R v Fairley
[2004] VSCA 15
•27 February 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 270 of 2003
No. 287 of 2002
| THE QUEEN |
| v. |
| GRANT ADRIAN FAIRLEY |
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JUDGES: | CHERNOV and EAMES, JJ.A. and SMITH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2004 | |
DATE OF JUDGMENT: | 27 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 15 | |
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Criminal law – Sentence – Failure to stop – Whether sentence of 18 months’ imprisonment manifestly excessive – Cumulation of sentence with sentence for negligently causing serious injury – Road Safety Act 1986, s.61(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. R.A. Elston | Kay Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr. M.P. Taft | Robert Stary & Associates |
CHERNOV, J.A.:
In this matter I have had the advantage of reading the draft reasons for judgment of the other members of this Court. I agree that the application should be disposed of as their Honours propose. The relevant circumstances and events leading to the offending and to the sentencing of the applicant are set out in the reasons of Smith, A.J.A. and I gratefully adopt what his Honour has there said in that regard.
For reasons which will become apparent, the only ground that needs to be considered is that which claims that the sentence is manifestly excessive. Before dealing with it, however, I turn to the argument of the applicant’s counsel that his Honour impermissibly treated the applicant’s failure to render assistance to Mr. Padula after the accident as a significant aggravating factor. It was said for the applicant, as I understand it, that although failure to stop after an accident and render assistance is a discrete offence under s.61(1)(b) of the Act, with which the applicant was not charged, his Honour treated a necessary ingredient of that offence, namely, the failure to render assistance, as a significant aggravating factor when sentencing him for failure to stop. It is true that his Honour referred on a number of occasions in his sentencing remarks to the fact that the applicant failed to render assistance after the accident and that he did so in terms and in a context that create the impression that he considered it as a significant factor in the sentencing disposition. Thus, at the outset of his sentencing remarks of 29 October 2002 the judge described the charges to which the applicant had pleaded guilty as including “failure to stop after an accident and render assistance” but made no mention at that time of the fact that the charge to which the applicant had pleaded guilty was failure to stop after the accident. Moreover, near the end of the sentencing remarks his Honour said: “I have not treated your failure to stop and render assistance as an aggravating circumstance, but rather as a subsequent and discrete crime deserving of a severe penalty ...”. That suggests, of course, that the judge wrongly assumed that the applicant had pleaded guilty to, and was being sentenced for, breach of s.61(1)(b) of the Act. In the very next paragraph of the sentencing remarks, however, where the judge imposed the relevant sentences, he did so in terms by reference to the offence of “failing to stop after an accident”. Furthermore, when re-sentencing the applicant on 23 September 2003, his Honour essentially explained that his reference in his earlier sentencing remarks to the applicant’s failure to render assistance after the accident was not meant to convey that he was then sentencing the applicant for breaches of s.61(a) and (b). Rather, said the judge, this was said to reflect the fact that he took into account (when sentencing the applicant on the charge of failing to stop) his immorality of driving on when he must have had a good idea of what he had done and “leaving Mr. Tadula [sic] alone on the roadway”. Thus, looking at the whole of the sentencing remarks it is apparent, I think, that his Honour did not sentence the applicant for an offence with which he was not charged, and the contrary was not pressed by counsel. I am also not persuaded that, when sentencing the applicant on the charge of failing to stop, his Honour had in the forefront of his mind that he had failed to render assistance contrary to the principles stated by this Court in R. v. Newman and Turnbull[1]. I note for completeness that despite counsel’s submissions that his Honour had undue regard to the applicant’s failure to render assistance to the victim, this claim does not form any of the grounds on which the applicant relied in support of his case for leave to appeal. I consider that, in all the circumstances, his Honour’s reference to the applicant’s failure to render assistance after the accident, although made in less than his usual clear terms, was a permissive reference to the circumstances surrounding the commission of the offence for which the applicant was sentenced.[2]
[1][1997] 1 V.R. 146 per Winneke, P. with whom Hayne, J.A. and Crockett, A.J.A. agreed.
