Hughes v Regina [2008] NSWCCA 48 | Case summary

1 McCLELLAN CJ at CL: I agree with Grove J. 2 GROVE J: The applicant appeared for sentence before Hulme DCJ at East Maitland District Court, having been committed there following his plea of guilty in Muswellbrook District Court to a charge of dangerous driving causing death contrary to s 52A (1)(a) of the Crimes Act 1900 in that at the relevant time he was under the influence of the drug cannabis. A term of imprisonment consisting of a non-parole period of three years commencing on 13 February 2007 with a balance term of one year and six months was imposed. Leave is sought to appeal against the severity of the sentence. 3 The hearing in the District Court proceeded upon an agreed statement of facts and his Honour's findings are not challenged. They were, in part: "At about 9.40 pm on Monday 22 August 2005 the offender was driving a heavy vehicle, a prime mover attached to a flat-top trailer laden with sheet metal, on the New England Highway north of Aberdeen. It was dark, the weather was fine but very cold and the road surfaces were generally dry. There was a posted speed limited (sic) of 80 kilometres per hour. The surrounding area is rural with large areas of pastoral grazing land on either side of the road. The offender was accompanied in the prime mover by his partner, Ms Karissa Cook, who was eighteen years of age and three months pregnant. The offender was driving north and came to a sweeping right-hand bend known as Halcombe Hill bends. This is about 2 kilometres north of Aberdeen and about 15 kilometres north of Muswellbrook. At this point there is a single lane for traffic in each direction. There are painted broken separation lines dividing the north and southbound lanes leading to the bend which then becomes a painted median. At the very commencement of the right-hand bend the opposing lanes become separated by concrete jersey median barriers. There is a steel divider at the beginning of this barrier known as a 'crash attenuation system', which is anchored to a concrete foundation. This crash barrier is said to be an energy absorbing crash cushion designed to protect motorists from impacting the end of the concrete barriers by either decelerating or redirecting the vehicle. The crash barrier and concrete dividers can be clearly seen on the road ahead for some distance. There are also road signs warning of the bend, including a large reflective sign showing a truck rollover and an advisory speed for the bend of 75 kilometres per hour and a yellow reflective sign at the beginning of the crash attenuation barrier. As the offender approached the bend he allowed his vehicle to encroach onto the wrong side of the road. He collided with the crash attenuation barrier, completely destroying it. The prime mover then proceeded up on top of the concrete jersey barriers for some distance with the trailer dragging across the road surface. The prime mover then came off the concrete barrier and ended up on its passenger side off the western side of the highway. It came to rest 87 metres from the point of the initial impact with the barrier. The offender managed to open the driver's door and clamber out but as the prime mover then became engulfed in fire he struggled unsuccessfully to pull Ms Cook out. She was consumed by the fire and died of burns. The foetus did not survive." 4 A police crash investigation term did not detect signs of the brakes of the vehicle having been applied prior to initial impact and it was concluded that the vehicle had been travelling at a "moderate speed" when it entered the bend. 5 A blood sample taken from the applicant at a hospital to which he had been conveyed was analysed with a positive result for the presence of cannabis. Dr Perl, a clinical forensic pharmacologist, reported, and his Honour found, that the applicant was under the influence of cannabis to the extent that his driving ability would have been impaired. No degree of impairment was indicated. The concentrations were such that Dr Perl's opinion was that the usage of cannabis had been "recent". 6 The pregnancy of the deceased victim was confirmed at autopsy, however there was no evidence that the applicant had prior knowledge of it before then. The pregnancy was three months advanced. 7 To a witness at the scene, the applicant said that he must have "dozed off" and he said something similar when he was at the hospital. In January 2006, in the company of a solicitor, he supplied police with a prepared statement in which he described a drift of the vehicle across the road as the applicant was winding up a window, during which action he failed to appreciate the camber of the road. His Honour noted that the applicant was embarked on a very lengthy intended journey, was driving a heavy vehicle on a major highway and partook of an illicit drug in the course of his travel, most likely at a break taken at a rest area near Freeman's Waterhole about one to two hours before the collision. 