R v Mansour

COUNSEL : D Marr (Appellant) L M B Lamprati (Crown) SOLICITORS : Doran Roberts & Co (Appellant) C K Smith (Crown) CATCHWORDS : Criminal law - Sentencing - Dangerous driving occasioning death contrary to Crimes Act 1900 (NSW) s52A(1) - Sentence above permissible range ACTS CITED : Crimes Act 1900 (NSW) Sentencing Act 1989 (NSW) Bollen (1988) 99 A Crim R 510 CASES CITED: Henry (1999) NSWCCA 111 Jurisic (1998) 45 NSWLR 209 Previtera (1997) 94 A Crim R 76 DECISION : Appeal allowed; Sentence quashed; Substitution of sentence of two years imprisonment comprising a minimum term of 12 months and an additional term of 12 months.

60729/98 SPIGELMAN CJ STUDDERT J ADAMS J

1 SPIGELMAN CJ: This is an application for leave to appeal against the severity of the sentence imposed on the applicant by his Honour Judge Viney QC in the District Court in Sydney on 6 November 1998. The applicant pleaded guilty to a charge of dangerous driving occasioning death contrary to s52A(1) of the Crimes Act 1900. The maximum penalty for that offence is ten years. His Honour sentenced the applicant to a minimum term of two years and an additional term of two years. 2 The findings of fact by his Honour were not challenged in any way. It is not necessary to set them out in full in this judgment. Pages 1-5.3 of his Honour's remarks on sentence of 6 November 1998 should be taken as if incorporated herein. 3 The first ground of appeal was an allegation that the sentencing judge took into account irrelevant material. This is based on the following comments by his Honour during the course of his remarks on sentence. His Honour said: "I think it is fair to say that the result of this collision and the loss of that young lady's life has caused what can only be described as immeasurable grief to her family. The material in the form of Victim impact statements supports that situation". 4 This passage in his Honour's reasons occurs immediately after his summary of the facts and immediately before his reference to the case in Jurisic (1998) 45 NSWLR 209 and to the sentencing guidelines therein contained, to which I will further refer. It was submitted that his Honour's reference to "immeasurable grief" indicated that his Honour had taken into account an irrelevant consideration in arriving at the sentence. This submission should be rejected. 5 In Bollen (1998) 99 A Crim R 510, Hunt CJ at CL referred to his earlier decision in Previtera (1997) 94 ACrimR 76 to the effect that the Victim Impact Statement is not relevant to sentence. When applying the principle to the facts before him in the case of Bollen, however, his Honour said: "When referring to the Victim Impact Statements, the judge said that the consequence of the crime committed by the Appellant was that the community had lost one of its number and the Groves family had lost a loving member - one who was a husband, father, son and brother. I see nothing wrong with that statement. It does no more than recognise the value which the community places upon human life. However, the judge then said that he had 'borne in mind' the seven statements filed, the material which they contained about the deceased and the reaction of the respective authors of those statements to his death. He went on to describe the statements as useful because of the involvement which they permitted of the family 'in a criminal justice process' and also because 'they helped remind the sentencing judges that the loss of any individual has real effect upon others'. He referred to the counselling and medical attention they had received, and continued: 'Naturally, the seven statements were written at a time when the authors anticipated the verdict would be murder. They will, of course, understand that the prisoner must be dealt with consistently with the jury's verdict, and also that I must proceed dispassionately no matter how strongly they feel.' I am satisfied that, by bearing this material in mind and by having regard to the particular effects of the death of the deceased upon the members of his family, the judge had taken irrelevant material into account and thus fallen into error." 6 In the present case, there is no language in the judgment which would suggest that Viney DCJ had taken into account the contents of the victim statements in the manner referred to above. Rather, the reference to "immeasurable grief" is equivalent to the "recognition of impact", referred to by Hunt CJ at CL in the first three sentences of the above extract from Bollen. 7 It is entirely appropriate that trial judges acknowledge the impact of crime on victims and their families in this public way. The purposes of the criminal justice system are well served by such public recognition of the grief imposed on families of victims. Unlike Bollen, there is nothing in the judgment to suggest that his Honour gave this consideration weight in determining the sentence eventually imposed. To infer that he did so would be to draw an inference from what is submitted to be a manifestly excessive sentence, but if it is a manifestly excessive sentence then it falls for that reason, rather than by reason of some inference about his Honour's reasoning process that can be derived from its manifestly excessive character. 8 The second ground of appeal was that the sentence was manifestly excessive, as I have just mentioned. This was in part based on the application of what was submitted to be the reasoning of this Court in Jurisic. Specifically, attention was directed to what was submitted to be the powerful subjective features of this case. Indeed, it was submitted that the circumstances of the case were sufficiently exceptional to justify a non-custodial sentence, or at least a sentence of either home detention or periodic detention. 