Wilkins v The Queen

[1989] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl22 of 1988

B e t w e e n -

DARREN EDWARD WILKINS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

Wilkins

MASON CJ
BRENNAN J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 AUGUST 1989, AT 11.55 AM

Copyright in the High Court of Australia

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MR M.L. SIDES, QC:  May it please the Court, I appear with

my learned friend, MR M.J. IERACE, and MS V.M. BELL,

for the applicant. (instructed by W.J. Robinson,

Director, Legal Aid Commission)

MR R.N. HOWIE, QC:  May it please the Court, I appear with

my learned friend, MR P.G. BERMAN, for the

respondent Crown. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON	CJ:	Yes, Mr Sides.
MR SIDES:	Thank you, Your Honours.	I hand up the applicant's

outline of submissions, Your Honours.

MASON CJ:  Thank you. Yes.

MR SIDES:  Your Honours, I think it is important to establish

from the outset that, with one exception, we have

not been able to find a case where, in relation to

culpable driving.giving rise to multiple deaths or

multiple persons who are seriously injured, where

sentences have been accumulated. The one exception,

Your Honours, is the Victorian case of WILLIAMSON

in 1974, and there is the subsequent decision of

KORTUM in 1977 where concurrent sentences were

imposed.

Your Honours, we would respectfully submit that

in relation to offences of culpable driving such as

this that give rise to multiple counts because of

multiple deaths stand in a special category. It is

one transaction or multiple offences arising out of a series of offences or multiple 0ffences arising

distinct, in our respectful submission, to the of

practice that is referred to by the court below in

out of an escapade of criminality. Now, Your Honours,

they cover a number of situations. If one were to given an example of a one transaction situation of

being a fight between a number of people in a hotel

and when the police officers come a resist of arrest

by way of fighting with them as well, it could be

described as one transaction, Your Honours. It

would give rise to a number of counts of assault,

both upon those in the hotel and the arresting

police officers.

Each of those assaults, we would respectfully

submit, is identifiable as a separate and independent

act on the part of the offendor.

(Continued on page 3)

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MR SIDES (continuing):  And whilst it is referred to as

being part of one transaction and in accordance

with the practices that the court below referred
to in MELVILLE, gives rise in usual circumstances

to concurrent sentences, it is to be distinquished

from the situation that we have here.

We would submit to Your Honours that the

situation that arises here, although there are
multiple charges because there are multiple

deaths, the situation here is that there is one

act of criminality. That act of criminality, in

our respectful submission, is the driving of the

applicant that created the potential for danger

to other road uses.	Your Honours, if I might
take you firstly to	REG V GIORGIANNI (No 2)
(1983) 11 A Crim R 315.	-

That was a decision of the New South Wales

Court of Criminal Appeal. Your Honours, it was

overturned in this Court on the question of
conviction, but we would respectfully submit that,

so far as Their Honours' connnents in relation to

sentence are concerned, must still be regarded

as being good law and not affected by the overturning

of the conviction from this Court. And in

particular I would like to take Your Honours to

the passage of the Chief Justice. That case,

Your Honours might recall, involved a total of six

counts of culpable driving, five of which caused

death, one of which caused grievous bodily harm,

arising out of a truck being driven down, I think

either Mount Ousley or Bulli Pass, by a man

called Renshaw who was Giorgianni's employee,

in a state where both Giorgianni and Renshaw knew

that the brakes on the truck, it was by way,

Your Honours, a coal truck, were defective.

If Your Honours go to page 320 of the report,

Your Honours will see that what had been imposed

by the sentencing judge in that matter was a

three years imprisonment in relation to each of

the five counts of culpable driving involving death,

and they were to be served concurrently and that

a non-parole period of two years was specified.

His Honour, the Chief Justice, made this

observation in the final paragraph:

We would make the following observations:

firstly, under s.52A of the CRIMES ACT 1900

(N.S.W.), the maximum penalty for this type

of offence is specified at five years;

secondly, although this criminality resulted

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in five deaths and one infliction of grievous

bodily harm, only the one criminality was

involved - it is not the type of case where

there were six independent acts of

criminality;

Now, Your Honours, we would respectfully submit

that that is the situation here. Indee~with
the greatest respect to the majority judges

in the decision, is precisely what the learned

dissenting judge , Mr Justice Allen was saying in

his judgment.

