Norris v "At" (A Child)
[2003] WASCA 54
•26 MARCH 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: NORRIS -v- "AT" (A CHILD) [2003] WASCA 54
CORAM: MALCOLM CJ
TEMPLEMAN J
MILLER J
HEARD: 3 FEBRUARY 2003
DELIVERED : 26 MARCH 2003
FILE NO/S: CCA 216 of 2002
BETWEEN: STEVEN JOSEPH NORRIS
Appellant
AND
"AT" (A CHILD)
Respondent
Catchwords:
Criminal law - Sentencing - Crown appeal against sentence - Respondent aged 17 at the time of the commission of the offences - Dangerous driving causing grievous bodily harm and road traffic offences; stealing and burglary - Total sentence of 2 years and 2 months' imprisonment manifestly inadequate - Totality principle - Sentencing Judge erred in not imposing cumulative or partly cumulative sentences
Legislation:
Children's Court of Western Australia Act 1988 (WA), s 19B(1), s 19B(4)(c), s 19B(4)(d), s 21, s 43(1)
Criminal Code, s 297, s 371, s 371A, s 378(2), s 378(2)(b), s 401(2)(b), s 689(3)
Fines Penalties and Infringement Notices Act 1994, s 31, s 32(1), s 32(2), s 33(1), s 33(2), s 34(4), s 34(5), s 34(6), s 34(7)
Road Traffic Act 1974 (WA), s 5(1)(a)(b), s 49(1)(a), s 49(2)(a)(iii), s 53(1)(b), s 54(1), s 54(6), s 55(1), s 59, s 59(1), s 59(3), s 59(3)(a)(c), s 59(3)(b)
Sentencing Act 1995, s 57A, s 58, s 59, s 59(1)(b), s 59(3)(a), s 59(8), s 60(1), s 60(2)
Young Offenders Act 1994 (WA), s 7, s 50B
Result:
Appeal allowed
Sentence increased from 2 years and 2 months to 3 years and 6 months' imprisonment
Category: A
Representation:
Counsel:
Appellant: Mr K P Bates
Respondent: Mr P A Roth
Solicitors:
Appellant: State Director of Public Prosecutions
Respondent: P A Roth & Associates
Case(s) referred to in judgment(s):
"AM" (A Child) & Anor v The Queen, unreported; CCA SCt of WA, Library No 960263; 15 May 1989
"B" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950482; 13 September 1995
"C" (A Child) (1995) 83 A Crim R 561
Ainsworth v D (A Child) (1992) 7 WAR 102
Dinsdale v The Queen (2000) 202 CLR 321
English v The Queen (1995) 82 A Crim R 586
Fox v The Queen (1992) 15 MVR 553
Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998
Mulligan v The Queen [2000] WASCA 5
R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999
R v Boswell (1984) 79 Cr App Rep 277
R v Estreich, unreported; CCA SCt of WA; Library No 950500; 2 August 1995
R v Grein [1989] WAR 178
R v Guilfoyle [1973] 2 All ER 844
R v Jurisic (1998) 101 A Crim R 259
R v Peterson [1984] WAR 329
R v Stebbings (1990) 4 WAR 538
R v Tait (1979) 46 FLR 386
R v Ward (1999) 109 A Crim R 159
R v Whyte [2000] NSWCCA 343
Smith v The Queen [1976] WAR 97
Stol v The Queen (1989) 44 A Crim R 137
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Nil
MALCOLM CJ: This is an appeal against sentence by the Crown under s 43(1) of the Children's Court of Western Australia Act 1988 (WA) ("the Children's Court Act"). On various dates in 2002, the respondent was convicted in the Children's Court on his plea of guilty to a number of offences. On 7 November 2002, he was sentenced by the President of the Children's Court to terms of imprisonment, as well as the payment of a number of fines without time to pay in respect of the various offences as follows:
1. Complaint No CC1032/02
On 20 February 2002 at 7.45 pm at Myaree, the respondent drove a motor vehicle, namely a Ford Falcon sedan registered number 8SN‑739, on a road, namely Marmion Street, Myaree, without being the holder of an appropriate driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence, contrary to s 49(1)(a) and s 49(a)(iii) of the Road Traffic Act 1974 (WA) (the "RT Act").
Sentence:Imprisonment for 4 months and disqualified from holding a Motor Driver's Licence disqualified for 9 months cumulative.
2. Complaint No CC1033/02
On 20 February 2002 at 7.45 pm at Myaree, the respondent, being the driver of a motor vehicle registered number 8SN‑739, when called upon to stop his vehicle by a member of the police force, refused to stop contrary to s 53(1)(b) of the RT Act.
Sentence: Fine of $400.
3. Complaint No CC1034/02
On 20 February 2002 at 7.45 pm at Myaree, the respondent, being the driver of a vehicle registered number 8SN‑739, in the course of the use of which an accident occurred whereby a person was injured and not being disabled from doing so, failed to stop immediately after the occurrence of the accident contrary to s 54(1) of the RT Act.
Sentence: Fine of $300.
4. Complaint No CC1035/02
On 20 February 2002 at 7.45 pm at Myaree, the respondent, being the driver of a motor vehicle registered number 8SN‑739, in the course of the use of which on a road, namely Marmion Street, injury was caused to one Jessie Williamson, failed to render him all such assistance as may have been necessary or practicable under the circumstances contrary to s 54(6) of the RT Act.
Sentence: Fine of $1300.
5. Complaint No CC1036/02
On 20 February 2002 at 7.45 pm at Myaree, the respondent being the driver of a motor vehicle registered number 8SN‑739, in the course of the use of which on a road, namely Marmion Street, an accident occurred whereby damage was caused to property and not having reasonable cause for believing that the damage did not exceed in the aggregate, an amount of $1000 and not being disabled by injury himself, failed to report such accident forthwith to the officer in charge of the nearest police station, contrary to s 55(1) of the RT Act.
Sentence: Fine of $200.
6. Complaint No CC1037/02
On 20 February 2002 at 7.45 pm at Myaree, the respondent drove a motor vehicle registered number 8SN‑739 on a road, namely Marmion Street, in a manner dangerous to the public or to any person and thereby caused grievous bodily harm to one Jessie Williamson and, in a circumstance of aggravation in that, at the time of the offence, the motor vehicle was unlawfully being driven without the consent of the owner or person in charge of the motor vehicle, contrary to s 59(1) of the RT Act.
Sentence: Imprisonment for 15 months
7. Complaint No CC1038/02
On 20 February 2002, the respondent stole a motor vehicle, namely, a Ford Falcon Sedan registered number 8SN-739, the property of William Talbot Webb and, on the same date, drove the said motor vehicle in a manner that constituted an offence, namely, dangerous driving under s 61 of the RT Act and ss 371 and 378(2)(b) of the Criminal Code (WA) ("the Code").
Sentence: Imprisonment for 12 months.
8. Complaint No CC1154/02
Between 9.00 am and 4.40 pm on 5 March 2002, the respondent stole a motor vehicle, namely a Holden Commodore Sedan, registered number 9IZ‑054, the property of Adam Lee James O'Neill, contrary to ss 378 and 371A of the Code.
Sentence: Imprisonment for 9 months.
9. Complaint No CC1447/02
Between 8 am and 5.30 pm on 8 March 2002 at Booragoon, the respondent stole a motor vehicle within the meaning of s 371A of the Code, namely a Kawasaki motor cycle, registration number 1AG‑609, the property of Andrew Nicholas Shearer, contrary to ss 378 and 371A of the Code.
