R v Crumpton

Court of Criminal Appeal (NSW)|2016-09-02|Before: Beazley P, Davies J, Garling J

Solicitors: Solicitor for Public Prosecutions (Respondent) J Fuggle (Respondent) File Number(s): 2014/252492 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 28 April 2016 Before: North DCJ File Number(s): 2014/252492

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Davies J. I agree with his Honour's reasons and proposed orders.
DAVIES J: The Respondent was charged with manslaughter and in the alternative two counts as follows: Count 2: Operate aircraft in manner reckless as to endanger life, the maximum penalty for which is 5 years' imprisonment; Count 3: Operate aircraft in manner reckless as to endanger person, the maximum penalty for which is 2 years' imprisonment.
The Respondent pleaded not guilty to all charges. He was tried before his Honour Judge North SC and a jury. The jury returned a not guilty verdict for manslaughter but guilty on each of the alternative charges.
On 28 April 2016 he was sentenced by Judge North as follows: Count 2: 15 months' imprisonment; Count 3: 9 months' imprisonment to be served concurrently with the sentence on count 2. He was ordered to be released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon entering a recognizance in the sum of $1000 to be of good behaviour for three years.

Facts

The facts are conveniently summarised in the Crown's submissions on the appeal.
At about 7.20am on Saturday 12 April 2014, the Respondent attended Casino Airport with the intention of flying his plane (a Maule aircraft registered VH-HOG) for the day to see his son at Bonshaw. He first flew to Lismore airport where he refuelled. Prior to leaving Lismore Airport the Respondent arranged for his friend David Whitten and his daughter Kayla Whitten aged 11 years to come along for the flight. The Respondent flew from Lismore to Murwillumbah airport where he picked up David and Kayla Whitten. From Murwillumbah they started to fly towards Bonshaw. However, due to adverse weather conditions, the Respondent decided to land at Tenterfield airport. At Tenterfield airport, the Respondent made a decision not to fly onto Bonshaw but to fly back to Murwillumbah. It was while flying back to Murwillumbah that the Respondent flew along the Clarence River.
At about 11am, whilst flying low over the river at about 16 to 25 metres, the plane hit power cables. This resulted in the plane stalling, and crashing into the river upside down.
While the plane was upside down in the river the Respondent and Mr Whitten managed to free themselves and then made several attempts to remove Kayla from the plane. Kayla was eventually removed from the plane and they placed her on the upturned fuselage where Mr Whitten commenced CPR before deciding to take her to shore. When they got Kayla to shore, the Respondent went and raised the alarm while Mr Whitten remained with Kayla still performing CPR until the arrival of emergency services.
The Respondent made his way to a house on Ewingar Road and spoke with the occupants who assisted in notifying emergency services. They arrived at about 1.30pm. However, nothing could be done to save Kayla. A post mortem examination conducted on 23 May 2014 disclosed that Kayla had died from a cervical spine injury and not drowning.
On 15 April 2014, Police recovered aircraft VH-HOG from the Clarence River. The initial inspection of the aircraft revealed marks on the wings indicative of the wings striking the power lines that crossed the Clarence River.
Mr Whitten sustained a number of injuries and underwent surgery at Lismore Base Hospital in respect of lacerations to his right forearm and left finger. He had burning from fuel to his torso, legs, back and arms. He had a crush fracture to the vertebrae. After he was discharged, he noticed some pain he had been experiencing in his right shoulder joint and he was later diagnosed with a fracture of his shoulder. Mr Whitten has continued to experience severe back pain as a result of the injury to his spine.

