\	•

RV BAUMER

Court of Criminal Appeal of the Northern Territory of Australia.
Nader, Kearney and Martin JJ.
28 February and 20 March 1989, at Darwin.

LAW REFORM - Whether indeterminate period of dis­ qualification, subject to review, should be provided for - Criminal Code, s.390(9)

SENTENCING - Significance of statutory maximum penalty, where wide range of conduct proscribed - Criminal Code, s.154
SENTENCING - Utility of sentences in other States - relevant factors

SENTENCING - Significance of bad prior criminal record, established criminal propensity, plea of guilty, alcoholism of offender and prevalence of the offence.
SENTENCING - Whether sentence manifestly excessive - significance of marked departure from sentences usually imposed
SENTENCING - Culpable driving - purpose of punishment

SENTENCING - Period of disqualification from driving - purpose of disqualification - significance of lengthy term of imprisonment - Criminal Code, s.390(9)
STATUTORY INTERPRETATION - Prime purpose of Criminal Code, s.154

Cases applied:
House v The King (1936) 55 CLR 499
R v William Davey (1980) 2 A. Crim. R. 254
Breed v Pryce (1985) 36 NTR 23
R v Ireland (1987) 49 NTR 10
R v Anzac (1987) 50 NTR 6
Baumer v The Queen (1988) 83 ALR 8 (H.C.)

Cases referred to:
R v Majewski (1977) AC 443
R v O'Connor (1980) 146 CLR 64
R v Boswell (1984) 3 All E.R. 353
R v Johnston (1985) 38 SASR 582

R v Baumer (1987) 48 NTR 1 (C.C.A.)
R v Leaf-Milham (1987) 30 A.Crim.R. 68
R v Allinson (1987) 49 NTR 38
Veen v The Queen (No.2) (1988) 164 CLR 405
Salt v The Queen (1988) 7 MVR 113
R v Currie (1988) 33 A.Crim.R. 7

Counsel for the appellant Solicitor for the appellant

McDonald Australian Legal Aid Office

Counsel for the respondent	T.I. Pauling, Q.C.,
W.J. Karczewski Solicitor  for the respondent:	Solicitor for the
Northern Territory

ORDER OF THE COURT

Leave to appeal against sentence, granted.
Appeal against sentence upheld.
Sentence	of	8 years imprisonment, non-parole period of
4 years, and order prohibiting the holding of a driver's licence for 20 years, set aside.

Sentence of 5 years imprisonment non-parole period of 2½ years, and order prohibiting the holding of a driver's licence for 7 years, all with effect from 16 February 1987, substituted.

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
OF AUSTRALIA

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

sec No. 463 of 1986 BETWEEN:

JOHN PAUL BAUMER

AND:

Appellant

THE QUEEN

Respondent

CORAM:	NADER, KEARNEY and MARTIN JJ

REASONS FOR JUDGMENT
(Delivered 20 March 1989)

NADER J: On 26 February 1987, the appellant, Baumer, pleaded guilty in the Supreme Court to having committed an offence under section 154 of the criminal Code (NT). The terms of that section are as follows:

154(1) Any person who does or makes an act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such

danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.
If he thereby causes grievous harm to any person he is liable to imprisonment for 7 years.
If he thereby causes death to any person he is liable to imprisonment for 10 years.
) If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years.
) Voluntary intoxication may not be regarded for the purposes of determining whether a person is not guilty of the crime defined by this section.'

In addition to a maximum sentence of 11 years imprisonment, the appellant was liable, under section 390(9) of the Code to have his driver's licence cancelled or suspended or to be prohibited from holding or obtaining a driver's licence for such period as the court might think fit. The appellant was sentenced to 8 years imprisonment. A non-parole period of 4 years was fixed. He was prohibited from obtaining or holding a driver's licence for a period of 20 years.

The appellant sought leave to appeal to the Court of Criminal Appeal against the severity of the sentence of imprisonment and the length of the period of disqualification. Leave to appeal was granted and the appeal was dismissed: Baumer y_R (1987) 48 NTR 1.

The facts of the case may be conveniently taken from the reasons of Muirhead AJ on that application:

