R v Jarryd HYDE aka Jarryd RAYWARD - [2012] NSWDC 93 - NSWDC 2012 case summary — Zoe

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R v Jarryd HYDE aka Jarryd RAYWARD

[2012] NSWDC 93

District Court of NSW|2012-05-11|Before: Beagle JA

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Source facts

Court

District Court of NSW

Decision date

2012-05-11

Before

Beagle JA

Catchwords

(2009) 195 A Crim R 1 Bombardieri v R [2010] NSWCCA 161
(2010) 203 A Crim R 89 Bugmy v The Queen [1990] HCA 18
(1990) 169 CLR 525 at 531-532 R v Cameron [2005] NSWCCA 359
Jones v The Queen [2010] HCA 45

Source

Original judgment source is linked above.

Catchwords

(2009) 195 A Crim R 1 Bombardieri v R [2010] NSWCCA 161(2010) 203 A Crim R 89 Bugmy v The Queen [1990] HCA 18(1990) 169 CLR 525 at 531-532 R v Cameron [2005] NSWCCA 359Jones v The Queen [2010] HCA 45(1997) 189 CLR 295 at 307 & 308. Pearce v The Queen [1988 HCA 57(1998) 194 CLR 610 at [40]: Weininger v The Queen [2003] HCA 14(2003) 212 CLR 629 at [24] Whyte (Dale Shane) [2002] NSWCCA 343 (20-Aug-20022010/4020842011/116841

Judgment (12 paragraphs)

[1]

Introduction 1Mr John Ferella died on 2 December 2010. When he left his home that day for a job interview, he was not to know that he would miss his son's wedding and loose forever, his joy in being a loving husband, father and grandfather. Mr Ferella died through no fault of his own. All his thoughts, hopes and dreams ended instantly in a collision that occurred solely because of the way Jarryd Hyde drove. 2Immediately before the collision, Mr Hyde (charged as Jarryd Rayward), the offender now before the court, drove, at speed, the wrong way, up the entrance ramp to the Hume Highway at Narellan. The offender's driving in the lead up to Mr Feralla's death was truly dangerous. He drove to escape a lawful and careful police pursuit. He was driving a stolen car. He was disqualified from driving. He had never held a driving licence. He was serving an incomplete sentence for other offences. He had been released to parole on 1 October 2010. In the collision his two passengers were injured. Both will be referred to by their initials, MS and JK, as they are children. 3I must now sentence the offender for the crimes he committed. My sentences must ensure that adequate punishment is imposed. They must make the offender accountable for his actions; actions which showed a gross abandonment of personal responsibility. There was and could be no excuse for his behaviour. Here to his credit the offender offered none. The sentences must recognise the harm done to Mr Ferella, MS and JK and the impact Mr Ferella's death had on his family and the community. The sentences must operate to denounce the conduct of this offender. They should, so far as is possible, operate to deter others. Sentences must, where possible, act as a deterrent to the offender himself. Here a lengthy goal term may serve that purpose. 4Courts have a responsibility to do what they can to ensure human life is respected and preserved and to punish those who unlawfully take it. Sentences must also recognise the community interest in encouraging the rehabilitation of young people such as the offender. After he has served the minimum period that the law deems necessary it is in everyone's interests that he be able to re-integrate into the community. 5There are internal tensions between the various purposes of sentencing. Any perceived leniency, because of the need to recognise those competing community interests, should not be interpreted as understating the seriousness of the offences committed, in particular that which resulted in the death of Mr Ferella. No punishment could possibly do justice to the finality of what was done to Mr Ferella or compensate his family for their loss. That loss was set out in the emotional and heartfelt expressions of grief in the victim impact statements read at Campbelltown Court on 11 May 2012: Exhibit A tabs 9 to 12.

[2]