8 In those circumstances his Honour found that the applicant's moral culpability was high and indicated a complete abandonment of his responsibility as the driver of a heavy vehicle. In written submissions, counsel for the applicant stated that she did not cavil with the finding that consuming cannabis while undertaking a lengthy journey at the wheel of a heavy vehicle was indicative of an abandonment of responsibility. His Honour commented that in making his assessment, it did not matter which version given by the applicant was correct. I would endorse that comment. 9 The applicant was aged thirty two at the date of the offence. Some minor prior convictions were noted by his Honour to be not of significance. He observed that the applicant's traffic record included speeding offences, but he did not comment further. As earlier observed, speeding was not suggested by the crash investigators to have been a factor in the occurrence. 10 Two significant past matters were described in a report by Dr Nicholas, a psychologist. They were matters which were found to have had effect upon the applicant. First, his Honour remarked that a fellow worker had been seriously injured (although Dr Nicholas reports that he had been killed) and second, the applicant's former partner, who was the mother of his two sons, had embarked on an affair with his brother. The combination of these events caused depression and anger which the applicant sought to manage by increased consumption of alcohol and the use of cannabis. Nevertheless, the predominant feature emerging from the psychological survey was a finding of despair and depression experienced as a result of the death of Ms Cook. 11 His Honour accepted the opinion of Dr Nicholas that the applicant suffers (the present tense was used) "trauma and unresolved grief, post-traumatic stress disorder and clinical depression". He recorded the applicant's undertaking of WHOS and Salvation Army Bridge Programmes to deal with his cannabis addiction issues. I shall mention more detail of these in relation to one of the grounds of appeal. 12 The applicant was found to have good prospects of rehabilitation and to be unlikely to reoffend. His Honour was satisfied that the applicant was genuinely and deeply remorseful. 13 The argument of the applicant was focussed upon three grounds of appeal, which were expressed as follows: "1. His Honour erred by failing to backdate the sentence to take account of the quasi custody the applicant had served in residential rehabilitation. 2. His Honour erred in concluding that the offence was aggravated by the harm caused to the deceased by the death of the foetus. 3. The sentence is manifestly excessive." 14 At the hearing, these grounds were addressed in reverse order and it is convenient to maintain that sequence. 15 The maximum penalty for an offence contrary to s 51A(1) is imprisonment for ten years. In reference to the total term ultimately imposed of four years six months his Honour stated that "without your early plea of guilty it would have been a sentence of six years". He had earlier specified that for the utilitarian benefit flowing from the plea of guilty there would be a discount of 25 percent. 16 Given some weight which must derive from the favourable subjective matters which have been referred to in the above summary, an assessment equivalent to 60 percent of the maximum available penalty impresses as being so high as to warrant close examination. There is some guideline assistance which can be drawn from judgments of this Court. 17 In R v Jurisic (1998) 45 NSWLR 209 Spigelman CJ had (with the concurrence of other members of the Bench) promulgated a guideline which he reformulated in his judgment in R v Whyte (2002) 55 NSWLR 252. In reference to the former he said at page 286: 215 "The second limb of the guideline in R v Jurisic (at 231E) was as follows: ' With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.' 216 I had earlier (at 231B-C) set out a list of aggravating factors which had been established in the authorities as follows: '(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 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.' 217 Further consideration of the authorities would cause me to amend this list by changing (v) to read 'erratic or aggressive driving' and adding: (x) Degree of sleep deprivation. (xi) Failing to stop. 218 I went on to say (at 231D): 'Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence'." 18 The Chief Justice noted that the reference to "abandonment of responsibility" was one formulation for describing a high degree of moral culpability. He restated the guideline for offences against s 52A (1) (such as the present) and s 52A (3) of the Crimes Act at p 287: "229 The guideline for offences against s 52A (1) and s 52A (3) of the Crimes Act 1900 for the typical case identified above should be: 'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate'. " 19 I have earlier observed that the degree of impairment affecting the applicant as a consequence of his substance abuse was not in any way quantified. The list of aggravating factors which the Chief Justice had tabulated revealed only a limited number of them which were descriptive of the misconduct of this applicant. Obviously there was a degree of substance abuse. Other than to his passenger, there was no suggestion of actual, as distinct from potential, danger to other road users. The length of intended journey was long but the distance in fact travelled to the time of the incident was comparatively short. The extent and nature of injuries, if cognizable in those terms in the case of fatality, is the subject of ground 2, and I will deal with submissions in that context. 