Simpson v The Queen
[2015] VSCA 210
•12 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0008
| ANDREW DEAN SIMPSON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN AND BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 August 2015 |
| DATE OF JUDGMENT: | 12 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 210 |
| JUDGMENT APPEALED FROM: | DPP v Simpson (Unreported, County Court of Victoria, Judge Smallwood, 10 December 2014) |
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CRIME – Sentence – High speed car chase – Driver/offender crashed – Life-threatening injuries to passenger – Offender fled – Multiple offences – Total effective sentence of six years six months and non-parole period of four years three months’ imprisonment not manifestly excessive – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr R Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA:
On 9 December 2014 the appellant pleaded guilty in the County Court to five counts on an indictment and to four uplifted summary charges. The five counts on the indictment were: negligently causing serious injury, dangerous driving while pursued by police, failing to render assistance after a motor vehicle accident, being a prohibited person in possession of a firearm, and possession of a drug of dependence. The summary offences were: committing an indictable offence whilst on bail, dealing with property suspected of being the proceeds of crime, possessing cartridge ammunition without a licence, and driving whilst his licence was suspended.
On 10 December 2014 a judge in the County Court sentenced the appellant as follows:
Charge Offence Maximum Sentence Cumulation 1 Negligently causing serious injury [Crimes Act 1958 s 24] 10 years 4 years Base 2 Dangerous driving while pursued by police [Crimes Act 1958 s 319AA] 3 years 1 year
6 months6 months 3 Failing to render assistance after a motor vehicle accident
[Road Safety Act 1986 s 61(1)(b) and Road Safety Act 1986 s 61(3)]10 years 2 years 12 months 4 Prohibited person in possession of a firearm [Firearms Act 1996 s 5(1)] 10 years 2 years 12 months 5 Possession of a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 73] 1 year 1 month – Summary charges: 8 Commit an indictable offence on bail [Bail Act 1977 s 30B] 3 months 7 days – 12 Deal with property suspected of being proceeds of crime
[Crimes Act 1958 s 195]3 months 2 months – 13 Possess cartridge ammunition without licence
[Firearms Act 1996 s 124(1)]2 years Convicted and discharged – 14 Drive whilst licence suspended
[Road Safety Act 1986 s 30(1)]2 years 1 month – Total Effective Sentence: 6 years 6 months Non-Parole Period: 4 years 3 months Pre-sentence Detention Declared: 158 days 6AAA Statement: 8 years 6 months (NPP: 6 years) Other orders: Forfeiture order, Disposal order, Licence suspension for four years from 10 December 2014 Leave to appeal
On 19 March 2015 the appellant was given leave to appeal on the following two grounds:
1.The total effective sentence of 6y 6m, resulting from the individual orders of cumulation, along with the non-parole period imposed of 4y 3m are inconsistent with principle of totality.
3.The sentence imposed on the applicant is manifestly excessive having regard to:
(a) the victim’s attitude and forgiveness;
(b) the victim’s complicity, in particular that she was not the usual ‘innocent bystander’;
(c) the mental health of the applicant;
(d) the individual sentences on charges 1 and 4 reflect an over weighting of the seriousness of the offending;
(e) current sentencing practices.
Leave to appeal was refused on proposed ground 2 which concerned what was said to be a failure by the sentencing judge to have proper regard to an aspect of the applicant’s mental condition.
Circumstances of the offending
At the time of commission of the offences the applicant was aged 27 years. He was unemployed, and his driver’s licence had been suspended due to an accumulation of demerit points. His girlfriend, Mellisa Eldridge, was aged 19 years.
The conduct which constituted the offending in charges, 1, 2 and 3 occurred shortly after 5:00am on 5 July 2014. The sentencing judge described what occurred as follows:
… You were with your then girlfriend [Melissa Eldridge] in a motor vehicle, you had your licence suspended. You drove away from a friend’s house with [the] victim seated in the front passenger seat of your car. You were intending to drive to her house in Mernda. You drove along Foley Avenue, Preston and then turned left into Albert Street and drove in a northerly direction. You were at that time seen by police in a marked divisional van who thought you were the only person in the car. They decided to make some routine enquiries in relation to the car. When the lights were activated, you accelerated away. You were travelling north along Albert Street. When police saw you accelerate away and heard the noise of the engine, they pursued you.
