Attorney-General v Harris[1999] QCA 392

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No 161  of 1999

Brisbane

[R v. Harris; ex parte A-G]

THE QUEEN

v.

STEVEN ANDREW HARRIS

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

de Jersey CJ

Pincus JA

Thomas JA

Judgment delivered 21 September 1999

Separate reasons for judgment of each member of the Court;  de Jersey CJ dissenting

APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING - dangerous operation of a vehicle causing death of one person and grievous bodily harm to another - whether sentence of intensive correction manifestly inadequate

Anderson;  Ex parte A-G (Qld) (CA No 284 of 1998, 10 November 1998);  [1998] QCA 355

Everett (1994) 181 CLR 295

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY - single act of dangerous operation of a vehicle causing death of one person and grievous bodily harm to another - whether only one offence committed - whether duplicity point open - history and application of s 328A Criminal Code

Benfield [1760] 2 Burr 980

Chew (1991) 4 WAR 21

Clendon [1730] 92 ER 516

F (1996) 90 A Crim R 356

Giddins [1842] Car & M 634

Jacobs [1998] 1 Qd R 96;  [1997] QCA 111

Jemmison v Priddle [1972] 1 QB 489

Merriman [1973] AC 584

Montgomery v Stewart (1967) 116 CLR 220

Shillingford (1968) 1 WLR 566

Walsh v Tattersall (1996) 188 CLR 77

Criminal Code,  s 328A

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - TEST - dangerous driving of vehicle causing death of one person and grievous bodily harm to another - test for application of s 16 Criminal Code - whether more than one punishable act or omission

Gordon [1975] Qd R 301

Tricklebank [1994] 1 Qd R 330

Criminal Code,  s 16

Counsel: Mr M Byrne QC for the appellant

Mr B Devereaux for the respondent

Solicitors: Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

Hearing Date: 19 July 1999

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Pincus JA.  I agree with His Honour’s conclusion that the indictment was correctly drawn, for the reasons he expresses.

2. The penalty imposed was 12 months imprisonment, to be served, not actually, but in the community by way of intensive correction order.  The learned sentencing judge also ordered that the respondent be disqualified from holding a driver’s licence for a period of two years.

3. The learned judge described the conditions of the intensive correction order as “arduous”.  The conditions were those set out in s 114 of the Penalties and Sentences Act 1992, obliging the respondent to report to and receive visits from an authorised Corrective Services Commission officer at least twice weekly, and to take part in counselling and satisfactorily attend other programs and complete community service as directed, but as to those latter aspects, limited to no more than twelve hours in any one week during the specified period of twelve months (s 14(2)).  The respondent has in fact carried out some community service.  But it was entirely at the discretion of his Commission officer whether that would be required, and as to the extent of counselling and other programs.  It was therefore, with respect to the primary judge, something of an exaggeration of the certain impact of the order in the form in which he left it, to use the epithet “arduous”.  The imposition of additional requirements (s 115) could have put the aggregation of conditions into a category justifying that description, but the judge did not take that course.  In the result, an observer might reasonably feel that the order made here would not have any substantial deterrent effect.

4. The issue on the appeal is whether the penalty imposed was manifestly inadequate (R  v Melano, ex parte Attorney General [1995] 2 Qd R 186), for what Pincus JA describes as this case of “a young driver not properly licensed, with a minor criminal history, who has caused death and serious injury by driving too fast”.  At the time of the offence, the respondent was twenty years old.  He held only a learner’s permit, and contrary to the law, was driving unsupervised by a licensed driver.  His most significant prior criminal conviction was for breaking and entering with intent, committed three years earlier, for which a community service order was made.  The cause of the accident was substantial speed together with inadequate lookout, over a short period, but not momentarily.  The victims were husband and wife, the wife dying and the husband suffering serious, potentially fatal injuries which involved his being hospitalised for six weeks. 

