Duncan v R

Court of Criminal Appeal (NSW)|2012-04-23|Before: Basten JA, Blanch J, Hall J

H K Dhanji SC - Applicant N F Noman - Respondent Solicitors:

Legal Aid NSW - Appellant S Kavenagh - Solicitor for Public Prosecutions - Respondent File Number(s): CCA 2010/78793 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-02-18 00:00:00 Before: North DCJ File Number(s): DC 2010/78793

Judgment 1BASTEN JA: In the early hours of the morning, on 7 October 2009, there was an horrific motor vehicle accident when a car driven by the applicant left the road at high speed while taking a bend on Duffie Drive, near Cessnock. The applicant survived, with relatively minor injuries. Of the other five young people in the car, two were killed and three others suffered serious injury. 2In respect of the two deaths, the applicant was charged with manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW). In respect of the three injured passengers, she was charged with dangerous driving occasioning grievous bodily harm, in circumstances of aggravation, namely driving at a speed which exceeded the applicable speed limit by more than 45 kilometres per hour. 3The applicant pleaded guilty to each offence and appeared before North DCJ for sentence on 11 February 2011. She was taken into custody, bail refused, at the termination of the hearing; judgment was delivered a week later on 18 February 2011. 4On each of the three counts of dangerous driving, the applicant was sentenced to a fixed term of three years imprisonment, the first term commencing on 11 February 2011. Each of the subsequent sentences was accumulated by a period of six months on the previous sentence. 5In respect of the two offences of manslaughter, the applicant was sentenced on each to a non-parole period of five years imprisonment with a further term of fours years and six months, giving a total sentence on each count of nine years six months. The first such term was accumulated on the third sentence for dangerous driving by a period of 12 months. The effect of that accumulation, together with the accumulations of six months on each of the earlier counts, resulted in a period of two years imprisonment attributable solely to the three counts of dangerous driving. The second manslaughter sentence was also accumulated by a period of 12 months on the first. Accordingly, it commenced three years after the commencement of custody, on 11 February 2014. The total period of mandatory custody, prior to eligibility for parole was thus eight years. The effective balance of term was the additional four years six months in respect of the second manslaughter sentence, giving a total period of 12 years six months imprisonment. An automatic disqualification from holding a driver's licence for a period of three years operated and was not extended. 6The applicant seeks leave to appeal against the sentences on three grounds, namely: (1) failing to give effect to findings of contrition and remorse; (2) failing to take account of 'extra-curial punishment', and (3) imposing a manifestly excessive sentence. 7For the reasons given below, there should be a grant of leave to appeal, but the appeal must be dismissed.

Background to offences 8A detailed statement of facts was tendered at the hearing on sentence. Included with the tendered material was a signed statement of the applicant dated 22 December 2009. In it she asserted that the accident was caused by a mob of kangaroo on the side of the road, one of which she swerved to avoid. Much of the statement was untruthful. 9The motor vehicle involved in the accident was owned by the applicant but was unregistered and uninsured. The vehicle was a silver-coloured Mitsubishi Verada sedan with a large pink sticker along the top of the rear window reading "Crazy". The car had a sports exhaust which made a distinctive, loud noise. 10Of the six persons in the car at the time of the accident, the oldest was the applicant, being 36 years of age. The only other adult was Jake Wyborn who was 21 years of age. There appears to have been a party at the applicant's home on the evening before the accident. He lived at Aberdare and, on the evening in question, was collected by the applicant in her car in order to assist in dealing with some angry teenagers. Other residents in the area called the police, two of whom attended at the applicant's house, including Senior Constable Heymans, who was later to attend at the scene of the accident. 11Although the applicant and others had been drinking during the evening, the evidence of the clinical forensic pharmacologist who analysed the blood sample taken from the applicant, was unable to conclude that her capacity to drive would have been impaired by the drugs detected. 