Sentence: Imprisonment for 9 months.
10. Complaint No CC1448/02
Between 8 am and 5.30 pm on 8 March 2002, the respondent stole a motor cycle helmet and a pair of gloves, the property of Andrew Nicholas Shearer, contrary to s 378 of the Code.
Sentence: Imprisonment for 3 months.
11. Complaint No CC1449/02
Between 8 am and 5.30 pm on 8 March 2002, the respondent, without consent, was in the dwelling of Andrew Nicholas Shearer and committed the offence of stealing, contrary to s 401(2)(b) of the Code.
Sentence:Imprisonment for 12 months cumulative upon the sentence of imprisonment for 15 months in respect of the offence the subject of Complaint No 1037 of 2002.
12. Complaint No CC1152/02
Between 9 am and 4.40 pm on 5 March 2002, the respondent drove a motor cycle without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst legally disentitled to hold a driver's licence contrary to ss 49(1)(a) and 49(2)(a)(iii) of the RT Act.
Sentence:Imprisonment for 2 months and disqualified from holdin g a motor driver's licence for 9 months cumulative.
Had all the sentences of imprisonment been made cumulative, the total sentence imposed would have been 4 years and 6 months. As it was, having regard to the totality principle, the learned President directed that the sentence of 12 months' imprisonment imposed in respect of Complaint No 1449/02 (burglary) be served cumulatively upon the sentence of 15 months' imprisonment in respect of Complaint No 1037/02 (dangerous driving causing grievous bodily harm while unlawfully driving a motor vehicle). All of the other sentences were to be served concurrently. Thus, the total of the sentences of imprisonment was 2 years and 3 months.
The total of the fines imposed was $2200 without time to pay. There is no appeal against the fines imposed. No order was made under ss 57A, 58 or 59 of the Sentencing Act 1995 for enforcement by way of any of the means provided in those sections. Consequently, the provisions of the Sentencing Act in relation to default in payment of fines did not apply. Section 60(1) of the Sentencing Act provides that subject to that section, a fine is to be credited to the Consolidated Fund. There is no relevant provision in that section, or otherwise, that would apply to the fines imposed by the learned President. The only provisions which appear to be of any relevance are those in the Fines Penalties and Infringement Notices Act 1994 (WA) ("the FPIN Act").
The relevant provisions are those in Part 4 Division 2 of the FPIN Act. Section 31 of that Act provides that Division 2 applies to a fine that, under s 60 of the Sentencing Act, is to be credited to the Consolidated Fund. The fines in the present case are to be so credited because they are not to be credited otherwise as provided in s 60(2) of the Sentencing Act.
Section 32(1) of the FPIN Act provides that within 28 days of the imposition of the fine, the offender must pay the fine or apply for a time to pay order in respect of it. If the offender contravenes, s 32(1) and s 32(2) provides that the court officer, without notice to the offender, may register the fine. Section 33(1) makes provision for an offender to apply for a time to pay order in respect of the fine. Such an application cannot be made once the fine has been registered: s 33(2). There is no specific evidence in this case whether or not the fines imposed by the learned Judge or any of them have been paid, but on the face of it, the respondent did not have the means to pay a fine. There is no evidence of any time to pay order being made under s 34(4) of the FPIN Act. However, s 34(5) provides that a court officer must make a time to pay order if the offender does not have the means to pay the fine within 28 days after the day on which the fine was imposed. Such an order may require payment in full before a set date later than 28 days after the day on which the fine was imposed, or to pay the fine by instalments on or before set dates: s 34(6). A time to pay order must be served on the offender: s 34(7).
On the face of it, the respondent was an offender who did not have the capacity to pay $2200 within 28 days. Pursuant to s 59(1)(b) of the Sentencing Act, an order could be made that if the respondent does not pay the fine within a specified period then he will be imprisoned for a further 14 days, which is the result of dividing $2200 by $150 pursuant to s 59(3)(a) of the Sentencing Act. That sentence would be cumulative by reason of s 59(8) of the Sentencing Act unless the Court otherwise orders. In my opinion, it would be appropriate in this case to let the law take its course.
At the time of the commission of the offences, the respondent was aged 17. He was born on 6 June 1984 and attained the age of 18 years on 6 June 2002.
Grounds of Appeal
The Crown's Notice of Appeal contained four grounds of appeal. Ground 1 contended that the learned sentencing Judge erred in imposing an overall term that, in the circumstances, was manifestly inadequate for reasons set out in three particulars. The first of these, (a), was abandoned at the hearing. Particulars (b) and (c) were as follows:
"The overall term imposed:
…
(b)Failed to adequately reflect the need for general and specific deterrence and the need for condign punishment to protect the community;
(c)Placed undue emphasis on matters personal to the Respondent."
The remaining grounds were as follows:
"2.The learned sentencing Judge erred in sentencing the Respondent on Complaint No. 1037/02 on the basis that the maximum penalty that she could impose was 18 months imprisonment whereas the applicable maximum penalty was 14 years imprisonment pursuant to s.59 of the Road Traffic Act 1974.
3.The learned sentencing Judge erred in imposing a sentence of 15 months imprisonment on Complaint No. 1037/02 which was manifestly inadequate having regard to the seriousness of the offence as outlined in Ground 1(a)(vi) above.
4.The learned sentencing Judge erred in that she ordered the sentences for Complaints cc 1154/ and 1152/02 to be served concurrently with the sentences on all the other complaints."
Particular (a)(vi) in ground 1, referred to in ground 3, was to the effect that the overall term imposed failed to adequately reflect the seriousness of the offences and in particular:
" …
(vi)the fact that Complaint No. 1037/02 involved a very serious example of dangerous driving where the Respondent drove a stolen motor vehicle on the wrong side of the road, contravened a red traffic light and then collided with an unsuspecting road user causing serious head injuries."
Ground 2
It is convenient to deal with ground 2 first. The respondent conceded that ground 2 must be upheld. In my opinion, that concession was correctly made. The maximum penalty for dangerous driving causing grievous bodily harm with a circumstance of aggravation, namely, where the motor vehicle was being driven unlawfully without the consent of the owner or person in charge of the vehicle and the conviction was on indictment, is a fine of any amount and imprisonment for a maximum of 14 years: RT Act s 59(3)(b). Her Honour incorrectly took the view that the respondent was not convicted on indictment, as is apparent from the exchange with the Prosecutor at pp 20‑21 of the transcript. In addition, s 59(3) provides that, in any event, the court convicting the person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than 2 years. The learned Judge omitted to make such an order.
Section 19B(1) of the Children's Court Act provides that where a child is charged with an indictable offence of such a nature that, if an adult were similarly charged and a Court of Petty Sessions could not deal summarily with the charge, or the adult could elect not to have the charge dealt with summarily, the child may elect to be tried by the Supreme Court or the District Court, as appropriate, and the Children's Court should so inform the child. Section 19B provides that if the child does not make an election under s 19B(4) and the charge is one which could not be dealt with summarily if an adult had been similarly charged in a Court of Petty Sessions, the Children's Court is required to take various steps, including, in s 19B(4)(c) and (d), to hear and determine the charge as if the complaint were an indictment and the hearing were a trial on indictment. In such a case, the Code:
"… shall apply with such modifications as circumstance require; but the child is not thereby entitled to have any issue tried by a jury."