5. While an intensive correction order of this nature may have been within appropriate range prior to the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997, the changes wrought by that amending Act did in my view warrant actual imprisonment. I refer especially to the removal, in cases of physical harm, of the legislative stipulations that imprisonment should be imposed only as a last resort, and that a sentence which allows the offender to stay in the community is preferable; and the removal of the legislative protection of persons under twenty five years of age previously confirmed by s 9(4) - although of course an offender’s youthfulness must remain a relevant consideration.  Those amendments indicate the legislature’s view that courts should, in cases of physical harm, be less reluctant than previously to imprison offenders; and that they should in appropriate cases be less reluctant to imprison young offenders.

6. Two features which reduce the significance this respondent’s age would otherwise carry are, first, that he had previously committed a prima facie serious criminal offence for which he had been given the benefit of a community based order; and second, that he was not at the time a licensed driver.  Although young, he had previously had a substantial encounter with the criminal justice system, yet in this instance again behaved irresponsibly in an area which, for its potential risk to life and limb, provokes continual public reminders of the need for careful driving.

7. The learned judge in sentencing the respondent said, in my respectful view erroneously, that the respondent had “no relevant criminal history”, and that of itself may suggest he was adopting an unduly lenient approach.  Although the breaking and entering with intent was not a traffic offence, it was still relevant, especially because it led to a community service order: the respondent’s subsequent reoffending provides some indication that he had failed to learn his lesson, as it is put, or to derive full benefit from the reminder, implicit in that community based order, of the need to conduct himself responsibly in relation to the community. 

8. The courts have frequently in this context emphasised deterrence as a weighty consideration. I consider that in these circumstances - speed and inattention other than momentarily, by an unlicensed driver with an otherwise blemished record, causing, to two victims, death and serious injury respectively, even though the driver was only twenty years old - appropriate deterrence could only be secured through the imposition of a term of actual imprisonment.  The amendments to the Penalties and Sentences Act reinforce me in that view.  They signal the legislature’s view that the Court should be more robust in imprisoning offenders in otherwise appropriate cases.

9. In his sentencing remarks, the learned judge described the outcome he ordered as just, observing that there was really nothing the Court could do to assist the family and supporters of the deceased and her injured husband.  I respectfully disagree.  The order he made appears to me to focus almost entirely on the position of the offender, and to reflect nothing of a reasonable expectation of the victims, their families and supporters, that the Court’s response in a case like this would involve an element of real, tangible punishment.  Compassion should go both ways, not just to the offender, but to the victim also, and in this particular case that should have been evidenced by the imposition of an effective short, although not merely nominal, term of actual incarceration.

10. Sentencing courts also must be astute to pause to acknowledge the gravity of ending the life of a fellow human being - and in this case, causing serious injury to another.   I regret to have to say that in my view, the sentence imposed failed to reflect that gravity, as well as the need for deterrence, a justification for punishment as such, and what I would see as a legitimate community expectation that an offence committed in these particular circumstances would have led to imprisonment, with the Court thereby paying appropriate regard to the recent legislative amendments to which I have referred.

11. Anderson (CA No 284 of 1998; 10 November 1998; [1998] QCA 355) was two years younger than this respondent, he had no prior criminal history, and there was one victim of his driving - here two.  I accept that it is nevertheless difficult, with absolute comfort, to distinguish that case from this, and albeit a majority decision, Pincus JA is, with respect, plainly right in referring to the desirability of achieving consistency.  I do however have a strong conviction that actual imprisonment should have been ordered here, and I am sufficiently satisfied that there is adequate ground upon which to distinguish this case from Anderson - in the respects mentioned above - to lead to this Court’s not feeling constrained by Anderson, with the need for consistency, to dismiss the appeal.

12. I would allow the appeal, set aside the intensive correction order, and order that the respondent be imprisoned for eighteen months, suspended after six months with an operational period (for purposes of s 144(5) Penalties and Sentences Act) of eighteen months.  The suspension after six months would reflect, among other circumstances, the plea of guilty, even though first indicated on the morning of trial, and the circumstance that the respondent has carried out some community service.  I would leave intact the order that the respondent be disqualified from holding a driver’s licence for the period of two years.

