The Queen v O'Brien
[1987] TASSC 47
•27 August 1987
A43/1987
List “A”
CITATION: The Queen v O'Brien [1987] TASSC 47; A43/1987
PARTIES: THE QUEEN
v
O'BRIEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL
JURISDICTION: APPELLATE
FILE NO/S: CCA 46/1987
DELIVERED ON: 27 August 1987
DELIVERED AT:
HEARING DATE:
JUDGMENT OF: Nettlefold, Underwood and Wright JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: A43/1987
Number of paragraphs: 54
Serial No A46/1987
File No CCA 46/1987
THE QUEEN v O'BRIEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
UNDERWOOD J
WRIGHT J
Orders of the Court:
Leave to appeal granted
Appeal against sentence allowed.
A sentence of 12 months imprisonment is substituted for the sentence of four months imprisonment.
The order disqualifying him from holding a licence to drive a motor vehicle for three years is confirmed.
Serial No A46/1987
File No CCA 46/1987
THE QUEEN v O'BRIEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
27 August 1987
The facts are contained in the reasons for judgment of my learned brother Wright J which I have had the advantage of reading in draft. It will serve no useful purpose to set them out again.
The case involves a really wicked piece of driving. The principal facts which justify that description of it are:
(1) He had a blood alcohol level of .209 per cent. Asked whether he was affected by the alcohol when he started the fatal journey he replied "Yes, yeah, that's when I stacked, yeah, I was pissed". Asked "By that do you mean that you were affected to an extent where it was possibly difficult for you to operate your car?" he replied "Yeah, I could operate the car alright, but I couldn't see too good. I reckon I'd go 20".
(2) During the journey a police officer attempted to pull the respondent over because the officer noticed that the vehicle was not displaying tail lights The respondent later admitted that he saw the police vehicle and said "If they want me they'll have to catch me and I'll give them a go". He also made the following admission, "I took off up Mount Street flat out. When I got over the brow of the hill I lost it. I don't know what happened then".
(3) In attempting to evade the police the respondent's vehicle went through a series of red lights in central Burnie, a total of five red lights en route to where the collision occurred. When he lost control of the vehicle in a shopping area his vehicle was travelling at a speed of approximately 140 kilometres per hour. The vehicle went sideways across the road, mounted the kerb, became airborne and struck a hydro pole breaking it off 1.25 metres above the base of it. The vehicle was almost cut in half. His passenger, a young girl, was thrown from the vehicle into the gutter and killed instantly.
(4) The respondent admitted that he came over the crest of a hill, looked back and could not see the police vehicle. He was going to slow down and must not have had his mind on what he was doing. He looked up and saw a vehicle in front of him heading in the same direction. He did not see that vehicle until the last minute and just swerved to miss it and hit the pole.
Notwithstanding the mitigating factors which were entitled to substantial weight – lateness of the hour, light traffic, youth, genuine remorse evidenced in convincing ways, prior good character, shock at the loss of the life of his friend and good prospects of rehabilitation being the principal ones – with respect, the sentence imposed plainly failed to publicly condemn such wicked conduct emphatically and did not constitute an adequate deterrent to persons minded to gamble with the lives of others in such a grossly irresponsible way.
It is a matter for regret that this application was not brought on for hearing before the respondent was released from prison. However, that circumstance is not the fault of the Crown. It is hard on him to go back again. But, in all the circumstances, that is the proper course.
I agree that the Court should make the following orders:
1 Leave to appeal granted.
2 Appeal against sentence allowed.
3A sentence of 12 months imprisonment is substituted for the sentence of four months imprisonment.
4The order disqualifying him from holding a licence to drive a motor vehicle for three years is confirmed.