Significantly, in the context of the present case, s 19B(4)(d) provides that:
"Subject to Part 5, the child if convicted shall, for the purposes of punishment and orders, procedures and proceedings consequential on conviction, be taken to have been convicted on indictment."
Section 59(3)(a)(c) of the RT Act provides that where the conviction is on indictment in any circumstance other than causing death or grievous bodily harm, the maximum penalty is a fine of "160 PU" or imprisonment for 18 months. By s 5(1a)(b) of the RT Act, the abbreviation "PU" means penalty unit or penalty units. This is a reference to an amount in dollars that is that number multiplied by 50. Thus 160 PU is a fine of $8000. It follows that the learned President was in error in proceeding on the basis that, in the present case, the applicable maximum penalty was imprisonment for 18 months and a fine of $8000. For that reason alone, the sentence of imprisonment for 15 months should be reviewed by this Court.
As this is a Crown appeal against sentence, it is necessary to take into account the principles applicable to such appeals as stated by the High Court in Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [3] ‑ [4]; Gaudron and Gummow JJ at [21]; and Kirby J at [57] – [62]; see also R v Grein [1989] WAR 178 per Malcolm CJ at 179 – 180; R v Peterson [1984] WAR 329 at 330 per Burt CJ, applying the principles stated in R v Tait (1979) 46 FLR 386 at 387 per Brennan, Deane and Gallop JJ.
It is not enough that the appellate court considers the sentence insufficient. It is necessary to show that the sentencing Judge was in error in acting on a wrong principle, or in misunderstanding, or in wrongly assessing some salient feature of the evidence, or because the sentence is so inadequate as to manifest error. At the same time, the appellate court must take into account that the offender is in jeopardy for a second time.
The fact that the learned sentencing Judge expressly took into account an incorrect maximum penalty when determining the sentence to be passed on the respondent has the result that the exercise of the sentencing discretion necessarily miscarried. It follows that the sentence should be quashed and the respondent resentenced by this Court: R v Estreich, unreported; CCA SCt of WA; Library No 950500; 2 August 1995 per Malcolm CJ at 11 (with whom Rowland and Walsh JJ agreed); and Stol v The Queen (1989) 44 A Crim R 137 per Malcolm CJ at 138.
The offence of dangerous driving causing grievous bodily harm was the most serious of the seven offences committed by the respondent on 20 February 2002. On that day, he stole a motor vehicle and drove it while he did not hold a motor driver's licence. He was involved in a relatively short pursuit by police after he failed to stop when called upon to do so. On the contrary, in an attempt to escape, he drove the stolen motor vehicle on the wrong side of the road at an excessive speed estimated by the police at 100 kph in a 60 kph zone. He went through a red light and collided with a vehicle driven by an unsuspecting road user, causing the driver of the other vehicle serious head injuries. He then ran from the scene, failing to stop, failing to stop after an accident causing injury and failing to report the accident. As I have said, the most serious of those offences, which formed what was a series of offences of a single chapter of criminal behaviour, was the offence of dangerous driving causing grievous bodily harm aggravated by the fact that the respondent was unlawfully driving a motor vehicle without the consent or permission of the owner of that vehicle. The sentence of imprisonment for 15 months imposed in respect of the dangerous driving causing grievous bodily harm has to be reviewed, both in relation to the seriousness of the offence and the surrounding circumstances, in the context of the totality principle.
In R v Stebbings (1990) 4 WAR 538, this Court upheld a Crown appeal against concurrent sentences of 2 years on each of two counts of manslaughter and a concurrent sentence of 12 months for dangerous driving causing grievous bodily harm. The Court set aside the sentences and imposed concurrent sentences of 3 years for each of the manslaughter offences and a sentence of 2 years to be served concurrently with the other sentences in respect of the dangerous driving causing grievous bodily harm. The offender was also disqualified from holding a driver's licence for a period of 5 years commencing from his release from prison. The driver in that case had driven at a speed estimated between 180 ‑ 200 kph on a road where the speed limit was 70 kph and collided with a vehicle driven by the driver with two passengers. The driver and one passenger were killed. The other passenger suffered grievous bodily harm. At that time, s 59(3) of the Road Traffic Act provided that the maximum penalty for dangerous driving causing death was a fine of $5000 or imprisonment for 4 years. The maximum penalty then provided by s 287 of the Criminal Code for manslaughter was imprisonment for 20 years. The maximum penalty provided by s 297 of the Code for causing grievous bodily harm was then 7 years.
In Stebbings the offending driver was a young man aged 23 who came from a good home, had no prior convictions and who impressed the trial Judge as being of good character. It was accepted that he was very sorry for what he had done and had been deeply depressed since the accident.
In my judgment at 540 I said:
"In the light of the directions given to the jury by the learned trial judge and the verdicts of manslaughter returned, the jury must have been satisfied beyond reasonable doubt that immediately prior to the collision the respondent was travelling between 180 to 200 km per hour or alternatively at an "enormous speed". The driving actions of the respondent were wholly irresponsible and the evidence disclosed that he was fully aware of what he was doing. This was no mere error of judgment or aberration. It was necessary for the respondent to accelerate to the speed which he attained and in so doing he had ample time and opportunity to foresee the grave danger which his speed and manner of driving posed to other road users. The respondent appears to have acted with complete disregard for the potential consequences.
I accept that the respondent is a young man who comes from a good home and who impressed the learned trial judge as being of good character. I accept also that the respondent is very sorry for what he has done and that he has been deeply depressed following the accident. I accept that he may well have learned a lesson from the experience. In this type of case, however, the need for general deterrence is of greater importance than matters purely personal to the offender.
The loss of life and personal injury caused by dangerous or negligent driving on our roads has been rightly described as one of the most serious social problems facing the Australian community: see Crawley v The Queen (1981) 55 FLR 463 at 447 – 478, per Sheppard J. In these circumstances it is necessary to impose a sentence which will hopefully act as a deterrent to others and mark the seriousness with which Parliament and the community regard the kind of driving behaviour exhibited by the respondent in this case. The tragedy and misery caused by the deaths and injuries to innocent road users is compounded in a case such as this, where the deaths and injuries were quite unnecessary and could so easily have been avoided.
In my opinion, it is not possible to identify a 'tariff' for motor vehicle manslaughter cases. This was a serious case. It was not necessarily the worst of its kind or in the worst category of such cases. Alcohol was not involved."
In Fox v The Queen (1992) 15 MVR 553, the offender, who had a significant record of traffic offences, struck down a 79‑year‑old woman on a crosswalk. Upon conviction after trial in the District Court of dangerous driving causing bodily harm, he was sentenced to imprisonment for 9 months and disqualified from driving for 4 years. An appeal to this Court was dismissed. The reasons for judgment of the Court were delivered by Walsh J, with whom Pidgeon and Anderson JJ agreed. It was held that the sentence imposed was within the range of the discretion vested in the sentencing Judge.
In Ainsworth v D (A Child) (1992) 7 WAR 102, with the agreement of Franklyn and White JJ, I said at 117:
"In my opinion, the continued carnage on our roads and the increasing prevalence of dangerous and reckless driving imprisonment for 12 months in respect of a case of dangerous driving by juveniles and young adult offenders, particularly those making unauthorized use of motor vehicles or driving stolen vehicles, makes it necessary to reconsider the approach to sentencing in these cases where death or injury has resulted. In the present case the scope for such a review is limited because of the absence of an appeal from the sentence imposed for the manslaughter and the fact that, in the circumstances of this case, the maximum sentence available was imprisonment for 18 months. As I have already indicated, that is an artificial maximum where the offence is dealt with summarily and does not necessarily indicate where the offence lies on the scale of seriousness.
