R v Shane Edward Ireland [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Nader,Maurice,Muirhead JJ.
• Judgment Date: 25 August 1987
• Docket Number: No. CA 5 of 1987
• Date: 25 August 1987

(1987) 49 NTR 10

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Nader, Maurice and Muirhead JJ.

No. CA 5 of 1987

R.

and

Shane Edward Ireland

Counsel for Appellant: Mr Karczewski

Counsel for Respondent: Mr Mildren QC

Cases applied:

R v Tait and Bartley (1979) 24 ALR 473

( R v Yates unreported, 11 December 1986)

Cases considered:

( Baumer v R unreported, 3 July 1987)

Breed v Price (1985) 36 NTR 23

R v Calder (1987) 1 Qd R 348

R v Visconti (1982) 2 NSWLR 104

Valentine and Garvie (1980) 2 A Crim R 170

Cases followed:

R v Brusch 11 FCR 582 (1986)

Cases referred to:

Edsall (1981) 8 A Crim R 1

Griffiths v The Queen 137 CLR 293

Osenkowski (1982) 5 A Crim R 394

Peel v R. (1971) 125 CLR 447

R v Boswell (1984) 3 All ER 353

R v Hewett (1981) 27 SASR 364

( R v Oliver unreported, 20 March 1980) NSW Court of Criminal Appeal

Criminal law — Appeal — appeal by Attorney-General — manifest inadequacy of sentence — dangerous act (culpable driving) causing death while intoxicated — partially suspended sentence — conditional release — principles of sentencing — Criminal Code Act (NT) ss.154(1)(3)(4), 414 — Criminal Law (Conditional Release of Offenders) Acts.5(1)(b).

Sentencing — criminal law — appeal by Attorney-General — manifest inadequacy of sentence — partially suspended sentence — conditional release — whether period of good behaviour bond ought not be less than the period of the balance of the head sentence — principles of sentencing — Criminal Law (Conditional Release of Offenders) Act: s.5(1)(b).

Sentencing — criminal law — appeal by Attorney-General — dangerous act (culpable driving) causing death while intoxicated — maximum penalty — acceptance of doctrine of general deterrence — decision in Baumer v R to be followed in future — principles of sentencing.

JUDGE1

1 This is an appeal as of right under section 414 of the Criminal Code by the Honourable the Attorney-General against a sentence imposed upon Shane Leonard Ireland,the respondent, on 24 March 1987 for an offence under section 154 of the Criminal Code to which the respondent had pleaded guilty. The terms of the indictment were as follows.

2 On 18 September 1986 at Winnellie in the Northern Territory of Australia, did a dangerous act, namely, drove a Ford Falcon sedan Queensland registration number 125 PQD upon the Stuart Highway while under the influence of alcohol and collided with a bicycle being ridden by one Robert Visser and thereby caused the death of the said Robert Visser.

3 The indictment specified subsections 154(1), (3) and (4) of the Criminal Code.

4 The respondent was sentenced to imprisonment for 3 years. It was ordered under section 5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act that he be released after serving 9 months of the sentence upon his entering into a recognizance in the sum of $1000 to be of good behaviour for 12 months. A condition of the recognizance was that the respondent abstain from intoxicating liquor or drug except upon prescription of a legally qualified medical practitioner.

THE GROUNDS OF APPEAL

5 The appellant relies upon the following grounds.

6 The learned trial judge erred in law:

• 1. in imposing a head sentence which in all the circumstances is manifestly inadequate;

• 2. in ordering the respondent's conditional release after the serving of 9 months which in all the circumstances was manifestly inadequate.

• 3. in ordering that the period of good behaviour be for a period less than the balance of the head sentence.

THE FACTS

7 The facts upon the plea of guilty were presented orally by the Crown Prosecutor together with documentary evidence comprising a hand-up brief.

