R v Carruthers

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Dinsdale v The Queen (2000) 202 CLR 321 Gillett v R [2006] NSWCCA 370 Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 3 of 2002) [2004] NSWCCA 303; 147 A Crim R 546; 61 NSWLR 305 R v Doyle (2006) NSWCCA 118 CASES CITED : R v Hallocoglu (1992) 29 NSWLR 67 R v Jurisic (1998) 45 NSWLR 209 R v McMillan [2005] NSWCCA 28 R v Sutton (2004) 41 MVR 40; [2004] NSWCCA 225 R v Whyte (2002) 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17

PARTIES: The Crown (Appellant) Harold Leslie Carruthers (Respondent)

COUNSEL: L Lamprati SC (Crown/Appellant) A Francis (Respondent)

SOLICITORS: Director of Public Prosecutions (Crown/Appl) Legal Aid Commission of NSW (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/4966

McCLELLAN CJ at CL JAMES J SIMPSON J

WEDNESDAY 19 MARCH 2008 R v Harold Leslie CARRUTHERS Judgment 1 McCLELLAN CJ at CL: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed upon Harold Leslie Carruthers ("the respondent') on 5 September 2007. The respondent pleaded guilty to one count of aggravated dangerous driving occasioning grievous bodily harm. Section 52A(4) of the Crimes Act 1900 provides a maximum penalty for the offence of 11 years imprisonment. The respondent was sentenced to a non-parole period of 1 year 8 months and 7 days with a balance of term of 6 months and 22 days to be served by way of periodic detention. He was also disqualified from driving for the automatic period of 3 years. 2 The offence occurred on 5 August 2006. The relevant aggravating factor was that the respondent had in his blood the prescribed concentration of alcohol. In fact his blood alcohol reading was .220 g per hundred ml of blood which was .07 grams per hundred millilitres above the threshold for the aggravated offence. The respondent pleaded guilty and was sentenced on 5 September 2007. The Director of Public Prosecutions' office wrote to him on 18 September 2007 to advise that a Crown appeal was being considered. The notice of appeal was served on 5 November 2007.

The facts 3 A statement of facts together with various supporting witness statements was provided to the sentencing judge. At about 4.15 pm on Saturday 5 August 2006 the respondent was driving his Toyota utility along York Road, Jamieson Town. He slowed at an intersection to make a right hand turn. The victim, Philip Peikos, was riding his Suzuki motorcycle in the opposite direction along York Road. The respondent turned across the path of the motorcycle. The victim applied his brakes, however, the left side of the motorcycle contacted the road surface and he slid along the road, colliding heavily with the front of the respondent's vehicle. The victim was thrown from his motorcycle and landed heavily on the roadway, eventually coming to rest on the grass verge at the corner of the intersection. He suffered "crush injuries" to his ankle and was transported to hospital. He subsequently underwent surgery on his ankle. The certificate of Dr Sorial indicated that the victim was suffering multiple abrasions, bilateral ankle fractures and a knee laceration. An opinion was provided by Dr Crane and a Motor Accident Authority assessor which indicated that although the victim did not suffer post-traumatic stress disorder he nevertheless had an adjustment disorder or acute pain disorder, a sub clinical category of post-traumatic stress disorder. Mr Peikos was a professional dancer and fashion model and as a result of the accident he said that his career was finished and he would suffer significant financial loss. 4 At the time of the accident the road was dry and the surface of the road was in good condition. It was daytime. In his statement to the police Mr Peikos said: "It happened very fast but I can remember I had applied the front brake because that's 70% of my braking. I was standing because you are taught to raise your backside off the seat at rider training, and I thought I am going to go over this car not under it. All I remember, he was coming head on and I remember hitting him at about 40-50 kmp hitting the bull bar and bonnet on the front passenger side. I hit the windscreen and my body started rolling. I cleared the car and hit the road on the other side. My body kept rolling and I landed up on the gutter/grass area on the corner, the other side of the car. … I remember the ute was doing about 50-60 kmh consistently when he hooked the corner. He wasn't slowing down at all. I remember him saying 'I didn't even see you.' " 5 A police constable attended at the scene at about 5.10 pm, approximately 1 hour after the accident. He noticed that the respondent's eyes were glazed and his breath smelled of intoxicating liquor. Another constable gave evidence that "the accused could barely stand up and was swaying from side to side, his eyes were extremely blood shot and his speech was slurred and at times incoherent." There was evidence that the respondent's breath smelled of intoxicating liquor. 6 The respondent was given a roadside breath analysis test by Penrith Police and recorded a reading of .302 grams of alcohol per hundred millilitres of blood. He was immediately suspended from driving and charged. He underwent a further breath analysis at the Penrith Police station at 6.07 pm when he recorded a reading of .220 grams per hundred millilitres of blood. The officer who administered that test observed that the respondent smelt of alcohol on his breath and had watery and blood shot eyes. 7 The respondent gave his version of events in an ERISP. He said that he had approached the intersection behind a small silver car. He said that he stopped and waited for that car to turn right and when it had done so, he proceeded to make his right hand turn without stopping and did not see the oncoming motorcycle. He admitted to attending the Penrith Bowling Club at 11.00 am on the day of the offence and to consuming 5 schooners of Victoria Bitter without eating any food. He said that he left the Club at 4.05 pm and did not feel any effects of intoxication. He said "I felt fine." He said that he drank about 9 or 10 schooners of beer the night before the collision.

