DPP v Smithurst, Theo John [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Blow J,Tennent J,Porter J
• Judgment Date: 22 December 2011
• Docket Number: 807/2011
• Date: 22 December 2011

[2011] TASCCA 19

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Blow, Tennent and Porter JJ

807/2011

Director of Public Prosecutions

and

Smithurst, Theo John

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Causing death by dangerous driving — Long journey after drinking and taking drugs.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Blow J

1 I have read the judgment of Tennent J in draft form. I agree with the orders she proposes, and agree substantially with her reasons.

Tennent J

2 On 31 August this year, the respondent, Theo John Smithurst, was convicted on his plea of guilty of the crime of causing death by dangerous driving contrary to theCriminal Code, s167A, and of the offences of driving while not the holder of a driver licence, driving a motor vehicle while exceeding the prescribed alcohol limit, being a driver not holding an Australian driver licence with alcohol in his body, and driving a motor vehicle whilst a prescribed illicit drug was present in his blood. The charges arose out of a motor vehicle collision which occurred on the Midland Highway at Brighton on 15 May 2010. The respondent was sentenced globally by Crawford CJ to serve a term of imprisonment of two years and three months, with effect from 24 August 2011. There was an order made that he not be eligible for parole until he had served one half of that term. He was also disqualified from driving for a period of three years from 31 August 2011.

3 The Director of Public Prosecutions (‘the Director’) now appeals that sentence on the ground that, in all the circumstances, the sentence was manifestly inadequate.

Facts

4 The respondent was born on 29 November 1972, and was therefore aged 37 at the time of the collision, and 38 at the time of sentence. He lived at Stonehenge. On 14 May 2010, he had visited his mother, arriving at her home at Oatlands at about 12 noon. He left her home at about 7pm and drove to the Melton Mowbray Hotel, arriving at about 7.30 to 7.45pm. He had not eaten all day. He stayed at the hotel until the early hours of the following morning. He consumed a considerable amount of alcohol. He also used cannabis and methylamphetamine. He left the hotel and went to sleep in his car. Approximately one and a half hours later, he woke, and decided to drive to his daughter's home at Glenorchy. He began his journey down the Midland Highway. At about 2.50am, approximately 1.5 kilometres south of Brighton, his vehicle collided with one being driven by Leanne Robbins. She was travelling north.

5 The collision occurred at the crest of a hill. The respondent was negotiating a sweeping slight right-hand bend. The speed limit for the section of road where the collision occurred was then 60 kilometres per hour. The road was dry. The centre of it was marked with clearly visible double white continuous lines. There was no evidence of any obstruction on the road prior to the collision. As the respondent drove round the bend, he failed to remain on his correct side of the road. He travelled into the path of Mrs Robbins' vehicle and collided with it head on. She died at the scene.

6 The respondent's blood alcohol level, calculated from a sample of his blood taken when he arrived at the Royal Hobart Hospital, was .193, that is nearly four times the legal limit. The drugs already referred to were also found in his system. The opinion of a chemist from Forensic Science Services Tasmania was to the effect that the relative risk of a driver with the level of alcohol concentration found in the respondent was fifty times that of a driver with no alcohol. The same chemist was of the view that both THC (cannabis) and methylamphetamine have been found to adversely affect driving performance and, when taken in combination with alcohol, the adverse effects would be enhanced.

7 While a low level of alcohol was found in the blood of the deceased, as were traces of cannabis, there was no suggestion her driving ability was in any way compromised, or that she contributed in any way to the collision. The Court had before it victim impact statements. The death of Mrs Robbins had a devastating effect on her parents and in particular her daughter, Bree. Because of her mother's death, Bree went to live with her father, with whom until then she had not had a lot of contact.

8 The respondent's counsel accepted the facts as put by the prosecutor, although said that his client was not a methylamphetamine user usually, and could not explain how that drug came to be found in his blood. He was a regular user of cannabis. The respondent had been in receipt of a disability support pension for over two years as a consequence of a back injury. He was single and lived in rented accommodation. His daughter lived in Hobart. Counsel accepted the respondent was, at the relevant time, a seriously impaired driver. The respondent told police he had no memory of events between leaving the Melton Mowbray Hotel and waking on the road after the collision. He also said that, when he decided to drive to Hobart, he thought he had been asleep for about six hours, although there was no reasonable basis for that assumption by him. He suffered some injuries which included a broken leg and other fractures. He spent some time in hospital. He was co-operative with police otherwise, and entered an early plea. His counsel described him as being genuinely remorseful.

The Crown's case

9 There were no witnesses to the collision or to the manner of driving of either the respondent or Mrs Robbins prior to the accident. It was not possible for police to determine the speed of either vehicle. The Crown's case was put on the basis that the mere driving by the respondent, given the lack of sleep and consumption of alcohol and drugs, was dangerous. The factors identified by the Director in support of that contention were:

• •the respondent was not licensed to drive at all,

• •he drove some distance to an isolated hotel where he proceeded to drink alcohol for some hours,

• •he drank alcohol to such an extent that he had no memory of events after leaving the hotel,

• •he consumed cannabis,

• •he was found to have ingested methylamphetamine in some way, although said he did not know he had,

• •after drinking alcohol, he commenced a lengthy journey on a major highway, without any real consideration for his state of sobriety, when he did not need to do so,

• •his intention when he commenced the journey from the hotel was not only to drive on a major highway, but also to drive through a densely populated suburb,

• •he was ultimately found to have driven with a blood alcohol concentration almost four times the legal limit.

The level of culpability of the respondent was, in all the circumstances, significant.

The respondent's prior relevant offending history

10 The respondent had a history of drinking and driving. On 16 November 1990, he was convicted of being a first year driver, driving with alcohol in his body and failing to keep left. His blood alcohol level on that occasion was .135. He was fined and disqualified from driving for ten months. On 30 June 1992, he was convicted of drink driving offences again, this time with a blood alcohol level of .139. The offences on this occasion had actually occurred early in 1990 prior to those for which he was convicted on 16 November 1990. On 23 July 1993, he was convicted again of adrink driving offence. He was ordered to perform community service and to pay a fine, although payment was suspended. He was disqualified from driving for 18 months. On 30 November 1993, he drove a motor vehicle while disqualified. He was convicted for that offence on 15 July 1994. He was given a suspended term of imprisonment, and disqualified from driving for nine months which was to be cumulative to the period of disqualification imposed on 23 July 1993.

11 On 25 July 1996, the respondent committed another drink driving offence. He was convicted for it on 25 September 1996. Again, he was given a suspended term of imprisonment, and disqualified from driving for nine months. In 2006, 2007 and 2008, the respondent was convicted of driving without a licence. At some stage thereafter, the respondent obtained a provisional licence. However it expired on 28 June 2009. The respondent needed to have a liver function test before he could apply again for a licence. He had completed that, but not applied for a licence. He was therefore an unlicensed driver at the time of the collision. However, he had been convicted on four separate occasions between...