Nealon v R

Court of Criminal Appeal (NSW)|2021-10-13|Before: Leeming JA, Fullerton J, Hulme J

Judgment

LEEMING JA: Mr Patrick Paul Nealon seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) from a sentence imposed by the District Court following a verdict of guilty from a jury after a trial lasting from 21 October until 8 November 2019 on a single count of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900 (NSW). The maximum penalty is 14 years imprisonment. The District Court (Girdham SC DCJ) imposed a sentence of imprisonment for 8 years and 6 months with a non-parole period of 6 years and 4 months. He was also disqualified from driving for 6 years from the date of his release on parole.
Although the sentence was imposed on 19 March 2020, the notice of appeal was not filed until 9 April 2021. It contains a single ground of appeal, namely, that the sentence is manifestly excessive.
The applicant did not give evidence, either before the jury, or in the proceedings on sentence.

Facts of the offending

On Wednesday 14 December 2016, the applicant was driving a 5.7 litre V8 Holden SS utility. His friend, Mr Joseph Hickey, was a passenger. The pair had been drinking at the Harp Irish Pub for some 4 hours from around 1:30 that afternoon. The applicant's blood alcohol concentration exceeded 0.15g/100ml, and was most likely around 0.162.
The hotel is located on the Princes Highway, the major southbound road out of central Sydney. Some 800m south from the hotel at Wolli Creek, the road splits into 5 lanes at a large signalled T-intersection. Three lanes proceed southwards, with two right-turning lanes.
A number of drivers gave evidence at the trial, and their evidence was reproduced in the statement of agreed facts, to the effect that the applicant was driving at speed and erratically. The applicant's vehicle was captured on exhibit 3, CCTV footage from a bus waiting at the T-intersection to enter the Princes Highway. The applicant's vehicle is seen either in the kerbside lane, or the lane next to the kerbside lane, with a deal of traffic banked up in the two right-hand turning lanes. The applicant's vehicle turned from one of those left lanes, crossing at least 3 lanes of traffic at speed before colliding with the fence protecting a traffic island in the intersection.
Ms Nicole Anne Lewanski was waiting on the traffic island behind the fence for the walk sign to display. She was killed in the collision. The sentencing judge acknowledged the statements from members of her family. They movingly convey the loss and tragedy of a blameless 22 year old with a very bright future whose life was cut down in an instant by the applicant's offending, and the enduring grief which is its legacy.
The sentencing judge found that the applicant approached the intersection travelling at about 80km/h, that he was accelerating and driving erratically and that, just before the intersection, he had cut in front and just missed the left quarter panel of one of the witness' vehicles. Her Honour said that "the offender was intoxicated and weaving through traffic before losing control and colliding with the deceased, traffic light pole, fence and traffic island in the middle of the road". Her Honour was satisfied to the criminal standard that the applicant alone was responsible for the collision.
There had been an issue at trial concerning the blood alcohol level, because a sample was not obtained within the two hours prescribed by the Act. However, there was no challenge to the findings that his blood alcohol level was at least 0.15, that he was affected by alcohol to a very great degree, that he was unsteady on his feet, his eyes were glazed and he was slurring his words.
There was also no challenge to her Honour's conclusion as to the objective gravity of the offence, which warrants quotation in full: "In assessing the gravity of the offence it is necessary to have regard to the entire course of driving, not just in the period immediately prior to the collision but also the journey from the place from where the offender had been consuming alcohol. The evidence established that he had travelled just 800 metres. Even if it were to be accepted that his intention was to drive himself and his passenger to the Wolli Creek train station and from there travel home by train so as to explain his acceleration to get ahead of the traffic in the southbound lanes of traffic, and attempt to execute a right-hand turn in front of that traffic into Brodie Sparks Drive, the fact he had only driven for such a short distance before a life was taken well demonstrates the offender's complete incapacity to drive. It is clear that other road users and indeed his passenger were exposed to risks during the entirety of the time the offender was behind the wheel of his motor vehicle. He drove on the Princes Highway, a major highway out of Sydney, between 5.30 to 5.45pm, and from the various exhibits tendered it is apparent that there was a significant amount of southbound traffic. As he approached a large and busy intersection he accelerated in excess of the speed limit and drove erratically. Many members of the public were put in danger, including pedestrians, who having heard the roar of his car retreated and feared for their life. Any offence of aggravated dangerous driving is an offence of grave seriousness. In respect of the guideline, neither the offender nor his offence fits the typical case, his offence being the aggravated offence provided by s 52A(2) of the Crimes Act. The offender is not a young man and he pleaded not guilty. It is the case Mr Nealon did not himself take any step to assist his victim. I am satisfied he did not leave the scene. Indeed he moved closer, by walking towards the Woolworths car park. From there, doubtless, he was able to see that people had come to the aid of the victim. When approached by civilians at the scene he denied he was the offender. That said, he did acknowledge he was the driver to people in authority and he did express concern for his victim. He did act in a way so as to prevent a breath analysis and did so twice, and did so to protect his own interests. No matter was pressed on the offender's subjective case as a contributing cause or substantial enough to mitigate his moral culpability. On the continuum of moral culpability, my assessment is the offender's conduct amounts to a total abandonment of responsibility. I do not accept his offence as being midrange, as submitted on his behalf. I assess the objective gravity of the offence as a serious and grave example."

