The King v Hunt

[2024] NTCCA 9

CITATION:The King v Hunt [2024] NTCCA 9

PARTIES:THE KING

v

HUNT, Wayne Peter

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 3 of 2024 (22312136)

DELIVERED:  27 August 2024

HEARING DATE:  16 August 2024

JUDGMENT OF:  Grant CJ, Burns J and Riley AJ

CATCHWORDS:

CRIME – Appeals – Appeal against sentence – By Crown against reduced sentence for likely hardship in prison – By Crown against inadequacy

Whether sentencing Judge erred in finding respondent’s time in custody would be considerably more onerous than for other members of prison population – No error in sentencing Judge drawing inferences regarding the likely impact of incarceration upon respondent from medical evidence – Whether sentence manifestly inadequate – Principles and purposes in sentencing for dangerous driving causing death – Sentence did not provide sufficient emphasis upon punishment, denunciation and general deterrence – Sentence did not take sufficient account of fact and manner of taking of child’s life – Sentence such as to shock public conscience and engender sense of injustice in both those associated with the deceased victim and wider community – Appeal allowed and respondent resentenced.

Criminal Code 1983 (NT) s 174F

Board v The Queen [2013] VSCA 190, C v The Queen (2013) 229 A Crim R 37, Demur v The Queen [2014] NTCCA 15, Doudar v The Queen [2021] NSWCCA 37, DPP v Church (2005) 42 MVR 420, DPP v Oates (2007) 47 MVR 483, Duong v The Queen (2021) 288 A Crim R 566, Everett v The Queen (1994) 181 CLR 295, Griffiths v The Queen (1977) 137 CLR 293, R v Calica (2021) 43 NTLR 7, R v Manok (2017) 81 MVR 427, R v Musumeci (unreported, NSWCCA, 30 October 1997, Hunt CJ at CL), R v O’Connor [2014] NSWCCA 53, R v Riley (2006) 161 A Crim R 414, R v Stoupe [2015] NSWCCA 175, R v Verdins (2007) 16 VR 269, The Queen v Kahu-Leedie [2022] NTCCA 4, The Queen v Mossman (2017) 40 NTLR 144, The Queen v Olbrich (1999) 199 CLR 270, The Queen v Roe (2017) 40 NTLR 187, referred to.

REPRESENTATION:

Counsel

Appellant:L Babb SC (Director of Public Prosecutions) with LJ Auld

Respondent:  A Abayasekara

Solicitors

Appellant:Office of the Director of Public Prosecutions

Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    B

Number of pages:  24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The King v Hunt [2024] NTCCA 9

CA 3 of 2024 (22312136)

BETWEEN:

THE KING

Appellant

AND:

WAYNE PETER HUNT

Respondent

CORAM:    GRANT CJ, BURNS J & RILEY AJ

REASONS FOR JUDGMENT

(Delivered 27 August 2024)

THE COURT:

1. On 16 February 2024, the respondent was sentenced after he had pleaded guilty to one count of dangerous driving causing death contrary to s 174F(1) of the Criminal Code 1983 (NT).  The maximum penalty applicable to the offence was imprisonment for 10 years.  The respondent was sentenced to imprisonment for three years to be suspended after he had served three months upon entering into a home detention order for a period of nine months commencing immediately upon his release from prison.

2. This is a Crown appeal against that sentence on the grounds: (1) that the sentencing Judge erred in finding that the respondent’s time in custody would be considerably more onerous for the respondent than it would be for other members of the community; and (2) that ordering that the respondent’s head sentence be suspended after three months upon him entering into a home detention order for a period of nine months was manifestly inadequate in all the circumstances.

3. The notice of appeal originally included a further ground that the three year head sentence imposed was manifestly inadequate in all the circumstances, but that ground was not pursued at the hearing.[1]

   Objective circumstances of the offending

4. The circumstances of the offending are not in dispute and the tragic consequences of that offending are acknowledged by the parties.

