Director of Public Prosecutions v Andonakis - [2019] NSWCCA 123 - NSWCCA 2019 case summary — Zoe

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Director of Public Prosecutions v Andonakis

[2019] NSWCCA 123

Court of Criminal Appeal (NSW)|2019-03-22|Before: Basten JA, Adams J, Ierace J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2019-03-22

Before

Basten JA, Adams J, Ierace J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Solicitors: Solicitor for Public Prosecutions (Appellant) Nyman Gibson Miralis (Respondent) File Number(s): 2016/273463 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 September 2018 Before: Charteris SC ADCJ File Number(s): 2016/273463

[2]

Judgment

THE COURT: In the early morning of 3 September 2016 a Toyota Pantech truck driven by the respondent ("the offender") was heading south on the Pacific Highway near Dirty Creek on the north coast of New South Wales. The vehicle crossed double unbroken lines and collided with a semi-trailer heading north. The driver of the semi-trailer, Kenneth Anthony Smith, died in the collision.
Although he was arrested on 3 September 2016, the offender obtained bail on 13 October 2016, partly as a result of falsely denying that he was the driver of the Toyota Pantech. In breach of his bail, he returned to Queensland, and committed further offences. Having completed a sentence in Queensland he was extradited on 28 August 2017 and has been held in custody in New South Wales since that date.
On 7 September 2018 he entered a plea of guilty to a charge of driving in a manner dangerous and occasioning death, under s 52A(1)(c) of the Crimes Act 1900 (NSW). On 20 September 2018 he was sentenced by Charteris SC ADCJ in the District Court at Coffs Harbour to imprisonment with a non-parole period of 2 years 3 months and an additional term of 1 year 5 months. The sentence was directed to commence on 25 September 2017; the non-parole period will expire on 24 December 2019.

[3]

Nature of offending

The collision occurred on a section of the Pacific Highway approximately halfway between Coffs Harbour and Grafton. The highway was undergoing reconstruction at the time and there was a single lane operating in each direction, with an unbroken double line between the lanes. Driving in a northerly direction, there was an uphill gradient, approaching a crest. The land fell away to the east of the southbound lane. The Toyota Pantech driven by the offender ended against the safety fence alongside the southbound lane. The vehicle driven by the deceased crossed the southbound lane after the collision (which occurred completely in its northbound lane), went through the safety fence and ended up at the bottom of a steep embankment. The road surface at the location was in good condition. Because of the road works, the speed limit was 80kph.
The offender's vehicle moved partly across the unbroken separation lines and into the northbound lane. The deceased braked sharply, causing the rear trailer tyres to lock up and skid. The point of impact was entirely within the deceased's northbound lane. The collision occurred at 6.45am, after an hour of daylight.
The offender was taken to hospital after the accident and a blood sample indicated a high level of methylamphetamine. The senior pharmacologist, Dr Perl, described the reading as "well within the toxic to potentially fatal range", being sufficient to impair driving ability, although she was unable to express an opinion as to the degree of impairment.
The offender's vehicle had false Queensland registration plates and the trailer was laden with stolen electrical power tools and pushbikes. He told witnesses and a treating paramedic at the scene that he was the driver and sole occupant of the vehicle. However, when interviewed by police he denied being the driver and provided a name which could not be traced upon investigation. In applying for bail he continued his false claim that he was not the driver at the time of the collision. In breach of his bail, he returned to Queensland and was arrested on New Year's Eve, 2016. He was sentenced for further offences in Queensland.
Upon his extradition to New South Wales in August 2017 he again sought bail, and provided a different false account of his involvement to the Court. He produced a written letter, signed by another person, who purported to claim responsibility for driving the vehicle. The police interviewed the alleged author who denied writing the letter and denied being the driver. The offender admitted being the driver in November 2017.
The sentencing judge referred to the offender's criminal record from both New South Wales and Queensland. He stated: "His driving record, in my opinion, is very poor, when one views the records in both states. He has displayed consistently little regard for his obligations in the conduct of a vehicle upon the road. … He had offences of driving whilst suspended and also stating a false name in 2005. He had another offence of driving whilst suspended, for which he received a bond under s 10, in 2005 as well. In 2008 he was fined for driving again whilst suspended. He was dealt with for failing, on occasion, to answer bail. In February 2016, he was convicted, with no other penalty, for possessing a prohibited drug, using a vehicle without numberplates displayed and at the same time driving a motor vehicle again whilst suspended. He has had a number of convictions for driving whilst suspended."
The judge noted that his New South Wales traffic record included more than 20 offences of exceeding the speed limit over the years since he first obtained a licence (1991). In fact, his traffic record includes some 60 offences from 1991 to 2017. The judge noted that his driving record in Queensland ran to nine pages, primarily in the period from 2008 to 2017. In combination the judge correctly noted that the records painted a picture "of an individual who has little regard for his obligations to obey the driving laws of either state."
His criminal record in Queensland included a range of offences involving possession of drugs, possession of utensils for using drugs, possession of suspected stolen property, stealing, unlawful use of motor vehicle, possessing a knife in a public place and entering premises with intent to commit an indictable offence.
Having been extradited to New South Wales, he was sentenced to 3 months imprisonment for driving whilst disqualified, a sentence which expired on 24 November 2017. The judge fixed the sentence on the present charge to commence on 25 September 2017 being one month into that 3 month sentence.
The factors personal to the offender taken into account by the sentencing judge included his own oral testimony, which was largely confined to confirming aspects of his personal history, and a psychologist's report prepared by Ms Julie Dombrowski. Further aspects of his personal history were confirmed by members of his family.

