Nauer v R

1. The applicant relies on a single ground of appeal, which includes specific particulars relevant to that ground as follows: "A miscarriage of justice was occasioned in the sentence proceedings by the failure of the applicant's solicitor to present relevant evidence of the offender's subjective case by: i) The failure to adduce specific evidence in the applicant's case with regards her psychiatric/psychological condition ii) The failure to adduce evidence as to the need in the offender's case to adhere to her father's request iii) The failure to adduce evidence in relation to the death of a further sister on route to her father's funeral iv) The failure to adduce evidence in respect to the evidence concerning the separation of the applicant and her infant child v) The failure to adduce evidence in respect to the applicant's pregnancy at the time of sentence vi) The failure to call or lead [any] evidence from other family members."
2. Although the ground of appeal is said to relate only to the applicant's subjective case, the applicant submitted that particular (ii) would have been relevant to the sentencing judge's findings on the applicant's level of criminality.
3. So as to identify the type of evidence that would have been available and should have been adduced on the sentencing hearing, the applicant read in this Court: 1. an affidavit of her solicitor, Karen Psaltis, affirmed 17 January 2020, exhibited to which was a report of Patrick Sheehan, a forensic psychologist, dated 30 October 2019; 2. her own affidavit affirmed 12 February 2020, parts of which were read in support of her appeal and part for the purposes of re-sentencing; and 3. an affidavit of her husband, Francis Lavatai affirmed 2 June 2020, parts of which were read for the purposes of the appeal.

Circumstances of the offending

1. The circumstances of the offending are set out in the sentencing judgment. There is no challenge to any statement or finding made by the sentencing judge in this appeal. The applicant merely contends that the sentencing judge did not have before him material that should have been presented on her behalf, which, it is submitted, would have resulted in a lesser sentence.
2. On 28 November 2017, the applicant was 20 years of age. She and a number of members of her family including her father, four siblings, two nephews and her niece had all set out from Griffith in a white Toyota HiAce passenger van to travel to Sydney airport. A number of members of the family, including the applicant, were due to travel to Samoa, the place of the family's origin.
3. They left Griffith at approximately 4.00am. The applicant's father, Antonino Nauer, was driving the vehicle. At around Goulburn, the applicant's father commenced to experience discomfort as a result of a cramp. He asked the applicant if she would drive.
4. At the time, the applicant did not hold a licence, having been disqualified from driving. There is an issue on this appeal as to the significance of the relationship between the applicant and her father, in terms of their cultural background and an alleged compulsion on the applicant to comply with her father's request.
5. In any event, the applicant took over the driving. It seems that she had only had about an hour of sleep since the previous morning, when she had woken at approximately 6.00am. She had been unable to sleep whilst travelling in the vehicle with her father on the day of the accident.
6. They stopped at Mt Druitt for food, to go shopping and deal with a passport issue, after which the applicant continued to drive.
7. At some point after she took over the driving, she noticed that she could feel her eyelids getting heavy. She was aware that she was tired due to a lack of sleep. She told her father that she was tired but her father told her to "hold on" because they did not have far to go. Her sister, Kristen Nauer, was aware that the applicant was tired.
8. As observed by the sentencing judge, despite being aware that she was tired, the applicant continued to drive without stopping.
9. As she was approaching a left hand bend on Mamre Road at Kemps Creek at around 1.30pm, she fell asleep. The vehicle crossed onto the wrong side of the road into the path of oncoming vehicles, including a Mercedes van being driven by Bulent Yilmaz. He was the only occupant in his vehicle. There was a utility vehicle travelling in the same direction as Mr Yilmaz but the driver of that vehicle managed to take evasive action.
10. The Toyota HiAce collided with significant force with Mr Yilmaz's vehicle. There had been no slowing of the HiAce before the point of impact. Fortunately, Mr Yilmaz was able to extract himself from his own vehicle. Indeed, he immediately commenced to help extract the passengers from the HiAce.
11. The applicant and a number of passengers in the HiAce were able to alight from the vehicle. However, the applicant's father and niece required assistance to be extracted. The applicant went to her father immediately, trying to help him and apologising profusely. The applicant's niece, Anelina Matagia, who was at the time two years of age, was observed to be unconscious in the vehicle. She had been launched from her seat within the vehicle, impacting with the inside of the vehicle.
12. There were three children in the vehicle sitting in child seats. As it turns out, none of the child seats were correctly fitted. A forward-facing child seat in the front passenger row was secured using a lap sash and then tied to a handrail on the rear of the seat. A forward-facing child seat in the second passenger row was also secured with a lap sash and tied to a handrail. The rear-facing child seat in the third passenger row was secured only by being tied to the headrest of the seat directly in front of it. None of them were secured to appropriate anchor points.
13. Although the driver of the other vehicle, Mr Yilmaz, avoided any significant injury, the result of the collision in terms of the persons in the vehicle driven by the applicant was as follows: 1. the applicant's father was conveyed to hospital where, on 11 December 2017, he succumbed to his injuries and died; 2. the applicant's 2-year-old niece suffered blunt force injuries to her head and was conveyed to hospital where she was pronounced dead; 3. the applicant's 23-year-old sister, Kristen, who was the mother of the applicant's niece, Anelina, suffered two broken legs and her long term prognosis is uncertain; 4. the applicant's 9-month-old nephew, Elijah, suffered a leg fracture and other injuries. His fracture required surgery; and 5. the applicant's siblings, two aged 16 and one aged 10, were conveyed to hospital but only suffered minor injuries.

