Money v R

Court of Criminal Appeal (NSW)|2007-10-12|Before: Giles JA, Hislop J, Price J

JUDGMENT OF: Giles JA at 1; Hislop J at 2; Price J at 32

DECISION: Leave to appeal granted; appeal dismissed.

R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Whyte (2002) 55 NSWLR 252 Markarian v The Queen (2005) 215 ALR 213

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2006/5308

GILES JA HISLOP J PRICE J

Monday 19 November 2007 Gregory Samuel MONEY v REGINA Judgment 1 GILES JA: I agree with Hislop J. 2 HISLOP J:

On 24 July 2006 the applicant pleaded guilty to a charge that on 5 August 2005 at Maclean in the State of New South Wales [he] did drive a motor vehicle in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to John Ronald King, contrary to the Crimes Act , 1900, s 52A(3). The maximum penalty for such an offence is seven years imprisonment. 3 The plea of guilty was accepted by the Crown in full satisfaction of the indictment, which also contained a charge of occasioning grievous bodily harm to John Ronald King as a result of driving the motor vehicle whilst under the influence of drugs. The applicant had pleaded not guilty to that charge, the maximum penalty for which is also seven years imprisonment. 4 On 14 December 2006 the applicant was sentenced in the District Court to a non parole period of two years nine months imprisonment commencing on 6 December 2006 and expiring on 5 September 2009 with a balance of term of one year six months. 5 The applicant has sought leave to appeal against the sentence on the ground "the sentence is manifestly excessive and a different, less severe, sentence is warranted and ought to have been imposed".

The facts 6 The facts giving rise to the charge were recorded by his Honour, the sentencing judge, in his remarks on sentence as follows: "About 6.20 pm on Friday 5 August 2005 the offender was driving his Holden sedan south on the Pacific Highway just south of New Italy which is between Woodburn and Maclean. At this point the occupants of a car behind him began to take notice of his manner of driving. Their initial observation was of it veering to the right as it was being overtaken and nearly colliding with that overtaking vehicle. From that point the offender's car was seen to wander from right to left on the roadway and almost came into contact with the safety barrier separating the north and south bound traffic. At about 6.30 pm when near Tabbimobile the witnesses became more concerned about the offender's manner of driving and one of them contacted triple 0 to report it. As the witness was speaking to the operator he saw the offender's car cross on to the wrong side of the road and into the path of an oncoming car. He swerved back to the correct side of the road just in time to avoid a collision. This manner of driving with the offender's car crossing to the wrong side of the road into the paths of oncoming traffic was repeated a number of times whilst the witness was on the phone for about four minutes and after the call was terminated it continued with the offender weaving from the fog line in the south bound lane to the fog line on the opposite side of the road with oncoming cars continually having to take evasive action. The VKG operator called the witness back and there followed a conversation for the next 25 minutes in which the witness provided a commentary on the offender's driving. The witness has a substantial experience in driving and estimating speeds of other vehicles and so I accept his estimates as reliable. He estimated the speed of the offender's car varying from 80 kilometres per hour to 120 kilometres per hour but then as it came off the Harwood bridge it was travelling at a little under 60 kilometres per hour and then broke suddenly for no apparent reason. The witness reported that after crossing the Clarence River the offender's driving became even more erratic with regular incursions into the wrong side of the road with numerous near misses with oncoming vehicles. It then slowed to about 80 kilometres per hour and another south bound vehicle overtook both the witnesses' car and the offender's car. The offender's car however veered towards this other vehicle as it passed and almost forced it into the path of an oncoming vehicle. A short time later the road provided a passing lane so there were two lanes for south bound traffic. The offender was at this point in the left hand lane and an ambulance approached from behind and attempted to pass in the right hand lane. The offender's car then moved to the right into the path of the ambulance causing the ambulance to brake suddenly. The inevitable happened a little further on. The road once again only provided a single lane for each of north and south bound traffic. Within a distance of about 200 metres the offender crossed double unbroken lines to the wrong side of the road three times. When he proceeded to do so a fourth time an oncoming Falcon station wagon was forced to take evasive action, swerving to it's left to avoid a collision. It collided with a guide post before losing control, rotating clockwise across the highway into the driver's side of a south bound freightliner B-double. The driver of the truck lost steering control and this caused the truck to cross into the north bound lane and into the path of an oncoming Holden Statesman. The truck ended up down a steep embankment with the prime mover detached from the trailers. The prime mover was upside down. The Statesman came to rest also upside down and was embedded into the side of the truck's first trailer. The Falcon came to rest on the western shoulder of the highway. All three vehicles sustained extensive damage. The offender continued driving south along the highway oblivious to what had occurred. He was followed by the witnesses' car with the driver flashing the car's lights until about 1 kilometre further south the offender pulled over and stopped. The witness alighted, ran up to the driver's door, removed the keys from the ignition and told the offender what had just occurred. The drivers of the Falcon and the Statesman were transported to hospital."