McHUGH J:  But that was an aiding and abetting case,

Giorgianni.

MR SIDES:	It was an aiding and abetting case, yes, Your Honours, but the principles were the same and
it is perhaps important then to emphasize the
point to take Your Honours to Mr Renshaw, who was the actual driver of the vehicle. This was
a decision referred to by the dissenting judge.
It is the unreoorted decision of GARY LEONARD
PATRICK RENSHAW- of the New South Wales Court
of Criminal Appeal on 4 June 1981. He was
acquitted of five counts of manslaughter; convicted of six counts of culpable driving,
being in effect the same counts as the principle
in relation to Mr Giorgianni.

The learned sentencing judge in that case

imposed a sentence of four years, with a non-parole

period of 18 months. Yo-ur __ Honours, the

remarks of the court on sentence are very

brief, but it is apparent, I would respectfully

submit although they do not precisely say

so, that:: the four years were concurrent sentences

in relation to the five counts involving death.

(Continued on page 5)

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MR SIDES (continuing): Now, that puts it in context. Whilst

Mr Giorgianni, of course, was the aider and abetter

it would still be, in effect, only the one act on

his part, because he only aided and abetted the one

act of driving, and this principle, in our submission,

is also to be found stated by the Court of Criminal

Appeal in England in REG V TORR, (1966) 1 WLR 52.

It is necessary, I think, Your Honours, to briefly

outline the facts which are contained in the headnote

of the report. He was charged on two counts of

obtaining goods by false pretences,and obtaining

credit by false pretences. He had ordered goods

and offered to pay for them within seven days, and

that was accepted, and:

the goods were delivered in reliance on

false statements that he was alleged to have

made but denied making, and he was tried on

an indictment containing counts arising from

the same facts charging him with obtaining

goods by false pretences, contrary to

section 32(1) of the LARCENY ACT, 1919,
and obtaining credit under false pretences,

contrary to section 13(1) of the DEBTORS ACT, 1869.

The principle I wish to take Your Honours to is to be

found at page 55 of the report, right at the bottom,

where Mr Justice Ashworth says:

So far as sentence is concerned, as both charges

arise out of precisely the same facts and involve,
so to speak, exactly the same criminality on the

part of the defendant, there was no possible

reason for passing consecutive sentences.

MASON CJ: Well, that is hardly a statement of principle, is it?

MR SIDES: Well, in our respectful - - -

MASON CJ: It is a statement of a reason why consecutive

sentences should not be imposed in that case.

MR SIDES: Yes, Your Honour, but, it is our submission, Your Honours,

as I said at the outset, with one exception of

WILLIAMSON, that in relation to culpable driving

involving multiple deaths or i.11ultiple persons being

injured, that what has happened as a matter of practice,

over the years applied by the court below, has evolved

such that it can be described as a principle, and what

the court below in this instance was doing, it would

seem, was departing from the principle established by

prior decisions in the court.	Your Honour, it would
seem - - -

GAUDRON J:  Or perhaps acting before it crystallized into a

principle.

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MR SIDES: That might be so, Your Honours, but it would seem,

in any event, that whatever view is taken of it,

whether it be a principle established by practice

or merely a practice of long standing, the Court

departed from that practice, and it would be my

submission that it could be said to have laid down

guide-lines for approach to culpable drivings

involving multiple deaths or injury in the future,

because the Chief Judge at common law at page 18

said:

I am not satisfied that it should be held

that the practice of treating certain

circumstances as one enterprise and then

not accumulating sentences in respect of

offences that come within the ambit of that

enterprise is one that must be followed in

every case and certainly I am not satisfied

that it should be followed in the case of

s 52A.

Now, Your Honours, it could be taken by sentencing

judges, sitting alone, that that is now a statement
of practice to be followed by them, and it would

be our submission to Your Honours it is a departure,

and a significant departure, from the previous

practice that has been established by that court

and, indeed, in other courts as well.

Your Honours, if I might take you briefly to the decision of the Court of Criminal Appeal in the

REG V BUTTSWORTH, (1983) 1 NSWLR 658.