7

' t aix?ut 6.10 pm o		h	day in question Vicki corpus, who lived in a house adJoining that occupied by the appellant saw him arrive home driving his Ford station wagon.	Sh noted he was slumped over the wheel grasping a beer can. He alighted and held on to his vehicle.	He appeared to be· staggering drunk.	He entered his house and shortly after he was seen to re-enter the vehicle and drive away.
At about 7.15 pm, one hour later, Mrs Pamela Williams was driving along the bitumenised one-way section of the Stuart Highway travelling roughly south, ie away from Darwin. She was accompanied by her 14 year old son Corey. She observed the approach of two headlights and she took evasive action. Her small sedan came into virtually head­ on collision with the approaching vehicle driven by the appellant. She was hurt, but her son was very seriously injured. He was trapped and was later cut from the wreck. His life was in danger for some time but he now appears to be making a reasonable recovery from multiple injuries.
The appellant was driving his vehicle against traffic, at night, on a "one-way" stretch of the main highway leading out of Darwin, a stretch of road well out of a built-up area, where traffic generally travels at high speed.
The appellant left his vehicle and made his way home. He then left his home and spent the night in a nearby park, thereby evading early police attention. When later questioned he told the police that, after leaving his home, he travelled to the "water hole" at Howard Springs, where he "probably" consumed two cans of beer. He estimated he had drunk "about half a carton" before leaving for Howard Springs. He was vague about the circumstances of the accident. He did not know what he had hit, and he professed not to know of the accident, until his wife informed him of it after his arrival home.
The only conclusion available from these admitted facts was that the appellant was drunk and, in this condition, had entered the road in question against traffic signs. He was incapable of safely controlling his vehicle when the head­ on collision occurred. His Honour had before him evidence that the appellant's vehicle, because of the condition of the tyre tread and brake shoes, was unroadworthy, but there is no evidence to suggest that this contributed to the collision.
The appellant was 30 years of age when these events took place. His father died when he was a child. His education was limited and his life was not easy. He was born and reared in Western Australia, but about five years ago he left that state, arriving in the Territory about six months later. He had experienced long spells of unemployment and apparently had lost a job with the Darwin City Council not long before the offence, under circumstances which aggrieved him. He is a married man with

three young children. expected shortly.

The birth of his fourth child is

The appellant has a formidable record of convictions, including many associated with motor vehicles and liquor, dangerous driving, driving without a licence and driving whilst his licence was suspended. There is no point in dealing with them in detail. They are referred to in his Honour's remarks on sentence. His Honour termed his record, relevant to the issues before him, as "appalling". The term is apt. About two months before this offence, the appellant's licence was disqualified for 12 months in the Darwin Court of Summary Jurisdiction. As in the past this did not deter him from driving.
Between the date of the accident and his appearance before the Supreme court, the appellant attended Amity House for counselling. The reports before his Honour indicated that he suffered "a moderate level of alcohol dependence" and that counselling had proved beneficial, the future having some promise. His counsel's submissions emphasised this. It was said that family relationships had improved and prospects of rehabilitation were relatively bright. The antecedent report submitted made some reference to the same effect. This serves to summarise the background with which his Honour was confronted.'

The appellant's criminal record is annexure 'A' hereto.

An application was made by the appellant to the High Court to extend time in which to make an application for special leave to appeal from the decision of the Court of Criminal Appeal dismissing the appeal, and an application for special leave to appeal, and an appeal against sentence.

The High Court's judgements were given on 8 December 1988: Baumer v R (1988) 83 ALR 8. After granting the applications for extension of time and for special leave, the High Court set aside the order of the Court of criminal Appeal insofar as it had dismissed the appeal to it, and remitted the matter to the Court

of Criminal Appeal for the appeal to be dealt with according to law.	Thus the matter comes before us.

The Court of Criminal Appeal had expounded a two-stage approach to sentencing under section 154 in cases where the offender was under the influence of an intoxicating substance. It is enough to say that the High Court rejected that approach as erroneous. The High Court said the effect of subsection (4) is merely to require a sentencing court to have regard to a higher maximum penalty resulting from the cumulative effect of that subsection on the other subsections of the section 154.

The learned sentencing judge had not himself fallen into the error made subsequently by the court of Criminal Appeal, and neither counsel for the appellant nor the Crown had suggested the two-stage approach.

However, in the course of its judgment, the High Court said that certain remarks on sentence of the sentencing judge were open to be misunderstood: Baumer v R (1988) 83 ALR 8 at 13.

In the course of his remarks on sentence, the learned sentencing judge made certain remarks quoted below. They are, of course, here taken out of context from different parts of his Honour's remarks and, as such, are even more likely to be misunderstood than in the context in which his Honour placed them:

'

'Al _that, in its.elf, constitutes a serious charge, as envisioned by section 154 of the Code. What increases the seriou ness of this particular offence is the literally appalling record of the accused so far as prior offences in relation to driving are concerned.'
'Now a mere recital of those cases make it plain to me that while in some of them the more serious aspect of death resulted, in none of them did the accused have anything like the record of prior offences related to driving that this accused has. It seems plain to me that not only must the accused understand that this conduct cannot be tolerated, but that members of the public must be protected from a person who behaves in this fashion. It is quite plain that the accused is a very serious threat indeed to anybody using the roadway when the accused is driving. That must be made plain - it must be made plain not only to the accused but to others who commit similar offences, that these offences are regarded by society with the utmost seriousness; that society must be protected by people who commit offences of this nature, and that people with the propensity of the accused to continue to commit these offences must be kept away for the protection of society.'

'I am quite satisfied that in the circumstances of this case, and the record of the accused, the sentence called for is greater than any of the sentences imposed in the cases to which I have been referred.'

