R v Bowditch[2014] QCA 157

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Dalton J's reasons for granting the application for leave to appeal against sentence and allowing the appeal in part, save for the following caveat.

[2] This case highlights some of the difficulties which may arise when judges sentence offenders for multiple offences.  Even where the effective sentence imposed for the totality of the offences is appropriate, judges should take care to fix a proportionate sentence for each offence: Pearce v The Queen.[1]  Judges have a discretion as to whether to impose cumulative or concurrent sentences or part cumulative and part concurrent sentences: Griffiths v The Queen.[2]  Generally, judges adopt one of two approaches.  They may impose an increased head sentence, usually on the most serious offence, to reflect the totality of all the offending[3] so as to avoid the possible unintended complications and consequences which sometimes flow from the combination of cumulative sentences and complex sentencing and related statutes.  On the other hand, judges may impose a cumulative sentence or a series of cumulative sentences, moderated to reflect the totality principle discussed in Mill v The Queen.[4]  Either method is apposite provided the judges make clear the method adopted and the reasons for it; that the overall effect of the sentence is not manifestly excessive; and that the sentences do not result in double punishment for the same acts.  Judges often tend to adopt the former approach as its effect tends to be more easily comprehended and it is less prone to unintentionally offend the totality principle.  I see no reason to dissuade judges from this course.

[3] I agree with the orders proposed by Dalton J.

[4] MUIR JA:  I agree with the reasons of Dalton J and with her proposed orders.

[5] DALTON J:  This is an application for leave to appeal against a long series of sentences imposed in the District Court on the grounds that some of the individual sentences, and the effect of the sentences overall, are manifestly excessive.  In my view, the application should be allowed because some of the individual sentences imposed are manifestly excessive.  My reasons are as follows.

[6] The matter in the District Court was complicated by the sheer number of offences before the primary judge and by the fact that the offences were committed over the period between June 2011 and October 2012, during which time, on 3 February 2012, the applicant turned 17.  This meant that there were offences for which the applicant was to be dealt with as a child, as well as offences for which he was to be dealt with as an adult.  In very broad terms, the approach of the primary judge was to:

(a)fix four years as the highest juvenile sentence;

(b)order that all juvenile sentences be served concurrently;

(c)fix two years as the highest adult sentence;

(d)order that all adult sentences were to be served concurrently with each other, but cumulatively upon the juvenile sentences.

[7] Pursuant to s 227(1) and (2) of the Youth Justice Act 1992 (Qld), the primary judge was able to order that the applicant was released from detention after serving 50 per cent or more of the juvenile sentences.  He did so.  That is, the primary judge made the most lenient provision for early release from detention available, having regard to the terms of the statute.

[8] As to release on parole for the adult sentences, the primary judge ordered that the applicant be eligible for parole once four months of the two year term were served.  He fixed that parole eligibility date by reasoning that, having regard to the applicant’s early plea and other mitigating factors, the parole release date could be fixed at one-third of the adult sentence – eight months – but that four months had already been served by the applicant as an adult.  Although that time served was not declarable, his Honour took it into account by halving the period of eight months, to arrive at a parole eligibility date fixed four months into the adult sentence.  I note that in addition, the four months served as an adult were recognised by the primary judge reducing what would otherwise have been the highest head sentence for the adult offences from two and one-half years to two years.

[9] The applicant was taken into custody on 19 October 2012.  He was sentenced on 10 December 2013, so that at the time of sentence the pre-sentence custody certificate showed that he had served 417 days.  It was common ground at the sentencing hearing, and before this Court on appeal, that 331 of those days were spent in juvenile detention and the remaining days, which the sentencing judge referred to as being 114 days or four months, were served in prison as an adult.  The practical effect of the sentences imposed is that on the juvenile sentence the applicant will serve time until 12 January 2015 (two years from 10 December 2013, less 331 days of pre-sentence detention).  Cumulatively with that, he will serve at least four months of his adult sentence, becoming eligible for parole on 9 May 2015.  If the applicant is not granted parole, his full time release date will be 12 January 2017.

[10] The applicant’s counsel contended that individual sentences for some of the juvenile offences were too high.  As well, it was said that this, the necessity for the applicant to serve 50 per cent of those juvenile sentences under s 227 of the Youth Justice Act, and the making of the adult sentences cumulative upon the juvenile sentences, had an overall effect that the sentences were manifestly excessive having regard to totality principles.  I turn to the detail of the offending.

