John Paul Baumer v The Queen [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: O'leary C.J.,Maurice J.,Muirhead A.J.
• Judgment Date: 03 July 1987
• Docket Number: No. 3 of 1987
• Date: 03 July 1987

(1987) 48 NTR 1

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

O'leary C.J., Maurice J. and Muirhead A.J.

No. 3 of 1987

John Paul Baumer

and

The Queen

Counsel for Appellant: M.R. Jones

Counsel for Respondent: R.D. Ellis

Cases applied:

R. v Clark (1972) 4 SASR 30

R. v Tait and Bartley (1979) 24 ALR 473

Cases considered:

Crawley (1981) 5 A. Crim R 451

Porter v Prestwood (1983) 33 SASR 75

R. v Boswell (1984) 3 All ER 353

R. v Calder (1987)1 Qd R 348

R. v Durilla — Unreported decision of Supreme Court of Northern Territory, 26 March 1987 — Asche J.

R. v Fyfe (1985) 40 SASR 120

R. v Waters — Unreported decision of Supreme Court of Northern Territory, 10 October 1986 — O'Leary C.J.

Cases followed:

R. v Guilfoyle (1973) 2 All ER 844

R. v Johnston (1985) 38 SASR 582

Cases referred to:

Coombe v Whitbread (1959) SASR 104

R. v Devlin (1985) 38 SASR 578

R. v Esposito (1985) 38 SASR 574

R. v Hill (1976) 13 SASR 507

R. v Shirley (1969) 3 All ER 678

R. v Thomas (1983) 3 All ER 756

Veen v R. (1979) 143 CLR 458

Criminal law — Appeal — Severity of sentence — Dangerous act (culpable driving) causing grievous harm — Intoxication — Relevance of driving record — Period of disqualification — Imprisonment — Principles of sentencing — Criminal Code (NT): ss. 154(1), (2) and (4), 390(9).

Sentencing — Criminal law — Appeal — Severity of sentence — Dangerous act (culpable driving) causing grievouse harm — Intoxication — Relevance of driving record — Period of disqualification — Imprisonment — Principles of sentencing — Tariff — Maximum penalty — Criminal Code (NT): ss. 154(1), (2) and (4), 390(9).

Statute — Interpetation — Dangerous act (culpable driving) causing grievous harm — Intoxication — Maximum penalty — Criminal Code (NT): s.154(4).

JUDGE1

1 This is an application for leave to appeal against a sentence imposed on the appellant by Asche J. on 26 February last. On that day, the appellant pleaded guilty of an offence commonly referred to as culpable driving causing grievous harm. It is an offence provided for by s.154 of the Criminal Code which is as follows:

154 DANGEROUS ACTS OR OMISSIONS

(1) Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.

(2) If he thereby causes grievous harm to any person he is liable to imprisonment for 7 years.

(3) If he thereby causes death to any person he is liable to imprisonment for 10 years.

(4) 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 4 years.’

2 The facts and circumstances surrounding the offence have been fully set out by Muirhead A.J., and there is no occasion for me to repeat them here. On any score, it was a most serious offence and, as Maurice J. notes, one that called for a sentence at or near the top of the range of penalties provided for by the section. The maximum penalty is imprisonment for 11 years. As well, the appellant is liable, under s.390(9) of the Code, to have his driver's licence cancelled or suspended or to be prohibited from holding or obtaining a driver's licence for such period as the court thinks fit. In the result, Asche J. sentenced the appellant to imprisonment for a term of 8 years, he fixed a non-parole period of 4 years and made an order prohibiting him from obtaining or holding a driver's licence for a period of 20 years. The appellant now seeks leave to appeal against that sentence and the period of disqualification on the ground that both are manifestly excessive in all the circumstances of the case.

3 The principal question raised by the appeal is the construction to be given to sub-section (4) of s.154 of the Code, and, in particular, how that sub-section is to be taken into account in sentencing a person for an offence under the section.