20 Counsel for the applicant drew attention to the frequently recurring characteristics mentioned by the Chief Justice in Whyte (at p 284) which included the circumstance that the victim may be a stranger. In this instance, of course, the victim was a person with whom the applicant was in a relationship and in respect of whose death Dr Nicholas reported that the applicant had persistent feelings of worthlessness, hopelessness and guilt. 21 I have already noted that the learned sentencing judge found that the applicant was genuinely and deeply remorseful. In R v Boswell and Other Appeals (1984) 3 All ER 353, Lord Lane CJ (at p 357) referred to mitigating features which may be present in the commission of an offence against the equivalent of s 52A (1) (causing death by reckless driving contrary to s 1 of the Road Traffic Act 1972) and stated: "Sometimes the effect on the defendant, if he is genuinely remorseful, if he is genuinely shocked. That is sometimes coupled with the final matter which we wish to mention as being a possible mitigating factor, namely where the victim was either a close relative of the defendant or a close friend and the consequent emotional shock was likely to be great." 22 In Jurisic, in reference to s 52A Spigelman CJ observed (at p 225): "Legislative development in Australia has been in the same direction as that of England. The considerations which have been taken into account in the development of the English guidelines in this regard, including the list of aggravating and mitigating factors, have also been applied in decisions of this Court." 23 Of course, leniency does not derive from the mere fact that the deceased was not a stranger: R v Howcher [2004] 146 A Crim R 371, but from the consequential quality and depth of the remorse and shock as indicated by Lord Lane. 24 Ultimately on this ground it is necessary to consider whether a sentence of four years six months imprisonment, reached after reduction from an assessed six years imprisonment by reason of the utilitarian value of the plea of guilty, against the statutory maximum of ten years imprisonment was excessively severe. 25 Although his Honour referred to the despair and depression that the applicant experienced at the loss of Ms Cook, and the consequent genuineness of his remorse, it is difficult to conclude that this significant element of mitigation, in particular, has been appropriately reflected in the assessments above recounted. Inappropriateness is more acutely perceptible when the assessments are measured against the statutory maximum which would ordinarily be reserved for a worst case and/or worst offender. The applicant's criminality is well distanced from that level. 26 I consider that ground 3 should be sustained. 27 Ground 2 asserts that there was error in the statement by his Honour in his remarks on sentence when detailing his findings concerning the objective seriousness of the offence: "Then there is the fact that the harm caused to the victim was not only her death but the death of her three month old foetus". 28 Beyond that statement, his Honour did not elaborate. It is the applicant's submission that he treated the death of the foetus as an aggravating factor to which he was having additional regard in his assessment of the seriousness of the offence but, it was submitted, the death to the foetus was comprehended in the fatal injury received by Ms Cook. It therefore was an element of the offence and treating the circumstance as an aggravating factor created an error in the nature of "double counting" whether or not his Honour had s 21A (2) of the sentencing statute in mind. 29 The prosecution of the applicant charged the causing of the death of Ms Cook. No charge was, or could, have been presented alleging that he caused the death of the foetus, who was not "born alive": R v F (1996) 40 NSWLR 245; R v Iby (2005) 63 NSWLR 278. 30 In R v King [2003] NSWCCA 399 it was held that the words in s 33 of the Crimes Act 1900 creating an offence of intentional infliction of grievous bodily harm "to any person" should be construed as encompassing a foetus as part of the mother in that expression. It was noted (at par 90) that the law of homicide was not being considered in that case. Nevertheless the present issue does not involve culpability for any offence of causing harm or death to the foetus, and the reasoning which led to the conclusion that for the purpose of an offence of "causing bodily harm" in Canada (R v Sullivan and Lemay [1991] 1 SCR 489) the foetus was to be regarded as part of the mother and to similar effect in New Zealand (Harrild v Director of Public Prosecutions [2003] 3 NZLR 289) seems to me applicable when the charge asserts exclusively causing death to the mother. Both the Canadian and New Zealand authorities were cited with approval in King. 31 In R v Tzanis [2005] NSWCCA 274, where a sentencing judge in apparent reference to the legislated aggravating factor in s 21A (2)(g) of the Crimes (Sentencing Procedure) Act 1999, namely "the injury, emotional harm, loss or damage caused by the offence was substantial" made what was described as the cryptic remark "the harm caused by the offences was substantial", it was stated by Spigelman CJ that "in the case of death there can be no issue of fact and degree". In Tzanis there were two victims of dangerous driving, one suffering grievous bodily harm and the other fatal injuries. 