R v Arnold - [2015] SASCFC 13

Supreme Court of South Australia
(Court of Criminal Appeal)
R v ARNOLD
[2015] SASCFC 13
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Parker and The Honourable Auxiliary Justice Duggan)
16 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Appeal against sentence. The defendant pleaded guilty to the offence of causing serious harm by dangerous driving. The defendant was driving at an excessive speed and lost control of his vehicle, colliding with a tree and causing serious injuries to a passenger travelling in his vehicle. The defendant also suffered injuries. The Judge imposed a sentence of imprisonment of three years and six months and fixed a non-parole period of two years. The Judge declined to suspend the sentence. The defendant was disqualified from holding or obtaining a driver’s licence for a period of 10 years.
Whether the head sentence and non-parole period were manifestly excessive. Whether the Judge impermissibly fettered his discretion by stating that only an immediate prison sentence is capable of achieving the necessary sentencing considerations required for “such crimes”. Whether the Judge erred in relation to the considerations relevant to the fixing of a non-parole period.
Held per Duggan AJ (Parker J agreeing)(dismissing the appeal on ground two and refusing leave to appeal on grounds one and three):
1. The Judge was not under any misunderstanding as to the exercise of the power to suspend any sentence which he might propose.
2. There was no error in the Judge’s approach in fixing the non-parole period.
3. The head sentence and non-parole period were within the bounds of the sentencing discretion and did not result in a manifestly excessive sentence.
Held per Gray J (dissenting):
1. The sentence imposed by the Judge was manifestly excessive.
2. The Judge unduly fettered his discretion.
3. In fixing the non-parole period, the Judge was unduly influenced by considerations which bore upon the fixing of a head sentence rather than on the minimum term.
Criminal Law Consolidation Act 1935 (SA) s 19A(3); Road Traffic Act (SA) s 45A; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Bugmy v The Queen (1990) 169 CLR 525; De Hollander v The Queen [2012] WASCA 127; The Queen v Robinson (1979) 22 SASR 367; Power v The Queen (1974) 131 CLR 623; R v Simpson (2001) 53 NSWLR 704; DPP v Gany (2006) 163 A Crim R 322; R v Whyte (2002) 55 NSWLR 252; R v Jurisic (1998) 45 NSWLR 209, considered.

R v ARNOLD
[2015] SASCFC 13
Court of Criminal Appeal: Gray and Parker JJ, Duggan AJ
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Peter Robert Arnold, pleaded guilty in the District Court to the offence of causing serious harm by dangerous driving, contrary to section 19A(3) of the Criminal Law Consolidation Act 1935 (SA). The Judge, having made a reduction of 12 months on account of the defendant’s plea of guilty, imposed a sentence of imprisonment of three years and six months. The Judge fixed a non-parole period of two years. The Judge declined to exercise his discretion to suspend the sentence. The defendant was disqualified from holding or obtaining a driver’s licence for a period of 10 years, commencing upon his release from prison.
Background
Shortly before midday on Saturday 19 February 2011, the defendant was driving his Ford utility vehicle south on Midway Road, Elizabeth Park. As he rounded a right-hand sweeping bend, he lost control and his vehicle crossed to the incorrect side of the road. The defendant’s vehicle almost collided head-on with two other vehicles whose drivers had to take evasive action to avoid a collision. The vehicle mounted the kerb, went careering through a fence and collided with a tree to the western side of the road. A police accident reconstruction expert estimated that the defendant was driving at about 100 kilometres per hour at the time that he lost control of his vehicle and began to slide across the road. The speed limit on that section of the road was 60 kilometres per hour. Eyewitnesses described the defendant’s vehicle as travelling at a speed well above that limit.