4 Prior to the coming into force of the Criminal Code, the offences of culpable driving causing grievous bodily harm or death were provided for by s.16A of the Criminal Law Consolidation Act. The maximum penalty for these offences as fixed by the section was imprisonment for 7 years or a fine of $500 or both. The section was directed specifically to driving offences, and drew no distinction between the case where the culpable driving caused death and the case where it caused grievous bodily harm; nor did it contain any provision for the case where the offender was, at the time, under the influence of an intoxicating substance.

5 By way of contrast, however, s.154 of the Criminal Code is not confined to driving offences. It embraces all cases (whether driving or other kinds of cases) in which a person does an act or makes an omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done that act or made that omission. The maximum penalty for that offence as fixed by sub-section (1) of the section is imprisonment for 5 years, but that penalty is increased to imprisonment for 7 years if the act or omission causes grievous harm (sub-section (2)), and to 10 years if it causes death (sub-section (3)). Sub-section 4 of the section, however, provides that if at the time of doing the act or making the omission the offender is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years. The question before us, therefore, is how is that sub-section to be taken into account in sentencing a person for an offence under the section, and, in particular, whether it ‘merely reflects universally established judicial practice’ in sentencing for the kinds of offences covered by the section, as Maurice J. considers it does, or whether it involves a radical departure from previous sentencing practice, as Muirhead A.J. suggests.

6 In my opinion, sub-section (4) of s.154 represents a deliberate and radical departure by the legislature from the previous legislation dealing with offences of the kind covered by the section, including, as I have said, driving offences. With the greatest respect, I cannot agree with Maurice J. that s.154(4) ‘merely reflects universally established judicial practice’, or that ‘(f)or the most part, it reflects the existing law and … ought to be seen in this light, not as a prescription for some radical departure from past sentencing practice.’ Whatever weight may have been given under the previous legislation to the fact that an offender was under the influence of an intoxicating substance at the time of the offence, and whatever weight may be given to that fact under other legislation elsewhere, in my opinion, the clear legislative intention as expressed in s.154(4) of the Code is that, not only must that fact be taken into account as an aggravating circumstance of the offence, but as an aggravating circumstance rendering the offender liable to a specific further substantial penalty in addition to any other penalty to which he is liable under the section. In my opinion, therefore, the fact that an offender was under the influence of an intoxicating substance at the time of the offence is a factor to which a sentencing authority must give separate and serious consideration when fixing the appropriate penalty for the offence, and he must do so bearing in mind the further specific penalty provided by the sub-section, a penalty, it is to be noted, almost as severe as that provided for in sub-section (1).

7 In the present case, the appellant was obviously drunk at the time of the accident and, indeed, was apparently drunk when he set out on his journey. That factor, therefore, was one to which the sentencing judge was bound to give, and did, I think, properly give, the most serious consideration. Besides, as I have said, the offence itself was a most serious one; there were no mitigating circumstances attending it, and none personal to the appellant except the fact that he pleaded guilty and showed some measure of remorse for what he had done. In my opinion, therefore, there was no error on the part of the learned trial judge in imposing the sentence he did, nor do I think the sentence itself is so excessive as to demonstrate any error on his part. In general, I agree with what Muirhead A.J. has said in this regard. It is true, as was pointed out by counsel, that the sentence is greater than previous sentences imposed for an offence under the section, but I think that must be accounted for by the fact that, up to date, insufficient attention has been given to the provisions of sub-section (4). If that be so, it is an error which must now be corrected.

8 As to the period of disqualification imposed by his Honour, I agree with Muirhead A.J. that it must be regarded as being at the upper limits of his Honour's discretion, but, like him, I see no grounds for interfering with it. I might add that I join with Maurice J. and Muirhead A.J. in their recommendations to the Attorney-General to consider an amendment of s.390(9) of the Code along the lines suggested by them.

9 In the result, then, I would give the appellant leave to appeal, but I would dismiss the appeal.

JUDGE2

1 The facts are set out in the judgment of Muirhead J.

2 In my view the sentence imposed and the length of licence disqualification were manifestly excessive. Whatever language is used to define it, culpable driving causing death or serious bodily injury is an offence with which courts of the several Australian jurisdiction deal daily. Although the driver's conduct varies from case to...