Page v R

Court of Criminal Appeal (NSW)|2007-11-21|Before: McClellan CJ, Hall J, Price J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - aggravated driving causing death - contributory negligence - onus of proof - sentence not manifestly excessive - psychological report not tendered at hearing - lesser sentence not warranted - no miscarriage of justice.

Nudd v The Queen (2006) 80 ALJR 614 R v Jurisic (1998) 45 NSWLR 209 R v McNaughton (2006) 66 NSWLR 566 R v Olbrich (1999) 199 CLR 270 R v Ryan (2003) 141 A Crim R 403 CASES CITED : R v Storey [1998] VR 359 R v Thomson & Houlton (1999-2000) 49 NSWLR 383 R v Whyte (2002) 55 NSWLR 252 R v Woodward [2001] NSWCCA 90 Regina v Fernando [2002] NSWCCA 28 Thompson v R [2007] NSWCCA 299

PARTIES: Patrick John Page Regina

COUNSEL: Patrick John Page (Self Represented Applicant) N Adams (Respondent)

SOLICITORS: S Kavanagh Public Prosecutions ( Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Patrick John Page

CRIMINAL APPEAL 2006/5055

McCLELLAN CJ at CJ HALL J PRICE J

1 McCLELLAN CJ at CL: I agree with Price J. 2 HALL J: I agree with Price J. 3 PRICE J: On 27 July 2006 Patrick John Page, the applicant, pleaded guilty in the District Court at Parramatta to a charge that on 3 June 2005 at Bankstown in the State of New South Wales he drove a motor vehicle in a manner dangerous to other persons whereby the vehicle was involved in an impact as a result of which the death of Trong Tai Pham was occasioned and when he was driving the vehicle in an attempt to escape pursuit by a police officer. The offence being one of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act 1900 is punishable by a maximum penalty of 14 years imprisonment. 4 At the time the plea was entered, it was indicated that certain facts were in dispute and the proceedings were set down for hearing. When the applicant came before the Judge on 31 July 2006 three areas of dispute were identified being the speed the applicant's vehicle was travelling shortly before and at the time of impact; the contribution (if any) to the accident of the levels of morphine and codeine in the applicant's blood and whether there had been significant contributory negligence by the driver of the vehicle in which the deceased had been a passenger. 5 After hearing evidence over three days, the Judge on 3 August 2006 was satisfied beyond reasonable doubt that the applicant's vehicle was travelling at 65 kilometres per hour just before impact. Her Honour found that he was significantly impaired by the consumption of heroin. Her Honour was further satisfied beyond reasonable doubt that there was no contributory negligence by Mr Nguyen, the other driver. 6 Following submissions on sentence, the applicant was sentenced to imprisonment with a non-parole period of four years to date from 3 August 2006 with a balance of term of one year and four months. An offence of driving a conveyance knowing that it was taken without the consent of the owner contrary to s 154A(1)(b) of the Crimes Act on a Form 1 was taken into account. The applicant is eligible to be released to parole on 2 August 2010. 7 The applicant seeks leave to appeal against the sentence imposed. 8 Related charges were dealt with pursuant to s 166 of the Criminal Procedure Act 1986 and are not the subject of this appeal. 9 The notice of appeal identifies eight grounds some of which may be conveniently dealt with together. The applicant who is self-represented did not appear before this court and is content to have the appeal determined on the written submissions which have been filed. He was legally represented during the proceedings before the Judge. 10 The facts which were found by the Judge were relevantly as follows (ROS at p3-4): " At 6pm on Friday 3 June 2005, Mr Page was driving a vehicle which had been stolen from Mr Aloisi in March 2005. He was observed by Senior Constable Curtin, a police motorcyclist, to be travelling at excessive speed in Northam Avenue, Bankstown. Senior Constable Curtin followed the vehicle, the Ford XR8 utility. He made some inquiries over the police radio about the registration plate displayed on the rear of the vehicle and found that it belonged to another car, a red Mitsubishi with expired registration. He then continued to follow the vehicle and at a set of traffic lights, he pulled up next to the driver's side window of the vehicle and asked Mr Page to pull over at Stanley Street so that he could talk to him about the car and Mr Page agreed. When Mr Page turned from Stacey Street to Stanley Street he accelerated such that the constable formed the view that Mr Page was not going to pull over as he had agreed to. Senior Constable Curtain pursued Mr Page and at some point along that street, probably a bit later than he initially gave in evidence in these proceedings he called a pursuit. Mr Page continued to accelerate along the road, overtaking a vehicle on the left hand side near the first cross street of Cross Street and accelerated to a speed which I found, after the disputed facts hearing to be 65 kilometres per hour in a 50 kilometre per hour speed limit zone and his vehicle collided with a vehicle which the driver, Mr Nguyen, had reversed out of the driveway at 20 Stanley Street, Bankstown. Mr Nguyen had a passenger in his car. The car was on the roadway at the point where Mr Nguyen