Wilkins v Hague and Brian [2011] ACTSC 189 (22 November 2011)

Last Updated: 24 November 2011

RHYS WILKINS v CATHERINE ELLEN HAGUE AND LANE ALAN BRIAN

[2011] ACTSC 189 (22 November 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal against conviction and sentences – appeal against conviction dismissed – appeal against sentence upheld.

CRIMINAL LAW – particular offences – driving offences – negligent driving causing death – whether driver keeping a proper lookout – duty to cyclists sharing carriageway.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – driving whilst disqualified – whether sentence manifestly excessive.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – cancellation of Good Behaviour Order made when sentence of imprisonment suspended – re-sentencing – whether more severe sentence may be imposed.

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6

Road Transport (Driver Licensing) Act 1999 (ACT), s 32

Road Transport (Vehicle Registration) Act 1999 (ACT), s 18

Road Transport (Third-Party Insurance) Act 2008 (ACT), s 17

Magistrates Court Act 1930 (ACT), Div 3.10.2

Road Traffic Act 1960 (UK), s 1

Crimes Act 1900 (ACT), s 29

Crimes (Sentence Administration) Act 2005 (ACT), s 110

Justices Act 1959 (Tas), s 74C

Human Rights Act 2004 (ACT), s 25

Sentencing Act 1997 (Tas), s 27

Australian Road Rules 1999, r 141

Hanel v Shoemark [2010] ACTSC 67

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

R v Antoniazzo [2010] ACTSC 36

R v Hennigan [1971] 3 All ER 133

R v Williams [2011] 3 All ER 969

R v Gosney [1971] 2 QB 674

R v Webb [1986] 2 Qd R 446

R v Pettman [2007] QCA 233

R v Buttsworth [1983] 1 NSWLR 658

Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953

Simpson v Peat [1952] 2 QB 24

Kitson v R (1987) 5 MVR 228

H Mcl v The Queen [2000] HCA 46; (2000) 203 CLR 452

R v Gilmore (1979) 1 A Crim R 416

Greaves v Smith (TASSC, 1986, Neasey J, unreported serial No 52)

Taylor v Bowden [2009] ACTSC 13

Saga v Reid & Collett [2010] ACTSC 59

Director of Public Prosecutions v Cooke and Anor (2007) 168 A Crim R 379

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282

R v Campbell [2010] ACTCA 20

R v Clinch (1994) 72 A Crim R 301

Cotter v Corvisy (2008) 1 ACTLR 299

Coombe v Douris (1987) 47 SASR 324

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 80 of 2011

Judge: Refshauge J

Supreme Court of the ACT

Date: 22 November 2011

IN THE SUPREME COURT OF THE )

) No. SCA 80 of 2011

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RHYS WILKINS

Appellant

AND: CATHERINE ELLEN HAGUE

AND: LANE ALAN BRIAN

Respondents

ORDER

Judge: Refshauge J

Date: 22 November 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction be dismissed.

2. The conviction of the offence of negligent driving causing death on 29 January 2010 be confirmed.

3. The appeal against sentence is partly allowed.

4. The re-sentencing of 1 August 2011 in respect of the cancellation of the Good Behaviour Order made on 18 February 2010 be set aside.

5. In lieu, the three months’ imprisonment which was suspended be imposed to commence from 1 August 2011.

6. The sentence imposed for the offence of driving whilst disqualified on 28 April 2010 be set aside.

7. In lieu, Rhys Wilkins be sentenced to five months’ imprisonment to commence on 21 October 2011.

8. The sentence be suspended on 30 November 2011 and Rhys Wilkins be required to sign an undertaking to comply with the offenders’ good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) that he give security in the sum of $2000 for compliance with the Good Behaviour Order;

(b) a probation condition, namely that he be on probation for a period of

18 months subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person appointed to supervise him;

9. Rhys Wilkins be disqualified from holding or obtaining a driver’s licence for two years.

10. That the other sentences and orders of the Magistrates Court made on 1 August 2011 be confirmed.

1. On 29 January 2010, the appellant, Rhys Wilkins, was driving a motor vehicle along Sternberg Crescent in Wanniassa towards Ashley Drive. At a point, which he says was where the single lane of the road on which he was travelling widened to a double lane, he passed a cyclist, James Thomas Keenan.

2. As Mr Wilkins approached the T-intersection of Sternberg Crescent with Ashley Drive, he slowed and activated his left traffic indicator.

3. He then turned left into Ashley Drive but, in doing so, his car collided with Mr Keenan’s cycle and Mr Keenan was seriously injured. Mr Keenan was ultimately taken to The Canberra Hospital where he later died.

4. Mr Wilkins was charged with negligent driving occasioning death, an offence under s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).

5. Mr Wilkins pleaded not guilty to that charge but, after a hearing, was convicted.

6. On 17 March 2009, Mr Wilkins’ driver’s licence had been disqualified for two years from 14 August 2009 cumulative on a disqualification order made on 14 August 2008 when he had been disqualified from holding a driver’s licence for 12 months.

7. He was, accordingly, at the time of the collision, a disqualified driver. The motor vehicle in which he was driving was also unregistered and uninsured. Thus, he had committed offences against s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (repeat offender driving whilst disqualified), s 18(1) of the Road Transport (Vehicle Registration) Act 1999 (ACT) (using an unregistered registrable vehicle) and s 17(1) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (using an uninsured motor vehicle). He was charged with these three offences as a result and pleaded guilty to them.

8. When Magistrate Walker (as her Honour then was) came to sentence Mr Wilkins on

1 August 2011 she had a somewhat complex sentencing exercise. As well as the four charges referred to above, her Honour also had before her further charges arising from Mr Wilkins’ driving on 28 April 2010, namely driving as a disqualified driver in a motor vehicle that was also unregistered and uninsured, another three offences to which Mr Wilkins also pleaded guilty.

9. Further, the offence of driving whilst disqualified on 28 April 2010, constituted a breach of a Good Behaviour Order made by Magistrate Doogan on 18 February 2010 when her Honour then convicted Mr Wilkins of an earlier offence of driving whilst disqualified committed on 8 February 2010 and suspended the sentence of three months’ imprisonment she imposed and made a Good Behaviour Order.

