Solicitors:
Director of Public Prosecutions
Barron Law - Offender
File Number(s): 2015/145211
[2]
Sentence
HIS HONOUR: The prisoner, Adam Mark Perrim, appears today for sentence in relation to two offences to which he pleaded guilty at the Local Court and was committed for sentence to the Wagga sittings of the District Court of New South Wales.
The matter commenced before me in February. However, at a particular point when counsel for the prisoner was about to embark on submissions and the family of the deceased were in court, although I might not have been able to sentence that very day, I raised the issue of there being a need for further evidence in the nature of some form of report from Community Corrections. I have no psychological report in relation to the prisoner and there had not been ordered a presentence report. Probably because the matter had been committed for sentence from the Local Court on 6 January 2016 and came before me in mid February. So, in good faith, I adjourned the matter to enable a presentence report to be prepared. That presentence report now tendered could be said to reflect something of the attitude of the prisoner which is reflected in the Crown's submissions. I am really no better placed now than perhaps I was in February. But unfortunately, or fortunately, I was not able to see into the future.
The crimes that the prisoner pleaded guilty to were as follows: firstly, that he at Wallendbeen in the State of New South Wales, did drive a motor vehicle, to writ, motor vehicle Holden Commodore registered number BZ56KA, when it was involved in an impact occasioning the death of Ricki Lee Atkinson, and at the time of impact, the said Adam Perrim was driving the vehicle in a manner dangerous to other persons in circumstances of aggravation, to writ, the said Adam Perrim was driving the vehicle to escape pursuit by a police officer. This is an offence, as I understand it, contrary to s 52A(2) Crimes Act 1900, but requires consideration of circumstances of aggravation, pleaded in the charge, pursuant to s 52A(7), of the Act. The Crown informs me that the maximum penalty for this offence is 14 years' imprisonment.
The prisoner also pleaded guilty to a crime committed at the same time, involving another person called Danielle O'Brien, in that on the same date at Wallendbeen, that is 14 May 2015, the prisoner then being in charge of the Holden Commodore that I described, by furious driving, caused bodily harm to Danielle O'Brien. This is a crime contrary to s 53 Crimes Act 1900. I am informed it has got a maximum penalty of two years' imprisonment. There is no standard non parole period in relation to either offence. There are no matters on a Form 1 and I was informed by the Crown that relevant related and/or back up offences were to be withdrawn and dismissed.
As I earlier indicated, the prisoner was committed for sentence on 6 January 2016 to the District Court and the matter proceeded before the District Court with what could be best described as admirable speed, although it did not proceed as quickly as perhaps others may have wished at the time. The prisoner by reason of the pleas of guilty being entered at the Local Court and being committed for sentence, is entitled to a discount for the utilitarian benefit of the plea of guilty in each case. In my view, the relevant discount should be a discount of 25% upon the otherwise appropriate sentence, in accordance with the guideline judgment of Thomson and Houlton, in relation to such matters, of the Court of Criminal Appeal. The Crown concedes that the pleas of guilty were entered at the first reasonable opportunity.
The facts of the matter are set out in a statement of facts which I understand to be an agreed statement of facts. I point out, if I might depart from the format of the statement of facts, the matter that appears at the very end of the statement of facts that I was provided. At the time of the driving, the prisoner did not hold, nor had he ever held, a New South Wales driver's licence. At about 6.55pm, on 14 May, he was driving a Holden Commodore Station Wagon in a northerly direction on the Olympic Highway at Cootamundra within the township, as I would understand it. Seated in the front passenger seat of the car was Danielle O'Brien and seated in the rear driver's side seat was Ricki Lee Atkinson. I have not been provided with any information, which I think is a deficiency in the facts, as to the circumstances in which the prisoner and the two young women happened to be with the prisoner. Not that I am suggesting there was anything sinister about it. But it seems to me, with respect, that the Court might have been assisted with some better context in this regard.
Another motor vehicle, a New South Wales police Mitsubishi Pajero with 'Jugiong' signage, was travelling in a southerly direction on the Olympic Way. On approaching or passing the vehicle driven by the prisoner, checks were made on the registration of the car which can be done now very quickly and electronically. The registration of the car the prisoner was driving was cancelled. The police in the Mitsubishi Pajero drove up behind the prisoner's vehicle and activated their warning lights. The prisoner swerved slightly to the left before accelerating away from the police vehicle. The police then placed "all warning devices", that is lights and sirens, on active service and police radio was notified of a, "pursuit". The prisoner was then driving within a short period of time at a speed in excess of 150 kilometres per hour and moved his vehicle onto the oncoming traffic side of the road and overtook a vehicle towing a horse float. Due to the speed at which the prisoner was driving police radio directed the Jugiong motor vehicle to terminate the pursuit and it deactivated its warning devices and stopped. The total duration of that pursuit was approximately two minutes.