Evidence of low-level flying

The evidence at trial as to the manner of flying by the Respondent was given by Mr Whitten and Mrs Meryl Ellaby who resided on a property on Ewingar Road near the location of the crash. The Respondent did not give evidence at trial but the police records of interview conducted with him on the evening of the accident on 12 April 2014 and later on 23 April 2014 were in evidence.
Mr Whitten said that as they were flying along the river they were getting lower and he thought the plane got to about tree level. They were flying in a straight part of the river and there were birds on the river flying up. It seemed as if the birds were metres away from the plane as they flew up. (The Respondent's account in his records of interview was that the birds were undisturbed. The Sentencing Judge could not reach a view about which evidence in that regard should be accepted. However, the matter is of minimal importance for present purposes.)
Mr Whitten said that they were flying the course of the river taking lots of tight bends and turning the plane at right angles to go round corners and follow the contour of the river. He said as they were flying along, the lower they were going. He remembered the Respondent taking a sharp left hand turn and the wing tip seemed like it was only metres off the water. Mr Whitten turned to check on Kayla and at the same time the plane seemed to be gaining a bit of height. When it came down again Mr Whitten was still looking at his daughter. He heard a noise and turned around and saw a flash of blue sky and then there was darkness and water hitting him in the face.
Mrs Ellaby's evidence was that sometime around 10.48am on 12 April 2014, she was standing on the veranda of her house in Ewingar overlooking the Clarence River. She heard a plane approaching her property from the south and she then saw a plane, flying along the Clarence River at about 20 to 30 feet above the water. She then went back inside and she thought about five to eight minutes later her power went off.
In his record of interview of 12 April 2014 the Respondent estimated he was flying between 50 to 100 feet as he flew along the river. He said "I couldn't have been any lower". He stated he was aware that the restriction on flying over land and over villages was 1500 feet, and 500 feet over water but he did not know what the restriction was in unpopulated areas.
The Respondent said that he suggested that they fly along the Clarence River for a bit and that Mr Whitten was keen because they had talked about it previously. The Respondent had flown in that area before. He said he knew an area that was clear of wire so he flew south along the Clarence double checking for maybe five miles north of Baryulgil. He flew down low on the water and was flying along the river. He came up where the river became too winding and too sharp and just flew over the land and meandered back down. He went around the corner and the wires just jumped out in front of him. He thought the wire caught underneath or the wing or the rudder. He stated the cables sent the plane upwards and into a stall, they spun into the water and they ended up in the water upside down.
In the interview with police on 23 April 2014 the Respondent stated that he headed towards the Clarence River flying at between 800 to 1000 feet. He flew the plane down to a part of the river that he had flown before and made a decision to fly along the contours of the river. It was just above the treetop height he guessed on a flat part of the river. He said that he couldn't have been any lower. He remembered seeing birds on the water and they weren't disturbed. They flew north following the contours for another two kilometres and then climbed to a couple of hundred feet.
The river made a sharp turn so he left the river and went up and he saw ahead how the river did a slight bend and then pointed straight towards Tabulam. He started to let down again. The trees on the western side were higher than the eastern side and he started to descend and got down to tree height or a bit below tree height on the hill side. As he looked up the river he just started descending slowly and then he caught two lines in the cockpit. The Respondent's instinct was to push forward on the control column and he remembered the aircraft's nose rising rapidly. The Respondent remembered the motor over-revving and saw the stall light activate on the instrument panel. He pushed forward again on the control column and he remembered the right wing dropping and then he remembered a violent impact.
The Respondent was asked how many feet he was flying off the water and he said, "I couldn't tell you how, exactly how many feet, I was flying off the water. I know it was around treetop height...between fifty and a hundred and fifty feet, just depends how high the trees are."
The Respondent had flown the area before once with his wife and son when they flew down to Grafton and another time on his own and that was when he started looking for wires trying to find an area of water that was safe to get down to treetop level. He had flown that area before when he went looking but he didn't see the wires then. When he flew in down from the south and when he came in from the west on the day of the accident he was checking for orange balls, any indication of wires.
The Respondent was asked about visibility and he said it was quite clear for approximately 10 kilometres. When asked if he was aware of the flying heights or regulations applying to rural areas the Respondent replied, "I've flown over water often and I know its five hundred feet. I've flown over villages and I know its fifteen hundred feet. And I know now that it's five hundred feet over anywhere". When asked, "Is that something that you would have learnt on the way to earning your licence and in obtaining your flying licence is that something that you would have been taught or discussed?" The Respondent replied "Yeah, probably." He had flown that low before when he was out on his own and that was at treetop height. He said he had flown that height once before but not at that exact spot but a bit further down.
When asked for his opinion on how VH-HOG ended up submerged in the Clarence River, the Respondent said, "Bad judgement (sic)." When asked, "What do you mean by bad judgement (sic)?" the Respondent replied, "Ah, bad judgement (sic) by me as a pilot." He said, "I assume (sic) there were no obstacles because I thought I checked well enough. It was bad judgement (sic) to fly low. Ah, at, at that area or in the area. It was bad decisions. (sic)"