10. Magistrate Walker was satisfied that Mr Wilkins had breached his obligations under that Good Behaviour Order and cancelled it; her Honour entered convictions for the other charges. Her Honour then sentenced Mr Wilkins as follows:

(i) In re-sentencing Mr Wilkins for the offence for which the Suspended Sentence and Good Behaviour Order had been made by Magistrate Doogan, her Honour sentenced Mr Wilkins to six months’ imprisonment commencing on 1 August 2011 and disqualified him from holding or obtaining a driver’s licence for

24 months;

(ii) on the charge of negligent driving occasioning death, she sentenced Mr Wilkins to three months’ imprisonment suspended immediately and made a Good Behaviour Order for two years from 22 July 2012;

(iii) for driving whilst disqualified as a repeat offender on 29 January 2010, she convicted Mr Wilkins and sentenced him to three months’ imprisonment suspended immediately and made a Good Behaviour Order for two years from 22 July 2012;

(iv) on the charge of using an unregistered motor vehicle on 29 January 2010, she made a Good Behaviour Order for a period of two years from 1 August 2011 with a surety condition in the sum of $1,000;

(v) on the charge of using an uninsured motor vehicle, she made a Good Behaviour Order for a period of two years from 1 August 2011 with a surety condition in the sum of $1,000;

(vi) on the charge of driving whilst disqualified as a repeat offender on 28 April 2010, she convicted Mr Wilkins and sentenced him to nine months’ imprisonment, partially cumulated on the earlier term of imprisonment and taking into account ten days pre-sentence custody to commence on 22 October 2011 and expire on 21 July 2012;

(vii) on the charge of using an unregistered motor vehicle on 28 April 2010, she made a Good Behaviour Order for a period of two years from 1 August 2011 with a surety condition in the sum of $1,000;

(viii) on the charge of using an uninsured motor vehicle on 28 April 2010, she made a Good Behaviour Order for a period of two years commencing on 1 August 2011 with a surety condition in the sum of $1,000.

11. Her Honour then set a non-parole period of nine months commencing on 1 August 2011.

The appeal

12. Mr Wilkins appeals from the conviction and sentence imposed on the charge of negligent driving causing death and the sentences imposed in relation to all the other charges.

Jurisdiction

13. Appeals from the Magistrates Court in criminal matters are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT).

14. So far as the appeal against conviction is concerned, it is a rehearing. That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. This Court, as the appellate court, will give proper allowance to the advantage of the Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

15. The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate’s reasons. The court has power to receive further evidence, subject to some restrictions.

16. The appellate court must weigh conflicting evidence and draw its own conclusions from primary facts found by the Learned Magistrate.

17. The appellate court is not restricted to making the decision that should have been made by the Learned Magistrate but must have regard to the circumstances which exist at the time of the appeal and make its own decision on these circumstances.

18. So far as the appeal against sentence is concerned, the sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

19. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

20. See Hanel v Shoemark [2010] ACTSC 67 and Cooper v Corvisy (No 2) (2010) 5 ACTLR 151.

The facts

21. There were two independent witnesses to the accident. Ms Dagmar Martin was sitting in her vehicle in Sternberg Crescent at the other side of the intersection waiting to make a right-hand turn into Ashley Drive. She said that she was driving up to the intersection and stopped because she intended to turn right and the bicycle and car were coming from the opposite direction. These appear to be Mr Keenan’s bicycle and Mr Wilkins’ car. She said that she saw them as she was approaching the intersection. She then looked right down Ashley Drive and saw another car driving up towards her which, of course, took her attention. She then heard a “thud” and saw the cyclist thrown on to the ground. By that time, Mr Wilkins’ car was turning into Ashley Drive, facing down Ashley Drive and no longer facing along Sternberg Crescent.

22. Indeed, she said that Mr Wilkins’ car had completed, just completed or just about completed the turn into Ashley Drive when she heard the “thud”.

23. She could not remember where the car and bicycle were at the point when she first saw them. She said it was possible that, at that point, Sternberg Crescent had a single carriageway each side and had not widened into two lanes in each direction. She did say, however, that a bicycle was “definitely to the rear of the car” and put it “between the middle and the end of the car”.

24. When she had stopped, she said that her check of the car coming from Ashley Drive took only a few seconds after which she heard the “thud”.

25. The other witness was Sarah Caitlin Crowe, who was waiting for her bus at the bus stop on the northern side of Sternberg Crescent. She was on the same side of the intersection as Mr Wilkins’ car but on the other side of the road.

26. As she was waiting, she was looking around and was looking particularly in the opposite direction to that from which Mr Wilkins and Mr Keenan were approaching as that was the direction from which her bus would approach.

27. She said that she “was just kind of absent-mindedly looking until [she] saw the accident”. What she saw was “the rear of the car and ... a bike in the air”.

28. She said that she had not seen the cyclist beforehand but when she saw the impact, she saw the bicycle “sort of – yes, I guess getting airborne”. She did not see the contact between the bicycle and the car.

29. She agreed that, when she heard the crash, Mr Wilkins’ car was substantially through the turn onto Ashley Drive though she said she was unable to see exactly how far into the turn the vehicle had gone, but that “it was probably substantially turned”. She said that the vehicle appeared to be “perpendicular or close to perpendicular to Sternberg Crescent, so presenting its rear almost to [her]”. She confirmed that the impact was towards the very back of the car.

30. Evidence was given by the police officer who arrived at the scene and arrested Mr Wilkins but none of his evidence is of particular assistance in determining the issues on this appeal.

31. Senior Constable Catherine Hague was the informant and she arrived at the scene of the collision some time later.

32. A number of statements were tendered through her. One statement was from another police officer who had attended at the collision scene just as the ambulance was leaving. He inspected Mr Wilkins’ car and noted some minor damage to the front spoiler of the vehicle but did not observe any other damage. He also interviewed the driver of the car that was travelling towards Sternberg Crescent along Ashley Drive but it appears that she saw nothing of relevance and no statement from her was tendered.

33. The statement of another police officer was tendered which showed that there were no faults identified on or about the bicycle that could have been a cause or a contributor to the collision.