(Continued on page 7)

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BRENNAN J:  Mr Sides, if I can just delay you for a

moment, your real proposition, I take it,

is that in sentencing one has regard only to

the culpability of the Act which causes the

death and not to the deaths which are caused?

MR SIDES:  Your Honours, we are not saying that consequences

should be ignored altogether; obviously they

are a factor to be taken into account. What

we would say in relation to culpable driving

is this: in relation to a criminal offence,

any criminal offence generally, the consequences

of that criminal offence are causally connected
to the culpable conduct. In relation to culpable
driving where there are multiple deaths, each

death is causally connected to the same culpable

conduct. Our respectful submission would be

to Your Honours that what should in effect occur

is that there should be an assessment of the

criminality overall and that each death after

the first one, or each serious injury after the

first one, be regarded as an aggravating factor because to approach it otherwise, Your Honours,

in our respectful submission, there is a risk

that if each is looked at individually, in

other words if each charge is looked at

individually, there is a real risk of an

overlapping of factors being taken into account.

If one looks at each individually, then one looks

at the same act of culpability in relation to

each one.	So that he could be sentenced over and
over again in relation to that same act.	So it

would,be our submission to Your Honours that in

a situation such as this each subsequent death

should be regarded as an aggravating factor to avoid the risk of being punished twice for the

one act of driving.

BRENNAN J:  How do you give effect to the aggravating

factor in the passing of an actual sentence?

MR SIDES:

Your Honours, in our respectful submission, it

is given effect to by an overall or the totality

principle, an overall global head sentence to

cover the aggravating factors with concurrent

sentences and that would be our submission is

what has been done as a matter of principle in

the Court of Criminal Appeal in New South Wales.

BRENNAN J:  Is the maximum penalty a limit upon the aggregation of -

aggregated sentence?

MR SIDES:	We would submit so, Your Honours.
BRENNAN J:	Why?
MR SIDES:	Why, because again, Your Honours, to go beyond
it would be to punish him for his culpability

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beyond that which was intended, in our respectful

submission,by the Parliament.

BRENNAN J:  It is to ignore the inflationary effect of

aggravating factors which would take it beyond

that maximum.

MR SIDES: Yes, Your Honour. In effect it does, Your Honours,

because clearly what - and it is important to remember

the nature of the offence, the offence being the
driving that gives rise to the potentiality of

harm to other road users.

BRENNAN J: That is, with respect, not what the section says

at all. I see the force of what you are saying

in terms of a general sentencing policy.

In tenI1S of a principle of law, I do not understand

it because it seems to me that in terms of the

offence it is "death being caused by" as the

enunciation of section 52A. So that one looks

to the results and then to the cause as a matter

of construction of the section. If one then

has a series of what you would describe as

aggravating circumstances, it seems to me that
to put a limit on the effect of multiple aggravating

circumstances by reference to the maximum penalty

prescribed by section 52A is doing that which

would be inconsistent with the Act.

MR SIDES:  Your Honours, it would be our submission

that the culpability is the manner of driving

and indeed, as must happen frequently, it mifht
be fortuitous as to whether anyone is injured

at all, in which case you are guilty of an

offence under the MOTOR TRAFFIC ACT, and
fortuitous if there is an impact as to whether

one, two, three, four, five or many are injured.

(Continued on page 9)

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MR BASTEN (continuing): It would be our submission that

there must be some degree of unfairness operating

for a person, in effect, is being punished for

what are fortuitious circumstances.	The
criminality	to be punished, in our respectful

submission, is the potential of the driving to

do harm to any road users who might be in the

vicinity.

Now, clearly, Your Honours, that involves

the possibility of.harm~being_done to more than
one person and if the driving is of a nature that
it extends over an extensive period of time or an

extensive mileage then~ quite clearly, the

potentiality to do harm is much greater and that

has always, traditionally in sentencing for

culpAble driving regardless of the number of

deaths, been regarded as an aggravating factor

in the same way as a person who drives under the

influence of intoxicating liquor. That has always

been regarded, even where there is only one death,

as being an aggravating factor because, clearly,

somebody who is intoxicated who enters a motor

vehicle, whose reactions are slowed, is potentially

a greater danger than somebody who through but a

momentary inattention results in a collision and

it is the greater criminality involved in the

potentiality of the harm done through driving

under the influence of liquor that has always

been seized upon, in our submission, in sentencing

for culpable driving resulting in higher penalties

where liquor is present and it, quite clearly, was

not present in this case.

