R v Sheppard; ex parte

[1995] QCA 5

THE COURT OF APPEAL [1995] QCA 005

SUPREME COURT OF QUEENSLAND

CA No. 391 of 1994

Brisbane

[R.v. Sheppard]

T H E Q U E E N

v.

DAVID GLEN SHEPPARD

(Respondent)

EX PARTE THE ATTORNEY-GENERAL OF QUEENSLAND

(Appellant)

Fitzgerald P
Pincus JA

Dowsett J

Judgment delivered 08/02/1995
Separate reasons for Judgment,concurring as to order
Judgment of Fitzgerald P
Judgment of Pincus JA

Judgment of Dowsett J

APPEAL DISMISSED

CATCHWORDS:  CRIMINAL LAW - Sentence - Appeal by Attorney-

General - s.669A Criminal Code.

Counsel:	Mr P Ridgeway for the Appellant
Ms D Richards for the Respondent
Solicitors:	Director of Prosecutions for the Appellant
Legal Aid Office for the Respondent

Hearing Date: 23 November, 1994
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 08/02/1995

The circumstances material to this appeal against sentence by the Attorney-General are set out in the judgment of Dowsett J. Essentially, the appeal seeks an increase in the period of imprisonment to which the respondent was sentenced for his

offence of dangerous driving causing death and grievous bodily harm while having a blood alcohol concentration in excess of

150mgs of alcohol per 100 millilitres of blood.

The foundation of the Attorney-General's argument is that, while the sentence imposed on the respondent is consistent with sentences imposed in comparable cases over more than a decade, during that period Parliament has substantially increased the

maximum permissible period of imprisonment from 5 to 14 years, which should have led to the imposition of heavier sentences. In my opinion, that is correct to the extent that sentencing judges should not consider themselves fettered by the sentences

which have previously been imposed, but should impose sentences which are appropriate in all the circumstances, including both those sentences and the maximum penalty set by the legislature.

It does not necessarily follow that the respondent's sentence should be increased although, consistently with what has been said, this Court is not fettered by the pattern of sentencing to this time; nonetheless, it must be kept in mind that sentences consistent with the respondent's sentence have continued to be imposed since the maximum permissible sentence was increased to its present level five years ago, and, until now, there has been

no attempt, or at least no successful attempt, to increase the periods of imprisonment customarily awarded. One objective of the Court in such circumstances must be to avoid a legitimate sense of grievance on the part of the respondent.

There is another complicating factor in these offences, which can easily be overlooked when, as here, the accused person pleads guilty. Criminal responsibility is generally concerned with consequences which are intended or at least reasonably foreseeable; and criminal punishment is related to the

culpability of criminal behaviour, which is affected by conduct, state of mind and consequences. Here, the consequences were tragic; the death of one innocent woman, serious physical injuries to another, and grave emotional and mental trauma and suffering for relatives.

Further, aspects of the respondent's conduct were reprehensible; stealing a motor vehicle, driving while intoxicated and attempting to evade the police, were all matters deserving of punishment, though regrettably common. On the other hand, harm to anyone was neither intended nor likely; although an accident, including a serious accident, was a foreseeable possibility, the

driving in which the respondent engaged was not reckless; in

particular, the speed was not especially high having regard to
the road conditions.

The respondent's personal circumstances and the prospects of his rehabilitation must also be considered, not only in his interests but in the interests of the community. His criminal

history is bad, and is neither fully explained nor excused by

his disorders. On the other hand, he is young and pleaded

guilty, which can be an indication of remorse. There are prospects of rehabilitation. As Dowsett J. has pointed out, in these circumstances the sentencing judge was not required to ignore the other period of imprisonment, previously suspended,

which would be added to the respondent's sentences on these
offences.

The sentencing process involves balancing competing factors and conflicting interests. Although a higher sentence could have been imposed, the sentence imposed, including the parole

recommendation, was not outside a proper exercise of the

sentencing judge's discretion.

I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 08/02/1995

I have read the reasons of Dowsett J and I agree, with some hesitation, that the

sentence should not be increased.

