument was to the effect that a nine-month term represented a 12-month sentence (the maximum) discounted by 25%, a fairly standard plea of guilty discount.
His Honour referred to the case of R v Szeto [1999] NSWCCA 296, in which Wood CJ at CL, with whom Simpson J agreed, at [11]-[13] accepted an argument that a sentence of 80% of the maximum available prison term, in a case involving subjective circumstances favourable to the offender (including a guilty plea), justified an inference that the sentencing judge had placed the case in the worst category for the offence concerned and “had commenced the sentence at, or near, the maximum”. Refshauge J noted (at [50]) that the maximum penalty for the case he was dealing with also included a fine, and that the plea of guilty discount available in that case "would have been in the nature of some weeks, perhaps a month at the absolute maximum". He found that the argument that the sentencing Magistrate must have treated the offence as falling in the worst category was not made out.
I am not convinced that it is necessarily appropriate to consider the scope for imposing a fine as well as a term of imprisonment for the purpose of deciding whether a particular sentence reflects a view that the offence fell into the “worst category". Where an offender is clearly unable to pay any or any significant fine, he or she would seem to be unfairly disadvantaged, compared with an offender with more financial resources, if a court took account of the possibility of imposing a substantial fine as well as a term of imprisonment for the purpose of the yardstick against which to determine the actual sentence. It would probably be equally unfair for a court to identify an offence as at the middle level of seriousness, note that the offender is capable of paying a substantial fine, and then impose the maximum term of imprisonment on the basis that this represented only half the maximum penalty.
I note also that Wood CJ at CL did not purport to specify that 80% (after a plea of guilty reduction) is the lower limit of the sentence level that can be assumed to reflect a court’s view that a particular offence falls into the worst category of cases for that offence; rather, he noted that an 80% penalty in the particular circumstances of the offender concerned was sufficient to make good the submission that the sentence reflected a categorisation of the offence as one of the worst cases. For these reasons, and having regard to possible jurisdictional differences in the level of sentencing discounts given in recognition of pleas of guilty and other matters, I consider that it is dangerous and possibly productive of error to take too mathematical an approach to inferring a sentencing court’s attitude to an offence from the sentence actually imposed.
Mr Bowman was identified in a pre-sentence report that was before her Honour as a person who would have some difficulty in paying a fine. He had no assets, although also no liabilities. He was unemployed, and received Centrelink benefits, out of which he and his partner were supporting several children. In deciding how to sentence Mr Bowman, it would not have been reasonable for her Honour to contemplate imposing a substantial fine instead of, or as well as, a prison term, so a prison term, up to a maximum of 12 months, was realistically the only penalty available. For that reason, I compare only the maximum term of imprisonment for the offence with the penalty in fact imposed.
That comparison suggests either that her Honour considered that she was sentencing for a very serious example of the offence concerned (whether or not it was in the worst category or only on the borderline of the worst category), or alternatively that she sentenced as if for a more serious offence than had been charged.
Counsel for the respondent referred to a concession that Mr Bowman had effectively “been sentenced in the mid-range”, but in fact it seems that what Mr Bowman’s counsel was conceding was that the offence itself fell into the middle range of seriousness. A submission possibly implied by the respondent, that the conceded level of offending was matched by a mid-range sentence because Mr Bowman was only required to serve six months of the nine-month sentence in custody, would have indicated a misunderstanding of the significance of imposing a prison sentence, some or all of which is then suspended. First, it is clear that the suspension of a sentence of imprisonment is secondary to the imposition of the sentence (see s 12, Crimes (Sentencing) Act 2005 (ACT)). Secondly, it is also clear that the term of imprisonment imposed must be one that would be appropriate to be served in full-time custody, since that may be the ultimate result if the offender breaches the conditions of the good behaviour order that must accompany the suspension (see s 110, Crimes (Sentence Administration) Act 2005 (ACT)).
In Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale), Kirby J at [79] made the following comments about suspended sentences:
The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point ... is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a “soft option” when the court with the responsibility of sentencing is “not quite certain what to do”. (citations omitted)
Thus, it cannot be said that because the sentence as originally imposed required only six months in full-time custody, it was a mid-range sentence; it remains a sentence of 75% of the maximum term of imprisonment for the offence, with whatever implications such a sentence has.
