R v Kaliti

1 WOOD CJ at CL: Following a plea of guilty to one count of dangerous driving causing grievous bodily harm in circumstances of aggravation, contrary to s 52A(4) of the Crimes Act, the applicant was sentenced by Kirkham DCJ to five years imprisonment. A non-parole period was fixed of three years and nine months. He now seeks leave to appeal against the sentence. 2 The circumstances of aggravation were that, when the vehicle driven by the applicant struck the victim, who was at the time standing alongside a box trailer, he was under the influence of alcohol. The victim suffered catastrophic injuries in the accident including traumatic amputation of one leg, and subsequent surgery amputation of his remaining leg, as well as brain damage. Breath analysis of the applicant following the accident, returned a reading of .2 grams of alcohol per 100 millilitres of blood, a reading four times the prescribed limit. 3 No issue is taken with the head sentence, nor could it be, having regard to the guideline judgment of this Court in R v Jurisic (1998) 45 NSWLR 209. It was then made clear that, among the circumstances relevantly to be taken into account in sentencing for this offence - and here expressly referred to by his Honour in his reasons for sentence - are the extent and nature of the injuries inflicted, and the degree of intoxication involved. The latter is relevant to the determination whether the offender has abandoned responsibility for his or her conduct. 4 The present case is one where there was a clear and significant abandonment of responsibility, as was made clear, not only by the quantity of alcohol involved but also by the frank admission by the applicant that he knew he was over the limit but, nevertheless, elected to drive the motor vehicle. 5 Rather, this application is directed to the question of whether or not special circumstances should have been found justifying a departure from the ratio between the non-parole period and the term of the sentence prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 6 His Honour made no express reference, in his reasons for sentence, to the question of whether special circumstances had been established or not. Whilst it is unlikely in the extreme that his Honour, as a very experienced trial judge, overlooked this issue, particularly as he set the ratio in accordance with the section, and whilst a failure to make reference to the provision does not automatically establish appellable error: Mason [2000] NSWCCA 207 and McIntyre NSWCCA 18 April 1995; this Court has emphasised more than once the desirability of sentencing judges making it clear that there has been advertence to the issue. (See Brindley (1993) 66 A Crim R 204 at 207 and Jenkins (1999) NSWCCA 110). 7 I would be minded in the circumstances outlined, that is, in the absence of express reference to the section, to grant leave to appeal and then to consider whether the case is one in which such special circumstances should have been found. 8 The matters identified by the applicant as constituting special circumstances are five in number. They concern: (a) the age of the applicant, thirty years at the time of the offence; (b) his previous good character, including his clear driving record; (c) the fact that he had what was said to be long history of alcohol abuse which, it was also said, had been occasioned by a need to help him cope with the grief and depression associated with the death of his parents during his late teenage years; (d) the asserted need for counselling and psychotherapy referred to by Ms Kusch, a consultant psychologist; (e) the fact that this would be a first period of custody for him. 9 Although Mr Dalton has said everything that can possibly be said in support of the appeal, I am unpersuaded that special circumstances have been shown. In order to make the application good, the applicant would need to demonstrate that there were circumstances that would justify a larger non-parole period than that specified by the Act: See Bloomfield NSWCCA 15 July 1998. Although that decision related to the precursor to the present Act, the principle expressed is equally applicable, in my view, to the present case, which would relevantly require attention to be given to two central factors: (a) whether or not the case is one where, in the interests of the offender and of society, the applicant should have been given the opportunity of an extended period of release subject to supervision so as to enhance his prospects for rehabilitation; see Moffitt (1990) 20 NSWLR 114; Morrissey NSWCCA 15 July 1994; Lett NSWCCA 27 March 1995; and Silver (1999) NSWCCA 108; and (b) whether the non-parole period to be imposed is one that would reflect the objective gravity of the offence, taking into account not only the objective, but the substantive circumstances of the offender; see McIntyre (1988) 38 A Crim R 135. 10 In Kama (2000) NSWCCA 23, Spigelman CJ questioned whether the age and lack of antecedents of an offender and the fact that the sentence is one involving a first occasion of custody are, of themselves, special circumstances within the meaning of the legislation. 11 I share that doubt, save to the extent that in an appropriate case, those circumstances may be reasons why, in conjunction with the remaining subjective circumstances, an assessment was justified that the applicant required a longer period than usual subject to a supervised release. Some care does need to be taken to avoid automatically elevating subjective circumstances of this kind, which are properly taken into account when fixing the term of the sentence, into special circumstances when consideration is given to s 44(2) of the Act. 12 Neither the age of the applicant, nor the fact of his prior clear record, or the absence of any previous custodial experience, point in that direction in this case, and I am not satisfied that they would here, themselves, constitute special circumstances. 13 Where special help is needed to overcome an alcohol or drug problem, or where some form of psychiatric assistance is needed to deal with the underlying circumstances which generate those problems, and where that help cannot adequately be provided within the corrective system, or where it would require an extended period of release subject to supervision, then it may be accepted that special circumstances do exist. 14 However, I am unpersuaded, in the present case, that such factors are present to the degree necessary to justify such a finding. In particular, it is by no means clear to me that the applicant did have the problem, either of the nature or to the extent to which Ms Kusch referred to in her report. In fact, it would seem from the thrust of all the remaining evidence that his problem, if it was a problem, was that of a social drinker at weekends, it being his choice or practice to attend hotels with friends and, on occasions, to drink to a significant extent. Certainly, it was not a problem noticed by his employer, who spoke favourably of his responsibility and reliability, and who was totally unaware of him having any drinking problem. Additionally, it appears that his partner was unaware of any such problem, and he himself disclaimed any acceptance of his level of consumption of alcohol as being problematic. 15 Accordingly, it appears, notwithstanding the history taken by Ms Kusch, that there is a significant absence of any proper basis for her making the connection between his earlier childhood problems and his consumption of alcohol, or of his need for particular assistance in that regard. 16 It is the case that drug and alcohol counselling is available within the prison system. Although Ms Kusch thought that there may be a need for psychotherapy to address any problem he may have had, including what she referred to as "poor coping skills", that was a somewhat vague opinion. Indeed, it does not seem to me to be one that could support the finding of special circumstances which needs to be demonstrated in this case for the appeal to succeed. 17 In fact, the highest her report seems to reach, so far as any underlying problem is concerned, is encompassed in a paragraph which suggests that his personality testing indicated that "he was quite defensive and reluctant to reveal any psychological or inter-personal difficulties". 18 That, I observe, seems to be altogether too vague a proposition to support the finding which is sought to be made. 19 I am not persuaded that the potential period of release on parole which is allowed for in the sentencing order, would be insufficient to meet the needs of the rehabilitation of the applicant. Otherwise, to reduce the non-parole period would be to result in a sentence which would be disproportionate to the objective gravity of the offence, and to undermine the very strong deterrent aspect which must accompany any sentence for this kind of offence. 20 I would grant leave to appeal but would dismiss the appeal. 21 HOWIE J: I agree, but I simply want to add that in my view the finding of the personal circumstances which will permit a reduction in the non-parole period must be purposeful. The purpose to be achieved by a reduction of the non-parole period or a lengthening of the parole period must be something other than simply to relieve the offender of the burden of serving a minimum sentence of imprisonment as would be required by the operation of s 44. In my view, there is no purpose for which the longer parole period or a lesser non-parole period would serve in this particular case, and, therefore, there are no special circumstances. 22 WOOD CJ at CL: The order of the Court will be as I have proposed.

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