As they travelled along Albert Street, the police officers saw the car being driven by you straddle both lanes as the distance between it and the police car increased. A short distance along the road both of the vehicles went through the intersection of Albert Street and Gower Street. The lights were green however there was a distance increasing between the two of you. At that intersection, a speed camera was activated and you were seen to be going at 127 kilometres per hour. The police vehicle was going at 113 and the distance between you was 219 metres. Both vehicles continued along Albert Street, going through two more intersections. The distance between the vehicles continued to increase. After the police had travelled through the intersection of Albert Street and Wood Street, they lost sight of your car and at that point they terminated the pursuit and continued to drive along Albert Street.
A short distance along the street, police drove over a rise in the road then saw your car. It seemed that you had lost control of the vehicle about 40 metres before Tyler Street and that you had collided with a fixed utility pole on the median strip. You were stationery alongside the utility pole. The vehicle was badly damaged. Both police officers saw you crawl out of the rear window of the car. You looked at them and then ran away along Tyler Street. At that point, the police still thought there had been only one person in the vehicle. One police officer chased you on foot [with] the other following in the divisional van. You managed to escape but your mobile phone was found.
The police then returned to the vehicle and found that a female was trapped in the wreckage of the car. They saw [her] in the front passenger seat of the car. She had suffered what were clearly life-threatening injuries. A fire brigade rescue unit had to attend to extricate her from the vehicle and she was treated at the scene by MICA paramedics. As the paramedics were providing oxygen, fluids and pain relief, they found a glass ‘crack pipe’ in her bra. She was taken by ambulance to the Royal Melbourne Hospital …
…
The vehicle was examined and I do not need to go through that. I can simply say that the major collision investigation indicated that you were travelling north on Albert Street, that the brakes were applied suddenly, that the vehicle was travelling at a minimum speed of 127 kilometres an hour and it commenced to skid. It skidded, mounted the grass median strip and hit the pole bringing it to a sudden stop. Obviously, Albert Street has a speed limit of 60 kilometres an hour.[1]
[1]DPP v Simpson (Unreported, County Court of Victoria, Judge Smallwood, 10 December 2014), [4]–[7], [10] (‘Reasons’).
Ms Eldridge suffered multiple injuries including an acquired brain injury, a cerebral haemorrhage, lacerations to her left temple that exposed the bone, multiple skull fractures, a fractured femur, a fractured pelvis, and a laceration to the liver. She underwent three operations. After 20 days in the Royal Melbourne Hospital she was transferred to the Epworth Hospital for rehabilitation. On the date of the plea, five months after the accident, the sentencing judge was told she was unable to attend court because she remained in rehabilitation. The sentencing judge said that he had no indication of her current circumstances and that she had apparently declined to assist the police.[2]
[2]Ibid [8]–[9].
In the vehicle’s wreckage police discovered the appellant’s wallet. It contained a resealable plastic bag containing 0.3 grams of methylamphetamine (charge 5) and $1,253.20 in cash (summary charge 12). There was also a piece of paper with names and figures. Twelve names are listed. Two are crossed out. Two have ‘Jail’ written next to them. As an example, the first entry reads: ‘Tarney–700’. Elsewhere in the vehicle police found a home-made handgun (charge 4) and a box of .22 cartridge ammunition that fitted the gun (summary charge 13).
The appellant’s background and prior criminal history
At the time of sentence the appellant was still 27 years of age.
The appellant’s parents separated when he was very young and his mother remarried. On the plea the sentencing judge was told that the appellant has a good relationship with both his father and his step-father. He has a number of siblings with whom he also has a good relationship. According to the submissions made to the sentencing judge, the appellant had a ‘loving and caring childhood’. He left school after completing year 10 and began an apprenticeship which he has never completed. He began using drugs whilst a teenager. The sentencing judge was told that he ‘relapsed’ into serious drug abuse when he was 22 years old after a relationship break down.