9 His Honour Judge Viney referred to the then recent decision of this Court in Jurisic and said it contained a list of aggravating factors that the Court must take into account. His Honour said: "As I understand it, these aggravating features are those which would raise the level of the conduct above what is sometimes called merely momentary inattention constituting dangerous driving. In this case I am satisfied that the aggravating features are that the prisoner driving at least 100kms per hour over a distance of 1-1 and a half kms prior to the collision on a wet road; overtaking one lorry at high speed and cutting in just in front of an approaching vehicle; continuing to drive fast through the winding section of the road despite a warning sign recommending a maximum speed of 65kms per hour; and at least two drivers flashing their lights at her during the overtaking mentioned. In addition such driving clearly put at risk other road users who might be expected to be on the road at that time." 10 The time was at about 5 o'clock in the afternoon on a week day. His Honour had, just before this passage, recited in the statement of facts the critical event, which was that the applicant's vehicle had crossed to the incorrect side of the roadway colliding with the other vehicle. The victim had applied the brakes to the point of locking the wheels of her vehicle before the fatal impact. 11 Guideline judgments of this Court are not precedents binding on lower courts. (See Jurisic supra pp220-221; Henry (1999) NSWCCA 111 at paras 29-31). The failure to sentence in accordance with the guideline is not itself a ground of appeal. It does not constitute a legal error which of itself would justify interference with the exercise of discretion such as the sentencing task. (See Henry supra at paras 22-30). 12 The submissions of the applicant relied on the statement in Henry at par 31 that: "Where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction." 13 It is submitted that Viney DCJ did not apply the guideline and failed to give reasons for failing to do so. In my opinion, this submission should be rejected. 14 In his reasons for decision, immediately after setting out the aggravating factors as quoted above, Viney DCJ went on to say: "I am not prepared to go so far as to find that those aggravating features manifest that Mrs Mansour had abandoned responsibility for her own conduct as was set out or indicated in Jurisic , but it shows a degree of recklessness certainly above any concept of momentary inattention." 15 The guidelines promulgated in Jurisic were as follows: "1. A non-custodial sentence for an offence against s52A 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." 16 The reference to "present to a material degree" was explained in terms of "the offender has abandoned responsibility for his or her own conduct". (231D and F). This formulation in Jurisic must not be treated as if they were words contained in a statute which fall to be construed by sentencing judges. They are guidelines meant to be indicators only. 17 His Honour indicated, with considerable force, the reasons why the conduct of the applicant on the fatal occasion could not satisfy a description of "momentary inattention or misjudgment", a test which had been referred to in a long line of cases prior to Jurisic. On that basis, it was well within the exercise of his Honour's discretion to conclude that a non-custodial sentence was entirely inappropriate in the circumstances of this case. 18 If, as will presently appear, it falls to this court to re-exercise the sentence discretion, I would agree for the same reasons as mentioned by his Honour that a non-custodial sentence was not appropriate The course of irresponsible driving in this case was plainly, as his Honour said, well beyond any concept of momentary inattention. 19 The substantive submission put before the Court was that the second guideline in Jurisic, as quoted above, suggests that where conduct of the offender could not be described as "abandoning responsibility for her conduct" then a custodial sentence of more than three years should be regarded as excessive. The submission was made that his Honour's actual finding of fact indicated that the circumstances of the offence in the present case never reached the level at which a three year sentence was said to be appropriate and, accordingly, a sentence of four years was excessive. These submissions misconstrue the nature and purpose of the guideline as set out in Jurisic. That guideline, in terms, states that where conduct can be described in terms of the "abandonment of responsibility" then a sentence of less than three years "should be exceptional". That does not state, nor does it suggest, that unless conduct reaches the level of "abandoning responsibility" then a sentence of less than three years is required. 20 This is particularly the case as the second guideline relates only to circumstances in which "wherever there is present to a material degree an aggravating factor involving the conduct of the offender". In Jurisic at p231, nine aggravating factors are listed and it is said at 231D that only paras (iii)-(ix) were factors referring "to the conduct of the offender". Two of the aggravating factors, in what was not stated to be in any way a comprehensive list, were expressly identified as objective factors not involving the conduct of the offender and, accordingly, not relevant to the threshold requirement in the second guideline. These two factors were: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. 21 These are matters going beyond the list of aggravating factors which are to be taken into account for the purposes of the threshold. In the present case, the element of number of people put at risk is of significance. The irresponsible driving occurred at a peak time for traffic and there was evidence of the applicant weaving in and out of traffic. His Honour expressly found again that: "Such driving clearly put at risk other road users who might be expected to be on that road at that time". 22 Not only was there nothing in the guideline to suggest that a trial judge was in any way constrained to impose a sentence of less than three years, unless there was an express finding of abandonment of responsibility, in its terms other material factors to which express reference is made in Jurisic had to be taken into account, going beyond the matters to which the guideline expressly referred. 23 I turn now to the submission that the sentence is manifestly excessive. A list of subjective features of the case were put before the Court to support the submission that they had not been given proper weight. These were summarised as follows: 1. Plea of guilty.

