Moyle v Tasmania

[2010] TASCCA 2

[2010] TASCCA 2

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

CITATION:          Moyle v Tasmania [2010] TASCCA 2

PARTIES:  MOYLE, Jai
  v

TASMANIA (STATE OF)

FILE NO/S:  1057/2008
DELIVERED ON:  10 February 2010
DELIVERED AT:  Hobart
HEARING DATE:  11 November 2009
JUDGMENT OF:  Crawford CJ, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Particular offences – Driving offences – Sentence – Culpable or dangerous driving causing bodily harm – Tasmania – Whether sentence of imprisonment for two years six months for causing grievous bodily harm by dangerous driving and perverting justice manifestly excessive.

R v Jurisic (1998) 45 NSWLR 209; Shipton v R [2003] TASSC 23; and Director of Public Prosecutions v Watson [2004] TASSC 54; Gallagher v Tasmania [2009] TASSC 84, considered.
Aust Dig Criminal Law [2522]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Whether sentence of imprisonment for two years six months for causing grievous bodily harm by dangerous driving and perverting justice manifestly excessive.

R v Jurisic (1998) 45 NSWLR 209; Shipton v R [2003] TASSC 23; Director of Public Prosecutions v Watson [2004] TASSC 54; Gallagher v Tasmania [2009] TASSC 84, considered.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  G A Richardson
             Respondent:  D G Coates SC, J Hartnett
Solicitors:
             Appellant:  G A Richardson
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 2
Number of paragraphs:  72

Serial No 2/2010
File No CCA 1057/2008

JAI MOYLE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD CJ (Dissenting)
TENNENT J
WOOD J
10 February 2010

Order of the Court
Appeal dismissed.

Serial No 2/2010
File No CCA 1057/2008

JAI MOYLE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  10 February 2010

1. The appellant was found guilty by a jury of one count of causing grievous bodily harm by dangerous driving, contrary to the Criminal Code, s167B, and two counts of perverting justice, contrary to s105. The indictment charged the dangerous driving upon the basis of both a speed that was dangerous to the public and a manner of driving that was dangerous to the public. For the three crimes he was sentenced to imprisonment for two years six months from 6 November 2008. It was ordered that he was not to be eligible for parole before the expiration of half the term of imprisonment. It was also ordered that he be ineligible to hold a driver's licence for three years from his release from prison.

1. He appealed against the sentence on the ground of manifest excessiveness.  The appeal concerns only the length of the term of imprisonment. 

The circumstances of the crimes

1. The crimes were committed in the early hours of 14 May 2006.  On the previous afternoon he played football at Wesley Vale, following which he drank a considerable amount of alcohol at the ground and at his football club's rooms at Forth.  At about midnight he drove his car, with his partner, Paula Heyward, as a passenger, a short distance to the Forth Hotel, where he drank more alcohol.  At about 1.15am, he walked to a nearby residence.  He had been drinking for many hours and was showing signs of tiredness and intoxication.  At about 2.00am, having returned to the hotel, he drove away from it with Ms Heyward, heading for Devonport along Forth Road. 

1. The accident happened on a sweeping right hand bend about two or three kilometres from the hotel.  The left wheels went on to the gravel verge on the left side of the road.  He attempted to correct the vehicle but it went into a yaw, moving onto the incorrect side of the road and then back on to the correct side, where it left the road surface, travelled through a fence and rolled a number of times before coming to rest about 80 metres from the road. 

1. The speed limit was 100 km/h.  The speed at which the vehicle was travelling was estimated by an expert witness as within the range of 95 to 112 km/h, and by another expert as 100 km/h.  The learned judge found that it exceeded 100 km/h and that it was excessive in the circumstances.  He also found that the appellant had a blood alcohol concentration at the time of the accident of 0.15 or more grams of alcohol in 100 millilitres of blood.

1. The learned judge found that the cause of the accident was a combination of alcohol, inattention, speed and failure to approach in a safe manner a corner on a road known to the appellant.  The evidence of the dangerous speed and manner of driving was confined to what occurred at the corner where the accident took place.  There was no evidence of the speed and manner of driving at any time before then. 

1. After the accident, the appellant telephoned the emergency number 000 and asked for an ambulance.  He informed the operator that he was not the driver, who, he said, was a male unknown to him who had fled the scene.  His statements to the operator were the basis of the first count of perverting justice.  He made the same statements to Constable Gorman, who attended at the scene of the accident.  He also told the officer he was a rear seat passenger at the time of the accident.  That statement was the basis of the second count of perverting justice.

1. The crime of perverting justice may be committed in the form of an unsuccessful attempt to pervert justice.  The appellant's attempts were unsuccessful.  In addition to the crimes for which he was sentenced, he was also charged with driving with excessive alcohol in his body and driving while disqualified.  Those charges had not been resolved at the time of the sentence. 