Subjective considerations

When sentence was imposed, the applicant was aged 39. He had two convictions for common assault, domestic violence, for one of which he had been bail refused for 26 days but was sentenced to a bond. His criminal history also included two speeding offences, each dealt with by a fine.
The applicant's subjective case was far from being devoid of merit. In certain respects, the sentencing judge made favourable findings. These included a finding of remorse, notwithstanding the plea of not guilty and the failure to give evidence and the Crown's submissions to the contrary. Her Honour accepted that the applicant's statements of remorse to a psychologist were more than mere expressions of regret, triggered by the threat of incarceration. Her Honour also found that he was highly motivated to rehabilitate and not reoffend, and assessed the risk of reoffending as low and prospects of rehabilitation as relatively good.
A psychological assessment report tendered on the applicant's behalf referred to his rural upbringing in Ireland, where he was the youngest of nine children, whose father died when he was five. When he was seven the farm was destroyed by fire. The report said that the applicant described his upbringing as tough. When he was 18 he was the victim of an unprovoked attack by a number of youths leading to injuries requiring surgery.
Ultimately he moved to Sydney where he worked in construction and was in a relationship for some 7½ years. After a period of some distress following the breakdown of that relationship, a second relationship resulted in his fathering a daughter, born in May 2019, some months before the trial.
Her Honour found that the applicant was vulnerable in terms of his mental health, which was made all the more difficult by reason of his separation from his partner and his child on their return to the United Kingdom following the return of the verdict and his remand in custody.
No finding of special circumstances was sought, and none was made.