In my view, had this offence of dangerous driving causing grievous bodily harm been committed by an adult, it may well have justified a sentence of imprisonment of the order of 12 to 18 months, subject to reduction or discounting on account of mitigating factors."
In that case, D, who was aged 15 at the time of the offences, but who turned 16 some six weeks later, pleaded guilty in the Children's Court on 1 October 1991 to charges of dangerous driving causing grievous bodily harm, unlawful use of a motor vehicle, stealing and dangerous driving. At that time, he had accumulated 53 previous convictions since 1988, including a conviction for manslaughter committed five weeks after the offences which were the subject of this appeal, while driving a stolen vehicle. At the time he committed those offences, D was a regular user of amphetamines. Pre‑sentence reports before the President of the Court showed positive indications regarding D's rehabilitation, including his enrolment in a TAFE course and participation in psychological counselling. The President imposed a sentence of detention for a total of 9 months, but suspended the sentence on condition that D complied with the conditions of a conditional release order. The President expressly had regard to the seriousness of the offences, D's age, the time that D had spent in custody, the fact that he was facing a further term in custody and the general principles of sentencing a juvenile.
On a Crown appeal against sentence, it was held that although the offence of dangerous driving causing grievous bodily harm was an indictable offence, D had not been convicted "on indictment" within the meaning of the RT Act. Consequently, the maximum sentence of imprisonment applicable was 18 months. This is an important point of distinction from the present case. D was sentenced to detention for 12 months for the grievous bodily harm cumulative upon the sentences of detention he was then serving.
In English v The Queen (1995) 82 A Crim R 586, the appellant pleaded guilty in accordance with the "fast‑track" procedure, to dangerous driving causing grievous bodily harm, pursuant to s 59(3) of the RT Act. At that time, the maximum penalty under s 59 was a fine of $20,000 or imprisonment for 4 years. The appellant was sentenced to imprisonment for 12 months with eligibility for parole and disqualified from holding a driver's licence for 3 years. He had previously been sentenced for driving with a blood alcohol level in excess of 0.08 per cent arising out of the same incident. At the time of the offence he was aged 20 and had no other relevant convictions.
The law relating to the sentencing of young offenders is now set out in the Young Offenders Act 1994 (WA) ("the YO Act"). This legislation is applicable in respect of offenders under the age of 18 years at the time of commission of the relevant offence. Section 6 sets out a number of objectives of the legislation, including the embodiment of "the general principles of juvenile justice" that are to be observed in performing functions under the YO Act. These principles are found in s 7 of the YO Act and include the following which were regarded by Rowland, Walsh and Owen JJ as particularly relevant in "B" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950482; 13 September 1995:
"(b)a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct;
...
(d)the community must be protected from illegal behaviour;
...
(f)responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so;
...
(h)detaining a young person in custody for an offence whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as necessary;
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
...
(m)a young person who commits an offence is to be dealt with in a way that:
(i)strengthens the family and family group of the young person;
(ii)fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and
(iii)recognises the right of the young person to belong to a family."
In "AM" (A Child) & Anor v The Queen, unreported; CCA SCt of WA, Library No 960263; 15 May 1989, two young offenders aged 16, of previous good character, were convicted on their pleas of guilty to a count of armed robbery at a service station. They were both sentenced to detention for 21 months with a minimum term of 9 months by the President of the Children's Court. Applications for leave to appeal against those sentences were heard by the Court of Criminal Appeal some 3 months later on 5 February 1996. On that date the Court (Franklyn, Wallwork and Murray JJ) ordered that the applications be granted, the appeals allowed and the orders for detention set aside. In substitution, the Court ordered that the intensive youth supervision orders be imposed for periods of 2 years in each case and ordered each of the appellants to perform 100 hours of community work.
Their Honours said in that case at 12 – 14:
"The court has long accepted that in sentencing young persons it will be appropriate to take into consideration matters which are not readily applicable to adults. Youth of itself is always regarded as a powerful mitigating factor. The form of disposition will, wherever possible in the circumstances of the case, be less punitive and severe than that imposed upon an adult offender. The rehabilitation or reformation of the young person will generally be regarded as a very weighty consideration in sentencing. That should not be seen to be a consideration in tension with the general aims of sentencing.
The protection of the community, achieved by the imposition of a sentence proportionate to the gravity of the crime, having regard to the particular circumstances of its commission and the circumstances personal to the offender, remains the ultimate aim of the courts. General deterrence as well as particular deterrence must not be lost sight of, but it is particularly the case for young offenders that their rehabilitation is regarded as offering the best guarantee against their continuing offending, and therefore for the protection of the community from their lawless behaviour, where that is seen as a real possibility. The relevant principles have long been established by the courts. They predate the enactment of the Young Offenders Act. The principles have been recently restated, with the citation of relevant authority, in BAC (A Child) v R, unreported; CCA SCt of WA; Library No 950510; 25 September 1995 and R v M (A Child), unreported; CCA SCt of WA; Library No 950565; 19 October 1995.
The Young Offenders Act 1994 restates the principles in statutory form. Section 46 of that Act states the matter generally. The court is to apply the principles of sentencing which are ordinarily applicable and 'the general principles of juvenile justice.' It is to consider those matters which generally delineate the nature and seriousness of the offence and the circumstances personal to the offender and the court is instructed to dispose of the matter in a way which is proportionate to the gravity of the offence and bears parity with the disposition of the cases of other young offenders. Section 46(4) expressly recognises that how young the offender is is a mitigating factor of itself, and by s46(5) the court is directed to have regard to the fact that the rehabilitation of an offender is facilitated by the participation of the offender's family and giving the offender opportunities to engage in educational programs and in employment.
The general principles of juvenile justice to which s46 refers are set out at some length in s7. They include a reference to the protection of the community and for present purposes it is necessary to note that, by para (h), it is a general principle that:
'detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary;'
Section 120(1) of the Act is expressed consistently with that principle by providing that:
'The court cannot impose any custodial sentence unless it is satisfied that there is no other appropriate way for it to dispose of the matter.'
However, when dealing with young persons who repeatedly commit serious offences, s125 provides that:
'The court, in disposing of the matter, is to give primary consideration to the protection of the community ahead of all the other principles and matters referred to in section 46.'
That does not to our mind imply an abandonment by the court of the general principles in respect of young offenders, but it is provided that, when dealing with recidivists who commit serious offences, there will be a different emphasis given to the application of those principles.
The emphasis we draw from those provisions in the context of the general law is as follows. Custodial sentences with respect to young offenders are to be used only as a last resort and with no greater severity than absolutely necessary. The rehabilitation and reformation of the young person, consistently with the need to protect the public, remains the primary consideration and focus of the court and in that regard the court is expressly directed not to lose sight of the importance of the young person continuing in a supportive family situation and in the processes of education and employment."
In this case, the respondent committed the relevant offences not long before his 18th birthday and had attained the age of 18 at the time of sentencing. In "C" (A Child) (1995) 83 A Crim R 561, it was held that where an offender committed an offence and came to be sentenced in such circumstances, the sentence was to be imposed in accordance with the principles which apply to juvenile offenders, rather than adult offenders. The sentencing principles which apply to juvenile offenders are outlined in s 46(1) of the Young Offenders Act. Section 50B of that Act provides that:
"(1) This section applies to and in respect of a young person found guilty of an offence who at the time of being sentenced is 18 years old or older ('the offender').
