Hoskins v R [2020] NSWCCA 18 | Case summary

Court of Criminal Appeal (NSW)|2020-02-10|Before: Basten JA, Adams J, Hulme J

The applicant's prior offending

The applicant had a history of traffic offences but, somewhat surprisingly, the sentencing judge said it had no bearing on the assessment of sentence.
The applicant was first issued with a learner licence in 2013. A year later, he was fined and disqualified for three months for not complying with the conditions of his licence (being unaccompanied and not displaying L-plates). In 2016, he received an infringement notice for not complying with the conditions of a provisional licence.
Between 10 February 2018 and 21 April 2018, the applicant received three infringement notices for exceeding the speed limit by not more than 10 km/h, not displaying P plates, and exceeding the speed limit by between 20 and 30 km/h. On 22 May 2018, he received a demerit points suspension of his P2 provisional licence for three months until 25 September 2018. (This suspension was operative at the time of the offence.)
On 25 August 2018, the applicant received an infringement notice for not giving particulars after a crash.
On 29 August 2018, the applicant committed an offence of driving whilst suspended. He was arrested and charged for that offence on 3 September 2018 and was fined and disqualified in the Local Court on 22 November 2018.
It is notable that the last two offences were committed in the fortnight before the tragic incident in Waterloo on 6 September 2018.
The applicant also had a criminal history. Aside from driving offences (included in the above) there were offences of aggravated break and enter with intent, taking and driving a conveyance without the owner's consent, and assaulting a police officer in the execution of the officer's duty. These offences were committed when the applicant was aged 15 and 17 and were dealt with in the Children's Court by way of a bond and probation.

The applicant's personal circumstances

The applicant was aged 21 at the time of the offence.
In a Sentencing Assessment Report, the applicant was described as having been "raised in a dysfunctional family environment and exposed to alcohol, drug use and physical abuse". It was reported that he said that "he panicked when he hit the victim and did not consider the victim or how the accident might have impacted her family, witnesses and emergency services". It was only upon reflection that he realised the severity of his behaviour and he surrendered himself to police. The report indicates that the applicant expressed insight into the traumatic effect his offending had upon the victim's family, witnesses and emergency services personnel.
The Community Corrections Officer assessed the applicant as having a "medium-low risk of reoffending". It was considered that supervision in the community was not warranted. The applicant was suitable to undertake community service work if ordered.
A report by Ms Kris North, forensic psychologist, included a detailed account of the applicant's family background. He was the youngest of his mother's six children. He had one full sister and two half siblings on his father's side. His mother was of Aboriginal background and his father was of Maori descent. His parents separated when he was young and he was cared for by his mother until the age of eight. His father then assumed care of the applicant and his sister because his mother was "unfit" because of her drug use, and because of the presence of domestic violence in the family home between his mother and his stepfather.
The applicant told Ms North of having been the victim of physical and psychological abuse by his stepfather. He was physically assaulted and regularly called "black" and "stupid".
The applicant only lived with his father until he was aged 11. That home was also unstable because of conflict and domestic violence between his father and stepmother. His father had a history of alcohol and drug abuse.
The applicant then lived with his maternal grandmother who provided a stable home environment but he said he "didn't feel loved". He returned to live with his mother when he was 15.
The applicant lost motivation and fell in with negative peers. This coincided with the commission of offences that brought him before the Children's Court in his mid-teenage years. His life improved after meeting his now fiancée when he was aged 16. He returned to education and achieved his Higher School Certificate. He pursued an apprenticeship as a plumber, which he completed in 2018. He then began working as a subcontracting plumber and he was working in this capacity at the time of the offence. He attributed these achievements to the support of his partner and her family.
In recent years, the applicant has had an "on and off" relationship with his mother. He was disappointed she had returned to using methylamphetamine. His stepfather committed suicide some years ago. He has a distant relationship with his father who had told him that he would support him through his legal matters but he had not seen or heard from him since his arrest.
At the time of sentencing, the applicant had been in a relationship with his fiancée for six years and they had a two-year-old son. He enjoyed a close relationship with her family.
The applicant had no substance abuse issues. He told Ms North that his father's alcohol abuse and mother's drug abuse had deterred him in those respects.
Ms North described the applicant's account of his upbringing, marked by physical and psychological abuse as a child and witnessing domestic violence and drug use within his family households, as "an extensive history of trauma". She said it was apparent that he had not felt secure as a child because of his dysfunctional home environment and multiple caregivers. He also spoke of experiencing symptoms of depression in the past, including suicidal ideation. Ms North considered that it was highly probable that the applicant would satisfy the criteria for a diagnosis of Post-traumatic Stress Disorder, but this was influenced by his involvement in the tragic events concerned with the offence. She recommended further psychological assessment and treatment, whether in the community or in the custodial environment.
Ms North considered that the applicant was genuine in his expressions of remorse over what had happened.

