DPP v SAMADI

R v Whyte (2002) 55 NSWLR 252 ; [2002] NSWCCA 343 R v Jurisic (1998) 45 NSWLR 209 R v Errington [2005] NSWCCA 348 CASES CITED: R v Price [2004] NSWCCA 186 Gonzalez v R [2006] NSWCCA 4 House v The King (1936) 55 CLR 499 R v Bezan (2004) 147 A Crim R 430

PARTIES: Applicant - Regina Respondent - Mohammad Gul Samadi

COUNSEL: Crown - W Dawe QC Respondent - T Strickland SC

SOLICITORS: Crown - S Kavanagh Respondent - S O'Connor

IN THE COURT OF CRIMINAL APPEAL 2006/1588

MASON P SULLY J LATHAM J

22 SEPTEMBER 2006 DPP v MOHAMMAD GUL SAMADI Judgment 1 MASON P : I agree with Latham J 2 SULLY J : I agree with Latham J 3 LATHAM J : This is a Crown appeal, on the ground of manifest inadequacy, against the sentence imposed upon the respondent by Nicholson DCJ on 8 May 2006 for an offence of dangerous driving occasioning death. The respondent was found guilty on 7 December 2005 after a second trial, the first having resulted in a hung jury. The offence carries a maximum penalty of 10 years imprisonment. 4 The sentence imposed was a non parole period of six months, with the balance of term being 18 months. An offence of driving unaccompanied by authorised person was before his Honour pursuant to s. 166 of the Criminal Procedure Act 1986. No separate penalty was imposed for that offence, his Honour reaching the conclusion that it was subsumed in the sentence imposed on the count on indictment.

The Circumstances of the Offence 5 The facts related by his Honour in the course of his remarks on sentence are adopted for the purposes of this appeal. No issue is taken by the Crown with his Honour's account of the offence. The real gravamen of the Crown's complaint lies in his Honour's assessment of the offence as one of low moral culpability. The circumstances of the offence were summarised in these terms (at pars 12-18) :- Mohammad Gul Samadi was the registered owner of a 1991 white Toyota Corolla sedan, registration number ZBK836. He had been issued with a learner's permit on 17 December 2003. By 22 February 2004 he had clocked up only 17 hours of driving experience. He lived in Guildford Rd no more than six blocks west of O'Neill Street. ………………………….. At about 7:30 p.m. [on 22 February 2004] Samadi drove his sedan east in Guildford Road, turned left into O'Neill Street with a view to parking the car in front of a string of half a dozen or so shops. Samadi told police he had not driven the white Corolla sedan previously. He had no qualified driver oversighting or supervising his driving. Those shops were on Samadi's left hand side as he turned off Guildford Road. The footpath area outside those shops appears generous. I would estimate the footpath to be about 3 m or 10 feet wide. There is a concrete kerb of usual size separating the roadway from the footpath. On the footpath close to the curb were a number of obstacles. The first was a 2 m galvanised pipe with a sign saying "50 area". That sign was inches from a telegraph pole. ………………………………………………………………………. Three motor vehicles were parked on the left-hand side of O'Neill Street. They were situated so that there was still one parking spot available close to the telegraph pole nearest Guildford Road. The offender's case is that having turned left into O'Neill Street he intended to park in the vacant spot. ……………….. On the footpath were a number of young persons including the seven-year-old deceased who was riding his scooter. The Corolla navigated the left-hand turn into O'Neill Street, headed to the vacant spot, mounted the footpath heading directly towards the shops, scraped the front of a wall of one of the shops, struck the deceased who was fleeing on his scooter close to the wall, careered past two cars striking the rear of the third with such force that it drove the rear end of that car onto the road and the front end ended up mounted on the footpath facing towards the front of the shops. The other young persons were able to flee the oncoming vehicle in time. Onlookers heard the engine revving loudly and excessively. One witness saw the driver leaning over towards the passenger side just below the dashboard as though, it seems to me, he was expecting to collide with the wall. 6 His Honour went on to reject the account given by the respondent to police, namely that he had been shocked by the sound of the horn of a red Corolla behind him and had panicked to the extent that he was no longer relevantly in control of the vehicle. His Honour found that no such event has occurred, a finding which was implicit in the jury's verdict. 7 His Honour made further findings which are not challenged in this appeal. His Honour determined that the respondent had seen the vacant parking space immediately after having turned the corner and had decided to park there, at a time when he was travelling at an excessive speed for that purpose. As a result of a degree of oversteering and excessive speed, the respondent's vehicle mounted the footpath, confronting the respondent "with an emergency situation that he was ill equipped to handle. He reacted, but his reactions were unskilled and inappropriate. Instead of planting his foot on the brake, he planted it on the accelerator where it already was." (ROS par19)

