Harrigan v Regina

R v AEM [2002] NSWCCA 58 R v Duong (1999) 109 A Crim R 60 R v Giang [2001] NSWCCA 276 CASES CITED: R v Hammoud (2000) 118 A Crim R 66 R v Ruane (1979) 1 A Crim R 284 R v Weldon (2002) 136 A Crim R 55

PARTIES: Michael Leonard HARRIGAN v Regina

P Lowe - Applicant COUNSEL: P Barnett - Crown

W Whitby - Applicant SOLICITORS: S Kavanagh - solicitor for Public Prosecutions

GROVE J JAMES J SIMPSON J THURSDAY 15 DECEMBER 2005 MICHAEL HARRIGAN v REGINA

1 JAMES J: Michael Leonard Harrigan applies for an extension of time in which to apply for leave to appeal and, if an extension of time is granted, for leave to appeal against sentences imposed on him in the District Court on 27 February 2003 by her Honour Judge Tupman for two offences to which he had pleaded guilty. 2 The two offences were:

(1) Dangerous driving occasioning grievous bodily harm to Renee Shields.

(2) Doing an act intending to pervert the course of justice.

The offences were committed on or shortly after 28 November 2001. 3 Dangerous driving occasioning grievous bodily harm is an offence under section 52A(3) of the Crimes Act for which the maximum penalty is imprisonment for seven years. Doing an act intending to pervert the course of justice is an offence under 319 of the Crimes Act for which the maximum penalty is imprisonment for 14 years. 4 For the offence of doing an act intending to pervert the course of justice her Honour imposed a sentence of a fixed term of imprisonment of 18 months commencing on the date of sentencing, 27 February 2003, and expiring on 26 August 2004. For the offence of dangerous driving occasioning grievous bodily harm her Honour imposed a total sentence of four years nine months, consisting of a non-parole period of three years three months commencing on 27 August 2004 and a balance of term of one year and six months. Her Honour accordingly made the sentence for the dangerous driving offence completely cumulative on the sentence for doing an act intending to pervert the course of justice. 5 At the same time as her Honour sentenced the applicant, her Honour also sentenced a man named Lang for an offence of doing an act intending to pervert the course of justice, to which Lang had pleaded guilty. For that offence her Honour ordered that Lang perform 400 hours of community service. 6 In support of the application for an extension of time an affidavit by the applicant's solicitor was filed. In the affidavit the solicitor said that, after the applicant was sentenced, the solicitor obtained advice from a barrister who then returned the brief on becoming a public defender and that his client had been unable to afford the fees which he had been informed senior counsel would charge. The solicitor had subsequently made an application for Legal Aid on behalf of his client but the application had been refused. Ultimately Mr Lowe of counsel agreed to appear for the applicant and the notice of application was filed on 11 August 2005. Mr Lowe represented the applicant before this court. 7 The Crown opposed the granting of an extension of time for leave to appeal. However, the Crown accepted that a crucial matter for this court to take into account in deciding whether to grant an extension of time is whether there might be some substance in an appeal against sentence, if an extension of time was granted and leave to appeal was granted. I will, accordingly, consider whether there might be some substance in an appeal, if an extension of time and leave were granted. 8 The sentencing judge stated the most salient facts of the dangerous driving offence at pages 2-4 of her remarks on sentence, in a way which has not been the subject of any criticism on this application and I will repeat this statement. Her Honour said:- "At about 5.30pm on Wednesday 29 November 2001, the prisoner Mr Harrigan was driving his white Toyota Hilux Utility north along Henry Lawson Drive in the direction of its intersection with Milperra Road. There were other cars in front of him travelling in the same direction. It was peak hour and the traffic in both directions was medium to heavy. I accept that for about two kilometres before the ultimate collision Mr Harrigan was observed by another driver travelling behind him, to drive up close behind other cars in a way which is colloquially described as tailgating, to swerve over to the incorrect side of the road from time to time and to wave his fist in the air. I accept that a few of the vehicles in front of Mr Harrigan actually pulled over to the shoulder of the road to allow him to pass. He gave the impression to the driver behind him that he was either rushing to get somewhere or trying to get away from someone. I accept that, after the first of these vehicles pulled over to get out of his way, the prisoner continued on and continued to drive very close behind other vehicles, again crossing to the incorrect side of the road, attempting to overtake. There was heavy traffic in the opposite direction also and he was not in fact, able to overtake.