Subjective features

The Respondent was aged 53 years at the date of the offences. He did not give evidence at the trial or at the sentence proceedings. At the time of the offences the Respondent had been flying for two years and had about 250 hours flying time in the VH-HOG plane involved in the offences and about 300 hours in gliders and motor gliders.
At the trial the defence called a character witness, Lisa Sandstrom who had known the Respondent for 20 years. She had met him through the Respondent's wife who was one of her closest friends. In his Remarks on Sentence (ROS) the Sentencing Judge described her evidence as genuine and compelling in her description of the Respondent's good character, and the Sentencing Judge said the Respondent had lived a hardworking and law abiding life. The Sentencing Judge said that it was clear the Respondent had given a great deal to his local community over many years.
There were 20 references from people who had known the Respondent and the Sentencing Judge said that those people spoke "glowingly of the character, hard work and social conscience" of the Respondent. The Sentencing Judge noted, however, that the Respondent had a serious driving matter in 2007. That was for an offence for driving a motorcycle recklessly/furiously or in a speed or manner dangerous. He had been clocked on radar at 142-150kph in a 80kph speed zone. In travelling at that speed he admitted to overtaking a number of vehicles on the incorrect side of the road by crossing a double unbroken lane line.
The Pre-Sentence Report disclosed that the Respondent was a qualified tradesman, was employed as a small engine mechanic in Mullumbimby and had been in that employment for over 12 years. He was also self-employed as a cattle breeder on a casual basis.
The Pre-Sentence report noted that the Respondent expressed remorse for the offence and was emotional throughout the interview process. He said that his life would never be the same, nor would it be for the victim's family.
The Sentencing Judge had a psychological report from Ms Catriona McCornish who had been treating the Respondent since 2 June 2014. He had been referred to Ms McComish by his General Practitioner. She diagnosed him both from her own assessment and from administering two tests as suffering from Post-Traumatic Stress Disorder and Major Depressive Disorder. At the time of this report she had seen him for eight sessions with two further sessions to be completed.
She reported that he had responded well to the psychotherapy. He had been able to reduce the intrusion of flashbacks, his sleep had improved and much of the time he was able to employ rational thoughts to counter the despair and hopelessness that he felt. He had returned to work, was more comfortable socially and had been able to accept the support of his family and close friends.
The Sentencing Judge accepted his remorse and contrition which he said was demonstrated immediately by the efforts he made to assist in the recovery of Kayla's body from the plane and then walking some four kilometres or so to find help notwithstanding the injuries he had sustained in the accident. The Sentencing Judge also noted that he had made a payment of some $300,000 to Mr Whitten despite the fact that he was being sued by him for nervous shock.

Submissions

The Crown submitted that the Sentencing Judge made no specific finding as to the level of objective seriousness. At one point (ROS at 9.8) his Honour said that he did not accept that the Respondent's conduct was of low moral culpability and at the lower end of objective seriousness. The Crown also drew attention to another passage (ROS at 7.2) where his Honour said in assessing objective seriousness it was necessary to take account of the maximum penalties, and his Honour observed that those were not substantial maximum sentences in the context of the range of penalties available under both Commonwealth and State criminal legislation. The Crown submitted that maximum penalties of these and other offences had no bearing on the objective offending in any particular case. The Crown pointed to a number of matters which indicated the offending was at a very high level of objective seriousness.
The Respondent submitted that his Honour did not have regard to the maximum penalties when assessing the objective seriousness of the offence. Somewhat inconsistently the Respondent then submitted that the purposes for which his Honour had regard to the maximum penalty were threefold and explicitly noted, that his Honour's approach was consistent with the process of instinctive synthesis, and the maximum penalties were one of many factors that his Honour identified as going to the appropriate sentence in all the circumstances. The Respondent submitted that his Honour had proper regard to the facts consistent with the jury verdict when assessing objective seriousness.
The Respondent acknowledged that his Honour did not make a specific finding regarding objective seriousness but said that he rejected the Respondent's submission that the conduct was of low moral culpability and at the lower end of objective seriousness whilst not finding that the Respondent's conduct fell at the very high level of objective seriousness.
The Respondent submitted that the matter could be clearly distinguished from the worst case scenario as it did not involve an overt act of dangerousness.

