Section 154(4) of the Northern Territory legislation does not require a two-stage sentencing approach but does require regard to the higher cumulative maximum penalty; prior record may inhibit mitigation but cannot increase the sentence beyond what is appropriate for the offence.
Later decisions that cite Baumer v R
BAUMER v. THE QUEEN [1988] HCA 67; (1988) 166 CLR 51
F.C. 88/065
Criminal Law (N.T.)
High Court of Australia
Mason C.J.(1), Wilson(1), Deane(1), Dawson(1) and Gaudron(1) JJ.
CATCHWORDS
Criminal Law (N.T.) - Dangerous acts - Absence of intention to cause specific danger - Sentence - Imprisonment for prescribed term if act causes grievous bodily harm - Further term if offender intoxicated - Criminal Code (N.T.), s. 154.
HEARING
1988, November 18; December 8. 8:12:1988DECISION
MASON C.J., WILSON, DEANE, DAWSON AND GAUDRON JJ. In February 1987 the applicant pleaded guilty in the Supreme Court of the Northern Territory to a charge that on 17 April 1986, whilst under the influence of alcohol, he did a dangerous act in that he drove a motor vehicle inbound on the outbound carriageway on the Stuart Highway and collided with another vehicle thereby causing grievous harm to a passenger in that other vehicle. The offence is commonly referred to as culpable driving causing grievous harm and is created by s.154 of the Criminal Code (N.T.) ("the Code"). That section reads as follows:"What increases the seriousness of this particularHis Honour also observed that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of society. We will return to these observations later in these reasons. In the result, his Honour, after noting some factors in mitigation, imposed a sentence of eight years imprisonment with a non-parole period of four years and ordered that the applicant be disqualified from obtaining or holding a driver's licence for twenty years.
offence is the literally appalling record of the
accused so far as prior offences in relation to
driving are concerned."
3. The applicant applied to the Court of Criminal Appeal for leave to appeal against the sentence and the period of disqualification on the ground that both were manifestly excessive in all the circumstances of the case. Leave was granted but by majority (O'Leary C.J. and Muirhead A.J., Maurice J. dissenting) the appeal was dismissed. The applicant now seeks special leave to appeal to this Court.
4. The principal ground advanced in support of the application for special
leave is directed to the proper construction of s.154,
and s.154(4) in
particular. The Chief Justice expressed his view of the effect of s.154(4) in
the following terms:
"In my opinion, sub-section (4) of s.154Implicit in the Chief Justice's approach was the view that the effect of s.154(4), when applicable, is to require a two-stage approach to sentencing. That view was made express by Muirhead A.J. when he said:
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. ... 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)."
"... in the course of sentencing, the court must
consider sub-section (4) as a separate exercise.
... Where the intoxication is coincidental, rather
than causative or in itself dangerous, the 'loaded'
maximum of 4 years may not justify a significant
increase in the substantive sentence. But where it
looms large in causation and in assessment of the
degree of danger the policy of the legislature
cannot be ignored by the sentencing court. So, in
the present case, his Honour in exercising his
sentencing discretion under sub-sections (1) and
(2) was required to impose a sentence within a
maximum range of 7 years. The degree of
intoxication then fell for consideration ...
I consider this approach, i.e. separate
consideration of sub-section (4), is required by
reason of its wording 'liable to further
imprisonment for 4 years'... ."
5. On the other hand, Maurice J., in his dissenting opinion, said as
follows:
"I cannot find in s.154 of the Criminal
Code any directive justifying a wholesale increase
in penalties for culpable driving causing grievous
bodily harm. The section is not specifically
targeted at driving; potentially it covers an
infinite range of human activity, at one end of the
scale creating only limited potential danger to the
health or safety of one member of the public and at
the other involving actual grave danger to the
lives, health and safety of many. ...
So far as alcohol is concerned, at least in
culpable driving cases, there is nothing novel
about treating it as an aggravating circumstance
calling for the imposition of a higher penalty than
otherwise. In this regard, s.154(4) merely
reflects universally established judicial practice.
The subsection does no more than make alcohol an
aggravating feature. Care must be taken in driving
cases to ensure that it is not brought into account
twice: once in assessing culpability in accordance
with past judicial practice when dealing with this
type of offence, and again when considering
subsection (4). It must be remembered the Act is a
code: it sets out to state this area of the law in
its entirety. For the most part, it reflects the
existing law and s.154(4) ought to be seen in this
light, not as a prescription for some radical
departure from past sentencing practice."
6. We have cited these passages from the reasons for judgment of their Honours in order to demonstrate the marked conflict of opinion, expressed in the Court of Criminal Appeal, concerning the operation and effect of s.154(4). We are of the opinion that the truth lies somewhere between the two positions.
7. Section 154 of the Code is an unusual section. As Maurice J. observed, it
is not specifically aimed at driving. It casts a
wide net, so as to cover all
acts or omissions endangering the life, health or safety of any member of the
public where the risk
ought to have been clearly foreseen and the act or
omission avoided. The offence so created can therefore cover an enormous
range
of conduct from the comparatively trivial to the most serious. The
maximum penalties prescribed are to be seen and applied in that
light. The
predecessor in the Northern Territory to s.154, in relation to culpable
driving causing grievous harm, was s.16A(1) of
the Criminal Law Consolidation
Act and Ordinance. That sub-section read as follows:
"16A.(1) Any person who
(a) drives a motor vehicle in a culpably
negligent manner, or recklessly, or at a
speed, or in a manner, which is dangerous
to the public; and
(b) by such negligence, recklessness, or
other conduct, causes the death of, or
grievous bodily harm to, any person,
Shall be guilty of a misdemeanor.