In cases of this sort it is sometimes pointed out that many instances of very bad driving cause little damage, and those which result in death or serious injury do so fortuitously. Nevertheless, it is clear that the causing of death or grievous bodily harm is an important aggravating factor; the statute imposes a penalty of 3 years for dangerous driving simpliciter, but 7 years for dangerous driving causing death or grievous bodily harm: see s. 328A(1) and (4) of the Code. In the present case, because of the respondent's blood alcohol reading, the maximum penalty the statute prescribed was 14 years. This reflects a policy that those who cause death or serious injury by driving while very drunk - as the respondent did - must accept grave punishment for the harm they do. The circumstances make this case a bad one; they are set out in detail in the reasons of Dowsett J. One remarkable feature is that police attempted to avert such a disaster as ensued by driving beside the vehicle occupied by the applicant and attempting to get him to stop; instead, he pulled away to evade them. Despite the aspects of the case which are explained by Dowsett J, and in particular the catastrophic outcome, for the victims, of the applicant's irresponsibility, it does not appear to me that the case is in the very worst category. The reckless driving was engaged in over a relatively short period of time and the speed of the vehicle was low.

But the penalty imposed is less than 30% of the maximum fixed by the legislature; it is therefore, by comparison with that maximum, undoubtedly a light sentence. When one takes into account the respondent's criminal record, it is not very easy to see how a sentence at this level can be justified, if notice is to be taken of the maximum sentence fixed by the legislature.

In my opinion it is not necessarily helpful to talk of a "range" for dangerous driving causing death or grievous bodily harm; the circumstances may vary greatly from one case to another: for example, with respect to the age of the offender, the extent of injury done (in grievous bodily harm cases), whether there have been previous offences and especially driving offences, and particularly as to the character of the driving itself. It was suggested in argument before us that a range of 4 to 5 years has been adopted; if that is so, it plainly cannot be justified, not only because of the wide variability in the circumstances of these offences, to which I have just referred, but also because the statutory maximum is, in a case such as the present, 14 years. But because the sentence imposed, although obviously light, probably accords with the past practice of the District Court in these matters, it does not appear to me that in the exercise of the "unfettered discretion" given by the Code we should increase it. The Court undoubtedly has jurisdiction to give a decision reflecting a substantial raising of the general level of sentences for an offence; but that is done rarely. One reason is that to do so can give the appearance of unfairly selecting for special treatment an offender who has been given a sentence comparable with that previously ordered for like offenders.

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 08/02/1995
pursuant to s.669A of the Criminal Code. This is an appeal against sentence by the Attorney-General

The respondent pleaded guilty in the Southport District Court to the charges of:-

1.Dangerous driving causing death and grievous bodily harm while

having a blood alcohol concentration in excess of 150 mgs

of alcohol per 100 millilitres of blood; and

2.Unlawful use of a motor vehicle. and disqualified from holding a driver's licence for seven years and on count 2, to 12 months' imprisonment, those sentences to be concurrent. He was already subject to a suspended sentence of two years' imprisonment for nine counts of "break, enter and steal" and five counts of "break and enter with intent". The subsequent convictions for the driving offences constituted a breach of the terms of the suspended sentence. The learned

sentencing Judge dealt with him in respect of that breach, ordering that the two year sentence be cumulative upon the four year sentence, but recommending that he be considered for parole on all counts after serving 2 years. In argument, counsel for the Attorney primarily attacked the sentence imposed in respect of the dangerous driving count.

The motor vehicle offences occurred in Southport shortly after midnight on 14 November, 1993. The respondent was driving a vehicle which he had stolen earlier that night, moving slowing along Scarborough Street without lights. A police car followed the vehicle for a distance, and when it started to accelerate, the police activated the police lights. There being no response from the vehicle, the police drove up beside it and called for

the driver to pull over, indicating same with an outstretched arm. They noticed that one of the car windows was broken. The vehicle accelerated from approximately 30 kph to 60 kph, at which stage the police activated their siren and a chase ensued.

The respondent's vehicle did not slow down at any stage; nor were the brake lights activated. In the process of turning into Scarborough Street, the vehicle made contact with the centre median strip, slewed across the road, mounted the footpath and smashed into a shop front, colliding with pedestrians as the vehicle crossed the footpath. One of the pedestrians died instantly, and another suffered severe physical injuries.

