Kennewell v Rand [2005] ACTSC 89 (16 September 2005)

Last Updated: 6 October 2005

JONATHAN MICHAEL KENNEWELL v JAMES RODERICK RAND

[2005] ACTSC 89 (16 September 2005)

APPEAL - sentence - culpable driving causing grievous bodily harm - two counts - eighteen months imprisonment on each charge - concurrent as to six months - total head sentence 30 months - non-parole period 18 months - whether manifestly excessive - whether error in partly cumulative sentences - whether error in discretion relating to general deterrence - specific deterrence - factors personal to accused - alleged inconsistency with previous sentencing practice - no error in discretion - appeal dismissed.

Crimes Act 1900, s 29(3), s 375, s 341, s 342, s 343, s 345

Magistrates Court Act 1930, s 90A

R v Whyte [2002] NSWCCA 343

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 51 of 2005

Judge: French J

Supreme Court of the ACT

Date: 16 September 2005

IN THE SUPREME COURT OF THE )

) No SCA 51 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JONATHAN MICHAEL KENNEWELL

Appellant

AND: JAMES RODERICK RAND

Respondent

ORDER

Judge: French J

Date: 16 September 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Introduction

1. On 9 June 2004 Jonathan Kennewell drove a motor vehicle the wrong way into Kuringa Drive, Spence in the Australian Capital Territory. He collided with another vehicle driven by Mr Pat Rodden, whose wife was a passenger. Both Mr and Mrs Rodden suffered significant injuries as a result. Mr Kennewell was charged on two counts of culpable driving causing grievous bodily harm. He was under the influence of alcohol at the time of the accident. He had also been taking prescribed medication which he had been warned not to mix with alcohol. His method of driving was dangerous and erratic. He pleaded guilty to the charges and was sentenced to 18 months imprisonment on each count in the ACT Magistrates Court. The two sentences were made partially concurrent so that there was an overlap between them of six months. As a result the total head sentence was 30 months. A non-parole period of eighteen months was fixed.

2. Mr Kennewell appeals against that sentence on a variety of grounds alleging that the learned magistrate's discretion miscarried. For the reasons set out below no error as alleged is made out and the appeal will be dismissed.

Factual and Procedural Background

3. Jonathan Kennewell was born on 25 March 1985 in Queensland. In 1992 he and his family moved to Canberra where they have remained since.

4. On 10 November 2004, Mr Kennewell was charged on summons with two offences against s 29(3) of the Crimes Act 1900 (the Crimes Act). Each of the complaints alleged that on 9 June 2004, by the culpable driving of a motor vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of it, he caused grievous bodily harm to another person.

5. The first charge alleged that he caused grievous bodily harm to Patrick Rodden. The second charge alleged that he caused grievous bodily harm to Mr Rodden's wife, Beverly Rae Rodden.

6. The offences arose out of the collision between a white Landrover Country 4WD driven by Mr Kennewell and a maroon Holden Commodore Sedan driven by Mr Rodden in which Mrs Rodden was a passenger. The collision occurred at the intersection of Kuringa Drive and Kingsford Smith Drive, Spence in the ACT in the early afternoon of 9 June 2004.

7. According to persons who witnessed the accident the Landrover driven by Mr Kennewell exited Magrath Crescent at speed taking a left turn onto Kingsford Smith Drive heading north towards Kuringa Drive. In turning, the Landrover crossed four lanes of Kingsford Smith Drive into southbound lanes. It travelled for a short distance along the southbound lanes before crossing over onto north bound lanes. It entered the intersection of Kingsford Smith Drive with Kuringa Drive without appearing to slow. It made a right turn, slid into the northern kerb, corrected, then drove onto the wrong side of the road. It travelled a short distance before colliding with the Commodore driven by Mr Rodden. At that time the Landrover was travelling east in the westbound carriageway of Kuringa Drive. Witnesses who saw the vehicle immediately before the collision described its progress as `driving like a maniac' or `idiot'. During the vehicle's turn into Kingsford Smith Drive witnesses could hear the engine revving and the squeal of the vehicle's tyres.

8. A breathalyser test conducted on Mr Kennewell shortly after the accident disclosed a blood alcohol level of 0.104.

9. Mr Kennewell appeared in the ACT Magistrates Court on 24 June 2005 and pleaded guilty to both charges. Her Honour, Magistrate Campbell, imposed sentences of 18 months imprisonment in respect of each conviction. Twelve months of the 18 months term imposed in respect of the charge relating to Mrs Rodden was made cumulative upon the term of imprisonment imposed in respect of the charge relating to Mr Rodden. The result was a total head sentence of 30 months. A non-parole period of 18 months was fixed commencing on 24 June 2005 and ending 23 December 2006. On each of the charges Mr Kennewell was disqualified from holding or obtaining a driver's licence for five years. The two disqualifications were made concurrent with each other.