The grievous bodily harm

1. Ms Heyward suffered life-threatening injuries.  Without medical intervention she would have died.  The injuries included a severe brain injury; a left radial fracture of the forearm; an undisplaced right radial fracture; multiple facial fractures including multiple fractures of the mandible, the maxilla and nasal bones and a fracture of the left orbital floor; a left laminar C7 fracture; a fracture of the transverse process of L1; a comminuted fracture of the left scapula; a chip fracture of the right ileosacral bone; and bruising to the lung.  Her brain injuries resulted in a traumatic subarachnoid haemorrhage and diffuse cerebral oedema.  On the Glasgow Coma Scale of 3 to 15 she had a reading of 3, the lowest possible score, when admitted to hospital.  She was an impatient at the Royal Hobart hospital for two months and was then transferred to a rehabilitation unit at St John's Hospital. 

1. At the time of the trial in October 2008, she was physically mobile to an extent, using a complex walking aid or crutches for short distances but a wheelchair for longer distances.  She had some spasticity of muscles due to the brain injury.  She had retrograde amnesia that extended to some weeks or months prior to the accident.  The most serious injury was impairment in terms of her ability to think and reason and long-term and short-term memory.  She would never be able to function in the community and required assistance, which primarily was provided by her mother. 

1. The learned judge described the consequences of the dangerous driving as horrendous and said that the life of the young woman, who was a teenager at the time of the accident, had been irrevocably ruined.  He found: "She will never be able to live unassisted by professional carers.  Her brain, cognitive and motor-related capacities will remain significantly impaired.  Her family have but memories of a young, vibrant, physically and mentally endowed woman.  They remain, as primary carers, distraught and affected by the consequences of the act of dangerous driving and its sequelae."

1. His Honour accepted a summation by Ms Heyward's mother of the harm caused.  It included that Ms Heyward had gone from a bright bubbly teenager who had the world at her feet to a person with a very limited future.  She had a carer for eight hours each day.  She moved around on a walking frame and had a wheelchair for outings.  She had regular physiotherapy and saw a speech pathologist once a month.

The circumstances of the offender

1. The appellant was 25 years old at the time of the crimes and 28 at the time of sentence.  He was educated to year 12 and since then had been employed as a roof plumber.  He was regarded by his current employer as dependable and trustworthy.  He had always been an active sportsman.  He played football for many years, the last seven with the Forth Football Club, where he was highly regarded as a leader and contributor to the club.  He had been captain of the senior team for two or three years and vice captain before that.  He had a number of roles on the club's committee, and was assistant coach and of considerable assistance with fund raising.  At the time of the accident, he lived with Ms Heyward. 

1. He committed speeding offences in 2001, 2003, 2005 (two) and 2006 (two), all of which predated these crimes, although convictions for the two in 2006 post dated them.  He committed two more speeding offences in 2007.  On 7 March 2006, he was convicted of driving a motor vehicle with excessive alcohol in his blood (0.126) on 5 February 2006, and was fined $400 and disqualified from driving for six months.  That was the first occasion upon which he was disqualified from driving.  He breached the disqualification order when he drove on the night of these crimes.  On 31 October 2007, he suffered another three months disqualification because of an accumulation of demerit points for speeding. 

1. In 2005 he was fined $400 and a probation order was made for an assault on Ms Heyward.  That she was the subject of the assault has no significance for the purposes of this case. 

1. He claimed that he no longer had any memory of the accident.  He demonstrated remorse for the consequences to Ms Heyward.  He visited her at the Royal Hobart Hospital every day for two weeks and subsequently, after returning home to Forth, he travelled by bus to visit her there every second Sunday.  When she was transferred to a Launceston hospital he visited her there on three occasions.  However, he had not seen her since because of an assault on him by a member of her family and another, which involved punches and kicks, and a demand that he not go near her. 

Some of the sentencing comments

1. The learned judge said that the culpability of the appellant was made worse by the fact that he was a disqualified driver at the time of the accident.  That statement is not attacked by a ground of appeal, but its validity should be treated with caution.  That he was a disqualified driver was irrelevant to the question whether he drove in a manner or at a speed that was dangerous.  He was to be sentenced for the dangerous driving, and the injurious consequences of it, and not for the fact that he was driving at all. 

1. Further, the sentence should not have been increased because he was a disqualified driver.  The general rule is that no offender should be punished for an offence of which he has not been convicted.  R v De Simoni (1981) 147 CLR 383; Rowbottom v R unreported 24 March 1960; Walsh v R (1996) 6 Tas R 70 at 76 and 93. His driving while disqualified was the subject of a separate charge which had not been resolved when the sentence was imposed for these crimes and he remains subject to the risk that he may be punished separately for it.

1. Nevertheless, that he was driving while disqualified was a relevant consideration.  For example, it could be used to deny him leniency and to demonstrate the need for personal deterrence.  Veen v R (No 2) (1988) 164 CLR 465 at 477.