(2)Subject to the Sentencing Act 1995 the court dealing with the offender must dispose of the matter by sentencing the offender under that Act, and that Act and the Sentence Administration Act 1995 apply to and in respect of the sentence imposed.
(3)In sentencing the offender under the Sentencing Act 1995, the court must make a spent conviction order under that Act if, under section 55 of this Act, it would be required to not record a conviction were it disposing of the matter under this Act.
(4)If the court dealing with the offender is the Children's Court, subsection (2) is subject to section 21 of the Children's Court of Western Australia Act 1988.
(5)Despite subsection (2), section 46 applies to the court dealing with an offender."
Section 21 of the Children's Court Act has no application in the present case as the Court was constituted by the President. As to the effect of s 50B, I said in R v "VC" (A Child), unreported; CCA SCt of WA; Library No 990142; 23 March 1999 at 9, with the agreement of Pidgeon and Ipp JJ:
"The effect of that provision is that the sentencing principles which apply are those which are relevant on the basis that he must be dealt with as if he was a juvenile when he was sentenced, although he is sentenced under the Sentencing Act on the footing that, at the time of sentencing, he is subject to the adult system."
That case also involved a Crown appeal.
In resentencing the respondent, it is necessary to take into account the merit or otherwise of the points made in the remaining grounds of appeal.
Ground 1
In support of the contention in ground 1, it was submitted that the aggregate term of imprisonment of 2 years and 3 months was manifestly inadequate. This was said to be so for two reasons, namely, that the overall term imposed:
"(b)Failed to adequately reflect the need for general and specific deterrence and the need for condign punishment to protect the community.
(c)Placed undue emphasis on matters personal to the respondent."
It was further submitted that, although youth is a significant mitigating factor, the circumstances of the offences and the character and antecedents of the offender may have the result that both the need to protect the community and the purposes of deterrence, personal and general, require a significant custodial sentence to be imposed: cf Ainsworth v D (A Child) (supra) per Malcolm CJ at 117 (with whom Franklyn and White JJ agreed); R v "VC" (A Child) (supra) per Malcolm CJ (with whom Pidgeon and Ipp JJ agreed) at 8, 13 – 14; and Fyfe v The Queen, unreported; CCA SCt of WA; Library No 980142; 18 March 1998 per Franklyn, Murray and Anderson JJ at 8, 10 – 11.
It was submitted on behalf of the Crown that the present case fell into the same category. In support of this submission, it was said, correctly, that the respondent had an extensive and serious history of offending dating back to 1997, including a number of convictions for stealing motor vehicles and reckless driving. In November 1999 the respondent was placed on a youth community based order for a number of property offences. He breached this order by re‑offending and was sentenced to 2 months' detention on 24 January 2000. On being released from detention, he re‑offended in March 2000 by, among other things, stealing a motor vehicle and driving recklessly. He was placed upon a youth conditional release order for 6 months on 17 April 2000. He breached this order ten days later by stealing a motor vehicle and driving recklessly. Since then he had been sentenced to detention on 15 June 2000, 26 February 2001, 14 May 2001, 31 July 2001 and 18 September 2001 for similar offences.
The respondent submitted that the Court did not need to decide ground 1 because, given that the respondent conceded ground 2 of the appeal, the Court was necessarily required to quash the sentence imposed by the learned Judge and impose in substitution for it a sentence which the Court considered ought to have been imposed pursuant to s 689(3) of the Criminal Code. In connection to this, it was submitted that the question of whether the sentence originally imposed was or was not manifestly inadequate no longer needed to be decided.
It was against this background that it was contended by the Crown the aggregate of the sentences imposed was inadequate and reflected undue emphasis on matters personal to the respondent. In my opinion, this contention has been made out.
Ground 3
Ground 3 needs to be considered in the context of what has been said concerning grounds 1 and 2 as a basis for the contention that a sentence of 15 months' imprisonment was manifestly inadequate having regard to the seriousness of the dangerous driving offence. The seriousness of the offence of dangerous driving causing grievous bodily harm is to be measured both in terms of the manner of driving and the degree of harm caused to the victim. There can be no doubt that this was a very serious act of dangerous driving causing bodily harm: cf Ainsworth v D (A Child) (supra) at 116 – 117 per Malcolm CJ. This was conceded by counsel for the respondent. Loss of life and personal injury caused by dangerous driving has been rightly described as one of the most serious social problems facing the community: Crawley v The Queen (1981) 36 ALR 241 at 253 per Sheppard J. In such a case as this, it is necessary to impose a sentence both to serve as a deterrent to others and to mark the seriousness with which Parliament and the community regard this kind of offending: cf Ainsworth v D (A Child) (supra) and R v Stebbings (supra) per Malcolm CJ at 540, Walsh J at 545 – 546 and Kennedy J at 546. It was accepted by counsel for the respondent that an immediate sentence of imprisonment was the only appropriate disposition in this case. In my opinion, this concession was properly made.
I accept the submission on behalf of the Crown that cases of dangerous driving causing grievous bodily harm fall into two broad categories. The first comprises cases in which the accident has arisen through momentary inattention or misjudgment. The second arises in those cases where the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or his or her passengers, or with a degree of recklessness. Offenders, also, can be in different categories. A substantial number of offenders have had good previous driving records. A fair number have driving records which reveal a propensity to disregard speed restrictions, road signs or to drive carelessly. There is also a relatively small group of offenders who have records showing that they pay no regard whatsoever to the requirements of the traffic law or the lives and safety of other road users: cfR v Guilfoyle [1973] 2 All ER 844 per Lawton LJ at 845, which was approved both in Smith v The Queen [1976] WAR 97 at 107 – 108 and Ainsworth v D (A Child) (supra) at 116 per Malcolm CJ (with the agreement of Franklyn and White JJ).
In the guideline Judgment of the Court of the Court of Criminal Appeal of New South Wales in R v Jurisic (1998) 101 A Crim R 259 at 270 – 271, Spigelman CJ identified the factors relevant to deciding the appropriate penalty for the offence of dangerous driving causing death or grievous bodily harm. These factors had previously been outlined by Lord Lane CJ in England in R v Boswell (1984) 79 Cr App Rep 277 as relevant to the determination of the appropriate penalty for the offences of dangerous driving causing death or grievous bodily harm. In the subsequent guideline judgment in R v Whyte [2000] NSWCCA 343 at 216 – 217, Spigelman CJ added some further aggravating factors.
In the context of dangerous driving causing death or grievous bodily harm (the latter being relevant in the present case), the indicative sentencing guidelines suggest that the presence or absence of the following factors are relevant to the determination of the appropriate penalty:
(i)the extent and nature of the injuries inflicted;
(ii)the number of people put at risk;
(iii)the degree of speed;
(iv)the 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 warnings; and
(ix)escaping police pursuit.
In the present case, the other driver involved in the collision suffered serious head injuries; there were numbers of other road users put at risk; there was a very high degree of speed; a significant number of other persons (and vehicles) were put at risk; there was no evidence of intoxication or substance abuse; there was a high degree of erratic driving in an attempt to evade police; the length of journey was significant during which a number of other road users and their vehicles were put at risk; there was behaviour which evidenced that warnings were ignored and the collision occurred in an attempt to escape from a police pursuit.
