Wahl, Jade Victoriarnah v Tasmania (State of) [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Tennent J,Wood J
• Judgment Date: 05 April 2012
• Docket Number: 746/2011
• Date: 05 April 2012

[2012] TASCCA 5

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Tennent and Wood JJ

746/2011

Wahl, Jade Victoriarnah

and

Tasmania (State of)

REPRESENTATION:

Counsel:

Appellant: D Kerr SC, G J Barnes, A M M Browning

Respondent: A R Jacobs

Lovegrove v R [1961] Tas SR 106 ; R v De Simoni (1981) 147 CLR 383, applied.

Aust Dig Criminal Law [3292]

Aust Dig Criminal Law [2086]

Criminal Code Act 1924 (Tas), s46.

Criminal Law — Sentence — Relevant factors — Irrelevant factors — Error to give weight to a mental state that is an element of a more serious offence of a similar nature with which the offender could have been charged, but was not.

Criminal law — General matters — Criminal liability and capacity — Defence matters — Defence of persons or property — Application to cases other than murder — Application to a charge of causing grievous bodily harm by dangerous driving.

ORDERS OF THE COURT

• 1 Appeal allowed.

• 2 The global sentence of imprisonment imposed on the appellant on 4 August 2011 is quashed and in its place it is ordered that she serve a global sentence of four years' imprisonment cumulative upon the sentences that she was serving, and it is ordered that she be eligible to apply for parole after serving three years of the sentence of four years' imprisonment.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 The appellant appeals against a global sentence of eight years' imprisonment, subject to parole eligibility after six years, imposed on her by Blow J consequent upon her conviction on charges of aggravated burglary, causing grievous bodily harm by dangerous driving, and perverting justice.

2 The appellant's crimes were all committed in connection with a home invasion on 19 March 2010. On that date the appellant drove her eldest son, together with three of his friends, two males and one female, to the home of another youth, Matthew Ward. The female, who gave evidence, said the three males were aged 17. The appellant knew that her son's intention was to assault Matthew Ward. She parked her vehicle across the road from the home. Her son and one of his male friends forced their way into the home, but being outnumbered, they fled. The occupants of the home included Dianne Clifford, the mother of Matthew Ward. Mrs Clifford and others approached the appellant's vehicle in a threatening manner. In some haste the appellant drove off and as she did so, she drove over Dianne Clifford. Subsequently, in an attempt to avoid being prosecuted for what she had done, the appellant twice told the police that her vehicle had been stolen.

3 By her appeal the appellant contends that the learned trial judge erred:

• 1 by sentencing her on the basis that there were no mitigating factors in relation to the charge of causing grievous bodily harm by dangerous driving, when it was not disputed that her car had been surrounded by people she had reason to fear, and that passengers in the car were urging her to flee;

• 2 by sentencing her on the basis that she must have intended to cause grievous bodily harm to the victim;

• 3 alternatively, by imposing a sentence on her as severe as would have been warranted had she been convicted of a crime requiring the specific intent to cause grievous bodily harm to the victim;

• 4 by imposing a head sentence that was manifestly excessive in the circumstances;

• 5 by imposing a non-parole period that was manifestly excessive in the circumstances.

Ground 1

4 This ground of appeal was not pursued by counsel for the appellant in his written or oral submissions. I can find no support for it in his Honour's comments on passing sentence and would reject it.

General

5 A jury found the appellant guilty of the charges. It fell to the learned trial judge to determine the facts for the purposes of the sentencing. In the course of doing so, his Honour said:

‘I am satisfied beyond reasonable doubt that the circumstances were essentially as follows. Ms Wahl's eldest son was angry with the other youth, Matthew Ward. He said that he wanted to “smash” him. He repeatedly demanded that his mother drive him to that youth's home. … Ms Wahl, who did not hold a driver's licence, drove her son to the other house knowing that he intended to assault Matthew Ward. They were accompanied by three of her son's teenage friends – two males and one female.

On arrival, Ms Wahl stopped the car across the street from the home of Matthew Ward. Her son and one of his male friends went to the front door. One of them kicked it open, with such force that a deadlock was torn from the door. They went inside. By entering the house as a trespasser, intending to commit the crime of assault, Ms Wahl's son committed the crime of aggravated burglary. By driving him to the scene, knowing what he intended to do, Ms Wahl aided him to commit that crime, and is therefore deemed also to be guilty of that crime under the Criminal Code, s3(1)(b).

