R v Dutton

Crimes Act 1900 - ss 52A(2), 52A(3), 52A(4), 52A(7), 52A(9), 52AA LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 12

R v Khouzame [2000] NSWCCA 505 R v McMillan [2005] NSWCCA 28 R v Zamagias [2002] NSWCCA 17 R v Taylor [2000] NSWCCA 442 CASES CITED: R v Foster [2001] NSWCCA 215 R v Whyte (2002) 55 NSWLR 252 R v Errington [1999] NSWCCA 18 R v Berg [2004] NSWCCA 300 Markarian v The Queen (2005) 215 ALR 213

G. Rowling - Crown COUNSEL: B. Niven - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/620 CCAP

STUDDERTJ KIRBY J HOWIEJ

WEDNESDAY 20 JULY 2005 Regina v Bronwyn Gay DUTTON Judgment 1 STUDDERT J: I agree with Howie J re his expression of the reasons for the orders made on 14 July 2005. 2 KIRBY J: I agree with Howie J. 3 HOWIE J: This is an appeal by the Crown in respect of a sentence imposed upon the respondent in the District Court by Judge Dodd (the Judge). On 14 July 2005 the Court allowed the appeal and imposed upon the respondent a sentence of 2 years with a non-parole period of 15 months and ordered that the sentence be served by way of periodic detention. These are the reasons that I joined in the orders of the Court. 4 The respondent had pleaded guilty in the Local Court to an offence of dangerous driving causing grievous bodily harm contrary to s 52A(3) of the Crimes Act. That is an offence for which the maximum penalty prescribed is imprisonment for 7 years. It was alleged that at the time of the impact that caused the harm to the passenger in her vehicle, the respondent was driving under the influence of intoxicating liquor. 5 The respondent was committed for sentence to the District Court and adhered to her plea of guilty when she appeared before the Judge. As a consequence on 22 February 2005 the respondent was sentenced to imprisonment for 2 years with a non-parole period of 18 months. The sentence was then suspended under s 12 of the Crimes (Sentencing Procedure) Act. The Judge also disqualified the respondent from holding a drivers licence for a period of 3 years from 10 December 2003. 6 The Crown asserts that the sentence was manifestly inadequate particularly in light of the fact that the sentence imposed was suspended. If the appeal were dismissed the respondent would have served no period of custody of any kind in relation to the offence. Further, the Crown asserts that the Judge made at least one erroneous finding of fact in determining the sentence and that this error was of such a nature that the whole of his sentencing discretion miscarried. 7 Subject to one issue of fact to which I will turn shortly, there was no dispute as to the facts and circumstances surrounding the offending. On 10 December 2003 at about 10.30pm the respondent was driving her motor vehicle along Pittwater Road, Mona Vale. The weather was fine, visibility was good, the road was well lit and in good repair. There was sufficient room for vehicles to park on both sides of the road without affecting the flow of traffic. The respondent was apparently not speeding. At one point in her journey the respondent allowed the passenger side of her vehicle to come into contact with the driver's side of a parked utility, the first of three vehicles parked in line on the curb of the road in the vicinity of an operating light pole. 8 The passenger, a friend of the respondent, was sitting in the front passenger seat of the vehicle with her left arm extended out of the passenger's window. As a result of the collision between the respondent's vehicle and the parked utility, the passenger's left hand was severed from her arm. The respondent did not immediately stop the vehicle but continued a short distance before pulling to the side of the road. The passenger's hand was recovered and taken with her to hospital but attempts to re-attach it were unsuccessful. 9 The passenger-side of the respondent's vehicle suffered substantial damage. The passenger side windscreen was damaged and the front passenger door was crumpled downwards and buckled outwards. The "A" pillar frame was dented and pushed rearwards. 10 Persons who approached the respondent's vehicle after the accident noted that the respondent was in a highly distressed state. An ambulance officer who attended heard the respondent say, "I didn't want to drive". When police arrived a short time after the collision, they administered a breath test to the respondent. She was asked by one police officer, "Have you been drinking tonight?' and she replied, "I'm well over". She said that she had her last drink about 5 minutes before leaving the Mona Vale Hotel where she had been drinking that night. The police officer said that at the time the respondent smelt heavily of alcohol and was slurring her words. 11 The respondent was taken to hospital and found to be uninjured but suffering from shock. A blood sample was taken from her at 1am and on later analysis returned a reading of 0.145. Inquiries at the hotel where the respondent had been drinking disclosed that the respondent and her passenger arrived there at 8.30 pm and left at 10.20pm. 12 The respondent gave evidence at the sentencing hearing. She confirmed that she had driven to the hotel with the victim. She drank full-strength beer while she was at the hotel but could not indicate how much she had consumed. She agreed with the prosecutor that when she drove to the hotel she knew that she was going to drink alcohol and that is why she went there. She said that, when she left the hotel, she was intending to drive the victim to her boyfriend's home about a kilometre from the hotel. The respondent acknowledged she was affected by alcohol at the time and, when asked why she drove, replied, "I have no idea just a stupid thing to do". She said that she did not think about it before driving from the hotel. As to the cause of the collision the respondent said that she did not know how it occurred but added, "I just misjudged the distance between my car and the ute". 