Some findings of the sentencing judge

The judge assessed the offence as being in the "mid-range of the scale of objective seriousness". Included in the factors he took into account was that the applicant "not only knew that he had collided with a person, but knew that she had died". It had been submitted by the prosecutor that this indicated a more serious example of the offence which can be committed if "the person knows, or ought reasonably to know" that the impact had caused death or grievous bodily harm. The judge took into account that the applicant "did not flee the scene of the fatal accident in a blind panic. He did so on a more calculated basis; namely, that he was concerned that he was driving unlicensed." The judge also took into account that there was no suggestion that the manner of the applicant's driving played any part in causing the fatality.
The judge rejected a submission that the applicant's moral culpability was reduced because of his disadvantaged upbringing. More will be said about this when discussing Ground 3.
After discussing some pertinent aspects of the applicant's subjective case, the judge gave reasons for concluding that certain mitigating factors were present. They were that there was an unlikelihood of reoffending, good prospects of rehabilitation, and the applicant's early plea of guilty. He indicated that for the utilitarian value of the plea he would reduce the sentence to be imposed by 25%.
The judge then discussed a submission that a sentence of imprisonment should be imposed but it should be served in the community under an intensive correction order. He accepted the prosecutor's submission that the seriousness of the offence, reflected in the maximum penalty of 10 years, together with the circumstances of the offence, made it necessary to impose a full-time custodial sentence. He provided reasons for this conclusion by referring to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act, and the statement in R v Pullen [2018] NSWCCA 264 at [52] about giving "sufficient weight to considerations of general deterrence and denunciation" in sentencing for an offence of failing to stop and assist.
Special circumstances were found to justify imposing a shorter non-parole period than would otherwise be the case; namely, the applicant's age, his prospects of rehabilitation, and his low risk of reoffending.
The judge explained his decision to reduce the periods of licence disqualification to the minimum possible by referring to the applicant's good prospects of rehabilitation and unlikelihood of reoffending. Disqualification would impair the applicant's ability to resume his trade as a plumber, which would not serve to foster his rehabilitation.

Ground 1 - error in approach to the applicant's plea of guilty

Ground 2 - error in falling to consider remorse and contrition as mitigating factors

I agree with Basten JA that these grounds were made good for the reasons his Honour has provided.

Ground 3 - error in approach to the "Bugmy principles"

In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 it was held (at [40]) that: "the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way".
The applicant referred to this in written submissions to the sentencing judge. It was submitted that the present offence "could be explained by his upbringing, where flight is the first response, as his moral culpability and community responsibility has not developed to the extent as that of a person raised in a law abiding environment". The prosecutor's written submissions took issue with this, contending that the applicant's explanation was not supported by the psychological report, nor the applicant's explanation to police that he left the scene because he knew the deceased was dead and that he did not have a licence and should not have been driving.
The sentencing judge accepted that the applicant's upbringing was disadvantaged but determined that it had no part to play in the commission of the offence. Consequently, he did not consider it had any bearing upon the applicant's moral culpability. He explained that his rejection of the submissions for the applicant was based upon two reasons: (1) Ms North's report demonstrates the offender has made considerable and commendable steps towards overcoming his childhood disadvantage, and thus I do not see it playing any part in the commission of this offence; and (2) in relation to the possibility of the offender's flight from the accident scene being attributable to the offender's upbringing, the Agreed Facts in fact demonstrate that he decided to drive from the scene because he had lost his licence and knew that he should not be driving (Agreed Facts, [12]).
The judge appears to have regarded the explanation suggested by Ms North as inconsistent with what appeared in the statement of agreed facts. However, there is no inconsistency. Ms North wrote: "28 With regard to his decision to leave the scene of the accident, it was my opinion that his emotional distress immediately following the incident likely led to his panicked state, resulting in impaired judgment and poor decision-making."
Testing by Ms North with a widely used measure of trauma symptomatology revealed that the applicant had what she described as "clinical elevations" on the scales of depression, intrusive experiences, and "defensive avoidance". He also had moderate elevations in relation to anxious arousal, dissociation, suicidality and rejection sensitivity. She said that these were consistent with his history, both as to the accident and the childhood trauma.
It is important to bear in mind that in Bugmy v The Queen (at [43]), the plurality spoke of the enduring negative impact of a disadvantaged and dysfunctional background upon a person. They accepted the Director's submission that "the effects of profound deprivation do not diminish over time" and said, "the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life".
The explanation the applicant gave to the police for leaving the scene of the collision is entirely consistent with what Ms North spoke of; emotional distress and a panicked state resulting in impaired judgment and poor decision-making. The judge should have considered the applicant's explanation in this light and not rejected Ms North's opinion because of inconsistency. The sentencing discretion miscarried in that the judge mistook the facts: House v The King (1936) 55 CLR 499; [1936] HCA 40.