13. PINCUS JA:  This is an appeal by the Attorney-General against a sentence imposed in the District Court;  the sentence was an intensive correction order.  The charge was that the respondent then aged 20, operated a vehicle dangerously and caused the death of one person and grievous bodily harm to another.  The charge was laid under s 328A(4) of the Criminal Code and the indictment is drawn on the assumption that if an offender, by a single act of dangerous driving, causes death or grievous bodily harm to more than one person, only one offence is committed.  If that assumption is incorrect then the terms of s 567(3) have been breached.  This point is further discussed below.

14. The driving which caused the death and grievous bodily harm took place on 16 March 1998 at about 4.50 am, when it was still dark.  The respondent was the driver of a Holden car travelling north-east in Nursery Road at Holland Park towards Cavendish Road and, as a matter of inference, it appears that the other vehicle was coming from the respondent's right, across Nursery Road, travelling very slowly.  The Crown case was that the respondent was driving too fast and that seems plainly to be so.  There are a number of photographs of the scene in evidence, the most useful of which perhaps is photograph no 6 forming part of Exhibit 5.  It indicates that a person travelling out of Carrara Street would have a view of a vehicle coming from its left only over a relatively short distance and no doubt the view into Carrara Street approaching the way the respondent was driving would also have been fairly limited. 

15. The vehicle in which the person who died and the one who was injured were travelling was very extensively damaged on the left side, as can be seen from photograph 7.  That vehicle finished up on the footpath in Nursery Road well past the point of collision.  One of the occupants of that vehicle, a Mrs Orr, died on the day following the accident as a result of the injuries she sustained and her husband was seriously injured, his injuries including one to the head.  He was unable to recall the incident. 

16. Apart from the physical evidence of what happened, consisting in the damaged vehicle and the marks on the road, the only information obtained as to why the accident happened was from the respondent and from his brother who was the only passenger in the Holden.   According to the brother, he saw the other car when it was only about 7 metres away and its front was level with the white line in the street from which the vehicle came.  That white line is a little way past the stop sign in that street.  The account which the respondent gave to police was rather a garbled version, but included a statement that the car he hit did not seem to be even moving and that it was pretty much in the middle of the road, i.e. Nursery Road.  The accident seems to have happened because of a combination of two inter‑related factors:  mainly, excessive speed on the part of the respondent and, secondly, that because the respondent came over a hill shortly before the intersection he had only limited opportunity to see the vehicle coming from his right. 

17. The respondent had a learner's permit and was not entitled to drive unsupervised by a licensed driver, which is what he was doing.  He was 20 years of age at the time he committed the offence.  He had two previous convictions in his record:  one of breaking and entering with intent in 1995, punished by an order of 60 hours community service;  secondly, possession of a dangerous drug in 1997, which produced a fine of $600. 

18. The case, then, is one of a young driver not properly licensed, with a minor criminal history, who has caused death and serious injury by driving too fast.  The amendments made to the Penalties and Sentences Act 1992 by the Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 apply, under s 9(3)(b).  The principles mentioned in subs 2(a) do not apply to sentencing an offender for any offence that results in physical harm to another person.  Those principles are, first, that a sentence of imprisonment should only be imposed as a last resort and second, that a sentence that allows the offender to stay in the community is preferable.  Then s 9(4), which also applies, gives some emphasis to the victim's point of view of such offences - particularly in paras (a) to (d).  Another change effected by the 1997 amendment was to remove the special protection of persons under the age of 25 years, given by s 9(4).  This does not of course make the youth of an offender an irrelevant consideration.

19. In the primary judge's reasons for sentence, his Honour appeared to accept that there was high speed and said that there was no good reason for the respondent not having seen the vehicle and yielded right-of-way to it.  His Honour said that the sole cause of the death and serious injury was "your excessive speed which was completely inappropriate from any driver let alone one as inexperienced as you".  His Honour went on to say that no alcohol was involved and to discuss three previous cases.  His Honour described the 12-month intensive correction order which he imposed as being one which would require the respondent to spend the whole of the period "under the arduous conditions which govern the order".  The conditions are those set out in s 114 and s 115.  The court had power to, but did not, impose additional requirements. 

