R v Kyle

Judgment 1MACFARLAN JA: I agree with Adams J. 2HIDDEN J: I agree with Adams J. 3ADAMS J: Introduction 4This is an appeal by the Director of Public Prosecutions against a sentence imposed on the respondent for an offence of aggravated dangerous driving contrary to s 52A(4) of the Crimes Act 1900, to which he had pleaded guilty. He was sentenced on 17 March 2014 to a term of 3 years imprisonment commencing on that date with a non-parole period of 1 year and 9 months. The maximum term of imprisonment applying to the offence is 11 years. There is no standard non-parole period. The sentence reflects a discount of 25% arising from the respondent's timely plea of guilty. 5The offender's driving caused a collision which resulted in the infliction of grievous bodily harm on the victim with permanent debilitating effects. The circumstance of aggravation was that the offender had, at the time of impact, the prescribed concentration of alcohol, as it happened, 0.206 grams of alcohol per 100 ml of blood. Facts 6These were, in substance, not controversial and no submission was made in this Court that the factual findings of the learned sentencing judge should not be accepted. The following account is largely taken from his Honour's remarks on sentence. 7The respondent was, at the time of the accident, the holder of a provisional licence but no point, one way or the other, depends on this. During the evening before the accident the respondent had been drinking with some friends at a hotel in Milperra and had returned to a house in Warwick Farm where he continued drinking homemade alcohol throughout the evening and into the early hours of the morning. At 6 am his friends contacted an ambulance after finding him difficult to rouse and he was taken to Liverpool Hospital and admitted at 8.11 am. When examined by the doctor he was drowsy and obviously intoxicated. His level of consciousness had improved. Blood tests were ordered together with intravenous thiamine and he was observed for a period of time to ensure that he was not developing evidence of a serious toxidrome in the form of an evolving acidosis or QT prolongation. About three hours after his admission his blood alcohol concentration was 0.363 g/100ml. He remained under observation until about 3.30 pm, with his condition gradually improving. He had been walking freely to the toilet and was back to a normal level of consciousness. On reassessment, he was deemed medically safe for discharge. He was ultimately discharged at 3.27 pm on 26 August 2012. 8At 4.34 pm that afternoon the respondent was driving his motor vehicle in a general northerly direction along the Northern Road Llandilo where there was a gradual right bend approximately 300 m south of the site of the accident. At this time the victim, Mr Krajsic (36 years old at the time) was driving his motorcycle in a southerly direction. The respondent's vehicle crossed the double centre unbroken lines entering the southbound lane and collided with the motorcycle. Just before this, another vehicle travelling in front of the motorcycle was forced off the road to avoid collision with the respondent's car. The driver thought he saw the respondent's head on his chest and it is possible he had fallen asleep. The road conditions had nothing to do with the accident. The respondent's vehicle was at least four metres over the centre line at the time of impact. 9Mr Krajsic was thrown on to the front windscreen of the respondent's car and vaulted over it. He suffered a fractured pelvis requiring surgical fixation, fractures to four ribs, displaced spinal fractures, spinal cord injury, cardiac arrest and renal failure. He has been left with no movement in his left leg and partial strength in his right leg which might improve if he were to have further surgery. He has no sexual function. He is permanently wheelchair-bound and needs assistance showering and dressing and with other routine activities. He suffers considerable pain and discomfort. He cannot work at all in the security field where he had been employed for 18 years before the accident. Of course he can no longer play sport. The financial impact has been significant and he was, at the time of the sentencing, on a disability pension. The sentencing judge's description of the injuries as catastrophic is entirely justified. 10Witnesses and police officers at the scene observed the respondent showing signs of intoxication including his being unsteady on his feet, his eyes being bloodshot and smelling strongly of intoxicating liquor. He was arrested at 4.55 pm and at 6 pm his breath alcohol reading was 0.206 g/210l. 11Dr Judith Perl, a forensic pharmacologist, stated in a report forming part of the agreed facts that, "based on the breath analysis result and on elimination rates, the accused's BAC at the time of the collision would have been not less than 0.221g/100ml ... with his most likely BAC being 0.229g/100ml... [and, further] taking the difference between the breath analysis and blood analysis results and considering the time interval between the two results, such would indicate the accused had an elimination rate of 0.24g/100ml/hour ... [Based] on this elimination rate and on