An eyewitness gave a statement that she was following the defendant’s vehicle on Midway Road. She saw the defendant’s vehicle pull away from her own vehicle and heard the roar of the engine and the gear changes. She recalled thinking that the defendant’s vehicle was driving too fast. She observed the defendant’s vehicle enter the right-hand bend and lose control, moving on to the incorrect side of the road. She lost sight of the vehicle briefly and heard a loud bang. She saw that the vehicle had collided with a tree.
The Judge noted that the defendant had modified his vehicle to enable it to be reprogrammed to increase the engine capacity’s output from that of a V6 to the equivalent of a V8.
LH was travelling in the front passenger seat of the defendant’s vehicle. Following the crash, he was trapped and required extraction through the use of the Jaws of Life before being taken to hospital. He suffered numerous injuries, including a broken pelvis, a ruptured spleen requiring surgical removal, a punctured lung, fractured ribs, a fractured arm, a fractured left brow, a tear to the urethra, fractures of the lumbar vertebrae, a dissected descending aorta, a blood clot to his left leg, and extensive swelling and bleeding on the brain. He required a massive blood transfusion and developed cardiac arrest, but was successfully resuscitated. He spent three months at the Royal Adelaide Hospital before being transferred to the Hampstead Rehabilitation Centre. He was discharged to his home on 28 May 2011. He continues to suffer from brain injuries that are likely to be life-long and ongoing pain in his left hip. He is no longer able to work as a spray-painter and is likely to be on a disability support pension for life. He is no longer able to live independently and suffers from depression. He has no memory of the crash.
The defendant was injured in the crash. He spent three weeks in the Royal Adelaide Hospital followed by a week at the brain injury rehabilitation unit at the Hampstead Centre. He thereafter experienced difficulty sleeping, discomfort and dizziness, and was reliant on his family on a daily basis.
The Judge addressed the effect of the crash on the defendant’s mental state:
You have become depressed over the crash, its outcome and your own quality of life. You have deep feelings of guilt towards [LH] and his family as well as your own family due to the burden you have placed upon them. Indeed, this has placed much pressure and strain on your marriage.
You have discussed these issues with your GP.
You know, therefore, from your own experiences some of the things [LH] must be suffering from.
What is very frustrating to you is your failure to remember the crash. This has caused you to look for explanations for your driving in the moments before the crash occurred, so your lawyers investigated the cause of the crash for you.
In the end, the only explanation for the crash is that you simply drove too fast. The crash, some three years ago now, has changed the lives of two men and their families. It is a stark reminder of the human debris left behind following a serious crash such as this. Not only was your ute wrecked but so have been the lives of many.
The Judge addressed the defendant’s antecedents as follows:
You are 60 years of age. You are no stranger to the law. You have a very poor record for driving-related offences, although you have not offended against the road rules for decades now, which is to your credit. I feel that I can ignore your earlier record in sentencing you. This is because you later became a professional driver, driving trucks, semi-trailers, taxis and buses and you demonstrated road safety over many years.
I accept that you are genuinely remorseful and contrite for what happened. You had known [LH] and his family for about 30 years. You knew [LH] since he was an eight-year-old boy. Following the crash you regularly visited him in the Royal Adelaide Hospital and expressed your sorrow and concern for him many times over. He has told you that he has forgiven you and understands, like himself, that you have no recollection of the crash. You were able to buy him a television set to use whilst he was at the Hampstead Rehabilitation Centre. …
In imposing the earlier referred to sentence, the Judge emphasised the importance of general deterrence:
… In these sort of cases issues of general deterrence are of paramount consideration. Time and again our police and State leaders reinforce the dangers inherent in speeding and other forms of dangerous driving. They do that for good reason because many lives are lost or seriously affected by idiots who choose to ignore all of the warnings.
This case is but one tragic example of the life altering consequences of hoon driving caused through excessive speed, which you deliberately engaged in. You not only put your friend’s life at risk and effectively ruined it for him, but you almost did the same to other road users who narrowly escaped your path of carnage and destruction.