13 The respondent was aged 28 years at the time of the accident. She had been licensed to drive in 1998. She had only one matter of relevance in her driving record being drive contrary to a stop sign in 2002. Her criminal record contained convictions for drug offences in 1995 and can be disregarded for present purposes. 14 A pre-sentence report tendered before the Judge indicated that the respondent considered herself responsible for the decision to drive while under the influence of alcohol but that she did not believe that she was "over the legal limit". She had expressed shame, remorse and concern for the injury inflicted upon the victim. Since the accident the respondent was "conservative" in her drinking habits, but at the time of the accident she had increased her use of alcohol to assist her cope with various stressors at the time including financial difficulties experienced by her family and her mother's ill health. The respondent was assessed as suitable for both community service and periodic detention. 15 There were also in evidence two psychological reports dated May 2004. The respondent had been referred to Ms Mandelberg, a psychologist, that month by her general practitioner in order to assist her to cope with the consequences of the accident. The report of this psychologist stated that the respondent was suffering from post-traumatic stress disorder the effects of which included distressing flashbacks of the accident, chronic anxiety and depression. The psychologist believed that the accident was only one of a number of incidents that disturbed the respondent's well-being including the trauma of her mother being diagnosed with a serious illness. The report indicated that the respondent had considerable support from her family. 16 There was a report from another psychologist, Ms Richards, who had seen the respondent for only one treatment session about four days after the accident. At that time the respondent was suffering symptoms associated with acute stress and a moderate level of depression. 17 There was in evidence a report dated December 2004 from a psychiatrist who had been treating the respondent since September 2004. The respondent had attended three appointments but failed to attend on three other occasions. The respondent explained in evidence that she had missed these appointments due to work commitments. Apart from containing information as to the respondent's involvement with alcohol and illegal drugs, the report states that the respondent had experienced a number of stressors both immediately prior to the accident and because of the accident. 18 There were also in evidence a number of testimonials as to the respondent's good character and the high regard in which she and her family were held in the community. 19 In her evidence the respondent said that she had kept in contact with the victim and was present at the birth of her baby sometime after the accident. However she had not seen her in more recent times and could not account for the apparent change in their relationship. Her father gave evidence that the respondent had been "highly traumatised" by the accident but that he believed she found counselling and her work and study in strata management helpful. 20 As has already been mentioned, the Crown argues that the Judge made a factual error in determining the sentence to be imposed upon the respondent. This asserted error related to the blood alcohol reading of the respondent at the time of the accident. Of course this Court does not sit to correct alleged factual errors simply because the appellant may urge this Court to come to a different view of the evidence: R v Khouzame [2000] NSWCCA 505. The Court will only interfere where the finding was not open on the evidence or in some other way the discretion residing in the judge to find facts had miscarried. It would be difficult, if not impossible, to persuade this Court that such an error had occurred where a Judge simply was not satisfied that an aggravating factor had been proved beyond reasonable doubt. 21 In the present case the Judge determined that he was not satisfied beyond reasonable doubt that the blood alcohol reading of the respondent at the time of the accident was any greater than the lowest end of the range suggested by Dr Perl the expert who had provided a report to the Crown on this issue. Dr Perl was not called to give evidence. In her report she stated that, based upon the reading obtained at 1am, the respondent's blood alcohol level at the time of the accident would have been:

"within a range, the lower limit being not less than .089 grams per 100 ml (highly unlikely) and the upper limit being .208 grams per 100 ml with the most likely level being 0.183".