A report by the psychologist, Ms Carla Lechner, was tendered on the plea. The report indicated that the appellant is of ‘low average’ intelligence and is ‘easily overwhelmed by social and emotional factors that undermine his judgment and decision-making’. Ms Lechner was of the opinion that he has a ‘long standing Stimulant Use Disorder with an underlying depressive illness’. Ms Lechner reported that, consequent on the offending behaviour, he had developed ‘features’ of post-traumatic stress disorder. The submission was made on the plea that the matters referred to in Ms Lechner’s report revealed that a sentence of imprisonment would be more onerous for the appellant than for others.
The appellant’s criminal history begins at the age of 17 when he was convicted at the Broadmeadows Magistrates’ Court of one count of unlicensed driving, one count of driving an unregistered motor car and one count of stating a false name and address. He was fined and his licences were cancelled.
On 30 June 2008, when the appellant was 21 years of age, he was convicted at the Broadmeadows Magistrates’ Court of five counts of driving whilst his licence was suspended and one count of driving a vehicle causing loss of traction. He was sentenced to a term of imprisonment of 4 months which was wholly suspended for a period of 12 months and was fined $500.
On 7 September 2010, when he was 23, he was convicted at the Broadmeadows Magistrates’ Court of the offence of recklessly causing injury and was fined $1,500.
On 31 January 2014 the appellant was convicted at the Heidelberg Magistrates’ Court of a series of offences. They were: use of a drug of dependence, exceeding the speed limit, possession of an explosive substance without excuse, possession of methylamphetamine, two counts of possession of an unregistered handgun, two further counts of possession of a drug of dependence, possession of cartridge ammunition without a licence or permit, and acquisition/possession/carrying cartridge ammunition. The sentence imposed for those offences amounted to a total effective term of imprisonment of three months and a community correction order of 12 months to commence on 1 March 2014. At the time of sentence the appellant had served 62 days on remand. Accordingly, he had a period of less than a month to serve in prison after 31 January 2014 and then the community correction order would commence on 1 March 2014.
The sentencing judge said that, after reading the relevant police statements in relation to the offences before the court on 31 January 2014, the guns which were the subject of those two charges were ‘very similar’ to that found in the appellant’s vehicle after the collision.[3]
[3]Ibid [12].
The offences which are the subject of this appeal were committed on 5 July 2014. The appellant was then on the community correction order which had been imposed on 31 January 2014. He was also on bail in relation to other matters (summary charge 8). The details of those matters were not canvassed on the plea. The sentencing judge was told, however, that the conditions of his bail included a curfew between 9:00pm and 6:00am and a condition that he not drive. On the appeal hearing, the Court was told there were in fact three relevant matters or groups of matters upon which the appellant had been bailed.
Reasons for sentence
The sentencing judge referred to the appellant’s prior convictions at the outset of his reasons, indicating that the prior conviction for possession of an explosive substance and the two prior convictions for possession of an unregistered general category handgun in January 2014 were of ‘real concern’.[4] At the outset the judge also referred to the guilty plea, which he accepted indicted remorse at least insofar as the injured woman was concerned, and which he said had utilitarian value as well.
[4]Ibid [3].
The sentencing judge set out the circumstances of the offending and referred to the injuries suffered by the young woman who was in the car. In the course of that consideration he said:
It was put to me that you and your family continue to support her in some way and that [it] is mitigatory that she forgives you. I was told from the Bar table that there was agreement that you would try and avoid the police, I am at a loss to know what has been forgiven. The fact of the matter is she is, in all probability, a co-accused in respect of the pursuit charge at least.
In any event, I take into account as well as I can the fact that she harbours no grudge against you, I am told, for the very serious injuries that she sustained.[5]
[5]Ibid [8]–[9].
The judge referred to the handgun that was found in the car and repeated his expression of concern as a result of the two convictions for possession of a handgun in January 2014.
The judge referred to the importance of general and specific deterrence in this case.