Subjective matters 8 The respondent was aged 48 at the time of sentencing. He resided in the Penrith area with his wife. His father died when he was 21 years of age and his mother, who became an alcoholic, died some years later. The respondent has worked throughout his adult life and was self employed at the time of the offence as a courier, working five days a week. Following the offence he employed a driver in his business. 9 The respondent reported that he first began consuming beer at age 20 on social occasions. His first period of heavy drinking began at age 21 following his father's death. His drinking escalated after his separation from his first wife when he was 28 years of age and again when he was 36 following his mother's death. He reported increasing his alcohol intake at aged 45 when his sister had heart surgery. He was diagnosed with cancer at aged 46 and again his alcohol consumption increased. He was incapacitated for six months during treatment for his cancer. There was evidence that prior to the offence the respondent was consuming 4 to 5 schooners of full strength beer each day. 10 The respondent attended an alcohol clinic after the offence and was referred to a medical practitioner for ongoing treatment. However, he did not continue his treatment. He attended some meetings of Alcoholic Anonymous and, prior to being sentenced, reported that he did not drink during the week but only drank on social occasions on the week ends. 11 There is evidence of his record of attendances as required by the order of periodic detention. On 2 occasions, one in November and the other in December 2007 the respondent was sent home because he was found to be affected by alcohol. 12 The respondent has two prior convictions for driving with the prescribed concentration of alcohol. In 1987 he was convicted of a mid-range offence for which he was fined $350 and had his licence suspended for 3 months. In 1990 he was convicted of a high range offence at Wallsend Local Court when he was fined $700 and disqualified from driving for 2 years. His traffic record shows entries for not wearing a seat belt in 2001, exceeding the speed limit by 15 to 30 kilometres per hour in 1989 and negligent driving in 1982. 13 There was evidence before the sentencing judge of contributions which the respondent has made as a volunteer for several charities and community organisations. They confirm that the respondent is a person who has given voluntarily of his time to different community organisations including Australian navy cadets, Lodge organisations, and the Australian Foundation for the Disabled.

The remarks of the sentencing judge 14 The sentencing judge was mindful of the decision of this Court in R v Whyte (2002) 55 NSWLR 252 and the characteristics of a typical offender referred to in that case. Her Honour determined that the moral culpability of the respondent had to be assessed in light of the fact that at the time of the accident he was not travelling at excessive speed or suffering from sleep deprivation and had not failed to stop. Her Honour concluded that the objective seriousness of the offence was informed by the degree of injuries sustained, including the emotional harm to the victim, which her Honour said was substantial, together with the degree of the respondent's intoxication. Her Honour did not find that these factors elevated the matter above a mid-range offence. Her Honour also said: "It is also to be borne in mind that the offender has been charged with aggravated dangerous driving due to his level of intoxication, and care has to be taken not to double count that factor. He is facing a more serious charge with an increased maximum penalty." 15 Her Honour found that the nature of Mr Peikos' injuries were such that he remains substantially impaired. Her Honour accepted that he would suffer significant financial loss due to his inability to undertake his former employment. 16 Her Honour determined that, but for the respondent pleading guilty she would have imposed a head sentence of four years imprisonment. Her Honour determined to provide a discount of 25% for the plea of guilty but concluded that the respondent's prospects for rehabilitation "remain guarded unless and until he is prepared to fully commit to rehabilitation to address his abuse of alcohol." Her Honour then said: It is said by the Crown that only a full time custodial sentence will satisfy the requirements of general and specific deterrence. A custodial sentence is the appropriate penalty to impose. However, this offender is entitled to a degree of leniency. He is 48 years of age, has minimal prior criminal antecedents, is a worthwhile member of the community and his offending behaviour is such that the sentence to be imposed will enable a consideration be given to alternatives to full time custody." 17 Her Honour then proceeded to impose the sentence which I have previously identified and ordered that it be served by way of periodic detention. No explanation was provided of the reason for the sentence being identified with a precise number of days although I assume this was a result of a mechanical application of the 25% discount.