At the point where Henry Lawson Drive goes under the M5 Motorway, the road goes from two lanes to one. At that point the prisoner tried to squeeze between two cars which were travelling north in front of him. This caused one of those two cars to move to the left to avoid a collision. A little further along, the road again becomes two lanes. At that stage, I accept from the evidence of both the Crown witness and the prisoner himself that the white Toyota motor vehicle, driven by Mr Allen and in which Miss Shields was a passenger, was in front of the prisoner. I accept that where the lane became two the Toyota Corolla moved at one stage from the left towards the right lane. I accept that at this stage the prisoner was approaching the rear of the Corolla, driving very quickly.

The Crown witness, Mr Mladenovski observed the prisoner's driving to be fast and estimated it to be at about 80 kilometres an hour. The prisoner himself admits that he was travelling at about 65 kilometres an hour. I accept from the evidence of Mr Allen that he was travelling at about the speed limit at the time. I accept, more probably than not, that the prisoner was driving faster than Mr Allen as he was gaining on him and again, more probably than not, that at this point his speed was at least 65 kilometres per hour and possibly a little more. The speed limit at this point was sixty kilometres per hour. I accept that the white Corolla then moved towards the left lane and at that point the prisoner ran into the rear of the white Corolla. The collision occurred between the rear offside of the while Corolla and the front near side of the prisoner's vehicle. The white Corolla, I accept, at the point of impact had been moving to the left hand lane and as a result the impact caused that car to veer sharply to its left and the front passenger side of Mr Allen's vehicle collided with a telegraph pole on the left hand side of the roadway"

9 After the collision the applicant continued driving ahead, until he was confronted by a red light at the intersection of Henry Lawson Drive and Newbridge Road. He then did a U-turn and drove back along Henry Lawson Drive in the opposite direction to that in which he had been travelling. When he went past the scene of the accident he shouted something at Mr Allen, who had got out of the Corolla and was standing next to it. 10 The applicant continued driving. He pulled into the depot of a transport company where there were a number of drivers employed by the transport company and sought to obtain a crowbar, which, her Honour inferred, he would have used to pull a damaged mudguard off one of the tyres of his vehicle. The applicant told the drivers at the depot that he had had a few beers and that that was why he had left the scene of the accident. 11 Her Honour in her remarks on sentence proceeded to state the facts of the offence of doing an act intending to pervert the course of justice. The applicant was observed at the depot of the transport company speaking on his mobile telephone. Her Honour found that the applicant was speaking to Mr Lang, telling him about the accident and that he had left the scene of the accident because he was afraid of being charged with a drink driving offence. Her Honour accepted that at this stage the applicant did not know that someone had been injured in the accident. The applicant concocted a false version of events, to which Mr Lang contributed, that another friend, a Mr Farr, had borrowed the applicant's vehicle, that he had left the applicant's vehicle outside his house and that the vehicle had disappeared, inferentially because it had been stolen. Mr Farr later agreed to go along with this false version of events. 12 In electronically recorded interviews by police conducted on 28 November 2001, 29 November 2001 and 30 November 2001 the applicant and then Mr Lang and then Mr Farr told police that the applicant's vehicle had been borrowed by Mr Farr and had apparently been stolen from outside Mr Farr's home. 13 By the time the applicant and Lang were interviewed on 28 and 29 November 2001 or at least during the course of the interviews, the applicant and Lang became aware that someone had been seriously injured in the accident. Indeed, the police believed that they were investigating a fatal accident. 14 Farr later told police that the version of events he had given in his interview on 30 November 2001 had been untrue. In addition to this information from Farr, police also obtained evidence that numerous mobile telephone calls had been made on the evening of 28 November 2001 between the applicant and Lang or between one of them and Farr. 15 The applicant was interviewed by police again in an electronically recorded interview on 3 January 2002. In this interview a number of allegations were put to the applicant, including that he had been the driver of the Toyota Hilux utility at the time of the accident and that after the accident he had driven the vehicle into the depot of the transport company at Milperra. In this interview the applicant denied the allegations that were put to him. 16 In her remarks on sentence her Honour found that the victim of the dangerous driving offence, Ms Renee Shields, who had been in the front passenger seat of the Corolla, had suffered very serious injuries in the accident. At the time of the accident she was 20 years old and seven months pregnant by Mr Allen with whom she was in a relationship. As a result of the collision she was forced forward in the Corolla, her uterus was ruptured, the placenta to the foetus was damaged and the foetus was thrown into her abdominal cavity, where it expired. The damage to her uterus was so serious that a hysterectomy had to be performed. Other abdominal surgery also had to be performed. Ms Shield's legs were trapped in the accident and she suffered fractures to her pelvis and left ankle. At the time the applicant was sentenced Ms Shields was continuing to have physical and emotional problems as a result of the accident. 17 Her Honour, while taking into account the serious consequences to Ms Shields in assessing the gravity of the offence of dangerous driving, was at pains to state that the applicant was not to be punished for causing the death of her unborn child, such an offence not having been charged and, in any event, on the then current state of the law in this State not being available. 18 Her Honour summarised features of the applicant's driving as follows:- "As I have said, I accept that the prisoner was driving aggressively for a prolonged period, namely about two kilometres or a little more, or about two minutes before this collision. He was in a rage and he was reckless in the extreme. As to the impact his driving was having on other users of the road, I further accept that he put a number of other drivers at risk in this period forcing some off the road and potentially involving others in head on collisions as he crossed to the wrong side of the road. He was in a relatively large vehicle, a Toyota Hilux, which had a deal of force behind it particularly given that he had some 20 rocks in the tray of the vehicle each of them about the size of a soccer ball. The potential for harm to anyone he hit was great, as the subsequent collision proved. I also accept as an aggravating fact that he left the scene of the accident.