In submitting not that the severity of the sentence was justified but that the sentence was not as severe as it looked, counsel for the respondent may have been, in effect, conceding that a mid-range sentence would have been adequate.
As Kirby J pointed out in Dinsdale at [77] in relation to the Sentencing Act 1995 (WA) (the WA Sentencing Act), the power to impose a term of imprisonment, even with the intention of suspending it, is constrained by the statutory indication in s 6(4) of the WA Sentencing Act that imprisonment is the punishment of last resort; in the ACT, the relevant provision is s 10 of the Crimes (Sentencing) Act.
Section s 76(2) of the WA Sentencing Act precluded the imposition of a suspended sentence unless imprisonment for the term suspended would, if it were not possible to suspend the imprisonment, be appropriate in all the circumstances. This provision was described by Kirby J at [78] as “designed to restrain the imposition of an artificial term of imprisonment, inflated with the object of giving an appearance of severe punishment although it is expected that this will not actually be carried into effect”. The ACT legislation does not appear to include an express equivalent of s 76(2) but, as noted, a sentence of imprisonment that has been suspended may well be required to be served at some point, so such a constraint must be implicit in any conferral of power to suspend sentences of imprisonment.
Did the sentencing Magistrate sentence for a more serious offence?
As mentioned at [6] above, Mr Bowman was initially charged with the much more serious offence of endangering life under s 27(3)(c) of the Crimes Act, carrying a maximum penalty of imprisonment for 10 years, compared with a maximum penalty of 12 months imprisonment for the dangerous driving offence.
The claim that the sentencing Magistrate fell into error in matching the sentence to the offence gains some support from her comments about the offence. In her sentencing remarks, her Honour described Mr Bowman’s offence in these words:
In my view, this is a very serious example of a member of the community using a motor vehicle as a weapon and his conduct must be condemned and denounced by the courts.
While it is hard to disagree with her Honour’s assessment of the matter as deserving of condemnation and denunciation, her Honour’s description of Mr Bowman’s offence refers specifically to the essence of the more serious offence, that is, the use of a weapon (in this case the vehicle).
Her Honour then referred to the Victorian case of DPP v Coleman (2001) 120 A Crim R 415 (Coleman), a “road rage” case involving very serious injuries caused to the victim. Mr Coleman was charged with causing serious injury recklessly, which carried a maximum penalty of 15 years imprisonment (s 17 of the Crimes Act 1958 (Vic)). In that case, the offender’s sentence was increased on appeal from four years imprisonment to six years imprisonment. It is interesting that her Honour first specified that she “certainly [did] not take [Coleman] into account because it is dealing with a different matter”, but then went on to quote at length from the case. She concluded with a reference to Mr Bowman having taken “to the wheel of a motor vehicle when he is clearly outraged” and requiring a penalty appropriate to “his degree of irresponsibility in so driving”.
While Mr Bowman’s conduct was reprehensible and requires deterrence in particular, I am not convinced that his dangerous driving offence was in the worst category, if only because it appears to have involved relatively low speeds. As discussed, the possibility that the sentencing Magistrate might have sentenced as if for a more serious offence is not excluded by an examination of the matters her Honour took into account before exercising that discretion, in particular her reference to the case as one involving the use of the motor vehicle as a weapon, and her focus on the Coleman sentence in the context of her reference to Mr Bowman as having been “outraged” (discussed at [40]-[44] below).
Conclusion
Thus, both an assessment of the sentence actually imposed, and an examination of her Honour’s remarks, support the submission that the sentencing Magistrate erred in her approach to the seriousness of the dangerous driving offence; it seems that when her Honour imposed the sentence, she was influenced by the more serious offence with which Mr Bowman was originally charged, and I so find.
The plea of guilty
As noted at [17] above, counsel’s argument about her Honour’s approach to the seriousness of the offence started from the assumption that a plea of guilty discount of around 25% had been allowed. If that is accepted, then there can be no criticism that the discount was inadequate. On the other hand, there is reason to infer that her Honour did not give a discount as large as 25%, that reason being that she referred to matters that would have justified her in giving a lower discount. For instance, her Honour noted Mr Bowman’s plea of guilty, but also that there was no significant evidence of remorse on Mr Bowman’s part; as well, she said that in the face of a very strong prosecution case the plea was “of small utilitarian value”.