20. It does not, with respect, appear to me that the conditions attached by s 114 are necessarily arduous.  That adjective could be applied if there was ordered to be a substantial amount of community service performed under subs 1(e) or, perhaps, if the respondent was directed to reside at community residential facilities for periods not longer than seven days at a time, under para (f).  Otherwise none of the conditions appear to impose any onerous obligations - certainly nothing comparable with ordinary imprisonment.  We are told that the respondent has performed some community service.

21. To revert to the point about the form of indictment, mentioned above, reference was made in argument to the question whether in such a case as this two offences have been committed, or only one.  The question can have practical relevance in at least two ways.  If there are two offences then there should be two separate counts in the indictment, and if there are two offences then the statutory limitation on the penalty applies to each, separately.  Neither point is of much practical relevance in the present case.  As to the former point, there is no appeal against the conviction.  Further, there is authority, under a provision whose wording is similar to our s 571(2), that subject to any question of uncertainty of convictions, the duplicity point is not now open:  Chew (1991) 4 WAR 21 at 35, 36, 64.  Counsel submitted, however, that although a decision on the point is not required for the purpose of disposition of this application, it would be useful to have the Court's view as to whether two counts should have been charged.  There is also the fact that the indictment point has a connection with another argument, raised for the respondent and discussed below.

22. The origin of s 328A was the Criminal Code Amendment Act 1943, s 9, which created an offence of driving "a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public . . .".  The section prescribed penalties varying in severity, depending on whether the offender was being convicted under the section for the first time and on whether the conviction was obtained summarily or on indictment.  There were amendments by s 7 of the Criminal Law Amendment Act 1948, but they preserved the original framework.  Then s 6 of the Criminal Code and Other Acts Amendment Act 1961 substituted a section in rather different terms:  but again the penalties were made to vary depending on whether the offender had been previously convicted and on whether the conviction was summary or on indictment.  By the Criminal Code Amendment Act 1964, s 6, a new paragraph was inserted as follows:

"If the offender causes the death of or grievous bodily harm to another person he is liable upon conviction upon indictment to imprisonment with hard labour for five years".

23. Up to this stage, there would have been no reason to doubt that the offence was - to put it simply - dangerous driving, and that the 1964 amendment did not create a new offence, but merely specified another characteristic of the offence producing a different penalty;  that is, the 1964 amendment defined an aggravating circumstance.  An amendment of a similar character was made by Act No 59 of 1982, prescribing a special maximum depending upon blood alcohol concentration.  Act No 17 of 1989, by s 27, substantially amended the wording of the section, but did so in such a way as not to affect the references to causing death or grievous bodily harm;  that is, after that amendment it still seemed plain enough that causing death or grievous bodily harm was an aggravating circumstance.

24. It is the amendment made by s 55 of Act No 3 of 1997 which could give rise to uncertainty as to whether dangerous driving which causes death or grievous bodily harm is a separate offence.  Whereas prior to that amendment s 328A(4) began:

"If the offender causes the death of or grievous bodily harm to another person the offender is liable . . . ",

after the 1997 amendment the provision began:

4. "A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable upon conviction upon indictment to . . . ".

There follows provision for the penalties.  Up to the words "in any place" this reproduces the wording of subs 1, the basic part of s 328A, which creates a misdemeanour.  The explanatory note to cl 55, which became s 55 of the 1997 Amendment Act, referred to this change, saying:

"The aggravating circumstances of causing death or grievous bodily harm will be classified as crimes instead of misdemeanours". (emphasis added)

This suggests that the provision was presented to the legislature on the basis that the purpose was as stated, rather than being one of creating a new and separate offence.  However, it is in my opinion clear that subs (4) creates an offence distinct from that defined by s 328A(1), and that subs (4) does not merely specify aggravating circumstances.  That is so because s 328A(4) creates a crime, whereas s 328A(1) creates a misdemeanour.