Penalty: Imprisonment for 7 years or a fine of
500 dollars or both."
8. The provisions of s.154(4) are unique to the Northern Territory in so far as the sub-section prescribes a further maximum penalty to which an offender is liable if, at the time of the act or omission constituting the offence, he is under the influence of an intoxicating substance. The identification of a separate penalty coupled with the presence of the word "further" led the majority in the court below to construe the sub-section as "a deliberate and radical departure" by the legislature from previous legislation; it requires the sentencing authority to give "separate and serious consideration" to the question of intoxication when fixing an appropriate penalty for an offence, remembering that the offender is liable to a specific further substantial penalty in addition to any other penalty to which he is liable.
9. One problem with this construction is the practical difficulty, if not impossibility, of giving effect to it. It is important to note the elements of the substantive offence created by s.154(1): an 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 have made that act or omission. An intention to cause a particular result is not an element of the offence. But foreseeability of the danger to "an ordinary person similarly circumstanced" is an element. Presumably, in an appropriate case, the words "an ordinary person" are intended to comprehend a person who, while in other respects is similarly circumstanced to the offender, is nevertheless not under the influence of an intoxicating substance.
10. It would not be surprising if in many cases under s.154, there being no necessity to prove an intention to cause a specific result, the influence of an intoxicating substance was the only explanation for the commission of the offence. If, in such circumstances, the section requires a two-stage approach to the sentencing process, it is difficult to envisage how the court could avoid taking the factor of intoxication into account twice. Take the present case. It would be highly artificial for the court to evaluate, for the purpose of fixing a primary sentence within the limit prescribed by s.154(2), culpability of the applicant in driving his vehicle the wrong way in a one-way section of a highway and causing grievous harm to a person without having regard to the fact that he was drunk, for the court would then be left with a set of circumstances which probably would never have happened. To the extent that reality is injected into the evaluation, that must prevent the "separate and serious consideration" of the additional penalty that constitutes the second phase of the process.
11. On the other hand, the view expressed by Maurice J. in dissent fails to pay sufficient regard to the change in the law effected by s.154(4). In the application of the sub-section to cases of culpable driving, his Honour said that it "merely reflects universally established judicial practice" and "does no more than make alcohol an aggravating feature". Furthermore, in his discussion of what would be an appropriate penalty in the present case, Maurice J. did not appear to concede any effect to the generally higher terms of imprisonment prescribed by the section.
12. In our opinion, s.154(4) is a clear expression of concern by the legislature over the effect of intoxication on the level of crime in the community in the context of dangerous acts or omissions lacking an intention to cause a specific result. It does not require a court to engage in a two-stage approach to sentencing with separate consideration being given to the fact that an offender was under the influence of an intoxicating substance. But, in such a case, it does require a court to have regard to the higher maximum penalty resulting from the cumulative effect of s.154(4) on the other sub-sections of the section.
13. The applicant's conviction exposed him to liability to imprisonment for a
maximum term of eleven years. This is a higher maximum
term than the term
which was applicable to a similar offence in similar circumstances prior to
the enactment of the Code in 1983.
The change, therefore, required some
adjustment to the range of sentences that would formerly have been considered
appropriate.
This is so, notwithstanding the variety of dangerous acts that
may be embraced within the section. As we have noted, some of these
offences
could attract far more serious consequences than the ordinary case of culpable
driving and this consideration could have
the effect of limiting the impact of
the higher maximum on the latter kind of offence. There may be much truth in
the observations
of King C.J. in Reg. v. Johnston (1985) 38 SASR 582, at p
586, cited by Maurice J.:
"The typical dangerous driver is not a hardenedNevertheless, the fact remains that a clear expression of legislative will, while permitting some latitude in application, must be given effect.
criminal. The thought of prison is as frightening
to him as it is to almost all citizens who are not
hardened offenders. The deterrent to such a person
is the threat of imprisonment rather than the
duration of the threatened imprisonment. If a
driver is not deterred from a dangerous course of
driving by the threat of imprisonment for eighteen
months or two years, is it realistic to suppose
that he will be deterred by the prospect of two and
a half or three and a half years imprisonment? The
truth is that in the great majority of cases, he
simply does not expect to be involved in a serious
accident."
14. In the present case, therefore, the task of the sentencing judge was to evaluate the circumstances of the offence in their entirety, including the influence of alcohol, and to determine an appropriate term of imprisonment having regard to the prescribed maximum of eleven years and to the possible range of offences to which it applied. His Honour purported to proceed in this way. However, the manner in which his Honour performed the task is open to question in two respects. We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence. Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of the public is open to misunderstanding. Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more. In applying a section like s.154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence.
15. The question of law concerning the proper construction of s.154(4) is a question of general importance which warrants the grant of special leave to appeal. Since we have expressed a different opinion to the opinions expressed in the court below, it is appropriate that we enable the Court of Criminal Appeal to impose a fresh sentence and disqualification. There should be an extension of time in which to make application for special leave to appeal. Special leave should be granted, the appeal allowed and the order of the Court of Criminal Appeal, in so far as it dismisses the appeal to that Court, set aside. The matter should be remitted to the Court of Criminal Appeal to be dealt with according to law.
ORDER
Application for an extension of time in which to apply for special leave to appeal granted.Application for special leave to appeal granted.
Appeal allowed.
Set aside the order of the Court of Criminal Appeal of the Supreme Court of the Northern Territory in so far as it dismisses the appeal to that Court.
Remit the matter to the Court of Criminal Appeal for the appeal to that Court to be dealt with according to law.