Resentencing

The Court was required to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 in order to determine whether some other sentence was warranted and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3).
There was no submission that the Court should not proceed upon an acceptance of the various findings made by the sentencing judge. They include the mitigating factors that the applicant has good prospects of rehabilitation and is unlikely to reoffend. There is also the reduction of sentence by 25% for the utilitarian value of the plea of guilty: Crimes (Sentencing Procedure) Act, s 25D(2)(a).
It was submitted that the Court should find that the applicant is "genuinely remorseful". That should be accepted for the reasons provided by Basten JA in relation to Grounds 1 and 2.
The applicant's disadvantaged and dysfunctional background operated in two ways in his favour. First, it provided some explanation for his decision to flee the scene immediately after the impact. The Crown's submission that self-interest and self-preservation were key factors may be accepted. However, it was also the case that the applicant's moral culpability was reduced in comparison to a person who had not experienced the substantial trauma of his upbringing. Secondly, the applicant had achieved considerable success in leading an otherwise stable and prosocial life (aside from his traffic record) despite his background. This amply supported the primary judge's findings as to his good prospects of rehabilitation and unlikelihood of reoffending.
The judge's finding of special circumstances was not challenged by the Crown and was maintained.

The sentencing orders

At the conclusion of the hearing on 10 February 2020 the Court made the following orders: 1. Grant leave to appeal from the sentence imposed in the District Court at Wollongong on 14 June 2019. 2. Allow the appeal in part and set aside order (1) being a sentence of imprisonment for 3 years with a non-parole period of 1 year, 6 months, commencing on 7 September 2018 for the offence contrary to s 52AB(1) of the Crimes Act 1900 (NSW). 3. Resentence the offender to a term of imprisonment comprising a non-parole period of 1 year and 3 months to date from 7 September 2018, and taken to have expired on 6 December 2019, with a balance of term of 1 year expiring on 6 December 2020. 4. Note that the offender is entitled to be released forthwith subject to a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW). 5. Pursuant to s 206A(5) of the Road Transport Act 2013 (NSW), order that the 12 months period of disqualification be directed to commence at the expiration of the non-parole period, namely on 6 December 2019, and expire on 5 December 2020. 6. All other aspects of the sentencing orders of the District Court of 14 June 2019 are confirmed. 7. Reasons are reserved.
I agreed with the making of these orders for the foregoing reasons.
N ADAMS J: For the reasons given by Basten JA in relation to grounds 1 and 2 at [7]-[20] and by R A Hulme J in relation to ground 3 I concurred in the making of the orders on 10 February 2020.

Endnotes

R v Hoskins [2019] NSWDC 278 at [33].
(2000) 49 NSWLR 383; [2000] NSWCCA 309.
See note to s 22 and the reference to "the utilitarian value of a guilty plea".
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152 at [32] (Howie J).
Report of Ms K North, Forensic Psychologist, 28 May 2019 at pars 27 and 28.
Tcpt, 31/05/19, p 6(43).
(1998) 45 NSWLR 209.
(2002) 55 NSWLR 252; [2002] NSWCCA 343.
[2018] NSWCCA 167.
Whyte at [216] and [228].
R v Hoskins [2019] NSWDC 278 at [13].
(2013) 249 CLR 571; [2013] HCA 37.
Road Transport Act, s 207A(1).
Road Transport Act, s 206A(3).
Road Transport Act, s 206A(4). 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: 21 February 2020

Under the Road Transport Act 2013(NSW)

Solicitors: Morrisons Law (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/275416 Decision under appeal Court or tribunal: District court Citation: [2019] NSWDC 278 Date of Decision: 14 June 2019 Before: Weber SC DCJ File Number(s): 2018/275416

Hoskins v R

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