Gommesen v R

Court of Criminal Appeal (NSW)|2012-11-01|Before: McClellan CJ, McCallum J, Garling J, Clellan CJ, Callum J

Judgment 1McCLELLAN CJ at CL: I agree with Garling J. 2McCALLUM J: I agree with Garling J that the appeal should be dismissed. 3I would respectfully add that, whilst the brevity of his Honour's ex tempore reasons precludes any certainty in this respect, it is possible that his Honour's reference to the prior conviction, coming as it did in the context of a reference to "the principles enunciated in Whyte", was merely intended to refer to the fact that the applicant, as much as anyone, must have been well aware of his responsibility not to drive in the circumstances. In my view it was open to the learned sentencing judge to conclude that the applicant's decision to drive in the circumstances adverted to in the remarks on sentence revealed an abandonment of responsibility. 4I agree with the orders proposed by Garling J. 5GARLING J: At about 10.30pm on 19 December 2009, Odin Gommesen, the applicant, was driving a borrowed Holden Commodore sedan north along Duranbah Road, Duranbah in northern NSW. 6His vehicle left the road and hit a power pole on the side of the road. The front seat passenger, Mr Myke Rudd, who was the applicant's half-brother, was killed. 7The applicant first entered a plea of guilty to an offence of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act 1900, before the Lismore Local Court on 18 January 2011, when he was committed for sentence. The applicant adhered to his guilty plea to that offence when the proceedings came before the District Court (Black DCJ) for sentence in June 2011. 8The indictment which was presented in the District Court on 17 June 2011, contained a single count. It was: "For that he on 19 December 2009 at Duranbah in the State of New South Wales did drive a motor vehicle, namely a Holden Commodore Sedan, registration number 514-LQZ (Qld), whilst under the influence of intoxicating liquor, where the prescribed concentration of alcohol was present in [his] blood, and whereby the vehicle was involved in an impact as a result of which the death of Myke Rudd was occasioned." 9The Crown accepted before Black DCJ, and his Honour found, that the applicant had pleaded guilty to the offences in circumstances which entitled him to "the full 25 per cent discount in relation to his plea of guilty". 10An offence against s 52A(2) of the Crimes Act carries a maximum penalty of 14 years imprisonment. 11On 17 June 2011, the applicant was sentenced to a total term of imprisonment of 4 years with a non-parole period of 2 years 6 months, commencing on that day and concluding on 16 December 2013. 12The applicant now seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentence. He submits that the sentence was attended by error in two respects, and that a reduced sentence ought be imposed by this Court. 13For the reasons that follow, I am of the opinion that, whilst leave to appeal ought be granted, the applicant's sentence ought not be reduced. The appeal ought be dismissed.

Facts and circumstances 14The Crown and the applicant agreed on a Statement of Facts, which was tendered to the sentencing Judge. 15Relevantly, the agreed Facts included the following: (a)at around 5pm on 19 December 2009, the applicant was at his residence at Kingscliff in company with his partner's brother. They were drinking beer. Shortly before 6pm the applicant and his partner's brother drove to a friend's house where they stayed for half an hour or more during which time the applicant continued to drink beer; (b)at around 6pm, the applicant drove himself and his partner's brother to a party in Duranbah Road, Duranbah. There were about 30 people at the party including the deceased, Myke Rudd. The applicant drank an unknown quantity of alcohol while at the party, and left some time prior to 10.30pm; (c)a witness outside the front of whose home the accident occurred, was awoken by the sound of a large car engine coming down the hill, with a car travelling in a northerly direction along Duranbah Road. She heard the sound of a motor vehicle accident outside her house. The power to her house was lost; (d)when she left her home, having called the Emergency Services, she observed a blue sedan facing south on the side of the road, having hit the power pole at the front of her house; (e)the applicant was seen to be sitting upright in the driver's seat of the vehicle, having sustained a large cut to the middle of his forehead, and to be bleeding heavily. As the applicant got out of the vehicle, he went to walk off, but could not stand up and ended up leaning against the car; (f)a search was conducted in the vicinity of the collision for the deceased. His body was located down an embankment about five metres away from the vehicle. It was apparent that he had died having been ejected from the vehicle; (g)the roadway was generally in a good state of repair, but was damp due to recent rain. All of the damage to the motor vehicle was to the passenger side door and body. There was little, if any, damage to the driver's side of the vehicle; (h)the investigating officer, having looked at the motor vehicle and the tyre marks on the roadway, concluded that the vehicle had been travelling in a north-westerly direction along Duranbah Road and, after negotiating a sweeping left hand bend, travelled upon a straight section with a slight downhill gradient. The nearside wheels of the vehicle then left the bitumen roadway to the left and travelled along the unsealed edge of the road; (i)shortly afterwards the applicant lost control of the vehicle and it began to slide across the single northbound lane and then the single southbound lane in a right arc. The vehicle slid for approximately 56 metres, with the near side of the vehicle leading, before colliding with the power pole on the opposite side of the road; (j)the applicant was taken to the Tweed Heads Hospital for treatment, where a blood sample was taken. On analysis the sample was found to contain a blood alcohol content of 0.172 grams of alcohol per 100 millilitres of blood; (k)a report to police by Dr Judith Perl, a pharmacologist, expressed the opinion that the applicant was under the influence of alcohol to the extent that his driving ability would have been very substantially impaired; (l)when asked by police about the accident, the applicant told them that he could not remember who had been driving the vehicle at the time of the collision or anything about the collision at all. 16The party which the applicant was at, before getting into the motor vehicle immediately prior to the collision, was being held in the same street in which the collision occurred. The house at which the party was, and the house outside which the collision occurred were about 40 street numbers apart. The applicant's evidence was that the accident occurred about 200m from the house where the party was and that he was driving home when the collision occurred. His home was about 7 kilometres from Duranbah. 17The applicant's evidence before Black DCJ was that he had no memory of the accident at all. However, in cross-examination this question was asked of him, and he gave this answer: "Q. So you would have appreciated that when you actually got into the car at the party to leave, that you were really, really drunk? A. Yes. Too drunk to know what I was doing. Q. That's right? A. Yes." 18It is clear that the area in which the collision occurred was a remote area with some, but not many, houses in the vicinity and a low level of traffic on the road.