In my view, only an immediate prison sentence is capable of achieving the necessary sentencing considerations of deterrence, punishment and retribution required for such crimes.
I have not ignored your personal circumstances in all of this, including your own injuries and how imprisonment will be a difficult environment for your health related issues. However, in my view, lesser weight is to be afforded to these matters in cases which cause the community so much grief and concern.
Drivers who hoon like you did, or drive at excessive speeds like you did, so as to place the lives of other innocent people in danger, must be deterred.
The message must be repeated over and over. Even if it only results in one person stopping and thinking about what might happen if they decide to hoon or speed in their car that may be enough to save someone’s life.
The Appeal
The defendant submitted on the appeal that both the head sentence and non-parole period imposed by the Judge were manifestly excessive. It was complained that the Judge erred in treating the perceived requirements of deterrence, punishment and retribution as if separate from, and in opposition to, the physical and psychological effects of the accident upon the defendant. This submission raises important matters arising from the decision of the High Court in Bugmy.[1]The defendant further submitted that the Judge erred in failing to exercise his discretion to suspend the sentence of imprisonment.
[1] Bugmy v The Queen (1990) 169 CLR 525.
The defendant was initially charged with aggravated causing serious harm by dangerous driving. The alleged circumstance of aggravation was that he drove in contravention of section 45A of the Road Traffic Act 1961 (SA). The substance of the allegation was that his dangerous driving involved speeds of more than 45 kilometres per hour in excess of the relevant speed limit. The allegation that this was an aggravated offence was abandoned. It is to be noted that the maximum penalty for an aggravated offence is life imprisonment and that the maximum penalty for a basic offence is 15 years’ imprisonment. There are no statutory provisions addressing sentences of immediate imprisonment or minimum non-parole periods.
Counsel for the defendant on the appeal did not challenge the Judge’s conclusion that the imposition of a term of imprisonment was appropriate. It was contended, however, that the length of the term imposed was manifestly excessive, that the non-parole period was manifestly excessive and that the Judge’s exercise of his discretion concerning suspension of the sentence was flawed.
Central to counsel’s submission was an attack on the earlier extracted portion of the Judge’s remarks and, in particular, the following:
In my view, only an immediate prison sentence is capable of achieving the necessary sentencing considerations of deterrence, punishment and retribution required for such crimes.
Counsel submitted that the Judge had unduly fettered his sentencing discretion by proceeding on the basis that “for such crimes” the only sentence available was an immediate prison sentence.
Counsel for the Director of Public Prosecutions accepted that if the expression “such crimes” was to be understood literally, then it followed that there had been an error of sentencing principle. It was accepted that the defendant should be sentenced in respect of the crime that he committed, having particular regard to the circumstances of his criminal conduct and his antecedents. Counsel acknowledged that the offence of causing serious harm by dangerous driving contrary to section 19A(3) of the Criminal Law Consolidation Act would not necessarily result in the imposition of an immediate term of imprisonment. It was suggested that the Judge did not intend such a meaning and that his remarks should be understood to be a reference only to the defendant’s offending.
The Judge’s remarks were prepared with obvious care. I do not consider that a reading down of those remarks as suggested by the Director should be accepted.
The Director further acknowledged that the sentence imposed was well within the range of sentences imposed for the more serious offending of causing death by dangerous driving in circumstances of aggravation, in particular, involving the combination of alcohol and excess speed. It may be accepted that offending in those circumstances will, in all probability, lead to the imposition of an immediate custodial sentence. However, there are examples of the offence of causing death by reckless driving when the defendant has not been affected by alcohol where sentences have been suspended.
In the present proceeding, the driving was not prolonged, did not involve racing another vehicle and did not involve a chase. The act of bad driving appears to have arisen on the spur of the moment. The Judge’s reference to “hoon” driving appears to suggest some aggravated form of reckless driving. It is unclear as to the precise meaning to be conveyed by the Judge’s use of the word “hoon” in the particular circumstances of this offending. I consider that the Judge erred in suggesting that crimes against section 19A(3) must result in an immediate prison sentence. The sentence imposed by the Judge, starting with a notional sentence of four years and six months, before a discount for the plea of guilty, was, in my view, manifestly excessive.