1. Similar comments apply to the fact that at the time he drove, he had a blood alcohol level of at least 0.15.  That was also the subject of a separate charge which had not been resolved when he was sentenced for these crimes.  The dangerous quality of the manner and speed of his driving was to be assessed in the light of his consumption of alcohol and blood alcohol level, but the sentence should not have been increased simply because of those matters. 

1. His Honour said: "But he is to be punished for his conduct and its consequences.  In sentencing, courts must retain a distinction between an act causing death and one causing irredeemable harm.  That distinction is of little solace to the young woman and her family.  They might, with some justification, regard the distinction as meaningless.  But the finality of death requires the distinction." 

1. With respect, I agree.  The law considers that when all other things are equal, the taking of a life is graver than causing grievous bodily harm.  The principle is reflected by the fact that sentences for intentional murder are invariably more severe than sentences for intentionally causing grievous bodily harm.  For these reasons, the sentence for the appellant's crime ought to have been less severe than it would have been if his manner and speed of driving had caused his passenger's death.  However, having regard to the substantial injuries, disabilities and suffering that were caused, the difference need not have been great.

1. His Honour also said: "Harm caused through the misuse of a motor vehicle has many variants but in this case it was criminal.  Cases warranting a more lenient form of judicial response are here of little import as a guide to sanction in this case.  Cases involving the causing of grievous bodily harm show that consequence is a significant factor in determining sentence.  But allowance ought be made for the absence of any specific intent to harm another and the subjective characteristics of the offender." 

1. I am not sure that I understand what his Honour meant by the second of those sentences.  It is so obviously correct as not to need mentioning.  However, I concur with what his Honour said in the last sentence.  The appellant did not wish or intend to cause harm to Ms Heyward and for that reason, his culpability could not be likened to that of an offender convicted of committing an unlawful act intended to cause bodily harm, contrary to the Code, s170.  Nor should he have been sentenced as if he had been found guilty of causing grievous bodily harm contrary to s172. 

Was the sentence manifestly excessive?

1. The sentence was imposed for the three crimes and not just for causing grievous bodily harm by dangerous driving.  Having regard to sentencing levels for perverting justice by making false statements about the identity of a driver, I approach the appeal upon the basis that three months of the imprisonment was attributable to the two counts of perverting justice and two years three months of the imprisonment was attributable to the driving charge.  Three months imprisonment for the perverting justice charges would have been unassailable on appeal.  The question raised by the appeal becomes therefore, was imprisonment for two years three months manifestly excessive for the driving charge?           

1. On an appeal against sentence, the Court will frequently consider the general level of sentences for the crime with a view to ensuring consistency in sentencing practices.  However, that approach is difficult in this case because sentences for causing grievous bodily harm by dangerous driving are rare and because recently, the Court has determined that in the past sentences for serious driving offences, such as manslaughter and causing death by dangerous driving, have not been severe enough. 

1. Although the crime of causing grievous bodily harm by dangerous driving was inserted into the Code in 2000, there appear to have been very few cases in which it was charged.  The only sentences for the crime alone that are recorded in the Court's sentencing database are McGuire, 18 April 2005, Brazendale, 12 February 2004 (two counts) and Barnes, 6 August 2003.  They were sentenced to imprisonment for seven months (five suspended), three months (all suspended) and nine months respectively.[1]

   [1] In addition, global sentences were imposed on M and K, 20 December 2007 (for causing death by dangerous driving and causing grievous bodily harm by dangerous driving), P, 27 June 2007 (also for causing death by dangerous driving and causing grievous bodily harm by dangerous driving) and Hansson, 26 March 2007 (for manslaughter, causing grievous bodily harm by dangerous driving, driving under the influence of alcohol and four other less serious offences). 

1. In a recent decision of this Court, Gallagher v Tasmania [2009] TASSC 84, I analysed sentences imposed for causing death by dangerous driving from 1989 until the sentencing of Gallagher on 18 June 2008. There were 33 such sentences. In effect, the most severe for the crime itself was two years imprisonment. Only five exceeded 12 months. Upon the basis of that analysis, the present sentence would be regarded as manifestly excessive, without question, for the appellant's manner and speed of driving were not as culpable as in many of those cases, and death was the consequence in all other than in this case. At paragraphs 48 to 51, I dealt with the need for consistency and standardisation in sentences. Nevertheless, sentence standards are ultimately the responsibility of this Court and in Gallagher, and in two other cases that came before this Court in recent years, it made it clear that the general level of sentences for serious driving offences should be increased from what it was in the past.  See Shipton v R [2003] TASSC 23[2] and Director of Public Prosecutions v Watson (2004) 146 A Crim R 223.[3]

   [2] The appeal related to a sentence for motor manslaughter.

   [3] The appeal related to a sentence for motor manslaughter and causing grievous bodily harm, not causing grievous bodily harm by dangerous driving.  See footnote 1 concerning the difference.