5. The offending occurred on 20 December 2022.  On that day the respondent, who was then aged 54 years, drove his RAM 1500 utility motor vehicle to a supermarket at Moulden.  The vehicle was fitted with an aftermarket bull bar.  The vehicle had an automatic transmission which was operated differently from automatic vehicles which have a central gearstick.  The automatic transmission in this vehicle had a rotary gearshift dial mounted on the dashboard.  Gear selection was made by rotating the dial to the required gear setting.  The configuration of the rotary gearshift dial was that the “Drive” position was furthest to the right while the “Park” position was furthest to the left, with a number of different settings between them. 

6. What followed the respondent’s arrival at the shopping centre was captured and recorded by an exterior closed-circuit television camera which was mounted above the front entrance to the supermarket.  The respondent parked the vehicle in the parking bay closest to the front doors of the supermarket with the bull bar of the vehicle extending over the concrete walkway which ran around the perimeter of the building in which the supermarket was located.  He went into the supermarket and purchased a bottle of iced coffee.

7. When he returned to his vehicle the respondent opened the front driver’s door and reached inside.  As he did so he dropped the bottle of iced coffee onto the ground and it rolled beneath the vehicle.  He attempted to recover the bottle but, because of its location under the vehicle, could not do so.  He returned to the vehicle and, whilst leaving the driver’s door open and without putting his seatbelt on, reversed it back approximately half a metre. Unfortunately, this did not allow him to recover the bottle and he again returned to the driver’s side of the vehicle.  Whilst partially inside and partially outside the vehicle, with his seatbelt unfastened and with the door open, he reversed it back another half metre.

8. The vehicle stayed stationary for about a second at which point the respondent mistakenly turned the gear selector dial to the right placing it into “Drive” rather than, what should have been the case, moving it to the left and into the “Park” position.  The respondent then shifted his body to face towards the open door as if to alight from the vehicle. The vehicle began to roll slowly forward. The respondent became aware that the vehicle was moving and turned his body to return to the driver’s seat at which point he applied his foot to the accelerator instead of the brake causing the vehicle to lurch forward and mount the concrete walkway.

9. Tragically, an 11-year-old boy who had been in the supermarket with his uncle walked past the front of the vehicle at that very moment.  As the vehicle lurched forward without warning up onto the walkway, it pinned the child between the bull bar and the exterior wall of the supermarket with great force.  A witness screamed at the respondent to reverse the vehicle and it took him approximately eight seconds to do so. When the victim was released he fell to the ground. As a result of the impact he suffered catastrophic crush injuries from which he died a short time later. The respondent, seeing what he had done, walked away from the vehicle into nearby parkland where he remained until police and paramedics arrived.

10. A roadside drug test of the respondent indicated a positive result for tetrahydrocannabinol (“THC”) and a subsequent blood sample returned a reading for THC of 7.9 mg per litre of blood. Expert evidence received during the course of the sentencing proceedings put the level of impairment of the respondent as a consequence of the presence of THC at approximately equivalent to the effects experienced by a person with a blood alcohol concentration in the range of 0.05 to 0.1%. The expert report included the following opinion:

    The effects produced by THC could have included reduced attention to the road and to his driving, increased side to side vehicle movement and increased driving errors. THC also slows reaction time, particularly in situations requiring complex decision-making, where there are several alternative courses of action, such as occur immediately prior to some accidents.

    Subjective circumstances of the respondent

11. The sentencing remarks record that the respondent was involved in a motorcycle crash in 2008 which resulted in the amputation of his right lower leg. He was fitted with a prosthetic right leg connecting at the knee.  The respondent also suffered a closed head injury in the course of the motor vehicle accident.

12. As a consequence of the amputation, in 2009 the respondent was granted a driver’s licence with specific conditions which included that he was only to drive an automatic vehicle specially modified so that the accelerator pedal was positioned to the left of the brake pedal, rather than in the usual configuration to the right.  In 2020, the respondent purchased the RAM 1500 vehicle which has already been described above. At the time this offence was committed, which was approximately two years after the respondent had purchased the vehicle, the accelerator pedal of the vehicle had not yet been altered to comply with the condition of the respondent’s licence.