Grounds of appeal 19The grounds relied upon by the applicant are as follows: "The learned sentencing judge erred in his assessment of the objective seriousness of the offence in that his Honour: (a) erred in his assessment of the seriousness of the applicant's driving; and (b) had improper regard to the applicant's prior criminal record." 20In support of these grounds, the applicant submits that an assessment, by the sentencing Judge, that his moral culpability was high, was based on three essential findings, namely: (a)that the applicant was seriously affected by alcohol which was evidenced by the shortness of the distance before the accident; (b)that the applicant had a prior conviction for drink driving; and (c)that there were two passengers in the vehicle. 21The fact that the sentencing Judge had regard to the two passengers being in the motor vehicle is not, and cannot be, the subject of any criticism. It is a proper circumstance for his Honour to have taken into account. 22However, the applicant submits that the first two bases identified in [203] are erroneous or irrelevant findings and as a consequence, the sentencing judge's assessment of the objective seriousness of the offence was in error. 23In assessing the objective seriousness of the offence, the sentencing Judge concentrated on, as does the Notice of Appeal, the moral culpability of the applicant. Although this is not the only factor relevant to the objective seriousness of the offence, in the circumstances of this application for appeal, it is significant.

Seriousness of the alcohol effect 24In his submissions, the applicant accepts that he had a blood alcohol reading of 0.172, which formed the basis of the charge of aggravated dangerous driving, and, further, that it was not in issue that his ability to drive the motor vehicle was substantially impaired as the Statement of Facts records. The applicant accepts that he was at greater risk of being involved in an accident as a result of this level of intoxication. 25However, he submits that the trial Judge's conclusion that his degree of impairment could be observed from the short distance over which he drove before the accident happened, was erroneous. 26In order to consider this submission, it is necessary to note some of the matters to which his Honour referred in his Remarks on Sentence. 27He firstly noted the important features from the Agreed Statement of Facts, including that it was within a very short distance of the applicant leaving the party that the accident happened, and that the applicant's blood alcohol content was 0.172. He also noted Dr Perl's opinion. 28He then turned to and carefully considered some subjective matters involving the adverse effects which the accident had had on the applicant and the applicant's family. His Honour then assessed the extent of the applicant's moral culpability, and said this: "Well, as far as assessing the moral delinquency of this, I think it is fair to describe it as high, the reasons are these, and they really boil down to two reasons; the brevity or shortness of the distance before the accident happened illustrates of itself in my view, how seriously he must have been affected, the other matter is that in 2008 he was convicted of a significant drink/driving offence in Queensland and was disqualified for a period and that, coupled with the fact that there were when he left this party, two passengers in the car, not just the deceased and himself, that brings the clear operation of the principles enunciated in Whyte where the moral culpability is high." 29Although his Honour commenced with the expression "moral delinquency", it is clear that he was considering moral culpability. 30The need for a determination by any sentencing Judge of the extent of an offender's "moral culpability" is seen to arise from the guideline judgment of this Court in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at [229]-[230] where Spigelman CJ said: "The guideline for offences against s 52A(1) and s 52(3) of the Crimes Act for the typical case ... should be: 'where the offender's moral culpability is high, a full-time custodial ... sentence of less than three years (in the case of death) ... would not generally be appropriate'. In the case of a low level of moral culpability, a lower sentence will of course, be appropriate." 