[2]See Re Birnie (2002) 5 V.R. 426 at 433 per Ormiston, J.A.
I now turn to the claim that the sentence is manifestly excessive. It is trite that this question does not admit of much argument. It is essentially a matter of whether the sentence is outside the relevant range, bearing in mind that it is not a question what sentence this Court would have imposed had it been in the shoes of the sentencing judge. There is no doubt that the task of the sentencing judge is a difficult one. He or she must fix a sentence which reflects the seriousness of the offence and the offending conduct, taking into account matters personal to the offender, including mitigating factors, as well as the applicable sentencing principles. I consider that the offending here is a serious example of a breach of s.61(1)(a) of the Act. In light of all the material, including his Honour’s findings, it is plain that, at the time of the accident, the applicant was aware that:
(a)his car had hit a pedestrian;
(b)such a collision was likely to inflict serious injury, if not death, to the victim;
(c)he was not in a fit state to drive because of his consumption of alcohol;
(d)had he stopped after the accident it was likely that he would have been detected.
Moreover, not only did the applicant not stop after the accident, but he sped away from the scene, no doubt to avoid the possibility of detection. He then lied to the police when he implied that his car had been damaged when parked in Gray Street. It is true that the applicant pleaded guilty at the earliest opportunity and now accepts responsibility for the accident, but he has maintained throughout that he has no recollection of the collision, a claim which his Honour did not accept. The learned sentencing judge also found that, notwithstanding that the applicant had demonstrated a measure of remorse, it was not “as profound as might well be expected”. It should also be borne in mind that, as his Honour accepted, the principle of general deterrence was a very important sentencing consideration in this case.
On the other hand, as Smith, A.J.A. points out in his reasons, there were significant mitigating factors which operated in the applicant’s favour, in particular, his early plea of guilty which indicates acceptance of responsibility and a willingness to facilitate the course of justice.[3] It also showed, as I have said, some remorse on his part. Furthermore, prior to the accident he had led an unblemished life and has family and other relevant support. He has progressed his rehabilitation within the prison system so that, in all the circumstances, his prospects of rehabilitation must be regarded as reasonable. It is also relevant to bear in mind, as the learned sentencing judge said, and as has been pointed out by Smith, A.J.A., that the applicant understandably experienced considerable strain while waiting almost 12 months to have the jurisdictional error resolved. Although the delay here was not of the magnitude that was considered in cases such as R. v. Miceli[4] - where undue delay in arraigning the offender was recognised as a mitigating factor - as Tadgell, J.A. pointed out[5] in that case, it is not the requirement of proper sentencing principles that delay has to be inordinate before it can be taken into account as a mitigating factor. It depends on the circumstances of the particular case. I am satisfied that, given the circumstances of this case, the learned sentencing judge was correct when he said that the delay amounted to a mitigating factor.
[3]See, for example, Cameron v. The Queen (2002) 209 C.L.R. 339 at 343 per Gaudron, Gummow and Callinan, JJ.
[4][1998] 4 V.R. 588.
[5]At 591.
It has often been said[6] that sentences that have been imposed on other offenders in respect of the offence in question do not constitute a yard stick by which to determine the appropriateness of the new sentence. Each sentence must depend on the particular circumstances of the offending and of the offender even though the offence is the same. Nevertheless, consistency in sentencing remains something which the courts should strive to achieve, that being a matter of “abiding importance to the administration of justice and to the community” – Lowe v. The Queen[7]. Thus, it is sometimes useful to look at earlier sentences that were imposed for the offence in question to see if they throw any light on the question whether the impugned sentence is plainly out of range.
[6]See, for example R. v. Boaza [1999] V.S.C.A. 126 at [44].
[7](1984) 154 C.L.R. 606 at 611 per Mason, J. See also R. v. Carey [1998] 4 V.R. 13 at 18 per Winneke, P.