13. In the aftermath of the motorcycle accident the respondent received many years of treatment for both physical and psychological conditions.  The medical evidence revealed that he suffered from an underlying condition of attention deficit hyperactivity disorder which had manifested in childhood hyperactivity with an attendant learning disability. He also suffered from a mild neurocognitive disorder which manifested in increased difficulty with learning and a tendency to be easily distracted.  In addition, the respondent suffered from post-traumatic stress disorder as a result of the motorcycle accident with a secondary major depressive disorder.  Over the years he had also received physiotherapy and chronic pain treatment for his physical injuries.

14. In 2011, the respondent suffered complications with his left leg (ie the non-prosthetic leg) resulting in surgical treatment and rehabilitation which required the use of a wheelchair for six months. In 2013, he lost his employment, suffered depression as a result and sought treatment from a psychiatrist. The treating psychiatrist provided a report to the Court for the purpose of the sentencing proceedings.  That report disclosed that the psychiatric treatment the respondent received included inpatient treatment at an interstate facility for a few months in 2014.  The respondent’s psychiatric condition had stabilised by 2019, but following the commission of this offence in December 2022 he recommenced psychiatric treatment which was continuing at the time of sentence. He suffered symptoms attributable to a severe post-traumatic stress during 2023, although by the time of sentence they had gradually decreased to a “tolerable level” as a result of medication, therapy and support from family and friends.

    The sentencing proceedings

15. The sentencing Judge accepted that the respondent was self-medicating with cannabis due to chronic pain at the time of the offence.  After the offence he was prescribed medicinal cannabis which has been effective in treating his chronic pain and assists both with sleeping and mitigating his psychiatric conditions.

16. The sentencing Judge also accepted that the respondent had a very good work record and was a person of good character.  He had no criminal history.  A number of positive and supportive references were received into evidence for the purpose of the sentencing proceedings.  The sentencing Judge concluded by reference to those matters that the respondent’s prospects for rehabilitation were excellent and his risk of reoffending was “extremely low”.

17. In determining the culpability of the respondent, the sentencing Judge noted that the courts have recognised two broad categories of offending of this kind. First, there are those offences which involve momentary inattention or misjudgement and, secondly, there are those offences in which the offender has driven in a manner which has shown a selfish disregard or a degree of recklessness for the safety of other road users and/or of passengers in the offender’s vehicle.  The sentencing Judge observed that when determining into which category the offending fell, it was not appropriate to focus solely upon the actions of the respondent in turning the gear selection dial to the wrong setting and applying force to the accelerator rather than the brake.  In our respectful view, the sentencing Judge correctly found that the whole of the circumstances must be taken into account in assessing the objective seriousness of the offending and the moral culpability of the offender.

18. The respondent’s decision to drive whilst affected by cannabis and the respondent’s decision to drive a vehicle which he knew was not suitably modified as required by his licence conditions were both circumstances of continuing default which subsisted at the time of the commission of the offence.  The sentencing Judge accepted that the respondent was under the influence of THC at the time and this contributed to the errors made in selecting “Drive” and depressing the accelerator instead of the brake.  Whilst the failure to modify the vehicle as required was not directly causally related to those errors, it formed part of the aggregation of factors to be taken into account in assessing the recklessness of the respondent’s conduct.

19. Having regard to those factors, the sentencing Judge classified the offending as falling within the second category of case described above involving disregard of other road users, intoxication and recklessness.  However, it was noted this was “not the most serious example of cases” of its kind.  The sentencing judge adopted a starting point of imprisonment for four years, which was reduced to three years to reflect the respondent’s early plea, his acceptance of responsibility and his remorse.  In the course of determining the structure of the sentence the sentencing Judge found that a period of imprisonment was likely to be considerably more onerous for the respondent than it would be for other members of the community.  On that basis, the sentencing Judge determined that there should be a short period of actual imprisonment, followed by a period of home detention.  In addition to the sentence to imprisonment, the respondent’s driver’s licence was cancelled and he was disqualified from holding a licence for a period of four years from the date of sentence.