31The degree of moral culpability is "a critical component of the objective circumstances of offence": Whyte at [205]. There are differing degrees of moral culpability arising from the particular facts of an offence, which range from low moral culpability, such as momentary inattention, to a high moral culpability, described as an abandonment of responsibility: R v Errington [2005] NSWCCA 348; (2005) 157 A Crim R 553 at [27] per Mason P; R v Gonzales [2006] NSWCCA 4 at [12] per Basten JA. 32There is a high degree of moral culpability displayed where there is present to a material degree, one or more of the aggravating factors articulated in Whyte. 33The list of aggravating factors to which Spigelman CJ drew attention in that judgment, were as follows: 66 "(i) extent and nature of the injuries inflicted; (ii)number of people put at risk; (iii)degree of speed; (iv)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." 34One of the aggravating factors referred to in Whyte: "(vii) Length of the journey during which others were exposed to risk" is relevantly a question of assessing the intended journey and not just the journey attenuated by the collision: R v Takai [2004] NSWCCA 392; (2004) 149 A Crim R 593 at [39] per Simpson J. 35The applicant's submission in short, on this ground, is that the fact that there was only 200 metres or so between when the applicant left the party and the collision occurred, was not a fact which of itself and without more, supported the conclusion expressed by the sentencing judge that the applicant was seriously affected by his alcohol consumption. 36The applicant submits that there are likely to be many causes of the accident which remained unexplored by the agreed facts and in the evidence, any of which may explain the happening of the accident. Since, so it is submitted, that is so, the conclusion expressed by the judge that the reason for the accident happening so quickly was the extent of applicant's impairment caused by his intoxication, was not reasonably open. 37It is necessary, in considering these submissions, to keep in mind, as this Court has often said, that it is inappropriate to take an overly critical approach to reasons contained in ex tempore judgments. What is relevant is the substance and essence of the Judge's remarks, rather that the result of any exercise of parsing and analysing closely, in an unduly technical way, the words and phrases used in the Remarks on Sentence. 38Here the sentence was imposed, and the Remarks made, on the same day as the submissions were made. No doubt, his Honour dealt with other matters in the list on that day. In these circumstances, applications for leave to appeal are unrewarding if they concentrate on the felicity of expression rather than the substance of the Remarks. 39The applicant submits that because, commonly, accidents such as the one in this case leading to the offence, are multifactorial, the relatively short distance over which the applicant could not support the finding of substantial impairment. However, this is not a factor to be viewed in isolation. The Judge was told, and it was agreed, that the applicant's capacity to drive the vehicle was substantially impaired. This agreed fact is corroborated by the fact that within a few hundred metres of commencing the homeward journey, the applicant had lost control of the car and it collided with a power pole before he could regain control of it. The agreed facts did not record any agreement as to the speed at which the car was travelling. 40The evidence which formed a part of the agreed facts from Dr Perl, was of general application, and related to the objective fact of the applicant's blood alcohol level: that is, a reading of 0.172 meant, of itself, that the applicant's ability to drive a motor vehicle was substantially impaired. 41However, that agreed opinion did not relate to any specific evidence about, or any detail of, the actual driving by the applicant. As it seems to me, against the background of that evidence, what his Honour was doing in the passage to which I have referred at [28] above, was to find corroboration for that expert opinion in the facts of this particular accident. 42It appears that his Honour has concluded that the fact that the accident happened very soon after the applicant started his journey, that is, about 200 metres or so, demonstrated that his ability to drive the motor vehicle was, in fact, substantially impaired. There was no other explanation proffered by the evidence that might explain this very early loss of control. 43In my view, this was an inference which in the context of all the facts and circumstances surrounding this accident, was well open to his Honour. I can detect no error in this conclusion.