[11] There were two indictments in the Children’s Court before the primary judge.  Number CCJ 51 of 2013 contained 24 counts.  Three were counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence and there were three corresponding counts of breaking, entering and stealing.  These offences involved the applicant, in company, stealing a car then reversing it through the doors of commercial premises (two bicycle shops and one motorcycle showroom), so that items could be stolen.  The stolen goods were sold after at least two of these offences.  Indictment CCJ 51 of 2013 also contained eight other counts of unlawful use of a motor vehicle; two other counts of entering premises with intent; one count of stealing; four counts of fraud and an unusual offence of stealing from a locked receptacle, namely a food vending machine on a train station platform.  The vending machine was forced open in company, food worth around $400 was stolen and $5,000 was the cost to repair the machine.  The dishonesty counts included stealing number plates and cigarettes from a newsagency.  The total loss and damage caused, so far as it was able to be identified, was over $111,500.

[12] The second indictment in the Children’s Court was No. CCJ 52 of 2013.  There were three counts on this indictment.  They are all related.  The first was breaking and entering premises, namely a shed, from which the applicant stole a utility vehicle.  The second was unlawfully using that vehicle.  The third was dangerous operation of that motor vehicle causing two deaths and grievous bodily harm.  The third of these offences was the most serious of all the juvenile offences.

[13] The offending took place on 12 November 2011.  The applicant held only a learner’s permit and was therefore not allowed to drive unless supervised.  In breach of that restriction, he drove four of his friends in the stolen car in the early hours of the morning.  None of the passengers wore a seat-belt.  The applicant drove at a speed of 120 kph in a zone where the speed limit was 60 kph.  He travelled in convoy with two other cars driven by his friends or associates; at least one of those other cars was stolen.  The applicant encountered another car which was turning right from a turning lane on a green light.  Due to the applicant’s speed and inexperience, he collided with the turning car.  The physical evidence of the collision was horrific.  Two of the applicant’s passengers were killed and the driver of the turning car was left with very severe injuries, including a traumatic brain injury for which he required a craniotomy, fractures and a pulmonary contusion.  During the course of his treatment he suffered a cardiac arrest, due to a massive pulmonary embolus which required considerable surgery, in addition to everything else he had suffered.  The applicant himself suffered a fractured right leg and pelvis, and damaged his spleen such that it had to be removed.  He spent two months in hospital recovering from his injuries.

[14] The third indictment was in the District Court, No. 316 of 2013.  This indictment contained 33 counts.  The offending commenced in early February 2012, literally days after the applicant was released from hospital following the accident just discussed.  The offending extends until he was apprehended and gaoled at the end of October 2012.  The offences are constant through this period and are of a type very similar to those on indictment CCJ 51 of 2013.

[15] The District Court indictment contains seven counts of unlawful use of a motor vehicle and two counts of unlawful use of a motor vehicle to facilitate the commission of an indictable offence.  The applicant, in company, appears to have stolen cars almost at will, including by breaking and entering premises, at times quite violently, in order to do so.  As well, premises were violently broken and entered in order to steal – for example, liquor, cigarettes, jewellery.  There are nine counts of breaking, entering and stealing on this indictment.  There are three counts of dangerous operation of a motor vehicle.  One is particularly concerning – count 11.  While police were pursuing a car which had been stolen by the applicant and his friends, the applicant climbed out of the window of the car and sat on the window-ledge, making gestures at the pursuing police.  The driver of the car (not the applicant) crossed onto the wrong side of the road and deliberately drove towards a large truck and then a motor-bike, forcing both off the road.  The driving was so dangerous that the police were forced to abandon their pursuit.  The District Court indictment contains two counts of serious assault, which were committed after the applicant was in gaol and committed against Corrective Services officers.

[16] The sentences imposed for juvenile offending about which the applicant particularly complains are:

(a)The three offences of breaking, entering and stealing which were associated with those of unlawfully using a motor vehicle to facilitate the commission of an indictable offence on indictment CCJ 51/2013.  These are the offences which involved the applicant in company using a stolen car to break the doors of bicycle and motorcycle shops in order to steal goods for sale.  The primary judge imposed a sentence of three and a-half years detention for each of these offences.

(b)The count involving stealing from the food vending machine on indictment CCJ 51/2013 for which the primary judge imposed a period of 18 months detention.

(c)The offence of breaking, entering and stealing on indictment CCJ 52/2013 – stealing a utility (used in the dangerous driving causing death offence) from a locked shed.  The primary judge imposed a sentence of three and a-half years detention for this offence.