1. The culpability of the appellant, when viewed from the aspect of the dangerous manner and speed of his driving, was far lower than that of Gallagher, Shipton and Watson.  For sentencing purposes, the dangerous manner and speed of his driving is limited to what took place at the bend where the accident occurred.  Gallagher concerned what was effectively a high speed race between two drivers over a distance of about 30 kilometres, involving far greater speeds, in which a number of drivers were forced to take evasive action until eventually, and almost inevitably, an innocent member of the public was killed.  Shipton was described by Cox CJ on appeal as an appalling case of reckless driving which extended over a period of about 1½ hours, during which the offender, who was severely affected by alcohol, imperilled numerous members of the public before overtaking at a speed in excess of the speed limit, drifting across two oncoming traffic lanes and colliding with an oncoming vehicle, killing its driver.  Watson was racing another vehicle in Hobart's central business district at speeds of 100 kph, where the speed limit was 50 kph, until he disobeyed a red traffic light and collided with a vehicle in the intersecting street, killing its driver and causing grievous bodily harm to his own passenger, who was still unconscious at the time of the sentencing seven months after the crash.  It was the view of this Court that the sentences of imprisonment justified for those cases were four years, seven years and three years respectively.  The imprisonment the appellant deserved, was plainly to be far less severe than the imprisonment imposed on them.  Of course, his crime was less serious than those to which Gallagher, Shipton and Watson were sentenced. 

1. Having regard to the comments of the judges constituting the majority of the Court in those cases, it is clear that a more severe approach to sentencing should be adopted for causing grievous bodily harm by dangerous driving than was the case previously.  Nevertheless, the sentence of imprisonment in this case was excessive and in my judgment, to the point of error.  The dangerous driving lasted for a very short duration.  Death was not caused.  The consequences of the crime were horrendous for the appellant's passenger and her family, justifying an increase in the severity of the sentence, but the appellant's culpability in other respects, when judged from the aspect of dangerous speed and manner of driving, was not as bad as in many other cases.  Criminal negligence was not an element of the charge, nor was it found by the sentencing judge. 

1. I would allow the appeal, set aside the sentence of imprisonment and in its place sentence the appellant on the three counts to imprisonment for one year nine months from 6 November 2008.  I would order that he is not to be eligible for parole before he has served 10 months 15 days of the imprisonment, that is to say half the term.  Such a sentence is substantially more severe than would have been expected prior to Gallagher, Shipton and Watson and adequately reflects the increase in sentencing levels those cases require. 

   Serial No 2/2010
   File No CCA 1057/2008

JAI MOYLE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J

10 February 2010

1. On 6 November 2008, the appellant was found guilty by a jury of causing grievous bodily harm by dangerous driving contrary to the Criminal Code Act 1924, s167B, and perverting justice contrary to s105. On 19 November, he was sentenced globally in respect of those crimes to a period of two years and six months imprisonment to commence from 6 November. It was ordered that he not be eligible for parole until he had served one half of that sentence.

1. He now appeals that sentence. The sole ground of appeal is that the sentence is manifestly excessive.

Circumstances of offending

1. On 13 May 2006, the appellant played football at Wesley Vale and consumed about four full strength beers after the game and before leaving the football ground. Shortly after, he and his partner, Paula Heyward, attended a football club social function. The appellant consumed about ten stubbies of beer there. At about midnight he drove his car, with Miss Heyward as a passenger, a short distance from the football club to the local hotel. He drank further alcohol there. At about 1.15am, he walked a short distance to someone's home, returning shortly after. He was observed to be exhibiting signs of tiredness and to be affected by alcohol. At about 2am, the appellant and Miss Heyward left the hotel in the appellant's car. He began to drive in the direction of Devonport.

1. About two kilometres from the hotel, the appellant's vehicle left the road as he rounded a bend and rolled over 80 metres down an embankment into a paddock. The cause of the accident was a combination of excessive speed, inattention and alcohol. For the purpose of sentencing, it was accepted that the appellant's speed, at the time he entered the right hand corner during which the rollover occurred, was in excess of 100kph. It was also accepted that his blood alcohol level was at least 0.15 and probably more.

1. After the accident, the appellant sought help by ringing the 000 emergency number. He told the operator there had been a motor vehicle accident, but that he was not the driver. He repeated that to attending police. Miss Heyward was badly injured in the accident. She was near death, both at the scene and after being taken to hospital. She spent many months in hospital after the accident and had neither short nor long term memory. She will never live unassisted by professional carers again. Her cognitive and motor related capacities have been significantly affected. Her family are her primary carers. They lost a daughter who was a bright bubbly teenager with the world at her feet. They now have a young woman of uncertain temperament who needs constant assistance. She cannot walk without a frame and requires a wheelchair if she leaves home.

1. The appellant told the Court he had no memory of the accident, although had some memory of talking to a police officer after it.

