R v Priestley No. Sccrm-02-278

R v PRIESTLEY
[2002] SASC 438
Court of Criminal Appeal: Duggan, Debelle and Williams JJ

DUGGAN J I agree that this appeal should be allowed for the reasons given by Debelle J. I also agree with the orders proposed by Debelle J.
DEBELLE J This is a prosecution appeal against sentence.
The respondent pleaded guilty to the crime of causing death by dangerous driving. The maximum penalty for a first offence for that crime is imprisonment for a period not exceeding ten years and disqualification from holding or obtaining a driving licence for a minimum period of five years.
The sentencing judge ordered that the respondent be imprisoned for a period of four years and fixed a non-parole period of two years, both to commence on 25 June 2001, the day when the respondent was taken into custody. The prosecution appeals against both the sentence and the non-parole period on the ground that they are manifestly inadequate.
On the evening of Friday, 22 June 2001 the respondent was driving his small Toyota truck along Stebonheath Road, Munno Para Downs. The tray of the truck was fitted with a drop-down tray on both sides and at the rear. Shortly after 9.00pm, the respondent’s vehicle struck a Mr Watkins who was riding his bicycle home from work. The respondent did not stop. The force of the impact caused the drop-down tray on the left hand side of the utility to become dislodged so that it was dragged along the ground as the respondent continued to drive. As a result of the collision, Watkins became attached to the tray on the left hand side of the utility and was dragged alongside the tray for almost six kilometres, suffering shocking injuries, before the respondent stopped his vehicle in front of the house in which he then boarded. When the respondent’s vehicle stopped, Mr Watkins’ body was either dislodged or the respondent detached it from his truck. The respondent said that he had no recollection of what had occurred when he stopped. The respondent then replaced the side tray. He did not spend the night at the house in which he boarded. Instead, he drove to his parents’ house at Gawler and spent the night there. It is clear that the respondent was seeking to distance himself from his offending. The respondent did not give any assistance to Watkins.
The medical evidence is that Mr Watkins died from a closed head injury and haemorrhage due to multiple severe abrasions. As might be imagined, the abrasions after the long period of dragging were quite horrible. Mr Watkins died as a result of the injuries initially sustained as well as the buffeting and blood loss sustained while being dragged. Thus, the dragging was a significant cause of death. Mr Watkins was found a short time after the respondent had left him. He died en route to the hospital.
The following morning the respondent went to work as usual. In the course of the day he took some steps to repair the damage to his vehicle, presumably in an attempt to escape detection. He endeavoured to piece together what had occurred from press reports about the matter. On the following Monday morning he set off on foot from Gawler. He walked for about four or five hours, eventually arriving at a place called Kalbeeba. He was full of remorse. He decided to kill himself by jumping out of a tree from a great height. The attempted suicide failed. Shortly after, he was seen by a woman. In response to her offer of assistance he said that he had done a terrible thing. He then told her of the accident but said that he did not remember what had happened.
The respondent said that he had no memory of what had occurred that night because he had been drinking. He has a serious problem with drinking alcohol. While admitting that he has no present recollection of what occurred to Mr Watkins when he stopped his vehicle in front of the house in which he boarded, the respondent accepts that he would then have seen Watkins’ body.
The only evidence of what the respondent had drunk is contained in declarations of witnesses. The respondent was employed by a business which erected carports. After finishing work on 22 June 2001, he drank two stubbies of beer with workmates and then went to the Rose & Crown Hotel where he drank with his employer from about 7.00pm to 8.15pm. According to the respondent’s employer, they drank about five schooners of beer in that time. He drove his employer home and then drove towards the house where he then boarded. The collision occurred while he was driving to that house. The events of this night, and the respondent’s inability to recall what occurred, indicate either that the respondent had drunk more than the evidence suggests or that, after driving his employer home, the respondent consumed more alcohol at another hotel or at some other place.
The dragging of the side tray scored a mark, which I will for convenience call “the drag mark”, in the bitumen surface on the roads on which the respondent drove his small Toyota truck. The drag mark has been filmed. It demonstrates that the respondent was weaving from side to side as he drove after the collision with Mr Watkins. On at least three occasions he was driving on the right hand side of the centre of the road, that is to say, on the incorrect side of the road.
The prosecution submitted to the sentencing judge that the respondent had known that Mr Watkins was attached to the Toyota truck and had swerved from side to side in an attempt to dislodge him. The judge was not prepared to make that finding. Instead, the judge concluded that the course taken by the respondent’s vehicle was just as likely to have been caused by his inability, in his intoxicated state, properly to control his damaged vehicle as it was a deliberate attempt to dislodge Mr Watkins. I do not think there is any ground for interfering with the judge’s conclusion. The accident occurred when it was dark. It was unlikely the respondent would be able to see what was occurring on the left hand side of his vehicle. The force of the impact had broken the rear view mirror on the left hand side of his vehicle, thus rendering it even less likely for him to be able to see what was occurring on that side of the vehicle. It is not, therefore, possible to find beyond reasonable doubt that the respondent knew that Watkins was being dragged along by his vehicle. There is, therefore, no cause for interfering with the conclusion of the trial judge in this regard.