Your Honours , in relation to that, it is perhaps appropriate

then to take Your Honours to REG V SINCIAIR, an unreported decision of
the New South Wales Court of Criminal Appeal of 22 October 1976.

The offender there had, after a substantial drinking

spree, entered a taxi having, in effect, stolen it

from its owner and he drove along a road on the

central coast of New South Wales.	A number of
vehicles using the roadway were caused to take

evasive action and he ultimately came into collision

by way of a head-on smash with a vehicle travelling

in the opposite direction. The point of impact was apparently some five feet across the centre line - in other words, the offender was five feet

on the wrong side. In the other vehicle, a young
man aged 18 and a girl both suffered injuries and

died. Now, he was sentenced, Your Honours, by the

sentencing to two periods or on two counts of
culpable drive, to two years each which were made
cumulative by the sentencing judge giving a head
sentence of four years and he set a non-parole

period of one year and six months.

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On the appeal, the Court of Criminal Appeal

intervened and they quashed the cumulative sentence;

they imposed sentences of five years' hard labour
in relation to each of the counts and ordered that

they be served concurrently. At page 3, the Chief

Justice said:

Compared with the killing of the two

victims of the respondent's criminal

conduct in driving whilst under the

influence of alcohol, his assault on

the taxi driver, his stealing of the
taxi and his effective destruction of

the two vehicles involved in the

collision are liable to be overlooked,

but they have a real significance in

underlining the grave natur~ of his

crime against the community on that

evening.

(Continued on page 11)

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MR SIDES (continuing):  On the following page he says this:

For crimes against s.52A, such as the

present respondent committed in the tragic

kLlling of those two unfortunate young

people through driving whilst under the
influence of alcohol, the legislature has

prescribed a maximum sentence of

imprisonment for five years. We consider

in the present case there was every
justification for imposing the maximum
sentence and we differ from the view of
the trial Judge that two sentences of two

years each were appropriate assessments of

the periods of imprisonment required.	We
state this view, notwithstanding that

the learned Judge directed that the sentences

be served cumulatively so as to make an

aggregate head sentence of four years.

Now, it would be our respectful submission the

significant words there are that, "We consider in the

present case there was every justification for

imposing the maximum sentence".	There were two
deaths, Your Honours.	The judge below had

accumulated the sentence giving a total sentence

of four years. That was set aside and concurrent

sentences of five years were given.

Now, it would be our submission that that is an

example of the application of the sort of principle -

an answer to the sort of thing that Your Honour

Justice Brennan was asking about a little earlier

on and it would be our submission that it would not

matter as to whether there were three, four or five

deaths. If I might take Your Honours then to the
decision in REG V PATRICK JAMES MURNIN, which is the

unreported decision in the New South Wales Court of

Criminal Appeal on 16 August 1985. This case,

Your Honours, involved convictions on two counts

of culpable driving involving death.	The offender
had been driving a motor vehicle at 100 kilometres

per hour and he came into collision, by way of a

head-on collision, with a motor cycle that was

travelling in the opposite direction. The motorcyclist

and the pillion passenger were both killed.
The learned sentencing judge imposed a sentence

of 15 months in relation to each count, ordered them
to be served concurrently and ordered them to be
served by way of periodic detention. In that case

the Chief Justice said at page 8:

In matters of sentencing for this

particular offence, there is a
particularly wide range open to the

sentencing judge by virtue of the

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absolute character of the offence

itself. As Mr Murray has so forcefully

submitted to this Court, the irrelevance

of the criminal intention, if it be held,

as it must, that criminal intention forms

no ingredient in this offence, requires

from the Court an evaluation of

wide-ranging factors in determining what

should be the proper sentence. Plainly

enough, the context in which the dangerous
driving took place will figure largely

in the evaluation of sentence. If the

dangerous driving involved breaches of

the motor traffic laws, that would be
a circumstance escalating the degree of
criminality involved. It is pointed out

in the present case that there had been

no breach of any motor traffic regulation

other than of course those governing the

manner of driving. This was a broken

centre line and there was no suggestion

of excessive speed, nor was there any

suggestion of any element of recklessness

or irresponsibility observable in the

driving of the vehicle in the period

leading up to the particular incident upon

which the charges are founded.