The prisoner, however, continued to drive at high speeds in a northerly direction on the Olympic Highway, quickly approaching the township of Wallendbeen and during this period of time the prisoner was driving his vehicle onto the oncoming traffic side of the road. The prisoner later told police that as he approached the intersection of Old Gundagai Road, he was travelling at approximately 200 kilometres per hour and that both females within the vehicle were yelling at him to stop. The prisoner told police, he said words to the effect, "Shut the fuck up, I am not going back to gaol for no cunt". While travelling at high speed and on the incorrect side of the road the prisoner turned his head to look behind him. As he did so, he lost control of the vehicle and it moved to the western dirt shoulder of the road for approximately 100 metres before returning to the bitumen road.
The vehicle began to rotate in a clockwise direction across both north and south bound lanes. As it moved across the southbound lane onto the oncoming traffic side of the road the prisoner's vehicle narrowly avoided colliding with another vehicle. A collision was avoided by the other motorist taking evasive action. The prisoner's vehicle then travelled onto the eastern dirt shoulder of the road. I would take this to be I hasten to say in the context of travelling north on the wrong side of the road. The vehicle driven by the prisoner became airborne for a short distance before the rear nearside of the vehicle collided heavily with an embankment, the vehicle rotated and came to a rest on the eastern shoulder facing in an easterly direction. The deceased suffered fatal injuries and I do not propose to put onto the record the detail of those injuries because it will distress her family.
She was pronounced deceased at the collision scene. After the collision Danielle O'Brien who was not seriously injured said words to the effect, "You should have stopped when we told you to stop and none of this would have happened". Consistent with the admission the prisoner made to police, which I have earlier identified, he said, "Yeah I would have been arrested I'm going to go to gaol anyway I've got a warrant".
These statements made by the prisoner, with the greatest of respect to him, reflect the sheer stupidity of this conduct. That he should have put himself and his passengers and other people on public roads in this situation of peril, ultimately causing the death of an entirely innocent person, simply because he was afraid that he would "go to gaol" because of some outstanding warrant. As it turns out, of course, he will now go to gaol for an extended period of time way beyond any expectation in relation to the matter that caused him to drive the way he did.
The victim Daniel O'Brien was taken to Wagga Wagga Base Hospital. She suffered a laceration to her left elbow, bruising to upper left arm and a left occipital haematoma. In other words as I would understand it "black eye" or something similar. My understanding is that she would recover from her injuries.
The prisoner was spoken to at the scene and as I have earlier indicated made admissions as to travelling at approximately 200 kilometres immediately prior to the collision in an attempt to evade police. He also made admissions to taking illicit drugs shortly before driving. These were recorded by police in an in car video. He did not suffer any injuries as a result of the collision. Breath testing by the police returned a negative reading. The prisoner was, as I said earlier, unlicensed and was thus at the time of the offence driving as an unlicensed driver. The prisoner was taken to Cootamundra Hospital and a blood sample was taken. That blood sample revealed that within his blood was 0.002 milligrams/L of delta-9-tetrahydrocannabinol (an active constituent of cannabis), 0.052 milligrams/L of delta-9-THC acid, 0.02 milligrams/L of diazepam and less than 0.01 milligrams/L of nordizepam.
Part of the material tendered to the Court was a report from Dr Judith Perl who is, as I understand it, employed by the New South Wales Police Department. She indicated that two of the constituent drugs that were found were active or inactive constituents of cannabis. She gave opinions about peak levels, elimination rates and the like. She expressed the opinion that the relevant presence of delta-9-tetrahydrocannabinol detected in the prisoner's blood is "conservative" and the level at the time of driving would have been in her view higher. She gives opinions about the extent the period of time over which impairment may occur and the way in which it affects memory, motor coordination, cognition and sense of time lasting over a number of hours. She refers to the role of cannabis as a "central nervous system depressant". Diazepam belongs to a class of drugs known as benzodiazepines and is commonly used in the treatment of anxiety and is usually found under the brand names Valium, Antenex, etc. Nordiazepam is primary metabolite of diazepam, Oxazepam and temazepam may occur as minor metabolites.
The concentrations of diazepam and its metabolite nordiazepam detected in the prisoner, in other words those two coming from the same source, confirmed that he had used diazepam. But the levels selected suggests that he used diazepam most likely in excess of 12 hours prior to the collision and she would not expect any impairment due to that particular drug. It would appear that the substantial contributing "impairment", to the extent that the prisoner was impaired. It is impossible to conclude at this point to what extent would have been from the effects of cannabis.
The other material available to the police reflects upon the truth of the admissions made by the prisoner travelling at speeds "significantly in excess of the speed limit". The weather conditions at the time were fine and dry. The roadway and the crash site were in good condition. There were no contaminates on the road surface that would have contributed to the collision. I am not provided with any material by way of evidence or other information as to how the prisoner came to be driving this particular motor vehicle.
A number of victim impact statements were provided to the Court from the victim's mother, the victim's step-father and two sisters. Some of those statements were read to the Court and the disastrous effect upon the family and the profound sense of hurt and loss occasioned by these senseless actions of the prisoner are shown clearly in those victim impact statements. The victim was a much loved member of a family and the prisoner's conduct has deprived her family members of her presence and her love and her support and also deprived the community of the contribution that she may have made to the community.
I just pause for one moment there Mr Crown. The evidence in the statement of facts does not precisely state the age of the victim.