In that very limited context I refer to Director of Public Prosecutions v. Lepore[8]. As the name of the case suggests, this was an appeal by the Director against sentences that were imposed on the respondent who had pleaded guilty to two indictable offences and four summary offences arising out of his driving of a motor vehicle. One such offence was breach of s.61(1)(a) of the Act. At the time of sentencing the respondent was aged 25 years. He had never held a driving licence and had been repeatedly disqualified from obtaining one on account of manifold convictions for driving offences. On the day in question, the respondent drove his unregistered van against a red light and knocked down and killed a 70 year old female pedestrian who had taken three steps on the way to crossing the road with a green pedestrian light in her favour. He then drove away at high speed and was later chased by the police over a considerable distance. In the course of the chase the speed of his van varied between 80 and 100 kilometres per hour. It also involved his driving the van over a concrete median strip, overtaking vehicles, crossing double lines, going through a red intersection light and eventually coming to an abrupt halt after having mounted a kerb on to a nature strip. The respondent then ran from the vehicle, but he was pursued and caught by the police. Upon his arraignment he admitted 96 prior convictions from 12 court appearances. No less than 44 of them were offences in connection with the driving of a motor car and kindred offences. There were 10 convictions for being an unlicensed driver, 12 for driving an unregistered vehicle, 7 for fraudulently using number plates and fixing false number plates on the vehicle, 4 for exceeding the speed limit, 7 for driving while disqualified, 3 for exceeding the prescribed blood alcohol concentration and 1 for driving in a dangerous manner. It is not surprising that Tadgell, J.A. described[9] the respondent’s criminal conduct as manifesting a “continuing attitude of disobedience to the law”. As I have said, he pleaded guilty to, inter alia, the charge of failing to stop his motor vehicle after the accident in question contrary to s.61(1)(a) of the Act and in respect
of that offence he was sentenced by the primary judge to six months’ imprisonment. The Director’s appeal in relation to that (and the other sentences imposed below) was upheld and the respondent was re-sentenced by this Court in respect of the offence in question to 12 months’ imprisonment, six months of which were ordered to be served concurrently upon the sentence already being served by the respondent. It is at once apparent that this case is devoid of the very many, and serious, aggravating circumstances that existed in Lepore. And although that case is, in many relevant respects, different from the one now under consideration, and notwithstanding that it was a Director’s appeal, the sentence of 18 months’ imprisonment imposed on the applicant here seems to be out of proportion with that imposed in Lepore.
[8][2000] V.S.C.A. 195.
[9]At [22]. See Veen v. The Queen (No. 2) (1998) 164 C.L.R. 465 at 477 and see R. v. Scholes [1999] 1 V.R. 337 at 347-348.
In all the circumstances, I consider that the impugned sentence is outside the range of sentences that were reasonably available. The sentencing discretion having been thereby re-opened I agree with the other members of the Court that in lieu of the sentence of 18 months’ imprisonment on account of failure to stop a sentence of 12 months’ imprisonment should be imposed, and that six months of it be served cumulatively upon the sentence of three years’ imprisonment imposed in relation to the count of negligently causing serious injury. That would produce a total effective sentence of three years and six months. I would also order a non-parole period of two years and six months.
EAMES, J.A.:
I have had the advantage of reading in draft the judgment of Smith, A.J.A. and I adopt his Honour’s summary of the circumstances of the offences and of the history of the proceedings.
When the matter first came on for sentence in the County Court on 28 October 2002 the applicant was presented only on the count of negligently causing serious injury, to which he pleaded guilty. Shortly after submissions commenced the judge
queried whether “driving off, with no attempt to ascertain what’s happened or render assistance, is an aggravating circumstance”. The prosecutor said that a charge had been brought of failing to stop, contrary to s.61(1)(a) of the Road Safety Act 1986, together with an offence in relation to exceeding .05%, and those informations were to be dealt with in the Magistrates' Court at a later date. His Honour expressed the view that the charges should be dealt with together and then, with the consent of counsel then acting for the applicant (who was not counsel who appeared on the appeal), the prosecutor purported “to file two informations” and upon being arraigned on those counts the applicant pleaded guilty to failing to stop after an accident and exceeding .05 blood alcohol content.