12According to the statement of facts, at about 3am Mr Wyborn realised that he had left his mobile telephone and wallet at his home and the applicant proposed that they go and get them. The statement continued (par 24): "The offender and Jake Wyborn went out to the offender's car. Although Jake Wyborn's driving licence had been previously suspended, he got into the driver's seat. The offender was heard by [KD] to comment to Jake Wyborn about the fact that he did not have a licence. Notwithstanding, the offender took the front passenger seat." 13Four young persons also got into the car, two, KD, who was the applicant's step-daughter, and BP, a friend of one of the applicant's children, were both aged 16. The others were younger. Cassandra Ford was aged 15. She had left her parents' home three months earlier following a family conflict, the applicant having taken her into her home and offered her a room, assuring her parents that she (the applicant) would look after their daughter: statement, par 10. She was killed in the crash. 14The youngest person in the car was Jayde Duncan, aged 13 years, a nephew of the applicant by marriage. He had been dropped at the applicant's home on the previous evening and had intended to stay the night. He was killed in the crash. Why any of the young people were in the car in the early hours of the morning is unclear. No explanation was given by the applicant at any stage. 15The story of the events of the fateful drive were set out in the statement of facts in the following passages: "26. During the drive to his Aberdare home, Jake Wyborn was driving at high speeds. On the stretch of road after turning onto rural Duffie Drive, Mr Wyborn accelerated. The offender commented on his driving, taunting him, 'You can't get to two hundred', and, 'You ain't got no balls [...] you won't get there'. Mr Wyborn responded, 'You watch'. 27. Sitting in the back seat, [BP] could see the car's speedometer, and saw that the needle moved just past the indicator for 200 kilometres per hour, to about 205 kilometres per hour. 28. As the car approached the Aberdare town ship, and before it reached the bend at which the fatal crash was soon to occur, Mr Wyborn slowed down. He arrived at his house, and went to get his things. Being unable to gain access to the house, which had been locked up for the night by his parents, who were asleep, Mr Wyborn returned to the car. 29. The offender, who had moved into the driver's seat, suggested that he return to her house and stay for the remainder of the night. Jake Wyborn then got into the front passenger seat. The offender drove off, heading in a northerly direction out of the town and back onto Duffie Drive. 30. Duffie Drive is in a rural area, and carries a single lane for traffic travelling in each direction, being northbound and southbound. The edge of the road is bitumen, which gives way to dirt, vegetation, and then bushland. The speed limit for the relevant section of Duffie Drive is 100 kilometres per hour. 31. At this time, the weather was fine and the road way was dry, there having been no rain. It was fully dark, with the sunrise not due until 6.24am in the vicinity of Duffie Drive. 32. The offender was driving at a very fast pace. [BP] heard her tell Jake Wyborn, 'I'm gunna beat your speed', or something similar. He watched the speedometer from the rear seat as the indicator needle moved past 195 on the dial, and advanced towards the marker for 210 kilometres per hour. 33. The car was moving so fast as it entered Duffie Drive, [KD] took hold of a handle above a rear passenger door to steady herself. She was frightened. [BP] also reached up to the handle and grabbed it. Like [BP], [KD] could see the vehicle's speedometer from where she sat in the back seat. She looked at the dash as the car sped along the roadway, and saw that the speedometer was showing a speed of 190 or 195 kilometres per hour, with the needle continuing to climb. The offender told those in the car to be quiet so that she could concentrate. [KD] noticed a look of concentration on the offender's face as the speed of the vehicle increased. 34. As the car approached a sweeping left hand bend on Duffie Drive, [BP] realised that the offender would not be able to negotiate the curve in the road at the speed at which she was travelling. He called out to her to slow down, and to stop. He heard others in the car call similar warnings. 35. Seconds later the car entered the bend at high speed. At the time, there were no other cars on the road, and no other objects or animals in the area. Neither [BP] nor [KD] saw kangaroos in the vicinity, and kangaroos are not known to frequent the area. 36. [BP] observed that the offender did not reduce speed or apply the car's brakes as she approached and entered the bend. On entering the curve, the offender could not negotiate the curve and the vehicle left the roadway at high speed. It initially passed over onto the wrong side of the road, leaving the single carriageway on the eastern side of the road. The vehicle travelled some 40 to 50 metres into the adjacent bushland, where it was involved in a series of impacts with a number of trees, causing the sedan to shear in half. The occupants of the rear seat were ejected. Both Jake Wyborn and the offender, in the front of the vehicle, remained in their seats and were able to extract themselves from the wreckage."