KERK: I'm sorry your Honour yes. I'll obtain that information.
HIS HONOUR: Well could you tell me now?
SPEAKER: 20 years old your Honour.
HIS HONOUR: No I'd like the Crown to tell me what evidence is available. I understood from what it was said at Wagga the primary victim the deceased was in her late teens. But the precise age is not--
KERK: Two weeks before her 21st birthday.
HIS HONOUR: So she was 20 years of age and Danielle was of similar age?
KERK: I apologise. A similar age, they went to school together.
HIS HONOUR: That's what I understood but it wasn't precisely spelled out. I knew that they were adults but only marginally adults.
The prisoner's mother gave evidence at the proceedings in Wagga. The prisoner did not give evidence in Wagga and has not given evidence in Sydney. The mother apparently was, on the expression of Mr Barron, a person not expecting to give evidence at the proceedings. But as I pointed out at the Court proceedings in Wagga, I was denied what I would have thought was basic information about the circumstances of the prisoner as I have been denied basic information about the circumstances of the offending.
The prisoner is one of three children and from the mother's evidence he has had a difficult upbringing in many respects. His mother was forced to leave the family home and he was left for a period of time with the father being reclaimed by the mother at a later time. The prisoner was diagnosed as a child with, on the account of the mother, ADHD and received medication up until the age of 14 or 15. He has obviously displayed, by reference to his criminal history, a great deal of what could be described shortly as "conduct disorder" in his behaviour. I will come back to this criminal history shortly. What damage has been done to him however by his upbringing by the use of medication as a child, by his family circumstances and the like, it is difficult to identify.
His mother said that the prisoner had expressed to her his remorse for what had occurred, although there has been no public expression of remorse, directly at least to the Court, by the prisoner. His mother would continue to support him and there are connections with the Wagga community. He has two siblings now aged two and three. His mother candidly confessed that for a long period of time, from the time when the prisoner was very young up until about eight years ago, she herself had difficulties with prohibited or illegal drugs, no doubt impacting upon her capacity to care for the prisoner.
The prisoner started offending at a very early age. He was born on 25 June 1995 and thus has just turned 21. As I would calculate the matter he was 19 years of age at the time of the offending with which I am concerned. He first appeared in the Children's Court in December 2009 and received a minor admonition from the Court for damaged property. Thereinafter, however, as is clearly set out, much more clearly than the usual criminal histories we see, in the Crown's exhibit is a course of offending is shown over a period of time. Particularly from 2011 onwards with findings of guilty in relation to offences of intimidation, contravening Apprehended Domestic or Personal Violence Orders, common assault, destruction of property, assault occasioning actual bodily harm, contravening an Apprehended Domestic Violence Order, assaulting police officer in the course of duty, et cetera, up until 2013. He was dealt with in various ways in the Children's Court with various bonds and probations. He was ordered to serve a Control Order in August 2012 for a relatively short period of time. In respect of matters for which he had previously been given bonds in February of 2013 he was sentenced to control orders for a period of 74 weeks.
As I understand it from the Crown's history, on 10 March 2013 he was found guilty in the Children's Court of being armed with intent to commit an indictable offence, contravening an Apprehended Domestic Violence Order and attempted stalk or intimated. He had imposed upon him a Control Order for an aggregate of 17 months with non-parole period of seven months. He thus, prior to committing these offences, spent substantial periods of time under the supervision in detention of the New South Wales Juvenile Justice Department. In respect of offences of common assault for which he was sentenced on 13 February 2015, he was placed on two good behaviour bonds pursuant to s 9 Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as the Act.
Those bonds were in place for those two offences of common assault at the time that he committed the offences with which I am concerned. Thus the offending involves breaches of conditional liberty an aggravating factor pursuant to s 21A(2) of the Act. In respect of those bonds as I understand it he was called up for sentence on 25 January 2016 and sentenced to three months imprisonment commencing on 3 August 2016 and concluding on 2 November 2016. He was further, on 25 January 2016, sentenced to 11 months imprisonment commencing on 3 September 2015 and concluding on 2 August, with a non-parole period of five months.
In relation to those sentences and particularly the fixing of a sentence with a non-parole period I will need to adjust the commencement date of the sentences I impose to make allowance for that custody unrelated to the custody with which I am concerned. I may have indicated in my preliminary remarks that I would commence the sentences from the date the prisoner came into custody. But in light of the non-parole period fixed by the learned Magistrate one would need to commence the sentences I impose from a point five months after the time that the prisoner came into custody in relation to these matters to reflect the reality of the prisoner having a non-parole period of five months for offences unrelated to those with which I am concerned at the present time.