Counsel for the defendant, as noted above, submitted that, quite apart from the head sentence, the non-parole period set by the Judge was manifestly excessive. Attention was drawn, in particular, to the defendant’s age of 60 years at the time of sentencing, his law abiding lifestyle for many years, his prior poor health and, finally, to the significant injuries that he suffered in the collision. It was said that the distant history of offending of the defendant should be understood against his subsequent law abiding conduct over several decades. Emphasis was placed on his genuine contrition and remorse and to his ongoing contact and continued friendship with LH.
In Bugmy,[2] the High Court addressed the purpose behind the setting of non-parole periods. Mason CJ and McHugh J observed:[3]
Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan.[4] In that case Jenkinson J., with whom Kaye J. agreed, pointed out[5] that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community “will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice”.
Their Honours emphasised that the same factors were relevant to both the setting of a head sentence and the fixing of a non-parole period, but importantly pointed out that relevant factors may be given different weight when addressing a non-parole period:[6]
Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v. The Queen [No. 2],[7] whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
[Emphasis added.]
[2]    Bugmy v The Queen (1990) 169 CLR 525.
[3]    Bugmy v The Queen (1990) 169 CLR 525, 531.
[4] (1980) 7 A Crim R 146.
[5] (1980) 7 A Crim R, at p. 155.
[6]    Bugmy v The Queen (1990) 169 CLR 525, 531-2.
[7] (1988) 164 CLR 465, at p. 477.
Dawson, Toohey and Gaudron JJ, in their judgment, observed:
Although Brooking J. clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. …
[Emphasis added.]

These extracts from Bugmy[8] have been approved in subsequent High Court authority and have received widespread application throughout Australia.[9]
[8] Bugmy v The Queen (1990) 169 CLR 525.
[9] Inge v The Queen (1999) 199 CLR 295, [6]; Hili v The Queen (2010) 242 CLR 520, [44]; Singh v The Queen [2011] VSCA 333, [27]; De Hollander v The Queen [2012] WASCA 127, [80]-[82].
In De Hollander, Buss JA observed:[10]
The considerations which a sentencing court must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. …
[Emphasis added.]
It is to be observed that the sentencing Judge in the present proceeding appeared not to have had proper regard to the emboldened passages from the above extracted authorities. He reasoned:
I have not ignored your personal circumstances in all of this, including your own injuries and how imprisonment will be a difficult environment for your health related issues. However, in my view, lesser weight is to be afforded to these matters in cases which cause the community so much grief and concern.
[Emphasis added.]
The sentencing Judge was unduly influenced by considerations which bore upon the fixing of a head sentence rather than on the minimum term.
[10] De Hollander v The Queen [2012] WASCA 127, [82].
General deterrence is an important matter in regard to sentencing for offending against section 19A(3) of the Criminal Law Consolidation Act. The public should clearly understand that offences against section 19A(3) may lead to immediate terms of imprisonment. However, when determining the period that a defendant should spend in custody before being eligible to apply for release on parole, as members of the High Court have pointed out, differing weight may be given to a number of factors relevant to sentencing. The personal antecedents of a defendant and the community’s interest in the rehabilitation of the defendant are two factors of particular relevance.
In the present proceeding, I consider that there were strong grounds for fixing a substantially shorter non-parole period than might otherwise be the case. These matters received little or no attention from the sentencing Judge. This is unsurprising as the Judge had already concluded that there had to be an immediate custodial sentence imposed. The Judge unduly fettered his discretion.