10. A notice of appeal against the decision was filed in the Supreme Court on 12 July 2005.

The Grounds of Appeal

11. The stated grounds of the appeal are -

(i) The sentence imposed was manifestly excessive.

(ii) The learned Magistrate erred in accumulating the terms of imprisonment to the extent that she did.

12. Mr Kennewell sought orders that the sentence imposed by the magistrate be set aside and that lesser terms of imprisonment and a lesser non-parole period be imposed.

The Statutory Framework - The Offence and the Penalty

13. The offence of culpable driving of a motor vehicle is created by s 29(3) of the Crimes Act. Section 29 provides, inter alia -

(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 7 years.

(3) A person who, by the culpable driving of a motor vehicle, causes grievous bodily harm to another person is guilty of an offence punishable, on conviction, by imprisonment for 4 years.

(4) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle -

(a) negligently; or

(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.

(5) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.

(6) An information or indictment for an offence against subsection (2) or (3) shall specify the nature of the culpability, within the meaning of subsection (4), that is alleged.

Subsections (1), (7), (8), (9) and (10) are not relevant for present purposes.

14. As appears from s 29(3) the maximum penalty for the offence of culpable driving of a motor vehicle causing grievous bodily harm is four years. If, however, the offence is dealt with summarily by a magistrate, the magistrate is limited to the imposition of a maximum penalty of two years. If, in the opinion of the magistrate, a higher sentencing range is required, then the magistrate must, in effect, send the matter to the Supreme Court.

15. That result arises from s 375 of the Crimes Act, read with s 90A of the Magistrates Court Act 1930 (the Magistrates Court Act). Section 375 provides, inter alia -

(1) This section applies in relation to any offence against a Territory law, being -

(a) a common law offence; or

(b) an offence punishable by imprisonment for a term not exceeding -

(i) if the offence relates to money or other property - 14 years; or

(ii) in any other case - 10 years.

(2) If -

(a) a person (the defendant) is before the Magistrates Court charged with an offence in relation to which this section applies; and

(b) the court is of the opinion that it has no jurisdiction, apart from this section, to hear and determine the charge summarily; and

...

the court may proceed in accordance with subsections (3) to (12).

(3) The court may invite the defendant to plead guilty or not guilty to the charge.

(4) If the defendant pleads guilty to the charge, the court may accept or reject the plea.

...

(7) If -

(a) the court accepts a plea of guilty to a charge; and

(b) the court is of the opinion that the case can properly be disposed of summarily; and

(c) the defendant has consented to its being so disposed of;

the court may sentence or otherwise deal with the defendant according to law.

(8) Before forming an opinion whether or not a case can properly be disposed of summarily, the court shall have regard to -

(a) any relevant representations made by the defendant; and

(b) any relevant representations made by the prosecutor in the presence of the defendant; and

(c) whether, if the defendant were found guilty or the defendant's plea of guilty has been accepted by the court, the court is, under this section, empowered to impose an adequate penalty, having regard to the circumstances and, in particular, to the degree of seriousness of the case; and

(d) any other circumstances that appear to the court to make it more appropriate for the case to be dealt with on indictment rather than summarily.

(9) If the court accepts a plea of guilty to a charge, and -

(a) the court is of the opinion that the case cannot properly be disposed of summarily; or

(b) the defendant has not consented to its being so disposed of;

the Magistrates Court Act 1930, section 90A(5) to (10) applies in relation to the defendant as if the court had accepted a plea of guilty to the charge under that section.

(10) If the court disposes of a case summarily under this section and convicts the defendant of the offence, then, subject to subsections (11) and (12), but notwithstanding any other Territory law, the court may not impose a sentence of imprisonment exceeding 2 years nor impose a fine exceeding $5000.

Subsections (11) and (12) are not material for present purposes.

16. The relevant subsection of s 90A of the Magistrates Court Act is subs (7) which provides:

If the court accepts the plea and -

(a) it does not appear to the court that it is proper to deal with the case summarily; or

...

(e) this section applies to an accused person under the Crimes Act, section 375;

the court shall commit the accused person to the sittings of the Supreme Court that the court directs and the Supreme Court shall deal with the accused person in accordance with subsections (8) to (12).

17. Part 15 of the Crimes Act deals with sentencing. Division 15.1 sets out general principles and procedures relating to sentences. The purposes for which sentences are imposed are specified in s 341-

The only purposes for which a sentence may be imposed are -

(a) to punish the offender to an extent and in a way that is just and appropriate in all the circumstances; or

(b) to deter the offender or the other persons from committing the same or a similar offence; or

(c) to rehabilitate the offender; or

(d) to make it clear that the community, acting through the court, denounces the type of conduct in which the offender engaged; or

(e) to protect the community from the offender; or

(f) a combination of 2 or more of the purposes referred to in paragraphs (a) to (e).