I ordered a pre-sentence report in relation to the prisoner and that report was prepared in April before the matter had to be adjourned because of the unavailability of Mr Barron. It paints a very disturbing picture about the prisoner and reflects matters that are the subject of particular comment by the Crown relevant to the assessment, particularly, of his prospects of rehabilitation. The Community Corrections report notes his previous periods of supervision. It notes his present housing in the Metropolitan Remand and Reception prison since completing at least the non-parole period of the prison sentence imposed earlier this year. But he has it is said, and the custody record reveals this to be so, a large number of internal misconduct charges for a range of offences, including possession of an offensive weapon, refusing to take or failing a drug test, fighting or other physical combat, damaging property on a number of occasions. The Community Corrections report indicate that during his period of incarceration he has been found in possession of a weapon, threatened to stab another inmate, has been involved in an assault on an inmate when the victim was tied up and has threatened the personal safety of staff. He has also set fire to his cell and made further threats to burn his cell and to flood his cell. I note these matters have been dealt with by internal charging. I am not aware as yet of any convictions in Courts for substantive offences in relation to these various matters.
So far as the assessment of him was concerned, however, when the Community Corrections Officer attended upon him in April 2016 for the purposes of completing the pre-sentence report, he made it clear that he did not wish to be interviewed and he did not wish to cooperate with the preparation of the report. Thus, apart from matters relating to his conduct in custody, there is very little material of assistance. In fact none from that report.
The submissions of the parties are set out in the written submissions of the Crown and the written submissions of the defence in reply. The best way in my view to deal with the submissions that have been made by the parties is to reflect upon the principles that I believe are to be applied in this particular case and to make particular comment upon specific matters raised by the parties at the point where one could say that particular submissions require particular attention.
I am grateful to the detail of the Crown submissions. It is said by counsel for the prisoner in his written submissions that much of what the Crown has provided by way of submission is not the subject of dispute. Many of the matters referred to by the learned Crown, not all of them or course but many of them, reflect both the legislative provisions to which I have made reference and case law which is well known.
A starting point obviously in every sentencing exercise is a consideration of what is the maximum penalty for the particular offence with which a person is charged and in this case in respect of the dangerous driving causing death offences I have pointed out the maximum penalty is 14 years imprisonment. I note what the learned Crown has put quite properly about the character of the maximum penalty for the other offence carrying a much lesser maximum penalty and the character of that maximum penalty as a "jurisdictional limit".
One of the issues in relation to consideration of the appropriate sentence for the lesser offence is that of course much of the conduct described in that charge is reflected in the characteristics of the particulars in respect of the charge brought pursuant to s 52A(2). I have indicated that I propose to partially accumulate the sentence I impose for the s 52(2) offence upon the other sentence. The reason for that is to reflect the "totality of the criminality" involved here. As the Crown correctly pointed out in its submissions, and I do not need to cite authority, the fact that in the one course of driving harm is caused to two separate people, for example even passengers as was the case here in the car driven by the prisoner, does not necessarily mean that the terms of imprisonment to be imposed will be concurrent with one another.
The Court's sentencing must reflect the harm done to individuals in the proper context in its totality and of course taking into account the harm done to the surviving passenger involves a consideration of a greater degree of physical harm than done solely to the deceased. In this regard I note what was said by the High Court of Australian the decision of Pearce v R [1998] 194 CLR 610 particularly at [45] and of course the observations of the High Court of Australia in the earlier decision of Mill v R (1988) 166 CLR 59 (at 63-64).
With regard to the issue of fixing an appropriate sentence for the most serious offence, one matter to consider is the operation of the guideline judgment in R v Whyte [2002] 55 NSWLR 252. I pause for a moment to point out that Whyte is a guideline judgment in respect of an offence relating to the causing of death or the causing of grievous bodily harm, other than an offence with pleaded circumstances of aggravation warranting, of course, a greater penalty than might otherwise be the case. In the guideline judgment the Court identified what was described as a "typical" case as a young offender with good character with no or limited prior convictions, with death or permanent injury to a single person, where the victim is a stranger, with no or limited injury to the driver or the driver's intimates, with genuine remorse and plea of guilty of limited utilitarian value.
I pause for a moment to point out several things, in the context of understanding of course that is a typical case involving an offence of the less aggravated form than the one with which I am concerned. This prisoner is a young offender but he was not a person of good character nor did he have limited prior convictions. Having made that observation one of the baffling or interesting aspects of this matter, given his lengthy Juvenile Justice history particularly, is that apparently he has no other findings of guilt in relation to the conduct of motor vehicles other than the ones with which I am now concerned. This is not a case that one often sees of a young person with a lengthy criminal history, even at the age of 19 years of age, that not only extends to matters of dishonesty and violence and the like but extends to the misconduct in relation to the conduct of motor vehicles. Of course I bear in mind obviously that the prisoner had no license and had absolutely no right whatsoever either to be driving any motor vehicle or to be driving this particular motor vehicle which registration was cancelled.
With regard to the guideline that was promulgated, one would have thought without having to analyse it of course, it has little salience in this particular proceeding. There the Court of Criminal Appeal in Whyte, following upon the decision of Jurisic [1998] 45 NSWLR 209, particularly at [229]-[230], noted that for what was described as "a typical case":
"A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability as in the case of momentary inattention or misjudgement", at [214].
Of course, in the context of s 5 of the Act, nothing other than terms of imprisonment can be imposed in relation to this matter. Firstly, there is the presence of the pleaded aggravated factor, which warrants the greater maximum penalty of, as it was stated in the charge; "driving the vehicle to escape pursuit by a police officer".