The High Court said in Baumer v R:
'In sentencing the applicant, the trial judge noted his record, saying: "What increases the seriousness of this particular offence is the literally appalling record of the accused so far as prior offences in relation to driving are concerned."
His Honour also observed that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of society.'

7	7

'In the present case, therefore, the task of the sentencing judge was to evaluate the circumstances of the offence in their entirety, including the influence of alcohol, and to determine an appropriate term of imprisonment having regard to the prescribed maximum of 11 years and to the possible range of offences to which it applied. His Hono;1r pu port d to proceed in this way. However, the manner in which his Honour performed the task is open to question in two respects. We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it

difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence.	Similarly, his Honour's observation that people with the propensity of the applicant to continue to commit driving offences must be "kept away" for the protection of the public is open to misunderstanding.	Propensity may inhibit mitigation but in the absence of statutory authority it cannot do more.		In applying a section likes 154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime.	Apart from mitigating factors, it is the circumstances		of	the	offence	alone	that		must	be	the determinant of an appropriate sentence.'

Having regard to the learned sentencing judge's remarks, open as they were to be misunderstood and accompanying as they did a heavy sentence of imprisonment, it is not possible to say with confidence that his Honour did not impose a sentence greater than that which fitted the crime by allowing the bad record and propensity to operate as aggravating factors. Indeed, if the sentence imposed had been well within the common range, one might have inferred confidently that his Honour had not fallen into the error mentioned by the High Court. The possibility that his Honour may have imposed an improperly enlarged sentence is increased to a likelihood by the fact that the sentence is exceptionally severe, especially in the light of the appellant's plea of guilty. If his Honour allowed some reduction of the sentence for the plea of guilty, it is hard to imagine what sentence the appellant would have suffered if he had been sentenced after trial and conviction.

As well, because the appellant's conduct did not result in death, and considering the general range of sentences for offences under the same section of the Code - even where death resulted - I think the sentence imposed by his Honour was manifestly excessive.

Accordingly, I would treat his Honour's sentencing discretion as having miscarried.

It is understandable that his Honour was moved to impose a heavy sentence. The appellant's conduct was sickeningly  bad. If a range of sentences that can be expected for this kind of offence had not already emerged, I would not have regarded the sentence of 8 years as manifestly excessive: the excessiveness of the sentence is manifest only by reference to other sentences passed for similar offences. Justice must show some semblance of evenhandedness. If the general level has been unduly low, there is no reason why the court should not move to correct the error, but as I said in Breed v Pryce (1985)36 NTR 23, I think the upward movement should be gradual. This would avoid the risk of infringing that aspect of the rule of law requiring that the measure of punishment for a proscribed act be reasonably ascertainable at the time of its perpetration.

This court must now sentence the appellant, having regard to the facts of the case, in the light of the principles affirmed by the High Court in Baumer v R.

It is permissible when considering the gravity of the offence itself to have regard to the appellant's criminal record, not so as to increase an .otherwise proper sentence, but as revealing, to some extent, the appellant's state of mind at the time of the commission of the offence. His record tends to show him as a person who, when he offended, was somewhat contemptuous of any law to the contrary.

The appellant's serious alcoholism is a countervailing consideration making it more difficult for him to comply with the relevant law: as it were, rendering the exercise of his free will more difficult. Public policy restricts the extent to which the courts can weigh this factor in favour of an offender. Such sensitivity towards offenders has to be moderated in the public interest. The enlightened community would rightly not tolerate a too indulgent attitude to alcohol abuse which is the cause of so much suffering and death.

This kind of offence is committed with some frequency in the Northern Territory. This is a factor that would inhibit me from extending the leniency that might be appropriate for a crime of rare occurrence, by reason of the need to do what can be done to deter others from like conduct.

The appellant's plea of guilty is a mitigating factor. One of the great p oblems facing the administration of the criminal law is how to dispense it justly and, at the same time, avoid undue delay. One legitimate way of easing the problem, in most

cases, is to give significant credit to persons who plead guilty. Some crimes are so horrific that no leniency is permissible. It goes without saying that the person who, having exercised his right to trial, is convicted, should not suffer a heavier sentence than a proper one, but he may not receive the special leniency that he may have received if he had pleaded guilty.
A plea of guilty is generally also said to evince contrition. Therefore, I would take the appellant's plea of guilty into significant account.

Having regard only to the facts of the crime, including the influence of alcohol, but being somewhat constrained by the generally low level of sentences for offences under the same section, I would regard a sentence of 7 years as appropriate. After all, what the appellant did was a most serious manifestation of the proscribed conduct. But, allowing a reduction for his plea of guilty of 2 years and for the factors to which the learned sentencing judge alluded, I would regard a proper sentence to impose upon the prisoner to be one of 5 years imprisonment. I would fix a non-parole period of 2 1/2 years.