Serial No A46/1987
File No CCA 46/1987
THE QUEEN v O'BRIEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD J
27 August 1987
This is an application by the Attorney–General, pursuant to the Criminal Code, s401(1)(c), for leave to appeal against a sentence of four months imprisonment imposed upon the respondent's conviction for manslaughter. In addition to the sentence of imprisonment, the respondent was disqualified from holding or obtaining a drivers licence for three years. No complaint is made about the latter aspect of the sentence. The single ground of appeal is that the sentence was manifestly inadequate having regard to the circumstances of the case.
On the 9 January 1987 the respondent was attending his eighteenth birthday party in Burnie. In the early hours of the following morning, after an argument with his girlfriend, the respondent left the party in his motor vehicle. He had with him his girlfriend's sister, aged 16. Shortly after leaving the party, he was seen by the police driving without tail lights in the centre of Burnie. The police attempted to stop the respondent. He said to his young passenger, "if they want me they'll have to catch me and I'll give them a go". The respondent then set off at high speed, travelled through five sets of red traffic lights and proceeded up Mount Street at a speed in the order of 120 kilometres per hour. At the top of Mount Street there is a hump in the road which momentarily obscures a driver's view of the road ahead. The respondent travelled over this hump, saw a vehicle in front of him and braked but lost control. His vehicle skidded across the road and hit a Hydro pole, snapping it in two. The 16 year old passenger was flung out of the car and killed instantly. The respondent suffered only minor injury.
There were no mitigating circumstances surrounding the commission of the offence. The respondent's blood alcohol concentration was .209%, a state of affairs he was well aware of for he said to the police before the breath test was taken, "yeah, I could operate the car alright, but I couldn't see too good. I reckon I'd got about .20".
Just 37 days after first obtaining a licence, the respondent was convicted of being a first year driver and driving a motor vehicle with alcohol in his body. On the 21 April 1986 his licence was suspended for six months. A little less than three months after his licence had been returned to him the respondent committed this crime of manslaughter.
It is quite clear that the respondent was aware that his driving ability was impaired to a substantial degree by the consumption of alcohol. He knew the police wanted him to stop He knew of the hump in Mount Street and that it was an obstruction to his vision. Notwithstanding all of that, he consciously and recklessly assumed the risk that his driving might result in the occurrence of a serious accident and, in so doing, put in jeopardy and ultimately extinguished the life of his 16 year old passenger.
Before the learned sentencing judge it was established that the respondent came from a good stable family background and was generally of good character. It was also established that he was extremely remorseful and had pleaded guilty at the earliest opportunity. It appeared that the victim's family had accepted the respondent's remorse and, at least some of them, had provided him with moral support.
In his comments on passing sentence the learned sentencing judge said, with reference to the respondent's manner of driving:
"That might be excusable in a young person, were it not for the fact that you've already had a previous conviction for driving with alcohol in your blood and you ought to have known and no doubt you did know, that to drive in the condition in which you were, described by you as affecting your vision, was to create danger, not only to your passenger but to other members of the public, so that what's involved in your crime is that you were prepared to take the risk of really serious injury to others in order to satisfy – either your desire for speed or your anger at your girlfriend and you were prepared to do that with your girlfriend's sister in the car with you".
A little later on his Honour said:
"Now manslaughter involving the use of a motor vehicle, as I have said, is a very serious crime and it is one which must be seen to be punished in order to deter others who might be of a similar frame of mind to you from using their motor vehicles in that aggressive way and particularly in that aggressive way when affected by alcohol."
His Honour went on to refer to the respondent's background and the shock of the death on his life before imposing an immediate custodial sentence of four months.
Thus, it can be seen, that his Honour articulated all the important matters relevant to the imposition of a sentence for the crime in respect of which the respondent had pleaded guilty.
The principles governing appellate review of a sentence said to be inadequate, are the same as those governing appellate review of a sentence said to be excessive. See R v Thomas [1975] Tas SR 116 (NC); R v Smith and Hinds CCA 78/84; R v Butler [1971] VR 892; R v Holder [1983] 3 NSWLR 245.