By reference to the guideline, there are many identified "aggravating factors" in the context of the assessment of the facts of the matter without regard as I would understand it to the terms of s 21A(2). One matter includes the number of people put at risk. There are obviously other people put at risk apart from the occupants of the motor vehicle by reason of the conduct of the prisoner's car, as revealed in the facts. But only to that extent. It is not for me to speculate about what other road users were on the road at any given time.
I note that the facts I was given did not tell me the distance over which this travel occurred. The Crown's helpful written submissions identified it as 14 kilometres. I assume that is by some reference to some information that states that Wallendbeen is 14 kilometres from Cootamundra. I am prepared to accept that distance from my general knowledge of the Olympic Way.
Other matters that I bear in mind, in this particular regard, by reference to matters such as the degree of speed, the erratic driving, the ignoring of warnings as "aggravating factors" identified, in the context of the guideline judgment, is that the facts are completely silent as to whether the accused drove at 150 or 200 kilometres per hour for the full 14 kilometres or at particular points in the journey. Clearly he was driving at a high speed for periods of time. The observations of "witnesses" make that clear. But the location of those witnesses, the period of time over which they had the prisoner's car under observation and the like are not known to the Court. Certainly, the distance of the driving on a country road, although a busy important highway, the Olympic Way, was 14 kilometres. Those matters that I have identified quoting from the "aggravating factors" in the guideline judgment are the matters that appear to arise from the facts available to me, not taking into account that aggravation which is specifically pleaded by the Crown.
The Court in the guideline judgment in an endeavour to bring some consistency to the sentencing, particularly, of young offenders usually without prior convictions, noted that the particular aggravating factors that I have identified additional to that pleaded were matters that went to the "moral culpability of an offender".
Now bearing in mind the guideline is not strictly applicable to this matter, I also bear in mind for such purposes the "guideline" can serve in this particular sentencing exercise, given the fact I am dealing with the more serious offence with a greater maximum penalty, is that of a "check" or an "indicator", not a "tramline".
In the course of assessing the relevance of the guideline in a particular sentencing exercise of course the Court is required to undertake an assessment of the moral culpability and the extent of "abandonment of responsibility" in order to bring relevance of the guideline fixed by the Court of Criminal Appeal in Whyte to the particular sentencing exercise. That issue does not arise in this particular case for the reason I am dealing with a more serious version of that type of offending.
It must be said however, that in various respects the moral culpability of the prisoner is high. It is high because amongst other things, as pleaded in the charge, he was endeavouring to avoid police stopping his motor vehicle. His moral culpability is high because he was an inexperienced driver. His moral culpability is high because the facts made clear on his own admission, as do the statements of the surviving witness within the car, that he deliberately drove the way he did to avoid what could only be described in context a minor consequence compared to the consequences that have now fallen upon the family of the deceased. Of course the length of journey and the risk to others is a relevant matter to take into account in assessing the objective seriousness of the offence.
The accused pleaded guilty to driving in a manner dangerous. The features of the driving in a manner dangerous were, the very high speed, in fact extreme speed, at which he drove, the erratic driving, the failure to control the car or give proper attention to the management of the car. He turned away from his concentration on the road, a contributing factor to the loss of control that caused the car eventually to have an impact that caused it to stop and, thus, cause the death of the deceased. As well, the presence of the active constituents of cannabis in his bloodstream impairing his capacity to drive a motor vehicle, at least to the point where it was a relevant matter in the sentencing exercise.
It is in these circumstances that I come to consider one of the matters identified by the Crown quite properly and addressed by the defence in its submissions. The Crown identified this case as a worst case of cases contemplated by s 52A(2) of the Act. In that regard it identified a large number of matters that it says were relevant. Its reference to the car being unregistered or uninsured I do not take to be, on the basis of what I understand the authorities to state on this matter, a relevant matter to the assessment of the objective seriousness of the offence. The fact the prisoner controlled the motor vehicle in circumstances where by definition he was not an experienced driver is, of course, a relevant matter, although it is expressed in somewhat different terms by the Crown. The causing of the death of course is a particular element of the offending giving rise to the greater maximum penalty. I have already identified characteristics of the driving.
The Crown identified, in the context of assessing the objective seriousness of the offence, the fact that the prisoner was subject to conditional liberty. My understanding of the authorities is that this matter is not a relevant matter to assessing the objective seriousness of the matter in order to determine where it fits within the range of offending contemplated by the section.
There is authority, for example in the decision of Black cited by the Crown for as I would understand it comparative sentencing purposes, that whether or not offences fall within the worst class of offences is not determined precisely on whether all of the matters referred to in s 52A(7) at present. But is to be determined on all the consideration of all objective and subjective features.
Of course being subject to conditional liberty is an aggravating factor, but it is an aggravating factor in this particular case in circumstances where the offending for which he was on the good behaviour bonds was unrelated to the control of motor vehicles.
The matters that are relevant in assessing whether the case is could be described as "a worse case" will include of course a consideration of the criminal history of a particular prisoner, but also a consideration of the relevant "driving history" of the prisoner. Sometimes identifying a "worst" case is said to be an issue describing a case involving what could be called the most serious facts contemplated by the relevant provision, the most serious type of offending in other words, committed by the "worst offender". In other words an offender whose subjective circumstances do not entitle him or her to any particular leniency.