The respondent's blood was sampled and found to contain 209 milligrams of alcohol per 100 millilitres of blood. He was 21 years of age at the time of these offences and had a substantial criminal record, including five previous convictions relating to motor vehicles, one of them for dangerous driving. He had also been convicted of offences of dishonesty, including the offences previously mentioned.

The respondent has been diagnosed as having attention deficit disorder, residual type (ADD), with a history of specific learning disorder and conduct disorder of childhood. It is said that, "In young adults with this disorder (ADD) one typically observes impulsivity and poor ability to appreciate the likely consequence of behaviour".
There can be no doubt that this was a very serious case of dangerous driving. It was deliberate; it occurred in the

context of a police chase; it resulted in very serious consequences. The maximum penalty prescribed by the Criminal Code for dangerous driving with the relevant circumstances of aggravation is 14 years' imprisonment. The only things which can be said in the respondent's favour are that he is still a young man with limited driving experience and that he is subject to the disorder to which I have referred, although symptoms similar to those associated with that condition seem often to be found in young people, particularly when they undertake the

management of a motor vehicle after the consumption of liquor. The respondent also must be given credit for his plea pursuant to s.13 of the "Penalties and Sentences Act".

The Attorney conceded that the sentence was consistent with the prevailing range for offences of this kind but argued that since the maximum penalty was substantially increased by Parliament in 1989, the courts have failed to recognize the message inherent in that amending legislation, namely that Parliament then considered that sentences for such offences should be in a higher range than was then prevailing. A table of comparable sentences going back to about 1981 certainly suggests a remarkable consistency of approach continuing to the present time, indicating a range of four to five years for serious cases of dangerous driving causing death or grievous bodily harm while intoxicated. As recently as last year, this

Court appears to have reaffirmed that range in R. v. Clauss
(CA No 42 of 1993).

This case raises a number of issues concerning the

sentencing process and appeals against sentence, including -
(a)the idea of proportionality;

(b)the problems inherent in cumulative sentencing;

(c)the general approach to appeals against sentence by the

Attorney;

(d)the circumstances in which an appellate court should revise

the range of sentences previously deemed appropriate for a

particular type of offence.

PROPORTIONALITY

Since the decision of the Court of Criminal Appeal in R. v. Manson [1974] Qd.R. 191 at p.202, it has been established that a sentencing Judge is not obliged to reserve the maximum penalty for the worst case imaginable, but the appropriate sentence must always be proportionate to the offence for which it is imposed. See Veen v. The Queen (No.2) (1987-8) 164 CLR

465 at p.472. Of course, the seriousness of the offence in question is only one of many factors to be considered in identifying the appropriate penalty.

The maximum penalty of 14 years' imprisonment is for dangerous driving causing death or grievous bodily harm with the

further aggravating circumstance of a high blood-alcohol

reading. In the absence of one or both circumstances of aggravation, the maximum penalty is significantly lower. In assessing the proportionality of misconduct and sentence, we are not seeking to place the present offence in the range of dangerous driving offences generally, but in the range of

offences in which death or grievous bodily harm is caused by

dangerous driving whilst affected by liquor.

CUMULATIVE SENTENCES

Difficulty often arises where multiple sentences are to be imposed for offences of different kinds committed at different

times, or where an offender who is already serving, or has just completed a sentence is to be sentenced to a further period of imprisonment. Examples of the latter situation are Mill v.

The Queen (1988) 166 CLR 59 and R. v. Kiripatea [1991] 2

Qd.R.686. In the latter case at p.702, Williams J said:-
"When a sentence is deferred for a lengthy period, and in

my view five years is such a period, then some moderation is called for with respect to the length of the sentence in question. The sentence imposed should not be a crushing one, and there is good reason for avoiding a sentence which would effectively destroy any hope a prisoner may have for rehabilitation. It is obvious that by imposing cumulative sentences deferred for a lengthy period of time the Court could impose in reality a sentence more severe than that of life imprisonment."