The Objective Gravity of the Offence 8 When his Honour came to deal with the objective criminality of the offence, he rightly recognised that it had "an important impact on the overall sentencing outcome." (ROS par 21) His Honour referred to this Court's decision in R v Whyte (2002) 55 NSWLR 252 ; [2002] NSWCCA 343, in particular the "checklist" of factors relevant to the assessment of the objective criminality of such offences. His Honour then said (at pars 23-24) :- In this case the driving in a manner dangerous occurs at a point where Samadi tries to drive directly into the first vacant parking space rather than come to a stop parallel with the parked cars and thereafter reverse into an available space. In other words, the driving in a manner dangerous is triggered by a decision which was inappropriately made, and inappropriate for the circumstance. His decision to enter the space was made too late for him to do the manoeuvre without stopping first. His speed in entering the vacant space was excessive for that purpose. He mounted the footpath, his inexperience and inadequate skill level saw him reacting inappropriately by making incorrect choices with his right foot. He accelerated instead of braking. Once on the footpath he did not see the deceased in time to avoid him. It would appear he did not try to avoid him by steering his vehicle to the right, of course such a consequence would have seen him impact into another vehicle. As a consequence of the manner of his driving one person was killed and several others endangered. However while his speed was excessive for the purpose it was not a speed of great amount. (Italics not in original) 9 His Honour then referred to each of the aggravating factors enumerated at paragraphs 216 and 217 of Spigelman CJ's judgment in Whyte and concluded that of those factors, only unintentional erratic driving of short duration was present, that the length of the journey during which others were exposed to risk was something less than six blocks and that, in so far as failing to heed any warning was concerned, "there was no one warning him other than of course the fact that he was driving in a situation where he should not have been behind the wheel." His Honour noted that the respondent "must have known that fact." His Honour went on :- The death of a human being in circumstances where he was not acting dangerously , skylarking or intruding onto the road surface is a feature that I take into account. ……………………………………………………………………. Samadi's criminal conduct in the dangerous driving is aggravated by his decision to drive without a qualified driver sitting next to him, oversighting his driving when he was driving a car that he had never driven before, and in circumstances where his total driving experience was only 17 hours. Moreover, the condition upon which his learner's permit was issued was that he would have a qualified driver sitting next to him. While this is not a case of momentary inattention, nor is it a case of prolonged driving of a reckless or dangerous kind, the total period of dangerous driving amounted to something less than 50 m . Prior to his selection of the vacant parking space his speed had not been excessive, nor his manner of driving dangerous. ……………………………………………………………………….. This is a case more than momentary inattention but is far from a case where the moral culpability is described as high, such as in other cases that have come before this court on previous occasions. (ROS at pars 25-28; italics not in original) 10 It is clear from the above that his Honour assessed the objective gravity of the offence by reference to the respondent's driving at the point in time when the respondent decides to enter the parking space. His Honour then determines that the respondent was not "acting dangerously", albeit his dangerous driving was aggravated by the respondent's decision to drive unsupervised in circumstances where his driving experience was of a very low order. The Crown took issue with his Honour's finding that the respondent was not acting dangerously, as inconsistent with the gravamen of the offence. However, I am satisfied that a proper reading of his Honour's remarks in this respect disclose nothing more than an attempt to contrast the respondent's driving with deliberate "skylarking" in the course of driving a vehicle. Unfortunately, there are a number of other aspects of his Honour's remarks that I find confusing and difficult to reconcile. 11 The recognition of the short duration of the respondent's driving, during which others were exposed to risk, as "something less than six blocks" appears to me to be inconsistent with a finding that the dangerous driving, for the purposes of assessing the objective gravity of the offence, was the respondent's management of the vehicle immediately prior to entering the parking space. Moreover, his Honour accepts that the respondent's dangerous driving was aggravated by the fact that he chose to drive unsupervised, when required by law to be accompanied by a licensed driver, and his Honour had earlier referred to the aggravating features set out in Whyte and had adverted to the respondent flouting the law, in terms of ignoring any relevant warning (see aggravating factor (viii) at par 216 of Whyte). Such an observation is applicable to the whole of the respondent's driving, from the point in time when he enters the vehicle, knowing that he is unsupervised and unqualified to drive, up to and including the impact with the victim of the offence. 12 An assessment of the extent of the moral culpability of the respondent depends upon the identification of those aspects of the respondent's conduct and management of the vehicle that constitute the relevant dangerous driving. The Crown contends that the sentencing exercise fundamentally miscarried because the sentencing judge effectively limited the dangerous driving to an artificially narrow timeframe. The respondent contends that his Honour's remarks disclose no error and that appropriate regard was had to the relevant aggravating feature, namely the decision to drive the vehicle whilst unsupervised. Before returning to this issue, it is appropriate to be reminded of this Court's decision in Whyte.