The judge observed that the charge of dangerous driving whilst pursued by police was an offence ‘against the public’ in contrast to the charge of negligently causing serious injury and as a result there had to be ‘some cumulation of the sentence on that matter’.[6]
[6]Ibid [15].
He observed that the possession of the handgun was a ‘concerning matter’.[7] He left unresolved the issue of the reason why the appellant was in possession of the gun, save for observing that its presence ‘puts a very unpleasant flavour on this whole proceeding’.[8]
[7]Ibid.
[8]Ibid [13].
The sentencing judge said that a significant custodial sentence was inevitable and added ‘but I must be careful not to impose a crushing sentence’.[9]
[9]Ibid [15].
The sentencing judge referred to Ms Lechner’s report and said that he would take into account the fact that gaol would be more burdensome for the appellant and the fact that in gaol the appellant was endeavouring to rehabilitate himself as much as the appellant could.
The judge indicated that the risk of reoffending if the appellant did not stop using drugs was high and that the circumstances of the offending in general were the basis for ‘grave concern’.[10] The judge again referred to his concern that, notwithstanding those matters, the sentence he imposed should not be crushing.
[10]Ibid [19].
Submissions on the appeal
In the appellant’s written case it was submitted in relation to ground 1 (totality) that the cumulation ordered had resulted in a total effective sentence and a non-parole period which is ‘disproportionate’ and ‘crushing’. It was submitted that there was significant overlapping criminality in the base offence of negligently causing serious injury and the offence of failing to render assistance, and that the cumulation ordered (12 months) was too great. It was submitted that there was also significant overlapping criminality between the base offence and the offence of dangerous driving whilst pursued by police and that the cumulation ordered there (six months) was also too severe. Finally, it was submitted on behalf of the appellant that the cumulation on the three offences of dangerous driving whilst pursued by police, failing to render assistance, and being a prohibited person in possession of a firearm was too great and was ‘structurally unsound’ given the length of the base sentence.
In relation to ground 3 (manifest excess) it was submitted in the appellant’s written case that the sentencing judge had failed to give sufficient weight to the victim’s attitude and forgiveness, the victim’s complicity in the offending, the mental health of the applicant, and the sentences imposed in comparable cases. It was submitted that the sentences on charges 1 (negligently cause serious injury) and 4 (possess firearm) reflected an ‘over weighting’ of the seriousness of those two offences. A series of decisions of this Court in cases involving the offence of negligently causing serious injury were referred to[11] and submissions by way of comparison between the circumstances in those cases with the circumstances of this case were made. A prior decision of this Court concerning possession of a firearm was referred to.[12]
[11]Driscoll v The Queen [2013] VSCA 366; Miller v The Queen [2012] VSCA 265; Gorladenchearau v The Queen (2011) 34 VR 149; Pollard v The Queen [2010] VSCA 156.
[12]Davies v The Queen [2014] VSCA 284.
In oral submissions the two grounds of appeal were integrated into the one submission. It was submitted that the error in what had occurred was that the base sentence for negligently causing serious injury was at the high end, or, as counsel for the appellant put it, on the ‘edge’ of the range that was open, and that the sentencing judge had then cumulated conduct involving overlapping criminality resulting in a total effective sentence and a non-parole period which infringed the totality principle and which was manifestly excessive.
Addressing the particular sentences, counsel for the appellant submitted that it was ‘difficult to complain’ in relation to the sentence on the offence of possession of the firearm given the prior convictions, the fact that the firearm was very similar to those which were the subject of the convictions in January 2014, and the presence of drugs and the cash in the vehicle. In this respect counsel for the appellant referred to the decision in Powell v The Queen (‘Powell’).[13]
[13][2015] VSCA 93.
In relation to the particular sentence on the offence of dangerous driving whilst pursued by police counsel for the appellant submitted that the driving in this case was not at the ‘extreme end’ of dangerous driving. It was very early in the morning and there were no other vehicles around. It was a suburban street, but it was wide with separated two lane carriageways. The only danger was to the passenger. It was submitted that the sentence imposed on this offence was close to the top of the range in the circumstances and that the cumulation then ordered (together with the cumulation on charges 3 and 4) had resulted in a total effective sentence that was manifestly excessive.