18. The Court is required to have regard to a number of matters in imposing sentence and these are set out in s 342, which provides in the relevant parts as follows -

(1) In determining the sentence to be imposed on a person, the matters to which a court shall have regard include, but are not limited to, such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

...

(f) any action the person may have taken to make reparation for any injury, loss or damage resulting from the offence;

(g) the degree of responsibility of the person for the commission of the offence;

(h) the degree to which the person has cooperated, or undertaken to cooperate, with law enforcement agencies in the investigation of the offence or other offences;

(i) the cultural background, character, antecedents, age, means and physical or mental condition of the person;

(j) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants;

(k) whether the person was affected by a drug or alcohol and the circumstances in which the person became so affected;

...

(m) whether the recording of a conviction or the imposition of a particular sanction would be likely to cause particular hardship to the person;

...

(o) whether the person is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;

...

(q) current sentencing practice;

(r) whether the person has pleaded guilty and, if so, the stage of the proceedings at which the person did so or indicated an intention to do so;

(s) whether the person has demonstrated remorse;

(t) the reason or reasons why the person committed the offence;

...

Subsection (2) is not material for present purposes.

19. Section 343 deals with the reception of victim impact statements in the following terms:

(1) A court determining the sentence to be imposed in respect of an offence -

(a) shall have regard to any victim impact statement tendered in respect of the offence; and

(b) shall not draw any inference about the harm suffered by a victim from the fact that a victim impact statement is not tendered in respect of the offence.

(2) The prosecutor shall not tender a victim impact statement to the court unless -

(a) the victim has consented in writing; and

(b) a copy of the statement has been given to the defence.

(3) The defence may cross-examine the victim about the contents of a victim impact statement.

(4) In this section:

court means the Supreme Court or the Magistrates Court.

defence means -

(a) the legal practitioner representing the offender; or

(b) if the offender is not so represented - the offender.

harm includes -

(a) physical injury; and

(b) mental injury or emotional suffering (including grief); and

(c) pregnancy; and

(d) economic loss; and

(e) substantial impairment of rights accorded by law.

offence means an indictable offence for which the Maximum penalty is a term of imprisonment for a term of at least 5 years (whether or not any other penalty, including a fine, may be imposed).

Victim impact statement means a statement, signed by a victim, containing particulars of any harm suffered by the victim as a result of an offence.

20. Section 345 sets out restrictions on imposing sentences of imprisonment including the fundamental restriction set out in s 345(1) -

A court shall not pass a sentence of imprisonment on any person for an offence against a Territory law unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.

The section is said to apply subject to any contrary intention in the law creating the offence (s 345(4)).

The Material before the Magistrates Court

21. A statement of facts before the Magistrates Court set out the events leading up to the collision, which have already been outlined. It stated that Mr Kennewell was dazed after the collision and had difficulty in understanding instructions. He complied with all directions but had to have them explained prior to compliance. He swayed as he stood and smelt strongly of intoxicating liquor. He said, at the time, that he was taking sedatives and had been advised not to drink alcohol. He also said he was having problems with his family and was unconcerned about his own existence.

22. Examination of the scene of the collision by the police disclosed a set of tyre marks leading from the Landrover back into the intersection. They indicated that the vehicle had been under acceleration during its turn from Kingsford Smith Drive into Kuringa Drive. The marks also showed the rear of the vehicle had been sliding to the left as it negotiated the turn.

23. A form headed `Statement of Informant' was received as an exhibit before the learned magistrate. That statement indicated that Mr Kennewell had undertaken a screening breath test in accordance with directions. He said at the time that he was sure he was not over the limit. He was told that the screening test indicated that his blood alcohol concentration was more than that prescribed. He was taken to Belconnen and a breathalyser test was administered at 14:22. Observations by the testing police officer recorded on the form, indicated that Mr Kennewell's face was flushed, his eyes were watery and bloodshot and there was a smell of intoxicating liquor on his breath. His speech was normal. His balance was described as `fair' and his walk as `sure'. The testing officer thought that he was moderately affected by alcohol. In other remarks the testing officer wrote, by way of apparent paraphrase or quotation of what Mr Kennewell said to him -

Taking sedatives and I was warned not to drink with them.

24. Mr Kennewell's legal representatives tendered a report from a consultant pharmacologist, Dr GA Starmer. The report offered opinions on the effects of Mr Kennewell's measured blood alcohol level and also of the various prescription drugs which he had been taking.

25. Dr Starmer referred to the amount of alcohol which Mr Kennewell said he had consumed just before the accident. Given his body weight and gender and the time he had started drinking, which was at 10am, Dr Starmer estimated that his blood alcohol concentration would have been about 0.101. This was within the range of .075 to .115. This was in reasonable accord with the police finding. Dr Starmer was of the opinion that Mr Kennewell's recall of his drinking over the period in question was likely to have been essentially accurate.