34. Other reports were tendered but it is not necessary to mention them.

35. Sergeant Richard Dauth of the Australian Federal Police Collision Investigation and Re-construction Team also gave evidence. A statement prepared by him was tendered. He inspected Mr Wilkins’ motor vehicle and noted that the vehicle seemed to be in good order. The tread depths on the rear tyres were at or below the legal limit but he was unable to locate any mechanical condition or defect that might have contributed to the collision.

36. In particular, he inspected the “lights & electrical” and found that “the main electrical components (lights/wipers/horn) were tested and all were operational.” I assume, though it is not otherwise expressed, that this included testing the traffic indicator lights and that they were working.

37. He did note that the vehicle had sustained very minor damage to the left rear panel which was able to be seen on photographs of the motor vehicle which were tendered. Together with the evidence of the independent witnesses, this appears to be the point of impact with the bicycle, rather than that referred to by the other police officer referred to above (at [32]).

38. Sergeant Dauth also prepared a reconstruction of the accident but the Learned Trial Magistrate excluded that evidence. Neither party to the appeal challenged that ruling.

39. Senior Constable Hague conducted an interview with Mr Wilkins.

40. In that interview, Mr Wilkins said that he was driving down Sternberg Crescent in the left-hand lane and “saw the cyclist on [his] left about half way down the road ... ahead of [him] at first, so ... [he] drove past him”.

41. He then said that as he drove past the cyclist, he “indicated to go left and ... still had a bit of road ... to go”. He said that he looked to the left and it was all clear so he turned and went round the corner. He said that as he went round the corner he felt something hit the back of his car and looked back and saw the cyclist had hit the back of his car.

42. Earlier he had indicated that as he was travelling down the road he was driving at probably 50 kilometres an hour, that is below the speed limit, which was

60 kilometres per hour at that point.

43. He said that he had overtaken the cyclist.

44. The interview continued:

Q 55: And when you’ve gone to turn did you see the bike-rider in your mirrors?

A 55: No, no, I didn’t. I didn’t see him.

45. Later he was asked whether there was anything obscuring his vision and he said “no, definitely not”.

46. He said that he heard a bang, by which time he was “in the corner”, more or less on Ashley Drive.

47. He was asked:

Q 71: And what in your opinion was the cause of the collision?

A 71: Um he didn’t slow down and he didn’t see me. That’s the only thing I can think of because I was in front of him and I’ve indicated and I’ve put the brakes on and I’ve turned the corner and -because he was going- he was going- he was moving along at quite a decent speed when I, sort of, overtook him.

Q 72: But you were aware of him all the time?

A 72: Mm.

Q 73: And you had the belief that when you turned that he was still far enough away that he wasn’t going to run into you?

A 73: Yes, that’s right. No.

48. Mr Wilkins gave evidence in the proceedings. In chief, he said that when he saw the cyclist first, the road had only one carriageway in the direction in which he was travelling. He was travelling faster than the bike and overtook him.

49. He said that as he was driving towards the corner he put his left traffic indicator on and slowed down for the intersection. He thought that his traffic indicator had been on for up to four seconds before he reached the point where he started to turn. He said that he remembered “it being on for longer than what it would normally be”.

50. He then said that when he came to the corner he was looking in front of him because of the car coming towards him that was going to turn right. This was obviously Ms Martin’s car. He said he “slowed sort of right down, almost to a stop, and then turned ... left and then drove straight towards ... the service station [in Ashley Drive]”.

51. It was then that he felt something and looked in his rear-view mirror and saw “a guy sort of tumbling, like, over the road”. He recognised the person as the cyclist.

52. Mr Wilkins found it hard to estimate exactly how far from the corner he was when he had overtaken the cyclist and pulled in front of him. He thought that it was about five or six seconds before he turned the corner. He said, perhaps a little oddly as it was a T-intersection, that, during those six seconds, he “was looking ... to [his] right and to [his] left ... that’s where [he] was looking”. He was “looking at the cars coming in front of [him], coming towards [him], and [he] looked to the left just to see if there was anything to the side of [him]”. He saw nothing there. He said he was going slow around the corner because he had come almost to a complete stop and was then taking off again. He said that he believed that it was safe to turn left because he did not see anything obstructing his view either right or left and he was not going fast.

53. Under cross-examination, he agreed that he had told the police at the scene of the collision that the cyclist was moving at “quite a decent speed”. He explained that when he went past the cyclist, the cyclist “didn’t seem to go past [him] – like, behind [him] as – as fast as [he] would have thought”, that is, that he thought the cyclist would have dropped back, relative to Mr Wilkins, quicker than he did.

54. He was challenged on a number of things that he said in evidence which he had not said to the police at the scene. In the circumstances, however, I do not draw any relevant inferences from those matters.

55. The following exchange also occurred in cross-examination:

[MS CASE]: So you were going to drive around [the cyclist] and you were going faster than him. That’s correct, isn’t it?

[MR WILKINS]: Yes.

[MS CASE]: You went to go around him, you got a bit of a surprise because he was going faster than you initially thought, wasn’t he?

[MR WILKINS]: Somewhat, yes.

[MS CASE]: You were going to turn left and you did that, didn’t you?

[MR WILKINS]: I did – I turned left at the intersection.

[MS CASE]: You knew that the cyclist had been on the road and that he was in quite close proximity to you, didn’t you?

[MR WILKINS]: Not at that point – at the point I turned left, no.

[MS CASE]: You knew that you passed him just a moment before and that he was travelling faster than you thought, didn’t you?

[MR WILKINS]: Well, it seemed like some time had passed between the time when I went past him and the time that I turned left and then was driving straight and then when I felt the impact.

[MS CASE]: You also now say that you were distracted by another vehicle that was coming in the opposite direction from you, don’t you?

[MR WILKINS]: Well, I noticed a vehicle coming towards me; I wouldn’t say that I was distracted by it.

[MS CASE]: You now say that some of your attention, certainly, was directed in that direction and away from other things that were around you. When you turned left, you knew that the cyclist was around but you turned left anyway, didn’t you?

[MR WILKINS]: Yes. I turned left because I couldn’t – I didn’t see anything that would suggest that I should wait or ---

[MS CASE]: And you didn’t look properly, did you?

[MR WILKINS]: Well, I looked to my right and then to my left, and then I turned.

[MS CASE]: You didn’t look properly and you didn’t see him, did you?