    Custody considerably more onerous for the respondent

20. The first ground of appeal pressed by the appellant is that the learned sentencing Judge erred in finding that the respondent’s time in custody would be “considerably more onerous for [the respondent] than it would be for other members of the community”, as that finding was not open on the evidence. Before addressing this ground it is appropriate to note that the appellant provided comprehensive written submissions regarding the standard to be applied where factual findings are challenged on appeal.  It is submitted that this Court erred in Duong v The Queen[2] in concluding that where an appellant seeks to challenge a finding of fact made by the primary sentencing Judge, the Court need not be satisfied that the factual finding was legally erroneous in the sense of being unreasonable or not open on the evidence. The Court held in Duong (at [24]) that it was the role of the Court to conduct “a real review of the plea on sentence and the sentencing remarks to see whether the sentencing Judge erred in fact”, not confined to “errors of fact which also constitute errors of law”.

21. It is the appellant’s contention by reference to intermediate appellate court decisions in other jurisdictions, and to the largely common form wording of the relevant statutory provisions in the various Australian jurisdictions, that the appellant must establish that the sentencing Judge has fallen into legal error in order to disturb a finding of fact on appeal.  That presents a more stringent test for the appellant to satisfy in order to succeed on this ground of appeal, and the respondent unsurprisingly concurs with the appellant’s submission in that respect.  Notwithstanding the industry of the appellant and the force of those submissions, it is neither necessary nor appropriate to determine that issue for the purposes of this appeal in the absence of a proper contradictor and in light of the conclusions we have reached on this ground which are described below.

22. Moving then to the substantive challenge, the appellant submitted that the finding that the respondent’s time in custody would be “considerably more onerous” than for other members of the community due to his “physical disability”, “mild cognitive impairment” and “significant psychiatric illness” was not available on the evidence. It was noted by the appellant that the comparison should be to other prisoners rather than other members of the community, but nothing turns on this distinction for present purposes.

23. This conclusion was a significant consideration in the sentencing Judge’s determination to suspend the respondent’s sentence to imprisonment after he had three months upon entry into a home detention order.  The sentencing Judge observed in that respect:

    I have decided that a period of home detention alone would be insufficient to serve the purposes of general deterrence and denunciation. However, the period of actual imprisonment, while necessary to reflect the seriousness of what you have done, needs to be balanced with the other factors which call for the exercise of mercy. In particular, I take into account your physical disability, your mild cognitive impairment and your significant psychiatric illness.

    It is plain to me that a period of imprisonment is likely to be considerably more onerous for you than it would be for other members of the community. For that reason, I consider that there should be a short period of actual imprisonment, followed by a period of home detention.

24. The onus rested upon the respondent to establish on the balance of probabilities that his time in custody would be more onerous than that of the average prisoner.[3]  As was observed in Doudar v The Queen:

    Generally, ill-health will only be a mitigating factor where the evidence establishes that there is a serious risk that imprisonment will be a greater burden on the offender, by reason of that ill-health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender’s health.[4]

25. The appellant submitted that the Court could not make a positive finding to either effect in the absence of evidence as to how the respondent’s personal circumstances would adversely impact his custodial experience in a meaningful way.[5]  It was the submission of the appellant that in this case the evidence before the Court did not show a basis for concluding that the respondent’s time in custody would in fact be more onerous and that the sentencing Judge’s conclusions were accordingly “speculative” in nature.

26. In reaching her conclusions in this regard, the sentencing Judge relied upon evidence from the forensic psychiatrist which was received by way of written report. That report provided the basis for the sentencing Judge’s findings in relation to the nature and progression of the respondent’s various physical and psychological conditions which have been summarised earlier in these reasons for decision. In addition to historical matters concerning those conditions, the report of the treating psychiatrist stated:

    Mr Hunt commenced a new episode of care from 22^nd of December 2023 after the tragic death of a child pedestrian where Mr Hunt was the driver of the vehicle that struck the child. He experienced severe PTSD symptoms throughout the course of 2023 including daily intrusive visual flashbacks of the accident, harrowing feelings of remorse and guilt, insomnia, frequent emotional stress responses and recurrent episodes of suicidal ideation. The symptoms have gradually decreased to a tolerable level with an increase in the antidepressant and antipsychotic doses in addition to exploration and validation of emotions in safe therapy sessions and the ongoing support of close family, friends and neighbours. He has been able to emotionally and mentally prepare himself for the outcome of court proceedings.