As previously indicated, the victim suffered serious head injuries. In addition, he suffered a ruptured spleen and a hepatic laceration. His victim impact statement detailed not only the physical injuries, but also the emotional and financial impact suffered by him as an innocent driver on the road. He was a part‑time pizza delivery driver using his own vehicle. It was not comprehensively insured. As a result of the collision, the vehicle was worthless and he was suffering not only physical and emotional effects as a result of his injuries, but also financial loss.
In my opinion, when one examines the relevant factors in the context of this case, there is very little which could be said in favour of the respondent by way of mitigation, apart from his youth. The offence was not caused by a "momentarily reckless error of judgment". On the contrary, the respondent showed a selfish disregard for the safety of other road users. He sought to avoid police apprehension by accelerating away from the accident scene heavily, driving on the incorrect side of the road and through a red traffic light. At the time the offence was committed, he had a substantial prior criminal record, including a number of offences for reckless driving. It follows that this offence was not an uncharacteristic aberration. It was the culmination of a course of conduct of unlawful driving of vehicles and associated offences which were becoming more serious over time. The respondent did not display any genuine remorse or shock in respect of what he had done. On the contrary, following the accident, he bragged to his acquaintances about what had occurred. Although the respondent pleaded guilty, the plea was not entered until the first day of his trial for the offence, which was some six months after he had entered a plea of not guilty.
The offence was accompanied by a number of aggravating factors, namely, the extent and serious nature of the injuries which he inflicted, the degree of speed estimated at 100 kph being substantially in excess of the speed limit and calculated to avoid his apprehension; the fact that the offence was committed while he was the subject of a police pursuit; whilst he was driving a stolen motor vehicle with no driver's licence; and failing to stop when called upon and after the accident which caused injury. Of course, a number of these aggravating circumstances themselves involved the commission of offences for which he failed to be sentenced. While it is important to ensure that he was not the subject of compounded or duplicated penalties for the circumstances aggravating the seriousness of dangerous driving offence, as well as punishing him for the separate offences, the context is nonetheless relevant in determining the adequacy or otherwise of the totality of the sentences, when considering the degree to which the sentences imposed should be ordered to be cumulative or concurrent in the context of the totality principle.
In the present context, I consider that there was very little to be said in terms of mitigation apart from the application of the totality principle, which is the subject of ground 4 of the grounds of appeal. For these reasons, I consider that ground 3 has been made out.
Ground 4
It was contended by the Crown that the learned sentencing Judge erred in the exercise of her sentencing discretion in that she ordered the sentences for Complaints CC1154 (stealing the Holden Commodore sedan) and CC1152 (driving the stolen motor cycle without being the holder of a valid driver's licence and while legally disentitled to hold a driver's licence) to be served concurrently.
It was submitted in support of ground 4 that where offences occur on separate occasions and involve separate transactions, the sentences should be imposed cumulatively unless the totality principle requires some other approach: R v Ward (1999) 109 A Crim R 159 at [9] per Malcolm CJ (with whom Ipp and White JJ agreed). It was submitted on behalf of the Crown that the stealing of the motor vehicle and the driving of the motor cycle without a licence, the subject of those two complaints, involved distinct and separate offences from those committed on 20 February and 8 March 2002 respectively. In particular, the stealing of the motor vehicle occurred on a different day and involved a different victim from the victims of the respondent's other offences. It was submitted that the imposition of a cumulative sentence of imprisonment for 9 months for the subsequent stealing of a motor vehicle would not offend the totality principle.
I accept that, subject to the application of the totality principle, different criminal acts committed against different complainants on different occasions should not be regarded as part of the same transaction or as part of the same "chapter of criminality". For that reason, the sentences ought not be made concurrent because to do so may have the result that the offender escapes punishment for the offences against the other complainants: Woods v The Queen (1994) 14 WAR 341 per Anderson J at 352 (with whom Malcolm CJ and Seaman J agreed).
The stealing of the motor vehicle, the subject of Complaint CC1154, was itself a serious offence. It is a particularly prevalent offence about which members of the public are entitled to be very concerned that their vehicles cannot be left safely locked in public parking areas. Loss of a car by theft in the context of the commission of other offences imposes significant shock, distress and inconvenience on the owner and, save in exceptional circumstances, should be the subject of a cumulative term of imprisonment: cf Mulligan v The Queen [2000] WASCA 5 per Pidgeon J (with whom Wallwork and Murray JJ agreed) at [10]. That case involved a Crown appeal.
The respondent's course of conduct in this case involved the commission of a series of serious offences and caused serious injury to a member of the public as well as putting other members of the public at risk. There were three distinct series of offences for which he was required to be sentenced, being the offences committed respectively on 20 February 2002 including the stealing of the Ford Falcon and the dangerous driving of that vehicle causing grievous bodily harm, the stealing of the Holden Commodore on 5 March 2002, the stealing of the motor cycle on 8 March 2002 and the associated aggravated stealing and burglary, and the subsequent unlawful driving of the stolen motor cycle on 9 March 2002.
As he came before the learned Judge, the respondent had a significant prior record of 59 convictions for offences dating from 17 August 1997, including thirteen offences of stealing a motor vehicle, as well as offences of burglary, being unlawfully on premises, twelve offences of wilful damage to property, thirteen offences of driving without a licence, thirteen offences of reckless driving and a range of other offences.
It was conceded on behalf of the respondent that the offence of dangerous driving causing grievous bodily harm was a very serious offence, even taking into account that the respondent operated at a very low level of intellectual capacity. On 20 February 2002, Police Constable Smith and Constable Wincup were patrolling in a marked police vehicle. At about 7.00 pm due to a message received, they went to Dickenson Way, Booragoon, where they located the Ford Falcon sedan registered number 8SN‑739 parked on the side of the road. The right rear window was smashed. The vehicle was secured as far as possible and other police were contacted to inform the owner of its location. At about 7.41 pm, the Ford was driven by a male toward the police car in Dickenson Way. It stopped momentarily and the driver looked at the police. The emergency lights were activated and the police vehicle and the Ford Falcon accelerated away. The police vehicle pursued the Ford with its emergency lights activated. The Ford turned left into Marcus Avenue travelling north. It turned left and headed west on Marmion Street accelerating to approximately 100 kph. The speed limit in the area was 60 kph. The Ford travelled through the intersection with Norma Road and continued at high speed towards the intersection with North Lake Road. The Ford then travelled on the incorrect side of the road at approximately 100 kph to overtake traffic also travelling west. The Ford then returned to the correct side of the road.
Just prior to the Ford arriving at the intersection with North Lake Road, the traffic lights facing it changed to red. The Ford was then driven on the incorrect side of the road. Its brake lights were illuminated and a large amount of smoke was seen to be emitted from the Ford's tyres. The Ford then skidded for some distance into the left side of a Holden Astra vehicle, 1AAS‑932, which was travelling north on North Lake Road. The impact was severe and caused the Astra to spin around and come to rest some distance away. The Ford also spun around before coming to rest in the middle of the intersection. A male person was seen to alight from the Ford Falcon and run from the scene in a northerly direction.
At the time of the collision, the traffic was of medium density. There were several other vehicles on the road at the time. The street lights were on and the road was dry. The driver of another vehicle, a Mr Preedy, who had already passed through the intersection travelling in the same direction as the Ford, noticed someone running away from the scene of the collision. A bus came by and the driver and some passengers shouted, "That's him" while pointing at the person running. Mr Preedy chased the driver who was the respondent and cornered him by a fence with his vehicle. The police then apprehended the respondent. Mr Preedy deserved to be commended for his conduct.
