R v Loeschnauer
[2022] ACTSC 30
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Loeschnauer |
Citation: | [2022] ACTSC 30 |
Hearing Date: | 1 and 18 February 2022 |
DecisionDate: | 25 February 2022 |
Before: | McWilliam AJ |
Decision: | See [87] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – culpable driving causing death – driving with alcohol in blood – driving with prescribed drug in blood – plea of guilty – high level of moral culpability – remorse |
Legislation Cited: | Corrections (Management) Act 2007 (ACT) s 53 Crimes Act 1900 (ACT) s 29 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 20 |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Coggan v R [2013] ACTCA 49 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | The Queen (Crown) Peter James Loeschnauer (Offender) |
Representation: | Counsel P Dixon ( Crown) J Pappas ( Offender) |
| Solicitors ACT DPP ( Crown) Hugo Law Group ( Offender) | |
File Number: | SCC 228 of 2021 SCC 229 of 2021 |
McWilliam AJ:
Before the Court for sentence is Peter James Loeschnauer (the offender), who has pleaded guilty to the following offences:
(a)CAN 9856/2021: Culpable driving causing death, contrary to s 29(2) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 14 years’ imprisonment and an automatic licence disqualification of 6 months or, if the Court orders a longer period, the longer period.
(b)CAN 3314/2021: Drive a motor vehicle with alcohol in blood (level 4), contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Road Transport Act). The maximum penalty for this offence is 9 months’ imprisonment, a fine of $2,400, or both, and an automatic licence disqualification of 3 years or, if the Court orders, a shorter period that is at least 6 months.
(c)CAN 3315/2021: Drive with prescribed drug in blood contrary to s 20(1) of the Road Transport Act. The maximum penalty for this offence is a fine of $1,600, an automatic licence disqualification of 3 years or, if the Court orders, a shorter period of disqualification that is at least 6 months.
Facts
The facts were agreed as between the Crown and the offender. At 1:08am on Monday 8 March 2021, at Hume in the ACT, the offender drove a car in such manner as to collide with another car being driven by Mr Lachlan Alan Seary (born 18 March 2001). The force of that collision caused Mr Seary’s car to leave the road and hit a tree. He suffered fatal head injuries because of the collision and died at the scene.
The offender was arrested at the scene. He was taken to the Canberra Hospital. At approximately 3:00am, the offender provided two blood samples. Both samples revealed the presence of alcohol at a level of 0.183 and MDMA, a prescribed drug.
Subsequent investigations revealed that the offender was driving at approximately 150 km/h on a stretch of road with a posted speed limit of 80 km/h at the time of the collision.
The culpable aspect of this driving offence requires consideration of the two alternative limbs of s 29(6) of the Crimes Act. The first is “negligence”, defined in s 29(7) as being the failure “unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances” while driving the vehicle. The second is “driving while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle”. The facts that bring the offence within either or both of those limbs plainly arise here.
The circumstances leading up to the collision included the fact that the offender had been drinking since the early afternoon on Sunday 7 March 2021. He first met friends at the Fenway Public House in Woden at approximately 1:00pm. While he was there, he consumed at least 7 alcoholic drinks including beer, Jack Daniels mixed with soft drink, and a shot of some other type of alcohol. He left around 7:20pm, walked back to his car and drove home to Gilmore.
Not long after returning home, the offender borrowed his father’s car, a 2017 blue coloured Honda Civic sedan, ACT registration YME30J (the Honda Civic) and drove from Gilmore to Canberra Civic; a distance of approximately 20 kilometres. He parked his car in a public car park and walked to Assembly bar on Lonsdale Street in Braddon, where he re-joined some of the friends that had been at Fenway Public House earlier that day. During the time the offender was at Assembly bar, he consumed between 10 and 12 standard alcoholic drinks (the precise number is not critical). That included beer, mixed spirits, and on two occasions, drinking directly from a bottle of spirits that was being passed around between his group of friends. The offender consumed his last alcoholic drink at about midnight. He stayed at the vicinity of Assembly until shortly before 1:00am. At that time, the offender returned to the Honda Civic. CCTV cameras captured the Honda Civic being driven by the offender exiting the carpark bordered by Cooyong Street and Scotts Crossing in Canberra Civic at 12:57am on Monday, 8 March 2021.
At 12:58am the offender turned right onto Scotts Crossing, then right again onto Bunda Street. The car’s permanent driving lights were illuminated. However, the headlights were not turned on. At about 1:02:42am, CCTV cameras again captured the offender driving east on Parkes Way, Reid.
At 1:06:16am, the permanent stationary speed camera located on the southbound lanes of the Monaro Highway, Fyshwick (near the Hindmarsh Drive overpass) captured the Honda Civic being driven by the offender at a speed of 149km/h. The sign-posted speed limit was 100km/h.