That is, either her Honour gave a standard discount (which assumption is a significant element of counsel’s argument about the view taken of the seriousness of the offence), or she gave a lower discount for valid reasons that she articulated. I cannot see any error in the sentencing Magistrate’s attitude to Mr Bowman’s pleas of guilty, although, as mentioned, she should have specified the penalty that she would otherwise have imposed.
The appellant’s state of mind
As mentioned at [35] above, her Honour characterised Mr Bowman’s frame of mind at the time of the offence as “outraged”.
There was evidence before her Honour from the psychologist Dr Stevens. He said that Mr Bowman suffered from a general sense of anger and injustice, which apparently emerged first when, as a 15-year-old, he was sexually abused by a teacher who was subsequently acquitted of the relevant charges. Mr Bowman also suffered more generally a “cognitive distortion”, including a tendency to adopt a victim role, and this seemed to be his attitude to the incident the subject of the offences. Dr Stevens says that by the time Mr Bowman drove back towards Mr Pesi and the others “he was probably in a high state of anxiety”.
Counsel for Mr Bowman referred to the suggestion made before the sentencing Magistrate that Mr Bowman “sees the world largely in terms of amplified threat”. Even during the appeal hearing Mr Bowman repeated his claim that “the two people on the road”, the men at whom he had driven his van, were coming to get him. The statement of facts recorded Mr Bowman’s claim to police that he had a samurai sword (which was confirmed by police) and his threat to cut off the heads of people if they came to his house (it is not clear whether this threat was aimed at the police or the two men who had intervened in the earlier incident to protect Ms Heffernan).
However bizarre Mr Bowman’s view might seem, his dealings with police immediately after the incident do suggest that he genuinely believed he was the victim in the incident. Counsel for Mr Bowman says that her Honour’s finding of “outrage” was against the weight of evidence, given the absence of any direct evidence of outrage and the availability of some evidence (including that of Mr Bowman’s actions immediately after the offence), that he might have had a somewhat different frame of mind.
It is possible that her Honour made a mistake of fact in characterising Mr Bowman’s state of mind as “outraged” rather than “anxious” and affected by a “victim mentality”, but except as mentioned below it is not clear to me that accepting counsel’s characterisation of Mr Bowman’s state of mind would have made any difference in the sentencing. Anxiety and a “victim mentality” may be disabling but, even if explicable by life experiences, do not provide an excuse for victimising innocent people. The only significance of her Honour’s description of Mr Bowman as being “outraged” is that it lends further credence to my finding at [36]-[37] above that her Honour may in sentencing for dangerous driving have placed undue reliance on the “road rage” case of Coleman.
The subjective circumstances of the appellant
Her Honour said that this was a case in which the need for general and specific deterrence was very significant, and that the defendant’s subjective circumstances should not be allowed to take priority over deterrence. The subjective circumstances mentioned by her Honour were Mr Bowman’s psychological problems, his alcohol and drug abuse, and the fact that he had a young family. She also noted as relevant (although not in favour of leniency) Mr Bowman’s long and unimpressive criminal record, which showed an apparent propensity to commit acts of violence.
Counsel for Mr Bowman also mentioned Mr Bowman’s age (35 years), his long-standing but volatile de facto relationship and the five children it had produced, and the sexual assault mentioned earlier. None of these subjective circumstances seemed to necessitate or even to justify any particular leniency for Mr Bowman. Counsel tendered a further mental health report from Dr Saboisky, which mentioned symptoms of Attention Deficit Disorder, but did not appear to establish anything more substantial in the way of mental health problems than has previously been noted.
In reply, counsel for the respondent noted that Mr Bowman did not have any recognised psychiatric disorder, that his “victim mentality” was not a mental disorder, and that Mr Bowman’s previous encounters with the criminal justice system do not seem to have taught him not to offend. She pointed out Mr Bowman’s apparently continuing view that there was nothing inappropriate about his behaviour, and his lack of remorse. She said that the sentencing Magistrate had properly taken into account both Mr Bowman’s history of, and continuing, illicit drug abuse and the fact that previous community-based sentencing options had not deterred him from re-offending. Counsel also pointed out, in effect, that her Honour was justified in finding unconvincing Mr Bowman’s apparently new-found belief, reported to the pre-sentence author, that he saw his children as a reason for not re-offending, given that his older children at that stage were 16, 13, 11, 7 and 5 years of age.