was intending to being to drive the vehicle forward, having completed the reversing motion, when the collision occurred. Mr Pham, the passenger, suffered fatal internal injuries and died at the scene. Mr Page ran from the utility and ran through nearby residential properties followed by Senior Constable Curtin on the motorcycle and by members of the public who eventually assisted in apprehending Mr Page. He was taken to Liverpool hospital, a blood sample was obtained and showed that Mr Page had a morphine level of .87 milligrams per litre of morphine [sic] in his blood. There was also a small concentration of codeine. A mechanical examination revealed no mechanical fault or defect in the vehicle which contributed to the collision. It was found that Mr Page was a disqualified driver from the period of 8 April 2004 to 8 April 2006. That gives rise to the related offence of driving whilst disqualified." 11 The applicant was born on 24 September 1968 and was 37 years old at the time of sentence. He has an unattractive prior criminal history. Her Honour counted 17 entries for driving whilst disqualified or driving whilst cancelled; two offences of driving under the influence or driving in a manner dangerous; 18 offences of break, enter and steal; 49 entries for stealing or receiving stolen goods or being in custody of goods suspected of being stolen and 44 entries in terms of offences of illegal use of motor vehicles, stealing motor vehicles or possessing implements capable of being used to enter motor vehicles. The Judge found that the applicant's criminal history "indicates a continuing disregard for the law by Mr Page and a need for personal deterrence" (ROS at 6). 12 The applicant gave evidence during the proceedings on sentence. Her Honour expressly noted that since he had been in prison he had undertaken a methadone program and was on a reduced dosage. The applicant said that he had been a heroin user for 10 to 12 years. 13 At the time of the commission of the offence the applicant was on parole for an offence of break, enter and steal. Her Honour noted his evidence that he had stopped reporting to his parole officer and had left the Charles O'Neill Life Skills Program which he was required to enter as a condition of his parole. His parole had been revoked and at the time of sentence he was serving the balance of parole. Her Honour remarked upon the applicant's ambitions when released from custody to settle down with his partner and hopefully have children with her. 14 I now propose to deal with the grounds of appeal. 15 Ground 2: Given the circumstances and advice I received from my legal team that the discount for the plea of guilty of only 10 per cent fell short. 16 The "final paperwork", was not put forward, the applicant submits, by the Crown until very late and his plea of guilty was entered shortly after the paperwork was submitted. He further mentions that one of the trial dates was adjourned due to the state of the cells in the Parramatta Court complex. He submits that a discount for the plea of 15 to 20 per cent should have been allowed by the Judge. 17 The Crown submits that the trial was listed on two occasions but the trial dates were vacated on applications by the defence. 18 As her Honour observed, the plea of guilty was entered two [working] days before his trial was to commence. He was charged with the offence contrary to s 52A(2) of the Crimes Act on 30 June 2005. A plea of not guilty was entered in the Local Court and he was committed for trial. Counsel for the applicant submitted to the Judge that the applicant had always been willing to plead guilty to the simple offence of dangerous driving occasioning death which her Honour rejected as operating in anyway to increase the utilitarian discount for the plea as the Crown had never been willing to accept a plea to the lesser offence. The Judge considered that neither late funding obtained from Legal Aid nor the late retainer of Professor Starmer should impact upon the assessment of the discount. Having regard to the lateness of the plea and the disputed facts, her Honour assessed the discount for the utilitarian value of the plea to be 10 per cent. 19 This was a late plea of guilty the utilitarian value of which was diminished by the disputed facts hearing which occupied some four days. It is unclear what the "paperwork" is the applicant refers to but it seems from the submissions made by his counsel to the Judge that the late service of Crown documents was the reason advanced for the first trial to be vacated. In any event, it was always open to the applicant to plead guilty in the Local Court or to advise his legal representatives that he wished to do so after he had been committed for trial. The adjournments which delayed the commencement of the trial could have been avoided by the entry of a plea of guilty. 20 It is well established that the discount for the utilitarian value of a plea should generally be assessed in the range of 10 to 25 per cent: R v Thomson & Houlton (1999-2000) 49 NSWLR 383. It was open to her Honour to assess the utilitarian value of the plea at the low end of the range and no error has been demonstrated. Ground 2 of the appeal is rejected. 21 Ground 4: I believe her Honour erred in not finding any contributory negligence on behalf of [the] other driver Mr Nguyen.