The Guideline Judgment in Whyte 13 The departure point for the Chief Justice's consideration of a guideline in Whyte was the guideline in R v Jurisic (1998) 45 NSWLR 209. The Chief Justice observed (at pars 204-205) that :- A frequently recurring case of an offence under s 52A has the following characteristics. (i) Young offender (ii) Of good character with no or limited prior convictions (iii) Death or permanent injury to a single person (iv) The victim is a stranger (v) No or limited injury to the driver or the driver's intimates (vi) Genuine remorse (vi) Plea of guilty of limited utilitarian value As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, in determining the appropriateness of full-time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence. 14 As the Chief Justice went on to explain, a high degree of moral culpability is exhibited by an offender who has abandoned responsibility for his or her own conduct (par 223). The presence of an aggravating factor involving the conduct of the offender may indicate that an offender has abandoned responsibility for his or her own conduct and will generally warrant that conclusion where the aggravating factor is present to a material degree. It is clear that an individual aggravating factor is capable of indicating a high degree of moral culpability, although that conclusion is more likely where aggravating factors exist in combination. According to the Chief Justice (at par 228), "one way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion." 15 The aggravating factors that involve the conduct of the offender are (at par 216 and 217) :- (iii) degree of speed. (iv) the degree of intoxication or of substance abuse. (v) erratic or aggressive driving. (vi) competitive driving or showing off. (vii) length of the journey during which others were exposed to risk. (viii) ignoring of warnings. (ix) escaping police pursuit. (x) degree of sleep deprivation. (xi) failing to stop. 16 The promulgation of the guideline was in the following terms, namely that where the offender's moral culpability is high, a full-time custodial head sentence of less than three years in the case of death would not generally be appropriate. However, in the case of a low level of moral culpability, a lower sentence will be appropriate. It should also be noted that the guideline was predicated on a plea of guilty, so that the proposed sentencing range assumes a 10% discount of the sentences that might otherwise apply. 17 Since Whyte, a number of decisions of this Court have explored the above formulation. In R v Errington [2005] NSWCCA 348, Mason P commented that :- There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment [of responsibility]. It is not required that cases be assigned to one or other of two pigeon holes marked respectively "momentary inattention or misjudgment" and "abandoned responsibility" . In R v Khatter [2000] NSWCCA 32, Simpson J (dissenting) held (at [31]: Offences under s52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.

Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal. 18 In R v Price [2004] NSWCCA 186, Simpson and Howie JJ (at par 37) said:- It is clear that the Chief Justice in both Jurisic (1998) 45 NSWLR 209 and Whyte was not attempting to identify all the matters that might impact upon the assessment of the moral culpability of an offender in any particular case. For example, the type of vehicle being driven might be an aggravating factor that goes to the moral culpability or the abandonment of responsibility of the driver in a particular case. 19 To similar effect is the following passage from the judgment of Howie J in Gonzalez v R [2006] NSWCCA 4 (at par 13) :- There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte . However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis [2005] NSWCCA 274 at [25]. The list of factors is illustrative only and not definitive: Errington at [36]. The Moral Culpability of the Respondent 20 His Honour went no further than determining that the circumstances of the offence disclosed "more than momentary inattention", and that the respondent's moral culpability was "far from …high". Whilst his Honour at no stage in his remarks on sentence expressly found that the respondent's moral culpability was low, it seems to me to be an inescapable conclusion that he proceeded to sentence on that basis. Indeed, the respondent's counsel submitted that his Honour had so found and that it was a justifiable finding. Herein lies the Crown's principal complaint, namely that such a finding constitutes patent error in the circumstances of the case. The Crown also relies upon latent error, that is, the manifest inadequacy of the sentence ultimately imposed. 21 I am of the view that patent error has been demonstrated on two bases. His Honour did not make a finding of where, on the scale of criminality represented by the offence of dangerous driving, the respondent's culpability lay. At most, his Honour found that it was significantly below the upper end of the scale, yet not at the very lowest point in the scale. Within those parameters lies a considerable continuum of criminality. As the decisions of this Court demonstrate, it is not correct to assert that an offender's moral culpability must be low, once the circumstances of the offence do not warrant the description "abandonment of responsibility" or do not justify a finding of high moral culpability. It appears to me that his Honour has adopted that approach and has thus effectively failed to properly assess the objective gravity of the offence.