32 That is not to say that the statement in Tzanis that in the case of death there can be no issue of fact and degree, taken in context, excludes consideration of the circumstances of death in a particular case. For example, it would obviously be relevant, and demonstrate greater objective seriousness, to cause death by prolonged torture than to cause immediate death, at least as a matter of generality. 33 In the present case it is not entirely clear from the remark which I have quoted how his Honour took into account the death of the foetus. If he was having additional regard to it as increasing the seriousness of what was an element of the offence, namely the causing of the death of Ms Cook, then I consider that error has been demonstrated. Although exchanges in the course of submissions do not provide a normal source for detecting error of principle: R v Pham [2005] NSWCCA 94, there are occasions when they can assist in elucidating abbreviated statements appearing in remarks on sentence: for example Daniels v R [2007] NSWCCA 372. 34 In the course of exchange his Honour had said: "So what I could take into account, subject to what you might say, is that in looking at the harm caused to Ms Cook, there was the death to her and there was the death to the three month old foetus which seems to me a potentially more serious case than if it were just the death caused to Ms Cook." 35 As I have said, if that provisional view represents what his Honour implemented, and it would appear consistent with the passage quoted from the remarks on sentence, I consider that this ground has been made out. 36 Having regard to my conclusion in respect of ground 1, this Court would, in any event, proceed to resentence and the significance of whether the possible error in ground 2 has been established is not critical. 37 Ground 1 is focussed upon the pre-sentence entry by the applicant into rehabilitation programmes. He was in a residential programme conducted by WHOS for twenty days but he transferred to the Salvation Army Bridge Programme in order to avail himself of the one-to-one counselling available there. A letter from Mr Muendel, the Director, indicated his good response to that programme and suggested that it might profitably be completed, however his Honour declined to permit adjournment for that purpose so that the applicant participated in the latter programme from 12 December 2006 until he was committed into custody on 13 February 2007. It would appear then, that the applicant lived within the confines of residential rehabilitation facilities for about 103 days. It is apparent from Mr Muendel's report and his Honour's findings that the applicant made beneficial use of his opportunities. 38 It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50 percent of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis. 39 I turn to resentence. It is convenient to note that, having referred to the effect upon himself of the loss of Ms Cook, the applicant records in his affidavit of 7 February 2008 the good relationship which he had with her mother who stayed with him for two weeks after her daughter's death and, subsequent to his incarceration, travelled from Brisbane to Tamworth to visit him when he was in custody in that city. No victim impact statement was presented by any family member and it is open to inference that they were conscious of the loss felt by the applicant as her partner. 40 There is material tendered for the purpose of resentence showing the effect of imprisonment upon the applicant's parents and sons. I do not suggest that what is reported is insignificant but it suffices to find that the circumstances do not portray matters so exceptional as to warrant special reduction of sentence on those accounts. 41 There are, however, to be given account the favourable subjective matters found by his Honour which I would adopt. In addition there are the matters to which I have referred earlier in these reasons. I would also adopt his Honour's finding that there should be a departure in favour of the applicant from the proportion between non-parole period and total sentence specified in legislation. 42 I would assess a total term of four years reduced by 25 percent for the value of the prompt guilty plea. The conviction carries a statutory automatic disqualification from holding a driving licence which his Honour did not alter and which should remain in place. 43 I propose the following:

Hughes v Regina

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