1. Contrary to the submission of the appellant, the final sentence of that paragraph does not suggest other than that the respondent had given consideration to the prospect of imprisonment and anticipated the likelihood of imprisonment. It does not reflect on the assessment of whether or not imprisonment would be more onerous for him than other prisoners.  The sentencing Judge also made reference to the home detention report which recorded that at the time of sentence the respondent often experienced low moods which could last from hours to days, and that his wife was able to identify those times and spend time motivating him to undertake different tasks to assist with elevating his mood.

2. It was the submission of the appellant that the opinions given by the treating psychiatrist did not refer to the likely custodial experience of the respondent, and there was no direct evidence of how his mental and physical condition (including the wearing of his prosthesis) would be adversely affected by being in custody. However, a finding in relation to the impact of imprisonment on an offender does not necessarily require specific expert or other evidence as to each aspect of the offender’s likely adverse response to the custodial environment. Given the evidence of the physical and psychiatric conditions suffered by the respondent, it was open to the sentencing Judge to draw inferences as to the likely impact of incarceration upon him. This does not involve speculative reasoning, but rather the drawing of reasonable inferences from the evidence.

3. The finding of the sentencing Judge was that the respondent’s time in custody would likely be more onerous for the respondent than in the ordinary case, which amounted to an assessment of the probability of future hardship and the relative level of that hardship.  As the respondent submits, the submissions of the appellant discount the role of inferential reasoning and fact-finding drawn from what was known about the respondent’s various conditions, and the judicial notice which may be taken of matters of common knowledge in this locality concerning the general conditions of imprisonment.[6]  It is, as the respondent submitted, a predictive task for which evidence of actual hardship is rarely available. This is particularly so in the case of offenders such as the respondent who have not experienced prison at the time of sentence.

4. As described above, the sentencing Judge drew upon the information available from the report of the treating psychiatrist and from the home detention report to reach her conclusions. The relevant findings were made by reference to the combination of the physical, cognitive and psychiatric illnesses suffered by the respondent.  Those findings included that the respondent had a physical disability, a mild cognitive impairment and a significant psychiatric illness.  Whilst the treating psychiatrist did not, and in all fairness could not, provide specific opinion as to how imprisonment would affect the respondent, it was reasonable to infer that incarceration for the respondent would be significantly more onerous than it would be for other prisoners.  As was observed in R v Verdins:

   Self-evidently, a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health.[7]

5. Whichever test might be applied in the assessment, we see no error on the part of the sentencing Judge in drawing inferences from the evidence regarding the likely impact of incarceration upon the respondent. The inferences were unexceptional and reasonably available to be drawn from the primary evidence.

   Manifest inadequacy

6. The other ground of appeal pressed at the hearing was that the suspension of the respondent’s head sentence after serving three months’ imprisonment upon entry into a home detention order for a period of nine months was manifestly inadequate in all the circumstances. 

7. The principles relevant to Crown appeals against sentence are well established.  Such appeals should be a rarity and brought only to establish some matter of principle and to afford the Court of Criminal Appeal an opportunity to lay down principles for the guidance of courts in sentencing offenders.[8]  When relying upon the ground of manifest inadequacy, it is incumbent upon the appellant to show that the sentence was clearly and obviously, and not just arguably, inadequate. It must be shown that the sentence is so disproportionate to the seriousness of the offending as to shock the public conscience and demonstrate error in principle.[9]  Where manifest inadequacy is found, the appellate court retains a residual discretion as to whether the appeal should be allowed and the respondent resentenced. In the exercise of the residual discretion the Court must not take into account any element of double jeopardy in making the decision whether to allow the appeal or impose another sentence.[10]

8. General deterrence will be a primary purpose of the sentencing exercise when determining an appropriate sentence for offences of dangerous driving causing death.[11]  That is especially so where the driving was reckless and the moral culpability of the offender is high.  The other sentencing principles which are relevant for present purposes include:

   (a)the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of very significant seriousness, and the real substance of the offence is not just the dangerous driving, but the dangerous driving in association with the taking of human life;[12]

   (b)a custodial sentence will usually be appropriate, except in cases where the offender’s level of moral culpability is very low in relative terms;[13]

   (c)the driver’s moral culpability must be taken into account together with the “objective dangerousness” of the driving, and a person who drives dangerously knowing of a risk associated with his driving will (all other things being equal) be adjudged more blameworthy than one who drives in the same dangerous manner without that knowledge;[14] and

   (d)the primacy of general deterrence is such that, ordinarily, it outweighs remorse or the rehabilitation of an offender.[15]

9. The respondent had a high degree of moral culpability in this offending.  He made a number of regrettable and deliberate decisions that put others at risk, including:

   (a)not modifying his RAM 1500 motor vehicle in accordance with his licence conditions if he proposed driving the vehicle;

   (b)consuming cannabis so as to impair his ability to drive in the manner and to the extent described by the expert witness;

   (c)driving to the supermarket in the unmodified vehicle whilst impaired by the THC in his system; and

   (d)reversing the vehicle without being properly seated within it and without being in proper control of it on more than one occasion.

10. Those deliberate and reckless decisions were then aggregated with the inattentive or misjudged actions of the respondent in selecting “Drive” and depressing the accelerator instead of the brake to cause the tragic death of a child.  As the appellant submitted, the conduct of the respondent was far removed from a case of momentary inattention or misjudgement. There is no doubt that the sentencing Judge was correct to take into account the respondent’s personal circumstances, including his physical and psychiatric conditions, lack of criminal history, demonstrated remorse and low likelihood of reoffending. However, as Hunt CJ at CL observed in Musumeci:

    The sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.[16]

11. In this case, the suspension of the sentence after three months upon the respondent entering into a home detention order for a period of nine months was, in our opinion, manifestly inadequate in all the circumstances.  Such a sentence was not proportionate to the seriousness of the offending and did not provide sufficient emphasis upon the need for punishment, denunciation and general deterrence, or take sufficient account of the fact and manner of the taking of the child’s life.

12. Even where the manifest inadequacy is such as to demonstrate error in point of principle, as we have found, the appellate court must carefully consider whether in the exercise of the residual discretion this is one of those exceptional cases in which the Crown appeal should be allowed and the respondent resentenced.[17]  That is because the finding that the sentence was manifestly inadequate by virtue of the head sentence being suspended after three months is sufficient in itself for the purpose of providing guidance to sentencing courts in relation to offences pursuant to s 174F(1) of the Criminal Code.

13. The matters informing the exercise of the residual discretion to dismiss an appeal, despite inadequacy of sentence, include the presence of unfairness arising from such matters as delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.  In the present case, the respondent has already been released from prison and is now serving his home detention order.  This provides at least some basis for the contention that now returning the respondent to prison would give rise to unfairness and impact adversely on his rehabilitation. However, as observed in Everett v The Queen:

    … inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. …. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.[18]

14. In a similar vein, the New South Wales Court of Appeal stated in R v Stoupe:

    It is in the public interest that an appropriate sentence be imposed upon the Respondent, given the clearly erroneous sentence imposed at first instance. An important part of the jurisdiction to hear Crown appeals is to ensure that there will be uniformity of sentencing, which is of great importance in maintaining public confidence in the administration of justice.

    …

    The present judgment will serve to lay down or emphasise a number of sentencing principles. However, it is appropriate for the Court to proceed to resentence the Respondent. This will serve to maintain public confidence in the due administration of justice.[19]

15. In an earlier decision of the New South Wales Court of Criminal Appeal, Adamson J (with whom RA Hulme and Davies JJ agreed) said:

    Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion.

    Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative respondents. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen (2005) 228 CLR 357 at [82] per McHugh J.[20]

16. For those same reasons, this is also a matter where the Court should proceed to resentence.  The sentence was such as to shock the public conscience, and to engender a sense of injustice in both those associated with the deceased victim and the wider community.