The judge also stated that she was not persuaded that the respondent was aware that he had struck Mr Watkins at the time of impact or that he was aware that Watkins was being dragged along the road. While, for the reasons already given, it might not have been possible for the respondent to know that Watkins’ body was being dragged along, the first part of those remarks cannot be sustained. Several factors point to the conclusion that the respondent must have been aware that he had struck Mr Watkins. First, he could hardly have failed to have seen Watkins in the glare from his headlights if only for a short time before impact. Next, Mr Watkins was wearing reflective clothing and his bicycle was very well lighted. Thirdly, there would have been the noise of the impact. The ordinary modern motor vehicle acts as a kind of sounding board so that the respondent would have heard the sound of the impact. In addition, the left hand side rear view mirror had struck Mr Watkins. The force of the impact tore the rear view mirror from the Toyota truck and that must have caused a substantial noise. Even if the respondent was very substantially affected by alcohol, he could not have failed to have been aware that he had struck a cyclist. His clear duty was then to stop.
Apart from his legal obligation to stop, there was another reason for stopping. As already mentioned, the force of the impact caused the tray on the left hand side of the Toyota to dislodge so that it was dragged along the ground. The dragging caused a loud noise. Four witnesses heard the noise from inside their respective houses. Two of those witnesses were at the rear of the house. Another heard the noise above the noise from his television set, notwithstanding the volume was turned up high while he was watching the broadcast of a football match. This evidence establishes that the noise was extremely loud and could easily be heard. Plainly, the respondent would have been able to hear the noise of the tray dragging along the ground. Had he stopped to remedy the situation, Mr Watkins would then have been dislodged from the vehicle either by the fact of the vehicle stopping or by the respondent righting the tray. Had the respondent stopped soon after the accident, Mr Watkins’ injuries may not have been so severe and he may have recovered.
There are only two possible reasons for the respondent’s conduct. One is that he was so drunk that he did know that he had collided with Mr Watkins and did not hear the side tray scraping along the ground. The other is that the respondent did not wish to stop because he knew he had been drinking and that he was driving whilst disqualified from holding a licence and did not wish to be apprehended. Either alternative only serves to aggravate the seriousness of this offending.
Other aggravating features of the offending were the fact that the respondent did not render any assistance to Mr Watkins when he stopped. Instead, he fled the scene. As the sentencing judge said, his actions in leaving the scene were consistent with a suggestion made by the respondent’s counsel that he fled because he was a man who is shamefully weak and lacked the courage to face up to the enormity of what he had done.
The circumstances of this accident and the conduct which caused the death of Mr Watkins are appalling. The offending is the more culpable by reason of the fact that on 14 May 2001, only five weeks before these events, the respondent had been convicted for driving with excessive blood alcohol and disqualified from holding or obtaining a driving licence until further order. Simply stated, the respondent should not have been driving. He also has a prior conviction for driving with an excessive blood alcohol content in September 1999. The driving whilst disqualified is an aggravating feature of this crime. It indicates, not only that the respondent has no regard for the law and is ready to flout it when it suits him, but also that he has no regard to the standards which the community expects of those driving motor vehicles. He had no lawful entitlement to drive. He was thumbing his nose at the law and other road users. The failure to stop is also an aggravating feature of the offending, not simply because of the obligation in law to stop after an accident, but because it denied an early opportunity for Mr Watkins’ body to be dislodged.
The victim impact statements show that the distressing manner of Mr Watkins’ death has had a devastating effect upon his wife and family, an effect which was properly described by the sentencing judge as “harrowing”.
The circumstances in which a Court of Criminal Appeal may interfere with a sentence on appeal by the prosecution are well established: Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212. In the absence of a clear statutory direction to the contrary, the jurisdiction should be exercised only in the rare and exceptional case to establish some matter of principle which must be understood as encompassing what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards: Everett at 299 – 300. In Osenkowski at 213, King CJ expressed the same principle in these terms:
“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
At the same time, prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges or circumscribe the exercise of mercy in a lenient sentence: Osenkowski per King CJ at 212.
Making all due allowance for the fact that this is a prosecution appeal and having due regard to the concept of double jeopardy so far as it applies to a prosecution appeal against sentence, I am nevertheless completely satisfied that this sentence is quite inadequate for the gravity of this crime and should be corrected. It is so disproportionate to the seriousness of the crime that I believe it shocks the public conscience. This Court should, therefore, grant leave to appeal and should allow the appeal and re-sentence the respondent. I am reinforced in reaching this conclusion by the fact that the sentencing judge erred in the findings of fact. The finding that the respondent was not aware he had struck Mr Watkins was not open on the evidence. This mistaken view of the facts is very material to the exercise of the sentencing discretion and has obviously caused the judge to take a more lenient view of the respondent’s conduct than was deserved.
