R v COLLINS

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0340 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER :

• 5 - IN THE COURT OF CRIMINAL APPEAL 060175/03

DUNFORD J GREG JAMES J

MONDAY 1 SEPTEMBER 2003 R v NATHAN DENNIS COLLINS Judgment 1 DUNFORD J: This is an application by Nathan Dennis Collins for leave to appeal against the sentence imposed on him by his Honour, Acting Judge Mahoney QC, in the District Court at Gosford on 27 November 2002 following his plea of guilty to one count of Dangerous Driving Occasioning Grievous Bodily Harm contrary to s 52A(3)(c) of the Crimes Act 1900 which offence carries a maximum penalty of seven years imprisonment.

2 At the time of sentencing his Honour was asked to, and did, take into account 2 further offences on a Form 1, namely, drive whilst disqualified and failure to stop.

3 The applicant was sentenced to 4 years 6 months imprisonment to commence on 7 September 2002 and to expire on 6 March 2007. A non-parole period of 3 years and 4 ½ months to commence on 7 September 2002 was imposed.

4 The grounds of appeal are: (1) That the sentence is manifestly excessive. (2) That his Honour erred in failing to have regard to the guideline judgments of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343, 55 NSWLR 252. (3) His Honour erred by failing to allow a sufficient discount for the applicant's plea of guilty.

5 On the evening of 5 and 6 January 2002 there was a large party at an address on the Central Coast near the applicant's home. At about 12.45 am on Sunday 6 January one Michael Robinson walked to the applicant's house, knocked on the door and confronted the applicant with an allegation that he had stolen Mr Robinson's car.

6 An argument ensued which ended when the applicant produced a baseball bat and struck Mr Robinson with it. Mr Robinson then ran back to the party. His girlfriend, Ms Roberts, left the party and was walking past the applicant's house on the way home. She and the applicant argued and Ms Roberts was punched by the applicant's girlfriend, Ms Sutton, resulting in Ms Roberts falling to the ground.

7 At about this time a large group of twenty-five or more people from the party, including Mr Robinson, were returning to the applicant's house. The applicant got into the driver's seat of a white Commodore sedan parked in the driveway. As the group approached him he shouted out at the group and then reversed out of the driveway and drove off at high speed. As the car left the driveway someone from the group threw a metal pole at the car which hit the roof on the driver's side.

8 The applicant accelerated west along Narambi Road and mounted the offside gutter. In so doing he narrowly missed a small group of people on the nature strip there and he collided with a water main causing it to burst and spill water. He went back on to the roadway and at the intersection of Nacooma Road turned the vehicle around and accelerated back down the street from whence he had come. 9 He mounted the gutter near where another group of people were standing. Most of the people in the group managed to jump out of the way with the exception of a Mr McQuarrie who was struck in the leg and suffered a fracture of the left tibia and fibula. His leg was broken in seven places, and at the time of sentence the leg had not healed properly, he had been unable to resume his prior employment and the prognosis was uncertain. The applicant, who was at the time a disqualified driver, drove off and failed to stop.

10 In sentencing the applicant the learned sentencing judge summarised the facts, noted the need for the sentence to reflect the elements of punishment, rehabilitation, general and personal deterrence and referred to s 21A of the Crimes (Sentencing Procedure) Act 1999. 11 He then noted a number of matters that had been urged in mitigation, namely: (1) The appellant would have felt some anxiety and panic when this mob of people came to the door of his place after the earlier confrontation. (2) That he felt threatened at the time. (3) He felt it would be safer for his de facto wife and her children who were in the house at the time if he drove away from the premises. (4) Because of his prior criminal record he could not have expected the police to respond if he called them for help. 12 His Honour referred to testimonials from his de facto wife and her sister and a lady attached to the Wesley Centre, and an offer of employment from an electrician. He noted the early plea of guilty and that the applicant was serving his time in protective custody. He then noted his extensive criminal record.

13 His Honour took as a starting point a head sentence of 5 years and allowed 10 per cent reduction on account of the utilitarian value of the early plea of guilty, thus reducing it to 4 ½ years and in accordance with s 44 of the Crimes (Sentencing Procedure) Act he fixed a non-parole period of 3 years 4 ½ months.

14 In sentencing the applicant his Honour made no direct reference to R v Jurisic or R v Whyte or to R v Thomson [2000] NSWCCA 309, 49 NSWLR 383 guideline judgments concerning this offence and appropriate allowances for the utilitarian value of pleas of guilty.

15 The failure to refer to these cases by name or to the specific criteria referred to therein does not necessarily reflect an error of law, but the failure in the judgment to refer to the judgments or to the guidelines or specifically to the various aggravating or mitigating features can suggest that they were not fully appreciated by the learned sentencing judge at the time.

16 This was a very serious instance of an offence of drive manner dangerous causing grievous bodily harm because of the dangerousness of the driving and because it arose from what can be seen as an angry or panic reaction to the approach of the other people. It can in my view fairly be described as a "rage" incident.

