R v Errington [1999] NSWCCA 18 | Case summary

1 DUNFORD J. This is an appeal by the Crown on the ground of inadequacy against the sentence imposed on the respondent by his Honour Judge Graham in the District Court at Sydney on 6 November 1998 following his plea of guilty to a charge of aggravated dangerous driving causing grievous bodily harm contrary to s 52A(4) Crimes Act 1900, which offence carries a maximum penalty of eleven years imprisonment. The sentence imposed was imprisonment for a fixed term of eighteen months to be served by way of home detention. 2 At about 6 pm on Sunday 17 December 1995 the respondent was driving his motor vehicle north on Carlisle Avenue, Mount Druitt with his de facto wife, Leonie McCabe, and his daughter, Melissa, then thirteen years old, both seated on the rear seat of the vehicle, and his son William, fourteen years old, in the front passenger seat. The vehicle was travelling in lane two in an area where there were two northbound lanes in a sixty kilometre per hour zone, at a speed estimated by a witness to be about ninety kilometres per hour. 3 After travelling over a crest in the roadway the respondent attempted to change lanes to overtake slower moving vehicles ahead of him and in so doing he lost control of his vehicle which mounted the western kerb of Carlisle Avenue, travelled a short distance on the dirt and grass until it came into heavy collision with a large metal post supporting a street sign erected on the western kerb and with a wooden power pole adjacent to the street sign. 4 As a result of the collision, Leonie McCabe suffered an amputation of the lower left arm and a compound fracture of the left foot. It appears that the severed forearm came to rest some forty to sixty metres from the resting place of the car. She was conveyed to Mount Druitt Hospital and immediately transferred to Westmead Hospital where microsurgery was performed on her left arm, but unfortunately the surgery failed and she subsequently died of multi-organ failure due to sepsis on 12 January 1996. As a result of the collision the respondent's daughter Melissa suffered some unspecified leg injuries. 5 The respondent was taken from the scene of the collision and admitted to Nepean District Hospital suffering minor lacerations and contusions. A blood sample taken from him at the hospital when analysed gave a reading of 0.278 grams of alcohol per 100 millilitres of blood. On 7 January 1996 the respondent took part in an electronically recorded interview at Mount Druitt police station. He admitted driving the motor vehicle, but stated he had no recollection of the collision itself. 6 Regarding his drinking, he stated that he had his first can of Victoria Bitter beer at 8 am on the morning of the accident and had arrived at a friend's house in Old Mount Druitt for a barbecue at 8.30 am and continued drinking from the time he arrived until he left the barbecue a few minutes before the collision at 6 pm that same day. He estimated that he had consumed about thirteen to fourteen cans of Victoria Bitter whilst at the barbecue. He also stated that on the previous day, the Saturday, he had begun drinking at 10 am and continued until approximately 1 am on the Sunday morning. He admitted that he had at the time of the accident been affected by alcohol to the extent of being "high range" and he agreed that alcohol had impaired his driving ability and been a major contributing factor to the collision. 7 Carlisle Avenue is a major urban road servicing the Mount Druitt area and its surrounds. At the time the applicable speed limit was sixty kilometres per hour and the traffic density at the time of the collision was light to medium. 8 The matter first came before his Honour on 15 June 1998 when the respondent pleaded not guilty to a charge of aggravated dangerous driving causing death, and guilty to the alternative charge of aggravated dangerous driving causing grievous bodily harm to his de-facto wife. He was not charged in respect of grievous bodily harm to his daughter, and accordingly the death of his wife and any injuries to his daughter were not relevant as aggravating features in the sentencing process: The Queen -v- De Simoni (1981) 147 CLR 383. 9 On 15 June the statement of facts and the respondent's antecedents were tendered and the matter was adjourned to 28 August when some reports were tendered and the respondent gave evidence. After addresses his Honour sentenced the respondent to imprisonment for a fixed term of eighteen months and the proceedings were adjourned so that the respondent could be assessed for home detention. 10 In his Remarks on Sentence, after referring to the facts his Honour said that no conclusion was open other than that the respondent should not have been driving at all and that the amount of alcohol that he had consumed made him reckless as to the speed at which he was travelling and almost certainly provided the only explanation for his loss of control of the vehicle so that it left the road and collided with the posts. He noted that the respondent had pleaded guilty at the earliest opportunity and showed genuine remorse and contrition, and had co-operated with investigating police in making a full and apparently quite frank set of admissions. 