In my view, this crime was at the higher scale of seriousness for this kind of offending and called for a substantial term of imprisonment. I respectfully agree with Winneke P that this kind of offending is a species of involuntary manslaughter and should be treated as such: R v O’Connor [1999] VSCA 206 at [13], an observation that he repeated in DPP v Solomon [2002] VSCA 106.
Mr Braithwaite, who appeared for the respondent, referred to the decision of this Court in Davenport (Unreported, Court of Criminal Appeal, 20 August 1998, Judgment No. S6816) where a sentence for causing death by dangerous driving was reduced on the prisoner’s appeal from six years to five years imprisonment and the non-parole period was reduced from four years to three years. The driver in that case was described by the court as “appalling”. One person was killed. Another was so seriously injured that he became a permanent patient at the Julia Farr Centre. The appellant and three others received serious injuries. The appellant’s driving endangered the lives of other road users. The appellant had a poor driving record. On one view, the driving of the appellant in that case was more culpable than that of the respondent. But direct comparisons of this kind are difficult. In my view, the sentence in that case was extremely merciful. I do not think that the decision in Davenport (supra) represents a benchmark for sentences for this crime.
The sentencing judge found that the respondent was contrite and that was evidenced by his spontaneous comments to the woman who saw him shortly after his attempted suicide. She accepted that he was deeply ashamed of his behaviour. There was no reason why this Court should not adopt a like view.
The respondent’s defiance of the orders for disqualification indicates a need for personal as well as general deterrence.
But for the respondent’s plea of guilty, I think that the appropriate sentence for this crime would have been a period of imprisonment for seven years. The sentencing judge allowed a reduction of 10 per cent for the respondent’s plea of guilty. She did not allow a higher reduction because, as the sentencing judge found, in my view correctly, there was an inevitability about the conviction of the respondent for this crime. No complaint is made as to the level of the reduction by the appellant or the respondent. Had the sentencing judge not reduced the head sentence for the respondent’s pleas of guilty, the head sentence would have been about four and a half years. I would allow the same reduction for the respondent’s plea of guilty as was allowed by the sentencing judge which reduces the sentence to a period of six years and three months.
When fixing the sentence and, in particular, the non-parole period, the sentencing judge had regard to the fact that the publicity given to this matter had resulted in the respondent being at risk from other prisoners. In consequence, he had been kept in protective custody throughout the time has been imprisoned. That situation is likely to continue for the rest of his period of incarceration.
There is no settled view on the question whether the fact that a prisoner is in protective custody because of the nature of his offending is relevant when fixing the length of the sentence. In R v Liddy [2002] SASC 306, Mullighan J held that, although there are circumstances in which a sentence might be reduced because the offender will be kept in protective custody, that principle did not apply when the offender was in protective custody because of the nature of the offending or his status or occupation. Gray J did not deny that protective custody resulting from the nature of the crime may be a factor to which regard might be had, but believed it was a good deal less than other factors. Williams J held that it was a relevant factor. In R v Gooley (1996) 66 SASR 380 at 382 – 383, Doyle CJ, with whom Williams J agreed, held that in the circumstances of that case a small reduction should be made because the appellant was in protective custody because he was at risk of harm while in gaol because of the nature of his offence. A reduction on this count was allowed in R v AB (No 2) (2000) 117 A Crim R 473 at 495 but denied in R v Everett (1994) 73 A Crim R 550. The matter was not fully argued before us and this is not an appropriate occasion on which to embark upon a full discussion of the relevant cases. But, in my view, it is appropriate to make a reduction in the sentence because the offender will be kept in protective custody to reduce the risk of harm from other prisoners by reason of the nature of the offence. It cannot be emphasised too much that, in adopting this course, the court does not in any respect condone the offending but, instead, it is recognising that the offender may be badly assaulted by persons who wrongly believe that they have some entitlement to inflict punishment in addition to that ordered by the court and for that reason, the offender is placed in protective custody. In that respect, the reason for placing the offender in protective custody is the same as if the offender had been an informer, a circumstance which is a fact which may reduce the sentence: R v Golding (1980) 24 SASR 161; R v Davies (1978) 68 Cr App R 319. It has been recognised in both Australia and in England that every year in protective custody is equivalent to a significantly longer term under the ordinary conditions of prison: R v Cartwright (1989) 17 NSWLR 243 at 253; R v Lowe (1977) 66 Cr App R 122 at 126; R v Davies (supra); and AB v The Queen (1999) 198 CLR 111 per Kirby J at 152. The Director of Public Prosecutions did not question some reduction being made for the fact that the respondent will be held in protective custody. For these reasons, I would allow some reduction for that fact. I think that the reduction is more appropriately reflected in the non-parole period than in the head sentence.
Having regard to all of these factors, I would fix a non-parole period of four years.
I do not think that there is any reason for increasing the period for which the respondent is to be disqualified from holding a driving licence.
I would, therefore, allow the appeal and vary the orders by substituting a head sentence of six years and three months and a non-parole period of four years.
WILLIAMS J I agree with Debelle J.

[2002] SASC 438

20 December 2002