Ground 5 : I believe more weight should [have] been given to the fact the photos tendered as evidence did not reflect the true setting on the night. 22 The applicant raises a number of aspects of Mr Nguyen's evidence during the disputed facts hearing which, he submits, shows that Mr Nguyen did not look before he (Mr Nguyen) reversed onto the roadway. He contends that the photographs from the night of the accident support [a finding] that there is no way Mr Nguyen could have seen his vehicle when he said he did. The photographs, he submits, taken at a later date which were tendered in evidence mislead the court as to the "real view" on the night. Mr Nguyen, he argues, was either mistaken or incorrect in his evidence that he saw the applicant's vehicle and no other. He makes further reference to differences in Mr Nguyen's estimates of the time from when he looked until he reversed his car onto the roadway. The applicant contends that when Mr Nguyen reversed onto the roadway it was difficult to see [his vehicle] as it did not have its headlights on. He points out that the Crown's submission that Constable McIntyre inspected Mr Nguyen's car at the scene and observed that the light switch was in the "on" position was incorrect which is conceded by the Crown. He provides a hand drawn sketch showing trees, parked cars and lamp posts in support of his submissions. 23 The hand drawn sketch was not in evidence before the Judge and the Crown objects to its tender. As the Crown points out there is no evidence that it is an accurate depiction of the street on the night of the collision and the sketch is of no assistance. 24 All of the matters of which the applicant complains were sedulously considered by the Judge. Her Honour found that Mr Nguyen's estimate of the time it took him to reverse down the driveway was not reliable. She accepted as being correct the criticism that the photographs taken not on the night by police did not accurately represent the scene on the night so far as there was an absence of parked cars. Her Honour, however, found that these photographs supported Mr Nguyen's evidence and showed that a person could see the headlights of a car coming into Stanley Street at that point on the driveway where Mr Nguyen said he was. Having regard to the quality of Mr Nguyen's evidence and to the photographs, her Honour accepted Mr Nguyen's evidence. Her Honour found that Mr Nguyen, was "a patently honest witness". 25 As to the applicant's contention that Mr Nguyen's vehicle did not have its headlights on, Mr Nguyen gave evidence that the headlights were on when he reversed out. It was the applicant's evidence before the Judge that he did not see Mr Nguyen's car before impact. 26 Where the evidence of witnesses conflict it is a matter for the Judge at first instance to determine which evidence is to be preferred. The Judge had seen and heard the witnesses. The weight to be given to evidence was also a matter for her Honour. Having accepted Mr Nguyen's evidence, her Honour found there was no evidence of contributory negligence and was satisfied beyond reasonable doubt that there was no contributory negligence by Mr Nguyen. Her Honour carefully assessed the evidence and the conclusions of fact the Judge reached were open to her. 27 The next point raised by the applicant is that in applying a standard of proof beyond reasonable doubt her Honour erred as the contributory negligence of Mr Nguyen had been advanced by him as a mitigating factor. The standard of proof was, he submits, on the balance of probabilities. 28 In the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in R v Olbrich [1999] 199 CLR 270 at [27] what was said by the majority in R v Storey [1998] VR 359 at 369 was adopted that a sentencing Judge: "…may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities." 29 The presence of contributory negligence on the part of the other driver, in my opinion, was a factor which may have been taken into account in favour of the applicant as reducing the objective seriousness of the offence. The applicant bore the onus of proving contributory negligence on the balance of probabilities. 30 In the proceedings before the Judge the Crown submitted that it was required to prove beyond reasonable doubt that there was no contributory negligence on the part of Mr Nguyen. The Crown did not submit nor did her Honour adopt as the standard of proof that the applicant was required to prove contributory negligence beyond reasonable doubt. The standard of proof that the Judge applied was that the Crown was required to negative the existence of contributory negligence beyond reasonable doubt. This was a heavier burden than that of the onus being on the applicant on the balance of probabilities. Although the incorrect standard of proof was applied it did not impact adversely to the applicant on the finding that was ultimately made by her Honour. Moreover, the Judge accepted Mr Nguyen's evidence. This ground of appeal fails. 31 Ground 6: I feel given the evidence of Senior Constable McIntyre of the Metro Crash Invest Unit show (sic) that I acted to the best of my ability to avoid the accident. 32 There is no merit in this ground of appeal. The Judge reviewed in her judgment Senior Constable McIntyre's evidence. One of her factual findings was a rejection of the applicant's assertion that Mr Nguyen must have reversed out of the driveway very quickly and without checking. The factual findings which were made were open to the Judge on the evidence. 33 Ground 1: I believe that the sentence imposed taking into account all facts was manifestly excessive.