the breath analysis result, at the time of the collision the accused's BAC would have been 0.242g/100ml... [which is] the offender's most probable BAC at the time of the collision". Dr Perl also reported that "the symptoms of intoxication displayed by a person are dependant on their experience with alcohol" and noted that - "The accused did display signs of drunkenness or significant intoxication ... consistent with his BAC being above 0.2g/100ml. However, the intensity of the symptoms were certainly less than one would expect in a 'social' drinker at this level. Therefore, given his BAC as determined by the breath analysis (and considering his BAC as determined by the blood in hospital) such would strongly suggest to me ... that the accused had a much higher level of tolerance than an average social drinker". 12The respondent gave evidence in the proceedings. The sentencing judge accepted his evidence that he woke up in hospital and had no recollection of the intervening period. He thought he was an honest young man. The respondent's evidence was to the effect that he was on a drip and he felt tired, lethargic and confused but did not feel drunk although he was confused about his discharge. He said, "I didn't feel too bad, not really, I just felt ...[pretty] tired and lethargic and [pretty] confused". He elaborated, "I believe I felt pretty alert, like I was ... just a bit more confused about the events that had happened before, like I've never been on a drip and waking up, it was just like a - like a weird sort of feeling for me, like I didn't know - I didn't know what that was". He said he believed the drip would have flushed the alcohol from his system. He took a taxi from the hospital to the car and intended to pick up his car and drive home. He said that, while he was driving, he "didn't feel any worse than I normally would like as far as I can recall no". He did not suggest he had fallen asleep. As I understand his evidence, he attributed the "weird" feeling to having been in hospital on a drip but insisted that when he got into his car, he "felt okay". He recalled the collision. 13The sentencing judge said, "Obviously he thought he was able to drive and ... he was clearly wrong". His Honour concluded - "In my view [the respondent] clearly had the subjective but erroneous belief that he was in a position to drive if he actually thought about to any significant extent. He said he never had been hospitalised before, this was a very different experience for him and ... I accept his evidence in that regard and that the doctor said he was, "right to leave". He made the assumption, again erroneous, that he was okay to drive." 14In dealing with the respondent's culpability, the sentencing judge said - "... This case and it's consequences arose because of his own conduct, his own conduct in binge drinking ... to an extent where an ambulance had to be called to take him to hospital and where his readings were at this extraordinarily high level for such a period of time. On any view it is an abandonment of responsibility ... I find that there was a substantial degree of moral culpability, it is not excused in my view by the fact that he was discharged from hospital. It is not excused by the fact that he chose to get a taxi [in order] to drive ... [when he] could have got the taxi to take him straight home. It is equally clear, and I find that there was a substantial degree of impairment, constituted by the facts that I have outlined." "... I cannot agree with... the submission [by defence counsel] that the decision [to drive] did not demonstrate a comprehensive abandonment of his personal responsibility. That does not arise simply by leaving the hospital, it arises by any young man going and driving after such a significant binge drinking exercise. It may be that he was not aware of the effect of it and the impact of it, but he must have been aware he had been drinking and for a very substantial period and was substantially affected by it." [Emphasis added.] Speed camera photographs tendered on the proceedings showed that at 3.54 pm (about an hour before the accident) the respondent's car was travelling at 71 km/h in a 60 km/h zone on a large arterial road at Mount Pritchard. However, it was not suggested by the Crown that the respondent was speeding at the time of the collision. Subjective features 15His Honour accepted the truthfulness of the respondent's evidence and did not detect any effort on the respondent's part to try to minimise the seriousness of the offence and his culpability. His Honour accepted that he thinks about the matter every day and is very concerned about what has happened to the victim as well as his family. He accepted, therefore, that he was fully and genuinely remorseful. The respondent comes from a supportive family in rural Victoria and seems to have lived and worked since the age of about 20 years. He has had employment as a stable hand and is likely to go back to that work to assist his parents in the operation and management of their horse stables. A number of references both from the respondent's family and others who knew him were tendered confirming what his Honour said about his own observations