[4]

Basis of Director's appeal

The Director submitted that the sentence was manifestly inadequate and was affected by patent errors, including (i) a failure to assess the objective seriousness of the offence and (ii) making a finding of special circumstances and thereby reducing the non-parole period. The Director's submissions then proceeded through stages of increasing particularity. There was, it was submitted: 1. a failure to reflect the numerous circumstances of aggravation; 2. giving inappropriate weight to the respondent's subjective circumstances; 3. failing to reflect the moral culpability of the respondent as high; 4. failing to reflect the importance of general deterrence, and 5. failing adequately to reflect the need for specific deterrence.
With respect to circumstances of aggravation, it was said that, whilst referring to the guideline judgment in R v Whyte, [1] the judge failed to address the typical recurring features of such cases [2] and the list of potential aggravating factors. [3]
By reference to the earlier guideline judgment in R v Jurisic, [4] Spigelman CJ reiterated in Whyte at [215]: "With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional."
In this case the sentence, allowing a discount for a plea of guilty, was only marginally over the suggested 3 year minimum. If the Director were correct in his submission that there were additional aggravating factors of significant intensity, [5] it would be correct to say that the sentence was manifestly inadequate. As will be explained below, that submission should be accepted; accordingly, the discretionary power of the Court to intervene is engaged. Again, for reasons explained below, this is a case in which the Court should intervene and increase the sentence.

[5]

(a) conduct of offender

There are a number of features of the offender's conduct which demonstrate a high level of aggravation. First, in his oral evidence, the offender acknowledged that he had spoken to Ms Dombrowski and had provided her with details of his drug use prior to the accident. [6] Ms Dombrowski recorded: "11. Mr Andonakis started using cocaine at the age of 24. His use quickly became daily and he would use up to an ounce per week of cocaine. At the age of 40, he was introduced to methylamphetamine and he ceased using cocaine and started smoking methylamphetamine instead. He smoked up to two grams per day of the drug. He frequently experienced confusion and disorientation and associated sleeplessness (he reported not sleeping for up to 11 days at a time) when affected by the substance. From 2014, he was unable to maintain employment because of his methylamphetamine use and started to socialise exclusively with other drug users and to engage in offending to fund his drug use. Mr Andonakis smoked cannabis daily between the age of 17 and 29. He also regularly used MDMA and amphetamine on weekends (in social contexts) between the ages of 18 and 34."
With respect to his account of the offence, she recorded the following: "14. In the week leading up to the subject offence, Mr Andonakis had used two grams per day of methylamphetamine. He had not slept for five days. … Mr Andonakis told me that he felt heavily affected by methylamphetamine and sleep deprivation that morning and held little memory of the events leading up to the collision given his drug-affected state."
A significant factor with respect to the conduct of the offender was the length of the journey during which others were exposed to risk. [7] As the sentencing judge noted, the offender, knowing that he was affected by methylamphetamine, lack of sleep and without a licence, had driven a large vehicle for more than 200 kilometres on a trip which was intended to continue for 500 kilometres. [8] The judge identified the offender's moral culpability as "high; he abandoned responsibility." [9] He said that he had had regard to "the number of persons that would have been put at risk as he proceeded down the Pacific Highway." [10]