(Continued on page 13)

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MR SIDES (continuing):

The presence of aggravating circumstances such

as those we have mentioned, and others, would

plainly enough be relevant to the determination

of sentence. Equally in a case such as the

present, the absence of any aggravating

circumstances is a matter that can be weighed

in favour of leniency.

Overriding the whole consideration, however,

is the seriousness that the legislature has

placed upon this particular offence. A motor

vehicle is potentially dangerous - indeed

lethal - machine. Those who drive motor

vehicles on public highways, as do the

overwhelming majority of members of our

community - - -

BRENNAN J: This is fairly familiar territory, is it not?

MR SIDES: Yes, Your Honour. Well, perhaps it is unnecessary

to read on, Your Honours, but the point I seek to

make from there is that His Honour, in setting out
"aggravating circumstances", made no reference to
the fact that there were two deaths. In that case
the sentence of 15 months, to be served by way of
periodic detention, was reduced by the court to six

months, both to be concurrent and to be served by

way of periodic detention.

A further illustration, in our respectful

submission, is to be found in REG V BUTTSWORTH,

which I mentioned a little earlier,

(1983) 1 NSWLR 658. This involved two deaths and

four counts of culpable driving involving grievous

bodily harm. In relation to the two counts

concerning death, concurrent sentences of three

years were imposed and, in relation to the four
counts involving grievous bodily harm, concurrent
sentences of two years were imposed, giving rise

to an aggragate sentence of three years and a

non-parole period of 12 months.

This was quite a serious culpable drive,

Your Honours: the manner of driving was very
serious indeed; it was again on the Pacific Highway

near Coffs Harbour; in the early hours of the morning;

the offending vehicle was following a truck that was

travelling at a relatively low speed; the truck was

turning off to the left and, apparently, in order
to get around that truck's manoeuvre the offender's

vehicle moved slightly onto the incorrect road;

came into collission with a Corona vehicle travelling

in the opposite direction and the glancing blow

sent that vehicle careering into yet another vehicle

following behind the offender's vehicle.

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There was also evidence of defective brakes, a

condition of which the court found the offender was

aware. Now again, Your Honours, the sentencing judge

had imposed concurrent sentences for those offences:

there were two deaths; four people were seriously

injured; and on appeal, Your Honours, so far as

sentence is concerned, the Court of Criminal Appeal

intervened and imposed sentences of 12 months on
each offence, to be served concurrently by way of

periodic detention.

Now, Your Honours, clearly, I would submit, what

is being punished by these courts, particularly when

one looks at the horrific results - numerous people

killed; numerous people seriously injured -what is

being punished primarily, and operating on the mind

of the sentencing court and the Court of Criminal

Appeal, is the criminality because, Your Honours,

that is really what distinguishes culpable driving

involving death from manslaughter or murder.	It is
the culpability. The consequences are the same.

The distinguishing aspect, in our respectful submission,

is the culpability.

MASON CJ: Well, you do not need. to labour the point,

do you,Mr Sides?

MR SIDES:  No, Your Honours. As I indicated to Your Honours,

the Victorian decision, that is contrary to the
propositions I am putting to Your Honours, was the
decision of the Full Court in Victoria in the case
of DEAN MARTIN WILLIAMSON which is an unreported
decision of the Victorian Court of Criminal Appeal

of 5 June 1974.

(Continued on page 15)

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MASON CJ:  One of the problems with the sentencing appeals

matters of principle.

in this Court is that we are flooded with a series
of unreported decisions and I should not have thought
that this Court's time ought to be taken up with

constant references to unreported decisions.

MR SIDES:  Yes, Your Honours. The difficulty in this area is,

Your Honour, that those are not stated in reported

cases.

MASON CJ:  Yes, but, the cases to which you are referring us

are cases which deal with particular situations

and impose particular sentences. Now, I would not

have thought it was necessary to take us through all

these cases.

