SCHMIDT J: On 22 June 2016 Yehia DCJ sentenced Mr Costello under s 52A(1) of the Crimes Act 1900 (NSW) to a term of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 10 months, for an offence of dangerous driving occasioning death, to which he had entered a plea of guilty. He was eligible for parole on 20 December 2017.
Unusually, in January 2017 Mr Costello filed an application seeking leave to appeal against that sentence on only one ground, namely, that the sentencing proceedings had miscarried by reason of the absence of evidence which was not available at the sentence hearing.
For the following reasons I consider that Mr Costello should be granted leave to lead fresh evidence, that leave to appeal should be granted, the appeal upheld, Mr Costello sentenced afresh and released on parole today.
[2]
The Crown consented to the receipt of the fresh evidence
While the general rule is that the Court will not receive evidence of events which occur after sentence was imposed, there was no question as to the Court's power to receive fresh evidence which could not have been obtained at the time of the sentence hearing, by the exercise of reasonable diligence: Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 at [10].
There was also no question that medical evidence relating to the health of a family member, which brings into play considerations of exceptional hardship resulting from the offender's incarceration to an offender's partner and children, may be received on appeal: Stumbles v R [2006] NSWCCA 418 at [10].
In exceptional cases, even where the offending in question is serious, such fresh evidence may be taken into account and the offender re-sentenced, with the result that the sentence may be reduced: see for example Mokhaiver v R [2011] NSWCCA 10.
The Crown accepted that in this case the evidence which Mr Costello sought to lead was not only fresh evidence, it not having been available at the sentence hearing, but that it was of a highly exceptional nature, concerning as it did an unexpected diagnosis of terminal cancer in a relatively young woman, Ms Mason, who is Mr Costello's partner and the mother of their two young children now aged 4 and 7 years respectively.
In the result, the Court exercised its discretion to receive the fresh evidence, it having a real bearing on the exercise of the sentencing discretion.
[3]
Mr Costello's offence
In resentencing Mr Costello, the objective seriousness of his offence (which attracted a maximum penalty of 10 years' imprisonment) had to be taken into account.
Mr Costello was a truck driver. On 18 August 2013, he was driving a Kenworth K series rigid truck on Minmi Road, where there is a dedicated cycling lane in which Mr Andrew Ayre was riding his bicycle. They were involved in a collision which occurred just after the intersection with Creek Road, where two lanes merged. Because of the way Mr Costello was driving as he attempted to merge, he did not see Mr Ayre until the last second. The result was that the left side of the bull bar of Mr Costello's truck collided with the rear wheel of Mr Ayre's bicycle, when Mr Costello allowed the left hand side of his truck to encroach into the lane where Mr Ayre was riding, causing him to fall to the ground. Mr Ayre then went under the truck and suffered a fatal injury, when his head was struck by one of the wheels.
[4]
The sentence originally imposed on Mr Costello
Mr Costello received a 15 per cent utilitarian discount for the guilty plea he entered shortly before his trial in circumstances, it was accepted, which were affected by difficulties with his legal representation.
Her Honour found that the collision was not the result of mere momentary inattention on Mr Costello's part. There had been a level of aggressive driving when he attempted to force his way into the merging lane, at a time when Mr Costello knew his lane was ending. He then failed to slow down and attempted to force his way into the merged lane, while also failing to have proper regard for Mr Ayre's safety.
It was thus concluded that Mr Costello's offence was serious, calling for a term of full-time imprisonment, his conduct having involved a failure to keep a proper lookout, failure to take proper evasive action to avoid a collision, and a degree of aggression when attempting to merge.
This aggressive behaviour was found to have lasted only for a period of some seconds and to have involved a failure properly to heed warning signs, but no other aggravating factors such as speed, fatigue, or a lengthy period or distance of driving. There was also found to be an absence of evidence that a number of people were put at risk. The offence was found to fall below the mid-range of objective seriousness, but not at the lower end of that range. The aggressive driving was, however, also found to be an aggravating factor.
Victim impact statements were received on sentence, which, as her Honour found, revealed the profound nature of the emotional harm which Mr Ayre's death caused members of his family, when his life was cut short by Mr Costello's irresponsible acts.
Her Honour observed that Mr Costello's sentence had to reflect not only adequate punishment, but also had to recognise the harm Mr Costello had done, to denounce his conduct by making him accountable for what he had done and to deter he and others from such criminal behaviour. It also had to facilitate his rehabilitation.
Mr Costello was 34 at the time he was sentenced. His subjective circumstances included financial hardship after various adverse business developments led to the repossession of his home, which was sold below market value. There was also evidence of the financial and psychological hardship which his incarceration had caused his family, which was accepted as being significant, but not exceptional, so as to constitute a significant mitigating matter.
Mr Costello had a poor driving record in both NSW and Queensland, which included offences for exceeding the speed limit, fatigue driving and a 2011 offence for driving with an illicit drug in his blood. There had also been offending after the accident. That record, when considered together with his failure to attend court in February 2016 and the resulting issue of an arrest warrant, precluded her Honour accepting that he had then attained an appreciation of the degree of the wrongfulness of his actions, or that it was only he who has to blame for the collision, despite his evidence that he had accepted that the fault was entirely his.