of the respondent in the witness box, "that he has been traumatised and scarred by this particular incident". The respondent has no prior convictions. The respondent had a history of binge drinking and Dr Jacmon, a clinical psychologist, whose report was tendered in the sentencing proceeding diagnosed chronic alcohol abuse. It may be accepted also that, at the time of the offence, the respondent had recently broken up with his girlfriend and was suffering depression. Special Circumstances 16The sentencing judge found special circumstances which justified a variation in the statutory ratio provided by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour said - "I do find special circumstances in this case, contrary to the reservations expressed by the Crown. Here is a situation where the age of the offender, his lack of antecedents, his family support, his employment history and the network of assistance available to him and the work possibly available to him (and I am sure his family will provide him work) is that he would benefit from a longer period of time on parole ... I do think that the offender has extremely good prospects of rehabilitation. I think this event will affect him, I think it will have a lasting effect on him, perhaps not as lasting and long term as the effect on the victim but certainly will have an effect on him and I do make a finding that special circumstances is warranted ... that is of itself a mark of some generosity to the offender, particularly by the reduction that I am proposing." Discussion 17The fundamental ground of appeal is that the sentence, including the non-parole period, was manifestly inadequate, in particular, in failing to reflect the objective seriousness of the offence. It was also submitted that the sentencing judge erred in his approach to finding special circumstances, which led him to impose a manifestly inadequate non-parole period. 18In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53, Spigelman CJ summarised common features of these cases as follows - "[204] A frequently recurring case of an offence under s52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value." The guidelines earlier promulgated in R v Jurisic (1998) 45 NSWLR 209, which required some adjustment, inter alia, in light of the critique in Wong v The Queen (2001) 76 ALJR; 185 ALR 233, were varied to the following effect (see [215]-[231]) - "Aggravating factors: (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. (v) Erratic or aggressive driving (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop. "The presence of factors pars (iii)-(ix) may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, which involves an element of judgment on which sentencing judges could reasonably differ, then it can be said to be present to a material degree for purposes of determining an appropriate sentence. "The period of three (in the case of death) or two years (in the case of grievous bodily harm), 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. "In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment." (Emphasis added.) 19It is not necessary, in my view, to burden this judgment with further references to other observations made in this Court as to the effect of Whyte and the nature of the offence. They do not take the matter further in point of legal analysis but merely, if I may say so with respect, apply the principles in the particular circumstances under consideration. The sentencing judge, after setting out the subjective material (mentioned above), stated - This is a difficult situation, a very difficult sentencing exercise because, unusually I have an offender whom I, first, regard as honest, secondly, from a hard working background and thirdly, from a good family, who is concerned about what he is doing. This is not somebody who has been arrogant in his disregard for people generally. Although fleshed out, this is not significantly more than is already taken into consideration in paragraphs (i), (ii) and (vi) of the typical case. 20In her written submissions, the Crown prosecutor in this Court referred to the view expressed in Application by the Attorney General No 3 of 2002 (The PCA Guideline Judgment) [2004] NSWCCA 303; 61 NSWLR 305; 147 A Crim R 546 - [101] ... It is a matter of common knowledge that at the level of intoxication represented by a reading of 0.15 the person must have consumed a quantity of alcohol that would not only manifestly influence his or her driving skills but have led the person to appreciate that fact or, at least the risk of it. [102] A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases. At the high range level of PCA it could rarely, if ever, be suggested that the person lacked this appreciation at some point of time before the decision was made to get behind the wheel of motor vehicle. These observations may be trite, but they must be kept in mind when consideration is given to the level of criminality involved in driving at the high range PCA and the appropriate punishment necessary to reflect it. 21The sentencing judge appears to have accepted that the respondent genuinely believed that he was "okay to drive". This was a generous finding. However, it