Wahl v Tasmania

[2012] TASCCA 5

[2012] TASCCA 5

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 Wahl v State of Tasmania [2012] TASCCA 5

PARTIES:  WAHL, Jade Victoriarnah
  v
  TASMANIA (STATE OF)

FILE NO/S:  746/2011
DELIVERED ON:  5 April 2012
DELIVERED AT:  Hobart
HEARING DATE:  29 February 2012
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Sentence – Relevant factors – Irrelevant factors – Error to give weight to a mental state that is an element of a more serious offence of a similar nature with which the offender could have been charged, but was not. 

Lovegrove v R [1961] Tas SR 106; R v De Simoni (1981) 147 CLR 383, applied.

Aust Dig Criminal Law [3292]

Criminal law – General matters – Criminal liability and capacity – Defence matters – Defence of persons or property – Application to cases other than murder – Application to a charge of causing grievous bodily harm by dangerous driving.

Criminal Code Act1924 (Tas), s46.
Aust Dig Criminal Law [2086]

REPRESENTATION:

Counsel:
             Appellant:  D Kerr SC, G J Barnes, A M M Browning
             Respondent:  A R Jacobs
Solicitors:
             Appellant:  Hobart community Legal Centre
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2012] TASCCA 5
Number of paragraphs:  45

Serial No 5/2012
File No 746/2011

JADE VICTORIARNAH WAHL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
WOOD J
5 April 2012

ORDERS OF THE COURT

1. Appeal allowed.

1. The global sentence of imprisonment imposed on the appellant on 4 August 2011 is quashed and in its place it is ordered that she serve a global sentence of four years' imprisonment cumulative upon the sentences that she was serving, and it is ordered that she be eligible to apply for parole after serving three years of the sentence of four years' imprisonment. 

Serial No 5/2012
File No 746/2011

JADE VICTORIARNAH WAHL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
5 April 2012

1. The appellant appeals against a global sentence of eight years' imprisonment, subject to parole eligibility after six years, imposed on her by Blow J consequent upon her conviction on charges of aggravated burglary, causing grievous bodily harm by dangerous driving, and perverting justice. 

1. The appellant's crimes were all committed in connection with a home invasion on 19 March 2010.  On that date the appellant drove her eldest son, together with three of his friends, two males and one female, to the home of another youth, Matthew Ward.  The female, who gave evidence, said the three males were aged 17.  The appellant knew that her son's intention was to assault Matthew Ward.  She parked her vehicle across the road from the home.  Her son and one of his male friends forced their way into the home, but being outnumbered, they fled.  The occupants of the home included Dianne Clifford, the mother of Matthew Ward.  Mrs Clifford and others approached the appellant's vehicle in a threatening manner.  In some haste the appellant drove off and as she did so, she drove over Dianne Clifford.  Subsequently, in an attempt to avoid being prosecuted for what she had done, the appellant twice told the police that her vehicle had been stolen.

1. By her appeal the appellant contends that the learned trial judge erred:

1by sentencing her on the basis that there were no mitigating factors in relation to the charge of causing grievous bodily harm by dangerous driving, when it was not disputed that her car had been surrounded by people she had reason to fear, and that passengers in the car were urging her to flee;

2by sentencing her on the basis that she must have intended to cause grievous bodily harm to the victim;

3alternatively, by imposing a sentence on her as severe as would have been warranted had she been convicted of a crime requiring the specific intent to cause grievous bodily harm to the victim;

4by imposing a head sentence that was manifestly excessive in the circumstances;

5by imposing a non-parole period that was manifestly excessive in the circumstances.

Ground 1

1. This ground of appeal was not pursued by counsel for the appellant in his written or oral submissions.  I can find no support for it in his Honour's comments on passing sentence and would reject it.

General

1. A jury found the appellant guilty of the charges.  It fell to the learned trial judge to determine the facts for the purposes of the sentencing.  In the course of doing so, his Honour said:

"I am satisfied beyond reasonable doubt that the circumstances were essentially as follows. Ms Wahl's eldest son was angry with the other youth, Matthew Ward. He said that he wanted to 'smash' him. He repeatedly demanded that his mother drive him to that youth's home. … Ms Wahl, who did not hold a driver's licence, drove her son to the other house knowing that he intended to assault Matthew Ward. They were accompanied by three of her son's teenage friends – two males and one female.

