Gonzalez v R

Court of Criminal Appeal (NSW)|2006-01-19|Before: Basten JA, Howie J, Hall J

CITATION: Gonzalez v R [2006] NSWCCA 4

JUDGMENT OF: Basten JA at 32; Howie J at 1; Hall J at 37

DECISION: Application for leave to appeal granted but only to amend the sentencing orders. Appeal is allowed and the sentence quashed. On each count there is to be a non-parole period of 15 months to commence on 14 February 2005 and to expire on 13 May 2006 the date upon which the applicant is to be released to parole. There is to be a balance of term of 15 months to commence on 14 May 2006.

CATCHWORDS: Criminal Law - Aggravated driving causing gbh - concurrent sentences erroneous - sentence not manifestly excessive - Appeal - fresh material - need for counsel to address purpose and usefulness of the material tendered.

LEGISLATION CITED: Crimes Act 1900 - s 52A(4) Crimes (Sentencing Procedure) Act 1999 - s 44

R v Cramp [2004] NSWCCA 164 Itaoui v R [2005] NSWCCA 415 R v Whyte (2002) 55 NSWLR 252 R v Errington [2005] NSWCCA 348 R v Tzanis [2005] NSWCCA 274 CASES CITED: Application by the Attorney General No. 3 of 2002 (2004) 61 NSWLR 305 R v Takai [2004] NSWCCA 392 R v Dutton [2005] NSWCCA 248 R v McMillan [2005] NSWCCA 28 R v Janceski [2005] NSWCCA 288 R v Fordham (2 December 1997)

COUNSEL: J. Girdham - Crown A. Bellanto QC - Applicant

SOLICITORS: S. Kavanagh - Crown M. Marshan - Applicant

IN THE COURT OF CRIMINAL APPEAL 2005/1849

BASTEN JA HOWIE J HALL J

THURSDAY 19 JANUARY 2006 Paul Kevin GONZALEZ v Regina Judgment 1 HOWIE J: Paul Gonzalez, the applicant, applies for leave to appeal against sentences imposed upon him in the District Court by Andrews ADCJ (the Judge) for two charges of aggravated dangerous driving causing grievous bodily harm. These are offences contrary to s 52A(4) of the Crimes Act and in respect of which there is a maximum penalty prescribed of 11 years imprisonment. The Judge sentenced the applicant on each charge to imprisonment for 2 years and 6 months with a non-parole period of 1 year and 3 months. Both sentences commenced on 14 February 2005 and the non-parole period expires on 13 May 2006. 2 The sentencing order did not comply with s 44 of the Crimes (Sentencing Procedure) Act in force at the time of sentencing which required the court to fix a non-parole period and then set the balance of the term. However, this is technical error and does not itself justify or require this Court to redetermine the sentence: R v Cramp [2004] NSWCCA 164; Itaoui v R [2005] NSWCCA 415. 3 The charges arose from a motor vehicle accident that occurred in the early hours of 15 January 2004 at Beverly Hills. The motor vehicle being driven by the applicant failed to negotiate a right hand bend in King Georges Road, mounted the kerb, and travelled a distance of about 5 metres before coming into contact with a telegraph pole. The force of the contact caused the pole to snap at the base. The vehicle rotated in an anti clockwise direction around the pole and then rolled onto its roof. 4 There were two passengers in the vehicle who were both injured. Mr Bonora underwent a facial reconstruction to repair fractures to his face. He also needed surgery to repair a laceration to his intestine, a puncture to his lung and to deflate his stomach. He also suffered four broken vertebra. He was for a period required to wear a back brace and the material before the sentencing judge indicated he may have difficulty returning to his employment. Mr Escalante, the owner of the vehicle, suffered fractured ribs, a punctured lung and serious lacerations to a leg, an arm and his face. He spent 6 days in hospital and was required to have two months off work to recuperate. 5 A sample of the applicant's blood taken about an hour after the collision gave a reading of 0.173. The applicant and the two passengers had prior to the collision been drinking at an hotel. The applicant had consumed three to five schooners of beer and two glasses of scotch and coke between 11pm and the time of the collision. The applicant insisted that he drive the vehicle after the owner asked him for the car keys. The collision occurred about 500 metres from the hotel and about 700 metres from the applicant's home. 6 The offence was an aggravated one because the applicant's reading exceeded the prescribed concentration of alcohol of 0.15. 7 The applicant was aged 22 at the time of the collision. He had no prior criminal record but had 8 offences for exceeding the speed limit, 7 of those between 8 May 2002 and 19 August 2002. His licence had not been suspended by reason of these offences but he was subject to the restriction to be of good behaviour from 14 June 2003 to 14 June 2004. He was in breach of that condition at the time of these offences. 8 There is nothing in the applicant's background of any great relevance. At the time of sentencing he was living with his grandmother as a carer but normally lived with his parents and siblings. He had a close and positive relationship with his family. He was in permanent employment with the Department of Immigration. The officer who prepared a pre-sentence report indicated that the applicant had insight into his offending behaviour. The applicant suffered no long term injury or disability as a result of the accident. His father gave evidence as to the effect of the offences upon the applicant and believed that he had become more mature. There were a number of testimonials placed before the court from persons in the community as to the high regard in which he was held. 9 The first ground of appeal is that the Judge erred in failing adequately to evaluate the applicant's moral culpability. It is submitted under this ground that the finding by the Judge that there was a high level of moral culpability in the offences committed by the applicant was inappropriate having regard to the factors set out in R v Whyte (2002) 55 NSWLR 252. 10 The relevant passage from the sentencing remarks is as follows:

Objectively this is not a case of momentary inattention or misjudgement but one of a high level of moral culpability.

The guideline this Court should give pursuant to s 37A of the Crimes (Sentencing Procedure) Act 1999 with respect to the typical case identified above is: A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement. 11 A typical case for the purpose of the guideline 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. (vii) Plea of guilty of limited utilitarian value.

The present case was atypical. There was more than one person injured and the victims were not strangers to the applicant. The first of those matters would tend to indicate that a more severe penalty was necessary than in the typical case whereas the second might indicate, depending upon the relationship between the offender and the victim, that a less severe sentence was warranted because of the impact upon the offender of the injury suffered by the victim. The applicant had a traffic record that the judge described as "disturbing". There was also an early plea of guilty. 12 The judgment in Whyte recognises that there will be differing degrees of moral culpability arising from the particular facts in any instance of the offence with low moral culpability (or momentary inattention) and high moral culpability (or an abandonment of responsibility) being at the two extremes: R v Errington [2005] NSWCCA 348 at [27]. The degree of moral culpability arising is "a critical component of the objective circumstances of the offence": Whyte at [205]. It will have a significant impact upon the nature and degree of the penalty imposed. 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 list of aggravating factors identified in Whyte is:

(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. 14 Although the number of people put as risk, (ii) above, was not seen as an aggravating factor affecting moral culpability in Whyte, it has been considered to be so where the offender must have been aware of the persons being put at risk, such as the occupants of the motor vehicle that he or she is driving: Application by the Attorney General No 3 of 2002 (The PCA Guideline Judgment) (2004) 61 NSWLR 305 at [108]. 15 But a high degree of moral culpability can also arise because the offender is charged with an aggravated form of the offence. This was recognised in Whyte where the Chief Justice wrote at [231]:

In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.

