R v Heasley - [2007] SADC 138

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HEASLEY
[2007] SADC 138
Decision of His Honour Chief Judge Worthington
19 December 2007
CRIMINAL LAW - GENERAL MATTERS
Sentencing - Criminal Law (Sentencing) Act 1988 s32(5)(ba), s32(10)(d) and (e), s32A(2) and (3) - defendant guilty of causing serious harm (paraplegia) to victim by dangerous driving - victim requires use of a wheelchair and some help from others in daily living - defendant sentenced to 2 years 3 months in prison for that offence - whether defendant has committed "a serious offence against the person" within meaning of s32 (10)(d) of Criminal Law (Sentencing) Act thereby requiring court to fix a minimum non-parole period of four-fifths length of sentence under s32(5)(ba) - criteria - meaning of "incapable of independent function" and "total incapacity" in s32(10).
Held: Not a "serious offence against the person" as defined in s32(10)(d) and (e) - no mandatory minimum non-parole period.
Criminal Law Consolidation Act 1935 s19A(3); Criminal Law (Sentencing) Act 1988 ss32(5), s32(10), s32A; Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 s11; Insurance Contracts Regulations 1985 (Cwlth) Reg 18, referred to.
Teubner v Humble (1962-1963) 108 CLR 491; QBE Insurance Limited v Jande (1994) 8 ANZ Insurance Cases 61-270, considered.

R v HEASLEY
[2007] SADC 138

The defendant, Isreal Turei Heasley was sentenced in this court today for a number of offences, the most serious being that on 20 July 2006 he drove a motor vehicle at Largs Bay in a manner which was dangerous to the public and thereby caused serious harm to Phillip Taupe Thomas, contrary to s19A(3) of the Criminal Law Consolidation Act 1935. After taking into account his early plea of guilty I imposed a head sentence on that count of 2 years 3 months in prison.
He was before the court for sentence also on two other driving offences committed that day as well as for breach of a bond and, because of that breach, for sentence on five offences committed in 2004. The details of offences other than causing harm by dangerous driving are not relevant for present purposes but, after imposing penalties for those offences, the end result was a total effective sentence of 2 years 10 months and 6 weeks with a non-parole period of 1 year 9 months, both deemed to have commenced on 27 November 2007 when I revoked bail and remanded him in custody. He is also disqualified from holding or obtaining a driver’s licence for a period of 8 years.
In fixing the non-parole period I declined to apply s32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) which provides that in certain circumstances there is to be a mandatory minimum non-parole period that is four-fifths the length of the sentence. These are my reasons for that decision.
The details of the offending are set out in my sentencing remarks but, as relevant here, the facts can be summarised as follows. The defendant was driving a car south along Victoria Road, Largs Bay with four passengers, including Mr Thomas who was seated behind him. The defendant’s blood alcohol content was about 0.178%. He was speeding and driving aggressively, weaving in and out of traffic. As the car entered a sweeping right hand bend he lost control of it. The car went into a slide, hit the median strip and rolled over a number of times. Mr Thomas says that he undid his seat-belt shortly before the rollover so that he could lean forward and remonstrate with the defendant about the way he was driving. Mr Thomas was thrown from the car and as a result, he is a paraplegic. Among his injuries was a fracture dislocation at the L1-2 level of the spine with essentially complete neurological loss below that level.
Section 32(5)(ba) of the Sentencing Act is one of a number of amendments to that Act made by the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (“the Amending Act”) which came into operation on 1 November 2007. As relevant here, those amendments apply whether the offence for which sentence is being imposed was committed before or after 1 November 2007: cf. s11 of the Amending Act.
The effect of s32(5)(ba) of the Sentencing Act is that, when a defendant is sentenced to imprisonment for “a serious offence against the person”, any non-parole period fixed by the court must be no less than four-fifths the length of the sentence. Section 32A of the Sentencing Act provides, inter alia, that the court may fix a longer non-parole period under certain circumstances or may fix a non-parole period that is shorter than the prescribed minimum if there are “special reasons”, and ss(3) sets out the only matters that can constitute “special reasons” for that purpose. It is unnecessary to go further into that.