The procedure adopted failed to take into account that the offence of failing to stop after an accident, being an indictable offence, could not be dealt with under s.359AA of the Crimes Act and could only proceed in the County Court if the applicant was first committed for trial on that count. It was that error which in due course occasioned committal proceedings to be conducted on the charge of failure to stop and a fresh hearing in the County Court on sentence with respect to that charge to be conducted on 22 September 2003. The considerable delay which resulted from the initial mistake was, of course, no fault of the applicant’s.
Although the delay in final disposition of the case in the County Court was very unfortunate I have concluded that the uncertainty which that might have occasioned to the applicant was not such as to justify interfering with the sentence which was ultimately imposed. I am, however, persuaded that the sentence ultimately imposed for the offence of failing to stop and the order made as to cumulation betrayed error.
During the plea on the first sentencing occasion his Honour had queried whether an aggravating circumstance of the offence of negligently causing serious injury was applicant’s conduct in “driving off, with no attempt to ascertain what’s happening or render assistance”. Subsequently, as earlier discussed, the count of failing to stop was added to the presentment. In delivering his remarks on sentence on that occasion, 29 October 2002, his Honour, at the outset, identified the additional offence to which the applicant he had pleaded guilty as “one charge of failing to stop after an accident and render assistance”. Later in those sentencing remarks, after describing how the accident had “for all practical purposes, destroyed Mr Tadula and ruined the lives of his parents, not to mention the harm done to the life of his sister”, and after dealing with the need for general deterrence his Honour said:
“I have not treated your failure to stop and render assistance as an aggravating circumstance, but rather as a subsequent and discrete crime deserving of a severe penalty, but allowing some discount for your plea of guilty.” (My emphasis).
The requirement that a driver after an accident “must immediately render such assistance as he or she can” is a discrete offence, created by s.61(1)(b), distinct from the offence created by s.61(1)(a) which imposes an obligation to “immediately stop the motor vehicle”. Were the applicant to be sentenced, pursuant to s.61(1)(a), both for his failure to stop and also for his failure to render assistance then, arguably, error in principle would occur: see R. v. Newman and Turnbull[10]. The question arises whether his Honour did fall into that error.
[10][1997] 1 V.R. 146.
In re-sentencing the applicant on 23 September 2003 on the count of failing to stop the learned sentencing judge adverted to his remark on the earlier occasion, where he had said that he would treat the “failure to stop and render assistance” as a discrete offence from the count of negligently causing serious injury. His Honour said as to that earlier remark:
“I did not intend thereby to state that I was sentencing you in respect of both; failure to stop, and failing to render assistance. Indeed, in sentencing you I specifically referred to the charge of failing to stop after an accident. Nevertheless, in determining the appropriate sentence I did take into account the immorality of driving on in a context where you must have had a good idea of what you had done, and leaving Mr Tadula alone on the roadway.”
His Honour was there referring to the words he employed when announcing sentence on the earlier occasion. His Honour then said: “On the charge of failing to stop after an accident, you will be sentenced to 18 months' imprisonment”. However, as I have noted, at the outset of those sentencing remarks his Honour had referred to the charge as being one of “failing to stop after an accident and render assistance”.
No ground of appeal complained expressly that his Honour had erred by having regard to the applicant’s failure to render assistance. Accordingly, no report was made by the learned sentencing judge to this Court as to that suggestion. Counsel agreed that this Court could not go behind his Honour’s statement on the second occasion of sentencing in which his Honour said that he appreciated, at the time, that the charge was one of failure to stop, not failure to stop and render assistance. Counsel submitted, however, that in his sentencing remarks on the second occasion his Honour said that he did take into account the fact that the applicant “must have had a good idea of what you had done, and leaving Mr Tadula alone on the roadway.”
Whilst those remarks by his Honour do suggest that he may have treated as an aggravating factor in the failure to stop offence matters which might well have constituted an offence of failing to render assistance there might well be circumstances surrounding a serious driving incident which were relevant to either charge. No doubt the primary matter to which the count of failure to stop is directed is to ensure the identification of the driver and to facilitate the prompt investigation of the circumstances of the accident (including testing for blood alcohol content).