26. Dr Starmer described the major effects of alcohol on brain function in relation to balance and coordination. It reduces peripheral awareness and impairs judgment of speed and distance. Alcohol intoxicated drivers make fewer fine adjustments and are forced to make more compensatory tracking responses. These often lead to an obvious meandering steering pattern. There is an alcohol induced slowing of information processing which affects every action which the driver is called upon to perform. Such deficits frequently occur in conjunction with an increase in driving aggression and risk-taking behaviour. This appeared to be a factor in Mr Kennewell's collision because witnesses had described the driving of the Landrover immediately prior to the accident as `like a maniac' and `like an idiot'. Dr Starmer referred to a table of blood alcohol concentrations and the relative risk of a crash indicated by a multiplier working off a base of 1.00 at a blood alcohol concentration of zero. According to the data which were based on studies of driver impairment by alcohol, crash risk was multiplied by a factor of approximately 5 at a blood alcohol concentration of .104. Dr Starmer said -

This refers to the effect of alcohol alone.

He noted that drugs other than alcohol were involved, but were never tested.

27. Mr Kennewell's pharmacy records indicated that in the three months prior to the collision he had been given prescriptions for Mirtazapine, Alprax, Alprazolam, Avanza, Xanax and Diazepam. Mr Kennewell had taken four 2 milligram Xanax tablets on the night before the collision, at about 9pm. Although unsure if he had taken a tablet in the morning he assumed that he had not because he usually took them at night. On the morning of the collision he took a 5 milligram Diazepam tablet and assumed that he took the Zoloft at the regular dose. However no prescriptions for Zoloft were dispensed until after the collision.

28. Dr Starmer discussed the properties of these drugs. He said:

13. In conclusion, it appears likely that Mr Kennewell was taking considerably more than the prescribed amounts of the two benzodiazepines, which would be expected to interact in an additive manner and, although he would have developed a degree of tolerance to benzodiazepines, he would still have experienced a potentiative interaction with alcohol. It is surprising that Mr Kennewell was able to gain access to such large amounts of benzodiazepines. It is difficult to comment on the reported rebound insomnia after stopping mirtazapine and starting sertraline because no prescriptions for Zoloft appear to have been dispensed until after the collision.

14. The level of alcohol alone and the presumed levels of benzodiazepines are more than sufficient to have affected Mr Kennewell's driving ability to the extent which has been described by witnesses. I can only assume that once Police had established an illegal blood alcohol level, they saw no reason to arrange for the provision of blood and urine samples, and the resultant lack of forensic data renders any interpretation of the drug effects very difficult.

29. The learned magistrate had before her a pre-sentence report. The report set out Mr Kennewell's family and social history. He has four brothers and a sister, aged from 7 to 26. His family relocated to Canberra in 1992 to be closer to other family members. He described his family has having a strict religious background. They are close and supportive of each other.

30. At about 18 years of age Mr Kennewell left the family home. He wanted "a chance to make it on my own". He moved into private rental accommodation with friends but returned to the family home after three months as he was unwell and unable to maintain his responsibilities of paying bills. He has remained in the family home since then.

31. Mr Kennewell attended primary school in Queensland and primary and secondary schools in the ACT. He received average grades. His attendance was good but he disliked school. He didn't have many friends. He left the formal education system at the age of 14. In 2000 he commenced studies associated with a painting and decorating apprenticeship at the Canberra Institute of Technology. He completed six months of that course. He also received a certificate in Occupational Health and Safety. He left the Canberra Institute of Technology because his `mental health' deteriorated. He commenced work with the family business. He worked initially as an apprentice but ceased the apprenticeship after six months and began fulltime work with his father. He remained in that employment for about four years. Because of his mental condition he was unable to continue with employment thereafter. Since that time, for approximately 18 months he had been unemployed although he had plans to return to the workforce in the near future. He was in receipt of about $500 a fortnight through insurance sickness and health benefits from the family business. He was about $30,000 in debt and had no savings. He was in the process of declaring himself bankrupt. Mr Kennewell reported he did not suffer from any physical health issues but was suffering from fatigue and flu-like symptoms and tremors due to withdrawing from medication.

32. Although Mr Kenwell claimed to have been diagnosed with bi-polar disorder, contact between the ACT Corrective Services Department and his treating psychiatrist indicated that he had not been clinically diagnosed with that disorder. He had, however, been diagnosed with severe generalised anxiety disorder and depression which includes some of the traits relevant to bi-polar disorder. He had not seen his psychiatrist since late April 2005. His general practitioner expressed concerns that Mr Kennewell possessed traits consistent with schizophrenia and indicated that he was currently being prescribed Valium.