At about 1:08am, a blue coloured 2005 Toyota Corolla, ACT registration YKP17L (the Toyota Corolla), driven by Mr Seary, was travelling south on the Monaro Highway, Hume, ACT. Mr Seary was alone in the car. He had undertaken the role of designated driver that evening, and had just dropped two of his friends off at their homes in the suburbs of Googong and Jerrabomberra. He was driving back to his home in Wanniassa.
Approximately 215 metres past the intersection of the Monaro Highway and Sheppard Street in Hume, the offender’s Honda Civic struck the left rear panel of the Toyota Corolla. This caused the Toyota Corolla to rotate clockwise and leave the road to the right-hand side, mounting the grassed nature strip.
The Honda Civic spun out on the road surface, coming to rest approximately 117 metres further along the Monaro Highway. The Honda Civic also sustained substantial contact damage to the front right quarter of the car because of the collision, and Mr Seary suffered fatal head injuries, which resulted in his death.
Shortly after the collision, the driver of an Uber service travelling south on the Monaro Highway saw debris on the road and stopped. Mr Joshua Clarke, who was a passenger in the Uber, exited the car and approached the Honda Civic. He noticed the offender sitting in the driver’s seat with the driver’s door open and asked if he was okay. The offender replied that he was fine, and that he had hit a kangaroo. On the offender’s request, Mr Clarke began to help move the Honda Civic off the road before he saw the upturned Toyota Corolla on the nature strip.
Mr Clarke ran over to the Toyota Corolla and unsuccessfully attempted to rouse Mr Seary, who was still in the driver’s seat. Mr Clarke called triple zero and reported the collision at about 1:23am. Once emergency services arrived at the scene, Mr Seary was extricated from the vehicle. He showed no signs of life and further life saving measures were not attempted.
After returning a positive result to a roadside screening test for alcohol, the offender was taken into custody. While in police custody, he made several utterances which were captured on police body worn cameras, including that he “thought he hit a ‘roo’ and that he had consumed “five or six drinks that night”. At that point, the blood samples referred to above (at [3]) were taken.
The offender’s present custodial status
Although the offender was subsequently released from custody and has been complying with the conditions of his bail, following the sentencing hearing on 1 February 2022, it was accepted that no sentence other than a term of imprisonment was appropriate (s 10(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)) and bail was revoked. Accordingly, the offender has now spent 25 days in custody, which has been taken into account.
The Court’s sentencing task
In sentencing the offender, the Court must have regard to the considerations of s 33 of the Sentencing Act. The nature and circumstances of the offence (s 33(1)) have already been set out above and their objective seriousness is discussed below. To the extent that other considerations listed in s 33 are relevant, they have been interwoven in the discussion that follows below.
The Court must also sentence the offender having regard to the relevant sentencing purposes in s 7 of the Sentencing Act and I consider it instructive in this case to set them out. They are as follows:
7 Purpose of sentencing
A court may impose a sentence on an offender for 1 or more of the following purposes:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender;
(g)to recognise the harm done to the victim of the crime and the community.
It will be apparent from the above list that the sentencing objectives do not all point in one direction. There is a tension that the Court must balance between denouncing the conduct, punishing the individual offender and deterring him (in part by making him accountable for his choices, as he accepts must occur), deterring others from committing the same offence, recognising the harm to the victim and the community, and protecting the community, while still promoting the rehabilitation of the offender.
Whilst not giving the objective described in s 7(a) of the Sentencing Act any greater weight or significance, it is worth noting that the section refers to “adequate” punishment, and draws attention to the way in which punishment may be imposed as being just and appropriate.
Given the nature of the primary offence under consideration here, the purposes lying behind the sentencing task for any offender have been explained in order to emphasise what the Court is not doing: the sentence imposed by the Court is not intended to measure in years of imprisonment what cannot be measured – the catastrophic loss of Mr Seary’s life and its devastating consequences for Mr Seary’s family and friends.
As the offender’s counsel submitted, similar sentiments have been expressed in this Court by Refshauge J in R v Creighton (Supreme Court of the ACT, Refshauge J, 28 October 2010) (Creighton), later repeated by Murrell CJ in R v Richardson [2016] ACTSC 133 (Richardson) at [5], and adopted by Mossop J in R v Livas (No 2) [2020] ACTSC 116 (Livas (No. 2)) at [3]. In the last of those cases mentioned, Mossop J was sentencing a truck driver who, on the Monaro Highway in Hume, had collided with a stationary car. Inside were a family of four on their way to a toy store in Majura Park. The collision caused the four-year-old boy sitting in the back seat to die immediately from a catastrophic brain injury. His Honour stated at [3]:
To describe this case as a tragedy does not fully convey the raw suffering of the victim’s family which must be acknowledged in these proceedings. I adopt the language previously used by Justice Refshauge and the Chief Justice in cases like this:
I appreciate that no sentence I can impose will resolve the tragedy that the [family] of [the deceased victim is] experiencing and the trauma suffered by [the victim’s family]. The sentences I impose should not, in any way, be seen as reflecting on the value of the [life] of [the deceased victim]. It would be wrong to attempt any such equation for our law simply does not allow that to be made even were it possible. I have to judge [the offender] not merely according to the awfulness of the tragic results of his actions but in accordance with the law and the principles of sentence which I must apply.