Background 7 The applicant is a divorcee who was born on 6 April 1950. He left school at the age of 16 years with his School Certificate and has led a productive adult life in terms of employment. In December 2005 he took over the management of a business which deteriorated and ultimately failed in September 2006. The applicant has been unemployed since then for the first time in his life. 8 The applicant has a criminal history which his Honour recorded as comprising drink driving offences in 1975, 1986 and 1995. In addition to those matters, his traffic record disclosed offences of exceeding the speed limit in 2002, two in that year, 2000, 1998, 1995, 1994, 1993, 1990 and 1984. Apart from his driving record, the offender, his Honour found, was a person of prior good character. 9 The applicant began drinking alcohol in his mid to late teens. It became a problem in his mid 30s. He sought treatment for this problem and successfully overcame it. 10 The applicant has been a drug user off and on during his life. He commenced smoking cannabis in his mid teens. At age 32 he started using cocaine, which he said was for a brief period. In 2003-04 he started using heroin but said he stopped using it in January 2005. Psychological testing indicated that the applicant has suffered a loss of intellectual ability and cognitive function over the years due to alcohol and substance abuse. He was previously a man of superior intellectual potential but is presently of average intellectual potential. His Honour accepted the applicant had suffered from a variety of emotional problems for a considerable part of his life and that he was in need of psychological and perhaps pharmacological intervention to assist him to overcome them. 11 The applicant acknowledged that the incident was caused by him driving with narcotics in his system. 12 The applicant stated that he wished to admit himself to the William Booth residential rehabilitation programme and had been accepted for admission. His Honour concluded, however, that having regard to his chronic propensity to drug abuse and his lack of genuine remorse and acceptance of the full extent of his criminal conduct, his prospects of rehabilitation were no more than reasonable, although he did not consider he would offend again in this way. 13 His Honour allowed a 15 percent discount for the offender's plea of guilty which had come at a relatively late stage.

The appeal ground - the sentence is manifestly excessive and a different, less severe, sentence is warranted and ought to have been imposed 14 In R v Jurisic (1998) 45 NSWLR 209 this court gave a guideline judgment in respect of offences under the Crimes Act, 1900 s 52A. The court held (at 231) that: "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." 15 The guidelines in Jurisic were confirmed, subject to some relatively minor changes and clarifications, in R v Whyte (2002) 55 NSWLR 252. 16 As the sentencing judge had regard to the guideline judgment in Whyte in formulating the sentence in this case, it is appropriate to record the following matters drawn from that case: (a) There are at least 11 identified aggravating factors relevant to sentencing under the Crimes Act s 52A.

(b) The first two factors focus on the occurrence. Those factors are the extent and nature of the injuries inflicted and the number of people put at risk.

(c) The remainder of the factors refer to the conduct of the offender. These factors may indicate that the offender has abandoned responsibility for his or her own conduct. The expression "abandonment of responsibility" is one formulation for describing a high degree of moral culpability.

(d) The determination of whether the offender has abandoned responsibility for his or her own conduct involves an element of judgment on which sentencing judges could reasonably differ.

(e) The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.

(f) Substantially higher sentences have been imposed where the injuries caused to the victim are of a high degree involving e.g. amputation, blinding, multiple victims.

(g) The guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration.