It is possible that Mr Bowman’s subjective circumstances might have been relevant in assessing whether the sentence was manifestly excessive (although they would not in my view have been sufficient to establish that claim). However I cannot see that her Honour’s approach to those matters demonstrates any sentencing error as such.
Was the sentence manifestly excessive?
Two submissions were made that were not directly relevant to any of the other appeal grounds and so were presumably made in support of the manifest excess claim.
Counsel for Mr Bowman commented on his criminal history, which was not impressive. She focussed, however, on Mr Bowman’s history of offences of violence, going back to an intentional threat to kill made in January 1992, and noted that before the sentences under appeal, Mr Bowman had not been sentenced to any custodial sentence except 12 periods of periodic detention, and there had been just over six years between the relevant offences and Mr Bowman’s immediately preceding offences of violence. While not disputing these factual submissions, I cannot see that they indicate any basis for a finding of manifest excess.
Counsel also drew attention to the case of Kennewell v Rand [2006] ACTCA 10, in which the ACT Court of Appeal imposed two 18-month terms of imprisonment, to be served concurrently, on an offender who had pleaded guilty to two counts of culpable driving causing grievous bodily harm, the maximum penalty for which was four years imprisonment. The significance of this case seemed to be that the comparison between the facts of that case and of Mr Bowman’s case, and between the penalties imposed in the two cases, suggested that Mr Bowman’s penalty was disproportionately high. The two cases, however, involved very different kinds of offences (among other things, Mr Bowman’s offence involved intent rather than a form of negligence), and very different circumstances (including that the offender in Kennewell v Rand had a much greater claim to leniency than does Mr Bowman), and I cannot see that any sensible comparison can be made.
No other specific submissions were made in support of the claim that the sentence was manifestly excessive, and this appeal ground was not made out.
Conclusion
The only ground of appeal that has been made out is that relating to the sentencing Magistrate’s approach to the offence for which her Honour was sentencing Mr Bowman. I am also satisfied that a different and somewhat lower sentence for the dangerous driving offence would be appropriate.
The assault charge
In view of some of Mr Bowman’s comments, I note first that the offence of assault was in this case constituted not by any physical contact with Mr Pesi but by Mr Bowman’s act of putting Mr Pesi in fear of violence. Although the sentence of three months imprisonment for the assault charge was also the subject of appeal, no specific submissions were made that it was infected by error, and I have not been able to identify any relevant error in relation to that sentence. To the contrary, that sentence seems if anything to be surprisingly low, given that it relates to an offence with a higher penalty than the dangerous driving offence (two years imprisonment rather than only one year), and that it was the effect on Mr Pesi that made Mr Bowman’s dangerous driving particularly significant. Now that my finding on the dangerous driving charge has permitted a re-opening of the sentencing process, the appropriate sentence for this assault is also in question.
Fresh evidence
At the appeal hearing, counsel for Mr Bowman tendered evidence relating to the health problems of Mr Bowman’s youngest child, mentioned at [8] above. Counsel conceded that this was evidence of matters arising after Mr Bowman was sentenced, but sought to have it admitted in reliance on Myers v Swan [2001] ACTSC 60. In that case Crispin J found that the sentencing Magistrate had not erred in imposing sentence, but that a subsequent assessment by a psychiatrist that there was a risk the appellant could become suicidal if required even to serve periodic detention justified him in setting aside the original sentence and re-sentencing the appellant.
Even accepting for present purposes that this was a course available to his Honour in that case, I was not satisfied that Mr Bowman’s circumstances were such as to permit the receipt of or reliance on the evidence concerned as a ground of appeal. Accordingly, the evidence was not admitted on the appeal. That evidence, or presumably an updated version of it, will no doubt be tendered again at the re-sentencing hearing.
Orders
The orders are:
(a)the appeal is upheld and the appellant will be re-sentenced;
(b)the parties will be heard about the re-sentencing.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 24 June 2011
Counsel for the appellant: Ms T Warwick
Solicitor for the appellant: Darryl Perkins Solicitor
Counsel for the respondent: Ms K McKenzie
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 29 June, 2 July 2009
Date of judgment: 24 June 2011
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