Facts 6There are agreed facts: Exhibit A tab 5. Those facts were supplemented by my viewing in court of the recordings taken at the scene from two police cars: Exhibits C & D. 7The first offence in the sequence I must consider was the breaking into a home in Bexley on 24 November 2010. A family home was ransacked and valuables worth about $14,000 taken. The offender left his fingerprints at the scene. 8Next, there was a break and enter at a Wattle Grove home on the night of 1 December 2010. Keys to a Holden Commodore BHT 23D were stolen and then used to take the car that had been parked at the front of the premises. The offender subsequently obtained the keys and the car. He then picked up MS, aged 17, and JK, aged 13. Their intent was obvious by what occurred next. That morning at Camden Park three other family homes were broken into, ransacked and property taken. 9Police, alerted by information from the public that something suspicious was occurring, went to the Camden Park area around midday. They saw BHT 23D, near the homes that had been entered. Soon after the car, driven by the offender, moved towards them. The police car's lights and siren were activated. An attempt was made to block BHT 23D. The offender got round the blockage by driving onto the footpath at speed. Another police car on its way to the scene was forced to swerve off the road to avoid a collision. A short pursuit took place, but the police quickly terminated it in the interest of public safety. Soon after other police travelling in Remembrance Drive, near Picton, saw BHT 23D travelling towards them at a speed well in excess of the 80km per hour limit for that road. They did not pursue the vehicle as it was going too fast. 10Not long afterwards a number of members of the public travelling on the Hume Highway reported BHT 23D was heading north toward Campbelltown travelling well in excess of the 110km/hr limit. One report indicated BHT 23D was apparently overtaking cars "as if they were standing still". At about 1pm Highway Patrol commenced the pursuit shown on Exhibit C. Other Highway Patrol officers deployed the road spikes about 650m short of the Narellan Road overpass and exit and access ramps. This is shown on Exhibit D. 11To avoid the spikes the offender drove BHD 23D across the grassed median centre separating both the south and northbound lanes of the Hume Highway. He then drove north into the southbound lanes of the highway, against the flow of traffic, narrowly avoiding several collisions. The offender drove for approximately 600 metres on the incorrect side of the roadway at well over 110km/ph before exiting the highway the incorrect way up the Narellan Road access ramp. At this time the deceased, John Ferella, was driving his black Holden Commodore sedan in a southerly direction on the access ramp. He was the driver and sole occupant of the vehicle. The inevitable collision occurred about 200 metres within the ramp. Its impact forced back Mr Ferella's vehicle, causing it to roll on its roof. The collision killed John Ferella. His injuries were extensive. 12As a result of the collision, the young person, MS, who was sitting in the rear passenger seat behind the driver, suffered: (a)A break to the right collar bone, (b)Fractures to the left 2nd - 6th ribs (c)Fracture to the chest bone, (d)A perforation to the small bowel requiring surgery. 13He spent 4 days in the intensive care unit after the bowel operation. 14The young person, JK, who was sitting in the front passenger seat, suffered: (a)Tenderness to the neck, collarbone and lower back, (b)Superficial abrasions, (c)An acute compression fracture of the second lumbar vertebra - the fracture was stable and required no surgical treatment. 15 The offender was not seriously injured. He ran. He did not stop to assist Mr Ferella or his two young and injured friends. He was arrested soon after, still with stolen jewellery in his pockets. Both injured passengers were later interviewed and told police they had asked the offender to stop as they were scared.

[3]