I point out in relation to this aspect, the matter of R v Veen (No 2) (1988) 165 CLR 465, a case which I had the honour of appearing as junior to Mr Hidden, in response to a submission that Mr Hidden had made on behalf of Mr Veen of examples of "worst cases", the majority of the High Court stated that one could always conjure up a worse case than the case for consideration by a particular court. Reflecting upon a worst case may involve a range of offending where there may be degrees of difference, but which all fit within the rubric of the "worst" case.
I have taken into account all that has been put by the Crown in relation to this matter and I take into account what has been put by the counsel for the prisoner. He identifies as relevant matters to take into account the comparative youth of the offender, his limited record as an adult, the fact of the death of a single person by his conduct, the absence of driving history of misconduct of motor vehicles in the past, as relevant matters to take into account. This I do. Ultimately I have concluded for the purposes of determining the objective seriousness of the offending that the offending is very serious offending. But to be seen in proper factual context, by regard to the other relevant matters that I am required to take into account, just below what could be described as the worst case of its type.
I point out in relation to the matter in that description the fact, as I have already pointed out, that the prisoner's driving was under direct observation of the police for a very limited period of time. As I would understand it two minutes. The facts themselves speak of gaps in observation of the conduct of the prisoner's car by him.
There is another feature of the matter although it is not relevant to the assessment of the objective seriousness of the offending. That is in the proof of the facts against the prisoner there is some reliance upon the admissions that the prisoner made at the scene. Although the prisoner has not been co-operative with the authorities in a total sense, he has made a number of damaging admissions against interest as I would understand it at the scene when the subject of video recording by the Highway Patrol which form part of the facts upon which he is to be sentenced.
With regard to the assessment of the objective seriousness of the offending the Crown in its helpful written submissions sought to identify what it identified were "aggravating factors" under s 21A (2). As I have said to the learned Crown in the course of very brief discussion of the helpful written submissions prepared by him, having regard to the elements of the offending, it is not a case where I can take into account as an additional aggravating factor that any injury or loss to the victim was "substantial".
In relation to the claim that the offences, or the principal offence, were committed "without regard for public safety", as I explained to the learned Crown Prosecutor, my understanding of authorities some of which are cited in the sentencing Bench Book of the Judicial Commission, is that this is encompassed within the element of the offence relating to the plea of driving in a manner dangerous. But I do accept, as I have pointed out, there will be degrees of this having regard to the particular facts.
The Crown was correct however to point out that there was a grave risk of death or serious injury to other persons by the conduct of the driving. One particular person, although not seriously injured, was the other passenger. Although her injuries of course give rise to a separate charge. An aggravating factor I have identified already pursuant to s 21A(2) was the fact that the prisoner was subject to conditional liberty.
I do not find that his criminal history or his prior offending is itself an aggravating factor under s 21A(2). The Crown submits that his criminal history as I have identified it, "evidences a complete disregard for authority and the law." There is some support for this in the history provided by Community Corrections. It may fairly be said that there is evidence of this in the criminal history. But in the context of the character of the other offending and having regard to his comparative youth and the fact that many of these offences were committed when a juvenile and the evidence of his background from his mother, I could not conclude that it constitutes relevantly a "aggravating factor" as identified by the learned Crown Prosecutor.
The Crown helpfully sought to identify some supposedly "comparative cases." One case was the decision of The Queen v Black from many years ago in 1998. A case I hasten to say, that predates Whyte and may well have been decided only shortly after Jurisic or thereabouts. Again we come back to the point that the guideline judgment is particularly pertinent to less serious forms of offending then that of which I am now concerned.
The facts set out in Black I am familiar with it. I remember if my memory serves me correctly Ms Burgess of counsel appeared for Mr Black in the Court of Criminal Appeal. It was the subject of a Crown appeal. It should be pointed of course that there were features of Mr Black's driving that are not present here. Particularly bearing in mind he was driving within an urban area and it involved driving that created a much greater risk to other road users then occurred in this particular case.
The Crown in its submissions also sought to identify for me a case from the Western Australian Court of Appeal that might have provided some assistance by way of comparative sentencing. On the limited information provided to me by the Crown it could not. I was not provided with sufficient information about Western Australian sentencing standards, relevant legislative provisions and the like to form a view about the matter, other than to say that the case suggests a set of facts that were found to be in the "worst case" category or within the worst case scenario that the Crown says is comparative to the situation that we have here. Amongst the features that are missing are matters concerning the personal circumstances of the offender as they are relevant to the assessment of that judgment as to whether the case fits within the context of a "worst case."
This concept of course is discussed in other decisions. The sentencing Bench Book refers to several decisions, Austin [1999] NSWCCA 101 and the decision of Scott [1999] NSWCCA 233 as well of the decision of Nillson [2005] NSWCCA 34, which I have had regard to but provided little in the way of assistance. It must be fairly said, as the Court of Criminal Appeal said in a decision of RCW (2), from 2012 that in determining an appropriate sentence it is wrong for a Judge in fixing a sentence for a particular case, given the inherent individuality of offending and offenders, to fixate upon a particular penalty imposed in another case involving different objective facts and different subjective circumstances.