25. The history of s 328A(4) which I have briefly discussed does not, therefore, make it right to hold that s 328A(4) merely defines a variety of the offence created by s 328A(1).  But that history has to do with the ultimate question which is whether, if there are two victims of one act of dangerous driving, there are two offences or one only;  it is relevant in determining whether the essence or substance or gist of the offence consists in the operation of the vehicle dangerously, or in the results of that operation.  The search for the essence or substance of the offence is treated as relevant, in this connection, in Montgomery v Stewart (1967) 116 CLR 220 at 231, Jacobs [1998] 1 Qd R 96 at 101;  [1997] QCA 111, and Shillingford [1968] 1 WLR 566 at 569.  The way in which the relevant provision reached its present form helps one towards the conclusion that the essence is the operation of the vehicle in a way which the statute makes unlawful, rather than the result of that operation;  the 1997 amendment produced a new offence, but one which can be regarded as a type or variety of the original offence of dangerous driving, created in 1943.

26. One would less readily apply the doctrine just mentioned, so as to reach the result that here there was no duplicity, if it were clear from the authorities that there are, in general, as many offences as victims.  But that is not necessarily so.  In Clendon [1730] 92 ER 516, an indictment charging assault on two persons was held to be defective, but a different result was reached in Benfield [1760] 2 Burr 980, where it was held that an offence of (in effect) defamation would properly be singly charged although there was more than one victim.  Then in Giddins [1842] Car & M 634, the accused robbed one person of a shilling and another of two shillings at practically the same time.  An indictment charging this as one offence of robbery was held to be valid.  In Jemmison v Priddle [1972] 1 QB 489, where the offence was, in effect, unlicensed shooting of deer, it was held that an offender could properly be charged with one offence, although two deer were shot.

27. An orthodox test is to consider whether what is charged is one activity or, as it is more elaborately put in Merriman [1973] AC 584 at 607:

"Where a number of acts of a similar nature . . . were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise . . . ".

Secondly, there is the approach of looking for a result which is commonsensical and fair:  Merriman at 593.  I note that despite the reasons of Kirby J in Walsh v Tattersall (1996) 188 CLR 77, the New South Wales Court of Criminal Appeal has thought it right to adhere to this test:  F (1996) 90 A Crim R 356 at 361.

28. In summary, there are three considerations which appear to point in the direction of holding the present indictment not to be duplex:  that on the face of the definition of the offence in the Code its substance or essence is the wrong operation of the vehicle, rather than its result or the circumstances attending it;  that treating such a case as the present as involving one offence only appears to produce a result conforming with commonsense and fairness, particularly since the other view could give rise to many offences consequent upon a single collision;  that there was only one activity or transaction.

29. It follows that in my opinion the indictment, insofar as it was drawn on the basis that there was only one offence, although two victims, was correctly drawn.

30. Counsel for the respondent raised an argument which has some connection with that just discussed;  he referred to the prohibition of double punishment, for the same "act or omission" in s 16 of the Code and urged that it applied to the present case.  The argument was that for the purposes of s 16 the act of causing the death of one occupant of the car was not the same as the act of causing grievous bodily harm to the other.  In Gordon [1975] Qd R 301 at 306, Hanger CJ expressed the view that s 16 is concerned with punishable acts or omissions and that test appears to have been applied by McPherson JA in Tricklebank [1994] 1 Qd R 330 at 336-37 and was also approved by Demack J at 341.  Here, the punishable act was operating a vehicle dangerously.  It is for that single act that the respondent was punished;  there were not two punishable acts.

31. It should be added that the allegation in the indictment that death was caused to one person and grievous bodily harm to another accords with the intention of s 328A(4) which refers to causing "the death of or grievous bodily harm to a person".  Here "or" is obviously used in the inclusive sense as meaning one or both, not as meaning one but not both.

32. To return to the principal question, the 1997 amendment to which reference is made above had the result that sentencing decisions prior to the amendment will not be directly applicable.  The strongest case for the respondent, however, is the recent decision of this Court in Anderson;  Ex parte A-G (Qld) (CA No 284 of 1998, 10 November 1998;  [1998] QCA 355) which dealt with an offence committed after the amendment came into operation.  There the driver had been drinking, but, it was thought, not to such a degree as to be causative;  he was driving within the speed limit and failed to observe a 22 month old child who had for some reason got onto the roadway.  The offender had had his license cancelled for traffic offences - principally speeding - and his view ahead was obscured by a dirty windscreen.  In the principal judgment it is said that the offender:

" . . . was driving 'blind' and had turned his head towards his passenger and was conversing with his passenger apparently for a number of seconds before the collision and at the time of the collision . . . ".