The Offender 16On 1 October 2010 the offender was released to parole. He had served just over 5 months of a 12 month sentence imposed at Campbelltown Local Court. Although only 22 (DOB 29/11/1988) it was not his first time in custody. He first came before the Children's Court in January 2003 for stealing a car and driving it in a manner dangerous to the public. Aged 15, he received a short sentence to a Juvenile Justice institution. Despite being released to probation he was soon back in custody, again for offences involving a stolen motor vehicle. Within weeks of his release he was again arrested and control orders imposed for taking a motor vehicle and driving it in a reckless or dangerous manner. That pattern has not been broken. 17At no time since 2003 has the offender spent more than 6 months at a time in the community. He has numerous offences for dishonesty but more importantly in the past he has stolen or has been carried in stolen cars and driven those cars in a dangerous manner. The failure to break that pattern reached its climax on 2 December 2010. The tragic consequence of the crimes committed that day will resonate in the community for years to come. 18As I have said earlier that these offences occurred while on parole aggravates the sentences, however the offender is not to be sentenced for his past. His past offending is however relevant to my attempt to understand why these offences occurred. 19The offender gave evidence. I found him to be candid and truthful. He confirmed both the positive and negative aspects of the background and history given to his Psychologist, Ms Nasr, and set out in his former partner Ms Luckwell's letter: Exhibits 1 and 2. He said he accepted full responsibility for each of his actions. He acknowledged how hard he will have to work while in custody to address his offending behaviour and that he will need help to do so. He expressed some insight, regret and remorse but I doubt he has the emotional or other resources as yet to fully comprehend the enormity of his crimes and their consequences. 20I found Ms Nasr's report very helpful. It indicates the pattern of offending and custody starting well before the offender had a chance to make rational and mature decisions. Unsurprisingly, she notes his defiance, impulsivity and hostility and difficulty with authority. His parents tried, but did not have the resources, to keep him within proper boundaries. His elder brother died following a police pursuit. The death has had an adverse and negative impact on him. He said in evidence he also witnessed the serious injuries caused another brother in yet another but more recent motor vehicle accident. 21He has had limited schooling exacerbated by a stuttering problem. Ms Nasr notes a low (borderline) level of intellectual functioning. These problems and deficits did not leave him well equipped to deal with adult life. Similarly, early uptake of drugs and alcohol and mixing with anti-social peers in and out of juvenile detention meant that he entered adulthood with none of the advantages of what may be termed a normal upbringing. 22Although himself a parent, he has, because of his time in custody, had little opportunity to assume any responsibility for his daughter, now 5 years old. It appears crime and drug use were more important to him than anything else. While in many respects some of his problems, especially his time in custody, stem from his own criminal actions, his decisions, including those which led to the commission of these offences, were those of an immature child and an irresponsible and immature young adult. His gross immaturity it appears stems, in part at least, from the many disadvantages he suffered as a child. 23Ms Nasr's diagnosis of conduct disorder means he has, even now, a limited capacity to recognise the consequences of his actions or to cope outside of custody with proper responsibilities and boundaries of an adult citizen. I do not underestimate the significance of his dysfunctional childhood to these conclusions. It meant that he had, and still now has, fewer emotional resources to guide him than most people: see R v Millwood [2012] NSWCCA 2 at [69]. 24It is clear from Ms Nasr's report that he has become institutionalised. As she notes at [45]: "His functioning may in part be explained by early developmental vulnerabilities associated with learning and behavioural difficulties, in addition to the problems associated with impulsivity, disinhibition and impoverished complex reasoning, which was probably exacerbated by his substance abuse history and anti-social peer association. It seems these risk factors have shaped his developmental trajectory, where almost his entire maturation has occurred within the custodial environment, such that Mr Hyde has become institutionalised to such an extent that he is lacking many of the basic coping and independent living skills that is required for independent and stable living." 25The offender's prognosis is poor. If he is to adapt to normal community life on release he will, as Ms Nasr concludes, "require extensive co-ordinated supervision and support to have a chance of stable living". She recommends that: (1)He progress through a structured pre-release program, which allows him experience in the community in a staged and supported way. (2)He be released into a community offender support program or other halfway house or long term rehabilitation facility. (3)He receive considerable assistance with living skills and employment. (4)He needs structured support in the community from Community Offender Services. (5)He needs psychological treatment and supportive counselling. His background is a mitigating factor, but it does not absolve him from responsibility for what he did, nor could it excuse the tragic and lasting consequences of his crimes. 26Mr Smith, for the offender, accepted this. In fair and helpful submissions he drew my attention to many of the matters I have set out in these remarks.

[4]