The same may be said of the present case. The sentencing hearing was a humbling experience, providing a brief window into the sheer hell that has been visited upon the family of the victim whose life was lost. It was also an opportunity to hear from the offender, whose remorse and torment about what he had done was written across his face as he listened to the eloquent and evocative statements of the family members of Mr Seary. But it need hardly be said that no amount of time that the offender will serve in prison will rebuild what has been shattered, and the Court’s task is not to embark on such futility, but instead to deal with sentencing the offender in a way that brings the offender to account, acknowledges the awfulness of the offence, and looks to the future for the offender and to managing his integration with the community.
Objective seriousness
When considering the seriousness of the case before it, the Sentencing Court considers where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
That task is an objective one. It is determined without reference to matters personal to the offender. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].
The principles applying to this particular offence were discussed in helpful written submissions provided by the parties, parts of which I have incorporated or applied in what follows. The offence of culpable driving causing death carries a high level of objective seriousness as every case on the “spectrum” for this offence involves the loss of life. This case involves a similarly high level of moral culpability by the offender. The NSW Court of Criminal Appeal guideline judgment of R v Whyte and Ors [2002] NSWCCA 343; 55 NSWLR 252 (Whyte) sets out at [216] the factors which inform the objective seriousness in offences of aggravated dangerous driving occasioning death or grievous bodily harm:
(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
The above list set out by the NSW Court of Appeal in Whyte was itself an endorsement of what had been said in R v Jurisic (1998) 45 NSWLR 209 at 231 (per Spigelman CJ, with Wood CJ at CL, Sully, B M James and Adam JJ agreeing. While not binding on this Court, the list has been accepted as relevant to the offence of culpable driving causing death in this jurisdiction: see Monfries v The Queen [2014] ACTCA 46 (Monfries) at [89] per Murrell CJ, at [126]-[129] per Burns J, and at [196]-[199] per Ross J.
The present offence was not one where the offender was engaging in competitive driving or showing off, ignored warnings or was escaping police pursuit. However, it did involve a number of the aggravating factors referred to above. The extent and nature of the injuries inflicted on Mr Seary were catastrophic and although it was not formally pronounced until some-time later, his death must have been almost immediate. His loss of consciousness certainly was.
Crucially for the assessment of culpability, at the time of the offending, the offender was heavily intoxicated and under the influence of MDMA, whilst driving on a main road at over 40 kilometres per hour over the legal speed limit. The collision occurred as part of a 20-kilometre journey between the Assembly bar and the offender’s home. Such conduct exposed road users to an unacceptable level of risk. Moreover, it was an immediate and obvious risk of which the offender, as the holder of a current and unrestricted ACT drivers’ licence, ought to have been acutely aware.
As submitted by the Crown, the offending at issue was not due to “momentary inattention or poor judgment”, but rather resulted from a chain of conscious decisions made by the offender, whose culpability began with the decision to drive having already consumed a significant volume of alcohol and an illicit drug and was amplified with his choice to undertake that journey at dangerously high speeds.
The parties were at odds as to whether the conduct referable to culpability and objective seriousness included the earlier drinking at Fenway Public House, but I have not found the distinction to be material. Ultimately, the decision to speed home after a night at the pub or bar (or both) was entirely self-interested, reckless and irresponsible, resulting in high moral culpability.
Subjective circumstances
A Pre-Sentence Report (PSR) was provided to the Court. The majority of the subjective circumstances pertaining to the offender are contained within it. The following are relevant here (see ss 33(1)(m) and 33(1)(w) of the Sentencing Act):
·The offender’s age, background, upbringing and ongoing family relationships
·The offender’s employment
·The offender’s criminal history or antecedents
·The risk of reoffending or any ongoing risk to the community
·Any remorse demonstrated
The offender is 29. He was born and raised in Canberra. He had a stable and supportive childhood free of trauma, alcohol or substance abuse issues. He has always enjoyed a positive relationship with his parents, and they have both supported him through this horrendous downturn in his life course at his own hands. That support extended to the offender’s father giving evidence at the sentencing hearing. The father’s own fortitude in such circumstances is acknowledged, and his care and concern for his son’s mental health following the collision support the inference of a strong family environment which will act as a protective factor in due course. The offender intends, and is able, to return to the family home in which he has always resided upon being released from his custodial sentence.
The offender has been employed in a landscaping role since 2019 and has confirmed, with verification by his father, that this position will be made available to him upon his release from prison. This position is his primary source of income, and he has reported no significant debts. The fact that he had, and maintains, the ability to earn an income and that his finances were apparently stable (s 33(1)(n) of the Sentencing Act) is a further protective factor relevant to recidivism.