In relation to the base sentence on the charge of negligently causing serious injury it was submitted, by reference to the authorities referred to in the written case, in particular Gorladenchearau v The Queen (‘Gorladenchearau’), Miller v The Queen (‘Miller’) and Driscoll v The Queen (‘Driscoll’), and by reference to the report entitled ‘Major Driving Offences — Current Sentencing Practices’ published by the Sentencing Advisory Council in June 2015 (‘SAC report’), that, whilst a sentence of four years’ imprisonment was not outside the range, it was at the top of the range, and that cumulation on the other charges had led to a manifestly excessive total effective sentence.
Finally, in relation to the particular sentence on the charge of failing to render assistance counsel for the appellant submitted that when the appellant had fled he knew that the police were there and that ‘help was on hand’. It was submitted that whilst the sentence of two years for this offence was ‘unremarkable’, the cumulation (on this and the other charges) had resulted in a manifestly excessive total effective sentence.
In the respondent’s written case it was submitted that the sentencing judge had taken into account all of the matters upon which the appellant now relies, that reliance upon comparable cases had significant limitations,[14] and that the individual sentences imposed, the orders for cumulation and the non-parole period were well within the range available to the sentencing judge.
[14] Hili v The Queen (2010) 242 CLR 520 was cited.
The respondent pointed out that the sentencing judge had made an error in suspending rather than cancelling the appellant’s licence. The respondent submitted that that error ought to be corrected pursuant to s 325 of the Criminal Procedure Act 2009, or s 104A(5A) of the Sentencing Act 1991.
In oral submissions the respondent referred to a statement by one of Ms Eldridge’s treating doctors.[15] It was submitted on behalf of the respondent that the injuries suffered were very serious. In relation to the offence of failing to render assistance it was submitted that the appellant’s conduct had been ‘very morally reprehensible’. His girlfriend had suffered what were clearly life-threatening injuries. At the time he fled the scene the police did not know that there was a passenger in the vehicle and, rather than immediately assisting her, the police had attempted to apprehend him believing that he had been the only occupant. In relation to the offence of possession of the firearm, the respondent emphasised that the offence in question here was more serious than the offences of which he had been convicted in January 2014 as this offence was being a prohibited person in possession of a firearm. Reference was made to Powell and it was submitted that the appellant had been in possession of the firearm for reasons which ‘did him no credit’.
[15]Statement of Dr Calvin Peng dated 18 August 2014.
Analysis
The appellant’s submissions on grounds 1 and 3 coalesced at the hearing and can be analysed together.
Insofar as the appellant relies on manifest excess, this is a stringent ground, and is difficult to make good.[16] It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion. The sentences imposed, or the total effective sentence, will not be manifestly excessive unless they are wholly outside the range of sentencing options available.
[16]See, most recently, Ayol v The Queen [2014] VSCA 151 [30].
The sentence imposed on the count of negligently causing serious injury was high by reference to current sentencing practices.
The SAC report is a detailed analysis of sentences for major driving offences between 2006–7 and 2012–13. In relation to the offence of negligently causing serious injury, the analysis reveals that the median sentence where a term of imprisonment was imposed was two years three months.[17] The range of terms was from six months to five years 10 months.[18] The median total effective sentence (including other offences) was three years two months with a median non-parole period of one year 8 months.[19] There are two important matters to be noted in relation to these statistics. First, the maximum sentence for the offence was increased in 2008, during the period analysed, from five years to 10 years. The SAC analysis indicates this resulted in a cumulative increase in sentences for offences committed after the increase of 25 per cent.[20] The post–2008 median is two years six months’ imprisonment.[21] Secondly, a ‘cluster analysis’ of sentences for the offence was performed and the statistics for the ‘cluster’ into which the appellant’s offending falls (Cluster one)[22] reveal a range of total effective terms of imprisonment of eight months to six years and a median of three years three months.[23]
[17]SAC Report 55 [6.21].