I think the period of disqualification is manifestly excessive. I would quash the order of disqualification and make an order in the terms suggested by Martin J for the reasons given by his Honour.

ANNEXURE 'A'

COURT	OFFENCE	SENTENCE
DARWIN CSJ

11/2/86

LEONORA P.S.
26/08/82

LEONORA P.S.
19/08/82
LEONORA P.S.
19/07/82
KAMBALDA P.S.
31/08/81

KALGOORLIE P.S.
06/03/80
COOLGARDIE P.S.
16/01/79

KALGOORLIE P.S.
27/03/78

FREMANTLE P.C.

DRIVE UNLICENSED -

DRIVE MANNER DANGEROUS
EX .08% (.250)

DISORDERLY CONDUCT (OBSCENE LANGUAGE)

DISORDERLY CONDUCT DISORDERLY
NO MOTOR DRIVER'S LICENCE
DRIVE UNDER INFL­ UENCE
FAIL TO STOP

WILFUL DAMAGE

NO MOTOR DRIVER'S LICENCE (UNDER SUSPENSION)

WILFUL DAMAGE UNLAWFUL ASSAULT

CONVICTED - $50 I.D. 2 DAYS
CONVICTED - $350 I.D. 14 DAYS - MDL DISQ. 3 MTHS CONC
CONVICTED - $450 I.D. 18 DAYS - MDL DISQ. 12 MTHS

CONVICTED - $50

CONVICTED - $50

CONVICTED - $25

CONVICTED - 6 MTHS H.L. CUML. - MDL DISQ.3 YRS CONVICTED - 6 MTHS H.L. CUML.-MDL DISQ. 2 YRS CONVICTED - 1 MTH H.L.
CONVICTED $40

CONVICTED - 15 MTHS H.L.­ MDL SUSP 9 MTHS CUML.

CONVICTED - RELEASED GBB
$200 6 MTHS - RESTN $25
& $1 COSTS
CONVICTED - RELEASED ON
GBB $100 0/R 6 MTHS &
$2.30 COSTS

07/02/78

BREAK ENTER & STEAL CONVICTED - $50, $1 COSTS STEALING	CONVICTED - $50, $9.50
COSTS

FREMANTLE P.C.
06/02/78	STEALING

FREMANTLE P.C.
11/01/78	STEALING

E. PERTH P.S.
19/03/77	GIVE FALSE NAME

NO MOTOR DRIVER'S LICENCE

CONVICTED - $50, $1 COSTS

CONVICTED - $30, $10.80 COSTS

CONVICTED - 1 MTH H.L. CUML. - RELEASED ON PAROLE FROM WOOROLOO PRISON ON 18-10-77 - EXPIRY 13-3-78 CONVICTED - 6 MTHS H.L.

KALGOORLIE C.P.S.
26/10/76	BREACH OF PROBATION CONVICTED - 1 MTH H.L.
CONC.

KALGOORLIE P.S.
06/08/76

ESPERANCE P.S.
31/05/76

KALGOORLIE P.S.
09/04/76

KALGOORLIE P.S.
30/12/75

NO MOTOR DRIVER'S LICENCE

DANGEROUS DRIVING
UNAUTHORISED USE OF M/V

ATTEMPTED STEALING EXCEED .08%

NO MOTOR DRIVER'S LICENCE (UNDER SUSPENSION)

RESIST ARREST AGGRAVATED ASSAULT

UNAUTHORISED USE OF M/V
NO MOTOR DRIVER'S
LICENCE

CONVICTED - 6 MTHS H.L.
CONC. - 50c. costs - MDL SUSP. & DISQ. FOR LIFE - NO MINIMUM TERM CONVICTED - 6 MTHS H.L. CONC.
CONVICTED - 1 YR H.L.

CONVICTED - $10, .sac COSTS I.D. 3 DAYS CONVICTED - $100, $1.20 COSTS - MDL DISQ.  3 MTHS Cu"'ML.
CONVICTED - $300, 50c COSTS - MDL DISQ 3 MTHS CUML.

CONVICTED - RELEASED ON PROBATION FOR 2 AND 1/2 YEARS
CONVICTED - $100, .sac
COSTS

CONVICTED - $200, .50c COSTS I.D. 41 DAYS CONVICTED - $250, .50c COSTS I.D. 51 DAYS - MDL DISQ, 18 MTHS CULM.

KALGOORLIE P.C.

FAIL TO STOP AFTER	CONVICTED - $60, .50c ACCIDENT	COSTS I.D. 13 DAYS - MDL
DISQ. 6 MTHS CUML DANGEROUS DRIVING	CONVICTED - $100, $4.20
COSTS I.D. 21 DAYS - MDL DISQ. 6 MTHS

20/10/75	INTERFERE PARTS M/V CONVICTED - 3 MTHS H.L.
BOULDER P.S.

14/10/75

KALGOORLIE P.C.