The offence of failing to render assistance, on the other hand, undoubtedly focuses attention on circumstances where the offending driver could have provided assistance but simply failed to do so. Thus, even when a driver stopped at the accident scene it would constitute an offence under s.61(1)(b) if the driver then failed to assist those who had been injured in the accident, the obligation being to render “such assistance as he or she can”.
In circumstances where no charge of failing to render assistance had been brought, either because the facts could not have supported such a charge or else by virtue of omission on the part of prosecuting authorities, the attitude of the offender towards his own conduct and its consequences might well remain relevant on sentencing for the offence of failure to stop. Thus, even if the offender could not, in fact, have rendered any assistance at the scene a demonstrated lack of concern about the victim at the time of the accident might well be treated as an aggravating feature of an offence of failing to stop. It may well have been that his Honour, in this case, was intending by his remarks to identify such an aggravating feature on the count of failing to stop, and was not purporting to punish the applicant, in addition to his punishment for the offence of failure to stop, for an offence of failure to render assistance.
His Honour’s remarks do, however, create some uncertainty as to the use he made of the immorality of the applicant leaving Mr Padula alone on the road. The injuries suffered by the victim were so severe that sentence would be bound to be increased if the judge had regard to the fact that the offender could have rendered assistance to him but failed to do so. That, however, was not the offence on which the applicant was being sentenced.
Notwithstanding the judge’s recognition that the offences of failing to stop and failing to render assistance were discrete offences the length of the sentence which was actually imposed for failure to stop and the fact that it was made wholly cumulative on the sentence for negligently causing serious injury suggest to me that an underlying assumption that the applicant failed to render assistance intruded as an aggravating factor of the failure to stop. It may be said that the maximum sentence of two years imprisonment for the offences of failure to stop and failure to render assistance are very low having regard to the potential seriousness of the offences. Having said that, however, for the reasons given by Smith, A.J.A. the circumstances in this case did not justify the imposition of an 18 month sentence on the count of failure to stop and the sentence was manifestly excessive on that count.
I agree, too, with Smith, A.J.A. that the total cumulation of the sentence for failure to stop upon the sentence of negligently causing serious injury cannot be justified. By s.16(1) of the Sentencing Act 1991 the sentences were to be served concurrently “unless otherwise directed by the Court”. Neither on the first occasion nor on the second sentencing occasion did his Honour explain why it was that orders of cumulation, and in particular total cumulation, were made in this case, save for his Honour’s statement on the first occasion that the offence was “a subsequent and discrete crime deserving of a severe penalty.” Mr Taft did not seek to argue that some measure of cumulation was not appropriate, and that concession was properly made. In all the circumstances, however, the order of cumulation, in my view, was excessive.
The sentencing discretion being re-opened, in my opinion, in lieu of the sentence of 18 months' imprisonment on the count of failure to stop a sentence of 12 months' imprisonment should be imposed. In my view the appropriate order for cumulation is that 6 months of that sentence be served cumulatively upon the sentence on the first count. That would produce a total effective sentence of three years and six months and I would order that a non-parole period of two years and six months be imposed.
SMITH, A.J.A.:
On 29 October 2002, the appellant, Grant Adrian Fairley, was sentenced in the County Court to three years imprisonment on a charge of negligently causing serious injury. He was also sentenced to 18 months imprisonment cumulative upon the above sentence on a charge of failure to stop after an accident. The total effective sentence was 4 years and 6 months. A non-parole period of 3 years was fixed. An order was made cancelling all licences and permits to drive and he was disqualified from driving for 5 years. He had pleaded guilty to those charges - as he had to a third charge of exceeding the prescribed percentage of blood alcohol content, a
charge for which no penalty was entered.