Circumstances of the appellant

1. At the time of the accident, the appellant was 25 years old. He was employed as a roof plumber, having been gainfully employed almost the entirety of the time since leaving school. He was held in high regard by his employer. He was also an active and well-regarded sportsman. Following the accident, and after his discharge from hospital, the appellant travelled to Hobart and spent hours each day with Miss Heyward over a two week period. For the next six months he travelled by bus to Hobart every second Sunday to visit her. He continued to visit once she was moved to Launceston, although those visits stopped when members of her family attacked the appellant and assaulted him.

1. At the time of the accident, the appellant was a disqualified driver, having been disqualified for a drink driving offence on 7 March 2006. His blood alcohol level for the purpose of that particular conviction was 0.126. The appellant's counsel told the Court that that conviction arose from a random interception, and that the minimum penalty had been imposed. The appellant also had four convictions for speeding and one for driving without proper control of a motor vehicle. The accident clearly did not curb his manner of driving. It is noted that he had another four speeding convictions in the 15 months following this accident.

1. I infer from the appellant's counsel's plea in mitigation that the vehicle being driven on the night of the accident by the appellant was not capable of being driven after the accident, but that the appellant still had a debt to meet in relation to it. He had acquired another car after the accident, and a further debt relating to that at the time of sentencing.

Comments on passing sentence

1. It was accepted that the appellant was remorseful. The learned judge made findings as to speed and blood alcohol level at the time of the accident, and about what contributed to the accident. These findings were not challenged on this appeal. Despite the fact that the appellant had argued with Miss Heyward on the night of the accident, and had previously been convicted of an assault upon her, there was no suggestion that the appellant had any animosity towards her. His Honour also noted the factors which I have outlined under earlier headings, and that there should be a distinction between penalties for causing death by dangerous driving and the primary crime of which the appellant had been found guilty. His Honour also said:

"Harm caused through the misuse of a motor vehicle has many variants but in this case it was criminal. Cases warranting a more lenient form of judicial response are here of little import as a guide to sanction in this case. Cases involving the causing of bodily harm show that consequence is a significant factor in determining sentence. But allowance ought to be made for the absence of any specific intent to harm another and the subjective characteristics of the offender."

Submissions of appellant

1. Counsel for the appellant submitted that the head sentence was excessive. He focused on three matters in his submissions. These were the crime for which the appellant was sentenced, the nature of the appellant's driving, and the consequences of the appellant's driving.

1. As to the nature of the appellant's driving, counsel drew distinctions between the appellant's situation and that disclosed in other cases, accepting, however, his Honour's findings as to speed and blood alcohol level. He submitted that the length of the journey in this matter was short, the appellant having driven only about two kilometres from the hotel to the scene of the accident. He also submitted that the speed limit in the vicinity of the accident was 100kph and that the appellant was found to have driven at a speed not far above that. The only real critique, counsel said, of the appellant's driving was that he had gone off the bitumen surface on a corner and lost control. With respect, while these matters are factually correct, the submission ignores the fact that the appellant's capacity to drive safely would have been adversely affected by a blood alcohol level at least three times over the legal limit, the journey the appellant proposed to undertake was longer than just the two kilometres, and the appellant attempted to drive through a corner while his capacity was impaired, at a speed greater than the limit.

1. As to the consequences of the appellant's act, counsel accepted they were severe for Miss Heyward, but reminded the Court that the appellant's driving had not caused a death.

1. Counsel for the appellant referred to a decision of the Court of Criminal Appeal in Gallagher v State of Tasmania [2009] TASSC 84 and adopted some comments by Crawford CJ appearing at pars49 - 51. His Honour pointed out that he was in the minority in that case where there was an unsuccessful appeal against the severity of a sentence imposed for one count of causing death by dangerous driving. Counsel also referred to a sentence imposed in a matter of Redshaw on 11 December 2008 in respect of one count of manslaughter and one count of causing grievous bodily harm by dangerous driving. In that matter, the offender was sentenced to 21 months imprisonment. Otherwise, counsel simply handed up a batch of documents containing copies of comments on passing sentence, but did not refer to them. He also commented that he was unsure as to what importance the matter of R v Jurisic (1998) 45 NSWLR 209 had in this State, but nevertheless referred to the factors identified by Spigeleman CJ at 231 which had been identified as being relevant to sentence in matters such as the present.

1. Ultimately, what counsel for the appellant submitted was that this sentence, by comparison with many others imposed for both dangerous driving causing death and dangerous driving causing grievous bodily harm, was very high, the nature of the dangerous driving was not at the high end of the scale and the injured passenger had not died.

Submissions of the respondent

1. As to the facts before the learned judge for sentencing purposes, counsel for the respondent pointed out that the medical evidence demonstrated that Miss Heyward would have died but for intervention at the scene and following. Further, Miss Heyward spent some eight months in hospital and, while she may not have died, her quality of life had in effect been destroyed and the impact on her family as carers was significant.