Those principles have often been stated. See Cranssen v The King (1936) 55 CLR 509 at 520; House v The King (1936) 55 CLR 499 at 505. The are succinctly stated in the joint judgment of the Court in R v Tait (1979) 46 FLR 386 at p 388,
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error"
In R v Williscroft and Ors [1975] VR 292 Adam and Crockett JJ said at 300:
"Now, ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process Moreover, in our view, it is profitless . . . to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination."
As part of the process of review, an appellate court can and should have regard to comparative sentences imposed within its jurisdiction. Adam and Crockett JJ in Williscroft (supra) said at 301:
"So, too, a judgment as to what is appropriate by way of sentence must depend upon knowledge of sentences for the same or similar offences which is derived from personal experience or any other source."
In R v Gronert (1975) 13 SASR 189 Bray CJ said at 193:
"There is no rule of law prescribing any particular methods which an appellate court must adopt in assessing whether a sentence under appeal is out of line with current sentences and it would, in my view, be unfortunate if this were ever attempted."
The practice of weighing the sentence passed against "the tariff" is one which has been frequently adopted by this court. See for example, G M Jones v The Queen CCA 54/63; Papozoglu v The Queen [1963] Tas SR (NC) 182; R v Lavelle CCA 33/83; Tracey and Ors v The Queen CCA 38/87 .
This practice has the advantage of consistency, a matter referred by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610:
"Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated is lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
However, care must be taken not to resort to "the tariff" at the expense of the circumstances of the particular offence and the individual offender. In Reynolds v The Queen CCA 46/74 Nettlefold J said at 12 of his reasons for judgment:
"The difficulty about the 'comparable sentence approach' is that there is no 'comparable sentence' because the circumstances vary so widely from case to case. But to say that is not to deny the relevance of a well established trend in sentencing over a substantial period of time, a period of time long enough to neutralise the element of personal idiosyncrasy."
In cases of "motor manslaughter" and causing death by dangerous driving, the courts have frequently emphasised the need to impose a penalty which will operate as a strong deterrent to others See Sheldrick v The Queen CCA 41/60; Wise v The Queen [1965] Tas SR 196; Tytler v Peterson [1969] Tas SR (NC) 193; R v Milner Chambers J 31/74.
The only substantial matter of mitigation in the present case was the youth of the respondent. It is a well accepted principle that, in the exercise of the sentencing discretion in the case of youthful offenders, reformation and rehabilitation is a matter of great weight. But, it is only one factor, albeit a substantial one, and it must be placed in the scales and weighed with all the other relevant factors.
An examination of the sentences passed in this State upon convictions for "motor manslaughter" and causing death by dangerous driving during the past six years discloses:
(1)that a very high percentage of those convicted were young offenders of good or relatively good character and,
(2)that a sentence of four months imprisonment is below the range of sentences imposed in bad cases such as the present one.
Any consideration of the deterrent aspect of sentences for crimes where death is caused by dangerous driving involving conscious risk taking, must acknowledge the fact that a high proportion of offenders fall into the youthful category. It is a notorious fact that young people consume alcohol, often to excess, and then resort to driving motor vehicles thereby putting members of the public at grave risk. In the sentencing process, the need to deter this class of offenders weighs heavily against the reformative and rehabilitative factors leading to the conclusion that, in most cases, a substantial immediate custodial sentence is appropriate.
After anxious deliberation, I have reached the conclusion that the learned and very experienced sentencing judge fell into error by placing too much emphasis on the youth of the respondent and failed to give sufficient weight to the need to impose a sentence which would have this deterrent effect. In my opinion, a proper sentence would have been 12 months imprisonment.
Before this appeal can succeed, the Attorney–General needs the leave of the court. Neither counsel for the respondent nor counsel 'for the appellant addressed the court on this issue. On this point, I would venture to refer to the following passage in the judgment of Street CJ in R v Holder (supra) at 255:
"An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequate may be given, so to speak, a second opportunity of operating in the convicted person's favour."