8 At about 5.30 pm on 18 September 1986, the respondent finished work at the Channel Island Power Station. He went from work to the Maranga Hotel at Winnellie, a suburb of Darwin arriving at the hotel at about 6 pm. He drank beer with work mates. The respondent estimated that he had consumed 8 or 9 cans of beer before leaving the hotel at about 9.30 pm. He drove his car onto the Stuart Highway, turned right and drove south. The inbound and outbound lanes of the highway, two in each direction where the respondent was driving, were separated by a wide median strip. The lanes were marked on the road surface. The respondent was familiar with the stretch of road. The respondent's vehicle was travelling at about 70 to 80 kph and weaving from side to side across both outbound lanes. It increased speed to about 95 or 100 kph and drew up behind another car travelling in the left-hand outbound lane. The respondent's car moved to the right hand outbound lane, overtook the other car and returned to the left hand lane. After this manoeuvre, the respondent's car travelled on the centre of the road, straddling the line dividing the two outbound lanes: as a witness said, “in the centre of the road.” At a point about 50 metres past some traffic lights at the intersection of Hook Road and the highway, the respondent's car veered to its left and threw up a cloud of dust from the unsealed verge at the left hand side of the road. The car moved back onto the sealed surface. Shortly after, the bonnet of the respondent's car was seen to be up. The respondent was driving with his head out of the window in order to see where he was going. A short distance further, the respondent's car stopped and he got out. His car was later seen going into a dip in the road just before the intersection of the Stuart Highway and Amy Johnson Avenue. A very short time later, it was seen to have mounted a traffic island and come to a stop. The off-side front wheel was folded under the body of the car. The respondent got out of the car, went to the off-side front wheel and shook it as if to straighten it. He re-entered his vehicle and tried to start the engine. A witness to these last events, Mr Newcastle, told the respondent not to start the car because there was petrol everywhere. The respondent said to Mr Newcastle: “You have to get me away from here” and went on to talk about an accident. According to Mr Newcastle, the respondent said: “The boys from work put the piss on. I had a few drinks with them. I knew I had too much and shouldn't have driven.” Mr Newcastle formed the opinion that the respondent was heavily intoxicated.

9 A passenger in Mr Newcastle's vehicle left to call the police. In her absence the respondent removed a number of empty beer cans from his car. He handed two of them to Mr Newcastle, telling him to throw them away. The respondent himself threw four or five empty cans into the bush at the side of the road. He continued to talk to Mr Newcastle, repeating the words: “I'm gone. I'm gone this time.”

10 A short time later, a medical practitioner arrived and informed those present that there was a push bike further down the road. The respondent was saying words like: “I've killed someone. I've really fucked up this time.”

11 There were no witnesses to the collision which occurred at a point approximately 400 metres south of the intersection of Lee Street and the Stuart Highway. It happened when the respondent's car moved onto the unsealed left-hand side of the highway, shortly after which the bonnet of the car was seen to be up.

12 The deceased was riding his bicycle outbound along the Stuart Highway at the point of the highway referred to. He was dressed in a white T-shirt, white shorts and white running shoes. He bicycle was equipped with an orange reflector below the seat, reflectors on the pedals and wheels. The tail light and headlight were lit. The bicycle was being ridden close to the left hand side of the bitumen.

13 Street lighting in the area where the collision occurred was good. The weather was fine and dry. The relevant section of the highway was straight and level with no obstructions to forward vision.

14 The deceased's bicycle was struck from behind by the respondent's car. He was killed almost immediately from shocking injuries. His body was found about three metres in from the edge of the bitumen, about 118 metres from the estimated point of impact. Upon impact the windscreen of the respondent's car was broken, and the near-side headlight and grill area received moderate damage. The roof line of the near-side of the car was buckled.

15 When the police arrived at the scene, the respondent held out his hands offering to be handcuffed and said: “Give it to me. I did it. I'm the one.” He was taken to Berrimah Police Station where a breath analysis was made. The respondent had a blood alcohol concentration of 0.24%. He was then arrested for driving with excessive blood alcohol and put in a cell.

16 Interrogated the next day by police, the respondent answered questions untruthfully at first in order to avoid the consequences of his conduct. He gave a false account of what happened, the details of which are of no relevance. However, during the course of the interrogation, at about 8.50 am, the respondent broke down: not, it should be added, as the result of any improper conduct of the interrogating police. The interrogation was suspended till 10 am. When it resumed, the respondent admitted having been drunk and to having driven his car when he left the hotel. He admitted to having collided with a bicycle as he passed the Dunlop premises on the highway. Questions and answers 137 to 162, inclusive, of the Record of Interview were as follows:

“Q137 When you travelled past Dunlop,can you recall hearing any noises.

I remember a bike, one minute he was there and the next minute there he was.

Q138 You state that he was there, did you know at the time it was a male on the bike.

No I dont.

Q139 Do you remember seeing any tail lights on the bike.

No. No.

Q140 When you saw the bike, what happened.

I'd say my reactions would be to brake it was too quick I can't remember.

Q141 Did you hear any noise when your car and the bike collided.

Yeah,...