FAIL TO STOP WHEN CALLED  UPON DRIVE UNDER SUSPENSION

CONVICTED - $25, $1.20 COSTS I.D. 6 DAYS CONVICTED - $150, $3.50 COSTS I.D. 31 DAYS, MDL SUSP FURTHER 12 MTHS

09/10/75

KALGOORLIE C.C.
17/01/74

PERTH C.C.
12/10/73

PERTH C.C.
24/09/73

KALGOORLIE C.C.

DRIVE UNDER IN-	CONVICTED - $225, $1.20 FLUENCE	COSTS I.D. 46 DAYS - MDL
SUSP. 6 MTHS

RECEIVING	CONVICTED - COMMITTED TO CWD TILL 18 YRS NO COSTS

STEALING	CONVICTED - COMMITTED TO CARE DCW - NO COSTS - RESTN. $4

BREAK ENTER & STEAL CONVICTED - COMMITTED TO
DCW 18 MTHS - RESTN. $225
- COSTS $3.50

08/05/73	STEALING

KALGOORLIE C.C.
03/05/73	STEALING

CONVICTED - RELEASED ON PROBATION 6 MTHS & $20 COSTS

CONVICTED - RELEASED ON PROBATION 6 MTHS

KEARNEY  J:  I have had the benefit of reading the opinion of Nader Jin which the facts and circumstances of the case are set out. It is unnecessary to repeat them.

In	its	decision	in Baumer (supra) the High Court pointed out at p.11:-

"Section 154 of the Code is an unusual section. As Maurice J observed [48 NTR 1 at p.11] it is not specifically aimed at driving. It casts a  wide net, so as to cover all acts or omissions endangering the life, health or safety of any member of the public where the risk ought to have been clearly foreseen and the act or omission avoided. The offence so created  can therefore cover an enormous range of conduct from the comparatively trivial to the most serious. The maximum penalties prescribed are to be seen and applied in that light.•

This analysis of s.154 is supported by the historical facts. The prime purpose of s.154 was to provide for charges of criminal offences involving serious personal injury when the Crown was unable to establish some necessary mental element, solely because the jury was satisfied that the accused was too drunk to have the necessary intent or foresight.  That is to say, s.154 was introduced to stand as an alternative
verdict when a charge failed because criminal intent or foresight could not be proved, because of the accused's state of intoxication at the time see generally  R v O'Connor (1980) 146 CLR 64. However, it also embraces
within its generality of expression the pre-Code specific offence of culpable driving.

Section 154 was considered to be necessary because of the high incidence of serious alcohol-induced crime in the Territory. It was believed to be unacceptable that the citizen should be left legally unprotected from unprovoked violence, where that violence was the consequence of alcohol which had obliterated the capacity of the perpetrator to know what he was doing, or its consequences. In the absence of some penal sanction for such behaviour the social consequences could be appalling, as Lord Salmon said in R v Majewski (1977) AC 443 at p.484. Section 154 was  a corollary to framing the Criminal Code so as to accept the law as stated in R v O'Connor (supra) rather than, for example, as stated in s.28 of the Queensland Criminal Code or s.19(a)(8) of the Criminal Law Consolidation Act 1935 (S.A.).

The prime purpose of s.154 indicates why the levels of penalties therein are what they are; as the High Court said (Baumer p.12), some of the criminal conduct which fell within the scope of s.154 "could attract far more serious consequences than the ordinary case of culpable drivingr.. It followed that there was a need, as the High Court indicated (Baumer p.12) for a sentencer to limit the impact of the higher maximum penalty in s.154 for conduct involving dangerous driving causing injury or death, while also bearing in mind, as the High Court put it -

" s.154(4) is a clear expression of  concern  by the legislature over the effect of intoxication on the level of crime in the community in the context of dangerous acts or omissions lacking an intention to cause a specific result.•

In the result, a court sentencing a driver who, while under the influence of liquor, has driven dangerously and caused grievous harm, has to have regard to the higher maximum penalty of 11 years imprisonment provided by the

Code,	and	give	effect	to	this	"clear legislative		will",	though		with		"some application" (High Court, Baumer, p.13).

expression	of latitude	in

In the pre-Code criminal law of the Territory there had been a specific offence of causing death or grievous bodily harm by the culpable driving of a motor vehicle; see s.16A of the repealed Criminal Law Consolidation Act and Ordinance.  That offence carried  a  maximum  punishment  of
7 years imprisonment. The present offence, with  its specific aggravating features under s.154(2) and (4), carries  a  maximum punishment of 11 years imprisonment.  In
the Court of Criminal Appeal in Baumer 48 NTR 1 at pp.6-7 Maurice J analysed the penalties imposed in  this jurisdiction for culpable driving, both before and after the Code. He noted that the highest sentence imposed before the Code was 3 years imprisonment, while after the Code it had risen  to  4½     years.   These were cases of culpable driving
where death had resulted; the maximum punishment for that is

now 14 years imprisonment. It seems clear that the Judges considered an upward adjustment of sentencing was necessary when the Code was introduced, as a result in particular of the "clear expression of concern by the legislature over the effect of  intoxication in  the  context of dangerous acts", (High Court, Baumer, p.11). The higher maximum sentence in s.154 (11 years in the present case) required, as the High Court put it at p.12:-

"	some adjustment to the range of sentences that would formerly have been considered appropriate".