11 He noted that he was forty-four years old, that his record showed a number of offences between the ages of about thirteen to twenty, but that since then, apart from a conviction for driving with a high range prescribed concentration of alcohol in 1982, his record had been minor, although his Honour appears to have omitted reference to a conviction for stealing in 1987 for which he had been placed on a recognizance for two years. 12 His Honour noted the necessity for general deterrence and protection of the community, and that driving in these circumstances placed the respondent in control of a lethal weapon which could have caused death or serious injury to any number of people who may have been on the road that day. He also observed that members of his deceased wife's family had cut themselves off from associating with him and he had also been ostracised by his neighbours because of the circumstances surrounding the death of his partner. On the other hand, he had made substantial efforts, which his Honour noted, at rehabilitation. He had obtained employment and, notwithstanding a long history of drinking over many years, particularly binge drinking at weekends, had since the accident remained sober. 13 He then noted the lengthy delay in the matter coming on for hearing, which delay was not in the main attributable to the respondent, and referred to the hardship to the family. The two children, William and Melissa, were by the time of sentencing seventeen and fifteen respectively and Melissa was expecting a child. Arrangements had been made for the son to go to Queensland and live with the respondent's brother if a full-time gaol sentence was imposed and for Melissa to be assisted by the respondent's mother, but his Honour went on to say that whilst these contingency plans had been made, it was clear that there would be substantial hardship in the event of a full-time custodial sentence, not only to the respondent, but also particularly to the innocent members of his family. 14 His Honour then referred to the decision of this Court in the case of R -v- Brendan Smith (1997) 95 A Crim R 373, and imposed a sentence of imprisonment for a fixed term of eighteen months, but referred the respondent for assessment with a view to home detention. The home detention assessment was favourable and on 6 November 1998 his Honour ordered that the sentence be served by way of home detention to commence on that day. 15 In his further Remarks on Sentence on that day his Honour noted that as at 28 August R -v- Brendan Smith had not been followed by this Court, differently constituted, in R -v- Lambrinos (CCA - unreported - 17 July 1998) and R -v- Byrne (CCA - unreported - 5 August 1998) and had been overruled by this Court comprised of five judges, in R -v- Jurisic on 12 October 1998 (CCA - unreported). 16 He referred to the relationship between the prisoner and the victim and the effect it had had on the respondent's grieving process, but also noted that the victim in this case was a person who must have been aware of the excessive consumption of alcohol by the respondent over a period of many hours, and that she was therefore part of this venture which culminated in the tragedy of the prisoner losing control of the vehicle. His Honour came back to this point later in his Remarks where he sought to distinguish R -v- Byrne, and said that the conduct of the victim was of some relevance as to what had ultimately transpired; and he appears to have regarded this conduct, which might loosely be described as partial responsibility of the victim, as operating in some way as a mitigating factor. 17 His Honour then referred to the Guidelines laid down in R -v- Jurisic, (CCA - unreported - 12 October 1998), observed the degree of intoxication and said that the appropriate sentence was in excess of eighteen months, but that, as the respondent had already been sentenced to a term of imprisonment for eighteen months before the decision in Jurisic, it was not open to him at that stage to increase it. He did, as I say, refer to the differences between this case on the one hand, and Jurisic and Byrne on the other, and distinguished those cases by reference to the number of counts; that genuine remorse was shown in this case because the victim was the respondent's partner, and that such victim, being grossly intoxicated herself, her conduct was of some relevance to what actually transpired and so she was not able to be regarded as a wholly innocent victim. He again made reference to the harm which would flow to members of the respondent's family and finally referred to the reasonable expectation held out to the respondent on 28 August that an order for home detention would be made; and accordingly ordered that the sentence be served by way of home detention. 