Remarks on Sentence

1. The sentencing judge considered the guideline judgment of this Court in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. His Honour referred to the frequently recurring case of an offence under s 52A of the Crimes Act (dangerous driving occasioning death or grievous bodily harm). After referring to the aggravating and mitigating factors in a typical case, his Honour observed that the guideline judgment contemplates death or permanent injury to a single person. A greater number of victims would require an appropriate increment in the sentence to be imposed. His Honour considered that multiple victims will also generally require that there be a degree of accumulation between counts, so as to ensure the vindication of the death or serious bodily injury occasioned to those individual victims.
2. His Honour noted that there were four victims, being the two deceased victims and the two persons who suffered grievous bodily harm; the latter two persons, the offences in respect of whom were dealt with on a Form 1 basis. His Honour considered that this meant that there would be a necessary increase in the appropriate penalty to be imposed in respect of the dangerous driving causing death offences.
3. His Honour referred to a number of aggravating factors, including: 1. the number of persons being put at risk; 2. that the applicant had continued to drive over some period of time, after raising her tiredness with her father, in circumstances in which she had never held other than a learner driver's licence and she had actually been disqualified even from driving as a learner; 3. she continued to drive even though she was sleep-deprived and ignored the warnings that her body was giving to her; and 4. she was the driver of the vehicle in which there were three children seated in the car who were not properly restrained.
4. As the sentencing judge observed, young children who travel in motor vehicles are completely reliant on adults for their safety and security and there is an obligation on those adults to ensure that children travel with safety at all times. Having regard to these matters, the sentencing judge concluded that the applicant's moral culpability was high.
5. The sentencing judge then went on to consider the applicant's subjective case.
6. At the commencement of his remarks on the applicant's subjective case, his Honour stated: "The offender did not give evidence in the sentence proceedings, nor was any character or other evidence called or submitted on her behalf. Somewhat unusually, I was not provided with any psychological or psychiatric evidence concerning her. Her solicitor, Mr Singh, made submissions and I was assisted by the Sentencing Assessment Report dated 4 March 2019."
7. These remarks are central to this appeal.
8. Having made those observations, his Honour went on to make findings on the subjective case. In particular, his Honour accepted the content of the Sentencing Assessment Report and drew inferences from the report favourable to the applicant.
9. The sentencing judge accepted that the applicant: 1. had recently been diagnosed with anxiety and depression; 2. was undertaking counselling; 3. was genuinely remorseful; 4. had ongoing support from her family and the Samoan community; and 5. had good prospects of rehabilitation.
10. Further, the sentencing judge considered that the applicant would suffer from extra-curial suffering including: 1. grief, pain and distress, which had arisen as a result of the loss of her father and niece; and 2. the difficulties that would arise because of the separation of the applicant from her young child.
11. Although his Honour did not accept that this would result in any hardship of an exceptional nature so as to warrant a discrete allowance in mitigation of penalty, he did say that it should be taken into account in a meaningful way.
12. His Honour considered that general deterrence looms large in sentencing for offences under s 52A of the Crimes Act, with the result that a powerful subjective case may be given less weight when dealing with offending of this type. Further, his Honour went on to consider the attitude of the applicant's family, inferring that there was a level of forgiveness and that they remained supportive.
13. His Honour then went on to make a finding of special circumstances having regard to a number of factors, including: 1. that this would be the applicant's first custodial sentence; 2. her young age; 3. her good prospects of rehabilitation; 4. the impact upon her capacity to bond with her young child; and 5. the self-inflicted shame and guilt she has suffered.