Consideration

The Sentencing Judge made the following findings relevant to the assessment of objective seriousness: (a) His Honour found that the Respondent clearly knew that he should not be at a height of between 50 and 100 feet and as a pilot he was not only placing his passengers in danger but himself; (b) The evidence established that low flying particularly at the very low level the Respondent was flying was unsafe and that the specific risks involved in low flying were striking power lines that were difficult to see as well as bird strikes; (c) The Respondent mistakenly thought that there were either no power lines or, if there were, they would be marked; (d) The Respondent was conscious and aware of the risk to life and limb; (e) In coming to a decision on the objective seriousness of the offences it was necessary to take into account the maximum sentences. The maximum penalties were not substantial maximum sentences in the context of the range of penalties available under Commonwealth and State criminal legislation; (f) His Honour did not accept that the Respondent's conduct was of low moral culpability and at the lower end of objective seriousness; (g) The level of recklessness fell between that proposed by the Crown and that proposed by the Respondent which meant that only a sentence of imprisonment in each case would suffice; (h) Finally, his Honour said this when deciding to impose a suspended sentence (ROS 17.2): In this regard I have come to the conclusion that due to my findings concerning the objective seriousness of the offences, including all the s 16A factors and general deterrence and the very powerful subjective case, that this is such a case [for a suspended sentence].
Nowhere did his Honour express his conclusion as to the objective seriousness of the offending. The only inference that can be drawn, particularly in the light of (f) and (g) above is that his Honour considered it in the mid-range but, in the light of his Honour's suspending of the sentences, perhaps on the lower side of the mid-range.
Both the written and oral submissions of the Crown at the sentence proceedings focused on the degree of recklessness involved in the offence. Of course that was a matter that needed to be considered by the Sentencing Judge because of the elements of the offences charged. To some extent there might be thought to be an elision of the two matters in the ROS but it seems clear enough both from his Honour's remarks during the sentence proceedings and in the ROS that his Honour understood the need to assess objective seriousness which had to be distinguished from recklessness by reason of the death and injury which in fact occurred and might be regarded as aggravating factors of the offences. The Sentencing Judge was aware of the need to assess objective seriousness regardless of that concentration on recklessness involved in the offending. I do not consider that the approach of the Crown at the sentence proceedings means that error has not been established in relation to this ground.
Even if it is accepted that the Sentencing Judge's ultimate assessment of objective seriousness was in the mid-range that conclusion is infected with error because his Honour took into account an irrelevant consideration, namely, that the maximum penalties for the offences under consideration were not substantial when sentences for all criminal offences were considered. An assessment of objective seriousness concerns the offence charged and the maximum penalty for that offence has no influence on the determination of its objective seriousness. The maximum penalty becomes relevant only when all matters within the instinctive synthesis are considered.
In my view, error has been established in relation to this ground.

Submissions

The Crown pointed to a statement by the Sentencing Judge (at ROS 15.5) where his Honour said: Here I have found that general deterrence must be kept in mind but not that it is of particular importance given the overall circumstances of the matter.
The Crown submitted that there was a significant body of evidence before the Sentencing Judge that low flying was a highly dangerous activity and of the high prevalence of wire strike aviation accidents.
The Crown submitted that a pilot's licence like a driver's licence confers an extremely high level of responsibility on a person, that the privileges it confers must be exercised with the utmost caution, and given the extremely high risk of injury or death inherent in low flying, general deterrence was a matter of very great importance. The Crown submitted that an appropriate analogy was the approach taken by courts to general deterrence in culpable driving cases where it is considered of paramount importance. The Crown submitted that there was nothing about the Respondent's subjective case that made him a poor vehicle for considerations of general deterrence.
The Respondent submitted that general deterrence was not of particular importance in the matter. He submitted that the analogy between aviation and motor vehicle offences was not put before the Sentencing Judge and amounts now to a reformulation of the Crown case. In any event, the Respondent submitted, it is not appropriate to draw such an analogy as aviation matters do not attract the same public policy consideration because: (a) the risks are incommensurate; (b) the rates of fatalities are incommensurate; and (c) the maximum penalties are incommensurate. The Respondent submitted that the Sentencing Judge referred to and considered general deterrence as a relevant principle in sentencing and factored it into his Remarks.
Despite the Respondent's submission that it was inappropriate to draw an analogy with motor vehicle accidents, the Respondent sought to read an affidavit which annexed data, obtained from the internet, for air deaths, air accidents and motor vehicle deaths for the years 2013, 2014 and 2015. The information was sought to be relied upon in relation to the question of general deterrence and in answer to the Crown's submission about the need to send a message to the wider community.