The Crown asserts that the Judge erred in not finding that the respondent's blood alcohol level was that described by Dr Perl as the most likely, being 0.183. 22 The submission is without any merit principally because the Crown could not, consistently with the offence charged, rely upon any reading higher than .15 because at that level the respondent would have committed the aggravated offence under s 52A(4); see ss 52A(7) and 52A(9). Clearly the Crown did not charge the aggravated offence because it could not prove beyond reasonable doubt that the blood alcohol level exceeded that level. The difficulty faced by the Crown was that, as the blood alcohol reading was taken outside a period of 2 hours after the impact, the Crown could not rely upon the presumption that the reading taken was that at the time of the impact in accordance with the provisions of s 52AA: see R v McMillan [2005] NSWCCA 28. 23 It was not only open for the Judge to determine that he would sentence the respondent on the lowest estimation of the range, but he could not within the terms of the opinion of Dr Perl do otherwise. The level of intoxication of an offender is clearly an aggravating feature of the offence under s 52A(2), and had to be proved beyond reasonable doubt. However, in my view there is merit in the Crown's contention that the sentence was manifestly inadequate as a result of the way the Judge dealt with the relevance of the blood alcohol level and its significance to an assessment of the seriousness of the respondent's criminality. 24 In my opinion a suspended sentence could not reflect the seriousness of the offence committed by the respondent and the need for general deterrence. This is notwithstanding what the Court said in R v Zamagias [2002] NSWCCA 17 at [31] about the approach to be taken to suspended sentences, and in particular that such a sentence cannot be viewed as being no punishment at all. In Zamagias at [32] it was stated:

"…a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment…It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 25 But clearly in sentencing for an offence where general deterrence is of considerable importance in protecting the public, for example where the offence is frequently committed and the consequences of the offending are particularly serious, there will be less opportunity to suspend a sentence and yet sufficiently reflect general deterrence: see for example R v Taylor [2000] NSWCCA 442 an offence involving armed robbery. Of course there may be exceptional cases where general deterrence has not the significance it might otherwise have because of some factor about the offending, such as where the impact was a result of momentary inattention, see R v Foster [2001] NSWCCA 215, or the peculiar subjective circumstances of the offender, for example where the offender suffers from a mental disorder. 26 In my opinion this was not a case where either the seriousness of the offending or the need for general deterrence could be reflected in a sentence that was suspended. The offence was a particularly grave one having regard to the injury suffered by the victim. In an offence of this kind clearly the result of the offending driving, whether it be the manner of driving or the fact that the driver was under the influence of alcohol or a drug, will be a major consideration in determining the degree to which retribution is a necessary factor in determining the sentence and the degree to which the need for general deterrence can be moderated. This is so notwithstanding that the extent of the injury suffered is to some degree completely outside the control of the driver and may simply be a matter of chance. 27 The offence is to a very large extent a result crime and that of course is why the maximum penalty differs depending upon whether the result of the driving is death or injury. This is not to suggest that the quality of the offending driving is not also a very significant matter, as is made clear by the guideline judgment in Whyte (2002) 55 NSWLR 252. But when looking at whether there are aggravating factors derived from the nature of the driving or the degree of intoxication of the driver in determining whether the offender had "abandoned responsibility for his or her own conduct", the court cannot lose sight of the consequences of the driving reflected by the degree of injury caused to the victim. 28 In any event, one of the matters mentioned by the Chief Justice in Whyte as being an aggravating factor of the offence is the extent and nature of the injuries inflicted. Although this was not one of the aggravating factors that indicated that an offender had "abandoned responsibility for his or her own conduct", it does not follow it can simply be ignored when considering what the appropriate sentence should be. The injury suffered by the victim was in this case a highly significant factor and the sentence imposed indicates to me that the Judge could not have paid it sufficient regard. The remarks on sentence disclose, with respect, that the Judge attributed too much importance to determining whether or not the blood alcohol level indicated that the respondent had abandoned responsibility for her own conduct rather than focusing on the particular facts of the matter before him. 29 The Judge ultimately concluded from his understanding of Whyte that, if he had determined that the respondent had abandoned responsibility for her own conduct, a full-time custodial sentence could not be avoided. With respect that conclusion was correct. However, it did not follow that, simply because he determined, as he did, that she had not abandoned responsibility for her own conduct, he could avoid imposing a full-time custodial sentence. There is nothing in the guideline judgement that suggests that to be so. Further, it does not follow that, simply because the offence is not aggravated by the presence of certain factors, it is mitigated by the absence of those factors. 30 I have indicated that this was a serious instance of what is to be generally regarded as a serious offence. The loss of a hand was grievous bodily harm of a very high order. There can be cases of course where the injury is worse but then the penalty would approach closer to the maximum than a sentence of imprisonment for two years and there would be no question of the sentence being suspended. In the present matter the seriousness of the injury caused to the victim resulting, as it did, from the fact that the respondent was driving under the influence of alcohol to a significant degree suggests that nothing less than a full-time custodial sentence had to be imposed, notwithstanding the subjective factors of the respondent and even though the Judge had determined that the respondent had not abandoned responsibility for her own conduct. 31 The judge reached the finding that the respondent had not abandoned responsibility effectively because he found that the blood alcohol level was no higher than .089 and that at such a level the respondent's driving skills would not have been significantly affected. Having referred to Dr Perl's report on this topic, the Judge said:

However it follows from what she has said in the passage which I have just quoted that although some driving skills, and in particular the more complex skills, and emergency reactions skills, would be impaired, it does not necessarily follow that a person with a blood alcohol concentration of 0.089 grams per 100 millilitres would be impaired in all driving skills. In particular it does not seem to me on the basis of Ms Perl's certificate, or indeed general knowledge, that a person's ability to drive on the road in ordinary circumstances would necessarily be impaired to any great extent at that level, although it is not to be recommended of course.

It is notorious that many people came before the Courts charged with that level of blood alcohol concentration, and above, having driven on the roads for some time, and having done so without having been involved in any accident. 32 I do not accept the validity of the Judge's argument and conclusion in this passage. It tends to suggest that persons who are over the statutory blood alcohol limit are nevertheless capable of driving a motor vehicle with safety because not all their driving skills are affected or, at least, not to any great extent. That was not the effect of the expert evidence that was placed before him and I do not believe there is any such general knowledge available to be called in aid of that conclusion. It is notorious that not all persons react in the same way to the effects of alcohol upon them. Counsel for the respondent before this Court candidly, and responsibly in my view, indicated that he did not embrace the finding of the trial judge in this regard and conceded that the accident occurred because the respondent's level of intoxication significantly affected her driving skills. In any event, there was overwhelming evidence before his Honour of the actual impairment of the respondent's driving skills as a result of her intoxicated state: the circumstances of the accident itself. 33 With respect, I believe that the Judge placed too much weight on the blood alcohol reading as being the sole gauge of the seriousness of the respondent's culpability. The blood alcohol level, taken more than two and half hours after the event, was in the circumstances of this case an unreliable indicator of the respondent's level of intoxication at the time of the impact. The judge's reliance upon it to mitigate the offence overlooks completely the objective facts of the matter. The respondent drove to the hotel in order to drink alcohol. While there and over a period of about an hour and a half she drank middies of full strength beer, clearly intending to drive her vehicle away from the hotel. The estimate of her consumption of alcohol, which the respondent did not dispute, was that she drank 8 middies in that period of time. Yet she decided to drive her vehicle home as she had planned to do, regardless of the amount of alcohol she had consumed. The uncontradicted evidence was that she was slurring her words and had a strong smell of intoxicating liquor when police spoke to her at the scene shortly after the accident. The respondent's own admission to police when asked if she had been drinking was "I'm well over". In light of that evidence, no regard could be given to her later assertions to the probation officer that she was unaware that she was under the influence of alcohol. In all of those circumstances her moral culpability was of a high order. 34 The injury being so serious and it having been the direct result of the fact that the respondent was driving while intoxicated to a significant degree meant that both retribution and general deterrence were matters that had to be reflected to a considerable level in the sentence to be imposed. There was nothing in this case about the driving that could justify a marked reduction in the significance of these factors. 35 Contrary to submissions made on behalf of the respondent, the fact that the victim had her arm out of the window was not a matter of any relevance, whether the respondent was aware of the fact or not. It is not appropriate to have regard to the conduct of the victim as mitigating the respondent's criminal behaviour in putting members of the public, including her passenger, at risk. In R v Errington [1999] NSWCCA 18 the following was stated: 27 Another matter which his Honour took into account in mitigation was what he described as the situation of the victim in that, because she had been drinking heavily and travelled apparently willingly in a vehicle driven by someone she must have known was grossly intoxicated and did nothing to dissuade him from driving, she was not an entirely innocent victim, but was in a sense partly responsible for her own misfortune.