He was driving too fast, too close and too angry in the circumstances". 19 In her remarks on sentence her Honour referred to some of the subjective features of the applicant. He was 37 years old at the time of sentencing. He had a fairly lengthy criminal history, which included convictions for drug and driving offences and other offences. As a young man he had become a member of a large motor cycle gang and her Honour considered that much of his offending was consistent with the sort of behaviour engaged in by members of motor cycle gangs. 20 However, the applicant had not had any criminal convictions between January 1992 and November 2001, when the present offences were committed. Her Honour found that the applicant had taken serious steps to change his way of life and had settled down with a de facto partner with whom he had had two children and had, in association with Lang, conducted a legitimate business. 21 Her Honour found that the applicant's pleas of guilty were relatively early and had significant utilitarian value, which included that they had obviated the need for Mr Allen and Ms Shields to give evidence in court, and that the pleas of guilty demonstrated genuine contrition. Her Honour said she would allow a discount of 20 per cent for the pleas of guilty. 22 As regards the offence of perverting the course of justice, her Honour found that the present offence was serious. She observed "these sorts of lies strike at the very heart of the administration of justice". 23 Her Honour considered that the applicant's criminality in committing his offence was significantly greater than that of Lang in committing the latter's offence. Lang had not known of the seriousness of the collision at the time he had agreed to give a false account. Her Honour found that Lang had acted out of a misguided sense of loyalty to the applicant and that Lang was dependent on the applicant for both his accommodation and livelihood. Her Honour concluded that a custodial sentence was not required in the case of Lang. 24 However, her Honour did consider that a custodial sentence was required for the applicant. His culpability was greater. The person he was seeking to protect was himself. The applicant knew there had been a collision. Even if he had been unaware of the actual consequences of the accident, he must have known it had been a serious accident. 25 Her Honour found that the offence of dangerous driving causing grievous bodily harm committed by the applicant was towards the top of the range for offences of that kind, for which the maximum penalty was imprisonment for seven years, and, but for the applicant's plea of guilty, a sentence of six years would have been required. Her Honour allowed a 20 per cent discount for the plea of guilty, arriving at a sentence of four years nine months. 26 For the offence of doing an act intending to pervert the course of justice her Honour would, but for the plea of guilty, have imposed a sentence of imprisonment for two years. Allowing what her Honour said was a discount of 20 per cent but which was in fact a discount of 25 per cent, her Honour arrived at a sentence for this offence of imprisonment for eighteen months. 27 In her remarks on sentence her Honour addressed the issue whether the sentences should be concurrent or cumulative. In view of the importance of this part of her Honour's remarks on sentence for the grounds of appeal against sentence relied on, I will set out in full what her Honour said:- "I turn to the issue of concurrence or accumulation. I accept that both of the offences arise out of the same factual circumstances. However it seems to me that perverting the course of justice, albeit in the investigation stage as opposed to the curial stage, is one of those offences where the Court should be looking to an accumulation of sentence, notwithstanding that the same facts are involved, so that the element of general deterrence which is so necessary for an offence of perverting the course of justice is properly taken into account. It would not be appropriate that a sentence for this offence be totally subsumed within the dangerous driving offence. That would carry no message of general deterrence whatsoever. I propose to fix the sentence of 18 months for perverting the course of justice to start from today. I do not propose to fix a non-parole period. I propose to fix the sentence of four years and nine months to be fully accumulated to the expiration of that fixed term". 28 Her Honour found that she should set a non-parole period for the dangerous driving sentence and that there were special circumstances in that the two sentences were to be served cumulatively, so that the balance of the term of the sentence for the dangerous driving offence should exceed one third of the non-parole period. 29 A little later in her remarks on sentence and near the conclusion of the remarks her Honour said that she had given consideration to whether there should be only a partial cumulation of the two sentences. However, she had decided not to make the sentences only partly cumulative, because in her view any lesser period in custody than a period of four years nine months would not have accurately reflected the applicant's total criminality. 30 The only grounds of appeal relied on by counsel for the applicant were:- "1. The learned Sentencing Judge erred in failing to make the sentence of 18 months (either in whole or part) concurrent with the sentence of 4 years 9 months .