Manifest excess and the use of sentencing statistics and comparable cases

It is as well to bear in mind the nature of a ground of appeal that a sentence is manifestly excessive. After all, every applicant for leave to appeal from sentence claims that the sentence is excessive. An appeal against sentence is brought from the exercise of a discretionary power and is confined by the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40, including that there is no single correct sentence, that the mere fact that this Court might impose a different sentence does not establish a basis for intervention, and that the basis of this Court's intervention and resentencing is an inference that there has been a misapplication of principle.
As R A Hulme J and I observed in Kane v R [2021] NSWCCA 250 at [11]-[15], the critical question is whether it may be inferred that the sentence imposed by the District Court reflects some misapplication of principle, even though none appears on the face of what was said by the judge imposing sentence. That reflects what has been said on numerous occasions, including by this Court constituted by five judges in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. Ultimately this flows from what was said in House v The King as to the basis upon which appellate intervention occurs in such cases: "the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred". This Court's intervention turns on establishing error, and the gravamen of this ground is that error needs to be inferred because the premise of the ground is that no error is patent on the face of the reasons.
This was elaborated in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]: "Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons."
Thus, even if the sentence imposed upon the applicant were markedly different from other sentences, that would not suffice in order for this Court to intervene. Instead, it is necessary to conclude that there must have been some misapplication of principle, albeit one that is unstated.
The applicant sought to advance the claim that the sentence was manifestly excessive by considering sentencing statistics and individual cases. Both need to be used with care. It is true that in some areas patterns of sentencing may support the conclusion that there has been a misapplication of principle. That is more likely to be so in areas where there is sufficient volume of sentences for the exercise to be meaningful, and where the nature of the offence is such that it does not admit of a wide range of conduct. Conversely, where an offence applies to a wide range of circumstances, the assistance that may be derived from other cases is apt to be more limited. An example may be seen in sentencing for manslaughter. It has long been acknowledged that the circumstances which may give rise to a conviction are so various, and the degrees of culpability so wide, that the assistance from other sentences and from sentencing statistics is limited: see R v Blacklidge (NSWCCA, unreported, 12 December 1995, Gleeson CJ, Grove and Ireland JJ agreeing); R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at [227] (Bathurst CJ, Johnson and R A Hulme JJ) and Tabbah v R [2019] NSWCCA 324 at [128]-[129] (Johnson J, Bathurst CJ and Fullerton J agreeing).
The difficulties attendant upon the use of so-called comparative cases have been repeatedly identified in this Court, most recently in Hall v The Queen [2021] NSWCCA 220 at [132]: "Use of so-called comparative cases in the way the applicant has sought to use them here has been the subject of criticism on many occasions. For example, in Sabbah v R (Cth) [2020] NSWCCA 89 at [132]-[135], Wilson J (with the agreement of McCallum JA and Cavanagh J) said: "This Court has frequently emphasised the lack of utility in relying on a series of cases, or sentencing statistics, or both, to contend that a particular range of sentence can be determined and, in turn, that the impugned sentence falls outside it and is manifestly excessive. The point has been made in, to select a very few from a very long list, Vandeventer v R [2013] NSWCCA 33 at [45] - [46]; Dang v R [2014] NSWCCA 47 at [55]; Pham v R [2014] NSWCCA 115 at [57]; MLP v R [2014] NSWCCA 183 at [41] - [44]; Ngatamariki v R [2016] NSWCCA 155 at [65]; and Naveed v R [2019] NSWCCA 149 at [63]. It is an easy thing to find a case or cases where another offender has received a lesser sentence and, by making the comparison between penalties imposed, argue that the sentence in the case at hand was too harsh. That approach is far too glib a mechanism by which to assess the complicated task which is determining an appropriate sentence for an offender. It also falls foul of what has been said by the High Court about the use of so-called comparable cases. In Hili v The Queen; Jones v The Queen (2014) 242 CLR 520; [2014] HCA 45 at [59] the Court said, citing Dinsdale v The Queen (2000); [2000] HCA 54; 202 CLR 321 at 325 at [6] and Wong v The Queen (2001) 207 CLR 584 at 605 [58]: '[…] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases".' It was held that the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must determine sentences."
It is also necessary to bear in mind what was said in Wong v The Queen at [59], and reiterated by the joint judgment in Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [55]: "[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 who is 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."
The Crown's position in the present case accorded with the foregoing. Its submission was simple: whether the body of sentences was considered collectively, or individually, they merely confirmed that the sentence was not manifestly excessive. As will be seen in what follows, that submission is soundly based.

The submissions based on sentencing statistics

In what follows, I have adopted the same order as Mr Stratton SC's oral submissions.
First, the material supplied by the applicant commenced with 59 sentences for the offence created by s 52A(2) in the period from January 2008 to 23 September 2018. It should be noted that the statistics as presented by the Judicial Information Research System round sentences upwards.
The sentences ranged between 36 months and 9 years. There were 3 sentences of 9 years, 1 of 8 years, 6 of 7 years and 15 of 6 years. Of those 59, some 55 involved pleas of guilty, and it may be inferred that in the large majority of those cases, the sentences reflected a 25% reduction. The applicant's sentence of 8 years and 6 months after a trial accordingly corresponds to a sentence of slightly more than 6 years had there been a plea of guilty. That falls squarely within the mainstream of sentences imposed for this offence.
Secondly, the applicant provided a table showing sentences imposed between 24 September 2018 and 31 December 2019. There were 9 cases. There was 1 case of a sentence of 9 years, 3 for 7 years, 1 for 5 years, 1 for 48 months and 3 for 36 months. Once again, the large majority involved pleas of guilty, and once again it can be seen that the sentence imposed by the primary judge, when it is taken into account that it followed a trial, falls well within that range.
(The division in the JIRS statistics into two periods - before and after 24 September 2018 - reflects the introduction of new community correction orders (replacing community service orders and good behaviour bonds made on conviction) following the commencement of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) on that date. It has no effect upon sentencing for aggravated dangerous driving occasioning death.)
As was raised during the hearing, more recent statistics for the period after 24 September 2018 show 19 cases since 24 September 2018, with 2 sentences of 9 years, 1 of 8 years and 3 of 7 years. The large majority involved guilty pleas.
The applicant's submission based on the statistics was that "the sentence imposed was at the very high end of the pattern of sentencing for this offence" (Transcript, 13 October 2021, p 10). That is only so if one compares the undiscounted sentence imposed on the applicant with the mass of sentences imposed on offenders who pleaded guilty. But on any view of the utility of sentencing statistics, it is necessary to compare like with like. No sensible comparison can be made unless allowance is first made for the fact that the applicant's sentence was imposed after trial. If he had pleaded guilty like the large majority of sentences captured by the statistics, then his sentence would have been much closer to the median.
The statistics alone are of course insufficient to determine whether in light of all relevant circumstances, including the applicant's subjective case, the particular sentence imposed is manifestly excessive. However, when it is borne in mind that there is no challenge to the finding that this was a serious and grave example of the offence, it is plain from what has already been said that the statistics for sentences imposed over the last 13 years do not support the applicant's ground of appeal.