[18]Ibid.
[19]Ibid 55 [6.24].
[20]Ibid 57 [6.31].
[21]Ibid.
[22]The defining characteristics of cluster one is that the offender is aged under 35, speed was related to the offending, the victim as a friend of the offender, the offending occurred within metropolitan Melbourne, and that the offender was unlicensed: ibid 58 [6.35].
[23]Ibid 58–9.
Turning to the comparable cases, a detailed review of sentencing practices in relation to the offence of negligently causing serious injury was undertaken by this Court in Gorladenchearau. Four earlier decisions of this Court, after the 2008 increase in the maximum penalty, were analysed; they being Pollard v The Queen[24], Mok v The Queen[25], Brayshaw v The Queen[26] and Shields v The Queen.[27] The characteristic which all of those matters shared, as did Gorladenchearau itself, was a combination of speed and intoxication. The sentences imposed ranged from two years (Brayshaw) to four years (Gorladenchearau after appeal and Shields after appeal). In Gorladenchearau a sentence of five years’ imprisonment was reduced to four years, substantially on the basis of current sentencing practices.[28]
[24][2010] VSCA 156.
[25][2011] VSCA 38.
[26][2011] VSCA 233.
[27][2011] VSCA 386.
[28](2011) 34 VR 149, 161 [52].
In Miller, this Court adopted the analysis in Gorladenchearau (notwithstanding a detailed attack upon that analysis on behalf of the Crown) and reduced a sentence imposed in that case for negligently causing serious injury from five years nine months to four years. In that case, Verdins considerations were applicable in relation to the appellant. The negligence in that case was a quite extraordinary failure to keep a proper lookout, but the significant matter which led to the reduction was the absence of both intoxication and excessive speed.[29]
[29][2012] VSCA 265 [48].
In Driscoll, sentences of three years three months on each of four offences of negligently causing serious injury, which after cumulation amounted to a total sentence on those offences of four years nine months, were not interfered with by this Court. A very high level of intoxication was present in that case. The appellant lost control of his vehicle in a roundabout and collided ‘head on’ with another vehicle injuring four persons in that vehicle. An issue concerning the appellant’s health led to a reduction in the non-parole period which had been fixed. The total effective sentence of five years’ imprisonment was reimposed but the non-parole period was reduced from three years three months to two years nine months.
The sentence of four years’ imprisonment which was imposed here is high, but is not outside the range when assessed by reference to these cases and statistics. The negligent driving in this case involved very high speed (127 kilometres per hour in a 60 kilometre per hour zone) in a suburban street. It is true, as was submitted on the appellant’s behalf, that the street was not a narrow two lane suburban street, but it was nevertheless a suburban street. It is also true, as was submitted by the appellant, that there are cases involving worse injuries, but the injuries suffered by Ms Eldridge here are very severe. It cannot be positively concluded that the appellant was not intoxicated, although it obviously cannot be concluded that he was and the judge did not do so.
The sentence imposed for dangerous driving whilst pursued by police was also high. The sentence was half the maximum (one year six months on a three year maximum) and there was significant cumulation (six months). The dangerous driving was constituted by the appellant’s high speed flight from the police in a suburban street. He reached high speeds whilst travelling through intersections. It is true, as was submitted by the appellant, that it was in the early hours of the morning when few vehicles would be expected to be on the road and that the principal danger was to the appellant’s own passenger, but the driving was very dangerous. As the sentencing judge observed, there was separate criminality involved in this conduct which required some cumulation.
The sentence on the offence of failing to render assistance was, as the appellant conceded in oral submissions, unremarkable. The appellant’s conduct in fleeing the scene was reprehensible given the condition in which he left his passenger. It seems to me to be clear that some cumulation was required in relation to the separate criminality involved in this offence.