[7]

As Ms Dombrowski noted, he also drove without a licence and had "a long history of driving-related offences and his licence was disqualified from 29 June until 28 December 2016 for prior driving offences." It follows that there were multiple reasons why the offender should not have been driving on the day in question (drug affectation, sleep deprivation, lack of a licence), let alone undertaking a long trip on a busy highway from Brisbane to Sydney.
Not only was the offender's misconduct serious on the occasion in question, he had displayed a flagrant disregard for the law relating to driving and drug use from an early age. It is convenient to refer to one further passage in Ms Dombrowski's report in this regard: "17. Mr Andonakis shows strong characteristics of poorly developed personality functioning with narcissistic features. People with a narcissistic personality style see the world through a very different lens. In Mr Andonakis' case, he has a strong sense of entitlement, grandiosity and a belief that rules don't apply to him in the same way in which they apply to others. His infidelity, excessive drug use (including cocaine, methylamphetamine and steroid use) and persistent driving offences are reflective of these personality features, combined with a degree of social immaturity and a propensity for risk taking behaviour. To be clear, he doesn't have a flagrant disregard for the law, his indifference is grounded in his narcissistic personality style and the poor insight and egocentric worldview that defines this personality style."
The first part of this passage may be accepted; the proposition that the offender does not have "a flagrant disregard for the law", in the respects noted, cannot be accepted. The fact that there may be a psychological explanation for his attitude confirms the existence of the attitude, rather than denying it.
After setting out this passage from the report, the sentencing judge said, "I accept, in broad terms, the opinion of the psychologist." [11] If, by that, the judge intended to dismiss the possibility that the offender had a flagrant disregard for the law, his approach was misguided. That such may have been the intention is supported by an earlier observation that Ms Dombrowski "seems to have, to an extent, minimised his previous record but that is not of great moment." [12] Ms Dombrowski's report indicated that she had before her both the offender's criminal history and traffic record in both New South Wales and Queensland. The dismissive summary of these records [13] was of considerable moment, although it is fair to say that the sentencing judge discussed the record in detail. [14] What is unclear is the extent to which it was reflected in the sentence. In response to the offender's submissions that the judge should not take the driving record into account as an aggravating circumstance of the offence, the judge stated: [15] "I accept her submission but his driving record is so poor that, in my view, it will aggravate the penalty I impose but not aggravate the circumstances of the offence."

[8]