In Mill, the High Court was concerned with a person who was sentenced in Queensland after he had served a substantial period of imprisonment in Victoria. The Queensland offence had been committed prior to his being imprisoned for the Victorian offences. All offences were committed in a six week period. At p.66-7 their Honours said:-

"In our opinion, the proper approach ... was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. It is most unlikely that the applicant would have been sentenced to eight years on the first count, eight years with six of it concurrent on the second count, and eight years cumulative on the third count, making an aggregate head sentence of 18 years. ... Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of state boundaries."
Those cases establish that if one sentence is, in effect, to follow another, and the sentences are substantial, regard should be had to the total criminality of all of the conduct in fixing the total period during which the offender is to be in

custody. This proposition is more a reflection of common humanity than of strict legal principle, but it is no less

compelling for that. criminality of the respondent's conduct, for which he was to be punished, fix the total period which he should serve and make an appropriate recommendation for parole. Section 147(2) of the "Penalties and Sentences Act, 1992" indicated that the

respondent should serve the two year suspended sentence. The exercise of the sentencing discretion with respect to the driving offences was necessarily fettered by that fact, possibly

leading to the same effect as was referred to in Mill, namely

that the sentences imposed in respect of the driving offences appear lower than may have otherwise been appropriate, but that does not mean that they were wrong in the circumstances.

Similar considerations apply to the recommendation as to parole.

APPEALS BY THE ATTORNEY

The approach to be taken to such appeals was recently considered by the High Court in Everett v. The Queen (1994) 68 ALJR 875, an appeal under the provisions of the Tasmanian Criminal Code. Although the decision does not have direct application in Queensland because of the different wording of the appeal provisions in our Code, particularly the unfettered power of this court in considering such an appeal (see s.669A(1)), nonetheless the general approach adopted by the High Court is consistent with the view traditionally taken here. It has long been considered that a more stringent penalty should

only be imposed by an appellate court where, "... the quantum of sentence ... imposed calls, in an obvious way, for correction." See R. v. Osmond, ex parte Attorney-General [1987] 1 Qd.R. 429

at p.438; R. v. Melano ex p. the Attorney-General (CA No 393 of 1994) and R. v. Barlow & Ors ex p. the Attorney-General (CA No 310-2 of 1994).

INCREASING THE RANGE

In the present case, the Attorney has conceded that the current sentences were within the established range but has asked that we increase that range. The adversarial nature of our system means that such a submission can only be made in the context of a particular case, and so it is that the present respondent may be affected by this submission which has implications far beyond his case. It is not the first time that

such a course has been considered. In R. v. Joyce [1986] 1 Qd.R. 47, the Court of Criminal Appeal, on an application for

leave to appeal against sentence, found that the sentence was

beyond the prevailing range for offences of the kind in question

and therefore allowed the application for leave to appeal, but then dismissed the appeal upon the ground that the existing range was too low. As appears from the reasons of Connolly J at p.50, the members of the court took the opportunity of consulting with the other Judges.

In R. v. Ryan & Vosmaer, ex parte the Attorney-General, [1989] 1 Qd.R. 188, the Attorney appealed against sentence,

although conceding that the sentences were within the range established by reference to previous decisions. He sought to justify an increase in sentencing level by reference to

statistics which had been led before the sentencing Judge, concerning the prevalence of the offence in question. In my reasons for judgment in that case, I sought to demonstrate some of the conceptual difficulties inherent in such a process.

It would be wrong for a sentencing Judge to assess a range of sentences for a particular kind of offence based upon previous decisions, and then to assume that he or she should not go beyond that range. The range for any given offence is that prescribed by parliament, in the present case, an upper limit of 14 years' imprisonment and a lower limit which includes a wide range of non-custodial alternatives, particularly in light of the Penalties and Sentences Act. Earlier decisions, including decisions of appellate courts can only be a guide to where the

instant case falls in the range. For this court arbitrarily to

increase the so-called range of appropriate sentences would

invite sentencing Judges to concentrate upon the effects of that

decision to the exclusion of the parliamentary prescription.