17 The applicant claimed he was merely attempting to get away from those whom he believed were threatening him, but if this is so it is difficult to see why he would turn around at the intersection and come back to where the mob was heading towards his house. 18 Although apparently not affected by alcohol he was enraged, angry and upset when he got into the car and drove accordingly, going on to the footpath on the incorrect side of the road and hitting a water main; then not responding to the seriousness of mounting the footpath and hitting the water main, which should have caused him to realise that he was not driving properly and to slow down, he turned around and came back and again went on to the footpath.

19 The offence is aggravated by the fact that he was disqualified from driving, and so should not have been driving at all. It was in my view a clear case of an "abdication of responsibility" as that phrase is used in R v Jurisic and R v Whyte. I say this notwithstanding the element of provocation and the approach of others.

20 The applicant has an appalling criminal record, as noted by his Honour including 6 convictions for assault, 3 for break, enter and steal, 6 for stealing including stealing of a motor vehicle, 2 for receiving and one for escape lawful custody and a 1994 conviction for drive in a manner dangerous.

21 On 5 March 2001 he was sentenced at Campbelltown Local Court for drive manner dangerous, unlicensed driver, take and drive conveyance, break, enter and steal, be carried in conveyance, and a number of other matters and was sentenced to imprisonment for 12 months on the charge of drive in a manner dangerous with a non-parole period of 9 months and for the offence of take and drive conveyance to imprisonment for 6 months. There were other concurrent sentences also imposed at the same time.

22 Owing to a clerical error, only the warrant for imprisonment for 6 months was issued, and consequently he was released at the end of that time and not on parole. If the warrant had been issued correctly he would have been on parole at the time of the commission of these offences. In fact, he had been released and, as I say, not on parole.

23 By the time he stood for sentence before his Honour he had also been convicted of various matters at Wyong Local Court when he failed to appear, and subsequently sentenced for those and convicted and sentenced for other matters at the Campbelltown Local Court on 9 May 2002. Those offences included 3 counts of driving whilst disqualified and one of maliciously destroy or damage property and it appears that all of those offences were committed after this offence.

24 Jurisic and Whyte set out guidelines for offences of this nature and indicate a head sentence of not less than 2 years imprisonment, but those guidelines are said to be referable to young offenders of good character with no, or limited, prior convictions, genuine remorse and a plea of guilty of limited utilitarian value: Whyte at [204]. Here the applicant was not a young offender, and was not of good character with no or limited previous convictions. Indeed, he had a conviction one year previously for this very offence, for which he had been sentenced to prison.

25 He expressed remorse in his letter to the sentencing judge but, as I say, in the meantime had committed further offences; although it must be conceded that that was apparently before he was actually charged with this offence.

26 There were aggravating features compared with Jurisic and Whyte, particularly the extent and nature of the injuries inflicted, the number of people put at risk though only one was injured, the degree of speed, the erratic driving and the ignoring of the warning which should have been apparent from previously hitting the water main et cetera, and the failure to stop. These were all aggravating features.

27 I note the psychologist's report relating to his family history and the testimonials from his de facto wife and his sister and the lady from the Wesley Centre and his own letter to the sentencing judge.

28 In the light of those matters I feel there is a good prospect that at his age, which is now just turned 30, on his release he will make a genuine attempt to lead a law abiding life with the support of his said wife, and that he has reasonable prospects of doing so.

29 Material filed in the affidavits indicate that he is serving the sentence on protection and, subject to the restrictions imposed by being on protection, he is using his time in gaol usefully and avoiding drugs. The sentence must be heavier than would otherwise be the case to allow for the matters on the Form 1: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, 56 NSWLR 146, but allowance must be made for the harsher impact of service of the sentence on protection. 30 Jurisic and Whyte have built into them an allowance for a late plea of guilty of limited value: Thomson at [161], but in my opinion this is an appropriate case where a discount of something in the vicinity of 20 per cent should have been allowed.

31 Taking all these factors into account I am satisfied that his Honour erred in only allowing a 10 per cent discount, and the sentence overall is manifestly excessive. I would take as a starting point a sentence of a period of 4 years and allow a discount for the plea of guilty, including its utilitarian value, of approximately 20 per cent, thus reducing the head sentence to 3 years and 3 months. Three quarters of this is 2 years and 5 months but I consider that the rehabilitation of the applicant would be facilitated by at least 12 months on parole under supervision, and to this extent I find there are special circumstances and I would fix a non-parole period of 2 years and 3 months.

32 I therefore propose that leave to appeal be granted, the appeal allowed and the sentence quashed. Taking into account the matters on the Form 1 I propose that the applicant be sentenced to imprisonment for a term of 3 years and 3 months to date from 7 September 2002, and I would fix a non-parole period of 2 years and 3 months, so that the date on which the applicant will be eligible for release on parole will be 6 December 2004. I would confirm the period of disqualification.

34 DUNFORD J: The order of the Court will be as I have indicated.

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