[MR WILKINS]: I – I didn’t see him when I turned, no.

56. It was also put to Mr Wilkins in cross-examination that he had “cut off” the cyclist when he had turned the corner. He denied that, pointing out that if he had cut him off, he would have “side-swiped him” rather than the collision occurring at the rear end of his vehicle as he turned the corner.

The decision

57. The Learned Magistrate referred to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), which is in the following terms:

A person must not drive a motor vehicle negligently on a road or road related area.

58. Where the driving occasions death, the maximum penalty is 200 penalty units, that is a fine of $22,000, or imprisonment for two years or both.

59. Her Honour then referred to the principles which Gray J enunciated in R v Antoniazzo [2010] ACTSC 36 (at [4]), being the general directions to which a judge, who tries a criminal proceeding without a jury, must have regard.

60. Her Honour then set out the factual background in terms broadly consistent with the summary I have set out above.

61. Her Honour then made a curious remark. Her Honour said:

I cannot conclude beyond reasonable doubt at what point the defendant indicated his intention to turn left and in particular, whether any such indication was given at a point when Mr Keenan could have seen it and had time to stop to allow the Lancer to turn in front of him. The defendant formed the view that by virtue of his speed relative to the bicycle, he had put enough distance between himself and Mr Keenan that he need not concern himself about Mr Keenan’s whereabouts on the road. The defendant did not check to his rear by the use of mirrors or turning his head in order to ascertain is [sic] Mr Keenan was a safe distance behind him. The defendant indicated that he checked to his left and right only.

On the available evidence, it is open to me to infer that Mr Keenan was still close behind the defendant at the time the latter turned left. He was there but not seen by the defendant.

62. It is not at all clear what her Honour meant by the first sentence of this extract. Indeed, it seems to me to come close to reversing the onus of proof. If it is not possible to conclude beyond reasonable doubt where the defendant had activated his traffic indicators relative to where Mr Keenan was, then her Honour could not be satisfied beyond reasonable doubt that Mr Keenan had not seen it and that he was not, therefore, bound by r 141(2) of the Australian Road Rules 1999 which provides:

The rider of a bicycle must not ride past, or overtake, to the left of a vehicle that is turning left and is giving a left change of direction signal.

63. Accordingly, in the last paragraph of the extract, it is true that, on the evidence, it was open for her Honour to infer that Mr Keenan was close behind Mr Wilkins but that is not the test. If that was the basis on which her finding was made, she would have to have been satisfied not merely that she could infer that position but that, beyond reasonable doubt, it was, in fact, the position.

64. I am, however, not satisfied that this was the basis on which her Honour ultimately made the finding.

65. Her Honour referred to a number of decisions when identifying the appropriate law. In particular, her Honour referred to R v Hennigan [1971] 3 All ER 133, where (at 135) Lord Parker CJ said, though in the context of s 1 of the Road Traffic Act 1960 (UK), which provides that a person commits an offence “who causes the death of another person by the driving of a motor vehicle on a road recklessly, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case ...”, that:

The court would like to emphasise this, that there is of course nothing in

s 1 of the Road Traffic Act 1960 which requires the manner of the driving to be a substantial cause, or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause and something more than de minimis, the statute operates.

66. Her Honour noted that this had been approved recently in the decision of R v Williams [2011] 3 All ER 969 (at 976). A formulation of the same principle by Megaw LJ in R v Gosney [1971] 2 QB 674 (at 680), has been adopted by the Court of Criminal Appeal in Queensland in R v Webb [1986] 2 Qd R 446 and R v Pettman [2007] QCA 233.

67. Her Honour also noted that negligent driving is at the lower end of driving offences which fall within the range of criminal culpability for driving without due care. Her Honour quoted from R v Buttsworth [1983] 1 NSWLR 658 (at 677), where O’Brien CJ at Cr D observed that the various levels of driving offence:

depended fundamentally on the degree to which the driving departed from the standard of care to be expected of the ordinary reasonable man in the circumstances.

68. Her Honour then referred to the decision of Johnson J in Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953, where his Honour said (at [27]):

Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances.

69. Her Honour also quoted from Gray J in R v Antoniazzo, where his Honour said

(at [43]):

A high standard of vigilance and care is expected of a driver of a motor vehicle because the driver is in the best position and has the responsibility to control events which might lead to a collision between a motor vehicle and a pedestrian.

70. It is to be noted that the comments of Gray J in this latter case were in the context of a charge of culpable driving causing death under s 29 of the Crimes Act 1900 (ACT), and, of course, was there in reference to a pedestrian rather than a cyclist though there may well be some similarities.

71. Nevertheless, neither party to the appeal contended that her Honour had erred in the law that she articulated.

72. Her Honour then pronounced her findings as follows:

Findings. Whilst I consider it highly unlikely that Mr Keenan was aware of the defendant’s intention to turn left at the scene of the accident, I am ultimately unable to conclude whether or not that lack of awareness was attributable to negligence on Mr Keenan’s part in failing to observe the defendant’s actions, or failure of the defendant to indicate that intention in a timely manner.

Insofar as Mr Keenan’s possible negligence is an explanation consistent with the defendant’s innocence, I must prefer that possibility. I am, however, positively satisfied beyond reasonable doubt that the defendant failed to keep a proper look out in all the circumstances.

It was after he passed Mr Keenan that the defendant carried out his left-hand turn. He was aware of Mr Keenan’s presence on the road. Cyclists are notoriously vulnerable users of the road. The defendant had a positive obligation to satisfy himself of Mr Keenan’s whereabouts before turning into his path. His failure to do so falls below the standard expected of a reasonably prudent driver. That failure amounts to criminal negligence.

I find the offence proved.

73. Her Honour then proceeded to sentence Mr Wilkins in the way outlined above (at [10]).

74. Detailed submissions were made by both parties prior to sentencing. I do not need to recount them in detail. A number of decisions, both of courts in this Territory and elsewhere, were referred to by counsel.

75. Reference was made to the fact that about ten days after this offence, Mr Wilkins was caught driving on 8 February 2010 again, although there was an unchallenged explanation for that when his counsel said:

The circumstances in relation to 8 February are somewhat different and in relation to those, on my instructions, he was actually handed the keys by a friend who he had been socialising with. He had at that stage been on a period of leave following the accident and had driven the car, having been handed the keys by the friend. He says – my client’s instructions are, on reflection, he didn’t even think, he was simply given the keys and drove.