The sentence for the offence of being a prohibited person in possession of a firearm was not high, in my view, in light of the fact that the appellant had very recent prior convictions for possession of handguns. Given what was found in the car and what was said by this Court in Berichon v The Queen[30] and in Powell,[31] the sentencing judge’s treatment of the issue of why the appellant had the handgun was a generous one in the appellant’s favour. The similarity between the gun found in the wreckage and the two guns which were the subject of the earlier charges, and the fact that on this occasion the appellant was a prohibited person in possession of a handgun, were relevant factors in assessing the seriousness of this offence.
[30](2013) 40 VR 490, 496 [26].
[31][2015] VSCA 93 [17] and [26]–[27].
Overall, this offending revealed a contumelious disregard for the law. The offences were committed within a few months of the sentences imposed on 31 January 2014. The appellant drove in a negligent and dangerous manner. He was on a community correction order and on bail at the time. He was driving while suspended, with drugs and a handgun in the car.
The burden of the appellant’s complaint is not as to the individual sentences but as to the cumulation and the total effective sentence. Reviewing the relevant offences in sequence assists in assessing whether the totality principle has been infringed and whether a manifestly excessive total effective sentence has been imposed.
The first offence in the sequence of events is possession of the firearm. This was a very serious matter given the prior convictions. In my view, both the sentence and cumulation ordered were warranted for this offence.
There was significant discrete criminality in the dangerous driving whilst pursued by police, as the sentencing judge observed. The motivation for flight is obvious. He was in possession of drugs and a handgun. He was in breach of his bail conditions. He was on a community correction order. He was driving while suspended. The sentence imposed and the cumulation ordered on that offence was, in my view, warranted.
The offence of negligently causing injury is a serious offence. The driving here involved very high speed in a suburban street. The injuries suffered were very serious. A high sentence was warranted. The sentence imposed was high but not outside the range open to the sentencing judge for this offence, as the SAC report and the comparable cases to which I have referred reveal.
Finally, there was significant separate criminality in the failure to render assistance. It must have been obvious that the appellant’s passenger had been very seriously injured. The appellant fled on seeing the police. Again, his motivation is obvious. The sentence and the cumulation ordered were warranted.
There was no cumulation ordered on the sentence of possession of a drug of dependence or on the summary offences and no submissions were directed to those sentences.
The sentence imposed here (six years six months/four years three months) is above the range identified for offending of what was said to be the comparable category of offending in the SAC report (Cluster one: range, eight months to six years; median, three years three months). It is also above the total effective sentences and non-parole periods imposed in Gorladenchearau (five years/three years), Miller (four years nine months/four years) and Driscoll (five years/two years nine months). This comparison is somewhat misleading, however, because in order to make a true comparison the cumulation of one year ordered in relation to the firearm offence must be deducted. That offence is entirely separate to the driving-related matters. Further, there had to be some cumulation here for the dangerous driving whilst pursued by the police and for the failure to render assistance.
If the total effective sentence and the non-parole period here are too high, it is so marginal as to render any interference as ‘tinkering’. This is especially so in relation to the non-parole period. The minimum period of detention required for this criminal conduct could not be a significant period less than that fixed of four years three months.
The total effective sentence is towards the top of the range. But, given the circumstances of the offending and the appellant’s prior history, it is not outside the range.
I do not consider that the principle of totality has been shown to have been infringed. I do not consider that the total effective sentence or the non-parole period
are manifestly excessive.
In my view, the appeal should be dismissed.
Error as to licence suspension
Pursuant to s 61(6)(a) of the Road Safety Act 1986, upon the appellant’s conviction for failing to render assistance in contravention of s 61(1)(b) of that Act, as a person had suffered serious injury, the judge was required to cancel the appellant’s driver’s licence and disqualify him from obtaining a driver’s licence for at least four years. Instead, the judge made an order suspending the appellant’s licence for four years. This must have been an accidental slip or a failure to deal with a matter that the judge would have dealt with had his attention been drawn to it. This Court can correct that slip or failure under s 104A(5A) of the Sentencing Act 1991 and it should do so. The order should be amended so as to substitute for the order suspending the appellant’s licence an order that his licence is cancelled and he is disqualified from obtaining a driver’s licence for a period of four years commencing on 10 December 2014.
BEACH JA:
I agree with Whelan JA.
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