The parties' submissions based on individual cases

Once again, I follow the approximate order adopted by Mr Stratton in oral address.
In R v Wright [2013] NSWCCA 82 this Court dismissed an appeal from sentences for one count of aggravated dangerous driving causing death and another count of aggravated dangerous driving occasioning grievous bodily harm. The first offence attracted a sentence of 9 years imprisonment with a non-parole period of 5 years and 3 months, allowing for a 25% discount for the offender's plea. The starting point, therefore, was 12 years and this Court recorded the offender's disadvantaged childhood (at [32] and [35]) and history of mental illness (at [34] and [40]-[54]). That does not suggest that the applicant's markedly shorter sentence (2½ years less than the undiscounted starting point in Wright) is the result of some misapplication of principle.
In Bombardieri v R [2010] NSWCCA 161; 203 A Crim R 89, this Court allowed a sentence appeal and resentenced an offender who pleaded guilty to a term of 9 years imprisonment, with a non-parole period of 5 years and 9 months. The discount applied was 16.66% (see at [6] and [32]), such that the starting point was a little over 10 years and 9 months. Once again, that does not suggest that the applicant's sentence was the result of some misapplication of principle.
In Conte v R [2018] NSWCCA 209, this Court resentenced, imposing an aggregate sentence for offences of aggravated dangerous driving occasioning death, aggravated dangerous driving occasioning grievous bodily harm and failing to stop and assist after a vehicle impact causing grievous bodily harm. The indicative head sentence imposed for the aggravated dangerous driving causing death was 9 years: at [30]. True it is that in Conte the offender had a powerful subjective case based on his youth and his damaging upbringing (see at [14]-[21] and [23]-[24]). However, bearing in mind that the objective seriousness was assessed as "towards the upper end" (see at [42]) and the unusual fact that the offender was not driving at speed, it is difficult to reach a conclusion that the lesser sentence imposed upon the applicant was the result of some misapplication of principle.
In Smith v R [2011] NSWCCA 290, the thirty year old offender had a blood alcohol reading of 0.188, was driving at between 20 and 40km/h above the speed limit, drove through a red light, crossed to the incorrect side of the road, collided with a series of structures and his passenger died at the scene. The offender had a substantial criminal history and was disqualified from driving at the time. He appears to have received a 25% discount for his plea. The sentence was reduced on appeal to 7 years with a non-parole period of 5 years and 3 months, such that the starting point was 9 years 4 months. Mr Stratton submitted that that sentence was "less than a year more than the applicant" with a "much worse objective case and a much worse subjective case". Certainly aspects of the subjective case in Smith were worse, although it is also to be borne in mind that the victim in Smith was his passenger, rather than a stranger. But this Court intervened in Smith because a sentence of 8 years imprisonment with a non-parole period of 6 years was imposed following an early plea, which corresponds with an undiscounted starting point of 10 years and 8 months. The sentence imposed on the applicant of 8 years and 6 months was almost a year less than that imposed on the offender in Smith after resentencing. It does not render that imposed on the applicant one that suggests error.
Limited reliance was placed on Norouzi v R [2020] NSWCCA 237, which involved an undiscounted starting point of 7 years 11 months in circumstances where the offending was "above the mid-range of objective seriousness". Limited reliance was also placed on R v Meakin [2019] NSWSC 1555, where the offender was travelling within the applicable speed limit when he collided with the deceased and did not stop at the scene, but where he then prepared a statement and presented himself to the police the following day, and was acquitted of murder. The undiscounted starting point was 8 years imprisonment.
Greater reliance was placed on Williams v R [2012] NSWCCA 286; 229 A Crim R 67 where the effective sentence imposed after trial for two offences, one of aggravated dangerous driving occasioning death and one of aggravated dangerous driving occasioning grievous bodily harm, was 8 years with non-parole period of 5 years, with the sentence for the offence under s 52A being 6 years with a non-parole period of 3 years. But Williams was an unusual case. The offender's background was described at [129] thus: "The applicant's history included sexual abuse as a child; intellectual functioning in the borderline range; depression, panic and post-traumatic stress disorders; and ongoing problems with alcohol abuse. She had five children, three of whom lived with her who were aged 3, 5 and 14. Her Honour accepted that she was remorseful and had taken responsibility for her offending behaviour."
Further, the immediate cause of the accident was her passenger grabbing the wheel. Still further, Ms Williams had absconded during the trial, and thus was sentenced also on the basis of a guilty plea to an offence under s 51(2) of the Bail Act 1978 (NSW). For all those reasons, it is difficult to draw any firm comparison between Williams and the present case, let alone infer undisclosed error on the part of the sentencing judge.
Mr Stratton then relied on Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, where the undiscounted starting point was 11 years imprisonment. The offending was worse: the vehicle was stolen, the offender was affected by ice, and he ran away from his 75 year old victim. But Lehn does not support any conclusion that the applicant's sentence (that was 2½ years shorter than that imposed in Lehn) was the result of some misapplication of principle.
Mr Stratton also relied on Hei Hei v R; R v Hei Hei [2009] NSWCCA 87 but that too was an unusual case. The victim was the offender's stepdaughter, and the undiscounted starting point was 7 years imprisonment, on the basis of a discount of 30%. This Court identified error but nonetheless declined to intervene on the basis that no lesser sentence was warranted (see at [27]-[31]). (There was a Crown appeal, but it only related to the period of disqualification.) Hei Hei cannot be relied on to support an inference that the sentence imposed in the present case was the result of error. Indeed, the exercise of discretion not to impose a lesser sentence entails that a sentence that was more severe than that which was imposed would not necessarily have been manifestly excessive.
R v Shashati [2018] NSWCCA 167 was a Crown appeal where this Court resentenced imposing a sentence of imprisonment of 6 years with a non-parole period of 3 years and 3 months. Three of the four passengers (all of whom were family members) were not seriously injured when the offender, driving under the influence of ice, drove off the road surface at a likely speed of 82 km/h. The fatal injuries sustained by the deceased may have been due to his wearing a lap belt with no shoulder restraint. The journey was of at least 30 km and although the offender had a long record of driving offences, he also had a "strong" subjective case. Once again, it is difficult to compare the facts leading to the sentence imposed in Shashati with the facts in the present case.
For completeness, I note that the applicant made brief reference to two more recent cases, R v Bortic [2021] NSWCCA 138 and Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114, but Mr Stratton in my view correctly acknowledged they were of limited assistance.
The Crown submitted that "each of the comparative cases relied upon by the applicant involve distinctly different objective and subjective circumstances to the present case". I agree that most of the individual cases tend to confirm that the applicant's sentence was well justified, and that neither individually nor collectively do they sustain the conclusion that the sentence imposed was manifestly excessive.