was plainly a drunken assumption - indeed, one which most drunken drivers make - but it does not seem to me that his Honour went so far as to accept that the respondent was not aware that his ability to drive was compromised. On the face of it, this suggestion, however, was made at some points by the respondent in his evidence and appears to have been accepted by the sentencing judge. However, It should be borne in mind that the sentencing judge's remarks on sentence were ex tempore, with the key points at the end, as I understand his Honour, being the conclusions that the offence was a very serious one which involved, as cited above, the respondent's "comprehensive abandonment of his personal responsibility" and that "he must have been aware he had been... substantially affected by [his drinking]". The evidence to my mind permitted no other conclusion. 22It was also submitted by the Crown that the sentencing judge overlooked the seriousness of the injuries suffered by the victim. I do not accept this submission. His Honour set out these injuries in some detail and described them as "catastrophic". 23The real case made by the Crown is that, having regard to the respondent's criminal culpability of a high order and the permanent serious injuries suffered by the victim as a result, the sentence is so manifestly inadequate that it bespeaks error in evaluation of the relevant circumstances although no particular error can be demonstrated. 24The response made by Mr Lange of counsel on behalf of the respondent is that the sentencing judge made all the necessary findings as to seriousness, not put in issue by the Crown, including the consequences for the victim. Referring to the sentencing judge's finding that the respondent believed he was "okay to drive", Mr Lange submitted that "there was no conscious or irresponsible abandonment of responsibility". However, as is evident from the passages from his Honour's remarks on sentence, quoted above, his Honour rejected this submission and found to the contrary. With respect, this conclusion was inevitable. It is plain that, although the respondent may not have appreciated quite what was affecting him (which I find difficult to accept, but defer to the sentencing judge's view in this respect), he must have realised, had he considered the question of his fitness to drive in any genuine way, that he should not be driving. Mr Lange submitted that the sentence is not itself so low as to demonstrate error: it accords with Whyte and the JIRS statistics, which show that the sentence was in the upper third of sentences imposed, 33 out of 49 sentences being shorter than 3 years. In respect of the non-parole period, he emphasised what he calls "the comparative severity of the sentence imposed" is even more apparent since, of the 42 non-parole periods imposed, 33 were shorter than that imposed on the respondent. 25Taking the characteristics to which the Chief Justice referred in Whyte at [204]: the respondent, aged 27 years at the date of the offence, is not a young offender; he is of good character with no prior convictions; his driving caused a very serious permanent injury to the victim, a stranger; there was no injury to the respondent; his remorse was genuine; his plea entitled him to a 25% discount to the sentence which would otherwise have been appropriate. The relevant aggravating factors are: the injuries inflicted on the victim were catastrophic; the respondent drove for something like 50 km on "major and busy arterial roads" whilst in a heavily intoxicated state; the number of people put at risk should be accepted as substantial; he was heavily intoxicated; his driving was erratic in that he drove onto the wrong side of the road for a significant distance before colliding with the victim's motorcycle. A propos of the Crown prosecutor's submission in this Court that the objective seriousness approached the most serious category, it is relevant to note that other seriously aggravating factors mentioned by Spigelman CJ were not present: there was no competitive driving or showing off, there was no ignoring of warnings or escaping police pursuit, aggressive driving or failing to stop. Although the objective seriousness of the respondent's offence was by no means in the lower range, it also did not fall within or approach the most serious class of case. The guideline that a sentence of less than two years imprisonment would not generally be appropriate does not suggest any upper range; it proposes, in qualified terms, a minimum term. 26The sentencing judge made no reference to the objectives of sentencing or to how the sentence imposed achieved those objectives. However, as Simpson J pointed out in R v Millwood [2012] NSWCCA 2 at [64] (with whom Bathurst CJ and Adamson J agreed) this is not a necessity: "sentencing is a daily task undertaken in the District Court and the objectives are plainly well known to those who perform that function". Furthermore, his Honour referred to and said that he acted in accordance with Jurisic and Whyte, both of which refer to the significance of general and specific deterrence. 