About a week after this incident, the respondent was talking to a group of people, including a Mr Garbutt. The respondent was heard to say, "I made some guy piss in a car crash, in a stolen car" and that he had got away. There were others present who recalled this conversation. There were other witnesses who had seen the respondent driving the Ford Falcon earlier on the day of the collision. A report by the Police Vehicle Examiners indicated that the Ford had sustained heavy impact damage to the left side "reducing the vehicle to a wreck".
The respondent was subsequently arrested, but denied his involvement with the subject vehicle. He later admitted having been in the car because a cap belonging to him had been found in it. He maintained that he was not otherwise involved in the offences with the vehicle. It was not until the morning of the trial that he broke down and confessed to his counsel. The commencement of the trial was delayed. His counsel later informed the learned Judge that he was frightened about how people would judge him for committing the dangerous driving offence. In particular, he was frightened that his parents and his girlfriend would withdraw their support for him and he was concerned about how his other friends would judge him. Ultimately, he accepted that he was guilty and entered his plea accordingly.
In her sentencing remarks, the learned Judge, having summarised the offences, noted that the most serious offence of dangerous driving causing grievous bodily harm on 20 February was committed shortly after the respondent had been released from detention on a supervised release order, having served the statutory period of detention which was imposed on 18 September 2001 for similar offences, namely, stealing motor vehicles. Her Honour went on to say:
"When [the respondent] was 17 he committed these very serious offences which are before the court today. The first of these offences occurred on the 5th of March when he stole a motor vehicle, followed by a burglary, stealing keys to a motorcycle and then stealing the motorcycle. On the 8th of March and on the 9th of March he was driving without a licence. However, the most serious offences occurred on the 20th of February. This was shortly after [the respondent] had been released from detention on a supervised release order, having served the statutory period of detention which was imposed on the 18th of September 2001 for similar offences, namely stealing motor vehicles.
[the respondent's] record presents a very sorry picture of a young man who commenced offending in 1997 when he was around 13 years of age and which has continued, escalating in severity until these offences were committed earlier this year. He has a long record of traffic offences, including stealing cars, driving without a license, various offences of stealing, but mainly his record is characterised by driving offences and stealing motor vehicles.
He first received a sentence of detention in January 2000 when he was around 16 years of age. He has been given the opportunity of a number of orders of the court. All of those have been breached by re‑offending – except the community order which was in the nature of a supervised release order made on the 22nd of February 2000 – but every other opportunity he's been given by the courts and otherwise he has breached by re‑offending.
So there is nothing in [the respondent's] record which affords him any mitigation whatsoever. It's particularly aggravating that these offences were committed whilst he was on a supervised release order, an order which was granted by the Supervised Release Board to give him a chance to settle back into the community under supervision and on trust really that he would not re‑offend. As I say, 3 weeks or so after being released on the order these very serious offences were committed on the 20th of February, thereafter in March another series of offences were committed of the same nature – at least insofar as stealing motor vehicles were concerned.
Before I refer to the circumstances of the offences for which I must sentence [the respondent] I'll refer to his family and other background. There is a pre‑sentence report before the court which is an adult report, but I have reviewed [the respondent's] extensive Juvenile Justice file and take into account particularly not only the pre‑sentence report prepared for these proceedings and the psychological report dated 20 August 2002, but also a report prepared by Dr Watts who is a psychologist, dated the 24th of July 2001, the report prepared by the Court Assessment and Treatment Service on the 18th of June 2002, previous psychological reports which are on the file and I've also reviewed the previous Juvenile Justice reports which are often more detailed than the adult reports prepared in this jurisdiction. [The respondent] is 1 of 8 children. He's the fourth of the 8 children. There is nothing really in his family background of any great significance which would serve to explain his offending in this particular manner.
He has had some difficulties though. His parents have 2 intellectually disabled children. It's understandable, even if that weren't the case, with 8 children there is a great deal of difficulty in being able to supervise and control that number of children. In any event the family did have a lot of problems. [The respondent's] parents have had limited capacity to provide the supervision, control, structure and discipline that [the respondent] needed.
This was made all the harder because [the respondent] himself had some difficulties. There is the incident referred to when he was 12 years of age when he was accused of sexual abuse. Nothing came of that insofar as the criminal justice system is concerned, but that affected him considerably. It seems that he became withdrawn and emotionally and socially detached. He's had difficulties in forming friends of his own age and has gravitated towards his older brother, who on occasions he has committed offences with and who at the time of these offences I think was in prison, but who I infer has not presented a particularly positive role model to his younger brother.
It's natural that [the respondent] should gravitate to his brother and seek out his company because he had a difficult time at school. His brother was his protector. It was when he was living with his brother or at least associating with his brother – his older brother – and his older brother's friends that he was introduced to illicit drugs. Now I'm not sure whether that was the destructive amphetamines but it seems that [the respondent] has been using drugs since he was about 13 years of age when he started using cannabis.
When he was 15 he started using amphetamines, initially 2 times a week but then he started injecting amphetamines up to 4 times a week and his habit was costing about $1000 a week. There is no way any young person – or anyone really – can finance that sort of drug habit legally. Hence there was resort to breaking into houses and stealing in order to get money.
On one occasion the report … (indistinct) … he swapped a car for a hit of amphetamines. So the value of the property stolen to the owners is very significant but in the drug sub‑culture a car can buy as little as 1 hit of amphetamine. There is a psychological report before me – an up to date psychological report. I've already mentioned that I've referred to previous reports.
I must say that that up to date psychological report seems to rest heavily and rely heavily on what's been reported ion [sic in] other reports. However, this may be due to the limited time that the psychologist had with [the respondent], who it must be acknowledged, did cooperate in the preparation of the report. The psychological report identifies as some of the contributing factors to the offending: the association with other young people and older people who have had a negative influence, obviously his significant drug problem, which was the precipitating factor for these offences.
It also mentions that his offending is one of his ongoing strategies to deal with stress and trauma in his life. Also frankly it mentions that he enjoyed the adrenalin rush. Dr Watts, who has seen [the respondent] on several occasions over the years, in his report of July 2001 doubted that [the respondent] could, at that stage at least, function independently. I assume that he means unless there is ongoing and intensive psychological counselling and drug therapy, which he obviously needs.
Nothing emerges from the circumstances of the offences and [the respondent's] behaviour after the offences to indicate any remorse on his part. As I've said, it's very difficult to assess remorse in the artificial atmosphere of a court room, but the psychologist and the author of the pre‑sentence report are of the view that he is sorry for what he's done, particularly when he found out the very serious injuries that were caused in the offences of the 20th of February this year.
There is some indication in the reports as well that [the respondent], unlike so many other young people, seems to offend by himself because he doesn't want to get other people involved. Whether that's true or not I don't need to decide. I'm satisfied that [the respondent], having reflected on his behaviour and thinking about it without his mind being befuddled with drugs, that he is remorseful for causing these injuries to the victim.
Just going back to the psychological report, some psychological testing was given and it seems that [the respondent] functions intellectually at the borderline to low average.
In other words, he functions intellectually only better than 8 per cent of the people his own age. Turning now to the circumstances of the offences – and I'm dealing with the offences of the 20th of February 2002 – the driving was a very serious example of dangerous driving where [the respondent] drove on the wrong side of the road, contravened a red traffic light and then collided with the unsuspecting road user.