Ground 7 : Given the guideline judgments in the two cases R v Jurisic and R v Whyte that the sentence imposed is on the high side. 34 Although two separate grounds are identified, there is in reality one complaint which is that the sentence imposed was manifestly excessive. 35 The applicant submits that on all [of] the facts that the sentence [should not have] fallen at the top end of the scale. On the information he had received from the Judicial Commission of NSW for sentences for similar offences he contends that his sentence was at the top end of the scale. He submits given the guideline judgments in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252, that his sentence was at the very top end of sentences that have been imposed. More weight, he argues, was given to the factors of aggravation than there should have been. 36 The information which the applicant says that he received from the Judicial Commission was not detailed in his submissions nor was it forwarded to this Court. The Judge was, however, referred to statistics from the Judicial Commission's database by the Crown to which her Honour in her sentencing remarks said "showed sentences ranging from twelve months to eight years head sentence with non-parole periods or fixed terms ranging from twelve months to six years." ROS at 10. 37 As was said by Hislop J in Thompson v R [2007] NSWCCA 299 at [24] the upper limit of the range of sentence is not provided by the statistical information provided by the Judicial Commission but by the maximum penalty which in this case is 14 years. 38 Her Honour was further referred to a number of relevant decisions of this Court by the applicant's counsel which included R v Ryan (2003) 141 A Crim R 403 which she said provided some guidance. 39 In Jurisic this Court gave a guideline judgment in respect of offences under s 52A of the Crimes Act. 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." 40 In Whyte the guidelines in Jurisic were confirmed subject to some relatively minor changes and clarifications. 41 In the present case, the applicant was charged with an aggravated offence of dangerous driving causing death. The element elevating it to an aggravated offence (increasing the available statutory maximum from 10 to 14 years imprisonment) was his driving to escape pursuit by police. Spigelman CJ said in Whyte at [231]: " In the case of the aggravated version of each offence under s 52A of the Crimes Act 1900, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required." 42 Careful regard was given by her Honour to what was said in Jurisic and Whyte. The Judge noted that escaping a police pursuit was the factor which gave rise to the aggravated offence and that other aggravating factors present included the applicant's substance abuse which had significantly impaired his driving ability by recent consumption and the degree of speed at which he was driving above the speed limit. 43 Her Honour found that it was an aggravating factor that the offence was committed whilst the applicant was on parole. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see, for example, Regina v Fernando [2002] NSWCCA 28 at [40-42]. 44 As her Honour found in the passage I have quoted at [9] (supra), the applicant's criminal history indicated a continuing disregard for the law. The Judge was entitled having regard to the criminal history to give more weight to considerations of retribution, personal deterrence and protection of the community than otherwise would be the case: R v McNaughton (2006) 66 NSWLR 566. 45 Her Honour, in my opinion, gave appropriate weight to the factors of aggravation and to the defendant's subjective circumstances. 46 The Crown cited the decisions of this Court in Ryan and R v Woodward [2001] NSWCCA 90, in which a number of decisions of this Court concerning sentences for offences under s 52A of the Crimes Act were reviewed. There is no need to detail what otherwise can be read in those judgments. It is sufficient to state that the broad sentencing pattern disclosed does not lead me to conclude that the applicant's sentence is manifestly excessive. 47 This is a serious crime. A collision occurred as a result of which Mr Pham lost his life. At the time the applicant was being pursued by police. Although the speed of the applicant's vehicle was not so high as is often featured in police pursuits, it was being driven well in excess of the speed limit. His ability to drive the motor vehicle was significantly impaired by the consumption of heroin. The applicant was subject to parole at the time and his criminal history was significant. In determining the appropriate sentence, her Honour took into account, as was required, the offence on the Form 1. 48 I am not persuaded that the sentence imposed was manifestly excessive. The sentence was in my view within the discretionary range open to her Honour. 49 The applicant contends that the Judge should have considered backdating his sentence. He was at the time of sentence serving the balance of parole. It was open to her Honour to commence the sentence from the expiration of the balance of parole on 14 March 2007. Although the Judge thought it was unlikely that the applicant would be released prior to 14 March 2007, her Honour considered the possibility. In order to avoid any gap between the applicant's possible release and the commencement of the sentence to be imposed, the Judge commenced the sentence on 3 August 2006 which benefited the applicant. The date of commencement of the sentence was a matter within the Judge's discretion and no error has been demonstrated. 50 Grounds 1 and 7 of the appeal have not been established. 51 Ground 3: I know her Honour erred in failing to find the defendant showed little contrition or remorse for the offences.