The applicant's case on appeal

1. The applicant submits that a miscarriage of justice was occasioned as a result of the failure of her solicitor to present relevant evidence on the sentencing hearing. The sentencing judge was deprived of material relevant to the applicant's subjective circumstances. [1]
2. Psychological evidence of the type contained in the report of Mr Sheehan was not presented. Similarly, evidence from the applicant and other family members was absent. This meant that his Honour was unable to give full weight and effect to the applicant's subjective case.
3. The sentencing judge did not have the benefit of the report of the psychologist, Mr Sheehan and, as such, the applicant submits that his Honour was unable to properly consider the severity of her psychological condition. The applicant relied on the principles set out in De La Rosa [2] and further suggested that the severity of the applicant's psychological condition rendered her case an inappropriate vehicle for general deterrence. Further, it was submitted that a period of custody would weigh more heavily upon her.

The Crown's submissions

1. The Crown accepted that the observations of the sentencing judge as to the absence of evidence were well-founded.
2. However, the Crown also submitted that the onus was on the applicant to establish that a miscarriage of justice had occurred by reason of the factors set out in the ground of appeal. An appeal is not an exercise in determining whether the sentencing process "could have been better done".
3. Leaving aside the Crown objections to the receipt of the new evidence and submissions contrasting matters such as the agreed facts with contentions made by the applicant on this appeal, the Crown's central submission is that the sentencing judge specifically considered and dealt with almost all of the matters raised by way of particulars in the ground of appeal.