All of these positive and protective factors make it somewhat harder to understand the offender’s choices on March 7 and 8 last year. The offender does have some criminal history, which includes offences of riding in a motor vehicle without consent, trespass, using an uninsured and unregistered vehicle and driving without a licence, for which he received and satisfied fines, a disqualification of his driver’s licence and a Good Behaviour Order. The purpose of considering an offender’s criminal record was explained in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8 and repeated in this jurisdiction by Refshauge J in Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [38]. Without setting out the well-known passage, an offender’s criminal history might be relevant to assessing “whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law”. Here, all of the offender’s criminal history relates to an isolated incident when the offender was 18 years old, and as such was conceded by the Crown as being of “little moment”. I accept the submission. It does not suggest there was any course of conduct that demonstrates an attitude of a lack of respect for the law.
The offender was assessed as a medium to low risk of general reoffending. His vulnerabilities relate to the offender’s use of illicit substances. He reported previously being a very infrequent user of MDMA, a regular user of cannabis and a social drinker. Following the night of the current offences, he ceased all drug use and has only had one beer at Christmas with his father present.
In relation to remorse for the offences and insight into his behaviour and its devastating consequences, there can be no question that this offender has felt the full weight of his actions. The offender’s father gave evidence of the offender’s reaction when he was told at the hospital (by his father) following the collision that he had hit a vehicle and that the driver of that vehicle had died at the scene. He cried out repeatedly, “what have I done?” He has since suffered Post-Traumatic Stress with anxiety and depression, and has engaged in fortnightly counselling and treatment by psychologists due to the events that are the subject of the present offences.
During oral testimony given at the hearing, the offender offered apologies to the family of the victim which I accept were sincere. He appeared to be at a bit of a loss to put his apology into words and he had not contacted the family between the date of the offence and the hearing to separately communicate his remorse. The reason he had not done so was because he “didn’t think it was the right thing to do”. His approach was not borne of any lack of respect for the victim’s family or lack of appreciation for their suffering. Having listened to the offender in the witness box, read the PSR and heard from the offender’s father, it appears to me that the offender felt so guilty and ashamed of what he had done that he did not consider himself worthy of approaching the family before his sentencing hearing. Both the Crown and the offender’s counsel accepted this view was open.
The offender’s acceptance of responsibility for the offences is addressed separately below.
Victim impact statements (s 33(1)(f) of the Sentencing Act)
There were seven victim impact statements read at the hearing on sentence. Six were read by the family members themselves and one was read by the Crown representative.
Counsel for the offender provided a list of written objections to parts of the victim impact statements and submissions, while accepting that the approach in R v Swift [2007] VSCA 52 at [4]-[9] (Swift) was appropriate. I respectfully agree with what was stated in Swift at [6] that a victim impact statement is not to be equated to Crown evidence, with statements required to be in admissible form. The purpose of a victim impact statement is two-fold. First, it facilitates the Court taking into account a mandatory consideration pursuant to s 33(1)(f) of the Sentencing Act as to the impact of the offence on the victim, the victim’s family and anyone else eligible to make a victim impact statement under the Sentencing Act (as to which see s 49). Second, it gives the victim or his family the opportunity to place before the Court, in their own words, the impact of the crime on them. It is pertinent to repeat the extract from DPP v DJK [2003] VSCA 109 at [17], which was cited in Swift at [6] as follows:
The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.
That is the approach I have taken in the present case.
It is important not to overlook the impact on the primary victim, Mr Lachlan Seary, who was not able to tell his story through a victim impact statement. In a sense, the impact on the primary victim has already been taken into account, as the victim’s death is an element of the main offence under consideration. I have included it here as the victim’s parents shared their anguish at him being deprived of what they described as life’s sacred moments, his 21st birthday, falling in love, his wedding, the birth of children, being an uncle, family events and supporting his friends and achieving his lifelong goal of playing the National Hockey League. The victim’s mother (Mrs Janice Seary) highlighted the stage of life that Mr Lachlan Seary had reached, saying:
Lachlan was just finding his feet, finding his place in the world, finding a future that he was planning and just beginning to live his best life – the future was well planned, worked hard for, and certainly looking bright.
The family members of the victim each gave the Court a very personal, detailed account of the impact on their lives and understandably, it has been nothing short of devastating. What follows is but a summary in a judgment, and it must be said that it does not properly encapsulate what the victim’s family told the Court they are going through. They have not yet been through the first anniversary of their son’s death, and it is clear that their grief is such that they can barely breathe.
The victim’s father (Mr Garry Seary) spoke of physical, psychological and emotional deterioration to the point of an inability to work, sleep, support his family and enjoy what is a strong relationship with his wife and remaining children. He has been diagnosed with Post Traumatic Stress Disorder and Agitated Clinical Depression, requiring mandated hospitalization and experienced suicide ideation. In his words, he is a broken man.
