R v Dandachli

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1258 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

• 10 - IN THE COURT OF CRIMINAL APPEAL 60472/03

Sperling J Hidden J Howie J

Friday, 16 April 2004 Regina v Moustafa Dandachli Judgment 1 Sperling J: On 17 March 2003, the applicant pleaded guilty in the District Court to an indictment containing one count of driving in a manner dangerous causing death (s52A(1) Crimes Act 1900), and one count of driving in a manner dangerous causing grievous bodily harm (s52A(3) Crimes Act). On 26 May 2003, Dodd DCJ sentenced the applicant, in relation to the first count, to imprisonment for four years with a non-parole period of three years, and in relation to the second count to a fixed term of imprisonment for three years. These sentences were directed to be served concurrently and to date from 23 May 2003, that being the first date on which the applicant went into custody. The applicant was also disqualified from driving for a period of five years. 2 The applicant now seeks leave to appeal in respect of the non-parole period which was fixed for the first count, upon the ground that his Honour erred in declining to find special circumstances and in failing to reduce the non-parole period accordingly. In the event of that application being successful and leading to a reduction of the non-parole period, it is contended that the fixed term for the second count should be similarly reduced.

The Facts 3 The offences were committed on the morning of 6 May 2002. The applicant was the driver of a motor vehicle which was travelling on the M4 motorway. There were four passengers in the vehicle, one in the front passenger seat and three in the rear. All the occupants of the vehicle were young students and they were friends. 4 In the period leading up to the accident the applicant was observed to overtake traffic, and for that purpose to change lanes, on many occasions. He was also observed to be driving at speeds well in excess of the 110 kph speed limit, at times up to 160 kph. He was asked by two passengers, on four separate occasions, to slow down but he did not do so, save for a brief period when he came upon a marked police vehicle. He resumed speeding once that vehicle left the motorway. 5 When he approached the Roper Road exit, he changed from lane 3 to lane 1, without indicating. When he found a truck in the lane, he moved in to the breakdown lane, at a speed in excess of the speed limit, in order to overtake it. Tragically there was, in the breakdown lane ahead of his vehicle, a Penrith Council truck with its hazard lights activated, as well as the truck of a tyre fitter who was attending to a blown out tyre on the Council truck. The applicant attempted to avoid these vehicles but was unable to do so. In the collision that followed, a female passenger in the rear seat of his vehicle was killed, and the passenger in the front seat suffered serious injuries. 6 The applicant suffered neck and back injuries, as well as lesser injuries, and there was medical evidence available to suggest that he is at risk of suffering neck problems for the rest of his life which are likely to worsen as he ages. 7 His Honour's objective findings in relation to the two offences, including his finding that the applicant had abandoned responsibility for safe driving, are unimpeachable. In substance he found that the applicant had:

(a) driven in an erratic and aggressive manner for a distance of at least 4 km and in fact for sometime before that;

(b) travelled well in excess of the speed limit, and at a time above 150 kph, and in a situation where he had been overtaking vehicles on the left-hand side, and at least on one occasion prior to the actual collision, by moving into the breakdown lane;

(c) ignored requests from his passengers to slow down;

(d) driven in such a way that he placed a significant number of people at risk, not only the people in his vehicle but also the other users of the motorway, including persons on foot in the vicinity of the council truck;

(e) engaged in such a degree of erratic and aggressive driving such that the only conclusion open was that he was engaged in competition driving or was showing off to the other occupants of his vehicle. 8 Subjectively, the applicant was aged 20 years at the time of the accident, and was the eldest in a wholly supportive family. He had done well at school, was studying at university, and had available a number of very favourable character references. He had no prior criminal convictions but he did have a poor driving record, which had seen him fined several times for negligent driving, improper overtaking, and for speeding. His licence had been suspended during the year 2000, and at the time of the current offences, he had been given notice of a further suspension of his licence which was due to commence in 12 days time. 9 He had pleaded guilty following negotiations which led to the first count being reduced from one of manslaughter. For the utilitarian value of that plea he had been given a discount of 20 per cent. His Honour accepted that there was evidence of genuine contrition and that it was unlikely that upon release the applicant would ever re-offend. His Honour expressly took into account each of the matters mentioned, along with the fact of his own injuries, and the opinions of two psychologists which confirmed that the applicant did not have any drug or alcohol related issues or previous psychiatric issues, but that he was now exhibiting symptoms of depression and anxiety. In that regard, his Honour noted that Ms Robilliard considered that ongoing psychotherapy might assist him to continue working towards a more realistic undertaking or acceptance of his role in this tragic accident. 10 In determining the sentences to be imposed his Honour appropriately made reference to the decision in Regina v Whyte (2002) 55 NSWLR 252 which reformulated the Jurisic (1998) 45 NSWLR 209 guideline. The present case had several of the features of the typical case there considered, in so far as the applicant was a young offender of good character, who had demonstrated genuine remorse, and insofar as there was a plea of guilty. It differed from that case in that there was more than one victim, the victims were not strangers, and the applicant suffered injuries himself. However these are not material differences. 11 As Whyte makes clear, a custodial sentence will normally be appropriate in such a case, unless the offender has a low-level of moral culpability, as in the case of momentary inattention or misjudgement. The present is not such a case of low moral culpability, it being one where there were present a large number of the aggravating factors referred to in Whyte, namely, those that fall within the following enumerated categories:

(i) the injuries inflicted to one victim were fatal and to another very serious;

(ii) a large number of people were put at risk, not only the occupants of the vehicle, but other road users;