27To the extent that the sentence exceeds the guideline, it may be accepted that it conforms with Whyte, but that does not go far. Mr Lange candidly conceded that the statistics are of limited value without reference to the actual cases which they reflect. The only case to which he referred us was Millwood, in which the Crown appeal against sentence was dismissed. In that case the respondent was sentenced, in respect of one count of aggravated dangerous driving occasioning death to a term of 4 years imprisonment with a non-parole period of 3 years and in respect of one count of aggravated dangerous driving occasioning grievous bodily harm (arising out of the same accident) a sentence of 2 years with a non-parole period of 9 months, overall an aggregate term of imprisonment of 5 years with a non-parole period of 3 years and 9 months. A discount of between 15-20% was allowed. Certainly, the sentence in relation to the second count was distinctly lower than that imposed in the present case. However, the harm (though substantial) suffered by the victim was very much less than that suffered by the victim in the present case; the respondent was not nearly so intoxicated as in this case and his subjective features were very much more significant. Conclusion 28In my respectful view the sentence under appeal did not reflect adequately the objective seriousness of the respondent's offending, given the extent of his intoxication, the period and distance he drove before the collision, the fact that he must have appreciated he was unfit to drive had he given the question any genuine thought whatever his befuddled mind led him to believe about his being permitted to leave hospital, and the permanent and greatly debilitating injuries to the victim. Accepting that the respondent's subjective features are significant, it is nevertheless my respectful conclusion that the sentence was so manifestly inadequate as to demonstrate a misapplication of principle, though not patent, by the sentencing judge. In my view the appropriate starting point for this offence could not appropriately be less than 6 years imprisonment, yielding a head sentence of 4 years and 6 months when the utilitarian discount is applied. 29The non-parole period requires to be reconsidered at all events and it is not necessary to consider whether the sentencing judge erred in this respect. A critical issue is the respondent's alcohol abuse, and his high level of depression in part arising from the accident and the significant harm he caused to the victim (as distinct merely from the imprisonment he must undergo). As Dr Jacmon observed, depression is frequently associated with alcohol abuse and relapse prevention therefore is not only desirable in the respondent's case but also in the public interest. Accordingly, it seems to me that a lengthier period than otherwise would be available under the statutory formula of parole is desirable. This is particularly so in light of the increased non-parole period which must inevitably have the effect of lengthening the respondent's isolation from society and, in particular, his family support. The length of time spent in custody does not reduce, but rather increases the need for supervision in a case such as the present in the hope that rehabilitation which has hopefully been effected in the gaol environment can be reinforced in the challenges presented by the outside world. The proposed non-parole period of 2 years 9 months is approximately the same percentage of the head sentence as that allowed by the sentencing judge. 30It is, therefore, necessary to consider the residual discretion of the Court to decline to interfere with the sentence despite this conclusion. In Green v The Queen; Quinn v The Queen [2011] HCA 49 (where the offences concerned the cultivation of a substantial crop of cannabis plants), the principal question concerned the significance of different sentences that had been imposed on co-offenders of the appellants and whether parity principles required adjustment of their sentences. French CJ, Crennan and Kiefel JJ said (omitting most references) - "[35] In a Crown appeal against sentence in New South Wales, the Court of Criminal Appeal is invariably asked to exercise its powers under s 5D of the Criminal Appeal Act to impose upon a convicted person a heavier sentence than that imposed by the primary judge ... Assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D. They are: 1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from. 2. To what extent, if the appeal is allowed, the sentence appealed from should be varied. [36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons" ... That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion ... [42] Other circumstances [than disparity] may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 31The circumstances referred to in the last paragraph do not appear to be present in the present case. Nor do I think that the sentence I propose would cause injustice to the respondent. It is but moderately increased. The contrasting situation of the victim, who suffered serious permanent disabling injuries and is in constant pain, deserves consideration as well in the exercise of the Court's discretion. Orders 32I propose the following orders -