1. As to the manner of driving, counsel referred to the level of the appellant's intoxication and the finding by the learned judge that the speed of the appellant on the corner where the accident occurred was excessive. The accident of course occurred at night.

1. Counsel accepted that the nature of the appellant's driving was not at the top end of types of dangerous driving but submitted that it was not at the lowest end either. This matter involved a number of aggravating factors, being the amount of alcohol consumed, the combination of that with speed, and the severity of the consequences for Miss Heyward.

Discussion

1. I do not propose to list the details of the sentences to which counsel referred. They clearly set out the types of sentences considered appropriate by this Court for offending involving incidents of dangerous driving which have caused death and/or grievous bodily harm.  Many of the sentences referred to are lower than that imposed on the appellant. However, a number of points should be made about such sentences. There are few which relate to the crime of dangerous driving causing grievous bodily harm alone. This is most likely to be a consequence of the fact that most such crimes have been dealt with in conjunction with either manslaughter or dangerous driving causing death, and the fact that the crime is a relatively recently created one. Further, it is trite to say that no two cases are the same. While it is an important feature of any range of sentences that there is some consistency in sentences for the same or similar crime, a judicial officer always has a wide discretion when sentencing an offender. There will inevitably be factors in one matter, not present in another, which will persuade a judicial officer that a similar sentence in another matter should not be precisely repeated.

1. There has also been a recognition that sentences for crimes involving death or harm arising from the dangerous driving of a motor vehicle should have a significant deterrent factor. In Gallagher (supra), I said at par86:

   "The difficulty in assessing the appropriateness or otherwise of sentences for this type of offending is that, if they are intended to act as a deterrent to others, a view often expressed, they should be seen as operating as such.  A consideration of media reports about motor vehicle accidents which continue to occur, makes it abundantly clear that sentences imposed to date are not deterring others from dangerous acts of driving with the potential to harm others." 

2. Counsel for the respondent submitted that the Court's response in the cases of Shipton v R [2003] TASSC 23, Director of Public Prosecutions v Watson [2004] TASSC 54 and Gallagher (supra) demonstrated that the Court is saying there should be a general increase in sentences for serious cases of dangerous driving causing death. He could see no reason why that approach should not be adopted for the primary crime being considered here. 

1. Even if that is accepted, it cannot be suggested that the manner and extent of the appellant's driving was in the same category as that in Gallagher. There were however factors in the appellant's case which indicated that a significant deterrent sentence was required. These were:

·the amount of alcohol the appellant had consumed prior to driving,

·the blood alcohol level that consumption produced at the time of the accident,

·the speed at which the appellant drove into the corner where the accident occurred, at a time when it was dark and he was affected by alcohol,

·that the appellant had been convicted of a drink driving offence barely two months before this accident,

·that the appellant had previously been dealt with for speeding on more than one occasion,

·that the appellant had been dealt with for speeding a number of times in the 15 months following the accident,

·the significant and permanent consequences for Miss Heyward and her family. While she did not die, it is arguable that the consequences for her and her family are as bad as if she had because she has lost her life as it was, and her family have lost the person they knew.

1. The fact that the appellant had driven only about two kilometres from the hotel to the scene of the accident, and that the only driving able to be categorised as dangerous was the loss of control on a corner which resulted in the accident, cannot in my view ameliorate the need for a deterrent sentence to the extent submitted by the appellant's counsel.

1. The other factor which has to an extent been lost in this debate is the perversion of justice sought to be perpetrated by the appellant. The learned sentencing judge had a debate about whether there could be said to have been a completed crime or only an attempt, but determined it made little difference. However, what must also be kept in mind when considering the sentence in this case is that the appellant, clearly knowing he was a disqualified driver, took steps to hide the fact that he was the driver of the vehicle in which Miss Heyward was so badly injured. Not only did he tell the emergency operator he was not the driver, but he also repeated this to police.  The sentence ultimately imposed included a sentence for this offending, even though it is accepted that any increase in sentence for the perverting justice matters would not have been substantial.

1. The sentence imposed upon the appellant was, it is accepted, at the high end of what might be seen as the range for sentences for this crime. However, that is not a sufficient reason for this Court to determine an error has been made such that it should interfere. For that interference to be justified, this Court must be satisfied that the sentence was so far beyond what was an appropriate sentence for these crimes in the circumstances of this case, such as in itself to demonstrate an error. Given the factors I have identified, the sentence imposed is not so far out of the range for this Court to determine that the learned judge made an error when he imposed it. I would dismiss the appeal.

   Serial No 2/2010
   File No CCA 1057/2008

JAI MOYLE v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J

10 February 2010

1. I agree with the conclusion reached by Tennent J that while the sentence imposed was at the high end of the range it was not so high that it demonstrated error on the part of the sentencing judge.  I agree with the reasons given by Tennent J that the sentence was not manifestly excessive.  I wish merely to add some comments in relation to the consideration of the sentencing range and an assessment as to whether the sentence in this case was beyond that range.  I note that the facts relevant to sentence, the comments on passing sentence, and a summary of the submissions made by counsel, have been usefully set out in the reasons of Tennent J and Crawford CJ.  I do not need to traverse those matters.