18 In considering this appeal by the Crown, it is convenient to start with the judgment in R v Jurisic. In that case, this Court, constituted as I say by a bench of five judges, laid down Guidelines for sentencing in cases under s 52A. In particular, at p 37, Spigelman CJ promulgated the following Guidelines: "1. A non-custodial sentence for an offence under s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. 2. With a plea of guilty wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional". and went on: "The period of three or two years once the threshold of abandoning responsibility has been reached is a starting point. The presence of additional aggravating factors or their increased intensity will determine the actual sentence." 19 His Honour had previously at p 36 identified a number of aggravating factors such as would indicate that the offender had abandoned responsibility for his or her conduct. They included: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse." There were others which are not relevant to this case. 20 As I understand that decision, it is also authority for the proposition that, for the purposes of the Guidelines, a sentence of home detention is not to be regarded as equivalent to imprisonment, but is to be regarded as a less severe sentence: per Spigelman CJ at 4, Sully J at 24. 21 I have already referred to a number of aggravating features which were present, including the alcohol that the respondent had consumed on the Sunday. His reading indicated a concentration of alcohol five and a half times the legal limit and close to twice the "prescribed concentration" specified by s 52A(9). He had, in effect, been binge drinking for two days and to go anywhere near the driver's seat of a motor vehicle in those circumstances by itself in my view showed a total abandonment of responsibility. 22 Futhermore, the extent and nature of the injuries inflicted on Ms McCabe were horrendous, having her left arm traumatically amputated as well as the compound fracture of her left foot. Not only were Ms McCabe and the other two passengers in the vehicle put at risk, but so were the drivers and passengers in any other vehicles that might have been on the roadway in that vicinity at the time of the collision. This was 6 pm on a Sunday evening when it might be expected a number of vehicles would be passing by, to say nothing of pedestrians who may have been in the area. All these people were put at risk. In relation to speed, the respondent drove his vehicle at a speed estimated to be 90 kilometres an hour on a major urban road on a Sunday evening where the designated maximum speed was 60 kilometres per hour. 23 There were a number of mitigating factors, particularly his entry of a plea of guilty at the earliest date on which it had been indicated to him that such a plea would be accepted in full satisfaction of the indictment, and his Honour found that he was exhibiting genuine remorse and that that degree of remorse was increased by the fact that the victim was someone with whom he had been in a long term relationship. This is properly to be regarded as a mitigating factor: Jurisic per Spigelman CJ at 22, citing R -v- Boswell (1984) 79 Cr App R 277. 24 In my opinion, although his Honour referred to the need for general and personal deterrence, he did not pay sufficient attention to the elements of retribution and denunciation, and failed to give sufficient weight to those factors. 25 Mr Norrish QC on behalf of the respondent has sought to uphold the sentence on a number of grounds including matters going to mitigation including those I have already referred to and a number of other matters set out in the written submissions including the delay, the constructive and positive steps taken by the respondent to deal with the consequences of his conduct, the other effects on the respondent of his family arising from the death of his wife for which he regards himself as indirectly responsible; the fact that since 1982 he had not been convicted of any drink driving offences, and that his criminal history was in effect quite ancient and indicated rather a wild period in his youth rather than a pattern of continuing criminal behaviour. 26 Whilst these were all relevant matters to be taken into account, they were not such as in my view would reduce the sentence below the minimum set out in the Guidelines, particularly when considered against the aggravating features to which I have already referred. 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. 29 Reference was made to the hardship occasioned to family members. I recently considered this factor in my judgment in R -v- Byrne, with which other members of the Court concurred. That case involved three children of the offender aged fourteen, eleven and eight and there was evidence from the respondent's mother setting out the difficulties she was having in caring for them. The offender had also suffered very serious injuries in the accident, and ultimately needed surgery for the removal of her right kidney. 