On arrival, Ms Wahl stopped the car across the street from the home of Matthew Ward. Her son and one of his male friends went to the front door. One of them kicked it open, with such force that a deadlock was torn from the door. They went inside. By entering the house as a trespasser, intending to commit the crime of assault, Ms Wahl's son committed the crime of aggravated burglary. By driving him to the scene, knowing what he intended to do, Ms Wahl aided him to commit that crime, and is therefore deemed also to be guilty of that crime under the Criminal Code, s3(1)(b).

…

The two intruders were outnumbered. They fled. Matthew Ward armed himself with a long heavy piece of wood, and chased Ms Wahl's son up the street. Matthew Ward's mother, Dianne Clifford, approached Ms Wahl's vehicle and stood in front of it. His brother also approached the vehicle. Ms Wahl decided to depart, and drove over Mrs Clifford, causing terrible injuries."

His Honour's findings with regard to those injuries included the following:

"Mrs Clifford was 45 years old when she was run over. She suffered a degloving injury to the left side of her face. That is to say, the skin on that side was torn off. She lost her left ear. She suffered a fractured jaw, a fractured pelvis, and a broken leg. She became a paraplegic. That is to say, she will never be able to walk again. She was flown to Melbourne for emergency hospital treatment. Initially there was a significant chance that she would die. She is now back in Tasmania, living in a private residence, and being cared for by her long-term partner. There is very little that she can do. She is very seriously disfigured. Her injuries have caused huge expense for her and the community, and will continue to do so for many years. She has no recollection of the events of the night in question.

The aftermath of this crime must have been dreadful for her partner and her sons, who were at the scene. Police officers gave evidence that there was not only blood on the roadway, but also fragments of bone, human tissue, and hair." 

Grounds 2 and 3

1. After noting that the appellant had defended the charge of causing grievous bodily harm by dangerous driving on two bases – mistake and self-defence, his Honour went on to make findings in relation to that charge.  As drawn, ground 2 asserts that his Honour found that the appellant intended to cause grievous bodily harm to Mrs Clifford, and ground 3 asserts that his Honour sentenced the appellant as if she had been convicted of a crime requiring a specific intent to cause grievous bodily harm.  In the following extracts from his Honour's comments I have italicised the portions referred to by counsel for the appellant in support of these assertions. 

"I am satisfied beyond reasonable doubt that Ms Wahl drove towards Mrs Clifford with her windscreen intact, and without anyone having told her that there was no-one in her path. She admitted to the police that she had seen Mrs Clifford standing in front of the car with her hands on it at one stage. There was evidence that Mrs Clifford was wearing a light top. Even though it was dark and the street lighting was minimal, I am satisfied beyond reasonable doubt that Ms Wahl must have been able to see Mrs Clifford, that she must have driven towards her knowing that it was at least likely that she would be knocked down and hurt, and that she drove towards her very quickly. There is no reason to think that Ms Wahl desired to inflict any harm on Mrs Clifford. I am therefore not satisfied beyond reasonable doubt that she intended to harm her, but I am satisfied beyond reasonable doubt that she drove at her, and knowingly drove over her, with reckless indifference to the harm that she might cause.

…

The crime of causing grievous bodily harm by dangerous driving is commonly committed by immature young people who use cars as if they were amusement machines and do not expect to cause any harm to anyone. This case was different. It is a particularly bad example of this sort of crime, not just because of the extremely incapacitating and disfiguring injuries suffered by the victim, but also because it arose out of the use of a vehicle for the purpose of the commission of a crime, and because it involved a conscious decision to expose an innocent and defenceless woman to the risk of serious injury."

1. In the course of counsel for the appellant's oral submissions, he accepted that it was wrong to assert that his Honour found that the appellant intended to cause grievous bodily harm to Mrs Clifford.  His Honour clearly said that he was not satisfied beyond reasonable doubt that the appellant intended to harm Mrs Clifford, but that he was "satisfied beyond reasonable doubt that she drove at her, and knowingly drove over her, with reckless indifference to the harm that she might cause".  That finding is a finding of subjective recklessness, as distinct from a finding of intent, and I similarly construe his Honour's finding that the appellant's conduct involved a "conscious decision to expose an innocent and defenceless woman to the risk of serious injury". 

