Errors in Sentencing (if any) and Re-sentencing
23 The sentence imposed by his Honour Phegan DCJ is set in the context of two guideline judgments, which must serve as guideposts (or a framework or benchmark) for the sentencing judge. Nevertheless, the act of sentencing is necessarily a highly discretionary exercise and no two offenders are identical. The two guideline judgments to which I refer are, in relation to dangerous driving occasioning grievous bodily harm, R v Whyte (2002) 55 NSWLR 252, and in relation to high range PCA, the Application by the Attorney General under s.37 for a guideline judgment regarding high ranged prescribed concentration of alcohol (2004) 61 NSWLR 305.
24 The Court, in R v Whyte, sets out what it considers to be a "typical case". That typical case includes the circumstances that the accused is a young offender; of good character with no or limited prior convictions; the incident has caused the death or permanent injury to only one person; the victim is a stranger; there is no or limited injury to the driver or driver's intimates; there is genuine remorse; and there is a plea of guilty of limited utilitarian value. The Court of Criminal Appeal, in R v Whyte, said, of the typical case, that:
"A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment." (per Spigelman CJ at [214] with whom Mason P, Barr, Bell and McClellan JJ agreed)
25 The guideline judgment sets out a number of aggravating factors some of which are relevant to the current circumstances and at least one of which, while relevant, is incapable of being used as an aggravating factor. In this case, the extended nature of the injuries inflicted was, fortunately, not as great as it could have been and not as great as the general run of cases. A significant number of people were put at risk, not only the five passengers in the other car, but drivers of other vehicles in and around the offender at the time. The driver was driving erratically and the journey was not a short one. I do not consider, in the circumstances of this case, that the degree of intoxication and/or substance abuse is an aggravating factor because it is the basis upon which the aggravated version of the offence is charged and that factor may not be double counted. The legislature has fixed a 60 percent greater penalty for the aggravated version which occasions grievous bodily harm and, where death is occasioned, the aggravated version of the offence has a 40 percent greater penalty than without aggravation.
26 The guideline judgment sets a benchmark in the following terms:
"[229] The guideline for offences against s.52A(1) and s.52A(3) of the Crimes Act 1900 , 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 s.52A of the Crimes Act 1900 , an appropriate increment to reflect the higher maximum penalty than what would generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment."
27 I have earlier stated that the respondent, unlike the "typical case" is not a young offender. When sentencing young offenders, a greater role is usually given to the most appropriate means of effecting rehabilitation rather than general deterrence.
28 Further, as already stated, the guideline judgment makes clear that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability.
29 The offender in question was not charged with or convicted of the offence of having a high range prescribed concentration of alcohol. Nevertheless, the circumstances of the offender's aggravation are that he had a high range PCA at the time of the offence. A high range PCA would not usually be charged in circumstances such as this, amongst other reasons, because of the injury that was occasioned by the incident. In the Application by the Attorney General under s.37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305, his Honour Justice Howie (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed) made it clear that, where there are a number of aggravating factors to a significant degree, or where any prior offence is of a high range PCA, a sentence of less severity than full-time imprisonment would generally be inappropriate. It is appropriate, in dealing with the sentence imposed by Phegan DCJ, to look at the usual sentence range for high range PCA in order to gauge the relative adequacy of the sentence imposed. It is also relevant in examining some of the reasons for the offence and any alleged mitigating factors in the commission of the offence. As the Court said:
"[142] Generally speaking, the reason for the consumption of alcohol will be irrelevant. The offence is not concerned with punishing the drinking of alcohol, but the driving thereafter. Therefore, it is of no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition." ( Application by the Attorney General 61 NSWLR 305 at [142])
30 There is little or no logic in treating the reason for the consumption of alcohol as irrelevant in a high range PCA offence, but relevant when considering aggravated dangerous driving occasioning grievous bodily harm where the aggravation is a high range PCA. That alcohol was abused because of a psychiatric condition is irrelevant to a high range PCA and it is irrelevant to an aggravated dangerous driving occasioning grievous bodily harm where alcohol consumption is the aggravating factor. The irrelevance of a psychiatric condition is not by reason of any lack of understanding of the condition, but stems from the proposition, earlier stated, that even if the drinking is understandable, it is the driving while intoxicated that is being punished, and not the drinking itself.
31 The respondent had a number of driving offences which I consider, like the sentencing judge, to be of marginal consideration by way of aggravation. However the respondent was also convicted in April 1999 of a mid-range PCA offence which is an aggravating feature in relation to the offence here in question. Otherwise the respondent had no prior criminal record.