33. The pre-sentence report referred to drug and alcohol use. Mr Kennewell had first experimented with alcohol at the age of 16. From 18 to 19 years of age he was consuming alcohol in the amount of half a bottle of bourbon two or three times a week. He acknowledged that he had a problem with alcohol. He expressed his belief, however, that his current alcohol consumption of about three standard drinks two or three times a week was an average and normal consumption. He had not experimented with or used any illicit substances.

34. In the course of his interviews Mr Kennewell reported that he had been engaging with alcohol and drug counselling through the ACT Community Health-Alcohol and Drug Program. He had attended regularly from October 2004 to February 2005 but since then had attended on only one occasion, namely 10 June 2005. His reasons for not attending were due to his attendance with his general practitioner, his psychiatrist and his probation and parole officer.

35. Mr Kennewell reported he was then taking Valium on a daily basis administered by his mother. She confirmed that information. He was also undertaking a six month withdrawal plan to be weaned off Valium. His general practitioner revealed on 8 June 2005 that he had not attended the surgery since 4 April 2005 but had been picking up his medication script over the counter. The general practitioner also said he was aware the script for Valium had not been reduced and that getting Mr Kennewell to comply with medication was almost impossible. In later contact with the ACT Corrective Service on 10 June 2005 his general practitioner said that Mr Kennewell had been reducing his Valium level but that he had a major problem with Valium. However he was happy with Mr Kennewell's progress.

36. According to the pre-sentence report Mr Kennewell stated that shortly prior to the offence he had received an unexpected phone call from a friend asking if he could be picked up. Mr Kennewell said he had been drinking prior to the offence but could not recall the amount of alcohol he had consumed. He left his house to pick up his friend without considering whether he was over the limit. He acknowledged that his actions had had devastating effects on the victims and their family and was aware that his actions had affected them on both an emotional and physical level. He had expressed regret and remorse for his behaviour.

37. In the pre-sentence assessment it was said that Mr Kennewell was a 20 year old who had reported having a good upbringing and sharing close relationships with his parents and siblings. He had been diagnosed with severe generalised anxiety disorder and depression. He had battled an addiction to Valium and appeared to have attempted to address the issue by undertaking counselling with the alcohol and drug program and by resorting to a Valium withdrawal regime. He had shown remorse for the effects his actions had had on himself, his family and his victims. It was of concern however that while being medicated he consumed alcohol and made the conscious decision to drive a motor vehicle while inebriated. It was also a matter of concern that he continued to consume alcohol while being medicated and withdrawing from Valium. The report recommended that Mr Kennewell would benefit from ongoing counselling in relation to his mental health and substance abuse issues in order to reduce his risk of reoffending.

38. The report canvassed various sentencing options. Although he had consented to undertake a community service order he was assessed as "unsuitable due to his mental health issues". His general practitioner had also indicated he would have difficulty complying with such an order. He had consented to a periodic detention order. However the report stated that he might have difficulty completing such an order because of his mental health issues. In relation to imprisonment, it was recommended that, given Mr Kennewell's mental health status, if he received a gaol sentence he should be classified as "a prisoner at risk".

39. Also before the magistrate was a supportive letter from Mr Kennewell's parents and a character reference from a Minister of the Jehovah's Witness Church. There was also a reference from a former employer for whom Mr Kennewell had worked for a year as a painter.

40. Medical reports were provided on the injuries sustained by Mr and Mrs Rodden. Following the accident Mr Rodden was admitted to Canberra Hospital suffering from multiple rib fractures, a crush fracture of his 11^th thoracic vertebra, a depressed fracture to his sternum, a haematoma over his left iliac crest and a mediastinal haematoma. He was in hospital from 9 June 2004 to 30 July 2004. He had what the medical report described as a "stormy course of recovery" complicated by congestive heart failure, significant weight loss, persisting nausea, very severe constipation because of immobility, fluid restriction and analgesia and urinary tract infection. He also suffered pleural effusions on the lung, requiring drainage. He had problems with adequate pain relief and had multiple medication changes because of heart complications while in hospital. Mr Rodden already had a complicated medical history as prior to the accident he was suffering from Ischaemic heart disease, atrial fibrillation, diabetes, high blood pressure, sleep apnoea, gastro-oesophageal reflux, glaucoma and hypercholesterolemia. His problems post-accident included pain which was severe, chronic and unrelenting despite narcotic analgesia. He suffered emotional distress and described his life as having turned into a nightmare. He felt helpless and fearful for his future. He was unable to work and unable to undertake his usual activities. The doctor providing the report said:

The injuries sustained by Mr Rodden are serious and his prognosis is poor in regard to future employment. It is my opinion that he will never work again.

The consequences for his future health are significant and this accident will have long-term consequences in relation to his well being.