For an extensive review of the matters to be taken into account before granting the Attorney–General leave to appeal against sentence; see "Dismissal of Crown Appeals Despite Inadequacy of Sentence" by F Rinaldi (1983) 7 Crim LJ 306.
The respondent was released from custody on the 10 August 1987. The distasteful result of granting leave, allowing the appeal and substituting a longer sentence , will be to return this young man to gaol. However, I think that the circumstances attendant upon the commission of the crime were so culpable that leave should be granted notwithstanding the regrettable consequence. The length of time the respondent has been at liberty is not great and there was no suggestion that the Crown had not acted with due diligence in bringing the appeal on for hearing.
The period spent in custody must be taken into account and in order to avoid any risk of injustice the period following discharge from custody should be ignored.
I would grant leave to appeal, allow the appeal and quash the sentence. In lieu thereof I would impose a sentence of 12 months imprisonment to date from the 11 May 1987. I would also confirm the order disqualifying the respondent from holding or obtaining a driver's licence.
Serial No A46/1987
File No CCA 46/1987
THE QUEEN v O'BRIEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
27 August 1987
Excluding only those rare cases in which a motor car has been intentionally used as a weapon, the crime of manslaughter is the most serious offence which can arise out of the use of a motor car.
Whilst it may be difficult to jurisprudentially distinguish it from the analogous offence of dangerous driving causing death (R v Seymour [1983] 2 AC 493), it is perceived by lawyers and laymen alike as being a more serious crime and therefore, one deserving more severe punitive measures It matters not whether the concept of "recklessness" required to sustain a conviction for manslaughter is that embraced by the House of Lords in Reg v Lawrence [1982] AC 510 or the more traditional definition in terms of subjective awareness of danger by the offender. In practice an indictment for manslaughter is reserved for those cases involving homicide caused by extreme culpability arising out of situations of patent danger created, typically, by the combination of high speed and intoxication.
The case before us serves as a good illustration. The respondent, a young man of 18 with a blood alcohol level of .209% attempted to escape from a police car by driving at speeds of up to 140 kilometres per hour through central city and suburban streets in Burnie at 2am on 10 January 1987.
He lost control of his vehicle and collided with a power pole thereby killing his female passenger. He was travelling so fast that his car was airborne as it hit the pole after colliding with the kerb.
It would be difficult to envisage a more heinous case and any attempt to excuse, justify or mitigate his conduct by reference to the actual circumstances is doomed to failure.
When presented before the Supreme Court at Burnie on 11 May 1987 the respondent entered a plea of guilty to manslaughter. He was sentenced to 4 months imprisonment and was disqualified from holding a driving licence for 3 years The Crown now applies for leave to appeal against that sentence on the ground that it was manifestly inadequate.
No errors of fact or specific errors of law were complained of but it was submitted that the sentence passed was so far below the acceptable range as to demonstrate in itself that the learned sentencing judge's discretion had miscarried.
It is plain from his honour's remarks in passing sentence that he took into account the respondent's youthfulness, his prior good character and the shock and remorse that the consequences of his behaviour had caused to him. It may also be assumed that the respondent's decision to plead guilty enabled a saving in public expense and provided confirmation of his genuine regret for what he had done and that these matters were also taken into account by his honour.
In the absence of such factors, all of which may be legitimately taken into account, (Reg v Hewett (1981) 27 SASR 81), it could, in my opinion, fairly be said that a proper sentence would have been in the range of eighteen months to 2 years imprisonment together with a substantial licence disqualification.
The critical question for resolution in this application therefore appears to me to be whether or not the learned sentencing judge either accepted too low a bench mark as the starting point for his deliberations or alternatively, whether he discounted a proper sentence too heavily on account of the respondent's age and the other personal factors which I have mentioned.
There was no suggestion in the present case that the accused was intellectually impaired so the special consideration which arose in that respect in Paynter v The Queen 95/64 and The Queen v Koeppen 101/82 do not arise here.