Maurice J had also noted correctly, with respect, that the penalties imposed in this case bore no relationship to the range of sentences "conventionally applied" throughout Australia for this offence; see 48 NTR at pp.4, 6-8. However, the approach to sentencing for this type of offence appears to vary as between the different States; the marked disparity suggests that some State appellate courts take a more severe view of the offence, than others. In any event with the exception of South Australia from late 1986, the varying maximum penalties for this offence in the States
are considerably lower than the 11 years provided in the Northern Territory. For those reasons, the utility of any interstate sentencing comparison is reduced.

The High Court considered (Baumer, p.12) that there might be much truth in the general observations of King CJ in R v Johnston (1985) 38 SASR 582 at p.586, noted by Maurice J, to the effect that the typical dangerous driver is not a hardened criminal, and his deterrent is the threat of imprisonment rather than its duration. However, the High Court had also emphasized (at p.13) that the "clear expression of legislative will" that the range of punishment be adjusted upwards, had to be given effect.

Before this Court Mr McDonald submitted that the learned trial Judge had erred in his approach to sentencing in 2 ways. First, his Honour had treated the appellant's bad record as a factor which warranted an increase in the

sentence	beyond		that	which circumstances	of	the	offence.

was	appropriate	to	the Second,	his	Honour	had

treated the appellant as a person with a propensity to commit driving offences, and on that basis had increased the sentence beyond that which was appropriate to the circumstances of the offence, because he considered that the appellant had to be "kept away" for the protection of the public. In essence the submission was that the sentence contained an element of preventive detention.

The High Court (Baumer, p.13) had noted that his Honour's observations on both of these aspects were "open to misunderstanding" and accordingly his approach to sentencing

was "open to question"; see the extract from the judgment set out by Nader J. His Honour's observations must of course be read in the context of his remarks on sentence, where they occur; I turn to those remarks. After reviewing the facts his Honour concluded:-

"There is therefore no doubt that the accused was travelling in the wrong direction on a part of a roadway used exclusively for cars coming in the opposite direction and that he thereby caused a very serious accident at a time when he was undoubtedly under the influence of alcohol.

All that in itself constitutes a serious charge, as envisioned by s.154 of the Code. What increases the seriousness of this particular offence is the literally appalling record of the accused so far as prior offences in relation to driving are concerned." (emphasis mine)

His Honour then set out that criminal record in detail, and observed:-

"In these accused is remarkably

circumstances	it	is a menace on the		road, lucky	that	he		has

obvious that the and it may be not yet killed

somebody.•."

His Honour then referred in some detail to the facts, circumstances and sentences in certain cases of culpable driving under Code s.154 to which he had been referred, and continued:-

"Now,	a	mere recital of those cases make it plain to me that while in some of them the	more	serious

aspect

of	death	resulted in none of them did the

accused have anything like the record of prior offences related to driving that this accused has. It seems plain to me that not only must the accused understand that this conduct cannot be tolerated, but that members of the public must be protected from a person who behaves in this fashion.

It is quite plain that the accused is a very serious threat indeed to anybody using the roadway when the accused is driving. That must be made plain - it must be made plain not only to the accused but to others who commit similar offences, that these offences are regarded by society with the utmost seriousness; that society must be protected by (sic) people who commit offences of this nature, and that people with the propensity of the accused to continue to commit these offences, must be kept away for the protection of society." (emphasis mine).

His Honour then considered the personal circumstances of the appellant and stated:-

"Those are matters which I take into they cannot, in my view, mitigate to extent the seriousness of what the done, and the appalling record which he

account but any	great accused has
has.

There is no doubt, of course, that he must be given a gaol sentence. The only question is the length of that sentence. I am quite satisfied that in the circumstances of this case, and the record of the accused, the sentence called for is greater than any of the sentences imposed in those cases to which I have been referred."

His Honour then considered the question of disqualifying the appellant from holding a driver's licence, observed that he had considered disqualifying him for life, and continued:-

"   I have no hesitation in a very substantial period. offence, and the background, of the accused, which merits

disqualifying him	for There is much in this and the prior	history
almost the maximum."

These	last	remarks	were	clearly	directed to the maximum period of disqualification - life.