1. The mental element that must be established on a prosecution for the crime of causing grievous bodily harm in breach of the Criminal Code, s172, is an actual intent to cause grievous bodily harm, or subjective recklessness; R v Bennett [1990] Tas R 72, Neasey J at 81, agreed with by Underwood and Crawford JJ (as they then were) at 85. The term "subjective recklessness" is a shorthand way of referring to establishing that at the time the accused performed the relevant act, he or she foresaw the likelihood that grievous bodily harm may result, Standish v R [1991] TASSC 83 at par[22], (1991) 60 A Crim R 364 at 372.

1. Whilst I reject the appellant's contention that his Honour found that the appellant intended to cause grievous bodily harm to Mrs Clifford, I am persuaded that his Honour erred insofar as he considered the appellant's mental state in terms that are applicable to the crime of causing grievous bodily harm in breach of the Code, s172, and found that she knowingly drove over Mrs Clifford, with reckless indifference to the harm that she might cause. The appellant was not charged with or convicted of causing grievous bodily harm in breach of the Code, s172. The complaint filed against the appellant in the Court of Petty Sessions included such a charge, and the initial indictment filed against her in this Court included such a charge. However, the State elected not to proceed with that charge. It replaced the initial indictment with an indictment which charged the appellant with causing grievous bodily harm by dangerous driving in breach of the Code, s167B, instead of the charge of causing grievous bodily harm in breach of the Code, s172. The appellant was convicted of the former charge and it was in respect of that conviction that she fell to be sentenced.

1. The State's election to proceed with a charge of causing grievous bodily harm by dangerous driving, instead of a charge of causing grievous bodily harm, was significant as it relieved the State of the obligation to prove that the appellant either intended to cause Mrs Clifford grievous bodily harm, or foresaw the likelihood of that outcome. 

1. A comparison of the particulars that were provided of the two charges provides a superficial illustration of their difference. The particulars of the dropped charge of causing grievous bodily harm contrary to s172, were that the appellant:

"caused grievous bodily harm to Diane Jennifer Clifford by striking her with a motor vehicle and/or by continuing to drive forward when the said Diane Jennifer Clifford was being dragged along the roadway under the said motor vehicle".

1. The particulars of the charge of causing grievous bodily harm by dangerous driving contrary to the Code, s167B, on which the appellant was convicted are that she:

"caused grievous bodily harm to Diane Jennifer Clifford by driving a motor vehicle on Flinders Street in a manner that was dangerous to the public having regard to all the circumstances of the case including the presence of the said Diane Jennifer Clifford in front of, or in the vicinity of, her motor vehicle and the visibility in the area."

1. With reference to the latter crime, the Code, s167B, provides:

"Any person who causes grievous bodily harm to another person by the driving of a motor vehicle at a speed or in a manner that is dangerous to the public, having regard to all the circumstances of the case, including, in the case of the driving of a motor vehicle on a public street, the nature, condition and use of the street and the amount of traffic that is actually at that time, or that might reasonably be expected to be, on the street, is guilty of a crime.

Charge:

Causing grievous bodily harm by dangerous driving."

1. No given state of mind is an element of this crime.  In R v Coventry (1938) 59 CLR 633, the High Court dealt with the Criminal Law Consolidation Act 1935 (SA), s14, a statutory offence in sufficiently similar terms to the Code, s167B, to be authoritative in relation to it. At 637 – 638, Latham CJ, Rich, Dixon and McTiernan JJ said:

"… in our opinion, indifference to consequences is not an essential element either of driving in a culpably negligent manner, or of driving at a speed which is dangerous to the public, or in a manner which is dangerous to the public. The driver may have honestly believed that he was driving very carefully, and yet may be guilty of driving in a manner which is dangerous to the public. The jury is to determine, not whether the accused was in fact, as a matter of psychology, indifferent or not to the public safety, but whether he has driven in a manner which was dangerous to the public. The standard is an objective standard, 'impersonal and universal, fixed in relation to the safety of other users of the highway' (per Hewart LCJ in McCrone v Riding [1938] 1 All ER 157; and see Kingman v Seager [1938] 1 KB 397). The standard is impersonal in the sense that it does not vary with individuals, and it is universal in the sense that it is applicable in the case of all persons who drive motor vehicles.