76. For that offence, Mr Wilkins was sentenced to a period of imprisonment which was suspended with a Good Behaviour Order. At that time, he had not been found guilty of the earlier driving whilst disqualified on 29 January 2010, because, of course, he had pleaded not guilty to at least the charge of negligent driving causing death.

77. The driving on 28 April 2010, breached the Good Behaviour Order imposed in respect of the offences on 8 February 2010 and her Honour was obliged to proceed under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT).

78. Neither counsel suggested that her Honour had an option, on re-sentencing, of increasing the term of imprisonment which had been imposed and suspended for the offence committed on 8 February 2011. Mr Wilkins’ counsel submitted, in fact, that the period of imprisonment should not be imposed while the prosecutor submitted that the period should be imposed.

79. Her Honour did not indicate that she proposed to impose a more severe sentence on re-sentencing than that period of imprisonment which was suspended.

Issues on the appeal

80. Despite the terms of the Notice of Appeal, there were, in reality, only three issues on this appeal as argued by the parties. They were:

1. Whether the driving of Mr Wilkins on 29 January 2010 amounted to negligent driving and whether that negligence caused the death of Mr Keenan.

2. Whether, when cancelling the Good Behaviour Order made in respect of the offence of driving whilst disqualified on 8 February 2010, her Honour was empowered to impose a more severe sentence and, if so, whether the sentence actually imposed was manifestly excessive.

3. Whether the sentence imposed for the driving whilst disqualified offence on 28 April 2010, namely nine months’ imprisonment, was manifestly excessive.

81. I shall deal with each of these matters in turn.

Negligent driving

82. The law of negligent driving has been adequately stated above (at [65] to [69]). I do not need to repeat what I there set out. As indicated, neither counsel submitted that her Honour’s statement of the law was other than perfectly accurate. I agree.

83. Mr R Davies, who appeared for Mr Wilkins on the appeal, submitted that, having overtaken Mr Keenan, and having activated his left traffic indicator, Mr Wilkins had discharged his duty of care. He relied on the Australian Road Rules referred to above (at [62]).

84. He submitted that, because her Honour found that “[i]t was after he passed Mr Keenan that the defendant carried out his left turn”, the bicycle was then behind Mr Wilkins’ vehicle. While that may well be so, it is not at all clear that, having slowed down, as Mr Wilkins said “almost to a stop”, the bicycle was not, by that time, where Ms Martin said it was, namely to the rear but between the middle and end of the motor vehicle.

85. He also submitted that Mr Wilkins had substantially completed his turn by the time the bicycle collided with the vehicle, a finding that appears to be clear from all the evidence. That meant that the bicycle must have been some distance back as it only collided with the rear of Mr Wilkins’ vehicle.

86. He submitted that it was not known from the evidence what the bicycle did, what path it took and at what speed it travelled, after Mr Wilkins had passed it.

87. He referred to what Williams JA had cautioned in R v Pettman (at [22]), namely:

... [I]t is wrong to reason back from the fact that a collision occurred to a conclusion that there must have been fault.

88. He, quite properly, cautioned against, in effect, applying the doctrine of res ipsa loquitur, applicable, if at all, only in civil cases. He submitted that, in this case, her Honour actually applied that doctrine and that was an error.

89. He suggested that Mr Wilkins was entitled to assume that Mr Keenan would maintain a safe distance from the rear of his vehicle, keep a proper look out, and otherwise comply with the rules of the road. He noted that cyclists were under a similar duty of care applicable to any other users of the road and were not in a special category of road users in respect of their duties and responsibilities.

90. Mr J Lawton, who appeared for the respondent, referred to the fact that, when turning, Mr Wilkins had admitted to the police in the interview that he did not see the bicycle at the time he turned the corner. This, he submitted, was negligent. As he pointed out, Mr Wilkins was aware of the cyclist who had been travelling faster than he had thought. He submitted that, by slowing down almost to a stop, Mr Wilkins had given the cyclist time to catch up. He acknowledged that the cyclist had a duty of care but submitted that this did not negate the on-going duty that Mr Wilkins had, for example, to ensure that the cyclist was not otherwise in his blind spot. He relied also on the fact that Mr Wilkins appeared, from his evidence, to be more concerned with the motor vehicle in front of him, that appeared to be Ms Martin’s car, than with the cyclist. As he pointed out, Ms Martin made it clear that she could see both the cyclist and the car when she stopped, suggesting that the cyclist was reasonably close to the corner. Indeed, her evidence was that the cyclist was between the middle and end of the car.

91. This is not an easy matter to resolve. It is true, as Gray J said in R v Antoniazzo that motorists have a special responsibility because of the danger posed by cars and the overall control that they have. It is also true, as the Learned Magistrate said, that cyclists are vulnerable, though not as vulnerable, perhaps, as pedestrians.

92. It is also true, as Mr Davies submitted, that cyclists owe an obligation to take care of themselves and are not immune from duties and obligations on the road. Indeed, they owe a high duty not to put themselves in dangerous situations.

93. The fact is, however, that this is not a civil proceeding where issues of contributory negligence are important. The question is not whether Mr Keenan was negligent but whether it can be shown beyond reasonable doubt that there was negligence on the part of Mr Wilkins and, if so, whether it can be shown beyond reasonable doubt it was a cause, not the cause, of the collision and of Mr Keenan’s death.

94. I am satisfied that motorists and, indeed, road users generally, have an obligation to ensure that other road users are not endangered by their actions. That obligation pertains even though other road users may breach their obligations. That is not to say, however, that every collision imputes fault in both parties. It is further not to hold that where road users are grossly negligent or grossly breach the rules of the road, other road users are necessarily to any degree responsible for a resulting collision.

95. For example, tragedy often occurs when young children run out from behind parked cars. Where a driver is keeping a proper lookout and simply cannot stop in time, the resulting collision is clearly not the result of negligent driving. Where, however, notwithstanding the dangerous behaviour of the young child, the driver has time to stop, but, because he or she is not keeping a proper lookout or is driving too fast, the car collides thereby with the child, then that would be negligence for which the driver was responsible.