2. The learned Sentencing Judge erred in failing to have proper regard to the totality principle". 31 It was accepted by counsel for the applicant that the individual sentences for the two offences were within the range of available sentences, although, it was said, the sentence for the dangerous driving offence was close to the top of the range. 32 In their written submissions both counsel for the applicant and the Crown Prosecutor dealt with both grounds of appeal together and I also will adopt that course. 33 It was submitted by counsel for the applicant in his written submissions that the sentencing judge had breached what was described in the written submissions as "the one transaction rule". 34 In his oral submissions counsel for the applicant retreated to some extent from the submissions made in the written submissions. In the written submissions a number of Western Australian cases had been cited by counsel in support of there being such a rule, including R v Ruane (1979) 1 A Crim R 284 in which Wallace J said at 286: " Whilst it is true that where several offences are tried together and arise out of what one may call the same transaction, it is a good working rule that the sentences imposed for those offences should be made concurrent, the reason therefor is that if a man is charged with several serious offences arising out of the same situation and consecutive sentences are imposed, the total very often proves to be much too great for the incident in question. That is only an ordinary working rule; it is perfectly open to a trial judge in a case such as the present to approach this in one of two ways. Either he may reflect the appropriate punishment by making the terms concurrent and in that instance, for example, in this case imposing a sentence of seven years on the breaking and entering with intent count and, for example, three years concurrent upon the deprivation of liberty count, or alternatively, in the manner in which the sentence under appeal was in fact imposed: see Kastercurn (1972) 56 Cr App R 298". 35 It was submitted that the applicant's two offences arose out of the one transaction, that is the one criminal episode, and that, consequently, the two sentences should have been made concurrent or, at least, partly concurrent. Counsel for the applicant pointed to a part of her Honour's remarks on sentence where her Honour said she accepted "both of the offences arose out of the same factual circumstances". In oral submissions counsel for the applicant accepted that it was appropriate that the two sentences should be at least partly concurrent. 36 Alternatively, it was submitted that her Honour had failed to pay proper regard to the sentencing principle of totality. It was pointed out that in her remarks on sentence her Honour, while expressly referring to "the issue of concurrence or accumulation," had not expressly referred to the need to observe the sentencing principle of totality. 37 It was submitted by counsel for the Crown that there is no fixed rule about whether sentences being imposed on the same offender for offences committed in the same criminal episode should be made concurrent or cumulative. It was submitted that in the present case it was not true that the two offences arose out of the same facts. The conduct constituting the commission of each offence was separate from the conduct constituting the commission of the other offence and at least some separate punishment was required for each offence. 38 It was submitted by the Crown that an offence under section 319 is an interference with the administration of justice, that general deterrence is important in sentencing for such an offence and it would be rare for a totally concurrent sentence for such an offence to be an appropriate sentence. It was submitted that, whether or not her Honour had explicitly referred to the sentencing principle of totality, her Honour's discussion in her remarks on sentence of the issue of whether the sentences should be concurrent or cumulative and her later discussion of whether any accumulation of sentences should be only a partial accumulation clearly showed that her Honour was mindful of the principle of totality. 39 I do not consider there is any "one transaction rule," as submitted by counsel for the applicant in his written submissions. Even in the passage in Wallace J's judgment in Ruane which counsel for the applicant cited and which I have quoted, Wallace J described the alleged rule as only an "ordinary working rule". In any event, to describe it as ordinary working rule does not, in my opinion, correctly state the current law in this State. 40 In R v Hammoud (2000) 118 A Crim R 66 Simpson J, with the concurrence of Mason P, in a passage in her Honour's judgment which has been quoted and referred to with approval in a number of subsequent cases, said at page 67 paragraphs 7 and 8:- "[7] I wish to make it plain at the outset that I agree with the approach taken by Dowd J in the restructured sentences he proposes. My difficulty lies in the proposition expressed by his Honour in par 69 of the draft. I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.