Consideration

After hearing argument on the admissibility of the affidavit during the hearing of the appeal the Court rejected the affidavit with reasons to be provided. What follows are the reasons for rejecting the evidence.
The Respondent accepted that the material was available at the time of the sentence hearings. However, the Respondent submitted that it ought to be admitted in the interests of fairness, that it would assist the Court and there was no prejudice to the Crown. The Respondent submitted that the evidence put air accidents and motor vehicle accidents into context.
The evidence is plainly not fresh evidence. The general rule in criminal matters relating to the adducing of further evidence is that before the evidence will be received it must be shown that the sentencing of the Applicant, in the absence of that evidence, resulted in a miscarriage of justice with the result that an unjust sentence is permitted to stand: R v McIntee (1985) 38 SASR 432 at 435; Gallagher v The Queen (1986) 160 CLR 392 at 395. I discussed the authorities in this area in Colomer v R [2014] NSWCCA 51 at [47] - [50] (Fullerton J agreeing).
The High Court has recently reaffirmed the principle in Betts v The Queen [2016] HCA 25; (2016) 90 ALJR 758 where the joint judgment said: [2] As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry. … [14] Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct.
It is not suggested that there was any miscarriage of justice, particularly as the Respondent embraces the sentence imposed by the Sentencing Judge. There is no doubt that general deterrence was a significant issue at the sentence hearing. The real point of the evidence seemed to be to show how few aircraft accidents (and, seemingly, how few flying offences) there are compared to motor vehicle accidents and offending. Evidence is scarcely necessary in that regard. Most people in the community, including judges, would know that the numbers in each case are not comparable.
No basis has been shown for the evidence to be admitted.
The Sentencing Judge made the following references to general deterrence. He said (at ROS 9.3): The fact that the risks of endangerment contemplated by the section eventuated is relevant to the assessment of the degree of recklessness involved; it is relevant to general deterrence; and to the fact that the offender was conscious and aware of the risk to life and limb.
His Honour said (at ROS 9.8): However, I do not find, given the fact that I accept that the offender genuinely thought that it was safe and expected to be able to see any wires, if indeed wires existed, that too great an accent on general deterrence is merited in this case. General deterrence remains as the ramifications of this awful day no doubt continue to affect all concerned. It is true that mistakes made whilst flying planes can more often than not result in death or serious injury. Consequently I have kept in mind s 16A(d) and (e) regarding the personal circumstances of any victims of the offences and any injury, loss or damage resulting from the offences. I also take into account that low flying such as this should be seen to be discouraged by the Courts as death and serious injury can so easily result.
His Honour said (ROS 15.3): Here I have found that general deterrence must be kept in mind but not that it is of particular importance given the overall circumstances of the matter.
Finally, his Honour made reference to a Victorian County Court case of R v Timothy Shamus James (County Court Victoria, Judge Hicks, Unreported, 21 October 2004) and said (ROS 15.8): Indeed on the vexed question in this matter of general deterrence at para 62 it states: In my view principles of denunciation and general deterrence have their application in this sentencing exercise. Operators of aircraft must be deterred from operating their aircraft in a reckless manner which may endanger the life of another person, or, at the very least, the property of another person. However, having then quoted some further passages from that case his Honour appears to have considered it only in terms of whether it was a comparable case for sentence purposes.
In my opinion, it is evident from these passages that his Honour appears largely to have confused general deterrence with specific deterrence. The only statement that clearly relates to the matter of general deterrence is his Honour's statement that low flying should be seen to be discouraged by the Courts.
Ordinarily, if it is apparent that the Sentencing Judge has taken a matter such as general deterrence into account, the weight that is given to the matter is one for the Sentencing Judge and this Court would be slow to interfere. The difficulty in the present case is that although his Honour speaks of general deterrence the context of his references to it indicates that he is in fact dealing with specific deterrence. In that way there is doubt about whether general deterrence was truly factored into the instinctive synthesis although his Honour said he had done so, at least when he was suspending the sentence.
In my opinion, general deterrence is a significant matter where an offence is committed in relation to the flying of an aircraft. Unlike drivers of motor vehicles who make up most of the adult population, pilots of aircraft are a small group in society. Contrary to the submission of the Respondent when seeking to adduce the further evidence, the smaller rather than the larger group is more likely to be deterred from offending. Aircraft accidents in this country are relatively rare because of the high standard of training and regulation. Fatalities from aircraft accidents are even rarer. It may be accepted, however, that the likelihood of death and serious injury is far greater as a result of reckless flying than from reckless driving. It can reasonably be expected that those who pilot aircraft, particularly non-commercial aircraft, would know of that greater risk. Such persons are also likely to be very aware of accidents involving aircraft and particularly those that have involved fatalities.
Punishment of those who commit offences involving flying aircraft is calculated to come to the attention of the relatively small group of persons involved in doing so in the community. Analogy in that regard with the effect of general deterrence on white collar crime is not misplaced for some of the reasons that have been offered in cases such as insider trading and associated market offences: DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145 at [53].
In my opinion, error has been established.