The victim’s mother described how hard it is to live every day since hearing that one of her children had died. She went into careful detail of what it was like to receive the knock on the door from police and the aftermath for her, including viewing her son’s body. She gave many personal examples of the tender moments she misses and how her son’s death has changed her forever. She is “a crumbling mess inside” but has put her own grief on hold in order to support her husband and family through their own grieving processes. She described her life as trying to keep herself and everyone afloat, the energy that requires and how exhausting it is. Her words would resonate with any mother in her circumstances.
The victim’s younger sister, Ms Olivia Seary, gave her own account of the impact she has felt from her brother’s death, telling the Court that on 8 March 2021 she felt that part of her soul had been ripped out. She described completing her high school education and turning 18 while grieving, of wanting to scream and cry all the time, the anxiety, the mood swings, the emotional and mental toll on her. Ms Seary spoke about the bond between them, enhanced by their close age gap of two years, and the safety and comfort she felt in having him looking out for her, which is now gone. Her composure in the witness box and ability to express the trauma she has experienced are indicative of a resilience and wisdom beyond her age.
The victim’s maternal grandmother (Ms Linda Wright) read her impact statement and described how the grandson that had been taken away was one of the most treasured people in her life. Again, she finds sleep difficult, cries daily and finds it extremely difficult to express how she is feeling. She experiences triggers which cause her emotional distress. Ms Wright spoke about how “closure” is a word often used but not something that she will ever have. She feels an unrelenting, deep physical pain in her chest every day. Her personality has changed. She is less tolerant and accepting of people. She feels little enjoyment in life and has a feeling of extreme sadness.
Both maternal aunts (Ms Sharon Wright and Ms Janelle Tweed) read out impact statements, providing personal accounts of their grief. What comes through those statements is how their close family has been changed. They no longer plan to do anything. They no longer look forward to celebrating family occasions together. Ms Wright described her guilt and constant anger, which she went on to link to her underlying daily pain. She is also trying to help her nine-year-old son in the grieving process, and how he is now scared she will die, because he now understands that bad things can happen to good people. Ms Tweed also spoke of the pain she feels, how her relationship with her twin sister (Mrs Janice Seary) has changed, and of feeling alone in her grief.
The victim’s uncle (Mr Wayne Seary) also provided a victim impact statement. He says that words are inadequate to express how he feels on the inside. He also spoke of being permanently changed. Every day he wakes up hoping the nightmare will be over. As with other family members, he feels he is now quick to anger, and struggles to find happiness or meaning in life. He is seeking professional help for the ongoing and serious mental health impacts of the offence. He says that every day “I feel like I am being fake – like I must pretend that things are ok.” Mr Seary also feels guilt and a deep unmoving sadness. His statement records the negative impact on his life, saying “it is hard to care about myself, my work, my relationships”.
As will be readily apparent from the foregoing, the impact of this offence on such a dynamic family, with their evident strong family bond and intertwined family experiences, cannot be overstated. It is very much to be hoped that the community evidently supporting them continues to wrap its arms around each and every one of Lachlan Seary’s relatives and keeps them collectively afloat for the years to come.
The offender’s accountability
There are three considerations which I have broadly grouped as relating to the offender’s accountability or acceptance of responsibility, being the fact that the offender pleaded guilty to the offence, the assistance in the administration of justice through the conduct of the proceedings following the plea and the restorative justice process.
The plea of guilty
The offender pleaded guilty to the level four drink driving and driving with a prescribed drug in blood charges in the Magistrates Court. He also pleaded guilty to the culpable driving causing death charge as soon as the charge was available in court for him to plead to it, as a replacement charge to an original charge of manslaughter. The offender’s early pleas of guilty demonstrate openly his acceptance of responsibility for the offences.
The applicable discount is a question of discretion, with the primary policy consideration being the utilitarian value of the plea: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. The Crown accepted that in the present case, the offender was entitled to a significant discount.
Notwithstanding the Crown’s position that a maximum discount of 25% would not be inappropriate, it must be said that the prosecution’s case was overwhelmingly strong. There was no question about identity of the driver as the offender was found at the scene of the collision and made an admission that he had hit something, although he was mistaken about what he hit. Similarly with regard to causation, the victim died at the scene. The offender’s consumption of alcohol was captured on CCTV footage and consistent with the blood alcohol readings later taken. The speed of the offender’s vehicle shortly before the collision occurred was also captured by the stationary speed camera. In such circumstances, s 35(4) of the Sentencing Act provides that the Court must not make any significant reduction for a plea of guilty.
The mandatory words of s 35(4) of the Sentencing Act do not sit well with the objective of recognising utilitarian value. It has been held that despite those words in the statute, the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case. In Coggan v R [2013] ACTCA 49 it was stated at [20]:
Even an overwhelming prosecution case requires an enormous amount of work if it must be made out in a defended trial. As well, it is not unknown for an apparently overwhelming prosecution case to come unstuck in an unexpected way.
