Monfries v R [2014] ACTCA 46

Monfries v R [2014] ACTCA 46 - ACTCA 2014 case summary — Zoe

[134]

The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].
Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154].
The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351.
The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225.
There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the "Ellis discount"; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186.
Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291
There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178.
Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280.
The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.
An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129
The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313.
The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise.

[195]

Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

... in seeking consistency, sentencing judges must have regard to what has been done in other cases. ... Care must be taken, however, in using what has been done in other cases.

In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned".

As the plurality said in Wong:

"[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge was about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

(Citations omitted)

[203]

92. The sentences imposed in NSW for offences of aggravated dangerous driving causing death (maximum penalty 14 years' imprisonment) were extensively reviewed by Buddin J in Bombardieri v The Queen [2010] NSWCCA 161; (2010) 203 A Crim R 89. Recently, in R v Wright (2013) 229 A Crim R 245, the NSW Court of Criminal Appeal considered a case of aggravated dangerous driving causing death and grievous bodily harm where, for the offence of occasioning death, the sentencing judge had imposed a penalty of nine years' imprisonment (reduced by 25% from 12 years imprisonment). The victims were two child passengers whom the offender had driven for a distance of 38 km at 45 kph above the speed limit with a blood alcohol reading of 0.157g per 100ml of blood. He drove on a main highway and, during the trip, many other road users were placed at risk. He had four prior convictions for driving with the high range prescribed concentration of alcohol (although none were recent) and he had received a sentence of periodic detention for one of those matters. He had experienced a very dysfunctional childhood. He suffered from a mental disability, but that was found to have had no bearing on moral culpability, considerations of general deterrence or hardship associated with imprisonment. The Appeal Court declined to intervene, describing the sentence as "stern" but within the legitimate exercise of sentencing discretion because the case was "close to the worst type of offence of its kind" (per Price J (with whom Macfarlan JA and Hulme AJ agreed) at [86]). One consideration that was important to this conclusion was that "the applicant was entrusted with the safety of two young persons in his car" at [77]. The case can be contrasted with Woodward v R [2014] NSWCCA 205, in which the NSW Court of Criminal Appeal found that a sentence with an assumed starting point of eight years' imprisonment for an offence of dangerous driving causing death simpliciter (maximum penalty 10 years' imprisonment) was manifestly excessive and reduced the sentence to one with a starting point of five years' imprisonment. The Court found that the moral culpability of the offender was "very high" (the offender was on a provisional licence, the victim was a passenger, there was a high alcohol reading and excessive speed, other road users were placed at risk by erratic and aggressive driving) and there was very little evidence to establish a subjective case.

[253]

(a) young offender: the appellant is not a particularly young offender. He was 24 years old at the time of these offences.

(b) of good character with no, or limited, prior convictions: the appellant has a horrendous prior criminal history with approximately 35 prior convictions for criminal and serious traffic offending. Amongst his prior convictions are convictions for driving a motor vehicle without consent, riding in a motor vehicle without consent, taking a motor vehicle without consent, dangerous driving, reckless driving, failing to stop a vehicle when signalled by police, driving whilst disqualified and furious driving. Evidence was placed before the primary judge of the appellant's involvement in prior incidents where he drove dangerously in order to avoid a police apprehension. On 26 July 2006 at about 3:20 pm the appellant drove a motor vehicle in a reckless manner through suburban streets in a stolen motor vehicle so as to avoid police apprehension. On that occasion he drove at speeds of up to 130 km per hour, and was observed by police driving on the wrong side of the road causing a number of motorists to take evasive action to avoid a collision. At about 4:00 am on 3 March 2007 the appellant was the driver of a stolen motor vehicle which travelled at speeds of up to 140 km per hour in suburban areas so as to avoid apprehension by the police. On this occasion the appellant travelled through a red light and ultimately lost control of the vehicle, causing it to spin 180°.

(c) death or permanent injury to a single person: the appellant's driving caused the death of one victim, and serious permanent injury to another.

(d) the victim is a stranger: the victims of these offences were strangers to the appellant.

(e) no or limited injury to the driver: the appellant suffered minor injuries.

(f) genuine remorse: the primary judge found that, notwithstanding the appellant's pleas of guilty, he was unable to say with any certainty that the appellant was remorseful for what he had done. The primary judge considered that the appellant's guilty pleas probably demonstrated his realisation of the strength of the Crown's case, and he was satisfied that the appellant is more sorry for himself and the situation in which he has placed himself rather than for what he did to his victims. This finding was not the subject of attack in this appeal.