96. Applying such an approach here, the concern that I had, and expressed clearly, was that Mr Wilkins, at the time he was turning, simply did not see Mr Keenan and the bicycle. I am satisfied beyond reasonable doubt that he did not look where he should have looked. There is the somewhat curious reference to him looking “left and right”, even though it was only a T-intersection. Looking left would have shown Mr Keenan if he was alongside him but not if he was, as Ms Martin said, somewhere between the middle and rear of his car. He did not look behind him. Most importantly, knowing that the cyclist was sharing his lane, he did not locate where the cyclist was when he started to turn. He was aware of the cyclist in his lane and that it was travelling faster than he thought. He knew he had slowed his car nearly to a stop to allow for the oncoming car, clearly allowing the cyclist to come closer to him, if not beside him or some part of the car.

97. Mr Davies submitted that the duty a driver owes to those behind him or her are rather less than the duty the driver owes to those in front or beside them. That may be accepted but in some ways the case of a cyclist is in a category on its own. The cyclist is, for the most part, other than where there are designated cycle lanes, a joint user of the lane in which a car is travelling, a shared space. Particular obligations are owed when there is a shared carriageway in this way.

98. It seems to me that, having passed the cyclist, particularly one riding somewhat faster than anticipated, Mr Wilkins had a duty to be aware of where Mr Keenan was when he proposed to turn.

99. Had he identified where Mr Keenan was but, despite taking care, misjudged his speed, say, or whether he could safely turn, that may well not amount to negligence, though the term “error of judgement” has been severely criticised in decisions such as Simpson v Peat [1952] 2 QB 24.

100. Although, in cases such as this, authority is often not helpful as the circumstances of negligence are wide and varied, I am strengthened in my view by the decision of Kitson v R (1987) 5 MVR 228.

101. I am satisfied beyond reasonable doubt that Mr Wilkins did not keep a proper lookout and was negligent. I am also satisfied beyond reasonable doubt that this negligence caused Mr Keenan’s death. This was substantially the decision to which her Honour came. The appeal against conviction for negligent driving causing death must be dismissed.

Re-sentencing following the cancellation of the Good Behaviour Order

102. In order to understand this ground fully, it is necessary to have some regard to Mr Wilkins’ criminal history. By the time he committed the offence of negligent driving causing death on 29 January 2010, at a time when he was also driving whilst disqualified, an offence to which he pleaded guilty, Mr Wilkins had been convicted on two prior occasions of the same offence of driving whilst disqualified.

103. It appears that, in 2007, he had taken part in a race and exceeded the speed limit, of which two offences he was convicted. For the first of those offences, he was fined $300 and disqualified from holding or obtaining a licence for three months. Within that period he was found driving on 9 May 2008 and was convicted and fined $500 and disqualified from holding or obtaining a driver licence for 12 months.

104. Within that period, namely on 21 November 2008, he was also found driving and released on a Good Behaviour Order with a community service condition to perform 280 hours of community service work within 12 months and also a probation condition. His licence was further disqualified for two years cumulative upon the earlier disqualification.

105. He then committed the offence of negligent driving causing death together with the other offences, including drive whilst disqualified, on 29 January 2010. Because he pleaded not guilty, that matter was not resolved until 1 August 2011.

106. On 8 February 2010, he was again found driving and, on 18 February 2010, convicted of driving whilst disqualified again and sentenced to three months’ imprisonment which was immediately suspended and a two-year Good Behaviour Order with a probation condition was made. The circumstances of this offence are set out above (at [75]).

107. As noted above (at [8]), he was again found driving on 28 April 2010 though still disqualified. That offence was also dealt with by her Honour on 1 August 2011.

108. For ease I will refer to the above offences of driving whilst disqualified as follows:

first offence – committed on 9 May 2008 (convicted on 14 August 2008);

second offence – committed on 21 November 2008 (convicted on 17 March 2009);

third offence – committed on 29 January 2010 (convicted on 1 August 2011);

fourth offence – committed on 8 February 2010 (convicted on 18 February 2010);

fifth offence – committed on 28 April 2010 (convicted on 1 August 2011).

109. The conviction for the fifth offence amounted to a breach of the Good Behaviour Order imposed for the fourth offence. As Mr Wilkins had been sentenced for the fourth offence to a term of imprisonment though suspended with a Good Behaviour Order operative beyond 8 February 2010, the provisions of s 110 of the Crimes (Sentence Administration) Act applied. That section provides as follows:

110. Cancellation of good behaviour order with suspended sentence order

(1) This section applies if –

(a) an offender’s good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12(3) (Suspended sentences) on the offender’s conviction for an offence; and

(b) a court is satisfied the offender has breached any of the offender’s good behaviour obligations.

(2) The court must cancel the good behaviour order and either –

(a) impose the suspended sentence imposed for the offence; or

(b) re-sentence the offender for the offence.

(3) If the offender has given security under the good behaviour order, the court may also –

(a) order payment of the security to be enforced; and

(b) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended).

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

Example

The Magistrates Court convicted Desmond of an offence. The court sentenced Desmond to imprisonment for 6 months for the offence and made a suspended sentence order for the entire sentence of imprisonment. The court also made a good behaviour order for the 6-month period. Desmond breaches the order. In re-sentencing Desmond, the court may impose a sentence of imprisonment to be served by periodic detention.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provisions in which it appears (see Legislation Act, s 126 and s 132).

(5) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.

110. Her Honour did not take the option under ss 110(2)(a) of imposing the suspended sentence but re-sentenced Mr Wilkins. She did not, however, impose a lesser sentence or a less severe sentence but, in fact, increased the sentence to six months’ imprisonment which she required to be served as full-time custody.

111. Mr Wilkins’ argued on appeal, through his counsel, Mr Davies, that this was beyond power. Mr Lawton, however, argued that it was perfectly proper for her Honour to approach it in that way.