(d) personal circumstances

It is clear that the sentencing judge saw the offender as an energetic and effective businessman until he succumbed to his drug use, noting his "previous strong work history." [16] However, that history was some time in the past. Referring to his 18 months of imprisonment, the offender said in his evidence that "I've had the first 18 months of my life in the last 20 years", conceding 20 years of drug taking.
The conduct of the offender subsequent to the collision is, and was treated by the sentencing judge as, an important consideration. It was directly relevant to an assessment of whether the offender was remorseful, whether he had insight into this behaviour and whether he had prospects of rehabilitation. The judge dealt with those issues in the following way: [17] "From 2014 until the offence in 2016, he was living in unstable accommodation. He acknowledged that he pleaded not guilty originally to the offence. He now accepted that he was the driver and that he had lied to police. He wants to remain clear of drugs and get back his good work ethic and go back into business. I thought the offender gave his evidence in a straightforward fashion. He was asked as to whether he was remorseful. He said that he was 'extremely apologetic'; he wished the event had not occurred. I accept that he is regretful for what occurred. He has obviously been a late convert to the concept of remorse. I do not intend to give him a discount for remorse, having regard to all of the conduct that he engaged in when he was seeking to mislead and obfuscate in regards to the police investigation. I thought he was seeking to be frank with the Court, however, about his ceasing drug taking and his hopes for the future. My impression of him in the witness box [is] that he was a man of capacity."
With respect to rehabilitation, the judge reasoned as follows: [18] "It is urged upon me that the offender is unlikely to reoffend. I cannot be satisfied of that because I do not know whether the offender will adhere to his determination not to take illicit drugs and, in particular, ice. If he continues to abstain from illicit drugs, he could be said to be unlikely to reoffend, on the balance of probabilities, but if he picks up illicit drugs, his life will spiral out of control again in my view. Again, it is urged upon me that he has good prospects of rehabilitation. He does have good prospects of rehabilitation, again guarded by whether he resumes his previous many years of taking illicit drugs. As regards to remorse, I thought the offender did express regret. There was an element, I thought, of saying what the offender would expect the Court wanted to hear. As I have said, I cannot put out of my mind the deceitful way in which he sought to absolve himself from responsibility, for more than a year after the offence, by attributing the driving of the vehicle to others."
The offender was 42 years of age at the time of the offence. His first traffic offence was at age 17; his significant drug taking appears to have commenced in his mid-20s. The fact that he continued to fabricate a story as to whether he was driving at the time of the offence more than a year later, when he returned to New South Wales after serving sentences in Queensland, must, as the trial judge noted, give pause before predicting prospects of rehabilitation.
With respect to remorse, Ms Dombrowski noted that "[h]e expressed regret for his offending behaviour but he lacked insight into the dynamics that underpin his offending behaviour (see paragraph 19 below)."
It is not entirely clear where the explanation comes, as there was no par 19 in her report. However, the intention may have been to refer to the following paragraph ( that is, 17) which has been set out above and explained his behaviour by reference to a "poorly developed personality" and a "narcissistic personality style". The psychologist expressed the need for long term treatment and monitoring to support his rehabilitation. [19] However, the report did not specify what kind of treatment was proposed, except to say that he may benefit from "a course of motivational interviewing as a precursor to any intervention to build his insight and raise his internal motivation to effectively engage with treatment."
The evidence before the sentencing judge did not provide substantial support for a strong case in mitigation based on the offender's personal characteristics. It demonstrated that the offender was a man with significant capacities for business activity, who had performed well whilst in prison and when not taking drugs. There was no unqualified finding of insight or remorse.

[10]

(f) finding of special circumstances

The trial judge found that there were "special circumstances" sufficient to justify a variation in the statutory ratio of the non-parole period to the additional term, pursuant to s 44 of the Sentencing Procedure Act. The effect of the finding was to reduce the non-parole period from 2 years 9 months to 2 years 3 months. The Director noted, correctly, that no reasons had been given to support the finding. [21] The Director then noted that it may be appropriate to have regard to the matters relied on by counsel for the offender to explain the finding. Those matters, identified in written submissions, were: "(a) Lengthy custodial penalty; (b) Hardship to others & the conditions of custody for the respondent given his age and personal characteristics; (c) First significant period of time in custody; (d) Prospects of rehabilitation are high."
This was not the offender's first period in custody; nor was the proposed non-parole period of 2 years 9 months necessarily a period which, by itself, would attract a finding of special circumstances. There was no explicit evidence of hardship to the respondent as a result of his age and "personal characteristics". Although it was said that his incarceration would involve hardship to others, his drug taking had led to separation from his wife some five years earlier and the fact that, as he told the trial judge, he had been spending $8,000 per week on drugs, an outlay which he was forced to cover by illegal activity, does not allow an inference that he provided significant financial support to his family. It could not be said that any "exceptional" hardship to his family was established. [22] The proposition that prospects of rehabilitation were high was, understandably, not accepted by the trial judge.
In this Court, counsel for the offender reiterated those grounds, noting that the prosecutor had not made submissions with respect to such a finding. She added, perhaps correctly, that the trial judge had taken into account the period of imprisonment served in Queensland as a basis for reducing the non-parole period. For the offences related to the offending on 3 September 2016 the offender received a sentence with a non-parole period of 5 months and a parole release date of 25 August 2017. That would not account for the full extent of the reduction in the non-parole period for special circumstances.