(g) plea of guilty of limited utilitarian value: the primary judge accepted that the appellant's pleas had utilitarian value.

[255]

(a) extent and nature of the injuries inflicted: death was caused to one victim, and extremely serious and permanent injuries were occasioned to the other.

(b) number of people put at risk: the appellant stole the motor vehicle which was the subject of, or used in, these offences at about 4:00 pm on 3 May 2012. At that time he was affected by both alcohol and cannabis. The vehicle was stolen from a car park in Manuka and driven by the appellant to an oval in Hughes. After doing a burnout in Coxen Street, he drove into Webster Street and then towards the intersection of Webster Street with Groom Street. At the intersection of Webster and Groom Street the appellant collided with another vehicle. He did not stop after the collision, and drove his stolen vehicle along Groom Street to the intersection with Kent Street, then along Kent Street to the intersection with Kitchener Street, then along Kitchener Street to the intersection with Birdwood Street, then along Birdwood Street to the intersection of Colvin Street until he turned right onto Colvin Street and stopped the vehicle. He then got out of the stolen vehicle and inspected the damage to it. He then re-entered the stolen vehicle and drove it to a service station in the shopping centre in Hughes. After filling the petrol tank with petrol, he drove the vehicle away from the service station without paying for the petrol onto Conyers Street, then into Wisdom Street before turning into Yamba Drive. The appellant drove the stolen vehicle through a red traffic light at the intersection of Yamba Drive and Kitchener Street, and then along Yamba Drive towards the Canberra Hospital. Shortly after 4:35 pm he approached the traffic light controlled pedestrian crossing in front of the Canberra Hospital. The victims were crossing with the "walk" sign at the pedestrian crossing as the appellant approached on Yamba Drive. At that point he was travelling at about 118 km per hour. The appellant, of course, had a red light facing him at the pedestrian crossing. He drove straight through the red light, narrowly missing one pedestrian, but hitting the two victims. The appellant did not stop, but continued to drive long Yamba Drive until, about 150 m from the pedestrian crossing, he collided with a Ford Territory four wheel drive vehicle, forcing that vehicle into another vehicle and bringing the appellant's vehicle to stop. At the time these offences occurred children could be expected to be travelling home from school, and moderately heavy traffic could be expected on Yamba Drive. His path also took him past a major public hospital where it could be expected that people with limited mobility would utilise the pedestrian crossing. It is not possible to determine precisely how many people were put at risk by the appellant's driving, but it is fair to infer that it was a substantial number.

(c) degree of speed: the appellant was seen to drive at high speed and on the wrong side of the road on Wisdom Street and was also seen to drive at high speed on Kitchener Street. He was also travelling at 118 km per hour on Yamba Drive, a 60 km per hour zone, outside the Canberra Hospital when he struck the victims. The speeds at which the appellant drove reveal a callous disregard for the safety of other members of the community.

(d) degree of intoxication or of substance abuse: the appellant was affected by both alcohol and cannabis at the time he drove the stolen motor vehicle. In a taped record of interview with police the appellant confessed to being intoxicated during the course of his driving. He said that when he stole the car he was "pissed - couldn't see the road properly", and that while he was driving he was "in and out of consciousness". It is clear on the appellant's own version of events that he was highly intoxicated by the alcohol and cannabis he had consumed.

(e) erratic or aggressive driving: from the point at the oval at Hughes where the appellant did a burnout to the point where he collided with the Ford Territory the appellant was observed to drive erratically on multiple occasions.

(f) competitive driving or showing off: this was not a feature of the appellant's driving.

(g) length of the journey during which others were exposed to risk: the length of the journey was not great, being no more than about 4 km. This was not, however, a case of momentary inattention or lapse of concentration, and the journey was through suburban areas at peak hour.

(h) ignoring of warnings: this was not a feature of these offences.

(i) escaping police pursuit: in his record of interview the appellant conceded that he drove as he did on Yamba Drive so as to avoid police apprehension for driving a stolen motor vehicle.

(j) degree of sleep deprivation: this was not a feature of these offences.

(k) failing to stop: the appellant failed to stop his vehicle after colliding with the victims, callously leaving them where they lay on the road. He continued to drive for another 150 m before colliding with another vehicle, and then attempted to flee the scene on foot.

[270]

A detailed examination of "like" cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not regarded as some sort of "benchmark" which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matter is personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.
To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a "like" case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, records to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of "like" cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.
It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in "micro detail", as such an approach will ordinarily be indicative of an intent to use the case is providing something more than a guide to arrange.
Other jurisdictions have also deprecated the practice of inviting comparisons between the challenge sentence and sentences in other cases. Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range.