…. But, speaking generally, the expression 'driving at a speed, or in a manner, which is dangerous to the public' describes the actual behaviour of the driver and does not require any given state of mind as an essential element of the offence."

1. I divert to mention one matter. In her defence to the charge of causing grievous bodily harm by dangerous driving, the appellant claimed in aid self-defence. As to this defence, the Code, s46, provides:

"A person is justified in using, in the defence of himself or another person, such force as, in the circumstances as he believes them to be, it is reasonable to use."

1. Implicit in the appellant's reliance on this defence is the proposition that she intentionally applied force to Mrs Clifford, but did so in defence of herself or another person.  As has been explained, an intention on the appellant's part to apply force to Mrs Clifford was not an element of the charge she faced. That being so, on my cursory consideration of this aspect of the matter, I am unable to see how self-defence could arise.  I note however that the following passage appears in Peter Gillies' text, Criminal Law, 4^th ed, 316:

   "While usually [self] defence has been invoked in relation to offences of homicide and assault, it can (uncommonly) be relevant in other contexts, such as possession of an offensive weapon, reckless driving (driving very fast to escape an apparent would-be assailant), or making or possessing an explosive substance."

2. The only authority cited in support of the above passage was intended to be Attorney-General's Reference (No 2 of 1983) [1984] 1 QB 56. That case is authority that a person in danger of attack who arms him or herself for self-protection with a petrol bomb may have a defence to a charge under the Explosive Substances Act 1883 (UK), s4(1), on the basis that he or she had a "lawful object" within the meaning of that term in that provision.  In the same case at 469 the court expressed agreement with the conclusion of the Court of Criminal Appeal of Northern Ireland in R v Fegan [1972] NI 80 at 87 that "Possession of a firearm for the purpose of protecting the possessor … from acts of violence, may be possession for a lawful object."  Fegan involved a prosecution under the same section of the Explosive Substances Act. In my view these decisions on what may be a "lawful object" under that Act provide no guidance on when the defence of self-defence as enunciated in the Code, s46 is available. Neither counsel was able to cite any authority that supports the proposition that self-defence can be relied upon by a person charged with dangerous driving or the like. In a quite different context, the decision in R v Burgess (2005) 152 A Crim R 100, demonstrates that there are limitations on the circumstances where an accused can seek to claim in aid self-defence.

1. I should explain why I diverted to mention that the appellant had relied on self-defence, and that implicit in her doing so was the proposition that she intentionally applied force to Mrs Clifford. The reason for the diversion is that these matters may explain why his Honour was drawn into the error of making findings about the appellant's mental state in the terms that he did. Had the appellant being charged with causing grievous bodily harm contrary to s172, she could have relied upon self defence, and his Honour's finding that the appellant knowingly drove over Mrs Clifford with reckless indifference to the harm that she might cause, would not have been out of place had she been convicted of that crime.

1. The law is that an offender is to be sentenced for the offence for which that offender was convicted without regard to circumstances or elements that are ingredients of a more serious offence of a similar nature with which the offender might have been charged, but was not, Lovegrove v R [1961] Tas SR 106 and R v De Simoni (1981) 147 CLR 383. This is a long-standing principle of fairness that applies to an accused, the force and application of which is not diminished by the reality that, as observed by Wright J in Doyle v R (1998) 105 A Crim R 199 at 205, it may lead to outcomes that are considered to be unreasonable and unsatisfactory.

1. A helpful case on the application of the De Simoni principle in sentencing for an offence involving death or injury arising from the use of a motor vehicle is the decision of the Court of Criminal Appeal (NSW) in SBF v R [2009] NSWCCA 231. In that case it was contended that when sentencing the appellant on charges of aggravated dangerous driving causing death the sentencing judge had breached the De Simoni principle by making findings that were consistent with convictions for the more serious offence of manslaughter.  Johnson J, agreed with by Spigelman CJ and McClellan CJ at CL, confirmed that the De Simoni principle applied at [104], and at [128] said:

"There is no bright line test to be applied in a case such as this to guard against a breach of The Queen v De Simoni principle. An assessment whether a breach of The Queen v De Simoni principle has occurred ought involve consideration of the substance of what was said, in the context of the case, and not merely the form of words used. An assessment of the level of moral culpability and the degree of abandonment of responsibility may, in a particular case, involve language which is close to aspects of manslaughter."