As relevant here a “serious offence against the person” is defined in s32(10)(d) of the Sentencing Act as:
(i) a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity; or
(ii) . . . . . . . . . . . . . . . . . . . . . .
Section 32(10)(e) provides:
a victim suffers total incapacity if the victim is permanently physically or mentally incapable of independent function.
The offence of causing harm by dangerous driving is a major indictable offence. It is submitted by Ms Ballard, for the DPP, that the offence committed by the defendant has resulted in Mr Thomas suffering total incapacity within the meaning of s32(10)(e), in that he is “permanently physically ……….. incapable of independent function”, and that, therefore, the starting point for the court in fixing a non parole period is the requirement in s32(5)(ba) that there be a minimum non-parole period of four-fifths the length of the sentence for that offence.
The information put before the court is that Mr Thomas lives at home and is able to do many things for himself although, because he has no neurological function below the level of L1-2, he must use a wheelchair. He does not require any help to get into and out of bed, to go to the toilet, to shower or to dress himself, although these activities are more arduous and take longer than they did before he was injured. He has a driver’s licence and if he had access to a modified vehicle with suitable controls (which he does not have yet) he would be able to drive himself around. However, he needs some assistance with cooking, cleaning and shopping. It is common ground that his condition has stabilised and that it is permanent: Statement of Agreed Facts supplied to the court on 5 December 2007. He played regular sport, especially football, but cannot do that now. His last job involved operating heavy equipment but that would not be open to him. There are restrictions on his social life and his ability to engage generally in recreational activities. There has been a catastrophic effect on his sex life.
It is the Director’s submission that although Mr Thomas may be able to carry out the activities mentioned, as he cannot do so without the assistance of a wheelchair, he is “incapable of independent function” and, therefore, s32(5)(ba) comes into operation. Ms Ballard refers to The Macquarie Dictionary where the word “function” is defined as “the kind of action or activity proper to a person” i.e., normal or everyday activity. The Macquarie Dictionary defines “independent” to mean, as relevant, “not dependent; not depending or contingent on something else for existence, operation, etc.” She submits as follows. Mr Thomas is dependent on a wheelchair for mobility because he cannot walk, and as the ability to walk is a normal activity for a person, he is physically incapable of independent function and, therefore, the offence has resulted in him suffering total incapacity within the meaning of s32(10)(d)(i). Thus, she submits, the offence is a “serious offence against the person” and the provisions of s32(5)(ba) have been triggered.
Ms Demertzis, for the defendant, submits that “function” in the context of “total incapacity” refers to the more basic activity of staying alive and that before a person could be said to be incapable of “independent function”, he or she would have to be dependent on some form of fundamental life support e.g., a respirator, assisted feeding, etc. She submits that as this is not the case for Mr Thomas, the criteria for requiring a mandatory minimum non-parole period are not met.
The Second Reading Speech of the Attorney General when introducing the Amending Act is of limited assistance. It simply records that the Bill introduces “minimum non-parole periods for major indictable offences resulting in the death or total permanent incapacity of the victim” and points out that the phrase “total incapacity” has the meaning given to it in what is now s32(10)(e) of the Sentencing Act: Hansard 8 February 2007, p 1744. In my opinion there is no warrant for the narrow meaning of “function” contended for by the defendant. It gets no support from any of the meanings set out in The Macquarie Dictionary. It is not unreasonable to say that if Parliament had meant the amendment to refer to the mere continuation of life it would have used a word such as “existence”.
However, given the context in which it appears, I cannot accept the Director’s submission about the meaning of the phrase “incapable of independent function”. The word “independent” is protean and will take its meaning from the context in which it appears. Here it is part of a sub-section that describes what is meant by total incapacity. In my opinion it is significant that the sub-section concerns itself with total incapacity and not with a condition described as, for example, “substantial incapacity” or “serious incapacity”, which, depending on the circumstances, may amount only to partial incapacity.
What constitutes total incapacity in given circumstances will be governed by the context in which it is being considered and, in particular, any description or definition that is applicable. These amendments have been in operation for only a few weeks and, as far as can be ascertained, this is the first time this issue has arisen for consideration. Thus, there is no case law directly on point but it is instructive to have regard to other branches of the law.