Consideration

1. I accept that the legal representative of the applicant did not put material before the sentencing judge which was relevant to the sentencing process and which should have been presented. It is hardly necessary to say that a legal representative of an offender should ensure that all relevant material that might inform the sentencing process is properly gathered and made available to the sentencing judge at the time of sentence. If it is apparent to the legal representative that there might be material that would be relevant and, indeed, that would assist the offender in terms of the sentence that may be imposed, its absence should be raised with the sentencing judge. It might be appropriate to delay sentence until the material has been obtained.
2. As set out in her affidavit affirmed 12 February 2020, the applicant says that her legal representative never explained the Police facts to her. He never asked her questions about her mental health or any ongoing treatment. He did not seek instructions about her upbringing or suggest that any medical records be obtained. She was not informed that she might give evidence on the sentencing hearing or provide a written document to the Court.
3. She says that, as a result of her guilt and depression, she found it difficult to engage with her legal representative and her family. She took the view that she thus needed to be punished.
4. She further relies on the affidavit of Francis Lavatai, her husband. He says he only met the applicant's legal representative once, when he went to pay part of his legal fees. He says he told the legal representative that she was attending counselling sessions at the Griffith Community Mental Health Clinic and provided the lawyer with the contact number of the clinic. He says he tried to encourage the applicant to ask more questions of the lawyer but she responded saying that her mother was dealing with them.
5. It is difficult to discern whether the legal representative did not follow instructions or was not properly instructed. However, there was material that might have been available and should have been presented, which was not so presented.
6. Having said that, on a full reading of the remarks on sentence, it is clear that the sentencing judge drew inferences and made favourable findings as to the applicant's circumstances, having regard to the limited material put before him.
7. There were deficiencies in the presentation of the applicant's subjective case on sentence. However, that does not necessarily lead to success on this appeal, as this Court would need to be satisfied that the failure of the applicant's legal representative to obtain and lead such evidence resulted in a miscarriage of justice.
8. As identified by Beech-Jones J in Tsiakas v R, [3] the question is whether there is a significant possibility that the asserted omissions of the applicant's legal representative affected the outcome on sentence.
9. As identified by Johnson J in Brown v R, [4] something of real significance should be presented to the Appeal Court which is capable of affecting materially the outcome of the sentencing hearing and it is for the applicant to demonstrate that practical injustice has resulted.
10. In Rae v R, [5] Harrison J stated (Macfarlan JA and Cavanagh J agreeing) that the applicant should not be bound by a decision made by his legal representative if the sentencing tribunal can be shown to have been deprived, for whatever reason, of the significant advantage of having material before it that potentially informed a very significant aspect of the subjective case.
11. As I have accepted that there were deficiencies in the presentation of the applicant's case on sentencing, the real issue in this appeal is whether the material that the applicant said should have been presented was of such significance that it would have been capable of materially affecting the outcome of the sentencing hearing.
12. I will consider this issue with reference to each of the particulars raised by the applicant.

The failure to adduce specific evidence in the applicant's case regarding her psychiatric/psychological condition

1. In his report, which was not before the sentencing judge, Mr Sheehan considers the applicant's mental and psychiatric history. Her pre-offending history suggested little by way of psychiatric symptoms, although her difficulties in adolescence might suggest that she was not as well-adjusted as she would portray (according to Mr Sheehan).
2. Mr Sheehan referred to the effects of the accident, including recurring suicidal ideation. He referred to her treatment with the community health psychologist in Griffith and the use of anti-depressant medications. He referred to her worsening condition in custody, although the medication appeared to have improved the position. Mr Sheehan referred to the possibility of the applicant suffering Post Traumatic Stress Disorder ("PTSD"), although he suggested an alternative diagnosis of an Adjustment Disorder with mixed anxiety and depressed mood or Persistent Complex Bereavement Disorder.
3. He concluded that she has manifested a combination of trauma, anxiety, depression and complex grief symptoms as a consequence of the offence. He made reference to her subsequent pregnancies, having both an aggravating and protective influence over her adjustment. She needed a high level of professional support whilst in custody.
4. Although a report of a psychologist or psychiatrist was not adduced on the sentencing hearing, the sentencing judge had before him a sentencing assessment report dated 4 March 2019. His Honour made a number of findings based on that report. He said: "The Sentencing Assessment Report indicates that the offender has recently been diagnosed with anxiety and depression and has engaged with a local mental health counselling service, having completed six face to face and two phone sessions. She is said to be remorseful for the loss she has caused to her family and I accept, notwithstanding the absence of any direct evidence, that her remorse is genuine. If it were not, then in my view the ongoing support that she has from her family and the wide Samoan community would not be evident."
5. Mr Sheehan's commentary on the applicant's mental health issues is more extensive than that contained in the sentencing assessment report. However, leaving aside the possible PTSD diagnosis referred to in Mr Sheehan's report, the finding of the sentencing judge that the applicant had been recently diagnosed with anxiety and depression and that she had engaged with a local mental health counselling service is consistent with the views of Mr Sheehan.
6. The sentencing judge's findings as to the applicant's acknowledgment of her culpability and the prospects of rehabilitation are also consistent with the comments of Mr Sheehan.
7. The sentencing judge accepted that she had good prospects of rehabilitation, given her settled personal circumstances and ongoing support of her immediate and extended family. She had learned a valuable and painful lesson. Mr Sheehan said that during the interview, the applicant acknowledged culpability for the motor accident.
8. As the applicant submits, the failure to obtain a psychological or psychiatric report was a serious omission on the part of the applicant's solicitor. However, in my view, on a comparison of the content of the psychological report obtained for the purposes of this appeal with the findings made by the sentencing judge, I doubt that there would have been any substantial difference in the findings as to the applicant's psychological state.
9. I am not satisfied that the more extensive analysis of her psychological conditions in Mr Sheehan's report would have led to any more favourable findings on the applicant's subjective case.