    Resentence and consequential orders

17. As already stated, the challenge to the head sentence imposed by the sentencing Judge was not pressed during the course of the appeal, and finding of manifest inadequacy is limited to the suspension of the sentence after three months.

18. In determining an appropriate sentence we take into account the matters referred to in the original sentencing proceedings, including that the respondent’s time in custody will be more onerous than would be the case for other prisoners.  We also take into account the additional material placed before this Court as to the respondent’s circumstances subsequent to the sentence being imposed, including the examples of the difficulties actually experienced by the respondent when he was in custody.  The additional materials also include advice that the respondent has suffered two seizures and, during the course of one, suffered a fractured T9 vertebrae.  One seizure occurred in the prison and the other when he was at home.  In relation to the first, he was admitted to hospital where he remained for 12 days.  The medical records reveal that no cause for the seizures could be identified. It has not been suggested that conditions in prison contributed to the occurrence.

19. In resentencing the respondent, we also take into account the fact that he will have served more than three months on home detention before his further imprisonment in accordance with these orders.

20. Having regard to those matters, we make the following orders:

    1.The appeal is allowed.

    2.The sentence imposed by the Supreme Court on 16 February 2024 is set aside.

    3.The offender is convicted and sentenced to imprisonment for a period of three years commencing on 16 February 2024.

    4.The sentence to imprisonment is to be suspended after the offender has served a term of imprisonment of 12 months, which is to include the period of three months already served prior to the offender’s release from prison on 15 May 2024 for the purpose of commencing home detention. 

    5.An operational period of two years from the date of the offender’s release after serving that 12 months’ imprisonment is fixed for the purposes of ss 40(6) and 43 of the Sentencing Act.

________________________

[1]    Although this ground of appeal was not pressed at the hearing, the appellant maintains the position that the sentencing standard for the offence of dangerous driving causing death in the Northern Territory is low when compared to other Australian jurisdictions.  Although the material before the Court in this appeal did not permit an exploration of that contention, the appellant does not exclude the possibility that the issue will be pursued if an appropriate appeal vehicle arises in the future.

[2]Duong v The Queen (2021) 288 A Crim R 566.

[3]The Queen v Olbrich (1999) 199 CLR 270 at [20]-[25].

[4]    Doudar v The Queen [2021] NSWCCA 37 at [59].

[5]R v Calica (2021) 43 NTLR 7 at [157]; C v The Queen (2013) 229 A Crim R 37 at [41]; Doudar v The Queen [2021] NSWCCA 37 at [58]-[59].

[6]    See generally Evidence (National Uniform Legislation) Act 2011 (NT), s 144(1)(a).

[7]R v Verdins (2007) 16 VR 269 at [28].

[8]The Queen v Mossman (2017) 40 NTLR 144 at [8] et seq; The Queen v Roe (2017) 40 NTLR 187 at [11]-[20]; Griffiths v The Queen (1977) 137 CLR 293 at 310; and Everett v The Queen (1994) 181 CLR 295 at 300.

[9]    The Queen v Kahu-Leedie [2022] NTCCA 4 at [21].

[10]Criminal Code, s 414(1A).

[11]DPP v Oates (2007) 47 MVR 483 at [22]; DPP v Church (2005) 42 MVR 420 at 425; Board v The Queen [2013] VSCA 190 at [34].

[12]     R v Musumeci (unreported, NSWCCA, 30 October 1997, Hunt CJ at CL). 

[13]Demur v The Queen [2014] NTCCA 15; DPP v Oates (2007) 47 MVR 483 at [22].

[14]Board v The Queen [2013] VSCA 190 at [34].

[15]     R v Manok (2017) 81 MVR 427 at 441; R v Musumeci (unreported, NSWCCA, 30 October 1997, Hunt CJ at CL). 

[16]     R v Musumeci (unreported, NSWCCA, 30 October 1997, Hunt CJ at CL) at 5. 

[17]     R v Riley (2006) 161 A Crim R 414 at [18]-[20].

[18]Everett v The Queen (1994) 181 CLR 295.

[19]     R v Stoupe [2015] NSWCCA 175.

[20]     R v O’Connor [2014] NSWCCA 53 at [88]-[89].