6 December 2007
Craig Andrew LAWRENCE v R
Judgment
1 GROVE J: I agree with Hulme J.
2 HULME J: On 1 December 2006 this Applicant for leave to appeal was sentenced by Judge Marien to imprisonment for a term of 6 years, including a non-parole period of 4 years, both such periods commencing on 1 December 2006 in respect of a charge:-
"That he on 5 March 2006… did drive a motor vehicle… when it was involved in an impact occasioning the death of Dean Freeman, and at the time of impact the said Craig Lawrence was driving the vehicle under the influence of intoxicating liquor, in circumstances of aggravation, namely, that he had in his blood the prescribed concentration of alcohol."
3 The Applicant had pleaded guilty at what was accepted to be the first available opportunity.
4 The circumstances of the offence were that at about 2.45am the Applicant was driving north along the F3 Freeway at a speed which the Judge accepted was near the speed limit of 110kms an hour.
5 The section of the road was straight and level. The vehicle driven by the Applicant collided with the rear of another vehicle driven by a Mr Phillip Freeman and in which Dean Freeman was a passenger. The collision caused Mr Freeman's vehicle to be propelled onto the western railing in consequence of which it overturned and travelled some distance before coming to rest on its roof. The road surface was dry and in good condition and the weather was clear.
6 A statement of facts and of a Judith Perl, a forensic pharmacologist, indicated that at the time of the collision the Applicant's blood alcohol concentration would have been within a range of 0.170-0.185 grams per 100 millilitres with the most likely level being 0.175 grams per 100 millilitres.
7 Counsel appearing before his Honour submitted, and I accept, as his Honour did also, that the applicant should be sentenced upon the basis that his blood alcohol concentration was 0.170. The legal limit for driving is 0.075 grams per 100ml.
8 Dr Pearl's statement referred to it having been established by research that at a level of 0.15 grams per 100ml the risk of a crash is around 22 times greater than if the blood alcohol content is zero.
9 It should be mentioned also that the prescribed quantity of alcohol in s 52A, the section prescribing the applicant's conduct, is 0.150. The applicant was thus towards the lower end of the range applicable to the offence to which he pleaded guilty.
10 During the previous afternoon, the Applicant had been to a Buck's party, leaving his car at a friend's house because he had no intention of driving. After leaving the Buck's party at times variously estimated between 9 and 11pm he went home, stopping at a hotel on the way and there consuming more alcohol.
11 At home and perhaps earlier in the evening he had received text messages from a girlfriend who lived in Newcastle to the effect that she really wanted to see him. He decided to drive to her place. He walked to where his car was at Maroubra Junction and commenced to drive.
12 Evidence given by the Applicant at the time of sentence indicates that he had consumed during the course of the afternoon and evening something in excess of between 6 and 10 schooners of full strength beer, an estimate which accords broadly with a conclusion Dr Perl drew from the Applicant's blood alcohol level.
13 Evidence before his Honour showed that prior to the collision the Applicant was driving erratically. In a number of respects including veering and coming close to hitting the guardrail.
14 His Honour assessed the Applicant's moral culpability in the commission of the offence as "extremely high". In coming to that view his Honour took into account:-
(i) The length of the journey - about 2 hours on a major freeway (and I would add across Sydney).
(ii) The fact that the Applicant was aware he should not be driving, knowing he was drunk.
15 His Honour went on to assess the objective seriousness of the offence as falling at the upper end of offences and this is notwithstanding his blood alcohol level was towards the lower end of the range under the relevant part of s52A.
16 The Applicant's subjective circumstances were favourable. He was born in November 1980. He had no prior convictions, not even for traffic offences. He left school at the end of year 10 and thereafter obtained qualifications as an electrical mechanic fitter. Since leaving school he has been constantly employed with the same employer, an employer who spoke highly of him as did many other persons who provided references.
17 There is some suggestion that the Applicant may have had a problem with binge drinking although until his arrest, he did not think so and any tendency in that direction would certainly seem not to have created problems.
18 His Honour was satisfied that remorse and contrition which the Applicant has expressed was deep and genuine. It seems clear that much of this is for the deceased's family and indeed his own as distinct from simply being sorry for himself. His mother and brother gave evidence of this, the latter describing the Applicant as "shattered".
19 Reports from psychologists to whom the Applicant had turned for counselling after the accident assessed him as having high levels of clinical anxiety and depression. A test by Mr Diament indicated that the Applicant scored 8/10 on the scale of suicidal depression, 9/10 on the low energy depression scale and 10/10 on the scale of guilt and resentment..
20 The evidence satisfies me that the Applicant's reaction to his offence and the death he caused has been extraordinarily severe.
21 The conflicting demands which cases such as this present to sentencing judges have been the subject of considering writing over the years. The most well-known of those cases in this state being R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. There is often, on the one hand, and in this case, an offender who has had an exemplary past who has been guilty of but one piece of stupidity and whose conscious and reaction to what he has done makes one wonder whether any court imposed punishment is necessary. On the other there is the need to recognise the need for some degree of justice to the victim and his or her family and the need for a public demonstration to others who might offend that there is a real and substantial penalty to be suffered for such actions. Momentary stupidity though much such actions are, they are also the product of deliberate choice.
22 The maximum penalty provided by the legislature for offences such as those committed by the Applicant is imprisonment for 14 years. That penalty is of course reserved for cases falling within a worst category of those the subject of the legislative proscription but it forms a standard against which the Applicant's conduct and circumstances must be measured.
23 The submissions on behalf of the applicant took essentially two forms. It was submitted that the sentence on its face was manifestly excessive. Secondly, it was submitted that his Honour had not given adequate weight to a number of factors and indeed in one case had given too much weight. I do not find the latter criticism as valid, that is, that his Honour ascribed inappropriate weight to the speed at which the applicant was driving. It was at the legal limit and I think the only point his Honour sought to make by reference to speed was by way of indicating that the degree of intoxication from which the applicant suffered was the more dangerous because he was travelling at a high, even if legal, speed.
24 I think there is more substance in the complaint that his Honour did not give adequate weight to the applicant's subjective circumstances, both his exemplary record and the impact which the death of Dean Freeman had had on the applicant himself. As I have indicated that impact was very high.
25 This court is of course a court of error and not entitled to interfere with the exercise of sentencing discretion by a sentencing judge unless satisfied that the judge has erred. It is not sufficient merely for this court to reach the view that it or its members would have, had they approached the matter at first instance, imposed a different penalty.
26 Conscious of that restraint on the court's power I am nevertheless of the view that the criticism made by Mr Jeffreys, on the applicant's behalf, is established. I do think the penalty imposed by his Honour demonstrates that inadequate weight was given to the applicant's subjective circumstances and in effect the punishment which he is suffering quite independently of anything the court's can impose.
27 In these circumstances I take the view that the appeal should be allowed, the sentence imposed by Marien DCJ quashed, and in lieu thereof the applicant should be sentenced to imprisonment with a non-parole period of three years but imprisonment for a total term of five years and both such periods to commence on 1 December 2006.
28 SIMPSON J: I also agree.
29 ORDERS