While her Honour accepted that Mr Costello was sorry for the tragic consequences of his driving and the devastating impact it had had on Mr Ayre's family, she considered that his prospects of rehabilitation were guarded.
Her Honour also concluded that both general and specific deterrence had to feature in his sentence. Her Honour accepted, however, the Crown's concession as to the existence of special circumstances, under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), resulting in the longer than usual time for supervision on parole encompassed by the sentence imposed on Mr Costello.
[5]
Why a lesser sentence must be imposed
Mr Costello's offence was serious. As he himself accepted, the sentence imposed upon him on the evidence led on sentence was entirely appropriate. At the time of the hearing of the appeal, he had been in custody since 21 February 2016. He was not eligible for release on parole until December 2017.
As has been repeatedly observed, including in this case by the sentencing judge, hardship on family members is often an inevitable consequence of an offender's sentence to a term of imprisonment. As her Honour found, this was such a case.
What was unknown, however, at the time that Mr Costello was sentenced, was that Ms Mason, with whom he has been in a relationship for some 8-9 years and who is now only aged 43 years, is terminally ill. She only began suffering symptoms in August 2016 and is now receiving palliative care. There is a chance that she may not survive until his earliest release on parole.
Mr Costello's unchallenged evidence was that he had accepted his sentence, having taken Mr Ayre's life as he did. His appeal was only lodged after Ms Mason's diagnosis and was pursued in order that he could help her and his children. Mr Costello described the problems he and Ms Mason were confronting, even in discussing her health and possible treatment and the resulting problems they had to deal with, including in relation to their finances.
In Ms Mason's unchallenged evidence she described how she came to be diagnosed in mid-September 2016; what she was then advised as to her prognosis and possible treatment; the difficulties she had to confront in taking care of her children; the difficulties she had encountered in accessing assistance and treatment; the consequences of the symptoms she was suffering and of the treatment she was receiving; the practical and emotional assistance she needed from Mr Costello; her need to make serious decisions as to her own treatment and for the care of their children; and her inability to pursue the possibility of surgery, without Mr Costello being available to care for the children, or her, during her recovery.
In a letter of 18 January 2017, Dr Day, Ms Mason's treating oncologist described Ms Mason's diagnosis. She is suffering an incurable disease. The median survival rate, with currently available therapies, is some 24 months. She is receiving palliative chemotherapy and suffering substantial symptoms, including considerable pain. Side effects of her treatment prevent her working and affect her functional capacity. Dr Day was of the opinion that her prognosis would be positively impacted, if she had Mr Costello's care and assistance, so that she could receive optimal treatment.
There was further evidence that Ms Mason has not been able to pursue advice from Professor Morris, to whom she has been referred for surgical treatment, because she became so ill that she could not leave the house to attend her appointment and because of her need to care for her daughter, who was admitted to hospital overnight on 27 February, with suspected appendicitis. The cause of the pains her daughter has been suffering for some weeks, has not yet been identified.
On the evidence, Ms Mason's ill health and poor prognosis have undoubtedly resulted in exceptional hardship for Mr Costello and his family. The consequences of Mr Costello's incarceration have adversely impacted not only Ms Mason's ability to pursue treatment and make decisions as to her own future and that of their children, but also her ability to care for their children.
That evidence establishes that Mr Costello's subjective circumstances were different to those which her Honour found, on the evidence available on sentence. The real circumstances and their impact were not known and could, accordingly, not be taken into proper account, when the sentence was arrived at.
Gleeson CJ (as he then was) discussed in R v Edwards (1996) 90 A Crim R 510 at 515-516, cases where wholly exceptional circumstances may arise for consideration, which require the Court, as a matter of simple mercy, to impose a lesser sentence on an offender, than would otherwise be justified.
The evidence I have discussed establishes that this is such an unusual case.
The sentence which Mr Costello would otherwise have to serve for his serious offending, if the community's proper expectations of punishment, retribution and deterrence were to be met, must be ameliorated by the need to extend mercy, in the truly exceptional circumstances which have only come to light and developed for Ms Mason and his family, since Mr Costello was sentenced. The result is that both a somewhat lesser sentence and a shorter non parole period must be imposed on Mr Costello.
In all of the circumstances I consider that Mr Costello should be resentenced to a term of imprisonment of 3 years, commencing on 21 February 2016, with a non-parole period of 1 year and 14 days.
[6]
Orders
The orders I propose are:
1. Mr Costello be granted leave to lead fresh evidence.
2. Leave to appeal should be granted.
3. The appeal be upheld.
4. The sentence be quashed.
5. Mr Costello be sentenced to a term of imprisonment of 3 years commencing on 21 February 2016, with a non-parole period of 1 year and 14 days.
6. Mr Costello be released on parole today.
[7]
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Decision last updated: 09 March 2017