I consider that there is little or no need for the sentence to be imposed to reflect considerations of personal deterrence. The defendant’s evident contrition and remorse suggest that his rehabilitation is well advanced, if not complete. I agree with the Judge that his distant history of offending is of no material relevance. He is a man of good character in the 20 years or so preceding this offending. His poor health, together with the injuries that he sustained in the collision, are also relevant matters to the fixing of a non-parole period. The defendant will be unable to drive for a period of 10 years following his release from prison and his prospects of ever obtaining a licence again are remote. If I was of the view that the appeal should be allowed only for the purpose of adjusting the non-parole period, I would fix a non-parole period of 12 months in lieu of the non-parole period of two years fixed by the Judge.
The defendant should be resentenced having regard to the facts as now known to the Court. In this respect, it is relevant that the defendant has now spent approximately six months in custody. I consider that, in addition, it is relevant to have regard to the defendant’s personal antecedents, his evident contrition and remorse, his ongoing contact and assistance to his gravely injured passenger and to his own rehabilitation. I have approached the fixing of a non-parole period in accordance with the decision of Bugmy.[11]
[11] Bugmy v The Queen (1990) 169 CLR 525.
I now turn to the question of the discretion to suspend the sentence of imprisonment. There are particular matters relevant to the exercise of the discretion to suspend. As earlier noted, there is, in my view, no need for personal deterrence. The defendant is most unlikely to ever drive again. He is in poor health in part due to injuries sustained in the collision. He is genuinely contrite. He is remorseful. He has a genuine concern for his friend and victim. He has spent time in custody. In these special circumstances, I would exercise my discretion to suspend the sentence. In my view, although this approach may be described as merciful, it is fully justified by the matters set out above.
In summary, I consider that error occurred in the sentencing process. I also consider that the sentence imposed was manifestly excessive. I would allow the appeal and set aside the sentence imposed in the District Court. In resentencing, I would have regard to the defendant’s antecedents and to the circumstances of the offending as discussed above. I would impose a head sentence of two years’ imprisonment. In fixing this term, I would make a nine month reduction on account of the defendant’s contrition and remorse, and his plea of guilty. I would fix a non-parole period of eight months. I would release the defendant on his entry into a three year suspended sentence bond. I would direct that he be supervised by a community corrections officer for a period of 12 months and that he follow such courses as may be recommended by that officer. I would confirm the order made by the sentencing Judge that the defendant be disqualified from holding or obtaining a driver’s licence for a period of 10 years commencing on his release from prison.
PARKER J: I agree with the reasons of Duggan AJ and the orders he proposes. There is nothing I wish to add.
DUGGAN AJ: The facts of this matter are set out in the judgment of Gray J.
The appellant appeals against a sentence of imprisonment for three years and six months and a non-parole period of two years for an offence of causing serious harm by dangerous driving.
The grounds of appeal are as follows:
1.Both the head sentence and the non-parole period imposed by the learned sentencing Judge were manifestly excessive.
2.The learned sentencing Judge erred in failing to exercise his discretion to suspend the period of imprisonment
3.The learned sentencing Judge erred in treating the perceived requirements of deterrence, punishment and retribution as if separate from, and in opposition to, the physical and psychological effects of the accident upon the appellant himself.
Leave to appeal was granted by a single judge on ground 2. Leave to appeal was refused on grounds 1 and 3 but the appellant has applied to this Court for leave to appeal on those grounds.
It is convenient to deal first with the ground upon which leave was granted. Leave to appeal on this ground was based mainly on the following comment made by the Judge in the course of his sentencing remarks:[12]
In my view, only an immediate prison sentence is capable of achieving the necessary sentencing considerations of deterrence, punishment and retribution required for such crimes.
[12] AB 71.
It was argued that this observation discloses a misunderstanding on the part of the Judge to the effect that the exercise of the discretion to suspend a sentence would be inappropriate for any offence of causing serious harm by dangerous driving.