[11]

Director's appeal

The foregoing demonstrates that the objective seriousness of the offender's conduct was in the high range: (i) he was not permitted by law to drive; (ii) he was not physically fit to drive; (iii) his purpose in driving was to move stolen goods; (iv) he used a vehicle with false plates; (v) the intended trip was 500 kilometres, of which he had completed some 200 kilometres at the time of the accident; and (vi) a large number of innocent road users were put at risk of death or serious injury by his conduct.
Secondly, his conduct over the days immediately prior to the accident demonstrated a lack of care for his own safety and the safety of others, and a flagrant disregard for the law. His history of drug taking and traffic offences demonstrated that this had been a feature of his attitude and behaviour for more than 20 years.
Thirdly, despite his obvious business abilities, there was nothing in his personal circumstances which provided an effective counterweight to the years of blatant disregard for the law and the safety of others. His claim to remorse was ambivalent at best and demonstrated no clear insight into his personality or behaviour. Inevitably, his prospects of rehabilitation were guarded. He is not a young man (now being in his mid-forties) and was entitled to no leniency either by way of his prior record, immaturity or subsequent conduct. His ability to regain and maintain a meaningful life will depend upon his willingness to abjure drug taking when released. There was no adequate basis for the finding of special circumstances. Even with a lengthier custodial penalty, such a finding would be unwarranted. There is no evidence of particular hardship to himself as a result of the conditions of his custody, nor exceptional hardship to family members resulting from his incarceration.
As the Director submitted, special circumstances should not reduce the period of mandatory custody below that which the seriousness of the offending requires. [23] Error is established if the non-parole period is itself manifestly inadequate. [24]
For these reasons, the sentence imposed and the non-parole period were manifestly inadequate. A starting point below 50% of the maximum penalty did not reflect the objective severity of the offending, viewed in the light of the long established and blatant disregard by the offender of laws relating to driving (both licencing and road regulation) and drug taking. An appropriate starting point was 6 years.
Allowing for a discount for the plea of 13-14%, the resulting sentence period would be 62 months, or 5 years 2 months. There should be no finding of special circumstances. Accordingly, the appropriate non-parole period would be 3 years 10 months with an additional term of 16 months.
The sentence should date from 25 September 2017, as provided by the sentencing judge. The offender would first be eligible for parole on 24 July 2021. The additional term would expire on 24 November 2022.

[12]

Exercise of discretion

In the light of the foregoing conclusions, it is necessary for the Court to determine whether to exercise the discretion to intervene under s 5D of the Criminal Appeal Act.
The offender proposed that, in the event that the appeal were upheld, the Court should not intervene, based on the following considerations: 1. the offence having been committed more than 2.5 years ago; 2. the offender's behaviour in custody; 3. the offender's strong subjective case and support from his family and others in the community, and 4. the sentence was not so manifestly inadequate as to warrant intervention.
To these potentially relevant factors should be added the further consideration that the offender has served a significant proportion of his non-parole period and would be eligible for parole in 6 months if the Court did not intervene.
So far as the personal considerations are concerned, the important countervailing factors are (i) the long and unrelenting history of traffic offences; (ii) the high moral culpability attending his driving immediately prior to the collision; and (iii) the unwarranted leniency of the sentence. The Court may also take note of the fact that he has been serving his sentence, since November 2018, in the knowledge that the appeal was on foot. That is a consequence of the prompt notice given by the Director; there has been no delay on the part of the Director in giving notice and complying with the Court's timetable in fixing the matter for hearing.
The determinative factor, however, is the public interest in achieving regularity in the administration of criminal justice, particularly with respect to sentencing for offences of dangerous driving causing death. As the number of cases coming to this Court involving appeals under s 52A of the Crimes Act demonstrates, there is an unfortunate degree of variability in sentencing practices. It may be accepted that these are difficult cases for a sentencing judge and may involve a range of differing considerations, both as to objective seriousness and moral culpability. However, the importance of establishing an appropriate degree of consistency warrants the intervention of the Court in the present case. The appeal should be allowed and the offender resentenced.

Director of Public Prosecutions v Andonakis

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