(h) The guideline is a 'guide' or a 'check'. The sentence imposed in a particular case will be determined by the exercise of a broad discretion, taking into account all the factors required to be taken into account by s 21A of the Crimes (Sentencing Procedure) Act . 17 As to the factors focussing on the occurrence, his Honour found the injuries suffered by Mr King were found to be a severe chest injury, multiple rib fractures, a fractured nose, a fractured left face and a supraorbital fracture. He also had a bilateral flail chest with blood in both chest cavities and a collapsed left lung. He was initially taken to Maclean District Hospital and transferred by air ambulance to Lismore Base Hospital where he remained until 31 August 2005 before being transferred back to Maclean District Hospital for convalescence. As a consequence of the injuries he has had to endure pain for a lengthy period and will be left with some disability. He will experience psychological trauma for a considerable period. Sequelae of his injuries will have an impact upon his enjoyment of life in many respects, some in the short term and some perhaps for ever. His Honour also found there were a large number of people put at risk of death or serious injury. 18 As to the factors referring to the conduct of the applicant, his Honour found: "The key features of the driving here are that the offender was driving in a manner that was grossly dangerous to other road users over an extended period of time. It was for at least 30 minutes over about fifty kilometres on a major highway with a significant traffic volume where, in the main, there was only a single lane for traffic in either direction, divided only occasionally by a cable safety barrier…he deliberately drove when he was in such a state that such extremely dangerous driving was almost inevitable. He embarked upon this journey at Tweed Heads, so he said, which is not much under two hundred kilometres from the scene of the collisions. I do not know what his manner of driving was like before he came under observation in the last fifty kilometres or so but it is relevant to consider that he had consumed the drugs that were later found in his system at some stage before embarking upon a journey of that length and with an intended total journey of in excess of three hundred kilometres." 19 His Honour concluded: "In my view this is a gross abandonment of responsibility with the offender's moral culpability being at a very high level. In terms of the nature of the driving alone it must be amongst the worst of its kind." 20 His Honour stated: "Having regard to both of these features that are relevant to an assessment of the objective gravity of the offence I am satisfied that it does not quite fall within the worst case category but it is very close to it." 21 His Honour concluded that the aggravating features in the present case demanded that a sentence be imposed that was significantly above the two years mentioned in Whyte. His Honour indicated that but for the plea of guilty the total sentence would have been five years. 22 His Honour found special circumstances and in consequence reduced the non parole period to an extent limited by the need for that period to retain an appropriate reflection of the objective gravity of the offence. The special circumstances found were that it was the applicant's first experience of a custodial sentence and that he would need a longer period of parole supervision to assist him to reintegrate into the community and to deal with his substance abuse and psychological issues. 23 The applicant submitted that the sentence was excessive because:

(a) there was no evidence to support his Honour's finding that the abandonment of responsibility was the worst of its kind;

(b) the injuries to Mr King were not at the upper end of the spectrum of grievous bodily harm;

(d) the statistics from the Judicial Commission of New South Wales indicated that the sentence was above the range. 24 His Honour found there was a gross abandonment of responsibility with the offender's moral culpability being at a very high level. He found that in terms of the nature of the driving alone, it must be among the worst of its kind. In my opinion, his Honour's categorisation of the applicant's moral culpability was appropriate. 25 Whilst it is true that Mr King's injuries were not at the upper end of the spectrum of grievous bodily harm in the sense that they did not involve blinding, quadriplegia, loss of limbs, or other such catastrophic injuries they were, nevertheless, extremely serious and have left Mr King with long term disability. 26 The other "occurrence factor" was extremely unfavourable to the applicant in that he put a large number of people at risk of death or serious injury. That this did not occur was purely fortuitous. In my opinion, the combination of these factors weighs heavily against the applicant. 27 It is incorrect to suggest that his Honour gave no weight to subjective factors. His Honour had regard to the subjective features but correctly bore in mind that such was the need for public deterrence with offences of this type that those factors must be given less weight. 28 The statistics from the Judicial Commission of New South Wales indicate the sentence was at the top of the range. However, the upper limit of the range of sentence is not established by the statistical information provided by the Judicial Commission. The upper limit is the maximum set by Parliament. In this case seven years. 29 Sentencing involves a discretionary judgment. The facts of each case are distinct and reference to sentences in other cases, to some of which the Court was taken, are of limited value. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and accords with the statutory regime that applies - Markarian v The Queen (2005) 215 ALR 213.

Conclusion and orders 30 In my opinion, the sentence imposed by his Honour was within the discretionary range open to him. No error on the part of his Honour has been demonstrated. The sentence is not manifestly excessive and a different, less severe, sentence was not warranted in law nor should a less severe sentence have been passed. 31 I propose the following orders:

Appeal dismissed. 32 PRICE J: I agree. **********

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