[281]

149. In the recent case of R v Wright [2013] NSWCCA 82 the Court of Criminal Appeal dismissed an appeal alleging that an aggregate sentence of nine years six months' imprisonment for one offence of aggravated dangerous driving causing death and one offence of aggravated dangerous driving occasioning grievous bodily harm was manifestly excessive. The sentencing judge had reduced the sentence by 25% to reflect the offender's pleas of guilty. The sentence imposed for the individual offence of aggravated dangerous driving causing death was 9 years' imprisonment, so that the starting point for this offence before a discount for the plea of guilty was subtracted, was 12 years' imprisonment. The maximum penalty for that offence was 14 years' imprisonment. The offender in that case was intoxicated by alcohol and drove erratically and at high speed for a distance of approximately 38 km along the Pacific Highway in northern New South Wales. The two victims, who were aged 16 and 14 respectively, were passengers in the vehicle. The offender had a very poor traffic record between 1984 and 1997, including four convictions for driving with the high range concentration of alcohol. His licence was disqualified between 1997 and 2002, and after 2002 he only had one traffic infringement notice for speeding in 2007 prior to the offences, which occurred in January 2011. The offender's upbringing was characterised by abuse and neglect, with his mother suffering schizophrenia. The offender had been to over 20 schools and had six stepfathers, five of whom beat him and one of whom put a shotgun to his head. The offender himself was diagnosed with major depression, alcohol dependence and post-traumatic stress disorder. The offender also suffered significant injuries in the collision which led to the charges. On appeal, the offender argued that the sentence imposed upon him for the offence of aggravated dangerous driving causing death was higher than previous sentences given for that type of offending, and was greater than the upper range of the Judicial Commission statistics for that type of offending. In rejecting those arguments, the Court of Criminal Appeal noted the limited value of what are said to be comparative cases. It was also submitted on behalf of the offender that the sentence imposed for the offence of aggravated dangerous driving causing death was more appropriate for the "more serious" offence of manslaughter. The Court of Criminal Appeal said:

[303]

(i) The victim impact statements speak of the catastrophic affect of Ms Cox's death on her family and friends and of substantial effect of the injuries inflicted on Ms Bumpus: sentencing reasons of Nield J at [25] - [31]. The stolen vehicle was extensively damaged and there was damage to another vehicle arising from a collision with the stolen vehicle: sentencing reasons of Nield J at [24].

(ii) The appellant's admissions facilitated the police investigation and he is entitled to have those admissions taken into account in his favour in the determination of an appropriate penalty for each offence: Sentencing reasons of Nield J at [33].

(iii) The appellant's pleas of guilty, though entered in the face of an overwhelming Crown case, facilitated the course of justice and his Honour discounted the sentences he would have imposed by 10 per cent on account of the guilty pleas: sentencing reasons of Nield J at [35]-[38].

(iv) The appellant was on conditional liberty at the time these offences were committed, a fact which his Honour described as 'a seriously aggravating factor in relation to the subject offences': sentencing reasons of Nield J at [40].

(v) The appellant was just over 24 years of age at the time he committed these offences. His Honour described the appellant in these terms: 'He was not a juvenile, someone lacking maturity; rather he was a young adult ...':Sentencing reasons of Nield J at [41].

(vi) The appellant had a difficult childhood. He was suspended from primary school on a number of occasions and was expelled from secondary school in year 10; he failed to complete year 10. He left home at 16 years of age and has since lived with different friends or relatives. Since leaving school he has engaged in some unskilled work, though only for a few short periods: sentencing reasons of Nield J at [45] - [46].

(vii) The appellant suffers a range of mental health conditions: either Asperger syndrome or Schizotypal personality disorder; substance abuse disorder due to alcohol and cannabis; XYY Chromosome disorder; anti-personality disorder; temporal lobe epilepsy; depression and anxiety. His Honour found that these conditions affected the appellant's relationships and the way he has lived his life; but rejected the suggestion that they caused the appellant to commit the offences for which he was being sentenced: Sentencing reasons of Nield J at [47].

(viii) The appellant has what his Honour described as a 'long and varied criminal record' (sentencing reasons of Nield J at [48]) having been dealt with for some 50 offences including 6 counts of taking and driving a motor vehicle without the consent of the owner; 4 counts of driving a motor vehicle without a driver's license or when disqualified from holding a driver's license; one count each of dangerous driving, furious driving, reckless driving and not stopping a vehicle after a signal from police. In relation to the appellant's criminal history his Honour said:

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