The assistance in administration of justice
Counsel for the offender relied on s 35A of the Sentencing Act in support of a further discount which he maintained was applicable. Section 35A is in the following terms:
Reduction of sentence—assistance in administration of justice
(1) This section applies if—
(a) an offender is convicted or found guilty of an offence; and
(b) before or after the conviction or finding of guilt, the defence assisted in the administration of justice for the offence.
Example—par (b)
an admission made by the defence pre-trial or during a trial
(2) A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided in the administration of justice
(3) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) For this section, assistance in the administration of justice —
(a) includes a pre-trial disclosure by the defence; but
(b) does not include assistance—
(i) consisting only of a plea of guilty under section 35; or
(ii) given to law enforcement authorities under section 36.
(5) In this section:
"defence "means—
(a) the offender; or
(b) any lawyer representing the offender.
In further submissions provided following the hearing, the offender’s position was that a further reduction is warranted for the assistance provided in the administration of justice for the offence, because of the following matters:
(d)There had been “fruitful discourse” between the Crown and the offender’s representatives which resulted in an agreed Statement of Facts that did not require any facts separately needing to be proven;
(e)There was agreement or compromise reached in relation to the significance of various recordings of the offender’s motor vehicle around the time of the offending;
(f)There was agreement in relation to the relative insignificance of the detection of MDMA in the offender’s blood;
(g)The offender had agreed to the relative insignificance of the involvement of an assisting member of the public, Mr Clarke, the detail of what was recorded upon CCTV footage at the Fenway Tavern and Assembly bar, and the absence of any demonstrated erratic driving by either vehicle on CCTV footage;
(h)The offender had engaged in a record of interview process with police;
(i)The offender did not require any witness for cross-examination during the sentencing process; and
(j)The offender made a choice to manage objections to victim impact statements “designed to be expedient and to save the deceased man’s family or other victims any further trauma.”
I do not accept that each of the above matters, of itself, would warrant a discount if s 35A of the Sentencing Act applies. However, in totality, there is some force in counsel for the offender’s submission that the proceedings have been conducted in a way that did further the efficient administration of justice. I am mindful of observations to the effect that where there is a substantial dispute as to the facts on sentence, and particularly where the dispute involves the calling of Crown witnesses, the utilitarian value of a plea of guilty may be substantially eroded: see R v AB [2011] NSWCCA 229; 59 MVR 356.
The Crown submitted that if the Court proceeded on a significant discount with regard to the plea of guilty, then no further reduction was warranted pursuant to s 35A. The object of s 35A is to afford to the Court a discretion to discount a sentence in circumstances where an offender has proceeded to trial.
As alluded to above, the parties were given the opportunity to further develop the argument following the sentencing hearing and have provided supplementary submissions, which have again been of assistance in the proper construction and application of s 35A to the offender’s circumstances here. As far as research has disclosed, s 35A has been applied in a variety of circumstances in cases such as:
· R v Peter [2019] ACTSC 22 at [21] and R v Facer [2020] ACTSC 342 at [52], where discounts were applied relating to admissions made to police.
· R v Daniel (No 2) [2021] ACTSC 117 at [79] and [88], where there was an offer to plead guilty to a lesser offence which had not been accepted but in combination with the way the trial had been conducted had unquestionably assisted with the administration of justice.
· R v Langi (No 2) [2021] ACTSC 239 at [34]-[37], where Mossop J allowed a modest reduction in sentence following a trial, where the assistance related to concessions or agreements by the offender that he was a participant in certain covertly recorded conversations.
· R v Pahl (No 2) [2017] ACTSC 155 at [57], where a discount was allowed for what was described as a pre-trial disclosure, which resulted in the offender not disputing the facts and the case being defended solely on the basis of the offender’s psychotic state and defence of mental impairment.
· R v Wolter (No 3) [2015] ACTSC 321 at [88]-[90], where the case had been conducted so that the only issue disputed in the case was the relevant degree of the offender’s negligence.
· R v Billington [2014] ACTSC 350 at [23] (Billington), where there was an adjustment to the non-parole period because the offender had volunteered his involvement in the offending when confronted by police and made full and frank admissions.
The Crown argued that this discretion is not intended as a supplementary discount where an offender has already assisted the administration of justice by way of an early guilty plea, as is the present case. In the Crown’s submissions, the offender’s compliance and general conduct in relation to the sentencing hearing are not additional factors to be considered under s 35A, but rather features which “speak to the utility of his plea of guilty”.
In all but the last of the cases listed above, there had been a contested trial. In Billington, the adjustment to the offender’s non-parole period was in addition to a discount applied of 25% for an early plea of guilty. However, in that case, the strength of the Crown case was not considered overwhelming. It was said (at [27]) to be “reasonably strong”. Further, it does not appear that the applicability of s 35A in a case where a maximum discount of 25% had been applied for an early guilty plea was disputed before her Honour.