1. Earlier at [119], Johnson J said:

"In assessing the objective seriousness of a s52A offence [offences involving dangerous driving causing death or grievous bodily harm], it is necessary and appropriate for a sentencing Judge to make findings with respect to the degree of abandonment of responsibility and the moral culpability of the offender."

1. With regard to the assessment of moral culpability and the degree of abandonment see R v Whyte [2006] NSWCCA 74, Spigelman CJ, agreed with by Simpson and Barr JJ, at [223], [228] to [231]. See also Thompson v R [2007] NSWCCA 299, Hislop J, agreed with by Hodgson JA and Latham J, [15] and [21] to [23] and R v Towle [2009] VSCA 280 [58].

1. As a general proposition where the same result is a common element of several crimes, the hierarchy of the crimes in terms of seriousness turns on the mental element involved in each.  See for example R v Allen [1999] TASSC 112, Cox CJ, [3]. As to the hierarchy of the considerable number of driving offences involving death or grievous bodily harm in New South Wales, see R v Borkowski [2009] NSWCCA 102, Howie J at [55] to [56].

1. The crime of committing an unlawful act intended to cause bodily harm in breach of s170, requires a specific intent. The crime of causing grievous bodily harm in breach of s172 requires an actual intention or subjective recklessness. The crime of dangerous driving causing grievous bodily harm in breach of s167B does not require any mental element, save that the driving must be a willed act. As one limb of the mental element that the prosecution must establish in order to obtain a conviction for a breach of s172 is less demanding than that which is necessary in order to obtain a conviction pursuant to s170, a conviction for the latter is generally regarded as worse although this is not invariably so; Barron v Tasmania [2010] TASCCA 3 [22]. Again, a conviction for a breach of s172 would generally be regarded as worse than a conviction for s167B. Consistent with this view, Crawford CJ observed in Moyle v Tasmania [2010] TASCCA 2, footnote 1, that sentences imposed for the crime of causing grievous bodily harm under s172 arising out of the driving of a motor vehicle, can provide little guidance when considering the appropriateness of a sentence imposed for the crime of dangerous driving causing grievous bodily harm in breach of s167B. His Honour explained that he presumed that the offenders who were the subject of the sentences to which he referred had been charged under s172 because criminal negligence was alleged, and said that this is a more serious ingredient than is raised by a charge of causing grievous bodily harm by dangerous driving.

1. I conclude that the learned sentencing judge made a material error when he considered the appellant's mental state in terms that are applicable to the crime of causing grievous bodily harm in breach of the Code, s172, and sentenced her on the basis of his finding that she drove at Mrs Clifford, and knowingly drove over her, with reckless indifference to the harm that she might cause. As explained, this error arises from the application of the De Simoni principle.  This principle does not extend so far as to have excluded from the sentencing process in this case an assessment of the appellant's moral culpability by reference to the degree to which she had abandoned responsibility for her driving.  This is because a finding that the appellant knowingly drove over Mrs Clifford is an element of a more serious crime, whilst a finding that she abandoned responsibility for her driving is not.  

Grounds 4 and 5

1. As I am persuaded that in sentencing the appellant his Honour erred as above, consistent with the Code, s402(4), I must address the question of whether a different sentence than that imposed by his Honour is warranted.  It is futile to address grounds 4 and 5 which contend that the head sentence and the parole eligibility period were manifestly excessive.  To determine whether a penalty was manifestly excessive when that penalty was imposed on the basis that the criminal conduct in question involved a more serious element than it could properly have, is to determine a hypothetical question.  See also Neill-Fraser v Tasmania [2012] TASCCA 2 [216].