30 After referring to the authorities, including R -v- Edwards (1996) 90 A Crim R 510, R -v- Wirth (1976) 14 SASR 291, R -v- Tiki (CCA - unreported - 24 August 1994), R -v- Niga (CCA - unreported - 13 April 1994) and R -v- Maslen (1995) 79 A Crim R 199, I noted in R -v- Day (CCA - unreported - 23 April 1998) Wood CJ at CL at 7 had pointed out that not infrequently, alternative arrangements have to be made for the care of children, and that it is only in the most exceptional circumstances where the need for children to be cared for can be taken into account. In R -v- Tiki and R -v- Niga the children were much younger than in Byrne, and in Maslen the child was grossly disabled. In Tiki a sentence of full-time custody was not set aside, but the minimum term was reduced. The children involved in this case are older and arrangements have been made for them, and, I would not regard the circumstances here as so exceptional as to make it appropriate to take their hardship into account. 31 Finally, his Honour referred to the matter of the reasonable expectation of home detention which the respondent had been given on 28 August. This was not a matter where in my view, even before Jurisic, a sentence of 18 months could have been regarded as a proper exercise of the sentencing discretion whether imposed by way of home detention or not: see R -v- Musumeci (CCA - unreported - 30 October 1997) and the other cases referred to by Spigelman CJ in Jurisic at 32 described as "a continued flow of, almost invariably successful, Crown appeals from sentences for offences under s 52A". 32 Even if the respondent had an expectation of home detention, this Court's hands cannot be tied by holding out expectations to persons standing for sentence. Indeed, everyone, who received sentences of home detention, had that expectation held out, including Jurisic and Byrne, but that did not deter this Court interfering when it considered it appropriate. Indeed, every person who is the subject of a Crown appeal has an expectation that the sentence imposed by the primary judge will not be increased, and this is one of the reasons why the principle of double jeopardy comes into effect in dealing with Crown appeals. 33 In considering what sentence is appropriate, one starts with a minimum sentence of two years, but with the matters of aggravation to which I have referred showing an abandonment of responsibility, this minimum needs to be increased and, after allowing for valid matters of mitigation, I consider that a minimum sentence of at least two and a half years is called for. 34 His Honour's error in imposing a sentence of only eighteen months was, of course, compounded by the order for home detention which, as I have said, is not to be regarded as a sentence of imprisonment for the purposes of the Guidelines. However, as this is a Crown appeal and the principles of double jeopardy are relevant, the appropriate sentence to be substituted by this Court should be that which is at the bottom of the range: R -v- Rose (CCA - unreported - 23 may 1996) cited in Jurisic at 39. 35 Contrary to his Honour's findings, I consider that the respondent would benefit in his rehabilitation not only from supervision on parole by the sentence being divided into minimum and additional terms, but that to continue to address his alcohol problems which he has had for many years, that period of supervision should be of significant length and this need constitutes "special circumstances" within the meaning of s 5(2) of the Sentencing Act 1989. In my view, the sentence should be backdated to 6 November 1998, so that he receives the benefit of the time already served in home detention. 36 I would therefore propose the following orders: I would allow the appeal. I would quash the sentence. In lieu thereof I would sentence the respondent to imprisonment for a minimum term of twelve months, such sentence to be deemed to have commenced on 6 November 1998 and I would fix an additional terms of eighteen months. The earliest date on which the respondent will be eligible for release on parole will be 5 November 1999. I would order that on that date he be released on parole subject to the conditions set out in the Regulations including supervision by the Probation and Parole Service, and in particular that he undertakes such alcohol counselling and treatment as may be directed by his Probation Officer. 37 I would confirm the order for disqualification of his licence under the Traffic and Transport Acts. 38 GROVE J. I agree with Dunford J. 39 GREG JAMES J. I generally agree with the reasoning of Dunford J and I agree with the orders proposed. In addition, I add this comment, there are circumstances in the present case which might well excite sympathy. Nonetheless, the community would expect, as the Court has declared in Jurisic, that that sympathy would be weighed together with the other community purposes involved in sentencing and it is for that reason that I accept that this sentence cannot stand but should be restructured as Dunford J has proposed. 40 GROVE J. The orders of the Court therefore will be as proposed by Dunford J.

R v Errington

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