Ground 8 : I also feel that my solicitor failed in presenting relevant [psychological] evidence that was available on the effects of the accident on me. 52 These grounds of appeal are considered together as in each ground the applicant complains about his legal representation. 53 The applicant states that the Judge said that "she felt I showed little or no remorse nor did I show any contrition". He blames his legal representation for this as it was "their job" to ensure the right questions were asked to enable him to express his true feelings. 54 It seems that the applicant has misunderstood what was said by her Honour. The Judge said (ROS at 7): "In terms of contrition or remorse, Mr Page did not expressly express contrition or remorse for the death of Mr Pham. He said words to the effect of, "there's nothing I can do or say to change that," referring to Mr Pham having died at the scene. He said, "I'm not going to say I understand how his son feels." It seems perhaps that that form of expression of remorse, which is not the most full or frank expression of remorse that I have heard in a court, is perhaps a result of what I perceive to be Mr Page having been hardened by his life of offending and his life in prison." 55 And further (ROS at 9): "Genuine remorse which, as I have said, I think it is qualified in expression but I think I can find it there…" 56 The Judge did not find that the applicant showed little or no remorse or contrition. Her Honour found genuine remorse. The applicant had the opportunity to express his remorse for his offence which her Honour took into account. There is no substance in this ground of appeal. 57 As to Ground 8, the applicant complains that his legal representatives did not put the best case forward on his behalf, that there should have been more evidence of the psychological affect of the accident upon him and some sort of psychological report should have been tendered. He has forwarded to this Court a report dated 24 May 2007 of Tim Watson-Munro, a consultant forensic psychologist. The psychologist opines, inter alia, in the report that the applicant has developed symptoms of a post traumatic stress disorder subsequent to being involved in the accident. 58 The applicant bears the burden of establishing that his legal representation has given rise to a miscarriage of justice. I am mindful that he is self-represented. The relevant principles were reviewed in the judgment of Gleeson CJ in Nudd v The Queen (2006) 80 ALJR 614 at [9]. Normally such a ground of appeal cannot be pursued in the absence of evidence. There is no evidence from the applicant or his former legal representatives why a psychological report was not obtained. The transcript of the proceedings before the Judge demonstrates that the applicant was competently represented. 59 The real issue to my mind is whether a lesser sentence would have been imposed if the report of Mr Watson-Munro had been before the Judge. 60 In my view, the material disclosed in the report would not have a warranted a lesser sentence. There has been no miscarriage of justice. Ground 8 of the appeal is not established. 61 I propose that leave to appeal be granted but the appeal be dismissed. **********

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Cases Cited (8)