Re-sentencing

1. The appellant's conviction for aggravated burglary arises from her aiding the commission of that crime.  She did not enter Mrs Clifford's home.  She drove her eldest son and his three friends to the home.  The avowed intent of the appellant's son was to smash Matthew Ward, a son of Mrs Clifford.  The appellant's son had repeatedly demanded that she drive him to Matthew Ward's home.  Having driven to that home, the appellant parked across the street and her son and one of his male friends went to the front door of the home, kicked it open, and went inside.  There is no evidence that Matthew Ward was assaulted.  The four occupants of the home were drinking with a visitor at the rear of the home.  Matthew Ward said that the inside of the home was trashed.  Little reliance can be place on this evidence as he also gave evidence that he was blind drunk.  Two other witnesses said they saw damage inside the home.  Save that it is established that the deadlock was torn off the front door, it is not possible to determine the extent of the property damage caused by the intruders.  Again, save that one witness said that one of the intruders pushed him, there was no evidence of physical violence to any individual in the home. 

1. That the appellant was convicted of this crime as an aider, not a perpetrator, in no way reduces her culpability for it.  She is the mother of the primary perpetrator and she was well aware what he had in mind when she drove him and his friends to the scene. 

1. The learned sentencing judge correctly categorised this crime as a home invasion.  With regard to home invasions, I agree with the views expressed by Wright J in R v Meers and Moles [1998] TASSC 32, at 7, that a home invasion is a particularly serious type of offence as it undermines the feelings of security that most members of the community expect to enjoy in their home environment.

1. Whilst the actual harm caused by a crime is most important in the sentencing process, in my view one of the reasons why home invasions are considered to be particularly serious is the wide and unpredictable range of significant harm they can precipitate and cause.  Not uncommonly the outcome of a home invasion is quite different from that intended by the intruder or intruders.  The occupants, who not infrequently include children, can be terrified, and the intrusion can provoke a response that results in serious injuries and damage.  There was evidence that there were children in Mrs Clifford's home, but no evidence that they were aware of what went on.  There is no evidence that any occupant was terrified by the intrusion.  Viewed in isolation, the intrusion did not result in serious injury to anyone.  However the understandable hostility that it provoked ultimately led to Mrs Clifford suffering terrible injuries.  In re-sentencing the appellant I will only pay regard to those injuries in the context of the charge of causing grievous bodily harm by dangerous driving.

1. When the appellant's son and his accomplice fled from Mrs Clifford's home, Matthew Ward, armed with a long piece of wood, chased the appellant's son up the street.  The accomplice returned to the appellant's vehicle and got into the back seat.  The other male and the female who had travelled to the scene in that vehicle were also in the back seat, they had not left it.  The front passenger seat was not occupied, it having been vacated by the appellant's son.  The appellant was in the driver's seat.  The female passenger, who was 14 year of age at the time of the incident, gave evidence.  She said the accomplice returned to the vehicle with two people chasing him.  These people can be identified as Mrs Clifford and a son other than Matthew Ward.  The witness said they were bashing on the windows of the vehicle.  Mrs Clifford was standing directly in the middle of the front of the vehicle.  Her son was trying to get into the vehicle.  He started on the driver's side of the vehicle and then moved around to its passenger side.  Mrs Clifford and a son were threatening the occupants of the vehicle and shouting at them to get out.  The witness was terrified.  The appellant was screaming.  The accomplice and the other male in the backseat were yelling at the appellant to, "go, go, go", and the appellant drove off as fast as she could before stopping to pick up her son.  This witness did not see the vehicle strike Mrs Clifford.

1. In the course of one of two police interviews of the appellant that were put into evidence, she said that at a time when the vehicle's ignition was turned off, she had seen Mrs Clifford with her hands on the bonnet in front of her vehicle and could hear her telling them to get out of the vehicle.  She said the front windscreen was then smashed by one of the Ward boys using a baseball bat.  The whole windscreen was shattered and she could only see out of a small part of the bottom driver's side corner.  She said that her son had returned to her vehicle by this time and was sitting in the front passenger seat.  He and the back seat passengers were yelling at her to "go, go, go".  One of the Ward boys had grabbed the side of the appellant's face, had hold of her face and hair and was trying to pull her out of the window head first.  She did not say whether this was out of the driver side window or the window on the passenger side, although she must have meant the driver side window as, on her version of events, her son was sitting in the front passenger seat.  These were the circumstances in which she said she drove off. 