Ground 1: finding - remorse 16The applicant gave evidence before the sentencing judge in which she acknowledged the truth of the factual accounts set out in the statement, the fact that she faced a lengthy gaol sentence and her belief that she deserved severe punishment. She read a prepared statement to the Court addressed to the Court and to the families and friends of the persons who died or were injured in the crash. She sought to express "the amount of remorse and sorrow that I am feeling for all of you" and her "sincere condolences and apologies to all those lives who have been affected by my driving". She was not cross-examined. 17After setting out in full the short statement the applicant had read to the Court, his Honour stated that he was "prepared to accept that the offender is now truly remorseful", with emphasis on the present tense, noting that she had in the statement sent to the police on 4 January 2010 attempted to minimise her role in the accident. The sentencing judge also acknowledged that it must have been "very difficult to immediately acknowledge the stark nature of her true criminality". He concluded, at pp 25-26: "Therefore, although it has taken sometime for her to fully accept the enormity of her conduct she has clearly faced up to this by the way in which she gave her evidence and also by the fact that she was willing to plead guilty to two counts of manslaughter, as well as three counts of aggravated driving causing grievous bodily harm." 18After recounting the background, the trial judge noted, at p 29: "In this matter the offender was quite close to each of the victims. From her evidence before me and the statement she read out to Court ... I accept that she has a real sense of self-inflicted shame and guilt and this is probably exacerbated by her previous relationship with each of the young people in the car. I note that the facts here reveal gross moral culpability on behalf of the offender and therefore I am unable to attach too much weight to considerations of self punishment." 19The sentencing judge then referred to a passage in a judgment of this Court, which he attributed to Regina v Dhanhoa [2000] NSWCCA 257 but which was in fact extracted from the judgment of Smart AJ (Wood CJ at CL and Hislop J agreeing) in Regina v Koosmen [2004] NSWCCA 359; 42 MVR 123 at [32]. The sentencing judge cited the last sentence, but it is convenient to set out the whole of the paragraph: "Dhanhoa is authority for the proposition that the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self-punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability." 20The sentencing judge then noted that counsel had not submitted that treatment received since the accident amounted to "extra-curial punishment" but that such treatment, including publications on the internet and in the local newspapers, had helped to demonstrate to the applicant how serious the matters were. His Honour continued: "I do accept that she is now genuinely remorseful. Her counsel said that the Court should humanise, rather than demonise her, for the way that she reacted at first and for some time following the accident. The Crown did not oppose this and having heard her give evidence I do accept that she is now genuinely remorseful." 21His Honour further found that she was unlikely to re-offend and had excellent prospects of rehabilitation. He also recognised the difficulty which would be caused by her separation from her children whilst in custody. He stated that he had had regard to general and specific deterrence: p 30. 22The precise nature of the complaint in respect of how the sentencing judge dealt with the question of remorse was somewhat obscure. In written submissions, counsel for the applicant stated that the sentencing judge had "failed to bring these findings into account in the sentencing exercise": paragraph 3.4. However, as the submissions acknowledged, giving little weight to such elements in a case involving the consequences identified above, properly characterised as one of "gross moral culpability" was consistent with the principle stated in Koosmen. That statement was, in effect, challenged as being inconsistent with the principle acknowledged by the High Court in Neal v The Queen [1982] HCA 55; 149 CLR 305 at 315 that "[c]ontrition, repentance and remorse after the offence are mitigating factors, leading in a proper place to some, perhaps considerable, reduction of the normal sentence". Three responses are available in respect of this submission. 23First, the statement relied upon by the applicant was not that of the High Court but of one member of the Court, Murphy J. It was stated in broad terms and was not echoed by other members of the Court. Secondly, the offence in question was not one of gross moral culpability. Mr Neal was the Chairman of the Yarrabah Council. The victim of the offence was a white store manager living on the reserve. The offence was a common assault, involving spitting at the store manager. Comments made by a judge as to the significance of an apology to the store manager and his wife have no direct application in the present circumstances. Thirdly, the suggestion that this was a statement of general application is contradicted by the important qualification that it should "in a proper case" lead to a reduction in sentence. There is no inconsistency between those remarks and the approach adopted by this Court in relation to motor vehicle accidents causing death in Dhanhoa and Koosmen. 