In considering his Honour's remarks on sentence, the cautionary words of Muirhead J in R v William Davey (1980) 2 A.Crim.R. 254 at p.261 are to be borne in mind:-

"Remarks on sentence should not be reviewed on appeal as though they are a reserved judgment. They are frequently made ex tempore and in conversational manner, but generally only after anxious thought.•

The High court said (Baumer p.13):-

"In applying a section like s.154, the sole criterion relevant to a determination of the upper limit of an appropriate sentence is that the punishment fit the crime. Apart from mitigating factors, it is the circumstances of the offence alone that must be the determinant of an appropriate sentence." (emphasis mine)

It follows as a corollary that it is improper to increase a sentence beyond the upper limit called for by the circumstances of the crime, because of an accused's criminal record. It is unjust to do so, because the accused would thereby be punished again for offences for which he had already been punished. However, the fact that an accused has a criminal record is a ground for refusing to mitigate the sentence called for by the circumstances of the offence; the rationale is that by his persistence in criminal conduct

he may be regarded as not having responded to previous punishment, his prospects for rehabilitation may thus be regarded as poor, and the deterrent effect of some more moderate punishment negligible. An accused's criminal record may also be treated as evidence of his character - a matter always in issue - and thus indicative of the extent to which society needs to be protected from him; it may also be treated as evidence of the nature and extent of any relevant intention.

The High Court stated the significance to be attributed to a prior record in Veen v The Queen (No.2) (1988) 164 CLR 405 at pp.477-8:-

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. [That is, 'more severe' than if he had not manifested such an attitude.] It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties." (emphasis mine)

The statement of law underlined must now be understood in the light of what was later said by the High Court in Baumer at p.13 (supra), as to the "sole criterion" for the determination of the upper limit of the appropriate sentence.

I consider that his Honour's observation that the appellant's record "increases the seriousness of this particular offence" may fairly be construed in its context as indicating an approach to sentencing in which the appellant's record was treated as a factor which increased the seriousness of the crime beyond that warranted by the circumstances of its commission. In the light of what the High Court said (Baumer, p.13) such an approach involves appealable error in terms of House v The King (1936) 55 CLR
499 at p.505, vitiates the exercise of his Honour's sentencing discretion, and enables this Court to exercise its own discretion in substitution.

I do not consider that his Honour's remarks about the need to keep away for the protection of society persons with the appellant's propensity for culpable driving, viewed in their context, display any error. His Honour was there concerned to point to the need for sentences of imprisonment, when serious offences of culpable driving are committed by persistent recidivists.

Mr McDonald also submitted that both sentence and disqualification were manifestly excessive. The sentence of
8 years imprisonment and the disqualification from holding a licence for 20 years appear to be much in excess of the prevailing standards of punishment in this jurisdiction for this offence, as indicated by the sentences and periods of disqualification imposed since the Code was introduced. Fair sentencing involves sentencing by analogy. Hence the relevance of the sentencing cases to which both the learned trial Judge and this Court were referred; see generally R v Ireland (1987) 49 NTR 10 at pp.17-19 and R v Anzac (1987) 50 NTR 6 at pp.12-13. Though there is no necessity for a sentencer to adhere rigidly to what might be called the "going rate", strikingly disparate sentences for the same offence committed in substantially similar circumstances are insupportable. Any very marked departure from sentences usually imposed must be capable of being rationalized, if the sentence is to stand. As Nader J said in Breed v Pryce (1985) 36 NTR 23 at p.32:-

"I am unable to see how an isolated sentence, grossly disparate from the general run, can be a just one even if it is otherwise lawfully correct; justice and disparity of treatment are incompatible."

This was a bad case of dangerous driving by a heavily intoxicated driver whose appalling prior driving record meant that it was open to the learned trial Judge to

extend to him little in the way of leniency for his personal circumstances, so as to reduce the sentence from that which fitted the crime. Nevertheless there was a plea of guilty which should, in my opinion, generally be given some weight, irrespective of whether or not it indicates remorse, because it serves the public interest by saving the time and expense of a trial; see Salt v The Queen (1988) 7 MVR  113  and  cf.
J.E. Wills "The Sentencing Discount for Guilty Pleas" (1985)
18 ANZJ Crim. 131.

To my mind it is clear from an examination	of	the cases	under	s.154	to	which	we were referred, several of

which are	usefully		collected	in pp.30-37,		that	the	sentence

R v Ireland and	the

(supra)	at period	of

disqualification imposed were both manifestly excessive, when full and proper allowance is made for the appellant's very bad record.

It remains to consider the punishment which should be substituted.

I adopt the approach to sentencing outlined by Nader Jin R v Ireland (supra) at pp.22-24, and bear in mind that it is a function of this Court to achieve consistency and certainty of sentence - see R v Allinson 49 NTR 38.