It's said that he ran from the scene because he was in a state of panic, but this sort of - - I accept to some extent that that's true but this sort of incident was not a new experience for [the respondent]. As I've said, the psychologist says that he did enjoy the adrenalin rush. How much significance can be placed with that in the context of these offences really can't be assessed.
The person who was injured was lawfully driving his car, obviously oblivious to the terrible risk that he faced because of [the respondent's] dangerous and reckless driving. The victim suffered serious head injuries. I understand that he was on life support for some period of time. Although I don't have a very comprehensive – in fact I've only got a very brief medical report, I do have a comprehensive victim impact statement which outlines the horrific effects that these injuries have had on the victim.
He's suffered a great deal of shock and trauma and pain and suffering and still suffers memory loss as a result of his head injuries. His quality of life has been significantly impaired as a result of his injuries, which were caused by the dangerous driving of [the respondent]. Although it probably pales into insignificance compared with the physical injuries, the victim has suffered financially as a result of the offending."
After referring to the need to apply the principles of juvenile justice as outlined in the YO Act to the penalties under the Sentencing Act, the learned Judge said:
"Although it is important and it is a significant factor to consider [the respondent's] rehabilitation, in my view notions of deterrence and protection of the community and punishment loom very large in the sentencing exercise.
It's clear that the criminal justice system has not been able to stop [the respondent] offending. All of the options that have been open to the court have been offered to him and they've all failed. Detention has failed to deter him from offending. So it's clear to me that unless the underlying causes of his re‑offending are identified and addressed then he will remain a risk to the community.
The protection of the community is something that I must regard very seriously, particularly when I have regard to [the respondent's] previous record. As I've said, there's nothing in that that affords any mitigation at all. In fact his record of offending in a similar way causes me to form the opinion that he remains a risk of re‑offending even when he's released. The court can't direct what therapeutic measures the prison authorities can take.
All I can do is recommend that this young man, when he's serving a term of imprisonment, receives intensive psychological counselling. Now that's a recommendation which I'm sure won't fall on deaf ears but I'm aware that the resources within the prison system are not adequate to give the treatment and therapy that [the respondent] needs. As well as all of these matters I must take into account the prevalence of these sorts of offences – of stealing cars and driving recklessly and dangerously, which young people are committing with increasing prevalence these days.
Offences such as these contribute to the horrific road toll and carnage on the roads. That is why a sentence which operates as a deterrent – not only to the particular offender but also generally – is one which must be imposed. In saying all of that obviously I must take into account [the respondent's] prospects for rehabilitation. That's something of course that the sentence that I impose cannot necessarily ensure."
Her Honour then proceeded to impose the sentences the subject of this appeal.
The respondent is the fourth child of his parents' family of eight children. He has two brothers, one older and one younger, who are intellectually disabled and need constant care and attention according to the psychological report provided to the Children's Court dated 20 August 2002. He had a close relationship with his elder brother who was protective and supportive of him when he experienced difficulties at school, but who was in prison when the current offences were committed. While his parents were supportive, they disapproved of his behaviour. There were some disturbing events when the respondent was aged 12, but the details were not disclosed. However, as a result of the impact on the family, they moved to a new suburb. This caused the respondent to become withdrawn and contributed to a deterioration in his behaviour.
It was noted that the respondent's behaviour in detention was compliant and well‑behaved, but with minimal interaction with his peers. He was distressed about his impending court appearance and the risk of adult imprisonment. He was considered at risk of self‑harm or thoughts of suicide. He found school difficult and gave up attendance some years prior to his attaining the age of 18.
The respondent admitted initial use of marijuana from about the age of 13, but ceased about 10 months prior to the interview. He admitted trying a number of other substances and he became a regular intravenous user of amphetamines at about the age of 15. The report concluded that his substance abuse "factors heavily in his offending behaviour".
The respondent's level of intellectual functioning was assessed as within the borderline/low average range, meaning that he performed better than 8 per cent of his peers at the same age. These results were affected by "real anxiety and impulsivity".
According to the psychological report provided to the learned sentencing Judge, the offences appeared to be linked to heavy substance misuse, negative peer influence, a reported: "adrenalin rush" from the risk of getting caught and the use of offending as a "coping strategy" for dealing with feelings such as stress, fear and conflict. At the same time, the respondent reported feelings of intense guilt, remorse and distress in relation to the charge of dangerous driving causing grievous bodily harm. He told the author that injuring someone had been his "worst fear in offending". He explained that he had originally denied the offence when questioned by police because he was so distressed and shocked by his offence and the media attention given to it. His symptoms were said to be "synonymous with post‑traumatic stress disorder". The report noted that the respondent's description of his offences indicated an acceptance of responsibility and remorse for these actions; an awareness of the seriousness of the offences and the risk of adult imprisonment as a consequence. He expressed a willingness to engage in psychological counselling to assist him in coping with the trauma as a result of his offending and to address his general behaviour. A referral for psychological counselling as well as substance abuse counselling has been recommended.
While this attitude is to be commended, the various offences of which the respondent was convicted were very serious offences. The driver of the vehicle involved in the collision resulting in the offence of dangerous driving causing grievous bodily harm suffered very serious head and other injuries.
Conclusion
The most serious of the offences was the offence of dangerous driving causing grievous bodily harm, the subject of Complaint No CC1037/02. In my opinion, the sentence of 15 months' imprisonment for that offence was manifestly inadequate in all the circumstances. In my opinion, taking into account the respondent's youth and all of the other circumstances to which I have referred, an appropriate sentence to be imposed in the context of the restraint required in relation to a Crown appeal would have been a sentence of imprisonment for 21 months. Furthermore, I consider that the failure to impose a cumulative or partly cumulative sentence of imprisonment in respect of the separate offences involved in Complaints Nos CC1154/02 and CC1152/02 was also an error in the exercise of the sentencing discretion which led to a manifest inadequacy in the total sentence imposed, after giving full effect to the totality principle.
For these reasons, I would allow the appeal and increase the sentence on Complaint No CC1037/02 relating to the dangerous driving causing grievous bodily harm from imprisonment for 15 months to 21 months. I would also direct that that sentence be served cumulatively upon the sentences of imprisonment for 9 months in respect of Complaint No 1154/02 and the sentence of 12 months in respect of Complaint No 1449/02. All other sentences should be served concurrently. The commencement date of the sentence on Complaint No CC1037/02 and the sentences to be served concurrently shall be 18 May 2002 to take account of time spent in custody. The effect of these orders would be that the total sentence would be increased from 2 years and 2 months to 3 years and 6 months. I would order that the respondent be eligible for parole in respect of each of the sentences imposed. It follows that the respondent would be eligible for parole after serving one‑third of the total term of imprisonment now imposed. I would also order that the respondent be disqualified from holding or obtaining a driver's licence for life commencing from the date of his release from custody in respect of the sentence or sentences he is now required to serve. The making of an order for disqualification is mandatory under s 59(3)of the RT Act. I note that a
life disqualification was previously imposed in the Children's Court on 31 July 2001 in respect of an offence of stealing a motor vehicle and driving recklessly contrary to s 378(2) of the Criminal Code.
TEMPLEMAN J: I have had the advantage of reading in draft the reasons published by the Chief Justice. I agree with his Honour that the appeal should be allowed, and that the respondent should be re-sentenced in accordance with the orders proposed by him. There is nothing I wish to add.
MILLER J: I have had the opportunity of reading in draft the reasons for judgment of the Chief Justice and I agree with those reasons and with the orders proposed.
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