The Offences 27There are 3 offences for sentence: (1)Manslaughter: s18(1)(b): 24 Crimes Act 1900 - maximum penalty 25 years imprisonment. (2)Aggravated dangerous driving occasioning grievous bodily harm (escape pursuit by police officer): s 52A(4) Crimes Act - maximum penalty 11 years imprisonment. (3)Drive furiously occasioning actual bodily harm s 53 Crimes Act - maximum penalty 2 years imprisonment. 28In relation to the manslaughter offence I am asked to take into account the four (4) Break, Enter and Steal matters and an offence of receiving the stolen car: respectively, sections 112(1)(a) and s 188(1) Crimes Act. In relation to the aggravated dangerous driving matter I am asked to take into account an offence of failing to stop and assist after vehicle impact causing death and police pursuit: ss 52AB(1) and s 51B(1) Crimes Act. There is also an offence on a s 166 Criminal Procedure Act 1986 certificate of driving while disqualified, s 25A(1)(a) Road Transport (Driver Licensing) Act 1998. 29The maximum penalties for the offences set by Parliament indicate the seriousness with which the community view such offences. On any assessment, each offence because of its consequences, and the course of driving that preceded it, must fall towards the high end of the range of objective gravity for offences of their type. 30The Court of Criminal Appeal in Whyte (2002) 55 NSWLR 252, formulated sentencing guidelines for serious driving offences whose maximum penalties range from 10 to 14 years such as the second charge here. An offence of manslaughter, with its much higher maximum generally involves, as here, crimes of greater culpability, given the premium placed on human life. 31I have regard to the maximum penalties and the guideline. Clearly the individual sentences for the first and second charges must exceed those in guideline, given the nature of the charges and the aggravating features that apply to each. 32The Crown and Defence, in submissions, drew my attention to a number of other cases, including R v Borkowski [2009] NSWCCA 102, Bombardieri v R [2010] NSWCCA 161, R v Cameron [2005] NSWCCA 359 and Duncan v R [2012] NSWCCA 78. 33Mr Smith noted that many of the authorities referred to involved multiple deaths. He drew my attention to the comment by Buddin J in Bombardieri at [55] in which His Honour's review of sentences for motor vehicle manslaughter and aggravated s 52A Crimes Act sentences, led him to accept a submission that the sentence under review, 10 years with a 6 ½ year non parole period for a single death "would be more appropriate for an offence falling into the motor/manslaughter category of offence". With respect, I do not believe there is a settled range of sentences for motor/manslaughter matters. Nor do I believe "motor/manslaughter" is a universally accepted category of offence. Every manslaughter offence's facts must be viewed independently as each unlawful death has its own unique features. 34I must have regard to what is said in other similar matters and authoritative cases such as those noted above: see R v Oliver (1980) 7 A Crim R 174 at 177, cited with approval by Beazley JA in Bombardieri at [16]. I must endeavour to apply sentencing principles in a consistent manner taking account of the objectives of sentencing but each sentence, consistent with principle, must reflect the individual offence and the individual offender: see Hili v The Queen; Jones v The Queen [2010] HCA 45. 35A sentence must attempt to synthesise many competing features. Here they include the complexity of the offender's background and behaviour and the consequences of his crimes. Courts must attempt to translate all such matters into units of punishment: see Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [24]. When all relevant matters are considered the sentence imposed must be proportionate to the gravity of the crime and not reduced because of unjustified leniency or extended simply to protect the community from the offender. 36The manslaughter offence was an offence of great seriousness because: (1)Of the wholly unnecessary and avoidable death of Mr Ferella. The terrible finality of what he did to Mr Ferella cannot be undone by anything the offender does during the rest of his life nor by any punishment that this court inflicts. (2)The offender's actions exposed many others to an appreciable and grave risk of serious harm. This included his passengers, one of whom was under 16. (3)The offence occurred to escape pursuit and soon after his avoiding a police road block. (4)The course of driving prior to the collision, in particular when he left the highway and moved across the median strip into the southbound lane, showed a complete lack of moral responsibility. (5)The offence was preceded by many flagrant breaches of the road rules. (6)The offender's driving was unlawful on a number of other levels. The car was stolen. He was disqualified from driving. He had never held a licence. His actions were in breach of his parole obligations. 37There are no objective matters that could operate to excuse what the offender did. 38So far as the second charge is concerned, MS's injuries were so serious that he spent four days in an intensive care unit. In Whyte [236] the Chief Justice noted that a two year sentence was generally appropriate for a case where moral culpability was high. . His Honour set out a number of factors that could be used gauge moral culpability. Here not only does the offender's crime fall into the aggravated category referred to at [236] but it also encompasses many of the factors that were, individually, regarded as indicating a high degree of moral culpability. 39The dangerous driving preceding the incident showed, as it did with the manslaughter offence, an abandonment of personal responsibility and gross moral culpability. While many of the elements of this offence and matters in aggravation overlap with the first charge there must be some measure of independent punishment specifically to recognise the significance of the injury and harm done to MS. While MS, along with JK, chose to join the offender in the property crimes committed the agreed facts record their understandable terror at the dangerousness of the offender's driving. 40The third offence was less serious as the injuries to the young person JK were of a more transient nature. It was however a serious example of that type of offence. Because of the risk of double counting matters of aggravation and application of the totality principle a considerable degree of concurrence with the sentence for the second count is required. 41As the offender was disqualified from driving at the time he must be dealt with for that offence. If it had been dealt with in the Local Court he would, because of his record, have received a custodial sentence of some length. There must be some discrete punishment for this offence.

[5]

Form 1 Matters. 42While the court must sentence for the principal offence only, matters on a Form 1 can be taken into account to increase the penalty that would otherwise be imposed. In the guideline judgment on this topic Attorney General's Application under s37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518, the Chief Judge said, at [42], a court could do so by giving greater weight to the need for personal deterrence and the community's entitlement to exact retribution. The Chief Justice noted limitations on any increase included the maximum penalty for the offence and the proper application of the principal of totality. 43Where a sentence is increased because of Form 1 matters, a Judge does simply not replicate the sentence that would have been imposed had the matters been charged separately: see Eedens v R [2009] NSWCCA 254 at [19]. 44Had the Form 1 matters for the first offence been dealt with separately they would have resulted in significant custodial penalties, although partial concurrency would have been required. The effect of using the Form 1 gives the offences so included significantly lower salience in the sentencing process: Attorney General's Application No 1 of 2002 at [66]. 45That said, the Form 1 matters must operate to increase the sentence I impose on the first charge. The car used in the offences had been stolen and four families had their homes ransacked. A large quantity of property was stolen. Such crimes involve not just the taking of insured property that can be replaced but also other items of personal and sentimental value, which will be lost forever. Further, not everyone and everything is insured. The impact of a break, enter and steal offence on its individual victims must be recognised. Such offences also led to feelings of insecurity and break down community trust and cohesion. Significant sums must be spent on prevention and insurance. 46So far as the Form 1 for the second offence is concerned, the charges have a slightly different flavour. His failure to stop and assist the injured is yet another example of his criminal actions and moral culpability that day. While the second police pursuit matter relates to a separate incident of dangerous driving, it is a matter that immediately preceded the offences for which he is now being sentenced. As these events aggravated the overall criminality of the incident it is harder to distinguish them from matters that have already been taken into account. Were I to significantly increase the sentence as a result of this Form 1 it would involve double counting.