The difference between total and partial loss of earning capacity can be fundamental to an assessment of damages for personal injury at common law. In assessing whether the effect of an injury has been a total or partial loss of earning capacity, the court will regard a person’s pre-accident capacity as an asset, determine whether there has been total or partial destruction of it and evaluate the loss accordingly. Windeyer J explained the application of that principle in Teubner v Humble (1962-1963) 108 CLR 491 at 505-506:
Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: First, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical: Secondly, . . . . . . . . . . . .
In the first category there is usually one element that is, up to a point, calculable by conventional means, namely the economic loss that a permanent or temporary destruction or diminution of earning capacity causes. This is commonly called ‘loss of earnings’, sometimes ‘loss of working time’. There has recently been a good deal of discussion of these descriptions in text books and articles. I think that the damage arises really from the destruction of a faculty or skill, and that is the best way in which to consider its assessment. The sum that might have been earned by the exercise of a faculty or skill then becomes the measure of the economic value to the individual of the faculty or skill in respect of which he has been damaged.
The distinction between total disablement and partial disablement is commonplace in sickness and accident insurance. Ordinarily, a phrase such as “totally and permanently disabled” will be defined in the policy and ultimately that will determine the meaning to be given to it. But there is a reference of more general application in Regulation 18 of the Insurance Contracts Regulations 1985 (Cwlth) which declares total disablement and partial disablement to be prescribed events for certain purposes under the Insurance Contracts Act 1984 (Cwlth). Regulation 18(b) refers to “the total disablement of the insured person from carrying out all the normal duties of his or her usual occupation” and Regulation 18(d) refers to “the partial disablement of the insured person from carrying out the normal duties of his or her usual occupation”. These were the subject of consideration by the NSW Court of Appeal in QBE Insurance Limited v Jande (1994) 8 ANZ Insurance Cases 61-270, and in particular by Sheller JA at p76,035 where he said:
No distinction is drawn between permanent and temporary disablement. But the distinction is made between total disablement from carrying out all the normal duties of his or her usual occupation and partial disablement from carrying out the normal duties of his or her usual occupation. These composite phrases must, I think, be construed as meaning on the one hand that the insured person is unable to do any part of his or her business and on the other is unable to do some part of his or her business.
[Emphasis by Sheller JA]
These comments must be understood in light of the wording and purpose of the regulation but it is helpful when considering the meaning to be given to “incapable of independent function” in s32(10)(e) to have regard to the practical difference between total incapacity and partial incapacity in areas of law such as those I have mentioned. In my judgment, the context does not justify finding that it means that a person is “incapable of independent function” if that person is in any way reliant on assistance from another person or a device. For example, it would offend commonsense to say that someone who has a prosthetic leg is incapable of independent function because that person cannot walk without it.
In my opinion, in the context of s32(10(e) “independent function” means being able to carry out a reasonable range of normal activities, i.e., to look after oneself, albeit with some assistance from other people or a mechanical device such as a wheelchair. The need for some assistance means that there has been an impairment of that person’s capacity for independent living, but that is not to say that this capacity has been destroyed to the point where it can fairly be said that the injured person is no longer capable of independent living at all. Although not determinative, such an approach is also consistent with current community attitudes that encourage support and assistance to individuals with a disability so that they can function as independently of others as is possible.
The point at which the degree of impairment of a person’s capacity to look after himself or herself is such that it should no longer be classed as partial incapacity and be regarded as total incapacity is something that will need to be assessed in the individual circumstances. In my opinion it is not possible to lay down a hard and fast rule. Mr Thomas has suffered great personal deprivation as a result of very serious injuries and there are many restrictions on what he can do. However, he is able to live by himself and to carry out many normal activities using his wheelchair although he does require help with some tasks. His ability to live independently in the sense I have described has been permanently diminished but not to the point where he could be said to be incapable of it.
For these reasons I am not satisfied that Mr Thomas has suffered total incapacity within the meaning of s32(10) of the Sentencing Act and, therefore, in fixing a non-parole period, the court is not required to have regard to s32(5)(ba).