24Comments are required in respect of the submissions in support of ground 1. First, remorse and contrition, at least in so far as they affected the applicant's legal responsibility, were delayed. That led to a lengthy investigation before charges were laid. In effect, the police were required to reconstruct the circumstances of the crash in order to demonstrate that her first statement, made three months after the crash, with the assistance of solicitors, was untruthful. 25Secondly, it would have been almost inconceivable that a person of normal sensibility would not have felt remorse and contrition immediately and in a high degree. Absence of such a response would depend upon the person persuading herself of her own lies or having such gross insensitivity as to be, in effect, mentally unhinged. That was clearly not the case of the applicant in either respect. 26Thirdly, her role as the instigator of the high speed driving, not only by herself but by Mr Wyborn, her responsibility as an adult in charge of two children and two other young people, together with the blind stupidity of the driving itself, fully warrant the label of gross moral culpability. There were other incidental elements which supported that conclusion, including the fact that she knew the car was unregistered and uninsured, that Mr Wyborn had no driving licence and that others in the car had pleaded with her to slow down. 27Fourthly, there was a tendency in the submissions put on behalf of the applicant to gloss over the fact that her statement of remorse was belated. The first evidence of remorse appears to have been her pleas and acceptance of the statement of facts. There was no evidence to suggest that the applicant had previously attempted any form of apology or statement of remorse to the injured survivors or to the families of those who had died or been seriously injured. Her evidence gave no assistance in that regard.

Ground 2: extra-curial punishment 28The concept of extra-curial punishment as a mitigating factor in respect of a serious offence has been discussed in a number of decisions in this Court including, most recently, Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [85]-[97]. The cases appear to distinguish what may truly be described as extra-curial punishment which, as the sentencing judge noted, was not a concept relied upon in the present case by counsel for the applicant, and public humiliation and vilification, which the Court has held may be relevant, at least where it reaches such proportion as to have a physical or psychological effect on the offender: Kenny v R [2010] NSWCCA 6 at [49] (Howie J), discussed in a somewhat different context from the present in Einfeld at [98]-[101]. 29This was not a case in which the applicant suffered public humiliation or vilification as a person having a high profile in the community, but rather because of the enormity of her conduct and the fact that it had a wide impact within a small community. The fact of such a public response is less important for itself, rather than for its effect on the applicant. The sentencing judge took account of the psychologist's report prepared by Dr Katie Seidler, a clinical and forensic psychologist. Dr Seidler noted that she had symptoms of depressed mood, but also noted that she had been on an anti-depressant drug since mid-adolescence: paragraphs 44 and 45. She reported having attempted to take her life on four occasions, two preceding the crash and two thereafter. There were no symptoms of post-traumatic stress disorder: paragraph 47. The applicant was described as "tearful and upset in describing how she does not believe she will cope in prison and how she is scared of being the victim of assault in custody": paragraph 49. Reference was made in the same passage to her degree of upset at being separated from her children. Although noting that the applicant was suffering from "considerable emotional distress and psychological disturbance across almost all domains of functioning" there was no clear identification of a psychological disorder of a moderate to severe kind, or of one which could readily be traced to the crash itself. 30It is also important, if significant weight were to be given to the public humiliation of the applicant, that the response of the community be understood in context. The sentencing judge accepted that, over the 14 months since the accident, she had been subjected to "vitriolic attacks, verbally and on Facebook and a wealth of adverse material in print, on radio and TV": p 25. So much may be accepted, although the content of the material is not before this Court. To evaluate the attacks and her response, content and context would be important. For example, little weight might be given to such material if it were a response to her own unwillingness to accept full moral and legal responsibility for her conduct, as appears to have been the case, at least in her dealings with the police, for several months after the crash. As neither content nor context are known to this Court, no further analysis is possible. 31The personal circumstances of the applicant were considered in detail by the sentencing judge. There could be no complaint that they were not taken into account, as their careful recitation demonstrates that they were. There is no demonstration of any specific error on the part of the sentencing judge in this regard.