(d)The offence of dangerous operation of a motor vehicle causing two deaths and grievous bodily harm on CCJ 52 of 2013.  The primary judge imposed a period of four years detention for this offence.

[17] I deal with the dangerous driving offence first.  In my view the sentence imposed for this offence was not manifestly excessive.  The appropriate penalty for this type of offence will depend upon factors including the course of driving and the consequences of it.[5]  Here the applicant was travelling at double the speed limit.  He was an inexperienced driver, in fact it was illegal for him to be driving without supervision.  He was driving a stolen car, joy-riding in company with friends in two other vehicles, one of which was also stolen.  His passengers wore no seat-belts.  When another road user attempted to make a legitimate turn on the road, the applicant’s speed, inexperience and probably failure to keep a good look out, caused dreadful consequences.

[18] There have certainly been cases where sentences have been imposed for this offence which are much less than that imposed on the applicant.  Riddell (above) and R v Snell[6] are two.  Mr Riddell was sentenced to 18 months imprisonment.  He served four months before an appeal was heard and the sentence was reduced to a 12 month intensive correction order on appeal.  In Snell, 18 months detention was imposed.  Both Mr Riddell and Mr Snell were very young, Riddell was 18 and Snell 15 at the time of offending.  Both of them had good antecedents.  In both cases the offending was an isolated incident.

[19] R v Grabovica[7] is a case concerning a very young adult – 17 years old.  He drove in a way which was more extreme than this applicant.  The consequence was that four persons were caused grievous bodily harm.  Mr Grabovica was sentenced to five years imprisonment with parole eligibility at 20 months, and the Court of Appeal refused to interfere.  It must be recognised that the maximum penalty for the offending in Grabovica was 14 years imprisonment, but here was only seven years detention.

[20] The case of R v Johnson[8] is also comparable.  Mr Johnson pleaded guilty to dangerous operation of a motor vehicle whilst intoxicated, causing grievous bodily harm to two persons.  He was 17, nearly 18, at the time of the offence.  He drove at a speed somewhere between 80 and 120 kph in a zone where the speed limit was 60 kph.  He tried to overtake whilst travelling at this speed and overturned the car.  One of the passengers suffered an extremely severe brain injury.  Mr Johnson had, a few weeks before the dangerous driving offence, driven a motor vehicle with a blood/alcohol concentration of 0.07 per cent and was on bail at the time of the dangerous driving offence.  The Court of Appeal imposed a sentence of four years imprisonment suspended after 12 months.

[21] Counsel for the applicant conceded that the primary judge had adopted the approach of imposing concurrent sentences for the juvenile offences and increasing the sentence for the most serious of them – the dangerous driving causing death offence – to reflect the overall criminality of the applicant’s conduct – see t 46 of the proceedings before the primary judge.  Defence counsel below had submitted in this context that the head sentence fell somewhere between two and a-half and four years.

[22] The practice whereby a sentencing judge fixes a term of imprisonment which reflects the overall criminality of a series of offences, and imposes that penalty on the most serious offence in the series, with all other sentences to be served concurrently, is discussed by the Court of Appeal in R v Nagy.[9]  Notwithstanding that a Court is obliged to impose individual sentences for individual offences, and the disquiet which has been expressed about this practice,[10] Griffiths v The Queen[11] is High Court authority which gives legitimacy to the practice.  The approach was endorsed as a legitimate one by the Court of Appeal in Nagy – see [39] of that case.

[23] My own view is that the Griffiths approach is not transparent.  An offender’s criminal record will contain only the sentences fixed for the various offences and will not show whether or not the approach endorsed by the High Court in Griffiths has been taken.  I am bound to accept that the approach in Griffiths is legitimate but, in my view, if it is adopted, a sentencing judge should make the basis for the sentencing express and the sentencing remarks should show the reasoning of the Court as to which sentence, or sentences, have been inflated, and to what extent, to account for overall criminality.  If that is not done, in my opinion, the reasons of the sentencing judge do not properly reveal the thinking behind the imposition of the sentences imposed.

[24] It appears from the transcript of the sentencing hearing, but not from the remarks themselves, that the sentencing judge here did adopt the approach sanctioned in Griffiths and Nagy and inflate the sentence imposed on the offence of dangerous operation of a motor vehicle causing two deaths and grievous bodily harm to reflect overall criminality.  Having regard to the seriousness of the dangerous driving offence itself as well as the extraordinary number of offences; frequency of offending; the seriousness of some of that offending; the repeated nature of the offending, and the fact that it was committed whilst on bail for the offences in indictment CCJ 51/2013, I cannot see that the four year sentence imposed for the offence of dangerous operation of a motor vehicle causing two deaths and grievous bodily harm was manifestly excessive.