1. The evidence clearly established that the appellant's son was not in the appellant's vehicle when she drove off and over Mrs Clifford, and that the windscreen of her vehicle was not smashed until after she had done so.  The learned sentencing judge was also not satisfied on the balance of probabilities that the appellant was physically attacked as she sat in her vehicle before she drove off.  The appellant challenges his Honour's rejection of her evidence that she was so attacked.  In my view it was open to his Honour to reject her evidence.  It was established that the appellant was dishonest and unreliable, and that what she had said in relation to a number of significant aspects of the matter was not correct.  In the circumstances, in the absence of supporting evidence, his Honour was entitled to reject her assertions with regard to being physically attacked.  None of the four eye-witnesses gave evidence of physical contact being made with the appellant, and this includes the female who was sitting in the back of the vehicle.  Whilst it is clear that Mrs Clifford's son was endeavouring to get into the vehicle and stop the appellant from driving away, it was open to his Honour to conclude that it was not established on the balance of probabilities that Mrs Clifford's son had made physical contact with the appellant.

1. The events in question occurred shortly prior to 11pm.  It was a dark night with no moonlight, and the street lighting in the vicinity was poor.  The vehicle's headlights were off.  It is not clear how many occupants of the home went to the vehicle before it drove off.  Matthew Ward did not.  He had chased the appellant's son up the street.  At the very least Mrs Clifford and a son, other than Matthew Ward, went to the vehicle.  The effect of the evidence of the female in the back seat of the vehicle was that only Mrs Clifford and her son were at the vehicle before it took off.  Josh Heron, one of those who had been in the home, gave evidence that following the home invasion the occupants had gone to the front of the home and stood in the front yard as Matthew Ward chased the appellant's son up the street and Mrs Clifford and another of her sons went to the vehicle. 

1. The evidence establishes that, at the very least, immediately prior to the appellant driving off, Mrs Clifford and a son of hers were at the appellant's vehicle.  They were banging on the windows of the vehicle, shouting threats at the occupants, and demanding that they get out.  The son was trying to get into the vehicle.  The two males in the back seat were shouting at the appellant to "go, go, go".  The female in the back seat was frightened and scared.  The appellant was screaming.  It was in these circumstances that the appellant drove off.  His Honour accepted that she did so on the spur of the moment, "In order to get herself and her passengers away from the people who were rightly hostile towards them.  She was in a stressful situation – one likely to result in the making of very poor decisions – but it was a situation of her own making."  

1. The hostility that prompted the appellant to drive dangerously, and the brevity of the period of her dangerous driving, are plainly relevant, although the mitigatory benefit of these matters is reduced, as the hostility was provoked by the commission of a crime, she was one of those who were guilty of that crime and her driving was integral to her involvement in that crime.  She bears a high degree of personal moral blame for what occurred.  Moreover, the impact of the matters mentioned is greatly diminished by the consequences.  Mrs Clifford suffered terrible injuries.  She is a paraplegic and is very seriously disfigured.  There is very little that she can do.  She lives in a private residence and is cared for by her long-term partner.  To a significant degree the culpability of a dangerous driver is determined by the consequences of the driving.  To that end, the legislature has drawn a distinction between:

·     driving in a manner dangerous to the public in breach of the Traffic Act 1925, s32(1);

·     causing grievous bodily harm by dangerous driving in breach of the Code, s167B, and

·     causing death by dangerous driving in breach of the Code, s167A.

In this regard see the comments of Gleeson CJ in R v Baker (1992) 17 MVR 212 at that page and 213.

1. With regard to the penalty that the appellant's conviction for causing grievous bodily harm by dangerous driving should attract, her counsel quite properly points out that the highest sentence that has been imposed for this crime and related, but subsidiary, offences, is a global sentence of two years and six months' imprisonment; Moyle v Tasmania (supra).  Moreover, the highest penalty that has been imposed for the analogous but more serious offence of causing death by dangerous driving and related, but subsidiary, offences, is a global sentence of four years' imprisonment; Gallagher v State of Tasmania [2009] TASSC 84.