McHUGH J:  There has not been a statement of principle in any

of the cases you have cited to us.

MR SIDES:  Well, with respect, I would submit to Your Honours

that there was clearly a statement of principle in

GIORGIANNI and the difficulty is, of course, that the - my submission is, Your Honours, that the principle is being applied by the courts without

necessarily making direct reference to it. And,

particularly, I would submit, however, Your Honour,

that the Chief Justice in MURNIN did make direct

reference to the principle in referring to the

maximum penalty as being five years where there were

multiple deaths. I suppose, Your Honours, it is

partly the busy nature of the work with the Courts

of Criminal Appeal that they do not, in each and

every case that come before them, espouse the

principles that hitherto have seemed to be well

established and applied on a regular basis.

MASON CJ:  The other hypothesis, the more likely one, is

that there is no principle.

MR SIDES:  Well, Your Honour, we would submit that there is and

we would submit that its applying the practice

over such an extensive period of time has meant that

it has evolved into a principle.

BRENNAN J:  One wonders whether the plethera of unreported

authorities with which we have been favoured were

available to the Court of Criminal Appeal.

MR SIDES: I cannot assist Your Honours there. All I can say

is that the learned dissenting judge made

reference to RENSHAW and to the reported decision

of BUTTSWORTH.	I think they are the only two
he reports to.	The only other matter I can draw

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Your Honour's attention to is as the - I think it

is the learned Chief Judge at common law made

reference to the fact that nobody could find a

case where a principle was set out which makes one

think that perhaps GIORGIANNI was not referred to

the court below. I did not appear in the court

below and I cannot assist Your Honours in that regard. and to MELVILLE.

Perhaps if I can say this, Your Honours, that

the court in WILLIAMSON did make reference to

principle in the sense that they rejected the

proposition that there was a principle.

(Continued on page 17)

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MR SIDES (continuing):  But there have been the subsequent

case, as I said earlier, of KORTUM where there

was one death and one injury and concurrent sentences
were imposed but KORTUM does not make reference

to the earlier decision of WILLIAMSON.

Your Honours, if I could perhaps come then

to reported decisions and take Your Honours to
the case of THE ATTORNEY-GENERAL V TICHY,

(1982) 30 SASR 84. That was a case of armed robbery

of a chemist shop, I think, and as the offender

was leaving the chemist shop he saw an approaching

police vehicle and shot at the police vehicle.

At page 85 the Chief Justice said this:

The essential thing to be borne in mind is

that if the sentences are made consecutive

there must be no overlapping of the factors

brought into account in determining the length

of each sentence; similarly, if the sentences

are made concurrent the gravity of the total

criminal conduct must be reflected in the

leading sentence.

The next couple of paragraphs deal with how that

might be achieved and Mr Justice Wells, at page 93,

after some discussion about varying approaches,

about point 4, said:

What must be done is to use the various tools

of analysis to mould a just sentence for the

conduct of which the prisoner has been guilty.

Where there are truly two or more incursions

into criminal conduct, consecutive sentences
will generally be appropriate. Where, whatever

the number of technically identifiable offences

committed, the prisoner was truly engaged

upon one multi-faceted course of criminal

conduct, the judge is likely to find concurrent

sentences just and convenient.	There are
dangers in each course.	Where consecutive
sentences are imposed it may be thought that

they are kept artificially apart where they

should, to some extent, overlap. Where

concurrent sentences are imposed, there is
the danger that the primary term does not
adequately reflect the aggravated nature of

each important feature of the criminal conduct

under consideration.

(Continued on page 18)

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MR SIDES (continuing):	Mr Justice Cox in that case agreed

with the judgments of both the other members of

the Court.

If I could take Your Honours back to what

the Chief Justice said in that case, it highlights

what I was saying earlier about each subsequent

death being an aggravating feature. The passage

I read out, in my respectful submission, is

consistent with the approach of this Court in

BAUMER. That dealt with the legislation concerning

culpable driving and other offences in the

Northern Territory where - I think that case involved a case of grievous bodily harm - the

legislature - I do beg Your Honours' pardon,

I did not give the citation, (1988) 63 ALJR 113.