The failure to adduce evidence in relation to the death of a further sister en route to the father's funeral

1. It is said that this factor further aggravated the applicant's grief and guilt. No doubt it did affect the applicant's grief and guilt but it is difficult to accept the possibility of it affecting the sentence imposed.
2. The sentencing judge accepted that she was remorseful for the loss she had caused and, as his Honour said, notwithstanding the absence of any direct evidence, her remorse was genuine.
3. Further, it is plain from the tenor of the remarks on sentence that the sentencing judge considered this a particularly sad and difficult case (as he specifically said). His Honour identified, as a specific topic for consideration, the applicant's extra-curial suffering. As his Honour said, it is difficult to appreciate with any certainty the depth of both her grief and the grief of her family. His Honour noted there was no expert evidence put before the Court during the sentencing procedures that dealt with this issue but, notwithstanding this lacuna in the evidence, he concluded that having regard to experience and common sense, some weight must be given to this aspect.
4. Evidence about the death of the applicant's sister en route to the funeral of the applicant's father did not lead to any practical injustice, as the sentencing judge specifically considered and gave some weight to the extra-curial suffering, which included the depth of her grief. I do not accept that the absence of evidence about the subsequent death of another sister led to any practical injustice. It does not seem to me that evidence about her sister's death would have affected the outcome on sentence.

The failure to adduce evidence in respect of the separation of the applicant and her infant child

The failure to adduce evidence in respect of the applicant's pregnancy at the time

1. Although his Honour was not informed of the pregnancy, his Honour was well aware of the effect of separating the applicant from her existing young child.
2. Further, the sentencing judge could hardly have been made aware of the applicant's pregnancy because it seems that the applicant may have only been four weeks pregnant at the time of sentencing.
3. His Honour referred to the arrangements that can sometimes be made within a custodial environment for young children to reside with their mothers. Whilst acknowledging the fact that the imposition of the sentence may have the effect of separating the offender from her young child, his Honour also acknowledged that it is an unfortunate but inevitable consequence that young mothers are sent to prison and their children are likely to suffer. He did not consider this exceptional in the circumstances, although, his Honour said it was something to be taken into account in a meaningful way in consideration of the offender's overall subjective case.
4. It follows that there is no merit in these particulars. His Honour took account of the separation of the applicant from her young child (as he said) in a meaningful way.

The failure to call or lead any evidence from other family members

1. Again, this might be viewed as a deficiency but his Honour specifically referred to the applicant's grief and the grief of her family. His Honour also referred to the ongoing support that she had from her family and the wide Samoan community.
2. Adducing evidence from family members as to the type of support they would have been prepared to offer or as to the effect that the accident had on them, or as to their relationship with the applicant, again, would not have taken the matter any further and would not likely have affected the sentencing process.
3. Further, the attitude of the offender's family was dealt with specifically by the sentencing judge. As his Honour said: "As I have noted, they continue to be supportive of her. I have inferred that such support carries with it a level of forgiveness of the offender, notwithstanding that no evidence to that effect was provided. As I have observed during the course of the sentencing proceedings, the attitude of the family of the victims cannot be allowed to interfere with the sentencing process and the proper exercise of the Court's wide discretion."
4. No better findings could have been obtained through evidence from the family members.