3. No traffic infringement over a period of 23 years of driving.

4. No previous criminal convictions. 5. Blameless life and significant positive contribution to family, extended family and to the community lending assistance in church and children's schools and in charitable work. 6. Serious injuries to the applicant herself in the accident and her medical condition and psychological suffering as a result of her involvement in the offence. 7. A wife and mother of three children, including two young school age children. 24 This is a powerful subjective case. All of these matters are, however, referred to by his Honour. His Honour did note, I should say, that the value of the plea of guilty was diminished to some extent by the fact that immediately after the accident, the applicant made a statement placing responsibility for the collision upon the victim. Indeed she asserted, contrary to the fact, that the victim had been travelling on the wrong side of the road. Although this was subsequently withdrawn and the plea of guilty filed, nevertheless this was a factor which his Honour indicated, limited the value of the plea of guilty to some degree. The matters urged upon the Court in this regard were also expressly taken into account in his Honour's findings of special circumstances, with respect to which there is no challenge. 25 In substance, the submission is reduced to a submission to the effect that in all the circumstances the sentence of four years is excessive. The occasions on which the Court will intervene with the exercise of a discretion on that basis are extremely limited. We would have to find that this sentence was above the permissible range. In my view, taking into account the very strong subjective features of this case it is. I don't wish to give emphasis only to the following matters, but of some significance are the fact that over a period of 23 years there has been no traffic infringement of any character and her positive contribution to her family and the broader community, together with what appears to be genuine contrition, remorse and shock and the effect of the event on the applicant, these are matters entitled to considerable weight. Although his Honour referred to each of these matters, it appears to me that looking at the judgment as a whole he failed to give them appropriate weight in the particular circumstances of this case. 26 The driving was irresponsible. It was much more irresponsible than anything that would justify a non-custodial sentence and, most significantly of all, of course, it led to the death of an innocent person. That event establishes that the punishment in these circumstances should be condign. 27 The maximum sentence which Parliament prescribed for this particular offence is ten years. In my opinion, his Honour was quite correct to find that nothing in the nature of momentary inattention occurred in this case. There has to be a custodial sentence of some length. For the reasons which his Honour gave, I make a finding of special circumstances in this case. 28 As in all of these sorts of matters, the task of balancing the full range of relevant objective circumstances and the significant subjective circumstances that were urged below and in this Court on behalf of the applicant, calls for an exercise of judgment on which reasonable minds may differ. However, once this Court has decided that it should intervene on the basis that the sentence below was manifestly excessive in all of the circumstances of the case, then the discretion of this Court falls to be exercised afresh. 29 In my view, taking into account all of the various factors set out in the statement of facts by his Honour that I have incorporated in this judgment and the findings of fact that his Honour made and specifically his finding that it could not be said that Mrs Mansour had abandoned responsibility for her own conduct, notwithstanding the degree of irresponsibility involved in the driving on this occasion, I have come to the conclusion that the appropriate sentence is a sentence of 12 months imprisonment as a minimum term and an additional term of 12 months. 30 In my view, the appeal should be allowed, the sentence quashed. I would substitute a sentence of two years imprisonment comprising a minimum term of 12 months commencing on 6 November 1998 and expiring on 5 November 1999 and an additional term of 12 months commencing on 6 November 1999 and expiring on 5 November 2000. Pursuant to section 24 of the Sentencing Act 1989 (NSW), the Court should direct the release of the appellant on parole at the end of the minimum term. I would make the order, as his Honour did, that the period of disqualification of two years would stand. I would not interfere with that order. 31 STUDDERT J: I agree with the Chief Justice. 32 ADAMS: I also agree. 33 SPIGELMAN: The orders are as I have indicated. **********

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