32 His Honour held, in relation to the typical offender described in R v Whyte, supra, that there were a number of features said to be distinguishing. The respondent was not a young offender, a matter to which reference has already been made. There is no criminal history of the respondent, save for the mid-range PCA in April 1999. The injury sustained does not seem to be permanent and some of the persons in the other car were persons taught by the respondent when he was a school teacher and, therefore, not strangers to the appellant. There is also a reference to the respondent's guilty plea and genuine remorse. His Honour considered that the utilitarian value of the plea was "substantial" because the trial would have been lengthy and difficult, although exactly why that is the case does not seem apparent.
33 His Honour also took into account, to the respondent's benefit, the rehabilitation program undertaken prior to the commission of the offence and a lack of likelihood of re-offence. While it is to the credit of the respondent that he admitted himself to a detoxification program in 2004 in order to treat his abuse of alcohol, he engaged in the conduct in question, namely the binge drinking and driving, less than one month after the conclusion of the program.
34 The binge drinking as a means of self-medicating was conduct in which the respondent had engaged in the past but the sentencing judge gave much significance to the fact that it had not occurred in the month since the detoxification program.
35 Largely, the issues associated with the subjective and objective elements of the offender and offence, respectively, turned on the "depressive illness" of which mention has already been made.
36 One other matter needs to be discussed. The sentencing judge paid some regard to the special circumstances of the respondent and, in particular, "the value of keeping the offender in the community" because of the work that he performs. That the respondent performs work as a care worker, on a paid basis, for developmentally disabled persons is a factor that, with a number of others, goes to the subjective situation of the offender. Responsibility towards others in one's occupational life is a two edged sword. On the one hand it shows the otherwise good character and communal responsibility of the offender. On the other hand it shows a person who, more than others, should be aware of the dangers of the conduct and the damage that it can cause. Most persons charged with dangerous driving of this kind, or high range PCA, will have a good character.
37 His Honour compared the current situation with that with which the Court of Criminal Appeal dealt in Douglass v R [2001] NSWCCA 250. The current situation can not be compared with that in Douglass. The Court of Criminal Appeal there suspended a sentence imposed by the trial judge. The conduct there in question caused the offender's passenger, his wife, to become a quadriplegic, which, in turn, required the offender to engage in 24 hour care for her and made the case exceptional. The Court of Criminal Appeal said:
"[13] … Although any death or permanent injury to a family member caused by stupidity such as that of the applicant will almost inevitably have repercussions which amount to some punishment of the offender, such consequences cannot, in the ordinary case, be allowed to substitute for that for which Parliament has provided. In this case, the applicant is such that those consequences may fairly be taken into account. The extent to which he has immersed himself in his wife's care provides justification for the observation of counsel for the applicant that, 'The applicant has effectively served some three and a half years' home detention during the time that his wife has been out of hospital since the accident.' "
38 The comparison between the current case and that of Douglass, cited above, is inappropriate. The respondent, in this case, is not effectively serving home detention to care, on a voluntary basis, for the victim. Here there is no death or permanent injury to a family member, the respondent is not required to provide 24 hour care to the victim on a voluntary basis and any activities of the respondent which could be taken into account, would be performed in the future. The fact that an offender, as part of her/his paid employment, cares for the public or performs a public duty may go to the offender's good character, but it is not a substitute for the sentence for which Parliament has provided. Moreover, the comparison with Douglass does not pay sufficient regard to the fact that Douglass was, in the manner in which it treated this issue, exceptional and is not a basis for comparison in similar but not identical circumstances.
39 It is clear from the above that the sentence is manifestly inadequate and pays insufficient regard to the aspects of general deterrence and specific deterrence which were necessary.
40 His Honour also reduced the period of disqualification from driving from the prescribed three years to two years on the basis that: "the substantial inconvenience to which he is currently being put will, in my view, serve as an appropriate reminder of the seriousness of the offence, and the consequences of taking charge of a motor vehicle in circumstances of the kind that preceded this offence." Inconvenience is not an appropriate sentence for an offence of this kind. Moreover, if the rationale of the sentencing judge is accurate in accepting that the depression was the sole or predominant cause of the offence, then no amount of inconvenience will serve to give the respondent an understanding of the consequences of this conduct.
41 While it is clear from the above that I consider the sentence manifestly inadequate and that there is error of principle in the manner in which his Honour has dealt both with the offence and the offender, the depression and attempts at rehabilitation are matters which I take into account in determining that there are special circumstances which warrant a departure from the statutory ratio between non-parole period and the balance of the term.
42 I propose that the Court make the following orders:
a Appeal be allowed;
b The sentence imposed by Phegan DCJ on 14 September 2005 be quashed and in lieu thereof the following sentence be imposed:
i. Imprisonment for a non-parole period of 18 months commencing 14 September 2005 and expiring on 13 March 2007 with the balance of the term of a further 18 months to expire on 13 September 2008;
ii. The prisoner shall be released to parole on 13 March 2007 on the usual conditions relating thereto.
iii. The prisoner is disqualified from driving a motor vehicle for a period of three years commencing 18 September 2004 and expiring on 17 September 2007.