Ground One: Her Honour erred by failing to fix an appropriate sentence and then considering alternatives to full time custody ( R v Zamagias [2002] NSWCCA 17) 18 The steps which a sentencing judge must take when sentencing are provided by the Crimes (Sentencing Procedure) Act 1999. Section 5(1) of that Act requires the court to first consider all possible alternatives before imposing a sentence of imprisonment. Division 2 of Part 2 of the Act provides for alternatives to full time detention, either periodic detention (s 6) or home detention (s 7). Both sections provide that where "a court has sentenced an offender", in the case of periodic detention, for not more than 3 years and in the case of home detention, for not more than 18 months, an order may be made that the sentence be served by the available alternative. 19 This Court has held that the correct approach to the discharge of the sentencing discretion requires two steps. The first step is to determine the appropriate term of imprisonment and only then address the question of whether it should be served by either of the alternatives to full time detention. The accepted approach is explained by Howie J in R v Zamagias [2002] NSWCCA 17 (see also the discussion by Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 346 and the remarks of Spigelman CJ and Sully in R v Jurisic (1998) 45 NSWLR 209 at 215 and 249). The obligation to undertake the intellectual process in the required sequence may prove difficult. However, the reasoning process must result in a term of imprisonment appropriate to the offence, whether or not it is ultimately served by one of the alternatives to full time custody. There is a particular need to guard against imposing a term of imprisonment which is greater than that which is otherwise appropriate out of a recognition that an alternative to full time custody may be less onerous. The sentencing court must also guard against any inclination to impose a sentence which, because of a desire to provide that it be served by other than full time custody is reduced below the relevant statutory threshold and inadequate having regard to the offence for which the offender is being sentenced. 20 In the present case the Crown submitted that it is apparent from the sentencing judge's remarks that her Honour did not follow the reasoning process required by Zamagias and determined a term of imprisonment which was influenced by her Honour's conclusion that an order for periodic detention would be appropriate. The Crown draws attention to the passage in her Honour's remarks where, having identified that a custodial sentence was necessary her Honour determined that, being an offender entitled to a degree of leniency, "the sentence to be imposed will enable consideration [to] be given to alternatives to full time custody." 21 I do not accept the Crown submission. To my mind her Honour was merely indicating that, having determined that a custodial sentence was required, the length of the sentence she had decided upon was such that consideration could be given to alternatives to full time custody. Although at that point in her remarks her Honour had not indicated the term of the sentence it is apparent that she had decided that issue and thereafter turned her mind to alternatives to full time custody.

Grounds 2: Her Honour erred in not giving sufficient weight to the aggravating factors in the case and in giving too much weight to the subjective features