By a majority a non-custodial sentence was upheld;  the offender was 18 years of age and had no prior criminal history other than the traffic matters to which I have referred.

33. I confess that I might have had some difficulty in reaching the same conclusion as did the majority, on the facts of Anderson so far as they appear from the reasons.  The child struck was stationary on a straight section of roadway, in daylight.  It concerns me that the result of Anderson suggests that even quite inexcusable actions by unlicensed drivers causing death on the road will not necessarily attract any custodial sentence under s 328A, which prescribes a maximum penalty, in the general case, of 7 years imprisonment. 

34. There is room for considerable scepticism as to whether the penalty imposed in the present case is comparable, in deterrent effect, with true imprisonment.  I note that according to the report "Corrections in the Balance", Ch 7, p 86, intensive correction orders have had a low rate of successful completion :  54.5 per cent in the 1997-1998 year compared with (for example) 72 per cent for persons on parole in the same year.  Were it not for the recent decision in Anderson, I would have been in favour of allowing this appeal and imposing a custodial sentence but it is of course important to try to achieve some consistency.  It is impossible to say that what Anderson did was, considering all the circumstances, including the licensing position and the respective criminal records, a worse offence than that committed by the respondent.

35. When one takes into account, also, the cautious approach which this Court has, since Everett (1984) 181 CLR 295 adopted towards Attorney's appeals on sentence, the course of following rather than attempting to distinguish Anderson appears to me to be one which, not without regret, it is necessary to take.

36. I would dismiss the appeal.

37. THOMAS JA:  Two motor vehicles, each with two occupants, were involved in the relevant collision.  In the result neither the respondent nor his passenger was seriously injured, but one occupant of the other vehicle died and the other suffered grievous bodily harm.  Two questions arise on this appeal by the Attorney-General.  Firstly there is the question concerning the validity of the indictment; and secondly there is the question whether the sentence imposed on this young offender was so inadequate as to be outside the scope of a proper sentencing discretion^[1].

Validity of Indictment

38. The indictment charged the respondent with driving dangerously and causing the death of one person and grievous bodily harm to another.  I agree generally with what Pincus JA has written concerning the validity of such a charge, but would add the following comments. 

39. When the acts of an accused person are capable of being seen as one activity or transaction, and at the same time as being able to be subdivided in various ways, it is difficult to prescribe a test that will cover all situations.  Hence the resort of courts in cases such as Merriman^[2] and F ^[3] to concepts of fairness and commonsense.  The Queensland Court of Criminal Appeal in R v T^[4] and R v Morrow & Flynn,^[5] and this court in Biddle v Dimmock^[6] have taken a similar approach by addressing questions such as whether the acts of the accused may reasonably be regarded as one transaction or as comprising one offence, and through giving further consideration to any difficulty that might be raised in defending such an allegation. 

40. I agree with Pincus JA that the punishable act under s 328A(4) of the Code is operating a vehicle dangerously, but consider that the result of that driving is also an element of the primary offence which the section prescribes.  If the single act of driving causes multiple deaths or grievous bodily harm, there is no good reason why all such results should not be included in the one indictment although proof of one of them is enough to justify conviction of the crime there defined.^[7]  The combined consequences of the criminal act of the offender are of course relevant to the overall question of penalty.  Double punishment does not result, as the same overall result would be expected if the conduct and its consequences had been subdivided into concurrent offences.  In my view under s 328A(4), both in principle and in practice, an indictment with a single count containing the full result of the criminal act is a more satisfactory procedure than an indictment with multiple counts based on subdivision of the results of the criminal act.

Adequacy of sentence

41. I turn to the question of penalty.  The respondent was sentenced to 12 months intensive correction and he was disqualified from holding a driver's licence for two years.  Although the Penalties & Sentences Act 1992 describes intensive correction as "imprisonment [served] by way of intensive correction in the community and not in a prison",^[8] realistically it must be regarded as a non-custodial order.  The point at issue in the present case is whether the circumstances were such that it was essential that a sentence be imposed which required the respondent to serve some actual time in prison.