Ground 3: manifestly excessive sentence 32Ultimately, the gravamen of the applicant's challenge to her "sentence" was based on the suggestion of manifest excess. The written submissions referred on a number of occasions to "the sentence imposed" or words to that effect suggesting that it was not the individual sentences which were challenged, but the degree of accumulation, by reference to the principle of totality. Reference was made, for example, to a "total sentence" of 12 years and six months which, after allowance for a 25% discount for the plea of guilty, meant that "the notional starting point is close to 17 years" and that the notional starting point for the total non-parole period was close to 11 years: submissions, par 6.3. However, that approach is misconceived: either there is a challenge to the length of the individual sentences or to the degree of accumulation. 33In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 this Court, constituted by Spigelman CJ, Mason P, Barr, Bell and McClellan JJ, concluded that in a typical case of an offence under s 52A(1) and (3), "[w]here the offender's moral culpability is high, a full time custodial head sentence of less than ... two years (in the case of grievous bodily harm) would not generally be appropriate": at [229]. The offence of dangerous driving occasioning grievous bodily harm under s 52A(3) carried a maximum penalty of seven years imprisonment. The offence with which the applicant was charged, being aggravated dangerous driving occasioning grievous bodily harm pursuant to s 52A(4), carries a maximum penalty of 11 years. As the Court noted in Whyte, an appropriate increment is required to reflect the higher penalty in respect of the aggravated version of the offence: at [231]. 34The sentencing judge, correctly, made reference to the guideline judgment and the need for an appropriate increment: reasons at p 20. There can be no criticism of the three year fixed term sentences imposed in respect of each offence under s 52A. 35Senior counsel for the applicant did, however, challenge the severity of the sentences for the two manslaughter charges. In fixing the sentences, the judge referred to the decision of this Court in R v Borkowski [2009] NSWCCA 102; 52 MVR 528. That case involved three vehicles racing in traffic along the Great Western Highway at St Marys. The car driven by Mr Borkowski collided with another vehicle, killing both occupants. The offender was charged with manslaughter and sentenced to a minimum period of mandatory custody of six years with a balance of term of three years. In respect of one offence, a fixed term of imprisonment of four years was imposed, the sentence in respect of the other death involving a similar non-parole period with a balance of term of three years; the second sentence commenced two years into the fixed term of the first sentence. The Director of Public Prosecutions appealed against the inadequacy of the sentence. 36For reasons which are not presently relevant, the appeal was dismissed. However, in considering the adequacy of the sentences, Howie J (with whom McClellan CJ at CL and Simpson J agreed) stated: "[65] Each of the sentences imposed upon the respondent was itself manifestly inadequate. A sentence of 7 years with a non-parole period of 4 years for the offence of manslaughter relating to either one of the two victims reveals that the Judge's assessment of the criminality of the respondent must have fallen well short of what it should have been. The inadequacy of the sentences was compounded by an accumulation between the two sentences of only 2 years. [66] The very least sentence that could have been imposed upon the respondent was, in my opinion, a total sentence of 12 years with a non-parole period of 9 years. Had I been the sentencing judge, I would have imposed a greater sentence." 37There are two factors which were operating in Borkowski which do not arise in the present case. First, although the Court declined to interfere on this basis, it did hold that the late guilty plea entitled the offender to a discount of no more than 15%, rather than the 25% allowed: at [36]. While not a basis for intervention, that factor may have affected the finding as to an appropriate sentence. Secondly, Howie J noted that the case was "more serious than other motor manslaughter cases to which the Court's attention was taken because it involved three vehicles all being driven dangerously in a joint enterprise and, hence, the potential dangerousness to others in the vicinity was increased dramatically from a case involving the dangerous driving of a single vehicle": at [59]. His Honour suggested that in the case of a single vehicle, more appropriate