Submissions

The Crown submitted that authorities such as R v McKay [2007] NSWSC 275; 2007) 61 ACSR 470 and R v Saleh [2015] NSWCCA 299 show that the imposition of a suspended sentence undermines its general deterrent effect.
The Respondent drew attention to what was said in Zaky v R [2015] NSWCCA 161 at [29]-[30] and R v Zamagias [2002] NSWCCA 17 at [32] that a suspended sentence remains a gaol sentence and can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender.
The Respondent submitted that the imposition of a suspended sentence was a sufficient form of deterrence in the light of his Honour's findings and it allowed for the ongoing rehabilitation of the Respondent.

Consideration

It must be acknowledged that there is some tension within the authorities about whether a suspended sentence operates as a deterrence and to what extent. In Zaky Hamill J (with whom Johnson and Davies JJ agreed) made reference at [30] - [36] to some of the cases which suggest that a suspended sentence can be a sufficiently severe form of punishment to act as a deterrent in both senses of the term. On the other hand, in Saleh R S Hulme AJ (with whom Johnson and Beech-Jones JJ agreed) made reference to a number of cases at [40] - [43] which suggest that the real bite of general deterrence only occurs when an actual custodial sentence is imposed.
It is not necessary to resolve this conflict when determining the outcome in the present matter. It may be accepted that in certain cases a suspended sentence can amount to real punishment and that it does not in all cases undermine the significance of general deterrence. In the present case the issue of the suspended sentence is only one consideration in the synthesis of whether the sentence is manifestly inadequate. A further aspect of that consideration is whether a suspended sentence sits comfortably with general deterrence given the significance of general deterrence in the present matter.
There is no error of principle established by this ground.

Submissions

The Crown submitted that the fact that multiple offences arise from one criminal act is not determinative of the question whether sentences should be ordered to be served fully concurrently. The Crown submitted that it is well established in driving cases that where there are multiple victims of one criminal act separate sentences should usually be fixed which are made partly concurrent and partly cumulative with the aggregate of the sentences reflecting the fact that there are multiple victims. Reference was made to Regina v Janceski [2005] NSWCCA 288; 44 MVR 328; TG v R [2010] NSWCCA 28; 55 MVR 180 and Richards v R [2006] NSWCCA 262; 46 MVR 165.
The Respondent drew attention to what was said in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] and submitted that the Sentencing Judge was entitled to conclude that the sentences should be concurrent because the offences shared the following commonalities: (a) They were presented on the same indictment; (b) They arose as a result of the same incident; (c) They arose as a result of a single episode of recklessness or criminality; and (d) They contain extremely similar elements.