…

The two intruders were outnumbered. They fled. Matthew Ward armed himself with a long heavy piece of wood, and chased Ms Wahl's son up the street. Matthew Ward's mother, Dianne Clifford, approached Ms Wahl's vehicle and stood in front of it. His brother also approached the vehicle. Ms Wahl decided to depart, and drove over Mrs Clifford, causing terrible injuries.’

His Honour's findings with regard to those injuries included the following:

‘Mrs Clifford was 45 years old when she was run over. She suffered a degloving injury to the left side of her face. That is to say, the skin on that side was torn off. She lost her left ear. She suffered a fractured jaw, a fractured pelvis, and a broken leg. She became a paraplegic. That is to say, she will never be able to walk again. She was flown to Melbourne for emergency hospital treatment. Initially there was a significant chance that she would die. She is now back in Tasmania, living in a private residence, and being cared for by her long-term partner. There is very little that she can do. She is very seriously disfigured. Her injuries have caused huge expense for her and the community, and will continue to do so for many years. She has no recollection of the events of the night in question.

The aftermath of this crime must have been dreadful for her partner and her sons, who were at the scene. Police officers gave evidence that there was not only blood on the roadway, but also fragments of bone, human tissue, and hair.’

Grounds 2 and 3

6 After noting that the appellant had defended the charge of causing grievous bodily harm by dangerous driving on two bases – mistake and self-defence, his Honour went on to make findings in relation to that charge. As drawn, ground 2 asserts that his Honour found that the appellant intended to cause grievous bodily harm to Mrs Clifford, and ground 3 asserts that his Honour sentenced the appellant as if she had been convicted of a crime requiring a specific intent to cause grievous bodily harm. In the following extracts from his Honour's comments I have italicised the portions referred to by counsel for the appellant in support of these assertions.

‘I am satisfied beyond reasonable doubt that Ms Wahl drove towards Mrs Clifford with her windscreen intact, and without anyone having told her that there was no-one in her path. She admitted to the police that she had seen Mrs Clifford standing in front of the car with her hands on it at one stage. There was evidence that Mrs Clifford was wearing a light top. Even though it was dark and the street lighting was minimal, I am satisfied beyond reasonable doubt that Ms Wahl must have been able to see Mrs Clifford, that she must have driven towards her knowing that it was at least likely that she would be knocked down and hurt, and that she drove towards her very quickly. There is no reason to think that Ms Wahl desired to inflict any harm on Mrs Clifford. I am therefore not satisfied beyond reasonable doubt that she intended to harm her, but I am satisfied beyond reasonable doubt that she drove at her, and knowingly drove over her, with reckless indifference to the harm that she might cause.

…

The crime of causing grievous bodily harm by dangerous driving is commonly committed by immature young people who use cars as if they were amusement machines and do not expect to cause any harm to anyone. This case was different. It is a particularly bad example of this sort of crime, not just because of the extremely incapacitating and disfiguring injuries suffered by the victim, but also because it arose out of the use of a vehicle for the purpose of the commission of a crime, and because it involved a conscious decision to expose an innocent and defenceless woman to the risk of serious injury.’

7 In the course of counsel for the appellant's oral submissions, he accepted that it was wrong to assert that his Honour found that the appellant intended to cause grievous bodily harm to Mrs Clifford. His Honour clearly said that he was not satisfied beyond reasonable doubt that the appellant intended to harm Mrs Clifford, but that he was ‘satisfied beyond reasonable doubt that she drove at her, and knowingly drove over her, with reckless indifference to the harm that she might cause’. That finding is a finding of subjective recklessness, as distinct from a finding of intent, and I similarly construe his Honour's finding that the appellant's conduct involved a ‘conscious decision to expose an innocent and defenceless woman to the risk of serious injury’.

8 The mental element that must be established on a prosecution for the crime of causing grievous bodily harm in breach of the Criminal Code, s172, is an actual intent to cause grievous bodily harm, or subjective recklessness; R v Bennett [1990] Tas R 72, Neasey J at 81, agreed with by Underwood and Crawford JJ (as they then were) at 85. The term ‘subjective recklessness’ is a shorthand way of referring to establishing that at the time the accused performed the relevant...