The relevant legislation is set out, Your Honours,

at page 114 and it prescribed a seven-year maximum
for an offence involving grievous bodily harm and

then in subsection (4) the provision provided that:

If at the time of doing or making such act or omission he is under the influence of

an intoxicating substance he is liable to

further imprisonment for four years.

As I understand the judgment of the Court in that case in relation to that legislation they said

that one looks at the whole thing globally,

rise to the injury and then taking a second and

taking into account a head sentence of seven plus

four years, rather than looking at the act of,

subsequent look at the issue of intoxication

because they said that that would involve
consideration of the issue of intoxication in
both steps. It would be my submission to

Your Honours that that is the principle that is stated in the bottom left-hand column of page 116

where this was said by the Court:	It does not require a court to engage
in a two-stage approach to sentencing
with separate consideration being given to the fact that an offender was under the influence of an intoxicating substance.

McHUGH J:  Mr Sides, the essence of this offence under

section 52A is the causing of death or grievous

bodily harm. It is the occurrence of death or

grievous bodily harm which separates the offence

from offences under the MOTOR TRAFFIC ACT or under

section 52 of the CRIMES ACT, or as the case may be.

That is the essence of it.

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MR SIDES:  Your Honour, it is the culpability though that

separates it from manslaughter. It is a

different culpability.

McHUGH J: It is objective only - there may, in one sense

be no moral wrongdoing at all.

(Continued on page 20)

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MR SIDES:  Yes, Your Honour, and that was what the

Chief Justice made reference to also in MURNIN

and that was a factor that was significantly to

be taken into account, as I understand his judgment, on the question of sentence, not because there were multiple deaths, but because

of his culpability and it was not a deliberate

pattern of driving, as I said -

McHUGH J: 

But your proposition comes to this, that in

the worst case, if you cause five deaths you
cannot get any more than if you only caused one.

MR SIDES:  Yes, Your Honour. That would have to be my

submission, yes. I might add, Your Honour, although

the court does not specifically say so that this

is the worst case, certainly the learned sentencing

judge did.	He said that the man could have been
found guilty of manslaughter.	We would not adopt
that pos~tion.	We would submit it is not within

the worst class of cases.

Your Honours, I was about to just mention the

decision in FRENCH which, in our - - -

MASON CJ:  What is that going to demonstrate? What do

you want to get out of that?

MR SIDES:  I was going to say, Your Honour, that FRENCH

really supports the proposition that I was just

putting to Your Honour when I referred to the

previous case.	I do not wish to take Your Honours
to any passage in that matter.	Your Honours, I

should mention the decision of the Court of

Criminal Appeal in South Australia in REG V HICKS,

(1987) 45 SASR 270. I do that only for this

purpose, to draw Your Honours' attention to what

might be said to be a proposition contrary to that

which I am putting by Mr Justice White.

McHUGH J:  It is at page 286, I think.

MR SIDES:	Yes, thank you, Your Honour. It is at page 286. It would be our submission to Your Honours that he
is there, in effect, expressing a view about
legislation that had apparently come into effect
but which did not apply to the case at hand and,
accordingly, at best would be authoritative. The other members of the court did not express a view
one way or the other on that aspect.

'(Continued on page 21)

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MR SIDES (continuing):  Now, Your Honours, the alternative

proposition that we would put to the Court is that

there should not be in cases such as this, if there

is to be an accumulation, an accumulation beyond the

statutory maximum. That was the effect -although

the court did not state a principle one way or the

other - in the case of WILLIAMSON:  the five-year

accumulated sentence there fell short of the seven-year

maximum that was able to be imposed in relation to the
most serious offence. We would also find support

for that proposition in the decision of the Court

of Appeal Criminal Division in the case of BRIAN

JAMES MIDDLETON, (1957) 51 Crim Ap R 366.

Your Honours, the only other case that I wish

to take Your Honours to is the decision in

REG V STEPHEN JAMES KENNEDY which was again an unreported

decision of the New South Wales Court of Criminal

Appeal on 11 February 1987. That was a case, Your Honours,

involving five counts of entering land occupied by a
building with intent to connnit a felony; one count
of possession of housebreaking implements. Each
of the offences carried a maximum penalty of seven

years.