42. The essential features of the present case are that the offender was a young and inexperienced driver; no alcohol was involved; a collision occurred between two vehicles on a suburban road in darkness shortly before dawn; the respondent had only a learner's permit and his passenger was not licenced; he had no relevant driving history but had been before courts twice on other matters that were not particularly serious; there was a catastrophic result (the death of one person and grievous bodily harm suffered by another); however the actual driving reveals negligence of the kind that is more frequently encountered in the civil than in the criminal courts.  In a case such as this it becomes very important to identify the level of seriousness of the actual driving of the offender.

43. Having studied the evidence I find a number of questions that are not adequately answered, as to which adverse answers should not be assumed against the respondent.^[9]  These include the conduct of the other car involved.  The respondent was driving along Nursery Road which is a fairly major traffic route.  There is little doubt that the deceased's car emerged from Carrara Street and was in the process of crossing Nursery Road when it was struck on its left hand side by the respondent's car.  It is not known however whether it stopped at the stop sign or not.  The respondent at no time attempted to attribute blame to the other driver, and it is fair to say that neither he nor his passenger were able to give a coherent account of the other car's passage across the roadway.  However, the duty imposed by a stop sign is to give way to all traffic that is approaching the intersection.^[10]   An expert witness opined that the emerging vehicle (the deceased's vehicle) had been travelling at about 27 kilometres per hour at the time of impact.  If that represented its speed across Nursery Road, the respondent would have had less than three seconds awareness that it was coming across his path.  There is also the circumstance, mentioned by Pincus JA, that shortly before the intersection in question the respondent came over a crest, with the result that his opportunity to observe traffic such as the other vehicle was considerably restricted.  Recognition of the inherent danger of the location may further be inferred from the fact that traffic lights were installed to control the relevant intersection not long after this incident.

44. This collision occurred between vehicles driven by persons who were early workers on their way to work.  The respondent did not usually drive to work, but he had borrowed a vehicle from a friend to take his brother to his first day at work. 

45. The speed at which the respondent was travelling was not able to be clearly demonstrated although his Honour was informed that an expert had concluded from skid marks and perhaps other data that it would have been "over 75 kilometres per hour".  The statement of the respondent's brother, as eventually conveyed to the court, was that they were travelling at about 70 kilometres per hour.  Another witness who was waiting to turn left into Nursery Road, a short distance back from the point of collision, saw the lights of the respondent's vehicle and formed a quick impression that he was "flying".  The learned sentencing judge did not make an explicit finding, but seems to have been prepared to act on the Crown prosecutor's submission that the respondent was travelling at over 75 kilometres per hour which is at least 15 kilometres per hour over the prescribed speed limit.  However in the context of dangerous driving cases, this finding, which is the gist of the respondent's misconduct, is by no means a gross example of speeding.

46. Other factors in this case include an apparently devastating effect upon the respondent which would seem to be the product of genuine remorse on his part.

47. Reference was made to Anderson's case,^[11] which indicates that at least with respect to less serious examples of dangerous driving causing serious personal injury or death, a custodial term is not inevitable.  I would observe however that such a result must be quite rare when so much harm has resulted.  In Anderson, McPherson JA (who dissented) would seem to have identified the quality of the driving more seriously than the other members of the court and accordingly considered that "a prison sentence of some duration even if it was suspended after a short period" should have been imposed.  In my assessment of the evidence in the present case, the respondent's driving may be considered as less serious than the majority view of Anderson's driving.  In all the circumstances I am unable to say that the learned sentencing judge erred in framing a sentence which would avoid the negative consequences of requiring this young offender to go to prison.  It may be noted that the respondent has been performing 12 hours community service per week since the date of sentence (14 April 1999).

48. Whilst identifying this case as one that falls at the very periphery of cases where some actual custodial term should be required to be served, like Pincus JA I am not satisfied that such a result was mandatory or that this case should be identified as one which meets the tests required upon Attorney-General's appeals.  I would dismiss the appeal.