Ground 3: Her Honour erred by failing to give any weight to general or specific deterrence 22 These grounds may be considered together. The Crown submitted that when ordered to be served by periodic detention the sentence was manifestly inadequate. It was submitted that having regard to the aggravating features of the offence, including the blood alcohol reading of the respondent, the respondent's previous history of alcohol related driving offences and the need for a sentence reflecting both general and specific deterrence, the sentence was so inadequate that this Court should intervene. 23 I have previously set out relevant extracts from her Honour's remarks on sentence. Her Honour found that the offence was in the mid-range. She found that the degree of injuries was substantial and it would appear that her Honour found them to be a separate aggravating feature under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act. 24 In relation to the respondent's blood alcohol level of .22 grams per 100 millilitres of blood her Honour indicated that care must be taken not to inappropriately double count this factor. This remark would appear to be contrary to the view expressed by this Court in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. Although it is important to ensure that double counting does not occur the degree to which an offender exceeds the threshold blood alcohol level under s 52A(4) may inform the level of criminality involved in the offence (Jurisic 231; Whyte 221). Where that offence might otherwise be in the mid-range, a level of alcohol significantly in excess of the threshold level will indicate that a more significant sentence is required. 25 The respondent's blood alcohol level was significantly above the threshold for the offence. Driving a motor vehicle with a blood alcohol level of .22 g per 100 ml of blood created a significant danger to other users of the road leaving aside the danger to the respondent himself. It was a grossly irresponsible act and, leading to serious injury to another person, required a significant penalty. 26 An analysis of her Honour's reasoning process indicates that she arrived at the ultimate sentence by allowing a discount of 25% for the respondent's guilty plea. An additional discount of 18.75% was provided solely for remorse and contrition. The evidence in the case against the respondent was strong and there was no suggestion that the respondent would have been able to dispute the blood alcohol reading. The evidence was that the respondent had turned his vehicle across the path of Mr Peikos' motor cycle leaving the latter no opportunity to avoid a collision. In these circumstances, although the respondent's contrition may be accepted as genuine, in my opinion the amount attributed to contrition by the sentencing judge was excessive (see R v Sutton (2004) 41 MVR 40; [2004] NSWCCA 225 at [12]). 27 The Crown submitted that her Honour's notional starting point of 4 years does not adequately reflect the aggravating features found by her Honour and her Honour's overall finding that the offence was in the mid-range of seriousness. The maximum penalty for the offence was 11 years imprisonment. In R v McMillan [2005] NSWCCA 28 Howie J discussed the appropriate range of penalties for offences of this nature. His Honour observed that the penalties which the courts had tended to impose were lenient and did not properly reflect the maximum penalty for the offence. 28 The Crown submitted further that the absence of any reference by the sentencing judge to the need for a sentence which adequately reflected matters of general or specific deterrence was an indication that these aspects had been overlooked. It is apparent from the respondent's record and other evidence available to the sentencing judge that he has a very significant problem with alcohol. It would appear that he was aware of the problem and before he was sentenced commenced a program of rehabilitation which involved abstinence from alcohol. However, he abandoned that program and his prospects of rehabilitation would appear to be bleak. His personal history suggests a continuous and escalating consumption of alcohol over many years since his earlier offences reinforcing the need for a sentence which provides adequate specific deterrence. 29 This Court has on many occasions remarked on the need for sentencing courts to impose sentences in relation to offences involving the use of a motor vehicle while under the influence of alcohol to adequately reflect the need for general deterrence. Almost every day tragedies occur on our roads. In R v Doyle (2006) NSWCCA 118 I said: "Some are truly accidents, but, in many the taking of drugs or alcohol by the driver is a significant factor. Everyone in the community must understand that if, whilst driving in these circumstances, grievous harm is caused to others a custodial sentence will normally be imposed" (at [5]). 30 Where, as in the present case, the blood alcohol reading of an offender is in the high range and that person has previous convictions for driving a motor vehicle with the prescribed concentration of alcohol a term of full time imprisonment may be the only appropriate sentence to deter both the individual offender and others who may contemplate similar offending. In Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 3 of 2002) [2004] NSWCCA 303; 147 A Crim R 546; 61 NSWLR 305, Howie J (Spigelman CJ, Wood CJ at CL; Grove J, Dunford J agreeing) said: "It is trite to observe that, what is commonly referred to as, 'drink-driving' amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence. For many years there has been an extensive media campaign to stress the seriousness of such conduct and the consequences that flow from it, both so far as the offender is concerned and in terms of its impact upon the safety of members of the public on or about the highways. In addition, drivers of motor vehicles must be aware that the use of random breath testing since 1982 has increased the chances of detection and hence the likelihood of conviction, punishment and licence disqualification (at [7]). … A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases. At the high range level of PCA it could rarely, if ever, be suggested that the person lacked this appreciation at some point of time before the decision was made to get behind the wheel of a motor vehicle. These observations may be trite, but they must be kept in mind when consideration is given to the level of criminality involved in driving at the high range PCA and the appropriate punishment necessary to reflect it (at [102])." 31 In Gillett v R [2006] NSWCCA 370 I said: "A license to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts the risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks." [47] 32 This Court has recognised that where an order is made that a custodial sentence may be served by periodic detention the penalty is significantly more lenient than would otherwise be the case: R v Hallocoglu (1992) 29 NSWLR 67. Although there may be cases where a breach of s 52A(4) of the Crimes Act may justify this degree of leniency in my opinion this will rarely be appropriate: see R v Whyte (2002) 55 NSWLR 252 at 284. When the offence is committed with a very significant level of blood alcohol and causes serious injury to another person it will almost always be the case that a period of full time custody will be required to adequately meet the need for punishment, specific and general deterrence. In my opinion the present is such a case. Relevant to the sentence which should be imposed is that, although the other offences were committed many years ago, this is the respondent's third offence of drink driving. 33 Even without the order for periodic detention the sentence which her Honour imposed was low. The respondent was guilty of the aggravated version of the offence (see the discussion in Whyte at 287). His alcohol reading was high. The description of his physical condition confirms the risk to others and himself from his driving at the time of the accident. The Crown submitted that the sentence was in fact manifestly inadequate. It is unnecessary to determine that submission. In my judgment the only appropriate sentence was a period of full time custody and notwithstanding that this is a Crown appeal that sentence must now be imposed. However, because this is a Crown appeal the term of that imprisonment should be as provided in her Honour's original decision rounded to whole months. 34 In my opinion the following orders should be made:

1. Appeal upheld. 2. The sentence imposed in the District Court is quashed. 3. Sentence the respondent to a non-parole period of one year and 8 months commencing on 5 September 2007 with a balance of term of six months. The respondent will be eligible for release on parole on 4 May 2009. 4. The order for disqualification from driving should be affirmed. 35 JAMES J: I agree with McClellan CJ at CL. 36 SIMPSON J: I agree with McClellan CJ at CL. **********

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