41. Mrs Rodden was also admitted to the Canberra Hospital. She suffered a fractured sternum, a fractured odontoid process (cervical spine), an avulsion fracture of the right elbow and interdigital webbing laceration of the right hand requiring a skin graft. She suffered bruising on her right breast as a result of a seat belt injury. Her hand, which was swelling, required physiotherapy. She had a Type 3 cervical C2 fracture. This was treated with immobilization in a cervical brace.

42. On 5 August 2004 she complained of pain in the thoracic spinal area. Her medical practitioner assessed it to be from muscle-ligaments and likely to accompany her C2 fracture and general muscle soreness from the immobility caused by wearing a neck brace. She also suffered a painful right shoulder with restricted movement in several directions as a result of the accident. This was likely to result in what the medical practitioner described as an adhesive capsulitis (frozen shoulder). This was likely to be slow to heal and would take up to two years to recover.

43. Mrs Rodden would be unable to drive for sometime as she would be unsafe with her restricted neck movement and general weakness. Her practitioner described her as "very stiff and slow to move". He expected her recuperation to be "quite lengthy". She was enjoying normal mobility before her accident.

44. Victim impact statements were received from Mr and Mrs Rodden. In his statement Mr Rodden described the accident and the injuries and the pain that he suffered as a result. He described Mr Kennewell as having "completely destroyed our way of life". He had caused a lot of chaos and worry in both their sons' families. The Roddens were having a new house built. Mr Rodden said he would now have to have work done which he would otherwise have done himself such as floor tiling, landscaping, painting and building a pergola. This would probably cost him another $15,000. They had been intending to buy a small motor home and do small trips, come home work a bit, and take off again. He said, "I suppose we can all dream".

45. Mrs Rodden also spoke of the fear at the time of the accident and the severe pain that she suffered as a result of the accident. She spoke of the sequelae of treatment in the hospital and the discomfort of the neck brace which she was required to wear. She said:

I am now wearing an aspen collar for a minimum of three months, I am unable to remove it at any time because the fracture of my neck is in such a critical place. I find it difficult to get comfortable in bed and have to use a wedge or be propped up with pillows. I can only sleep on my back because if I lie on my side I feel like I am being strangled. I wake up with a terrible pain in my back and can hardly breathe until my pain subsides.

46. She described her life as having changed from one in which she was a totally independent person to one which she has had to rely on people to help her shower and dress. She couldn't even babysit her grandchildren anymore. She felt totally frustrated at not being able to do all the things she used to do. She hoped in time that when her body healed she would be able to do at least some of them. The accident had had repercussions right through their entire family.

47. Mr and Mrs Rodden both gave evidence in the Magistrates Court verifying the victim impact statements which they had submitted. Neither was cross-examined. I note that s 434 relating to victim impact statements is concerned only with offences for which there is a maximum penalty of five years or more. This, however, does not prevent reliance upon such evidence in relation to lesser offences, at least where it is verified on oath and the deponents are available for cross-examination as occurred in this case.

The Reasons for Decision

48. The learned magistrate referred briefly to the facts surrounding the offences, which have already been referred to. The manner of Mr Kennewell's driving could not be described as "momentary inattention". She referred to the descriptions by witnesses of his manner of driving. She observed that Mr and Mrs Rodden were both seriously injured in the collision. Their injuries clearly amounted to grievous bodily harm. Both had been hospitalised for lengthy periods. She referred to their victim impact statements and their oral testimony about the nature of their injuries and the effect that the accident had on the quality of their lives. She said:

No one would argue that it has had a most profound effect on both of them.

49. The learned magistrate then referred to the provisions of ss 341 and 342 of the Crimes Act relating to sentencing and imprisonment. Counsel for the Director of Public Prosecutions cited a guideline judgment of the New South Wales Court of Criminal Appeal in R v Whyte [2002] NSWCCA 343. That judgment was delivered in August 2002 in relation to an offence under s 52A of the Crimes Act of New South Wales. Her Honour noted that it had to be borne in mind that the guideline judgment in that case related to different legislative provisions and a different jurisdiction where the relevant provision carried a maximum penalty of 11 years imprisonment, compared with the maximum of four years for the offences with which Mr Kennewell was charged. She also acknowledged that that maximum applied to a prosecution for those offences in the Supreme Court but that she was limited to two years in the Magistrates Court.

50. The learned magistrate said:

In Whyte their Honours characterised what could be regarded as a typical case of dangerous driving and matters which they would regard as aggravating factors. I note that their Honours indicated that the guideline focused attention on the objective circumstances of the offence and that subjective circumstances of the offender would of course also require consideration.

51. While acknowledging that she was not bound by that decision, her Honour regarded it as clearly a powerful, persuasive authority. The features of the case before her met most of the characteristics listed by the Court of Appeal as forming a typical case of dangerous driving. A number of the aggravating factors referred to by them were also present, not least the extent and nature of the injuries suffered by the victims, the degree of speed involved, the erratic driving, a significant degree of sleep deprivation and the degree of intoxication from which Mr Kennewell was suffering. The learned magistrate stated that a guideline judgment from another jurisdiction was to be used only as a check guide or indicator to a sentence. She accepted that the just and appropriate penalty must always ultimately depend on the particular circumstances of the particular case.