[7]

Concurrence, Accumulation and Totality 49In structuring the sentences I must recognise: (1)There must be separate and discrete sentences and a measure of independent punishment particularly for the first two offences. (2)The other offences, including most of the matters on the Form 1, were part of a course of conduct starting with the acquisition of a stolen car, and the break, enter and steals and ending with the offender's failure to stop and assist. (3)When a court sentences an offender for multiple offences (including when there are different victims) or sentences an offender who is already serving a sentence after conviction for other offences, a judge must ensure that the aggregation of all the sentences is a "just and appropriate measure of the total criminality involved": see Postiglione v The Queen (1997) 189 CLR 295 at 307 & 308. (4)Care must be taken not to double count matters of aggravation or mitigation or to the extent to which offences contain common elements, to punish twice: see Pearce v The Queen (1998) 194 CLR 610 at [40]. (5)That extremely long sentences can have a crushing effect on an offender and, by inducing a feeling of hopelessness, destroy expectations of life on release. Such feelings can impede prospects for reform and rehabilitation, which cannot be in the community's interest. (6)The real risk that further custody will institutionalise the offender and further reduce his prospects for reform. This concern applies even in the face of entrenched recidivism: see Jackson v R [2010] NSWCCA 162 at [24]. If possible the risk should be minimised and the opportunity for rehabilitation offered, particularly for young offenders who will be released to parole while still young. (7)Long sentences can have a compounding effect, in that their severity increases at a greater rate than the increase in length of the sentence: see R v M.A.K., R V M.S.K. [2006] NSWCCA 381. (8)That, as was pointed out in M.A.K at [18], a sentencing court must take care when applying the totality principal, as confidence in the administration of justice requires the court to avoid any suggestion that there is some kind of discount for multiple offending. 50These matters apply both in the formulation of the total sentence and the non-parole period. The weight given to such factors and the general purposes of sentencing may differ depending on the purposes inherent in each part of the sentence: see Bugmy v The Queen (1990) 169 CLR 525 at 531-532.

[8]

Special Circumstances 51There are "special circumstances" requiring the fixing of a long parole period because of: (a)The accumulation of sentences. (b)Recognition that this sentences closely follows on a prior non- parole period. (c)The offender's clear need for an extensive period of supervision in the community so that he has the opportunity, with help, to adapt to normal community life. (d)The offender's need on release to parole to spent time in a fulltime rehabilitation facility, halfway house or Community Assistance Programme (COSP) centre. (e)The offender's need for engagement in the programmes recommended by Ms Nasr, Psychologist in Exhibit 1. 52In submission, Mr Brown, for the Director of Public Prosecutions, suggested only minimal variation of the ratio between the non-parole and parole periods of the total sentence was required. He properly stressed the objective gravity of the three crimes and the need to deter others from engaging in such behaviour by the severity of the sentences imposed. 53I agree with Mr Brown that these matters must be taken into account in fixing the minimum period of actual incarceration appropriate to the three offences. There must be adequate punishment, the first component of which is the non-parole period. On balance however, these matters important as they are, do preclude my finding there are special circumstances. 54As the offender will eventually be released there is also a community interest in fostering his rehabilitation. After a lengthy period in custody he will require a long period of support and supervision. It is in no one's interests that the present pattern of offending and custody continue. It is impossible to tell so far in advance whether the offender will take advantage of the opportunities my finding of special circumstances gives him. The interests of community protection and the offender's young age and obvious immaturity demand an attempt be made. He will have to earn the right to release, which will require an order by the State Parole Authority. Such an order will depend on the offender's behaviour in custody and his capacity, with support, to assume normal community life. If he cannot do so or if he does not respond positively to supervision, he will be returned to prison.

R v Jarryd HYDE aka Jarryd RAYWARD

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Judgment (12 paragraphs)

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