The appellant sought leave to appeal against the sentences. On the hearing of the application issues were raised about the power of the County Court to pass sentence on the second charge. As a result, the application to the Court of Appeal did not proceed and proceedings were brought by the Crown to set aside the orders made in respect of, and arising out of, the second charge. This application was successful and orders were made on 5 August 2003 declaring that the County Court did not have jurisdiction to hear the second charge and the second charge was remitted to the Magistrates’ Court of Moe for hearing and determination according to law. Orders were also made declaring that the County Court did not have jurisdiction to pass a total effective sentence or cancel all licences to drive and those orders were set aside and those matters remitted to the County Court to the original sentencing judge.
On 16 September 2003, the appellant was committed for trial on the second charge of failing to stop after an accident. On 22 September 2003, at the County Court, a presentment was filed raising the second charge of failing to stop. The appellant again pleaded guilty. A plea was then heard in respect of the failure to stop charge, the total effective sentence and licence disqualification. The hearing took place before the same judge. He imposed the same sentences he had originally imposed save for the period of licence disqualification. A total effective sentence of four years and six months imprisonment was imposed and a non-parole period of three years was fixed. His Honour took judicial notice that a period of 330 days had already been served of the current term of imprisonment. As to the licence disqualification issue, His Honour ordered that all licences and permits to drive were cancelled and that the appellant was disqualified from driving for a period of three years effective from 29 October 2002.
The appellant appealed against both sentences but at the hearing confined his argument to the sentence imposed on the second charge of failing to stop and the cumulation of that sentence with the sentence on the negligent driving charge. He argued that -
•the sentence imposed on the second charge was manifestly excessive
(ground 1),
•the learned sentencing judge placed too much weight on general deterrence and insufficient weight on the individual circumstances of the applicant, including failing to take into account sufficiently or at all, his personal circumstances including employment prospects, previous good character and remorse (ground 3),
•His Honour failed to take into account the effect on the applicant of the delay and uncertainty in determining sentence (additional ground) and
•His Honour was in error in any event in ordering total cumulation of both sentences (ground 2) .
The maximum penalty for negligently causing serious injury is 5 years imprisonment. The maximum penalty for failing to stop after an accident is two years imprisonment.
The events giving rise to the charges occurred on 10 December 2000 on the Princes Highway, Traralgon at approximately 5:20 am. Peter Padula, then aged 30, was walking in a westerly direction on the highway and was struck by a car driven by the appellant. Shortly prior to the collision he was seen walking in the parking strip of the dual carriage-way highway attempting to hitchhike home. Whether he was still on that part of the carriage-way when struck by the car driven by the appellant is not known. He had been out the previous night and it was apparently his usual practice to walk, hitchhike or travel home by taxi on such occasions. A person who saw him walking prior to the collision, Mr Welch, gave evidence that he was two metres from the traffic lane. He said he was wearing dark coloured clothing. He gave evidence that the street lighting was on and that it was starting to get light. He also gave evidence that he could see Mr Padula clearly for about 100 metres. Another witness, Mr Hayes, who was walking east, heard the crash and saw a person’s body going over the car. He said the person had dark trousers. He described the car as increasing its speed after the collision. His evidence was that it was reasonably light at the time and that a person would be easily seen for some distance.
The appellant drove home. When he arrived he spoke to his parents. He then rang the police at 5.32 am. He told them that his car had been parked in Grey Street near a saloon bar and that when he went to go home he found it damaged.
The police came to his home. Plainly, they quickly made the connection and took him to the police station. A breath test was conducted there approximately 2 hours (7.29 am) after the collision. He was found to have a blood alcohol reading of 0.14. He maintained then, and has maintained ever since, that he has no recollection of the incident in which Mr Padula was so severely injured.
The speed limit in the area where the collision occurred was 80 kilometres per hour. An accident reconstruction expert concluded that the speed prior to impact would have been towards the high end of the permitted range.
The injuries to Mr Padula were many and extremely severe. In particular, he suffered severe brain damage which has left him helpless, unable to feed himself and unable to communicate. He will require full nursing care for the rest of his life. The effect on his family has been devastating.