52. She then referred to the pre-sentence report and stated -

I am simply not in a position to know whether or not the defendant had been over prescribed medication by his treating general practitioner as has been suggested by his parent. The reality is that the defendant knew that he was not to combine alcohol with the medication he was taking. This is clear from his comments to the police shortly after the accident.

Whether the information about not mixing medication and alcohol came from Mr Kennewell's doctor or from his parents, the learned magistrate found that he was aware that he should not mix the two. He must have known in the circumstances that he should exercise caution before getting behind the wheel of a car while on medication. He must also have known that it was more important that he not drive a car when he had combined the medication with alcohol.

53. The learned magistrate said -

The gravamen of the offence is not the taking of the alcohol, after ingesting medication but rather the driving of the motor vehicle once he had done so.

54. Her Honour was of the view that Mr Kennewell had acted at all times with the knowledge of what he was doing and that what he was doing was wrong. She accepted, however, that it was clear that in the months leading up to the accident he was suffering from some form of psychological illness or disorder. She did not think that the degree of his moral culpability was significantly less because of the matters adverted to by his counsel.

55. In her Honour's view general deterrence had to be given significant weight. Mr Kennewell had driven while, on his own evidence, suffering from excessive sleeplessness, having consumed a significant amount of alcohol and while taking prescription medication when he knew, and had been advised, that this was a dangerous combination. She accepted that he was a 20 year old man and had entered early pleas of guilty which entitled him to be afforded a significant discount in the sentencing process. He had no prior criminal or traffic convictions. A reference from a former employer had referred to him as a responsible, reliable, conscientious and hard working employee. However good character would carry less mitigating weight in cases of this kind. General deterrence is the paramount purpose for which sentences are imposed in cases of culpable driving. Such offences are often committed by people not otherwise criminally disposed. Sentencing for culpable driving was to be regarded as an exception to the general rule that when sentencing young offenders considerations of general deterrence were not as important as when sentencing older offenders.

56. The learned magistrate saw it as important that courts denounce offences of culpable driving as a way of bringing home to the public in the interests of road safety the fact that many instances of driving may have serious consequences.

57. Her Honour regarded Mr Kennewell's conduct as not a mere departure from what commonsense dictated but "... the utmost folly indicating a significant degree of selfishness as indicated by his comments to his (sic) police at the time." She said -

I'm of the view that the only appropriate sentence in all the circumstances is an immediate full time custodial sentence. In my view none of the alternatives, for example community service, periodic detention are appropriate or just inadequate in all the circumstances of the case. (sic)

She had regard also to the principle of totality and noted that the maximum penalties on conviction in other jurisdictions for like offences were significantly greater then in the Australian Capital Territory. She said -

I'm well aware of these distinctions in my deliberations and sentencing of the defendant.

Whether the Learned Magistrate Erred

58. It was contended by counsel for Mr Kennewell that the learned magistrate had -

. placed too great an emphasis on issues of general deterrence;

. failed to properly and adequately assess the relative seriousness of the instant offences;

. inappropriately accumulated the sentences;

. failed to properly consider alternatives to full time imprisonment notwithstanding established sentencing patterns within the ACT suggested such alternatives should have been given serious consideration;

. failed to give adequate weight to matters subjective to the appellant, including age, prior good character, his mental illness, his expressions of contrition and the early plea of guilty.

59. Counsel for Mr Kennewell provided the Court with records extracted from the records of the Director of Public Prosecutions in the ACT showing sentences which had been imposed in respect of culpable driving causing death or grievous bodily harm in the ACT over the period from 1992 up until 2005. These records were relied upon to demonstrate that the prison terms imposed on Mr Kennewell were out of kilter with sentencing practice in the Territory. The records in each case disclosed the gender and age of the offender, whether he or she was a first offender, whether the offence related to culpable driving causing death or grievous bodily harm and any mitigating factors. Unfortunately, although counsel is to be commended on the industry shown in extracting this information, the guidance it can provide to the Court is limited without a more detailed appreciation of the circumstances of each particular case. As a general proposition it might be inferred that the sentences imposed in the present case are on the high side of what has been imposed in the past. I do not however consider that this exposes an error in the exercise of the learned magistrate's discretion. Each case is to be considered by reference to its own merits. The maximum penalty imposed in respect of the offence of culpable driving causing grievous bodily harm is a term of imprisonment of four years. The two year limit applicable in the Magistrates Court is not a lesser maximum. It is simply the limit placed by the legislature upon the term of imprisonment which a magistrate can impose. The magistrate is still sentencing for an offence for which the maximum penalty is four years. There is no scaling down or pro rata compression of the range of sentences less than two years which it is open to her to impose by reference to the fact that the case is able to be dealt with in the Magistrates Court.