The Crown drew attention to the Explanatory Statement to the Crimes (Sentencing) Amendment Bill 2013 (ACT) and the following extract (emphasis added):
New section 35A allows a court to impose a lesser penalty, including a shorter non-parole period, on an offender than it would otherwise have imposed having regard to the degree of assistance provided in the administration of justice. The provision is designed to encourage cooperation in ensuring that the trial is focused as efficiently as possible on the real issues in dispute. The provision will extend to allowing a reduced sentence to be imposed where an offender, while maintaining a not guilty plea through to trial, has nevertheless facilitated the administration of justice through pre-trial disclosures, disclosures made during trial or otherwise.
An example is provided in the new section of the type of matter that may be considered by the court as assisting in the administration of justice; an admission made by the defence pre-trial or during a trial.
A similar provision exists in New South Wales in section 22A of the Crimes (Sentencing Procedure) Act 1999. The case law that exists on this provision in New South Wales will serve as a guide to the ACT judiciary in applying new section 35A.
New section 35A ensures that a lesser penalty imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. The new section also clarifies that the power is not intended to limit the operation of existing sections 35 and 36 which allow for reduced sentences in certain circumstances. While a plea of guilty or assistance provided to law enforcement agencies can be considered to meet the requirements of facilitating the administration of justice, new section 35A(4) is designed to provide that other actions are required to trigger the reduction under the new section.
Defence is defined to mean either the offender, or any lawyer representing the offender.
The reference to s 22A of the equivalent legislation in NSW calls attention to what I consider to be a critical distinction between the two jurisdictions. Section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is in the following terms (emphasis added):
(1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).
(2)A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
In the present case, I have concluded that s 35A of the Sentencing Act applies to this offender. There are three reasons why I have reached that conclusion.
First, as submitted by the offender, the express words of the section place no such limit on the section applying to both pleas of guilty and cases that proceed to a defended trial. The construction for which the Crown contends would require the Court to read down s 35A as applying only to circumstances where an offender has pleaded not guilty, but the case was otherwise conducted in a cooperative manner.
In my view, given the evident awareness of the terms of s 22A in the NSW sentencing legislation, which was expressly referred to in the Explanatory Statement as being the source for judicial guidance, if the legislative intention was to limit the applicability of the discretion to cases which proceeded to trial or were “tried on indictment”, the drafters would have made that clear through the inclusion of language similar to that used in s 22A.
Second, the context of the provision confirms the same construction. Section 35A(4)(b)(i) deals with what is meant by the words, “assistance in the administration of justice”. It excludes assistance that consists “only” of a plea of guilty. The converse of those words is that it includes assistance that is provided in addition to a bare plea of guilty.
Third, to the extent that the purpose of s 35A is informed by the above extract of the Explanatory Statement, it is said there that the section “extends” to cases where a plea of not guilty has been entered, not that s 35A will only apply to such cases.
Accepting that there may be cases where, separate to a plea of guilty, the offender’s approach to the proceedings has gone beyond what would ordinarily be expected to form part of matters relevant to the plea, there is work for s 35A to do in relation to pleas of guilty.
However, the structure and language of ss 35, 35A and 36 of the Sentencing) Act suggest that they are to work flexibly and in harmony, so that there is no perception of double dipping or that what is in effect the same consideration results in a discount being applied twice.
What I consider to be appropriate in the present case is to recognise the utilitarian value of the offender’s early pleas of guilty, which was then further assisted by certain points not being taken during the sentencing hearing and the trial being conducted by the offender’s legal representatives with a view to minimising the expense to the Crown and the resources of the Court. While I may not have initially awarded a full 25% discount for an early guilty plea given the view I formed about the strength of the prosecution case, I will do so having regard to those additional matters.
Restorative Justice
The offender has been assessed as eligible for restorative justice under the Crimes (Restorative Justice) Act 2004 (ACT) (RJ Act) s 19(1)(b)(i)(A) and an order was made in October 2021 for that process to be undertaken.
The process has not been completed prior to sentence, for reasons apparently entirely unrelated to this case and outside the offender’s control. Following a further hearing on 18 February 2022, the offender confirmed his willingness to continue the process after sentencing. The mere fact of participation in the restorative justice process may or may not, of itself, be sufficient evidence of remorse: see R v Forrest [2016] ACTSC 321 at [63]. However, s 33(1)(y) of the Sentencing Act requires the Court to take into account the acceptance of responsibility of an offender to take part in restorative justice and the participation of an offender in restorative justice is a relevant consideration independently of statute: see R v Forrest (No 2) [2017] ACTSC 83 at [154] and the cases there-cited.
The objective of the restorative justice process is victim-focussed. Among the objects of the RJ Act (s 6) is a desire to “enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences”. As section 46 of the RJ Act provides, the process can take many forms. It does not necessarily involve a face-to-face meeting. It may involve the exchange of written or emailed statements between participants, of pre-recorded videos between participants, teleconferencing or videoconferencing.