Prior criminal conviction 44The second basis upon which the applicant submits the sentence ought be set aside, is that the sentencing judge impermissibly took into account the applicant's criminal history. 45The relevant entry in the applicant's criminal history was his offence of being convicted in June 2008 in Mt Isa, of driving a motor vehicle whilst under the influence of alcohol when his reading was 0.094. 46The Facts Sheet for that offence which was tendered without objection to the sentencing judge, records the following brief facts: "At approximately 12.30am on Saturday 21 June 2008, police from Mt Isa Police Station were conducting mobile patrols within Mt Isa. ... police observed a white Holden Commodore sedan ... at the intersection of Sutton and George Streets. The Police were approximately 60 metres from the sedan when it was at the intersection. Police observed the rear wheels of the vehicle spinning and large amounts of grey smoke coming from the vehicle. The vehicle then began to travel in an easterly direction on George Street. Police then activated their lights and sirens in an attempt to intercept the vehicle as it was doing a burnout. Police intercepted the vehicle on George Street... The defendant provided no emergent reason or lawful excuse for driving the vehicle in the manner observed by Police." 47The finding that the applicant was driving in Mt Isa whilst over the limit, needs to be considered in the context of what he was doing at the time he was observed by police, namely, doing a burnout on a public street in Mt Isa whilst apparently on his way home after visiting a friend. 48As is apparent, the incident referred to happened about 18 months before the offence for which the applicant was being sentenced. It had nothing to do with the applicant's conduct at the time of the offence for which he was being sentenced. 49The central element of moral culpability relates to the facts and circumstances of the offences itself, and where relevant, the facts and circumstances leading up to the offence, where those facts and circumstances have relevance to the commission of the offence. 50In imposing a sentence, a person's prior criminal history and past convictions are relevant: see s 21A(2)(d) of the Crimes (Sentencing Procedures) Act 1999. But the prior criminal history has no role to play in determining the objective seriousness in all of the circumstances of the offence: Veen v R (No.2) [1988] HCA 14; (1988) 164 CLR 465; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [24] per Spigelman CJ, at [63] per McClellan CJ at CL, at [76] per Grove J and at [81] per Barr J and Bell J, see also Howie J in R v Wickham [2004] NSWCCA 193. 51Although the sentencing judge's conclusion was expressed by reference to moral culpability, to the extent that it included any references to the prior criminal record, it was erroneous. 52To that extent, the applicant's second ground of appeal succeeds. 53But there remains a question of whether this error has resulted in the finding that the applicant's moral culpability was high with respect to the offence also being erroneous. On all of the evidence appropriately to be take into account, I am not satisfied that the applicant has demonstrated that such ultimate conclusion was in error. 54The finding that the applicant's moral culpability was high is well supported by the material before the sentencing judge, including: (a)the applicant's blood alcohol reading was 0.17, which, whilst it was marginally above the level required for the aggravated component of the offence, is nevertheless more than three times the legal limit; (b)as the Statement of Agreed Facts made plain, the applicant's capacity to drive a motor vehicle was substantially impaired; (c)the applicant set out with an adult male passenger and a juvenile male passenger, having been drinking for over five hours, to drive a seven kilometre journey in order to get home; (d)the vehicle was travelling at an excessive speed as is demonstrated by the following: (i)the description of the events given by the witness outside whose house the collision occurred, was consistent with a car travelling with a degree of speed. The witness was awoken by the sound of a loud car engine coming down the hill; (ii)the deceased, Mike Rudd, was ejected from the motor vehicle and found about 5 metres from it. This is consistent with a degree of speed. (iii)the major damage to the rear nearside door when it collided with the power pole, was also consistent with a degree of speed; (iv)the car skidded for about 56 metres after the applicant lost control. 55In those circumstances, the finding that the degree of moral culpability involved in this offence was high, was plainly open to his Honour. I detect no error of the kind the applicant submits is to be found in his Honour's ultimate conclusion and would reject this ground of appeal.

Section 6(3) Criminal Appeal Act 1912 56Even though I am satisfied that the finding of the applicant's moral culpability as being high was the correct conclusion, albeit reached by an erroneous path of reasoning, it is necessary for this Court to consider whether any lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. 57In my opinion it is not. The maximum penalty for the offence is 14 year imprisonment. The offence was objectively serious and the applicant's moral culpability was high. He was a man with a previous offence for driving with an excessive quantity of alcohol in his blood. He knew that he was "... really, really drunk" and stated he was "too drunk to know what [he] was doing". He knew that he should not be driving a motor vehicle at all, let alone with two passengers, one of whom was a juvenile under his supervision. 58Subjectively, the applicant was remorseful and had recognised the nature of his crime. He had accepted his responsibility for it. Particularly because the deceased was his brother, the probabilities are that the adverse effects of the offence will stay with him throughout his life. Upon release from custody, he will have the benefit of family support. 59It is also necessary to keep in mind that the applicant pleaded guilty at an early stage and was entitled to the maximum discount of 25 per cent. As well, a finding of special circumstances was made. It is not suggested that this should be disturbed. 60The applicant's sentence of 4 years in total and 2 years and 6 months by way of a non-parole period is within the broad range of penalties imposed for offences of this kind. 61I detect nothing in any of the facts and circumstances surrounding the offence, and the applicant's subjective case which could lead to a conclusion that a lesser sentence was warranted. Ultimately, the seriousness of the offence, the loss of a life, and a finding of a high degree of moral culpability, all combine to demonstrate that the sentence imposed was a proper one, and no lesser sentence is warranted.

Summary 62Although the sentencing judge's ultimate conclusion that the degree of moral culpability was high was a correct one, he followed an erroneous pathway to reach that conclusion. 63Accordingly, I would grant leave to appeal. However, for the reasons I have expressed, I would dismiss the appeal.

Orders 64I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed.

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: 02 November 2012

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