112. Mr Lawton argued:

(a) that “re-sentence” means simply that, namely that a fresh sentencing discretion is exercisable and is at large. That permits the sentencer to impose an appropriate sentence having regard to all the facts known at the time. In this case, he pointed out, it was known now that at the time of committing the fourth offence, Mr Wilkins had committed the third offence, a fact not known at the time of original sentencing for the fourth offence;

(b) he likened the situation to that where an offender is convicted of an offence after re-trial where it is permissible for the sentencer after re-conviction to impose a longer sentence or non-parole period than that imposed after the first trial. Ordinarily, however, but not invariably, an offender in that situation should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial: R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452 (at 475; [72]). It is clear, however, that this is not impermissible, but that a significant circumstance must justify such a course of action and it was necessary to be careful that a person whose conviction is tainted by a defective trial should not unfairly run the risk of a heavier sentence on re-trial ordered when the result of the defective trial is rectified; R v Gilmore (1979) 1 A Crim R 416 (at 419-20); and

(c) there were exceptional circumstances here because of the new knowledge of the prior offence, the third offence, committed only approximately ten days earlier.

113. I have to say that this conclusion is somewhat unexpected, though the arguments are not necessarily unpersuasive.

114. There is some authority in support of this approach. In Greaves v Smith (TASSC, 1986, Neasey J, unreported serial No 52), Neasey J stated, in respect of s 74C of the Justices Act 1959 (Tas), which made provision for suspension of sentences, (at p 7):

The scheme set up under s 74C requires the court when the breach has been proved to consider the question of penalty for the original offence, in the light of the circumstances of that offence and of the offender, of the sentence then imposed, and in the light of all relevant matters which have occurred since. Such relevant matters usually include the nature of the breach and the gravity of it, but only as matters incidental to the overall question of penalty for the original offence. The objective of the suspended sentence option is reformative as well as penal, and the matters which need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment.

115. The contrary arguments, to suggest that “re-sentence” does not enliven the sentencing discretion unconditionally but is limited to imposing a lesser sentence than that originally suspended, may be summarised as follows:

(a) the approach of the profession and sentencers prior to this decision assumed that the option given by s 110(2)(b) of the Crimes (Sentence Administration) Act was only to impose a lesser sentence. Neither counsel, who were experienced practitioners in criminal law, could recall any case other than this one where a more severe sentence had been imposed after cancellation of a Good Behaviour Order;

(b) the example to s 110(4) was clearly indicative of re-sentencing being the opportunity to impose a lesser sentence;

(c) authorities in this jurisdiction seem to suggest that this is how the provision should be interpreted; thus, in Taylor v Bowden [2009] ACTSC 13, Gray J referred (at [36]), to the example, saying:

It is plain from the example given in s 110(4) of the Sentencing Act that more scope is given to a sentencer under the ACT legislation to not impose the suspended sentence in its full rigour.

I adopted what his Honour said in Saga v Reid & Collett [2010] ACTSC 59. I note, also, that the New South Wales Court of Criminal Appeal in Director of Public Prosecutions v Cooke and Anor (2007) 168 A Crim R 379 (at [21]), said:

... but two matters should be emphasised from [R v Marston (1993) 60 SASR 320]: firstly the determination under s 98(3)(b) should be made bearing firmly in mind that generally a breach of the conditions of the bond will result in the offender serving the sentence that was suspended and, secondly, the principal consideration, if not the only one, is upon the conduct giving rise to the breach.

(d) there seems to be an element of retrospectivity in an approach to re-sentencing of the kind suggested. It does not, of course, fit neatly into s 25 of the Human Rights Act 2004 (ACT), though I have not looked carefully at relevant human rights jurisprudence;

(e) it also appears that this, effectively, would give the second sentencer a de facto appeal power over the original sentence or if the second sentencer is the same judicial officer, an opportunity for “second thoughts”, neither of which is appropriate; and

(f) the only other State or Territory jurisdiction which permits a re-sentencing, Tasmania, allows the court, if it is not simply imposing the sentence of imprisonment that was suspended, to make other orders including what is called a “substituted sentence” but specifies that it must be for “no greater term of imprisonment ... than was imposed by the suspended sentence”:

(s 27(5) of the Sentencing Act 1997 (Tas)).

116. I do not, however, need in these proceedings to resolve that question for the reasons which follow.

117. In this case, the prosecutor did not invite her Honour to impose a more severe sentence when cancelling the Good Behaviour Order for the fourth offence. Similarly, her Honour did not indicate that she proposed to proceed in that way, nor invite any submissions on that issue. Given that neither counsel could recall any occasion where a re-sentencing had imposed a more severe sentence, it could reasonably be expected that Mr Wilkins’ counsel was not expecting or alive to the possibility that her Honour might proceed in that way. The fact that neither counsel addressed this issue or, indeed, so far as I can tell, considered that her Honour had power to increase the sentence, is not binding on her Honour though it seems to me she was obliged to indicate her view. As Mason CJ and Brennan J observed in Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 (at 473):

... When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge’s departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Investments Ltd v Environment Secretary [1976] 1 WLR 1255 at 1256-1266; [1976] 2 All ER 865 at 874. Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer.

118. As Kirby P said in Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (at 296):

[A] fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusion should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is present for contrary argument to persuade the judicial decision-maker to a different view.

119. It is sufficient to say that, given the seriousness of the order contemplated by her Honour, she ought to have exposed her thinking to counsel for Mr Wilkins.

120. In my view, that means that, in the future, if a judicial officer considers that, despite my reservations, he or she has power on re-sentencing to impose a period of imprisonment more severe than that which was suspended, he or she must indicate that clearly to the parties to give them a fair opportunity to address the issue.

121. The result is that I conclude that there was procedural error and the sentence on this ground should be set aside. Mr Wilkins should be re-sentenced.

Sentence on the fifth offence

122. Complaint was also made about the nine months' imprisonment partially accumulated imposed for the offence of drive whilst disqualified committed on 28 April 2010.

123. Although this was a claim that the sentence was manifestly excessive, not a great deal of assistance was provided in the way the Court of Appeal has encouraged counsel for such appellants to do in the reasons it delivered in R v Campbell [2010] ACTCA 20 (at [32] to [35]).

124. This is often difficult in offences which are, for the most part, dealt with in the Magistrates Court where, of course, most judgments are not published. That, of course, does not mean that a court cannot address the issue but it will inevitably be somewhat constrained.