1. Past sentences involving cases of offenders facing counts of causing grievous bodily harm by dangerous driving are so few in number in Tasmania that they fail to provide an indication of the sentencing range.  It appears that since the crime was included in the Criminal Code in 2000, there have been only three sentences recorded relating to causing grievous bodily harm by dangerous driving where the accused was not also being sentenced for a more serious crime such as manslaughter. 

1. Noting the lack of previous sentences in relation to causing grievous bodily harm by dangerous driving in Tasmania, an obvious reference for sentencing purposes is the guideline judgment delivered by the New South Wales Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209 in respect of the offences of dangerous driving under the Crimes Act 1900 (NSW). It is well accepted by this Court that the list of aggravating factors identified by Spigelman CJ (at 231) in that judgment has application to sentencing for serious cases of culpable driving in Tasmania, and that list has been applied when considering sentences for crimes such as causing death by dangerous driving and manslaughter (Shipton v R [2003] TASSC 23, per Cox CJ at 5 and Blow J at 8, DPP v Watson [2004] TASSC 54, per Slicer J at 11, and Gallagher v The State of Tasmania [2009] TASSC 84, per Crawford CJ at par57 and Tennent J at par81). The guideline judgment specifically addressed the offence of causing grievous bodily harm by dangerous driving and hence the list of aggravating factors is just as helpful in assessing the sentence under appeal. The aggravating factors listed by Spigelman CJ are as follows:

"(i)    Extent and nature of the injuries inflicted.

(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."

1. The guideline has since been reformulated in R v Whyte (2002) 55 NSWLR 252 to add two additional factors to the list: (x) degree of sleep deprivation, and (xi) failing to stop.

1. I note in this case that factors (i), (iii), (iv) and (x) were present as aggravating factors, but the most significant factors were (i) and (iv).  The injuries to Ms Heyward, a teenager, were extremely serious.  She almost died as a consequence of the accident and she has suffered a severe brain injury.  The appellant drove with a high blood alcohol reading after showing signs of tiredness and being affected by alcohol.  The speed exceeded the speed limit of 100 kph which, relatively speaking, is not high, but which was excessive in the circumstances. 

1. The appellant's submissions in this appeal have placed heavy reliance on previous sentences in Tasmania for causing death by dangerous driving.  It is argued that, noting those sentences involve a more serious crime than the crime of causing grievous bodily harm by dangerous driving, the sentences reveal that the appellant's sentence is harsh and excessive.

1. In considering previous sentences imposed in Tasmania for causing death by dangerous driving, a very useful reference is an analysis of the sentences for causing death by dangerous driving by Crawford CJ in Gallagher v State of Tasmania (supra) from 1989 until the appellant in that case was sentenced on 18 June 2008.  The learned Chief Justice stated as follows at par46:

"The sentencing database kept by the Court contains 33 other sentences for causing death by dangerous driving from 1989 until the appellant's sentence.  Ignoring disqualification and probation orders, the sentences were:

·one of imprisonment for two years four months, but the offender was also sentenced for five other offences and the component for causing death by dangerous driving is unlikely to have exceeded two years' imprisonment;

·one of imprisonment for two years;

·three of imprisonment for 15 months, one of which was partly suspended;

·eight of imprisonment for 12 months, one of which was partly suspended;

·twelve of imprisonment for nine months, two of which were wholly suspended;

·two of imprisonment for eight months;

·seven of imprisonment for four months, one of which was partly suspended;

·one of community service for 150 hours."

1. I have considered these sentences to see if the sentencing patterns have been static since 1989 and, in particular, whether there has been an increase in the length of the terms of imprisonment imposed during that period.  I have extracted the sentences imposed during the last 10 years from the beginning of 2000 and updated the information, taking into account more recent sentences up until the time the appellant was sentenced in November 2008.  An increase in the length of terms of imprisonment imposed for this crime can be seen, compared with sentences imposed in the previous decade.  During the last 10 years serious examples of dangerous driving have attracted lengthier periods of imprisonment than previously was the case.  Furthermore, there was only one sentence of less than nine months (not counting one sentence of six months' detention imposed on a 16 year old). There was only one suspended sentence of imprisonment.  There have been a total of 11 relevant sentences for the crime of causing death by dangerous driving in that period and the details of those sentences are as follows:

·     Two of imprisonment for four years (one of these was the sentence imposed in Gallagher upheld by this Court).

·     One of imprisonment for effectively two years (noting other offences dealt with).

·     Five of imprisonment for 12 months.

·     Two of imprisonment for nine months (one wholly suspended).