The applicant was required/compelled to accede to her father's request that she drive

1. It was submitted that within the Samoan cultural context, it was necessary for the applicant simply to do as her father requested without objection. The applicant in her written submissions stated: "When the full extent of the offender's background and personality structure is taken into account, there should be some degree of mitigation in terms of her moral culpability, given the fact that it was her father in the circumstances making this request. This aspect of a causal connection was not raised in the sentence proceedings. Not only was the acquiescence of the applicant due to 'cultural issues' but was, arguably a result of her personality issues."
2. Again, there is reference to this in Mr Sheehan's report. That is, Mr Sheehan describes that which he was told by the applicant about her strict upbringing and the need for her to comply with her father's request.
3. As the applicant says in para 9 of her affidavit, her father was very strict and often resorted to physical punishment if she disobeyed him. She says that when she told her father she was too tired to drive, he yelled at her. She says she was scared to argue as she thought he might hit her.
4. However, there is no merit in this particular submission because the sentencing judge specifically referred to the submission to the same effect advanced on the applicant's behalf as follows: "During the preparation of the Sentencing Assessment Report she told the author that she felt unable to say no to her father when he asked her to drive on the day of the accident. Mr Singh also advanced this submission, which was to the effect that within the Samoan cultural context it was necessary for the offender simply to do as her father requested without question. I would observe that while this may generally be regarded as both positive and respectful, it cannot provide any valid explanation for the fact that a large number of people were exposed to a very serious risk of harm as a consequence of the offender's behaviour and further, that, in electing to drive, the offender was in any event committing the criminal offence of driving while disqualified."
5. The fact that there is a commentary in the psychologist's report about the applicant's views on the topic, that is, that she felt compelled, would not have added to the sentencing judge's understanding of the submission.
6. The significance of this alleged cultural and personal compulsion was developed further in oral submissions on behalf of the applicant. It is also said to be a mitigating factor which was not considered by the sentencing judge in terms of moral culpability.
7. Whilst cultural differences might be a relevant factor in the sentencing process in some circumstances, I am not persuaded that a finding of moral culpability should be reduced on the basis put forward. The applicant was 20 at the time. Whatever respect she might have had for her father and whatever view she might have held about the need to obey him, I do not consider that culpability should be reduced on the basis that it was her father who had told her to drive. I do not accept that she was compelled to drive in circumstances in which she must have known that to continue to drive was dangerous and that she might fall asleep. I agree with the sentencing judge's quite specific finding on this issue.

Conclusion

1. The applicant has not established that the failure of her legal representative to put relevant evidence before the sentencing judge resulted in any injustice to her.
2. That is because the sentencing judge made findings about the applicant's mental health based on other evidence and drew inferences favourable to the applicant's subjective case irrespective of the absence of direct evidence. The failure to adduce lay evidence to establish a matter that the sentencing judge accepted in any event could hardly lead to any miscarriage of justice.
3. I would also say that the sentence imposed is within the range for these types of offences, particularly having regard to the aggravating factors and the need for general deterrence. The applicant submitted, at least faintly, that general deterrence did not have a big role to play. I disagree. Whilst alcohol was not involved, this accident was caused because the applicant fell asleep at the wheel.
4. It is well known that such conduct can lead to catastrophic results as it did in this case. There is a requirement for general deterrence in the sentencing process when considering this type of offending.
5. Further, the longer period of parole is plainly a result of the sentencing judge's consideration of the applicant's subjective case. This tends to detract from the proposition that the deficiencies in presentation of the subjective case could possibly lead to a different sentencing result.
6. In the circumstances, I would grant leave to appeal and dismiss the appeal.

Endnotes

1. Munro v R [2006] NSWCCA 350 at [25] (Beazley JA).
2. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178] (McClellan CJ at CL).
3. [2015] NSWCCA 187 at [42]-[44] (Leeming JA and Johnson J agreeing).
4. [2018] NSWCCA 257 at [51].
5. [2019] NSWCCA 284 at [37]. 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: 23 July 2020