The significant and consistent principle which can be gathered from the cases is that punishment for this type of offence requires the imposition of a sentence which serves as a strong general deterrent not only to the individual involved but to other potential offenders See Sheldrick v The Queen 41/60, Wise v The Queen [1965] Tas SR 196. In the latter case the following observations of the Chief Justice, Sir Stanley Burbury in Sheldrick (supra) were quoted with approval:
"Speaking for myself, I desire to make it quite plain that in the case of a serious case of dangerous driving I think it is the duty of the trial judge to impose a term of imprisonment as a deterrent to others. If he does not do so I think he would be weakly merciful and failing in his duty. Those who drive in a manner dangerous to the public must, in my view, expect to go to gaol for this offence, however irreproachable their characters may be. I have myself taken this view in two cases in which I was the trial judge – R v Cripps, and R v Foster – in the first case I imposed a term of imprisonment of twelve months – a very serious case, and in the second case a term of imprisonment of four months. They were both cases of young men with good characters. To my mind questions of good character and youth are in this type of case entirely subordinate to the deterrent aspect of punishment. Moreover the sentence is imposed primarily not for the purpose of deterring the particular offender from offending again but for the purpose of deterring others It is a type of case where the reformatory aspect of punishment has I think little relevance. (See Whittall v Kirby [1947] KB 194). That is to say, the individual circumstances of the offender are subordinate to the necessity in the public interest of imposing a gaol sentence to deter dangerous drivers."
See Also Tytler v Peterson 38/1969 Neasey J at 7 – 8 and R v Milner 31/74, Chambers J at 7 – 8.
In evaluating the actual sentences imposed in the cases just mentioned it is worth bearing in mind that they were all dealing with the imposition of sentence in respect of "driving at a speed or in a manner dangerous to the public" which was the appropriate, but lesser, alternative to manslaughter before the Code was amended in 1975 by the introduction of s167A creating the new offence of "causing death by dangerous driving".
As Sir Stanley Burbury CJ also said in Sheldrick (supra) at 5:
"Another matter to be borne in mind is that in the present case, because the jury has acquitted the accused of manslaughter, the sentence imposed should not approach too closely the kind of sentence to be expected in motor manslaughter cases The ingredients of the offence of dangerous driving make it generally a substantially lesser crime than that of 'motor manslaughter'. A sentence for dangerous driving must bear a proper relationship to the proper sentence in the case of motor manslaughter. And generally it appears that sentences in Tasmania and elsewhere for the offence of dangerous driving are substantially less than sentences imposed for manslaughter."
It is therefore not possible to argue on the basis of the sentences actually imposed in respect of convictions for dangerous driving before 1975, (even those where a death had resulted,) that they provide a comparison with the sentence imposed in the present case which is favourable to the respondent. Their significance and value lie in the guidance which they provide as to the correct principles applicable in sentencing offenders committing serious traffic offences
In my respectful view this approach found recent apt expression in the words of Derrington J in R v Calder ex parte the Attorney General (1987) 1 Qd R 348 at p358 where he said:
"Community cost and individual suffering from these cases has reached a most serious degree. Each offence such as this inflicts the most serious individual pain and loss, and collectively the large incidence of such violence produces enormous community loss This is both economic and, if it continues, moral in the brutalising effect of acceptance of such disregard for the lives and safety and rights of others It is moreover a cost that can be avoided, at least, ex hypothesi, in those cases where an offence of this nature is committed. It is distinguishable from the casual act of negligent driving which may still lead to a charge. Ordinary humanity can be more forgiving of the latter, but there is nothing valid to be said in mitigation of the conduct of a person who drives whilst seriously affected by drink and kills someone.
One must avoid the extremes of the emotive response with which these matters are dressed up in media coverage, and must address the problem with calm rationality. That still leads to a recognition of the gravity of the offence, which is mostly unacknowledged by those persons who are irresponsible enough to commit it. They must by now be regarded as having had fair warning.