In this case, the delay in assessment and completion of the restorative justice process may actually have furthered the objective to which I have referred. The family of the primary victim, Mr Seary, has been able to hear that the offender intends to live his life in a way that honours their son, brother, grandson or nephew. The restorative justice process is an opportunity for the victim’s family to tell the offender how that might be done. It might be anticipated that prior to sentence, the circumstances of the offending are such that the victim’s family may have no desire at all to participate in the process. However, with the passage of time and following sentence, there may be an opportunity for restorative justice to do some good for all involved.
General and Specific Deterrence
Specific deterrence carries little weight in the present case. There is a clear pattern of behaviours indicative of an extremely low likelihood of recidivism, including ongoing remorse and contrition and voluntary abstinence from driving since the offending.
The offender’s counsel submitted that the guilt and psychological trauma suffered by the offender will remain with him irrespective of any custodial sentence. He will continue to require significant mental health support while in custody and there was a concern raised by counsel for the offender about the potential shortfalls of the custodial system in fulfilling its protective obligations to the offender under s 53 of the Corrections (Management) Act 2007 (ACT) for an offender who was subject to an extended full-time custodial sentence.
The Crown submitted that the nature of the offending and the offender’s high level of moral culpability warrant an approach that treats rehabilitation as a secondary consideration to general deterrence. The Crown submitted that the psychological harm suffered by the offender should not exclude him as a vehicle for general deterrence and I accept that submission.
Comparable cases
Current sentencing practice is a relevant consideration in determining the applicable sentence: s 33(1)(za) of the Sentencing Act. In addition to the sentencing decisions of Creighton, Richardson, Livas (No. 2) and Monfries to which I have earlier referred, the Court was referred to R v Smith [2019] ACTSC 65 (Smith), R v Kekalainen [2014] ACTSC 132 and R v Wolter (No 3) [2015] ACTSC 321. A helpful summary of the facts of a number of those cases is contained in Smith at [69]-[74] and it is unnecessary to repeat it here.
Noting that list, it is worth repeating that consistency of sentencing refers to consistency in the application of relevant legal principles rather than in numerical equivalence: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. The range of sentences previously imposed for a particular offence may offer guidance to sentencing judges, but it does not fix “the boundaries within which future judges must, or even ought, to sentence”: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54], cited with approval in Monfries at [84].
That is particularly the case when the maximum penalty for an offence has been significantly increased since cases such as Creighton. Careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. In that context, the more recent decisions of Smith and Livas (No. 2) are perhaps of more useful guidance.
Structure of the Sentence and Totality considerations
In the present case, the offender is being sentenced for multiple offences. The circumstances of the drink driving offence are also such that I consider nothing other than a term of imprisonment is appropriate. However, although it is a separate offence requiring separate punishment, the facts and the sentencing considerations entirely overlap with what has been set out above. In light of the fact that there is an additional component of punishment in the form of an automatic licence disqualification, I will structure the imprisonment component for the drink driving offence so that it is almost entirely concurrent with the primary offence so as to achieve the overall sentence that I consider is just and appropriate.
Although ordinarily the primary offence would commence first in time, given the offender has now spent 25 days in custody, I consider that part to be an appropriate period of time to impose as being solely referable to the drink driving offence. Otherwise, it is appropriate that the two terms of imprisonment operate concurrently.
In my view, having accepted the Crown’s submission about the emphasis on general deterrence and in order to properly take account of the objective seriousness and gravity of the offending here, a lengthy prison sentence is required. Prior to any discount applying, a term of imprisonment of 6 years and 8 months achieves that objective. Applying a discount of 25%, that results in a head sentence of 5 years. In light of what has been set out above in relation to the offender’s remorse, his rehabilitation and health, and the protective environment he has available to him upon release from prison, it is appropriate to give him avenues to make a meaningful contribution under a lengthy period of supervision. A non-parole period of 2 years and 11 months is appropriate.
Orders
I make the following orders:
1.In respect of the offence of culpable driving causing death (CAN 9856/2021), the offender is sentenced to a term of imprisonment of 5 years (reduced from 6 years and 8 months), commencing on 25 February 2022 and ending on 24 February 2027.
2.In respect of the offence of driving with alcohol in blood (CAN 3314/2021), the offender is sentenced to a term of imprisonment of 9 months, commencing on 1 February 2022 and ending on 31 October 2022.
3.In respect of the offence of driving with a prescribed drug in oral fluid (CAN 3315/2021), the offender is fined $800.
4.In relation to the offences of culpable driving causing death, the offence of driving with alcohol in blood, and the offence of driving with a prescribed drug in oral fluid, the offender’s licence is disqualified for 3 years from 1 February 2022.
5.The non-parole period is set at 2 years and 11 months, to commence on 1 February 2022 and expire on 31 December 2024.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Date: 25 February 2022 |
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