(vi) it involved competitive driving or showing off;

(vii) the others were exposed to risk for a considerable period;

(viii) express warnings from concerned passengers were ignored. 12 The only missing aggravating factors were those involved in the following categories:

(xi) failing to stop. 13 The factors that were present clearly establish, as his Honour found, a high degree of moral culpability. 14 As such, it was appropriate for his Honour to have had regard, by way of a check or sounding board or guide, although not as a rule or presumption, to the following passages in Whyte:

229 The guideline for offences against s52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. 230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. 231 In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. 232 The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act. 233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly Dodd , this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing Procedure) Act inserted by the 2002 Act, affects this line of authority. 234 Insofar as this guideline involves a "two step" approach to sentencing it is, in my opinion, as a "check" for the reasons given above, consistent with an ultimate decision that involves the exercise of a broad discretion, sometimes referred to as an instinctive synthesis. 15 The present application essentially turns upon his Honour's finding that this was not a case where there were special circumstances that would justify a departure from the proportion between the non-parole period and the head sentence specified in s44 of the Crimes (Sentencing Procedure) Act 1999. 16 Section 44 relevantly provided as follows at the time of the offence and for sentencing purposes thereafter (including on appeal): 44(1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

17 In relation to special circumstances, Dodd DCJ observed: Mr Walsh has submitted on your behalf that I should find special circumstances, and, while it is open to me to find special circumstances on the basis of your age, the fact that this is your first time in prison and that you will have good prospects of rehabilitation and no doubt need at least some assistance on your release from prison in terms of readjust into your life outside prison, I have come to the conclusion that there is overall no good reason for extending the period which you would otherwise spend on parole following release from prison and therefore I intend to fix the non-parole period to the head sentence in the ratio of three-quarters. [Emphasis added.] 18 That passage is impugned on appeal as involving error of law. 19 The proper approach in relation to the determination of the non-parole period and in relation to the presence or absence of special circumstances is that outlined in Simpson (2001) 53 NSWLR 704 by Spigelman CJ (with whom Mason P, Grove J and Newman AJ agreed). The reference in the following passage is to Power (1974) 131 CLR 623: 57 The reasoning in Power indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of "special circumstances" must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole. 58 The length of the non-parole period remains, however, of potential significance. Indeed, the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed per centage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases. It is not, however, the only perspective. 59 The words "special circumstances" appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power , which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected. 20 I return now to the passage in Dodd DCJ's remarks on sentence which I quoted in paragraph [17] of this judgment. Arguably, his Honour's reasoning involved an error similar to that referred to in Simpson at [57] - [59] (quoted above). On a literal reading of the passage, his Honour was saying that he was precluded from altering the statutory relationship between the non-parole period and the sentence because there was no good reason for a longer parole period than the statutory formula produced. Read that way, his Honour regarded himself as precluded, for that reason, from bringing any other consideration to bear which might constitute special circumstances and which might otherwise have made it appropriate to reduce the non-parole period below that which the statutory formula produced. 21 That approach would be erroneous. It would treat the question of whether there was a reason to extend the parole period at the expense of the non-parole period as an over-riding consideration, thereby excluding considerations which might otherwise operate to alter the statutory proportion. In particular, it would exclude such considerations as age and first time in custody, mentioned by his Honour, which might otherwise have been seen as special circumstances warranting a direct reduction in the non-parole period below that produced by the statutory formula. 22 Read liberally, his Honour meant by the words emphasised in the quoted passage that there was no good reason for altering the statutory proportion between the non-parole period and the sentence, irrespective of whether the considerations mentioned earlier in the passage constituted special circumstances. A sentencing court may, in the exercise of its discretion, decline to reduce the non-parole period produced by the statutory formula, notwithstanding a finding of special circumstances. Accordingly, the more liberal reading of the passage would involve no error. 23 It is unnecessary, however, to resolve which reading of the passage should be preferred. The appeal should be dismissed for an independent reason. That reason is as follows. 24 Concerning appeals against sentence generally, the Chief Justice said in Simpson: 79 Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process." That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence, … is warranted in law and should have been passed". Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied. 25 Section 6(3) of the Criminal Appeal Act 1912 is explicit in this regard. Relevantly, it provides: 6(3) On an appeal … against a sentence the court, if it is of the opinion that some other sentence … less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and i n any other case shall dismiss the appeal . [Emphasis added.] 26 Accordingly, where this court is of the opinion that a lesser sentence is not warranted, the court is not required to quash a sentence for error of law, where such error exists, and then proceed to re-sentence the applicant for no lesser a sentence than was imposed at first instance. That would, generally speaking, be an unnecessary waste of the court's resources. In some such cases, there may be special reason for deciding whether there is error in the sentencing judge's reasons, such as to decide an unsettled point of legal principle or to emphasise the need to adhere to established principle where that is required. Otherwise, a decision that a lesser sentence is not warranted is sufficient to dispose of an appeal against sentence without more. 27 I am of the opinion that a lesser non-parole period is not warranted in this case in view of the objective features of the case, including the aggravating features which have been mentioned, and notwithstanding the mitigating subjective considerations which have been mentioned and any considerations which might amount to special circumstances. A non-parole period of less than three years would be inadequate, in my view, to reflect the seriousness of the offences in the circumstances of the case. 28 I would grant leave to appeal and dismiss the appeal. 29 Hidden J: I agree with Sperling J. 30 Howie J: I agree with Sperling J. -o0o-

Last Modified: 04/21/2004 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.