60. Having regard to the maximum penalty in respect of this offence, the sentences imposed are not on their face, and in the circumstances of this case, manifestly excessive and suggestive of some underlying but unidentified error. The question remains whether there was any identifiable error in the approach taken by the magistrate which might have affected the exercise of her discretion.

61. Counsel submitted that her Honour erred in taking account of the combination of alcohol and drugs used by Mr Kennewell and their effect on his driving. It was said that the offences as charged alleged culpable driving on the basis that Mr Kennewell was driving "under the influence of alcohol to such an extent as to be incapable of having proper control of the said motor vehicle". (emphasis added)

62. The fact is that Mr Kennewell's advisors put material before the learned magistrate relating to his medication and use of drugs. There was also evidence, which was undisputed, that he had been told not to mix taking medication and the consumption of alcohol and that he did so. In my opinion the learned magistrate was entitled, as part of the sentencing process, to take account of these factors. The ingestion of drugs was not necessary to the determination of liability for the offence of culpable driving causing grievous bodily harm. It was, however, an element of the surrounding circumstances which it was appropriate to consider in determining the nature and level of the penalty.

63. Counsel also submitted, while acknowledging that the injuries suffered by Mr and Mrs Rodden were very serious and had significantly affected their quality of life, they were not the worst that had been before courts in the ACT in respect of similar charges where non-custodial sentences had been imposed. In my opinion, the injuries suffered by the Roddens had a major adverse impact on their lives and were entitled to be given substantial weight by the learned magistrate in the mix of factors affecting her disposition of the case. It is not a valid criticism to compare other sentences in respect of more serious injuries with the injuries and disposition in this case. It is a combination of factors which informs the final sentences. The seriousness of the injuries is one of those factors.

64. It was submitted for Mr Kennewell that the learned magistrate gave prominence to the consideration of general deterrence. It was submitted that the New South Wales guideline judgment in Whyte was not authoritative in the ACT. The approach inherent in the New South Wales judgment was said to be at odds with the law in the ACT and contrary to the High Court's approach to sentencing principle and practice. In my opinion however the learned magistrate's reference to the New South Wales case was adequately guarded with the acknowledgement that she had to have regard to the particular circumstances of the case before her. In terms of the matters which she treated as aggravating and mitigating, there can be no objection in principle to her characterisation or treatment of them.

65. It was said that the inappropriate mixing of Mr Kennewell's prescription medications was, unknown to him, likely to have a deleterious effect on his capacity to control a car. In this respect it was said the case differed from those in which intoxication had been caused by the use of recreational drugs. There was, however, material before the learned magistrate from which she was entitled to infer as she did, that he had been told that he should not consume alcohol whilst on medication. The mixing of medication itself is not a factor which appears to have figured in the sentence.

66. The maximum sentence that could be imposed in the Magistrates Court for each offence was two years imprisonment, albeit the maximum prescribed by parliament for the offences was four years. It was submitted that the maximum should be reserved for the most serious case. This was designed to indicate an inappropriate proximity between the sentences imposed and the maximum available in the Magistrates Court. The relevant maximum however, for applying that kind of judgment, is the maximum prescribed for the offence. In other words the learned magistrate was not required to sentence as though the sentence reserved for the most serious case was a term of two years.

67. Then it is said that, as the offences arose out of one course of conduct, they should be the subject of concurrent sentences. Certainly the offences with which Mr Kennewell was charged arose out of one course of conduct on his part. The offence of culpable driving causing grievous bodily harm is committed in respect of each person who suffers grievous bodily harm by such driving. In a sense the result that anybody suffers grievous bodily harm is fortuitous. Absent injury to any person Mr Kennewell, for the same conduct, might have been charged with only one offence of dangerous driving or driving under the influence of alcohol. It is the fortuitous outcome which is a product of the risk assumed by such driving, namely the infliction of grievous bodily harm or death on other persons that gives rise in each case where such harm has occurred to a separate offence. Having regard to that conceptual underpinning and the evident policy behind it the usual arguments as to the desirability of imposing concurrent sentences for offences constituting a single transaction do not have the same force. In my opinion the learned magistrate is not shown to have erred in the exercise of her discretion in this respect.

Conclusion

68. In my opinion the sentence imposed by the learned magistrate was neither manifestly excessive nor infected by error which would warrant interference by this Court. The appeal will be dismissed.

I certify that the preceding sixty eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice French.

Associate:

Date: 16 September 2005

Counsel for the appellant: Mr K Archer

Solicitor for the appellant: Legal Aid Office

Counsel for the respondent: Ms P De Veau

Solicitor for the respondent: Director of Public Prosecutions

Date of hearing: 13 September 2005

Date of judgment: 16 September 2005