There has also been considerable criticism in recent times both in the High Court and the Court of Criminal Appeal in undertaking an exercise of endeavouring to assess an appropriate penalty by reference to "comparative cases." The observations made about the use of statistics in this regard in decisions such as Bloomfield from 1998 are also to bear in mind. I have been provided with some statistics in the Crown bundle relating to the range of penalties imposed in respect of s 54A (2) offences in the period of time as set out on those documents. The statistics of course available from the Judicial Commission's data base do provide some assistance in providing a range of penalties imposed in the past. But the statistics themselves are devoid of details as to what discount is given for the pleas of guilty, the relevant objective seriousness of the offending, the circumstances of the prisoner and the like.
It is certainly demonstrates that for an offence under s 52A(2), when dealt with in the "higher courts", all offenders have been sentenced to terms of imprisonment and the range of sentences imposed have been from three years imprisonment up to ten years imprisonment, without any information as to how those sentences were calculated, what discounts were available and in what context those sentences were imposed. But I have had regard to the statistics to the extent that they may provide some assistance.
The sentencing of the prisoner is to take place in the context of the terms of s 3A of the Act. This is a case where particularly weight is to be given to general and personal deterrence, to making the prisoner accountable for his actions, denouncing his conduct and recognising the harm that the prisoner has done to the victims and the wider community. In that regard I note what the Crown has said about the role played in victim impact statements in assessing harm done to the members of the family of the deceased.
This matter is of particular comment within the Judicial Commission Sentencing Bench Book. I note the summary of the relevant provisions at para 18-365, or page 9249, of the Bench Book. The role played however of matters contained within the victim impact statement is by definition restrained. There were a number of things of course within the victim impact statements that were very moving and very heartfelt and very truthful, but which involve considerations that were not directly relevant to this sentencing exercise.
With regard to the youth of the offender I should point out of course that whilst it is a relevant matter, the Court of Criminal Appeal has observed that in relation to young offenders the general rule that general deterrence should have less force in sentencing them does not apply to dangerous driving offences because of the prevalence of these offences amongst young drivers. It is a matter in fact specifically cited in the Crown's submissions. The fact that young people may perceive themselves as "bulletproof" is a significant reason for general deterrence to be a prominent factor, as held in such cases SBF v The Queen (2009) 198 A Crim R 219 particularly at [152]. The Court in that judgment said;
"Inexperienced and immaturity in persons aged 17 years and over cannot operate as mitigating factors where the offender commits grave driving offences with fatal consequences."
Of course, that general principle is also to be seen in conjunction with for example the observations of Justice Hodgson about the reality in sentencing young offenders that characteristic of young offenders, whatever their criminal proclivities, is that by reason of their psychological development there is a degree of immaturity. An immaturity at the very least which is reflected here in the warnings given to the prisoner by his passengers on his own account which he failed to heed because of his own selfish self interest in avoiding some minor consequence leading ultimately to the devastating consequences to the victim.
I have not paid particular attention, beyond in passing, to the second of the charges with which I am concerned. The bodily harm suffered by the victim in that matter was short of grievous bodily harm but was of a substantial character, I do not point that out as "aggravating factor." The character of the injury suffered is a pleaded element of the offence.
But in considering the seriousness of the offending in that respect the offence is a very serious offence of its type, in the same way as the character of the offending (that is the driving) is revealed in the principal offence. As I have said, one would characterise the offending as just short of the worst case situation.
The Crown specifically submitted to me that I should not make a finding of "special circumstances" in this matter. I have given that matter very earnest consideration, particularly in light of the prisoner's failure to cooperate with Community Corrections. The prisoner's conduct in custody is also a matter of concern. The facts of the matter are, however, that by coming back into custody in May last year, from that time onwards the prisoner was serving for the first time a term of imprisonment in an adult gaol. I am not trying to excuse the obvious misconduct that is occurring in custody, but his acting out behaviour - if that be what it is - is an attempt by him to assert himself within the prison system. It may well be a reaction to that circumstance, or it may well just be that he wants to be a violent person in custody. In which case he will suffer the consequences in due course either by further terms of imprisonment or by retribution from other prisoners. He is the architect of his own fortune or misfortune as the case may be in that regard. The bottom line is however that this young man is clearly by reference to his juvenile history, his conduct on this occasion and his conduct within custody and his failure to realise the importance of cooperating with the authorities, a person who is evidencing considerable damage in his attitude and may well be - although it may be too early to say this - institutionalised even at this early age.
I remember very distinctly that s 9 Sentencing Act 1989 (now repealed) was introduced, as the first provision to identify "special circumstances" for fixing non-parole periods. In the judgment of Moffitt ((1990) 20 NSWLR at 114), Wood J, at pp 120 121, reflected upon the types of situation where a finding of special circumstances may be made. The Crown at some length has cited only judgment from the judgment of Sully, Simpson JJ. There are other judgments there that reflect upon the finding of "special circumstances". Ultimately this is a matter that does not require a close intellectual or legal analysis. Notwithstanding the very negative impression the prisoner has made for himself in the eyes of the Court and in the eyes of others, there should be some adjustment of the non-parole period in respect to the principal offence for these reasons. Firstly, there will be partial accumulation of one sentence on another, that itself is a "special circumstance" as was explained in Astill (1989).