·     One of imprisonment for eight months.

1. It is also useful to consider the comments upon passing sentence in those cases.  Some of the comments refer to the Court of Criminal Appeal decisions of Shipton and Watson and the aggravating factors considered in Jurisic, and many of them emphasise general deterrence reflecting a heightened awareness of community concern about deaths arising from dangerous driving.  

1. Noting these observations, I conclude that not all the sentences imposed since 1989 for the crime of causing death by dangerous driving reflect the current sentencing approach.  As a consequence of an increase in sentences for causing death by dangerous driving, many of the earlier sentences are not helpful as a comparison with the sentence under review.  Certainly it can be said that this is not a crime where there is a well-settled tariff established over a reasonably lengthy period of time.  It may well be that the current sentencing range for causing death by dangerous driving in Tasmania has not yet settled within defined parameters. 

1. There are obvious limitations on the assistance that can be gained from looking at other sentences for causing death by dangerous driving.  As noted, there are only 11 or so sentences since 2000.  Crimes of causing death by dangerous driving cover a range of driving which varies significantly in terms of the level of danger and culpability.  Of course, the other consideration is the breadth of the sentencing discretion and the fact that for every past sentence considered for comparison purposes there existed a permissible range which could have resulted in a higher or lower sentence, depending on the sentencing judge's assessment of relevant factors and the weight attributed to them.  With these comments in mind, some assessment can be made of the sentence in this case compared to those recent sentences of causing death by dangerous driving.  I consider that while the sentence under consideration in this appeal is a comparatively heavy penalty, noting the appellant's level of culpability and the nature of his dangerous driving, it does not stand out as being excessive relative to other recent cases. 

1. The respondent's counsel made reference to decisions of this Court in Gallagher, Shipton and Watson, and argued that the sentence in this case was in line with the approach taken in those decisions which emphasise the importance of general deterrence.  Implicit in the appellant's position was the proposition that the sentence in this case was too high relative to the sentences in Watson and Gallagher.  In Gallagher, this Court upheld a sentence of four years with a non-parole period of two years and eight months imposed for one count of causing death by dangerous driving.  The manner and speed of driving was much worse than in this case, involving a very dangerous course of driving over a distance of about 30 kilometres involving racing and driving at high speed.  The difference between the length of that sentence and the sentence received by the appellant is significant — in the order of one year and nine months (taking into account that a portion of the sentence of imprisonment in this case should be allocated to the two counts of perverting justice).  A consideration of the two sentences does not demonstrate that the appellant's sentence was unduly harsh. 

1. The sentence in this case might also be considered in light of the sentence imposed in Watson.  Watson received a sentence of three years' imprisonment for one count of manslaughter and one count of causing grievous bodily harm, contrary to the Code, s172.  Both crimes are more serious than the crime of causing grievous bodily harm by dangerous driving which does not involve an element of recklessness.  The driving in that case was significantly more dangerous than the manner and course of driving by the appellant involving racing another car through city streets and driving into an intersection against a red light at about 100 kph.

1. The sentence imposed on the appellant appears to be particularly high relative to the sentence of three years' imprisonment imposed in Watson.  However, the sentence of three years' imprisonment was imposed as a consequence of a Crown appeal against a sentence of 18 months' imprisonment.  At least one of the majority judgments indicated that three years' imprisonment was less than the respondent would otherwise have received because of "double jeopardy", and that the sentence was imposed as a consequence of a successful Crown appeal: (Blow J at par50).  The sentence may not reflect the sentence that would have been imposed by the majority if sentencing at first instance.

1. By staying so long to consider past sentences for causing death by dangerous driving, it does not mean that I regard the outcome of the comparison as being determinative in the analysis of whether the appellant’s sentence is manifestly excessive.  I have focused on these past sentences in order to examine the contention, central to the submissions made on behalf of the  appellant, that the  comparison reveals that the appellant’s sentence is too severe.  

1. Having undertaken the task of comparison urged on behalf of the appellant, I conclude that the past sentences imposed for causing death by dangerous driving, and the guidance provided by this Court, reveal that the sentence of imprisonment imposed upon the appellant was a comparatively heavy sentence in all the circumstances.  However, it is also apparent that the sentence reflects a stern approach taken by sentencing judges in Tasmania in recent years in relation to the crime of causing death by dangerous driving, and a consideration of those past sentences does not demonstrate that it falls outside the current sentencing range.  I would also dismiss the appeal. 

Sentences have also been imposed for the crime of causing grievous bodily harm under s172, arising out of the driving of a motor vehicle.  They are Redshaw, 11 December 2008 (also sentenced for manslaughter), Scott, 2 March 2004 (two counts) and Watson (also sentenced for manslaughter).  I presume that the offenders were charged under s172 because criminal negligence was alleged, raising a more serious ingredient than is raised by a charge of causing grievous bodily harm by dangerous driving.  For that reason, those sentences can provide little guidance.