1. Recent authorities of this Court have emphasised that in cases involving death or injury caused by culpable negligent driving, courts should impose penalties that will be sufficiently severe to deter both the offender and others who might be similarly minded, and this requires the imposition of higher penalties than have been imposed in the past; Shipton v R [2003] TASSC 23, [10]; Director of Public Prosecutions v Watson [2004] TASSC 54, [21] and [22]; Moyle v Tasmania (supra), [52], and Director of Public Prosecutions v Smithurst (supra), [12] and [14]. 

1. The third crime the appellant was sentenced for was perverting justice.  With regard to that conviction the learned sentencing judge said:

"The third charge, that of perverting justice, is the least serious of the three charges. After fleeing from the scene, Ms Wahl hid her car in bushland near her home, telephoned 000, and falsely reported it stolen. She was interviewed by detectives the next morning, and adhered to her story that the car had been stolen, and that she had not been driving it the previous evening. The verdict of the jury indicates that they were satisfied beyond reasonable doubt that Ms Wahl said these things to the police in an attempt to avoid being prosecuted in connection with Mrs Clifford being run over. However the investigating detectives had plenty of evidence that Ms Wahl had in fact been driving her vehicle at the relevant time. Her lies did not fool anyone, and did not even increase the amount of investigative work that the police needed to do." 

Neither counsel on the appeal demurred from his Honour's comments in relation to this charge.

1. With regard to Ms Wahl's personal circumstances and background, his Honour said:

"Ms Wahl is now 34 years old. She has a number of prior convictions, but did not get into any serious trouble until early 2004, when she was 26 years old. In January 2008 she was renting a house from Housing Tasmania, had difficulties with her neighbours, requested a transfer to another area, did not get a transfer, and therefore set fire to the house. She was charged with arson, and with attempting to dishonestly acquire a financial advantage. She was on bail on those charges when she committed these crimes. For sentencing purposes, the fact that she was on bail constitutes an aggravating factor. By coincidence, her trial on those charges commenced only a few days after the crimes that I am dealing with. She was found guilty, and has been in custody since 26 March 2010. She was sentenced to 18 months' imprisonment with effect from that date, with a non-parole period of 12 months. Subsequently a magistrate sentenced her to a cumulative term of two months' imprisonment for some offences of dishonesty. …

Ms Wahl has four teenage children. She has led a very unfortunate life. An abscess on her brain was diagnosed in 2003. Since she has been in prison, she has been diagnosed as suffering from diabetes. She has problems with anxiety and depression. She finds imprisonment harder than most prisoners because she is a target for bullying by the other inmates. She made an effort to provide a home for her children, and to support them. She had employment before she went to prison.

However a number of common mitigating factors are absent in this case. Ms Wahl is not a youthful offender. She does not lack prior convictions. She made no attempt to stop and help the woman whom she injured. She did not call an ambulance, or ask anyone else to do so. Even when interviewed by police officers for a second time two months after the night in question, she did not make full admissions as to what she had done. She did not plead guilty." 

1. As noted by his Honour, the appellant had led a very unfortunate life.  As to this his Honour was informed that she ran away from home when she was 12 years of age, having been sexually abused by her stepbrother.  She fell pregnant when 15 years of age.  She was less than capable of keeping a rein on her eldest son, and had lost contact with her eldest daughter.  Her other two children were residing with relatives.  She had suffered at the hands of a very violent partner and had lived in abject poverty for a number of years.

1. It is noteworthy that the appellant's record of prior convictions does not include a prior conviction for an act of violence or dangerous driving.  In saying this, I disregard a conviction for assaulting a police officer on 26 February 2004, in respect of which a conviction was recorded.  She has a number of prior convictions for crimes involving dishonesty and traffic-related offences. 

1. I would quash the global sentence that was imposed of eight years' imprisonment, subject to parole eligibility after six years, and replace it with a global sentence of four years' imprisonment cumulative upon the sentences that she was serving, and order that she be eligible to apply for parole after serving three years of the sentence.  I would leave in place his Honour's orders as to her disqualification from driving and her payment of a victims of crime compensation levy.

   File No 746/2011

JADE VICTORIARNAH WAHL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J
5 April 2012

1. I have had the benefit of reading the draft reasons of Evans J.  I agree with those reasons and the orders he proposes.

   File No 746/2011

JADE VICTORIARNAH WAHL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
5 April 2012

1. I agree with the reasons for judgment of Evans J and with the orders he proposes.