I note that what is punishable under s.154 is conduct which does not involve malice; the conduct in this case involves criminal heedlessness in driving. The distinction is important, for the reasons stated by King CJ in R v Johnston (supra) at p.585:-

"It is important therefore that in concentrating our attention on the dreadful consequences of the driving, we do not obscure the chasm which exists between the moral quality of heedless or even reckless conduct which causes death or bodily harm and the moral quality of conduct which deliberately inflicts death or bodily harm. Consequences of conduct are important in the criminal law but they are not the determinant of the moral turpitude involved in the conduct

The	sentence	should	not proportionate to the moral the	crime	having	regard character of the wrongdoing the individual offender."

exceed that which is turpitude involved in both to the objective and the qualities of

Punishment	for	culpable	driving	of	this	type	must	
nevertheless be condign	and	imposed	for	the	purpose	of	
general deterrence.					

I note that in its "guideline" judgment in R v Boswell (1984) 3 All E.R. 353, cited by Maurice J (48 NTR 1 at pp.4-6), the Criminal Division of the Court of Appeal in England considered that in a case involving bad driving (as here) -

" where the driver  has shown himself to be a menace to others using the highway, he should be debarred from driving for a substantial length of time. In bad cases, seven to ten years will not be too long."

In South Australia, disqualification for a period of 5 to 7 years is considered not excessive in bad cases; see R v Leaf-Milham (1987) 30 A. Crim. R. 68. It may be noted that in South Australia as a result of a 1986 amendment to the Criminal Law Consolidation Act 1935, conviction for this offence now carried a minimum disqualification of 5 years.

I	respectfully	concur	in	the	observations	of	
Martin Jon	this aspect.				

Mr McDonald submitted that the appellant, as an alcoholic, was entitled to some mitigation of his sentence on that account. I reject that submission. He must have known of his alcohol problem, yet persisted in driving after he had been drinking; that might be said to aggravate his culpability - see R v Currie (1988) 33 A. Crim. R. 7 at pp.9 and 10. Alcoholism is not a mitigating factor in the circumstances of this case.

Approaching the question of sentence on the basis I have indicated, it is sufficient to say that I concur in the sentence and non-parole period proposed by Nader J and the period of disqualification proposed by Martin J.

MARTIN J. I have had the advantage  of reading  the reasons for decision of Nader and Kearney JJ. Had they stood alone, I do not think that the remarks of the learned trial judge as to propensity, would have led me to find that His Honour erred. However that may be, I respectfully agree that His Honour erred in his treatment of the appellant's prior convictions in the sentencing process. For the reasons they give I also consider that the prison sentence and period of disqualification imposed were manifestly excessive.

With respect, I would not necessarily adopt the approach disclosed by His Honour Justice Nader in arriving at the proper sentence and non-parole period, but agree with what he proposes.

What should be done in regard to the appellant's drivers license, or the ability to obtain one upon his

release	from	prison? concern.

That	question	has	caused me some

Maurice J. dealt with the question at some length in his dissenting judgment upon the original hearing of the appeal in this case (1987) 48 NTR 1 at 12. I need not repeat all that is there set out, much of which, with respect is supported by persuasive authority. Suffice it to say that although the power to disqualify is one of the

types of penalties which may be imposed in order to punish a person for a criminal offence, due regard must be had to the principles of sentencing, including, in a case such as this, that the offender has been sentenced to a lengthy period of imprisonment. Subjective factors, including those going to the offenders prospects of rehabilitation, and the effect which a period of disqualification extending beyond the period of imprisonment may have upon his employment prospects, should be taken into account. Clearly the power is not to be exercised arbitrarily.

On the other hand, Muirhead A.J. at p. 19, drew attention to the appellant's past conduct as evidenced by his prior convictions. Those convictions relevantly show that he has been disqualified for various periods of up to 3 years on 7 occasions during the period from October 1975 to February 1986. Even if the earlier penalties in this regard are discounted, it is plain that the appellant has not learnt his lesson arising from deprivation of a license to drive.

The power to disqualify must primarily be seen as a means of keeping off the road a person who has demonstrated that he can not be trusted in his driving of a motor vehicle. That is for the protection of the public, as well as serving as a punishment and deterrent.  In this case those latter considerations are largely taken care of in the

period of imprisonment which the appellant must serve. I consider that the combined force and effect of imprisonment and disqualification needs to be considered in the circumstances of the offence and of the offender.

Records of the Court disclose a number of sentences of the type here being considered arising, as they must, from a variety of circumstances both as to the offence and the offender. No clear pattern  emerges.  In some cases there has been no disqualification imposed; in those where it was it has not been unusual for the period to extend well beyond the time at which the prisoner would be eligible for parole. The range of periods of disqualification has extended from 3 years to 7 years, and for the period after eligibility for parole from 3 years 6 months to 7 years 3 months. There does not appear to be any correlation between the sentence to imprisonment, non parole period and period of disqualification, reflecting no doubt the variety of circumstances attending the offence and offender.

I agree that the period of disqualification for 20 years is manifestly excessive and in all the circumstances would substitute a period of 7 years.

I join with other Judges of this Court who have previously urged that consideration be given to amending
s. 390(9) of the Code so that a Court may impose an

indeterminate period of disqualification subject	to	review by the Court.