Other difficulties also arise. Generally, a statutory amendment to increase criminal penalties does not have retrospective effect, yet it is suggested that we should increase the range of sentences in a way which would bind

sentencing Judges, even in respect of offences committed prior to our decision. While it might be possible to indicate, should we accede to the Attorney's submission, that our view should only be applied in sentencing where the relevant offence occurs after the date of our judgment, the awkwardness of such an approach is obvious. That course also would not sit well with the general proposition that a court decides only the question which is before it. In addition, there would be a further blurring of the distinction between the legislative and judicial functions. I do not say that this court should never entertain

a proposal such as this, but only exceptional circumstances

should induce the court to uphold it.

CONSEQUENCES OF THE OFFENCES

In this case, the learned sentencing Judge had the benefit of quite substantial evidence as to the effects of the collision upon the victims and their families. Isobel Ryan, who was killed in the accident, was the grandmother of Christopher Ryan.

Jennifer Anne Ryan, who suffered grievous bodily harm in the accident, was his wife. The evidence disclosed very serious orthopaedic injury suffered by Jennifer and a long and undoubtedly painful history of surgical intervention, coupled with a lengthy period of rehabilitation which is not yet complete. She is still a young woman, seriously injured in a way which has interfered significantly in her capacity to enjoy life, both for the present and the future. She is

understandably fearful of future decline in her condition and of the extent to which this will limit her capacity to discharge her duties as a wife and mother. She has been unable to

continue in employment, causing significant financial hardship.

Understandably, the trauma of the accident, together with its consequences, have caused her husband and her son to suffer.

Christopher, too, is very worried about the future. Jennifer's father, Mr Kevin Hayden and Christopher's mother have also been

affected. There can be no doubt that the extended family has been seriously and permanently damaged by the respondent's gross

misconduct. Perhaps the satisfaction of a victim's desire for vengeance may alleviate some of the pain caused by the misconduct in question, but it can never wholly, or even substantially redress the

wrong. In any event, vengeance is by no means the only objective of punishment. Rehabilitation of the offender, who will return to the community in the future, must also be considered, as must the deterrent effect of any penalty.

THE SENTENCING PROCESS

In our society, we insist that those who sit in judgment be persons who have no interest in the outcome. This is because we have long recognized that those who are interested are unlikely

to be objective. It would be obviously inappropriate for the family of a victim or the family of an offender to determine the

appropriate punishment. Each group is simply too closely involved to be objective. That is not to say that the court does not take account of the feelings of the victim and his or

her family in the sentencing process, but recognition of those

feelings is only part of a complex process. The court must try

to reflect the views of society generally, in light of all the harm done to the victims and their families against society's

circumstances of the case.
interest in assisting this young man to live a useful life once

the appropriate punishment has been inflicted upon him. Experience indicates that young people often react very negatively to periods of imprisonment, and it is likely that the longer the period of imprisonment, the less the prospects of

rehabilitation. I have had substantial regard to the impact of this incident upon the lives of the victims and their families, and I hold my perception of that impact at the front of my mind as I return to the position of the respondent. He is a young man with some mild disadvantages. He has, to date, demonstrated much less than an appropriately responsible approach to his duties as a citizen. He has pleaded guilty, and it is probable

that with maturity will come deepening guilt concerning the effect, six years was other than adequate to reflect the total criminality of his conduct in all the circumstances. This does not mean that a four year sentence would have been appropriate for the driving offences had they stood alone. As to the

consequences of his misconduct.

recommendation for parole, it undoubtedly was intended to reflect the need to offer the respondent an inducement to make the most of his time in prison. If he behaves himself, then he may be released in two years, but of course, he will continue to be subject to supervision for the balance of his term of six years. That, in my view, is a useful way to deal with a young offender. It is appropriate to draw to the attention of sentencing Judges the maximum penalty now prescribed by parliament for dangerous driving with circumstances of aggravation. If it be perceived that five years is the effective maximum sentence for offences of this kind, then that perception is wrong. Sentencing Judges must consider the whole range prescribed by parliament. It is perhaps unfortunate that an appeal such as this was not launched at some stage shortly after the 1989 amendment. Had that been done, then any such misconception may have been disposed of at an early stage.

I do not find myself in substantial disagreement with the learned sentencing Judge. I would dismiss the appeal.