assistance might be found in the judgment of R v Cameron [2005] NSWCCA 359; 157 A Crim R 70. Accordingly, it is appropriate to have regard to the latter case. 38Mr Cameron was 21 years of age at the time of his offence. Sometime after the collision his blood alcohol reading was 0.114mgs per 100mls: at [13]. He lost control of the vehicle at a speed "considerably in excess of 100kph, in a 50kph speed zone within a town area: at [8]. Three of the four passengers were killed in a destructive collision with a power pole. On each of the three counts of manslaughter, the offender was sentenced to a non-parole period of two years with an additional term of fours years imprisonment. Each of the second and third sentences was accumulated by 12 months on the previous one. A fixed three year term in respect of an offence under s 52A was wholly concurrent with the minimum terms in respect of the second and third manslaughter counts: at [4]. The minimum term of mandatory custody was thus four years with a balance of a further four years. The offender was disqualified from holding a driving licence for 10 years. In resentencing, this Court imposed, in respect of each count of manslaughter, a non-parole period of four years with a balance of term of three years. The scheme of accumulation was maintained, giving a minimum custodial period of six years. Hislop J agreed with Grove J; McClellan CJ at CL also agreed with Grove J, but expressed the view that the sentences imposed were "at the lowest end of the available range" and that "a significantly greater sentence may have been appropriate", were it not a prosecution appeal: at [3]. 39The appropriate range for a particular offence will depend upon the circumstances of the offending and of the offender. It will also take account of such guideposts as the maximum penalty and the standard non-parole period, if any. Further guidance is obtainable from sentences imposed by other courts for similar offending. Taking all those considerations into account, it is not possible to say that the sentences imposed by North DCJ in the present case were outside the relevant range. This ground of challenge must be rejected. 40To the extent that the ground sought to challenge the overall minimum period of mandatory custody, in a case where the respective sentences were themselves beyond challenge, the applicant sought to invoke the principle of totality. That principle has particular significance in respect of multiple offences resulting from a single incident or course of conduct, in circumstances where the sentences are imposed consecutively or are partly accumulated one on another. 41In this case it was appropriate that there should be a degree of accumulation, a view with which counsel for the applicant did not cavil. Nor could it be said that the period of two years imprisonment, solely referable to the three dangerous driving offences, was inappropriate. Further, the accumulation of the second manslaughter sentence on one year of the first offence did not, of itself, suggest any inappropriate accumulation. 42The total period of mandatory custody imposed in respect of all five offences was 19 years, of which the applicant is required to serve eight years. That is undoubtedly a lengthy sentence, but the degree of accumulation is moderate and the resulting aggregate sentence is not demonstrably outside the proper range of what is just and appropriate in respect of the gross moral culpability of the applicant. 43In fairness to counsel, it may be noted that little weight was placed on the submission that there was an inappropriate degree of accumulation.

Conclusion 44Each of the proposed grounds of appeal must be rejected. Taken individually, there might be a real issue as to whether this was a case in which a grant of leave to appeal would be appropriate. The sentencing judge provided a carefully reasoned judgment, containing a comprehensive analysis of the matters which needed to be considered in imposing sentence. No fault having been identified in his analysis, despite the careful attention of two senior counsel (different counsel being responsible for the written submissions and the oral argument), it might be thought that leave to appeal should be refused. On the other hand, the seriousness of the offending and the need to consider five significant separate sentences, provide a basis for such a grant. 45In all the circumstances, there should be a grant of leave to appeal, but the appeal should be dismissed. 46BLANCH J: I agree with Basten JA. 47HALL J: I respectfully agree with Basten JA and the order proposed by his Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2012

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