If this was the understanding of the Judge then it was clearly incorrect. There is nothing in s 38 of the Criminal Law (Sentencing) Act 1988 (SA) which would authorise such an approach; nor is there any principle of sentencing law to that effect. One would expect the Judge to know that this is so.
In my view, the explanation for the comment is to be found in the context of the remarks which his Honour was then making. In the passage immediately preceding his comment he was describing in forceful language the gravity of the appellant's conduct. He then commented that, in his view, only an immediate sentence of imprisonment was appropriate. The phrase “for such crimes” used by him appears to refer to crimes which fit the description which had just been given in relation to the appellant’s conduct. So understood, the comment does not reveal an error of sentencing principle.
The sentencing judge did not suggest during sentencing submissions that an immediate sentence of imprisonment was the only course open. He did, however, say to the appellant when remanding him for sentence:[13]
Imprisonment is, in my view, very much on the cards for this very dangerous act of driving that you engaged in.
[13] AB 65.
Again, this remark was made in the context of the appellant’s conduct in the present case and did not suggest a settled approach of immediate custodial sentences for all cases.
In my view, the sentencing Judge was not under any misunderstanding as to the exercise of the power to suspend any sentence which he might impose.
Next it was argued that the sentencing Judge had erred in fixing the non-parole period. As stated above his Honour fixed a non-parole period of two years.
Reference was made in the course of argument to Bugmy v The Queen[14]. In Bugmy the applicant for leave to appeal was convicted of murder and sentenced to life imprisonment. The sentencing Judge fixed a minimum term of 18 years and 6 months to be served before the Parole Board was able to grant the applicant parole. The issue before the High Court was whether the sentencing Judge, in fixing the minimum term, was unduly influenced by considerations relevant to fixing a head sentence rather than a limiting term. The majority adopted the approach of King CJ in The Queen v Robinson[15] who held that:[16]
[T]he minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole.
[14] (1990) 169 CLR 525.
[15] (1979) 22 SASR 367 at 370.
[16] (1990) 169 CLR 525 at 538.
Mason CJ and McHugh J stated:[17]
Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan (1980) 7 A Crim R 146. In that case Jenkinson J., with whom Kaye J. agreed, pointed out (at p. 155) that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community “will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice”.
Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence (Veen v. The Queen (No. 2) (1988) 164 CLR 465, at p 477), whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
[17] (1990) 169 CLR 525 at 531 – 532.
Earlier in their judgment their Honours said:[18]
It has been said that “(t)he intention of the legislature is that a minimum term is a benefit to the prisoner”: Iddon & Crocker v. The Queen (1987) 32 A Crim R 315, at pp 325-326; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 (Vict.), s. 74(1); Community Welfare Services Act 1970 (Vict.), s. 195(1), since repealed. But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v. The Queen (1974) 131 CLR 623 put paid to that notion. Barwick C.J., Menzies, Stephen and Mason JJ observed. (at p. 628):
“In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.”
[18] (1990) 169 CLR 525 at 530 – 531.
In Power v The Queen[19] referred to in the above passage in Bugmy, Barwick CJ; Menzies, Stephen and Mason JJ said:[20]
Nor do we understand how it is said that the fixing of a non-parole period is not concerned with deterring either the prisoner himself or others from crime. Surely the requirement that a prisoner must stay in confinement for some period seen by a judge to be appropriate in all circumstances, would operate more as a deterrent than to allow the prison gates to be opened almost as soon as they have closed, that is, when the paroling authority has had time to consider whether the sentence should be served in confinement. To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than for a shorter time, is within that objective.
[19] (1974) 131 CLR 623 at 628.
[20] (1990) 169 CLR 525 at 530 – 531.
