R v Hemsworth

R v Musemeci (unreported, NSWCCA, 30 October 1997) CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Dhanhoa [2000] NSWCCA 257 DECISION : Appeal dismissed

STUDDERT J BARR J

1 STUDDERT J: The applicant, Benjamin Hemsworth, stood trial before her Honour Morgan DCJ charged with a number of offences to which he pleaded not guilty. The indictment presented contained four counts, the first charging the applicant with manslaughter, the second with dangerous driving occasioning death and the third and fourth counts charging the applicant with dangerous driving occasioning grievous bodily harm. 2 The applicant was acquitted on counts one, three and four but was convicted on count two. That was the count charging him with dangerous driving occasioning death. Her Honour sentenced the applicant to a term of imprisonment for five years but, having found special circumstances, specified a minimum term of three years commencing on 16 July 1999, which was the day upon which the applicant was taken into custody, and to expire on 15 July 2002. The additional term of two years set will, therefore, commence on 16 July 2002. 3 The applicant seeks leave to appeal against the sentence imposed. 4 The objective facts may be drawn from her Honour's remarks on sentence. On Sunday 25 August 1996 the applicant drove his Holden V8 Commodore south along Pittwater Road towards Balgowlah, after joining Pittwater Road at Dee Why. The applicant's girlfriend, Leilani Adcock was a passenger in the car. For some distance after the applicant joined Pittwater Road to travel south the speed limit was sixty kilometres per hour, but Pittwater Road becomes Condamine Street near Warringah Mall and the Warringah golf course and the speed limit changes in that area to seventy kilometres per hour for traffic travelling south through Manly Vale towards Balgowlah. For southbound traffic the road has three lanes, at times narrowing to two lanes. 5 The applicant's manner of driving was observed by a number of witnesses who gave evidence at the trial and to whose testimony her Honour referred in expressing her findings in her remarks on sentence. Witnesses observed the applicant to change lanes and to overtake. The applicant was seen to cut in front of other vehicles when the kerbside lane ran out and a number of drivers had occasion to take evasive action. The various witnesses called referred to the speed at which the applicant travelled and there were estimates of up to 100 kilometres per hour given. 6 The applicant was observed to be travelling close behind a utility and the Crown case at trial was that the driver of the utility and the applicant were engaged in a race. Her Honour did not find this to be the case. 7 At the intersection of Campbell Parade, Condamine Street widens into three lanes and from that intersection the road goes up a hill and over a blind crest. The evidence which the Judge heard led her to find that the applicant proceeded up that hill, travelling in the median strip lane, very close behind the utility. Both vehicles overtook a vehicle travelling in the same lane and then proceeded over to the extreme left-hand lane and up over the crest, with the utility leading and the applicant's car very close behind. Unfortunately, there was a parked car just over the crest and the utility braked very heavily and skidded but was unable to avoid a collision with the parked car. 8 Her Honour found that the applicant was travelling at a fast speed "and probably in excess of ninety kilometres per hour" as he came over that hill and he then tried to swerve to avoid the utility but lost control, mounted the median strip and crossed into the carriageway for northbound traffic, where he came into collision with another vehicle. In that collision the applicant's passenger was killed instantly. The applicant was seriously injured and admitted to Royal North Shore Hospital where a blood sample was taken in which there was found to be present Delta 9 THC 0.019 mg per litre and Delta 9 THC acid 0.020 mg per litre. Her Honour found, having considered expert evidence placed before her, that the applicant was, at the time of the accident, affected by cannabis which had affected his driving ability. Her Honour accepted the expert evidence of Ms Perl that the impairment would have affected reaction time and altered time, distance and speed perceptions. 9 Her Honour considered the objective features in this case in her remarks on sentence. 10 The applicant was born on 31 December 1973, so that he was only twenty-two years of age when the offence was committed. He had a stable family upbringing and had been educated at Balgowlah Primary School and then at Pittwater Grammar School, where he obtained the Higher School Certificate. It appears he was a talented sportsman and for a time was a trainee professional golfer. He was employed as a finance manager with two motor vehicle dealerships and as a loans officer with a credit union. He met the deceased at his place of work and they had a relationship over a period of some months prior to the date of the accident. 11 Her Honour found the applicant had been introduced to marijuana at the age of eleven and had become addicted to the drug. Although there was a period in which he had rarely smoked, he resumed the use of cannabis in February 1996 and was thereafter smoking three grams per day. 12 The applicant had a traffic record, described by her Honour as "not a good one". It is unnecessary to record all the details here. Suffice it to say that her Honour's description of the record was apt. Perhaps the most serious of the matters in that record was an offence of exceeding the speed limit by more than forty-five kilometres per hour. Following conviction for that offence the applicant lost his licence for three months. There was a subsequent loss of licence after a failure to obey traffic lights. The applicant had but recently acquired the vehicle in which he was travelling at the time of the accident. 13 The applicant was seriously injured in this motor vehicle accident. His injuries included fracture of the occipital condyles and he underwent a fusion procedure, fusing the first cervical vertebra to the base of the skull. As a consequence of that procedure the applicant will suffer permanent limitation in the range of movement of the head and neck. He also sustained a ruptured spleen, a ruptured diaphragm, ruptured liver and a tear in the kidney. He has been left with residual scarring. 14 There was evidence placed before the judge as to changes of lifestyle following this accident. There was a report of a parole officer regarding the applicant's claim that he had ceased using cannabis and that claim, the judge commented, was supported by both the applicant's de facto wife and his father. 15 Her Honour referred to favourable evidence given by the parole officer and by the applicant's uncle. There was evidence that the applicant was seeing a clinical psychologist on a regular basis. According to that witness the applicant was demonstrating a maturing process and a willingness to effect a change in his lifestyle. The sentencing judge commented upon the psychologist's optimism with respect to the applicant's future. 16 The applicant gave evidence before the sentencing judge in the course of the hearing as to sentence, confirming the truth of a statement which had been tendered and in which he referred to the difficulty he had experienced in coming to terms with the death of the deceased. 17 Her Honour remarked that the applicant had one matter recorded characterised as an offence of dishonesty but, whilst the offence was proved, it was dismissed without conviction and her Honour determined that the applicant should be sentenced on the basis that he was a person of previous good character. 18 This brings me to the grounds advanced by Mr Byrne SC for the submission that the sentencing process miscarried in this case. In those submissions four grounds were advanced as warranting the intervention of this Court:

1. that her Honour failed to take into account relevant mitigating factors in determining the appropriate penalty;

2. that her Honour erred in finding that the applicant had abandoned responsibility for his conduct by the manner of his driver;

3. that her Honour failed to give sufficient weight to the rehabilitation which the applicant had achieved and to his prospects of further rehabilitation;

4. that her Honour failed to take into account that the offence occurred in circumstances in which the applicant was taking evasive action to avoid injury to other people. 19 The mitigating factors to which it is submitted the judge did not give proper consideration were the applicant's remorse and shock at the death of his girlfriend and the evidence of good character. In considering this submission, it is to be observed that her Honour made reference in her very extensive remarks on sentence to the applicant's remorse in a number of places. Her Honour referred to it in the context of considering the assessment made by the parole officer that the applicant had shown genuine remorse. Her Honour referred to the applicant's evidence contained in the statement he had written and to Mr Liston's assessment that the applicant was genuinely remorseful. 20 Her Honour referred to the evidence of the applicant's uncle, that the applicant was a changed person who had come to accept "the enormity of the tragedy" that had occurred. Her Honour referred to the psychologist's reference to the applicant's suffering from the loss of his girlfriend and made a specific finding that the applicant "now exhibits genuine remorse for the death of his girlfriend and I have no doubt that he has suffered because of his knowledge that he brought that about." 21 It is clear, it seems, from her Honour's remarks, that her Honour gave a deal of consideration to the issue of remorse in this case before determining what she perceived an appropriate sentence. 22 So far as the applicant's character is concerned, I have already remarked that her Honour approached her task upon the basis expressed, namely, that he would be sentenced on the basis that the applicant was a person of previous good character; and on a second occasion, during the course of the sentencing remarks, her Honour repeated that the applicant "is to be treated as a person of previous good character". 23 It seems to me that it is plain, from a reading of the remarks, that her Honour had regard to the applicant's previous good character. However, for this particular type of offence evidence of previous good character has limited significance (see Regina v Musemeci (unreported, NSWCCA, 30 October 1997) in which Hunt CJ at CL said, "The Courts must tread warily in showing leniency for good character in such cases." See also Regina v Jurisic (1998) 45 NSW LR 209 at 228.) 24 Turning to the next ground argued, her Honour expressly found that the applicant "abandoned responsibility for his conduct in the manner of his driving" and went on to say: "Indeed, I consider the prisoner was completely irresponsible in the manner in which he drove his motor vehicle that morning." 25 Her Honour made that finding in the context of the consideration of the guidelines expressed by the Chief Justice for this sort of case in Jurisic. The guidelines, set out at p 231 of the report, were these: "In my opinion this Court should promulgate the following guidelines: 1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. 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. I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn. 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. This is also the approach in the English guideline judgment on rape: R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985." 26 It was submitted the judge erred, after identifying a number of factors and before expressing the above conclusion, in not making an express finding that such factors were present to a material degree. Her Honour gave detailed considerations at pages 17-19 of the remarks on sentence to those matters upon which her finding of abandoned responsibility was based. The various matters were these:

(iv) the length of the journey during which others were exposed to risk. 27 Each of these factors, it is to be observed, were identified as relevant facts in the judgment of the Chief Justice in Jurisic (p 231). There was a finding of excessive speed in all the circumstances which existed on the morning in question. Her Honour found that in the course of the journey the applicant had been travelling at speeds of up to 100 kilometres per hour and that he was driving in excess of ninety kilometres per hour before he went up the final rise before the accident happened. The speed limits for the area covered, as I have already commented, varied between sixty and seventy kilometres per hour. 28 Her Honour referred to the evidence of substance abuse, accepting the evidence of Ms Perl to which I earlier referred. Her Honour made a finding of erratic driving, referring to the lane changing, overtaking, cutting in front of other vehicles and travelling at an excessive speed over a blind crest, notwithstanding that the applicant appreciated the roadway and knew "that the top of the hill was a trap with parked cars". Her Honour made a finding concerning the length of the journey during which others were exposed to risk. The journey was one of four kilometres and her Honour considered what the evidence had established during the course of that journey. 29 Her Honour was entitled to address the aggravating factors referred to in Jurisic and which were identified as established in this case in aggregate rather than in isolation. I do not consider that the judgment in Dhanhoa [2000] NSWCCA 257 is authority for a contrary proposition. A driver may be found to have abandoned responsibility for his actions by reason of a multiplicity of factors present in varying degrees. However, a decision to that effect involves a weighing of those various factors (see the judgment of Priestley JA in Dhanhoa at para 32). 30 It seems to me her Honour's careful remarks on sentence demonstrate that there was the necessary weighing-up and that a conclusion was reached by her Honour following that weighing-up, that there had indeed been an abandonment of responsibility. That was an assessment her Honour was entitled to make on the evidence and one which she obviously did make. This ground has not been established. 31 It was next submitted that insufficient weight was given to the rehabilitation of the applicant. Her Honour, in the remarks on sentence, referred several times to the applicant's rehabilitation. Her Honour noted, at pp 10-11, the parole officer Mr Liston's assessment as to the applicant's progress towards rehabilitation. Her Honour noted the evidence referred to at pp 11 and 12 of the applicant's uncle concerning the changes for the better observed in the applicant since the offence was committed. Her Honour referred to the favourable evidence of Mr Borenstein, whose conclusion was that the applicant was demonstrating a maturing process and a willingness to address his feelings more directly. 32 Her Honour found (p 21) the applicant had taken some steps towards his own rehabilitation and added: "It would also appear that it has taken this tragic accident to bring him to a realisation of the useless life he was leading and he has attempted to set a different course in his life." 33 Then (at p 22) her Honour adverted to "the admirable efforts he has made for his own rehabilitation" and was influenced by such in finding special circumstances relevant to the structure of sentence to be imposed. 34 Then (at p 22) her Honour arrived at a term of imprisonment of five years as being an appropriate sentence "both to reflect the seriousness of the offence and the subjective matters that have been placed before me on behalf of the prisoner". A careful reading of the remarks on sentence indicate that her Honour did have regard to the progress towards rehabilitation in determining an appropriate sentence. This ground has not been made out. 35 The next matter raised was that the applicant was taking evasive action to avoid injury when the accident happened and inadequate allowance was made for this feature of the case. It was submitted that the conduct of the driver of the utility contributed significantly to the cause of the accident, so that not all the responsibility was that of the applicant and this was a mitigating factor. For my part, I am not attracted by this submission. The evidence established, and her Honour found, that the applicant's driving was dangerous. He travelled at a speed in the order of ninety kilometres per hour to the top of the hill that he knew might be a trap with the possibility of parked cars over the crest. That the applicant found himself in the position in which he did find himself with a need to swerve to avoid a collision with the back of the utility was entirely his fault. 36 Reference has been made to statistics from the Judicial Commission which indicate that the sentence imposed on the applicant was at the top of the range for an offence such as that with which the applicant was convicted. Mr Byrne took us to the facts in the case of Jurisic itself and endeavoured to persuade the Court by reference to those facts that the sentence here imposed was manifestly excessive. 37 It goes without saying that each case has to be determined upon its own set of facts. It is not for this Court to determine what sentence it would have imposed. The task of this Court is to determine whether there was error in the sentencing process in the District Court. This was a very thorough judgment by the sentencing judge. Her remarks on sentence seem to me to address all the relevant principles and to carefully weigh both the objective and the subjective features. I detect no error in what her Honour has written and I do not consider that the sentence imposed was outside the range. It was a severe sentence but it was a bad offence. I am not persuaded that the sentence imposed was manifestly excessive. I therefore propose that leave to appeal be granted but the appeal be dismissed. 38 BARR J: I agree. 39 STUDDERT J: The orders of the Court then will be those that I have proposed.

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