22 Secondly, his Honour has erred in sentencing the respondent on the basis that his moral culpability was at close to the lowest level. The respondent's moral culpability was, in my view, significantly higher than his Honour's remarks suggest, for the following reasons.

23 There were a number of features of the respondent's conduct in the commission of the instant offence that point to an abandonment of responsibility on his part. The respondent's deliberate decision to drive a vehicle, with which he was not at all familiar, in contravention of the law that required the supervision of an experienced licensed driver, and in circumstances where he had very little driving experience, was contumacious conduct in and of itself. The respondent's inexperience, ignorance of the vehicle's mechanisms, and unsupervised driving combined to render the whole of the respondent's journey relevantly dangerous. That danger was tragically manifested when the respondent impulsively entered a parking space at an excessive speed. Rather than attempt to remain in control of the vehicle, the evidence indicated that the respondent abandoned control of the vehicle shortly before it struck the hapless child. 24 The objective indicators of an abandonment of responsibility by the respondent were acknowledged by his Honour, yet seemingly a contrary finding was made. Whilst the question of whether an offender has abandoned responsibility for his or her own conduct "involves an element of judgment on which sentencing judges could reasonably differ" (Whyte at par 220), this was not a case where a finding of low moral culpability was reasonably open. This constitutes error in the exercise of the sentencing discretion : House v The King (1936) 55 CLR 499.

The Respondent's Subjective Case 25 His Honour dealt comprehensively with the respondent's subjective circumstances. The respondent was described as a married man, 31 years of age with two sons aged about 10 and 11 years. The respondent is a native of Afghanistan, of the Muslim faith, albeit he no longer attends the mosque. He left Afghanistan in 1997 and travelled to Iran where he worked as a furniture painter for two years. He sent money to support his family, including his parents. His wife, children and parents now reside in Pakistan. The respondent's older brother was killed in the civil war in Afghanistan in 1993, a victim of tribal warfare between the Hazara people, the respondent's tribe, and the Mazari people. 26 In 1999 the respondent travelled to Malaysia, then to Indonesia. He arrived in Australia in August 2000 on a refugee boat and was accordingly detained in an immigration detention centre. He lodged a protection visa application which was granted and which entitles the respondent to work and receive social security and medical benefits pending final determination of his status. His Honour noted that the respondent's immigration status has been complicated by his conviction for the offence and that the respondent was under a significant level of stress for that reason. At the time of the offence, the respondent was employed as a painter and was highly valued by his employer. 27 The respondent's physical health is unremarkable, however his mental health was described by his Honour as "more precarious". A number of expert reports attested to the respondent's significant post-traumatic stress disorder and major depression disorder with anxiety, arising out of the treatment he received in the course of his life in Afghanistan and Pakistan (including significant oppression by the Taliban), and the deprivations that he suffered in the course of his journey to Australia. The respondent's psychiatric condition has, not surprisingly, deteriorated as a result of the commission of the offence. The respondent has been under the care of an organisation for the treatment and rehabilitation of torture and trauma survivors since January 2005 and also receives assistance from a network of persons involved in refugee support, including a member of the Burwood/Croydon Uniting Church. He is a Dari speaker and is therefore socially isolated when not in the company of other similar Afghanis. 28 A Pre-Sentence Report and a letter written by the respondent provided cogent evidence of the respondent's genuine remorse and contrition. The respondent had no prior criminal convictions and his prospects of rehabilitation were assessed by his Honour as favourable. His Honour acknowledged the importance of the principle of general deterrence in the sentencing exercise, but found that the sentence need not reflect personal deterrence in the light of these favourable subjective factors. 29 A further, somewhat curious, finding by his Honour that there had been a delay of two years between the commission of the offence and the date for sentence was factored into the sentencing exercise (at par 47 ROS). The respondent's senior counsel on the hearing of the appeal conceded that delay was not a significant factor, a concession sensibly made in the light of the necessity to assess the respondent on the issue of fitness to plead and the occurrence of two trials in a busy court complex at Parramatta.