Conclusion

The result of considering the sentencing patterns at first instance and in this Court for sentences of aggravated dangerous driving occasioning death confirms that the sentence in the present case falls well within the range of sentences imposed following egregious breaches of the responsibilities of drivers of vehicles. It is true that it is higher than most. That is a false comparison. When allowance is made for the utilitarian discount following the guilty plea that the overwhelming majority of persons charged with this offence make, the sentence imposed after trial in this case is well within the range.
The individual cases relied upon do not support a conclusion that the sentence was affected by error. They support the conclusion noted at the outset as to the difficulties which attend reliance on individual cases in order to establish this ground.
There was no challenge to the primary judge's assessment of the objective seriousness of the applicant's offending as "a serious and grave example", involving in her Honour's words "a total abandonment of responsibility" on the continuum of moral culpability. True it is that the applicant has the benefit of favourable findings of remorse and rehabilitation. But he has failed to establish that the sentence was manifestly excessive.
There was a dispute in this Court about evidence which was sought to be read on the "usual basis" in the event that this Court intervened and resentenced. It is unnecessary to summarise that dispute, or the evidence on which it was based.
I propose that while there should be a grant of leave, the appeal should be dismissed.
FULLERTON J: I agree with Leeming JA.
R A HULME J: I agree with Leeming JA.

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: 06 December 2021

Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017(NSW)

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