[25] I turn to the other individual sentences about which complaint was made.  The three offences of breaking, entering and stealing which involved using a stolen car to break open bicycle and motorcycle shops (counts 2, 4 and 7 on CCJ 51 of 2013), were each the subject of a three and a-half year sentence.  In relation to each, the applicant was separately charged with, and sentenced for (nine months), the offence of unlawfully using a motor vehicle with the circumstance of aggravation that it was used to facilitate the commission of an indictable offence.  The offences at counts 5 and 29 on the District Court indictment are factually identical to counts 2, 4 and 7 on CCJ 51 of 2013 for present purposes, yet for those offences the applicant received sentences of only two years each.  In my view, the appropriate sentence on each of counts 2, 4 and 7 of CCJ 51 of 2013 was a sentence of two years detention.

[26] Similarly I am of the view that 18 months detention as a sentence for breaking into the food vending machine on the train station platform was manifestly excessive.  This was count 17 on indictment CCJ 51/2013.  In my view, the sentence for that ought to have been six months detention.

[27] The offence of breaking, entering and stealing, count 1 on indictment CCJ 52/2013, was given a sentence of three and a-half years detention.  That conduct was breaking into a locked shed and stealing a utility vehicle, later used in the dangerous operation of a motor vehicle offence.  Separate sentences were imposed for the unlawful use of the motor vehicle and, of course, for the dangerous operation of it.  In my view, the appropriate sentence on count 1 ought to have been 18 months detention.

[28] No other sentence on the Children’s Court indictments was challenged.  None of the individual sentences imposed on District Court indictment 316/2013 was challenged as being excessive.  However, it was argued that the totality of the sentences, particularly the District Court adult sentences being made cumulative upon the juvenile sentences, was manifestly excessive.  The total effect of the sentences is set out above at [8] and [9].

[29] Two things flow from the fact that some of the sentencing was under the Youth Justice Act.  One is that, while a head sentence of four years was fixed as the highest sentence for the juvenile offences, the order made under s 227(2) meant that the applicant would be released after serving two years detention, and the adult sentence will begin to run from that time.[12]  As the highest adult sentence is two years, the time the applicant is still under sentence for the juvenile offending will coincide with the time he is under sentence for the adult offending.  The second matter which arises because of s 227 of the Youth Justice Act is that the primary judge could not reduce the period of detention actually served below 50 per cent.  This was notwithstanding that there were mitigating factors, that the applicant had entered an early plea and had, by and large, co-operated with police.  In these two respects, the sentences imposed under the Youth Justice Act are not directly analogous to sentences imposed on adult offenders.  For these reasons I think it was wrong to argue, as the applicant did, that effectively the sentences were analogous to an adult sentence of six years with parole eligibility after two years and eight months.  That this is not so is evident from the fact that the applicant’s full-time release date is 12 January 2017.  I think the proper approach is simply to have regard to the real effect of the sentences imposed by the primary judge.

[30] No doubt the primary judge was obliged to have regard to the total effect of the sentences he imposed and, in my view, he did so.  His making the adult sentences cumulative upon the juvenile sentences reflected the serious, ongoing nature of the offending.  There was a very large number of offences.  A good number of them were serious.  The applicant persisted in criminal conduct, notwithstanding apprehension by police, and notwithstanding his having two months in hospital with significant injuries after his driving had killed two of his friends and grievously injured another person.  A significant punishment needed to be imposed, notwithstanding the applicant’s plea, youth, and poor childhood circumstances.  In my view, the cumulative nature of the adult sentences did not mean that the total effect of the sentences was manifestly excessive.  Nor did any other factor.  The total effect of the sentences was appropriate.

[31] I would:

(a)allow the application for leave to appeal;

(b)set aside the sentences on counts 2, 4 and 7 on indictment CCJ 51 of 2013 and substitute a sentence of two years detention on each of those counts;

(c)set aside the sentence on count 17 of CCJ 51 of 2013 and substitute a sentence of six months on that count;

(d)set aside the sentence on count 1 of CCJ 52 of 2013 and substitute a sentence of 18 months detention on that count.

I would not otherwise disturb the sentences, and would otherwise dismiss the appeal.