Manifest Inadequacy 30 Having found that nothing less than a full-time custodial sentence of 18 months was capable of reflecting the respondent's criminality, the sentencing judge determined to mitigate "to the greatest extent" the sentence of imprisonment to be imposed, by a finding of special circumstances that resulted in the imposition of a non parole period of six months (ROS at par 57). 31 Given that the respondent contested two trials and did not therefore stand to be sentenced according to the "typical" case identified by the Chief Justice in Jurisic, a head sentence of 18 months for an offence displaying abandonment of responsibility by the respondent, allowing for the respondent's compelling subjective circumstances, is manifestly inadequate. In particular, a non parole period of six months is simply incapable of meeting the requirements of punishment, retribution and general deterrence. However, no issue is taken with the finding of special circumstances. 32 The principles applicable to Crown appeals are well settled and need no repetition : see R v Bezan (2004) 147 A Crim R 430. The respondent drew the Court's attention to the delay of two months between the imposition of sentence on 8 May 2006 and the lodging of the Crown appeal on 6 July 2006. The respondent was informed of the Crown's intention to appeal after the latter date. It was forcefully submitted that, whilst that delay may not appear excessive in the usual course of events, it is material to the exercise of this Court's discretion to intervene, where the respondent's non parole period will expire within two months of the hearing of the appeal. 33 A delay of that order is regrettable in all the circumstances of the matter. The absence of a transcript of the remarks on sentence cannot wholly explain a failure to inform the respondent of the Director's intention to lodge an appeal, particularly where all the salient features of the respondent's case on sentence were contained within a number of reports and the circumstances of the offence fell within a reasonably narrow compass. Prompt action on the part of the Director's Office was particularly important in the light of the respondent's psychiatric condition and the exacerbation of that condition arising out of the commission of the offence, which was not the subject of any dispute. However, I consider a delay of that order as insufficient to engage the Court's discretion not to intervene. 34 The Court received three affidavits on the usual basis should the Court come to consider re-sentencing. David Francis, an advocate and pastoral carer with the New South Wales Ecumenical Council of the Uniting Church, first met the respondent in early 2004 following the commission of the offence. Mr Francis and his wife have visited the respondent at Silverwater on a weekly basis. They have telephone contact with the respondent on an almost daily basis. Mr Francis' affidavit establishes that the respondent appears fragile, has lost a considerable amount of weight and has become despondent and withdrawn. The respondent's anxiety levels have increased since notified of the Crown appeal. 35 A further affidavit annexing a report under the hand of Dr Olav Nielssen dated 31 August 2006 provides further information relevant to the respondent's present psychiatric state. Dr Nielssen confirms earlier diagnoses of depressive illness and features of a post traumatic stress disorder. Dr Nielssen reports that the respondent has not seen a psychiatrist, most probably because of his classification within the prison system, and that he has not been able to communicate with custodial and other staff. The respondent has seen a general practitioner on one occasion but was not referred for further assessment or counselling or prescribed antidepressant medication. 36 An affidavit from the respondent dated 5 September 2006 confirms that the respondent's English skills are very basic and that he does not speak to other prisoners. The respondent has had no access to literature, there being nothing available in the prison library in the respondent's language, and despite the respondent's request to undertake an English course, nothing has been made available to him. The respondent reports that he has seen a psychiatrist once since coming into custody but did not have the benefit of an interpreter (apparently a reference to the interview with Dr Nielssen). The respondent has requested that he see a psychiatrist with an interpreter. 37 There is no doubt that the respondent is experiencing considerable hardship in custody. His psychological state appears fragile, both as a result of his social isolation and the uncertainty surrounding his future in this country arising out of the commission of the offence. It was for this reason that, when reserving judgment, the Court directed the Registrar to contact the Department informing it of the Court's recommendation that urgent attention be given to providing the appellant with medical assistance in this regard. 38 I confess to some difficulty in the resolution of the appeal. Despite those misgivings, I am of the view that the Court must intervene to correct a wholly inadequate sentence for an offence of considerable objective gravity. I am minded to intervene to increase the respondent's head sentence to one of two and a half years with a non parole period of 12 months. 39 Accordingly, I propose the following orders :- 1. Appeal allowed.

2. Quash the sentence imposed on 8 May 2006. 3. In lieu, a non parole period of 12 months is imposed, to date from 8 May 2006, expiring 7 May 2007, with a balance of term of 18 months, expiring 7 November 2008. The respondent is to be released at the expiration of the non parole period. **********

26/09/2006 - Incorrect title - Paragraph(s) coversheet 19/07/2007 - Typographical error in Order No. 3 - Should read "expiring 7 November 2008" (not 2007) - Paragraph(s) Paragraph 39, Order No. 3

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