This passage was quoted by the sentencing Judge in the present case. As I have already noted, the maximum penalty for the offences charged was imprisonment for 11 years. The maximum penalty for the offence being considered in Whyte was imprisonment for 7 years. 16 I have some difficulty in understanding from the remarks on sentence what factors the Judge was relying upon in order to determine that the degree of the applicant's culpability was at a high level. The judge does not clearly identify what factors he thought impacted upon the moral culpability of the applicant or their intensity in the particular case. For example, the Judge stated that he was taking into account that the distance travelled from the hotel to the accident scene "was not great', but then added, "I think that offers little in the way of mitigation". But the distance travelled is a matter that goes to aggravation only where the distance is lengthy, because it increases the risk of injury or death. However, if the distance is short, this is not a matter of mitigation. Even if the view were taken that the relevant factor is the distance to be travelled rather than the distance travelled before the collision (see R v Takai [2004] NSWCCA 392 at [39]), in the present case it was only some 1.2 kms from the hotel to the applicant's home. The owner of the vehicle lived next door. If the Judge took this factor into account in determining the level of culpability, he was clearly in error. 17 The Judge stated that the circumstances of the accident "imply that speed was involved" but then took into account that the speed of the vehicle at the time of the collision was unknown. Assuming that the Judge did take into account as an aggravating factor that the vehicle was speeding at the time of the offence, he was entitled to come to that view. A witness stated that her attention was drawn to the vehicle before the collision because "it seemed to be going fast". She watched the car as it collided with the pole. The Judge was also entitled, in my view, to infer that the vehicle was speeding simply from the damage caused to the pole and the fact that the vehicle spun around the pole and landed on its roof. Although it was submitted on behalf of the applicant that the Judge had taken into account the applicant's speeding convictions in determining that speed was involved, the Judge specifically mentioned that it was "the circumstances of the accident" that lead him to this conclusion and I would not infer that he took into account anything else. A judge is entitled to take into account that speed was involved in the offence even though it cannot be determined what that speed was. 18 The Judge noted that the injuries inflicted were serious particularly in the case of Mr Borona. It was submitted that the Judge placed too much weight on the injuries suffered by the victims. At the outset of the application, Mr Bellanto QC, who appears for the applicant, relied upon an affidavit by his own instructing solicitor, Mr Marshan. This affidavit was sworn on 20 December 2005. When asked the basis upon which the Court was to receive the evidence, Mr Bellanto initially indicated that it was for the purpose of the Court in re-sentencing the applicant if it found error in the exercised of the Judge's discretion. The affidavit contains a large amount of material of the type frequently placed before the Court for this purpose. 19 However, within this material was a matter that went to the substance of the appeal. When this was brought to the attention of Mr Bellanto, he indicated that he wanted to rely upon that part of the affidavit as, in effect, fresh evidence affecting the merits of the appeal rather. That material was to the following effect: the victim, Mr Bonora, had worn a brace for about three months after his discharge from hospital in late March 2004; he recommenced work as a hairdresser in August 2004; he still undertakes physiotherapy for back pain once a month for two hours each session; he has tried to return to a form of physical exercise that he enjoyed but found it was too difficult and decided to stop for about eight to twelve months in the hope he will be able to resume when his back was stronger. 20 The Crown objected to this evidence being received on the merits of the application for leave to appeal on the basis that it was not in proper form and that there was nothing to show that this evidence could not have been obtained prior to the sentencing and placed before the Judge. The Court determined to receive the material on a provisional basis, not deciding whether or not to receive it as fresh evidence, on the understanding that at the end of the day, if it were thought that this material was germane to the success of the application, Mr Bellanto might be granted an adjournment in order to put it into proper form. 21 In my view, if one considers the actual material before the sentencing judge as to the injuries suffered by Mr Bonora, the fresh material is not inconsistent with the facts upon which the Judge sentenced the applicant. It does not affect in any way his Honour's exercise of discretion based upon the material before him as to the physical injuries sustained by Mr Bonora. It certainly does not indicate that the injuries suffered were any less serious than the Judge found it to be. 22 The nature of the injuries inflicted is not a factor that goes to moral culpability but it is a circumstance of the offending and can be an aggravating factor. In R v Dutton [2005] NSWCCA 248 I wrote:

[27] The offence is to a very large extent a result crime and that of course is why the maximum penalty differs depending upon whether the result of the driving is death or injury. This is not to suggest that the quality of the offending driving is not also a very significant matter, as is made clear by the guideline judgment in Whyte (2002) 55 NSWLR 252. But when looking at whether there are aggravating factors derived from the nature of the driving or the degree of intoxication of the driver in determining whether the offender had "abandoned responsibility for his or her own conduct", the court cannot lose sight of the consequences of the driving reflected by the degree of injury caused to the victim. 23 Whether or not the Judge placed too much weight on the injuries can only be determined by the sentence imposed and that is dealt with in the next ground of appeal. 24 In my view, while it may not be clear what factor or factors in particular his Honour relied upon to find that there was a high level of moral culpability, he was entitled to make that finding. It was noted in Errington at [29] that minds might legitimately differ as to the degree of moral culpability involved in a particular offence. But in this case the objective facts clearly, in my opinion, revealed a high degree of moral culpability. The applicant was at a hotel drinking schooners of beer and spirits from 11pm to 3am. He demanded to drive and refused to give up the keys to the owner. He then drove with a reading well over the high range PCA limit. The vehicle contained two passengers and there were other vehicles present on the road, as would be expected notwithstanding the hour. For whatever reason, the applicant so mismanaged the control of the vehicle that it failed to take a gentle curve in a major three-laned highway and crashed into a telegraph pole in what must have been a matter of minutes after he commenced to drive the vehicle. At the time of driving he was subject to a condition of his licence to be of good behaviour. As was explained in the PCA Guideline Judgment at [101], a person, who has consumed sufficient alcohol to reach a high range PCA reading, must appreciate that his driving skills have been deleteriously affected or at least appreciate the risk that they have. It was further stated:

[102] A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases. At the high range level of PCA it could rarely, if ever, be suggested that the person lacked this appreciation at some point of time before the decision was made to get behind the wheel of a motor vehicle. These observations may be trite, but they must be kept in mind when consideration is given to the level of criminality involved in driving at the high range PCA and the appropriate punishment necessary to reflect it. 25 In my opinion there is no merit in this ground of appeal. 26 The second ground of appeal is that the sentence is manifestly excessive. As against a maximum penalty of 11 years for each of the offences, I have difficulty appreciating how a sentence of 2 years and 6 months and a non-parole period of 15 months can be excessive on the facts of this particular case and bearing in mind that there were two offences. In R v McMillan [2005] NSWCCA 28, there was consideration given to the statistics relevant to this offence as follows:

[48]………..The statistics show that for an offence of this type, after a plea of guilty, 77 per cent of head sentences are under 42 months with 60 per cent under 36 months. This is a surprising result in view of a maximum penalty of 11 years. The longest sentence imposed was 6 years. It might be thought that these statistics reflect to some degree that many of the offenders have no prior criminal record, but the statistics show that, even where the offender has a prior record for similar offences, 75 per cent still received sentences of less than 3 years (although the sample size is very small only being 12 cases).

[49] It should be noted that the maximum penalty for an offence under s 52A(4) is greater than that for a non-aggravated offence causing death, the maximum penalty for an offence under s 52A(1) being 10 years. Parliament should be taken as being of the view that generally an offence under s 52A(4) is slightly more serious than an offence under s 52A(1) notwithstanding that the consequences of the driving will be less serious. Yet the statistics show that sentences for an offence under s 52A(1) are markedly more severe than those for an offence under s 52A(4): only 14 per cent of head sentences are less than 3 years.

[50] This difference is perhaps understandable in that the courts will generally consider that an offence in which a death has been occasioned will be more serious than where death did not occur. This no doubt reflects community attitudes. But the offence of dangerous driving has two features: the driving and the result. The aggravated form of the offences reflects the aggravated criminality of the driving by reason of the presence of one of the facts set out in s 52A(7). Each of those facts represent a very significant increase in the criminality from the non-aggravated form of the offence whatever might be the other objective facts of the particular offence for which sentence is being passed.

[51] It may well be the case that insufficient regard is being paid to the seriousness of the driving as reflected in the matters of aggravation specified in the s 52A(7) and the increased penalties that the aggravated form of the offence attracts. Appropriately the statistics do reflect a difference in sentencing between the non-aggravated form of the offence and the aggravated form: 83 per cent of sentences for an offence under s 52A(3) are less than 3 years. But the difference between the range of sentences imposed for that offence and the range for an offence under s 52A(4) do not appear to reflect the increased maximum penalty or the increased culpability arising from the fact that the offence is an aggravated one and the serious nature of the element of aggravation.

The sentence imposed in the present case seems to bear out the observation made in the last sentence of the last paragraph in the quote above, which comments on the fact that the statistics for this type of offence seem to be too low. 27 In my opinion there was an error in imposing concurrent sentences. In R v Janceski [2005] NSWCCA 288 Hunt AJA, with the concurrence of the Chief Justice and myself, wrote:

[21] The first error to which the Crown points is that the two sentences are wholly concurrent. There are at least two distinct categories of cases in which problems with concurrency arise. The first is when the offender is being sentenced for discrete offences committed on different occasions. The concurrency of sentences for that category is now governed largely by Pearce v R (1998) 194 CLR 610, which overruled the practice previously common in this State of fixing one of several concurrent sentences to reflect the total criminality of the offender for all the offences. The second category is where the one incident or enterprise gives rise to different charges, usually where there is more than one victim. That category has at least two sub-categories. An example of one of those subcategories is where the offender repeatedly fires a gun, injuring a number of different persons, each as a result of a different action by the offender, although part of the one incident, when it is appropriate to take into account the fact that the offences were substantially contemporaneous and connected: Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 168. The other sub-category is where the one action by the offender causes a number of people to be injured and where separate charges are laid in relation to each victim. That is the present case.