[8] As a result of the decision of the High Court in Pearce (1998) 194 CLR 610; 103 A Crim R 372, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix "an appropriate sentence" for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced" 41 At paragraph 11 her Honour said:-

"[11] The application of Pearce in the present case illustrates the reason that pre-existing sentencing practices need modification. "Appropriate" sentences imposed in relation to each individual conspiracy count would, if made wholly concurrent, fail to reflect the total criminality; if made wholly cumulative, would exceed what totality permits. The only solution is, as proposed by Dowd J, to make the sentences partly concurrent and partly cumulative".

42 In R v Weldon (2002) 136 A Crim R 55 Ipp JA said at page 62. "[46] A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct. … This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be appropriate to the gravity of the offence, having regard to all the circumstances of the case.

[47] The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria . [48] It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule…. The practice should not be followed where wholly concurrent sentences, would fail to take account of the differences in conduct, the subject of punishment on each count. Pearce v The Queen (1998) 194 CLR 610 at 624 ". 43 In a number of cases this court has commented adversely on a sentencing judge having made the sentences for two or more offences concurrent, simply on the basis of a finding that the offences were committed in the course of one criminal episode. For example, in R v AEM [2002] NSWCCA 58 the Court said at 90 that the sentencing judge had failed to perform the task that had to be performed of determining whether there were discrete features of the individual offences which would require at least partial accumulation of the sentences. 44 In the present case, even if the two offences were to be regarded as parts of one continuing criminal episode, the conduct which was to be the subject of punishment on each count was different from the conduct which was to be the subject of punishment on the other count and this difference in the conduct to be punished required at least some separate punishment for each offence and hence at least some cumulation of the sentences, in order that the aggregate sentence should adequately reflect the total criminality of the applicant's conduct. 45 It is unsurprising that counsel for the applicant fixed upon the passage in her Honour's remarks in which her Honour said that "both of the offences arise out of the same factual circumstances". However, it appears to me it is simply not true that both of the offences arose out of the same factual circumstances. As her Honour herself had demonstrated in her careful statement of the facts of the two offences, the two offences arose out of quite different conduct by the applicant, the dangerous driving offence out of his conduct in driving his vehicle and the perverting the course of justice offence out of his later conduct in giving a false account to police that he had not been driving the vehicle at the time of the accident. 46 As submitted by the Crown, I would not accept that her Honour failed to take into account the sentencing principle of totality. It is clear from her Honour's discussion of the issue of whether the sentences should be concurrent or cumulative and of the issue of whether the sentences should be only partly cumulative that her Honour was mindful of, and took into account, the sentencing principle of totality. 47 A further matter is, as was submitted by the Crown, that the further offence for which her Honour was sentencing the applicant was an offence under section 319 of the Crimes Act. As was stated by McClellan J (as his Honour then was) in R v Giang [2001] NSWCCA 276 at paragraph 21, this Court has emphasised the necessity, in sentencing for an offence under section 319 of the Crimes Act, to impose a sentence which not only punishes the offender but will deter others from similar conduct. 48 It seems to me that an offence under section 319 has some affinity with an offence of bribing a police officer, in that each offence is an interference with the criminal justice system. 49 In R v Duong (1999) 109 A Crim R 60, a case in which one of the offences was an offence of offering a bribe to a police officer, Wood CJ at CL said at p64 (27) that, "save in the most exceptional circumstances, such an offence will call for a significant term of imprisonment to be imposed cumulatively or at least substantially cumulatively upon the sentence for the primary offence in respect of the detection or prosecution of which the bribe was offered." 50 In my opinion, her Honour was required to make the sentences she imposed at least substantially cumulative on each other. I do not consider that her Honour erred in the exercise of her discretion in deciding to make the sentences for the two offences fully cumulative. 51 As some explanation has been offered for the delay in bringing the application and as I would be prepared to find that the application was not completely lacking in substance, I would grant an extension of time in which to make the application and I would grant leave to appeal but I would dismiss the appeal. 52 GROVE J: I agree. 53 SIMPSON J: I also agree. 54 GROVE J: The orders of the Court, therefore, are: (1) extension of time to make application for leave to appeal against sentence granted; (2) leave to appeal against sentence granted, but the appeal is dismissed.

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