Consideration

In relation to concurrency his Honour said this (at ROS 16.5): This was one course of flying which resulted in the death of Kayla Whitten and injury to her father. However, taking into account the principles of totality I do find that this being a single episode of criminality with common factors it is more likely the sentence for one of the offences will reflect the criminality of both and I therefore intend to impose concurrent sentences.
The offences for which the Respondent was convicted do not involve any element of injury or death to any person. The offences are committed when the manner of operating the aircraft is found to be reckless as to endanger a person or to endanger life. Accordingly, if injury or death is occasioned as a result of the offending that injury or death is an aggravating factor. In offences where injury or death is an element of the offence (ordinarily dangerous or culpable driving offences) it has been held that it is an error for sentences to be made entirely concurrent where injury or death has been caused to more than one person: TG at [32] and Richards at [78].
This Court has recently affirmed in Silvestri v R [2016] NSWCCA 245 at [50] - [51] the approach taken by Hunt AJA in R v Janceski [2005] NSWCCA 288. That was a case involving two counts of dangerous driving causing grievous bodily harm arising out of the same accident. Hunt AJA considered cases in which one incident gives rise to different charges with different victims. The second sub-category was where one action by the offender causes a number of people to be injured and where separate charges are laid in respect of each victim. Hunt AJA then said at [23]: In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender.
As noted, the Respondent relied on what was said in Cahyadi. Cahyadi outlined general principles dealing with concurrency and accumulation. What has been said in cases such as TG, Richards and Janceski is a particular application of that principle in situations entirely analogous with the present. The fact that the injury or death which occurred is not an element of the offence but should be regarded as an aggravating factor points more strongly to the need for some accumulation. The obligation on the Sentencing Judge to take into account paragraphs (d), (e) and (ea) of the Crimes Act 1914 (Cth) points in the same direction.
The Sentencing Judge was, therefore, in error in saying that it was more likely that the sentence for one of the offences would reflect the criminality of both.

Submissions

The Crown submitted that an offender's subjective circumstances should not be allowed to overshadow the objective seriousness of the offences nor the need for a sentence to reflect general deterrence and denunciation. The Crown submitted that the level of recklessness and moral culpability was extremely high and that the consequences of that recklessness could not be more serious on count 2 and were very serious in relation to count 3. The sentences were plainly unjust and were indicative of error under the final category in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 506.

Consideration

The errors involving the assessment of the level of objective seriousness, the downplaying of general deterrence and the entire concurrency of the sentences demonstrates without more that the sentences imposed were manifestly inadequate.

Residual discretion

The Crown submitted that both error and manifest inadequacy were established. Whilst the primary purpose of a Crown appeal against sentence, being the expression of principles for the governance and guidance of sentencing courts, the mere statement of those principles in the present case would not satisfy the interests of justice. This was not a case where the Respondent's subjective case was of such strength as to require such a significant amelioration of the punitive and deterrent elements which are important in sentencing for reckless flying offences. Here, the inadequacy in the sentence risked undermining public confidence in the criminal justice system. Further, the exercise of residual discretion would not give effect to the need for general deterrence.
The Respondent submitted that there were a number of reasons why the residual discretion should be exercised in his favour. First, the Respondent submitted that when the Sentencing Judge asked at the end of his Remarks on Sentence if there was anything the Crown wished to comment on, it was open to the Crown to submit that the sentence was manifestly inadequate. Secondly, the Respondent pointed to the lodgement of the Crown's appeal 41 days after the sentence. Thirdly, the Respondent submitted that the fact that a non-custodial sentence had been imposed was a significant factor in the exercise of the residual discretion. Finally, the Respondent pointed to his substantial progress towards rehabilitation.

Consideration

In my opinion the residual discretion should not be exercised in favour of the Respondent. A number of errors have been identified and manifest inadequacy has been established. As Harrison J said (Leeming JA and Johnson J agreeing) in R v Mulligan [2016] NSWCCA 47 at [48]: It is difficult to accept that general community standards would sit comfortably with a decision that confirmed the appropriateness of the original sentence.
There is an additional factor present. Perhaps because of the infrequency with which offences of this nature come before the Courts there is virtually no authority to guide a sentencing judge in the fixing of an appropriate sentence for these offences. When that is considered with the significance of the matter of general deterrence it would be inappropriate to exercise the residual discretion in the Respondent's favour.
Any delay (which was minimal) by the Crown in lodging the appeal is not such as to enliven the residual discretion.
The suggestion by the Respondent that, once the sentence had been imposed, the Crown ought to have submitted that the sentence was manifestly inadequate should be rejected. Submissions had been made by both parties prior to the sentence being pronounced. The Crown had drawn attention to authorities which said that a suspended sentence was inappropriate where general deterrence is of particular importance, as the Crown had submitted it was. In that way the prosecutor had fulfilled the obligation discussed in CMB v Attorney-General for New South Wales [2015] HCA 9 at [64]. It would have been entirely inappropriate for the prosecutor to suggest after the sentence had been pronounced that the Sentencing Judge should re-visit that sentence because the Crown considered it inadequate. There must be a serious doubt that his Honour had the power at that stage to do other than correct slips in the sentence pronounced.
It is not clear what the Respondent's submission concerning substantial progress towards rehabilitation means. This is not a case of an offender with some form of addiction which led to the offending. What the evidence discloses, although it does not come directly from the Respondent, is that he has been badly psychologically affected by what happened but the treatment he has received is assisting his recovery in that regard, and that, in any event, he is and has from the outset been extremely remorseful for what he did.
It may be accepted that the fact that no actual custodial sentence was imposed is a consideration in relation to the residual discretion but it is relevant more particularly to the re-sentence that is to be imposed.