[22] In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: R v Tadrosse [2005] NSWCCA 145 at [28] - [29].

[23] In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45] - [48] - and cases such as R v Weldon (2002) 136 A Crim R 55 at [46] - [53] and R v Price [2004] NSWCCA 186 at [38], [49] - when applying the general principles relating to the aggregation of sentences to this particular sub-category.

For sentences for offences of this nature an accumulative sentence ought to be imposed to reflect multiple victims. 28 However, this was an error that probably favoured the applicant as I would have thought that the overall sentence imposed would have been appropriate for the offence against Mr Bonora alone in light of the seriousness of his injuries. A non-parole period of 15 months was the least minimum period of custody that could have been imposed to reflect the objective seriousness of the offences and the need for general deterrence. 29 Although, apart from his traffic record, the applicant had strong subjective features they were not unusual for offences such as these. Youth and good character are two of the factors that give rise to the typical offender described in Whyte. 30 The written submissions tendered on behalf of the applicant set out a summary of decisions in this Court for dangerous driving offences. Quite frankly I find such schedules of little assistance when the cases they contain are so different factually from the one before the Court. The only particular decision of this Court counsel wished use to be referred to during the course of oral submissions, rather than indicating that the sentence was manifestly excessive, indicates that the sentence was well within the range available to the sentencing judge. In any event, those summaries confirm my initial view that the sentence was a very lenient one. The statistics set out in the quote from McMillan indicate that the sentence was well within the range of those imposed for a single offence. 31 I propose that the application be granted but only to amend the sentencing orders. I propose that the appeal be allowed and the sentence quashed. On each count there is to be a non-parole period of 15 months to commence on 14 February 2005 and to expire on 13 May 2006 the date upon which the applicant is to be released to parole. There is to be a balance of term of 15 months to commence on 14 May 2006. 32 BASTEN JA: I agree with the conclusion which Howie J has reached and with his Honour's reasons. I wish only to add these remarks in relation to the evidence sought to be tendered by the applicant, to demonstrate that the injuries of Mr Bonora had proved to be less serious in their consequences than had been accepted as likely at the time the applicant was sentenced. 33 This Court expressed doubt as to the propriety of receiving this material insofar as it sought to demonstrate Mr Bonora's return to work two months before the applicant was sentenced. No explanation was proffered why that fact was not reflected in the statement of agreed facts put before the sentencing judge and relied on by his Honour; nor was there any explanation proffered as to why it was not otherwise available to the applicant or his legal advisers in order to be put before the sentencing Court. 34 Questions involving the admissibility of evidence and relevant discovery factors should not be disregarded merely because the proceedings involve an application and potentially an appeal against sentence. In that respect I refer to the matter referred to by Howie J in the course of argument, namely, the unreported judgment of this Court in R v Fordham (2 December 1997). The tender of such material has to be done in accordance with established practice. 35 In general terms, it is true that leniency has been afforded in relation to the admissibility of evidence on such applications, but in past times it was not common to burden this Court with material which should properly have been produced at the original sentencing proceedings, or was merely properly supplied to the Parole Board. The burden to the Court in recent times leads to a need to address more carefully the purpose of the tender and its likely usefulness on the appeal. 36 As his Honour has noted, it is not necessary in the present case to determine the question of admissibility because the material in question was not inconsistent with the thrust of the material in the agreed facts which were before the sentencing judge. In forming that view, I would take into account the weight apparently given to the precise nature of the injuries suffered by Mr Bonora and their prognosis. 37 HALL J: I also agree with Howie J and the orders which he proposes. 38 HOWIE J: I would simply indicate my general agreement with the additional comments made by the presiding judge. 39 BASTEN JA: The orders of the Court are those proposed by Howie J. I should note, Mr Gonzalez, they do not involve any substantial change to your sentence. Your non-parole period will still expire on 13 May 2006 and there will be a balance of term of sentence to commence on the day following that.

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