28 In my view, this consideration is misconceived, erroneous in law and totally irrelevant. Not only can contributory negligence or anything akin to it, by whatever name it is called, have no place in the criminal law, but it cannot in my view be a mitigating factor. Section 52A is designed to protect, not only passengers in the offender's motor vehicle, but other road users as well; and the fact that the person injured was also affected by alcohol and did not dissuade the offender from driving, in my view, cannot go to mitigation. 36 In R v Berg [2004] NSWCCA 300 the fact that the passenger was not wearing a seat belt and so suffered the injuries that led to his death was held to be an aggravating factor in the circumstances of that case rather than a matter of mitigation. A driver is responsible for the safety of his or her passenger even to the point of controlling what the passenger does in the vehicle. 37 Nor was it a relevant consideration in the present case that the impact might have occurred as a result of an error of judgment on the part of the respondent in hitting a parked vehicle. The offence was committed while she was driving under the influence of intoxicating liquor and that fact clearly explains why she made that error. In any event, even if one could disregard, as his Honour did, the respondent's impaired driving skills, such an error was a gross act of dangerous driving given the conditions of the road at the time. To describe the respondent's vehicle as having "sideswiped" the utility, as his Honour did, does not sufficiently indicate the degree to which the respondent's vehicle came into contact with the parked vehicle as shown by the damage caused to her vehicle. 38 Although the psychological and psychiatric evidence indicated that the respondent had suffered mental disturbance as a result of the accident and her feelings of guilt, there was nothing in those reports that impacted upon the inappropriateness of a full-time custodial sentence. The impact upon the respondent's mental health was clearly a relevant matter in mitigation on the same basis as if she had suffered a physical injury. So too was the fact that the victim was her friend and that she had given her assistance and support following the accident. But those were matters that could only go so far in reducing the otherwise appropriate sentence. They could not in my opinion justify the quite exceptional step of suspending the sentence for a serious instance of this type of offending. 39 After determining that the appropriate sentence to be imposed was one of 2 years imprisonment, the Judge went on:

Taking into account the conclusions that I have come to earlier indicated that I cannot come to the view that you had at the time abandoned responsibility for your own conduct and bearing in mind the other subjective circumstances, as well as all relevant factors to which I have already referred, I take the view that in this case that justice is appropriately served by suspending that sentence. 40 In my respectful opinion it was not open to the Judge to suspend the sentence imposed upon the respondent and he erred in that regard because of his failure to properly assess the seriousness of the respondent's criminality. As I have indicated, I believe that the Judge was led into that error by becoming distracted by the blood alcohol level and how that finding impacted upon the respondent's culpability. Although the subjective case of the respondent was significant, it did not warrant a sentence that was otherwise appropriate being suspended and the order suspending the sentence was, in my opinion, an unreasonable one. 41 The order of suspension was chosen simply as a matter of extending leniency to the respondent. There was nothing else to be achieved by suspending the sentence. The Judge believed, with justification, that it was unlikely that the respondent would breach the bond. The Judge did not find special circumstances notwithstanding the respondent's subjective case. He did not make it a condition of the bond that the respondent submits to supervision by the Probation and Parole Service. The respondent could not drive a motor vehicle for a period of three years so it was unlikely in the extreme that she would re-offend again in this way. The leniency inherent in an order suspending the sentence was unwarranted on the facts of the present case and, there being no other reason justifying the order, it should be quashed. 42 In coming to this view, I have taken into account, in accordance with what was said by the High Court in Markarian v The Queen (2005) 215 ALR 213 at [27], the flexibility that must be allowed to the sentencing judge. I am also conscious of the principles to be applied in determining a Crown appeal. However, I am satisfied that the exercise of the Judge's discretion was attended by error in his approach to determining the culpability of the respondent, and hence the seriousness of the offending. 43 In accordance with those principles I believe that the Court must intervene but that there should be a marked reduction in the sentence that should have been imposed in the District Court. That can best be achieved in my view by quashing the order of suspension but ordering that the sentence imposed be served by way of periodic detention. That result is a markedly lenient one but is justified on the basis of double jeopardy particularly having regard that the respondent received a sentence that did not require her to serve any period in custody unless the order was revoked and that the respondent has already served a period of 5 months of the suspended sentence on a bond. At the Court's request the respondent was re-assessed and again found suitable for periodic detention. 44 The judge somewhat surprisingly did not find special circumstances in determining the non-parole period. It appears that he may have formed the view that because he was suspending the sentence it was of little moment. But the respondent was entitled to have that matter determined separately from the decision whether to suspend the sentence. It could become important if the order suspending the sentence was revoked. There were special circumstances and the Crown conceded so much before the Judge. No contrary submission was made before this Court. The special circumstances were clear from the psychiatric and psychological reports, particularly the need for continued counselling. I find that there are special circumstances and reduce the non-parole period. **********

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