Re-sentence

As at the sentence proceedings, there was no evidence from the Respondent put forward at the hearing of the appeal. Instead two affidavits by his solicitor were read each attaching a report, one from Dr Jan Siefken, a psychiatrist and a further report from Catriona McComish, the psychologist.
Dr Siefken reports that the Respondent presented as an exhausted, fragmented and broken man. He was plagued by numerous biological and psychological features of Post Traumatic Stress Disorder. Whilst the Respondent described numerous tragic events during his life, the plane accident remained his current source of great suffering.
The psychiatrist noted that he was consuming increasing amounts of alcohol. The psychiatrist noted a strong history of trans-generational trauma with both his father and son being exposed to high levels of war trauma. He had medical co-morbidities of musculo-skeletal injuries together with ongoing headaches and neck pain.
The psychiatrist reported that the Respondent was resistant to the use of medication and sought to take more of a psychosocial approach to his PTSD. This included the benefit that he gains from physical exercise at the gym. The psychiatrist, nevertheless, recommended starting him on an SSRI type of anti-depressant.
Ms McComish reported that she had been treating the Respondent throughout 2014 and during the first half of 2015. She saw him again in June 2016. Ms McComish said that the Respondent presented in early 2014 with Major Depressive Disorder as well as PTSD. When she saw him in 2016 he told her that after he had been sentenced he had been able to relax his vigilance and consider his future. The lodgement of the Crown appeal had triggered his original fears causing a number of his symptoms to reoccur. Ms McComish recommended Cognitive Behaviour Therapy, Desensitisation and Graded Exposure as well as Mindfulness and Relaxation Therapy. The Respondent was to see her on a fortnightly basis to engage in that treatment.
It may be accepted from the reports and the large monetary payment made by the Respondent to Mr Whitten that the Respondent is extremely remorseful for his offending and the result of that offending, being the serious injury to his friend Mr Whitten and the death of Mr Whitten's daughter.
Whilst his past offending is not irrelevant to the sentencing exercise, because it involved a similar type of recklessness as the present offending, it may be accepted that it was seven years earlier and there were no other convictions.
Each of the present offences was a serious example of the offending with the aggravating factors that death and serious injury occurred as a result of the offending. The Respondent deliberately flew the aircraft at a very low level conscious that there may be powerlines and despite not having flown in that precise location previously.
I regard the objective seriousness as above the mid-range. General deterrence is a significant consideration in the matter. Specific deterrence has some part to play but the obvious remorse shown by the Respondent reduces its significance. For that reason and because of his very limited prior offending I consider the Respondent's prospects of rehabilitation to be very good. I do not believe that he will again offend.
A significant consideration on a re-sentence on a Crown appeal is that the Respondent was not originally sentenced to an actual custodial term. Nevertheless, sentences of 15 and nine months respectively do not adequately reflect the seriousness of the offending even having regard to the strong subjective case. Were the Respondent being sentenced at first instance I consider that only a full-time custodial sentence would be adequate and for substantially longer periods.
In my opinion, the Respondent should be sentenced to a longer period of imprisonment than imposed by the Sentencing Judge, to be served, if he is found suitable, by way of an Intensive Correction Order.
I propose that the Respondent should be sentenced on Count 2 to a period of imprisonment for 21 months, on Count 3 to a period of imprisonment for 12 months to commence 12 months after the sentence for Count 2, and that the sentence should be served by way of an Intensive Correction Order if he is assessed as suitable.
The following orders should be made: (1) Appeal allowed. (2) Quash the sentences imposed in the District Court on 28 April 2016. (3) Refer the Respondent for assessment as to his suitability for intensive correction in the community, pursuant to Div 3 of Pt 5 of the Crimes (Sentencing Procedure) Act. (4) Adjourn the proceedings for that purpose.
GARLING J: I agree with Davies J.

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: 28 November 2016

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Judgment (19 paragraphs)

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