As well as considerations of punishment by way of retribution the courts must impose appropriately heavy punishment, not for the base purpose of exacting emotional vengeance upon the offenders, but by way of deterrence in order to protect the community. While the prior good character of the offender and the disgrace and loss which he will undoubtedly suffer by a long term in gaol may be relevant to punishment, they lose significance compared with the need to protect the lives of other people. Besides, if, as in this case, the offender already has one prior conviction for drink driving, when he repeats his conduct to the point of killing someone he can hardly make claim to a good character. My general observations however are not confined to such a case.
While the punishment must be severe, it must not be vengeful and unreasonable and, having regard to the lack of intent to cause harm, must admit of some relief for the offender in the passage of time in the recognition of the gravity of punishment involved in a gaol term, in the hope of rehabilitation and in the name of proper compassion."
It is a sad but indisputable fact that a large proportion of offenders who commit motor manslaughter or who cause death by dangerous driving are in their late teens or early twenties and thus the respondent in the present case falls within the very category of offender whom it is hoped to deter by the imposition of a substantial term of imprisonment.
Accordingly it seems to me that his youthfulness can only have a very limited effect in reducing an otherwise appropriate sentence. Similarly, as noted by Bray CJ in Reg v Thompson (1975) 11 SASR 217 at 222 in discussing a sentence for causing death by dangerous driving:
"'I realize to the full that the appellant is a man of good character and worthy of respect, that he is not, in the ordinary sense of the word, a criminal, that he had no intention of harming anyone, and that imprisonment will be to him a great hardship and a great indignity. He does not stand in need of reformation or rehabilitation. But, as I have said in other contexts recently on more than one occasion, there are offences where the deterrent principle must take priority and where sentences of imprisonment may properly be imposed, even on offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. Offences against the public safety may often legitimately fall into this class'".
It therefore seems to me that youthfulness and prior good character provide factors of only minor significance in assessing sentence in a case of this kind. In any event it may be argued that the respondent was not in any relevant sense a person of prior good character because on 21 April 1986, some 8 months prior to the incident now in question, he had been convicted and fined for being a 1st year driving with alcohol in his blood and for disobeying a give way sign, both of which offences arose out of a single incident on 12 February 1986.
The other factors – remorsefulness and an early plea of guilty – may also be taken into account in the respondent's favour but again, consistently with what I have been saying I think they have only a limited operation.
Indeed my final position is that giving the fullest possible weight to these mitigatory considerations I am quite unable to see how a sentence of less than 12 months imprisonment could be justified in the present circumstances. No attack has been made upon the duration of the licence suspension imposed by the learned sentencing judge but in any event it appears to me to be entirely appropriate. It was recognised in Wise v The Queen (supra) that an excessively long period of suspension smacks of retribution and may hinder rehabilitation. I would also add that an unreasonably long suspension tends to encourage the commission by the offender of the further serious offence of driving whilst disqualified. In result therefore I would allow the Crown application for leave to appeal, I would allow the appeal and I would impose a sentence of 12 months imprisonment together with a disqualification from holding or obtaining a driving licence for a period of 3 years calculated from the date of the respondent's final release from prison.
As the respondent's original sentence commenced on the 11 May 1987 I take the view that the sentence imposed by the court should also commence on that date. In saying this I am aware that the respondent was actually discharged from prison some days ago having served his sentence in accordance with Cosgrove J's order I believe the course which I now propose is fraught with less risk of injustice to the respondent than any other alternative. It effectively allows full remission for good behaviour over the total period of the sentence without creating anomalies which could possibly arise by directing the commencement of the sentence from a later date with credit for the time already served. I am also doubtful whether such a course would be legally permissible. I am conscious too that the imposition of sentence in the way I have proposed, takes no account of the several days that the respondent has now been at liberty, but in the overall picture I regard this as unimportant.
3
6
0