In relation to the offences of entering a

building with intent, His Honour imposed concurrent
sentences of six years but cumulated a sentence of

two years in relation to the possession of the

housebreaking implements.

Briefly, at page 3, if I could take Your Honours

to what the Chief Justice said:

Mr Hidden, Q.C., who appears with

Mr Earl for the appellant, has contended

that the eight year period exceeded what

was appropriate for this particular offence. learned judge erred by giving effect to

his view that the statutory maximum of

that his Honour erred by accumulating the	seven years was inadequate and further
housebreaking implements in possession on
to the sentences for the other five offences.

T33 In the view that we hold, both of

these submissions are made good.

And that proposition is, we submit, supported in the

case of MIDDLETON to which I have just referred

Your Honours. And I would bring that decision to

Your Honours' attention for this reason: it could

be said on one interpretation that the learned court
below was expressing a view that the maximum penalty

of five years for culpable drive was inadequate and

that they were accumulating the sentences in this

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instance to get over what they perceived to be an

inadequate maximum penalty.

If I might briefly take Your Honours to the

bottom of page 17. Mr Justice Lee says:

Parliament has laid down ins 52A

that the maximum penalty for culpable driving involving driving in a manner

dangerous and causing death is five years

and it seems extraordinary at the outset

that it can be said that, whether you

kill one or whether you kill fifty,

the penalty is to be five years,

provided you do it on the one occasion.

And the other judge who was in the majority, connnencing at the bottom of page 20 and going up to

page 21.

I might say briefly, Your Honours, in relation

to Mr Justice Carruthers, he sought to say that there

was involved in this incident two separate acts on

the part of the applicant. We would submit that that

does not stand up to analysis.

We would submit to Your Honours, firstly, that

there is a principle that has been established over

the years through the consistent application of a

rule of practice by the Court of Criminal Appeal in

relation to culpable drivings; culpable drivings,

many of which involve serious consequences, permanent
injury to people and the death of many people and many
of which involve heavy motor vehicles, trucks, and many
of which where the criminality is more serious through

the consumption of liquor or through driving motor

vehicles knowing that the brakes are defective or

for driving over an extended period of time in a

reckless and dangerous fashion. We would submit,

Your Honours, that this is a departure from that

principle.

In the alternative, if it not be a principle,

it is none the less a departure from the practice

and a departure, in our respectful submission, which

was not justified in the circumstances of this case.

It would be our submission, bearing in mind that the

maximum penalty for one offence involving death and

looking particularly at the criminality in the

cases to which I have taken Your Honours, that this

could not be said to be a case that called for a

sentence that exceeded the maximum penalty and, indeed,

it would be our submission that the learned trial

judge who took the view at page 5 that it was the worse

case he had ever seen and would have justified a

conviction of manslaughter is just not capable of being sustained on the evidence. It is not clear

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whether Their Honours in the court below regarded it

as being the worse case of its type, but one infers

that from the fact that they have, in fact, indicated

that it called for a total sentence in excess of the

T34	five years. But we would submit to Your Honours that
whilst it involved breaches of the motor traffic laws in crossing over double yellow lines, driving at a
speed in excess of the limit. It was 80 in the area
but _there is an advisory sign of 55 kilometres. It
does not fall, we would submit, in the absence of the aggravating factors of alcohol and a pattern of
driving over an extended period of time because Mr Ford who was in the vehicle behind him only followed
him for a short distance and observed this behaviour.
It does not fall into the worst category and accordingly it would be our submission to Your Honours
that the court below should have applied the practice
that has been established by usage over many years.
Those are my submissions, if Your Honours please.

MASON CJ: Yes, thank you, Mr Sides. The Court need not trouble

you, Mr Howie.

We are not persuaded that there was any

error of principle on the part of the majority in

the Court of Criminal Appeal in imposing consecutive

sentences for offences under section 52A of the

CRIMES ACT 1900 of New South Wales.however sound

the approach urged by the applicant may be as a matter

of general sentencing practice or policy.

The application for special leave to appeal

is therefore refused.

MR SIDES: If the Court pleases.

MASON CJ:	The Court will now adjourn until 10.15 am tomorrow.
AT 12.47 PM THE MATTER WAS ADJOURNED SINE DIE

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