Bugmy was considered by the New South Wales Court of Criminal Appeal in R v Simpson[21]. Spigelman CJ (Mason P, Grove J and Newman AJ agreeing), after commenting that “the non-parole period must itself appropriately reflect the criminality involved in the offence” observed:[22]
Counsel for the applicant, submitted that considerations of general deterrence are of greater significance for setting a head sentence than for determining a non-parole period. He referred to Bugmy v The Queen (supra) at 531-532. I can see nothing in the High Court's reasons in Bugmy which supports that submission. Considerations of general deterrence are at least equally significant to both decisions which are, in any event, interrelated. Indeed the purport of the High Court’s decision in Power was to reject the proposition that considerations of punishment and deterrence were of primary relevance to the determination of the head sentence and of lesser relevance to the specification of the non-parole period.
[21] (2001) 53 NSWLR 704.
[22] (2001) 53 NSWLR 704 at 718.
In my view, the sentencing Judge was correct in observing that deterrence must still play a part in the fixing of the non-parole period. This is not to say that he disregarded the appellant’s personal circumstances. He referred to the appellant's age, the fact that he had not offended against the road rules for a considerable period of time, the fact that the appellant was genuinely remorseful and contrite, his apology in Court, his own injuries as a result of the incident, the various adverse effects which the incident has had upon him and the effects which imprisonment is likely to have on him.
Cases of this nature give rise to a difficult balancing exercise. However, it is clear that the Judge undertook that exercise. When sentencing the appellant he said:[23]
I have not ignored your personal circumstances in all of this, including your own injuries and how imprisonment will be a difficult environment for your health related issues. However, in my view, lesser weight is to be afforded to these matters in cases which cause the community so much grief and concern.
[23] AB 71.
In my view, there was no error in this approach. While personal circumstances are relevant, there are frequent references in the authorities to the prominence to be given to deterrence in cases of dangerous driving resulting in death or serious injury and the correspondingly reduced weight frequently given to circumstances of mitigation.[24]
[24] See for example DPP v Gany (2006) 163 A Crim R 322 per Chernov, Vincent and Redlich JJ at 333 – 334.
Despite the different purposes in the respective functions of determining the head sentence and fixing the non-parole period, deterrence and matters personal to the offender are relevant to both functions. In my view, the trial judge did not overlook this consideration in fixing the non-parole period.
There remains the ground which claims that the sentence and non-parole period were manifestly excessive.
The appellant was driving a powerful vehicle which had been modified so as to increase the engine capacity to the equivalent of a V8. He was driving on a suburban road. It would appear that after only a short time the vehicle was travelling at a speed of approximately 100 km/h in a 60 km/h zone. The vehicle soon careered to the wrong side of the road and almost collided with two other vehicles whose drivers took evasive action to avoid it. The appellant's vehicle then mounted the kerb, went through a fence and collided with a tree. The injuries of the passenger are summarised in the judgement of Gray J. The passenger suffered brain damage and is no longer able to work or live independently.
The sentencing judge described the appellants conduct as “hoon” driving. Presumably he meant showing off by driving in a reckless manner. This type of driving is listed as an aggravating factor in the leading New South Wales cases on offences of this nature.[25] The feature which makes it so is that it involves a deliberate decision to drive in a dangerous manner.
[25] R v Whyte (2002) 55 NSWLR 252; R v Jurisic (1998) 45 NSWLR 209.
The maximum penalty for this offence was increased to imprisonment for 15 years in 2005. This reflects the public concern for behaviour which has devastating consequences and the response of Parliament to that concern.
The starting point selected by the sentencing Judge for the head sentence was imprisonment for four years and six months reduced to three years and six months by reason of the appellant’s plea of guilty. The non-parole period was fixed at two years, approximately fifty-seven per cent of the head sentence.
I have referred to the mitigating factors which the sentencing Judge took into account.
In my view, the head sentence and non-parole period were within the bounds of the sentencing discretion and did not result in a manifestly excessive sentence.
I have already expressed the view that the Judge did not err in his conceptual approach to the fixing of the non-parole period and the issue of suspension.
I would dismiss the appeal on ground 2 and refuse leave to appeal on grounds 1 and 3.