The appellant does not now challenge the sentence imposed on the charge of negligently causing serious injury. His challenges are to the sentence on the charge of failing to stop and the cumulation order.
The first question to consider is whether the appellant has established that the sentence on the charge of failing to stop is manifestly excessive.
The breach was a serious one. It should be accepted on the evidence, as His Honour did, that the appellant must have been aware of the collision with Mr Padula and the seriousness of what he had done. It was also a situation where the appellant must have been aware that he had had too much to drink and that this would be detected if he remained at the scene. On the evidence, the appellant must have been aware that it was likely that the pedestrian had been seriously injured and could have been killed. The case is not one, however, where the appellant tried to maintain the full benefit of his breach of the law for any length of time. He contacted the police at about 5.32 am - within 10 to 15 minutes of the collision. It is true that he gave a false account of what occurred but assuming, as His Honour did, that he knew that his car had collided with the pedestrian, he must have known that by contacting the police his identity as the driver would be revealed, as would his drinking. By doing so, he denied himself most of the benefit of his flight and significantly addressed his breach of the law. In my view, therefore, the appellant should not have been sentenced, as he appears to have been, on the basis that he committed one of the worst breaches of the offence of failing to stop. On that basis alone the sentence was manifestly excessive.
If there be any doubt, however, it is removed when regard is also had to the matters which the appellant was able to advance in mitigation when sentenced by His Honour.
His Honour found that there was "a measure of remorse" but, on the basis of his observations of the appellant in the witness box, said that he was not persuaded that the remorse was "as profound as might well be expected". I proceed on the basis of that assessment on that issue. Due allowance also has to be made for the fact that he had pleaded guilty at the first available opportunity and so minimised cost and expense to the community and reduced the distress for the victim’s family. In addition, the appellant was aged approximately 30 and had, but for a minor traffic offence, lived in the words of His Honour, "a blameless life". He had found his vocation as a teacher but, as His Honour found, imprisonment would in all probability bring that career to end. While studying to be a teacher, he had worked as a teacher’s aid and His Honour accepted that he had impressed his colleagues and superiors at work as a person and in his instructing and teaching.
When regard is had to the above, it is clear, in my view, that the sentence on the charge of failure to stop was manifestly excessive. Ground one is therefore made out. So also is ground three. It is not necessary to rule on the other grounds of appeal. The sentence should be set aside.
In determining the appropriate sentence it is relevant to consider, inter alia, what occurred after he was originally sentenced. In particular, regard should be had to the additional burden imposed upon him of the uncertainty and delay caused by the procedural error that was made and the time for which that continued. Regard should also be had to his behaviour and performance in the prison system. His Honour considered these matters and was of the view that they did not warrant a different result. In this I disagree. In particular, allowance should be made for the impact on the appellant of the delay resulting from the regrettable procedural errors that occurred when he was sentenced on the first occasion. It was the responsibility, first, of His Honour who pressed the Crown and the appellant to have sentence passed on all charges at the one time and, then, that of His Honour and counsel who overlooked the procedural limitations. The appellant was not responsible.
Weighing up these and the other relevant matters, I have come to the conclusion that a sentence of 12 months imprisonment is appropriate on the charge of failure to stop. As to the issue of cumulation, while there is an obvious close connection between the offence of failure to stop and the offence of negligently causing serious injury, the criminality of the act of failing to stop is such that there should be some cumulation to mark the seriousness of the breach and to have due regard, in particular, to general deterrence. To that end, it should be ordered that six months of the sentence be served cumulatively with the sentence of three years. The result, therefore, will be an effective head sentence of imprisonment of three years and six months. A non-parole period of two years 6 months would be appropriate. Of particular relevance in fixing the non-parole period is the seriousness of the offence of negligently causing serious injury and the need to preserve the deterrent effect of the sentence for that offence.[11] I consider that it should not impede the rehabilitation of the appellant.[12]
[11]R v Woolnough, unreported C of CA, 4.6.81.
[12]R v Doodt, unreported Court of Appeal, 12.7.95.
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