125. In this case, there is somewhat of a pattern to be discerned from what her Honour did in sentencing, which may be relevant. Her Honour on 1 August 2011, was, effectively, dealing with the third, fourth and fifth offences. Her Honour imposed a three-month suspended sentence on the third offence, a six-month fully custodial sentence on the fourth offence and a nine-month fully custodial sentence on the fifth offence, though partially concurrent with the sentence for the fourth offence.

126. Whilst, no doubt, the offence of 8 February 2010 had a degree of contumacy about it there was, as noted above (at [75]), an explanation moderating such contumacy and that explanation was not challenged. In these circumstances, to proceed from a three-month suspended sentence to a six-month full-time imprisonment seems a substantial jump.

127. As her Honour seemed to approach the sentencing by adding three months to the previous sentence for each additional offence, it is important to evaluate that apparent starting point.

128. It also needs to be borne in mind that the increase of severity of a sentence is not linear. That is to say, a sentence of nine months' imprisonment is likely to be more than three times as severe as a sentence of three months’ imprisonment. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 (at 306): “the severity of a sentence increases at a greater rate than any increase in the length of the sentence”.

129. I note that in Cotter v Corvisy (2008) 1 ACTLR 299, I considered a sentence of nine months’ imprisonment not to be manifestly excessive for the eighth offence of driving whilst disqualified.

130. There is no doubt that a significant period of imprisonment is appropriate for continued offending.

131. In this case, however, there were substantial gaps between offences; the second offence was committed 14 months prior to the third offence and no offences had been committed between the fifth offence and the date of sentencing, some 15 months later. In addition, as noted above (at [75]), there was some explanation for the driving in relation to the fourth offence.

132. In all those circumstances, it seems to me that a period of nine months’ imprisonment, even though only partially cumulated on the fourth offence, was excessive.

133. Accordingly, it seems to me that this ground of appeal is upheld. Mr Wilkins should be re-sentenced for this offence.

Re-sentencing

134. As a result of my finding on the re-sentencing for the Good Behaviour Order made for the fourth offence and the manifest excess for the fifth offence, it falls on me to re-sentence Mr Wilkins.

135. There is no doubt that the courts must regard the offence of driving whilst disqualified as a serious one. As King CJ said in Coombe v Douris (1987) 47 SASR 324 (at 325):

The offence of driving while under disqualification is a most serious offence ... Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a driver’s licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective.

Nevertheless, the articulation of an offence as serious does not mean that a just and appropriate sentence should not be imposed. Care should be taken to ensure that.

136. There is no doubt that for at least the fourth and fifth offences, a period of actual full-time custody was inevitable.

137. As to his subjective circumstances, I note that Mr Wilkins was born in Western Australia, the only child of his parents. He moved with his family because of changes to his father’s employment, ultimately relocating to Canberra when he was about 15. He moved out of the family home when he was 20. He appears to have had a normal and uneventful childhood. He was educated in primary schools in Western Australia, Northern Territory and Queensland and at high school and college in Canberra. He completed Year 12.

138. Since leaving school he has furthered his education and gained various diplomas and certificates in information technology.

139. Having originally been employed variously in the hospitality industry, for the last ten years Mr Wilkins has been employed in the information technology industry.

140. Mr Wilkins has never used drugs and drinks socially.

141. While his physical health is good, Mr Wilkins has suffered an anxiety problem though he did see a psychologist about that, although he gave up the counselling; he has started seeing a counsellor again more recently and that has been helpful.

142. While Mr Wilkins has completed various Good Behaviour Orders, his supervision has at times been described as inconsistent, sometimes failing to attend as directed necessitating ACT Corrective Services to make contact with him.

143. Mr Wilkins’ criminal record consists entirely of traffic offences. In 1999 he was convicted of a drink-driving offence. All the other offences have been referred to above. As noted above (at [108]), he has committed five offences of driving whilst disqualified, but in really two periods, one in May and November 2008 and the others in January, February and April 2010.

144. For the offences for which I am now dealing with Mr Wilkins, namely the two for which sentences of full-time imprisonment were imposed, he entered pleas of guilty at the earliest opportunity. These were the offences of driving whilst disqualified on 8 February 2010 and on 28 April 2010. While the charges were almost certainly able to be proved easily by the prosecution, the pleas did facilitate the administration of justice.

145. As to all the other offences, I see no need to alter the sentences imposed for those offences. Indeed, no submission suggested that I should. Even though the appeal was strictly taken against them also, I would not consider any different sentence appropriate.

146. I note that Mr Wilkins spent ten days in custody prior to sentencing.

147. I have read the Psychologist Report tendered on his behalf and note some positives. The Report notes:

Mr Wilkins has some notable strengths. He is professionally trained in IT and although he lost his job due to the impending court case, Mr Wilkins was able to find new employment utilising his skills. Mr Wilkins has supportive family and friends.

148. It notes that Mr Wilkins has made some efforts towards changing his behaviours but that he seems to make hurried decisions in times of perceived crisis. At the time, the Report recommended another six sessions of counselling for anxiety.

149. I also read a short note from his parents who are supportive of him.

150. Having considered all the matters, I am of the view that for the fourth offence, the suspended period of imprisonment, namely three months, should be imposed in its entirety. That will commence on 1 August 2011. Given the explanation and the sentence for the third offence, I do not consider, had I power to do so, I should impose a more severe penalty.

151. In respect of the fifth offence, I consider that a period of five months’ imprisonment is appropriate. In my view it should be wholly cumulative on the sentence for the fourth offence but, having regard to the ten days’ pre-sentence imprisonment, it should commence on 24 October 2011.

152. For a sentence of this length, a non-parole period is not available. It seems to me, however, that Mr Wilkins needs some on-going supervision and, accordingly, I direct that the sentence be suspended after four months, that is on 30 November 2011, and that Mr Wilkins be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act, for a period of two years with the following conditions:

(a) that he give security in the sum of $2000 for compliance with the Good Behaviour Order; and

(b) a probation condition, namely that he be on probation for a period of

18 months subject to the supervision of the Director-General or her delegate and that he obey all reasonable directions of the person appointed to supervise him.

153. I shall make orders to give effect to these conclusions.

I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 22 November 2011

Counsel for the appellant: Mr R Davies

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Mr J Lawton

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 31 October 2011

Date of judgment: 22 November 2011