Secondly, because of his youth, and because of his background of dislocation, dysfunction, and the like, and because of the evidence of his conduct at this relatively young age, in my view he needs an extended period of supervision to assist him to adjust to community living and to be given some direction in relation to matters that might prevent him from committing offences in the future. This might be a forlorn hope. This will be a matter for judgment by the Parole Authority sometime in the future. He will not automatically get parole.
His conduct in prison may deny him the opportunity to be released to parole, but the truth of the matter is said in Yardley v Betts (1979) SASR by King CJ, adopted on a number of occasions in this State, particularly in the decision of Blackman and Walters, again by Wood J, in the ultimate, if orders of a Court have in some way some role in reforming people, that is not just for the benefit of the offender, that is for the benefit of the community. If people get out of custody far worse than they were when they went in, if they do not have the right professional supervision - which is what Judges at least expect parole to do - then we run the risk of worse offences being committed causing pain and suffering and damage, not just to the prisoner of course and his family, but to the victims of his crimes. Whether he has the maturity and the wherewithal to take up the opportunities provided to him by the Community Corrections Service and the Parole Authority in due course is a matter that I cannot predict at this particular time.
With regard to the mitigating factors that arise, as is self-evident it would seem from the facts, this offending that I am concerned with obviously was impulsive offending. Thus it was not part of planned or organised criminal activity. Of course, I cannot find that he is unlikely to reoffend or has good prospects of rehabilitation at this point of his life. I have noted the expression of remorse to his mother but I could not ultimately conclude in light of his conduct towards the Community Corrections Service that he has sufficient insight to be able to reflect remorse as a mitigating factor at this point, certainly remorse as it is contemplated by s 21A(3)(i) of the Act. He pleaded guilty, it is a mitigating factor, but he receives a discrete discount for that.
Otherwise, all matters raised by the parties I believe I have dealt with either directly or implicitly in the remarks that I have made to this point.
To the family of the victim, just before I turn to the prisoner, I am sorry to have taken so long, there is a great deal of material to be taken into account. Again I point out to you, as I have said at the outset, the sentencing of this prisoner takes place in a particular context within a particular structure and of course no penalty that I impose for any person who has killed another person or caused serious bodily harm to another person reflects the value of that person to the community or to their family, and I want you to understand that.
Could you stand up please, Mr Perrim.
Mr Crown, Mr Vo, I made an error if I indicated otherwise, and it is my fault because it is one thing I did not write out - there are a number of things I did not write out in what I have said - but I am required by reason of the non-parole period fixed in relation to that other sentence to date the sentence I am going to impose five months from the time that he came into custody. I am mindful of the fact that the sentencing magistrate - for some reason best known to him or herself - made a commencement date for that 11 month sentence with a five month non-parole period sometime after he had come into custody, but that does not affect the integrity of what I am doing by commencing the sentences I impose from five months into that sentence. I give full effect to the effect of that non parole period and of course the other relatively short term of imprisonment that was imposed by the Magistrate.
Mr Perrim could you stand up thanks very much.
In relation to the offence of driving furiously and causing actual bodily harm you are convicted. You are sentenced to a term of imprisonment of 18 months to commence on 14 October 2015 and to expire on my calculation on 13 April 2017.
In respect of the offence of driving in a manner dangerous causing death in circumstances of aggravation you were convicted. You are sentenced to a term of imprisonment on my calculation of three years six months expiring on 13 April 2020 by way of non-parole period commencing 14 October 2016. In respect of that sentence I fix a balance of sentence of two and a half years expiring on 13 October 2022. The total effective sentence I have imposed is seven years imprisonment with a non-parole period of four and a half years imprisonment.
You will be eligible to release to parole on the orders I have made subject to your rights of appeal and the rights of appeal of the Crown on 13 April 2020. That will be a matter for the Parole Authority.
In respect of the second of those offences you re disqualified from holding a motor vehicle driver's licence for a period of ten years.
I was not given any information about that aspect of the matter, Mr Crown, I'm assuming I have got power to do that?
KERK: Your Honour does have power upon conviction, there's no limit.
HIS HONOUR: There's no limit and in relation to the other offence I propose to fix a period of disqualification that runs concurrently with the first one of two years. Do I have power to do that?
KERK: Yes, your Honour.
In relation to the first offence in time you are disqualified from holding a motor vehicle driver's licence for a period of two years.
Can I backdate that to the date or is it a prospective date?
KERK: I don't think you can, your Honour.
HIS HONOUR: I don't think you can backdate, can you - you can't.
KERK: No.
HIS HONOUR: You will be disqualified from holding a motor vehicle driver's licence for ten years from today so that means when you are released from custody you cannot drive a car for a period of some years after you are released. If you drive a car and you are charged with drive whilst disqualified you would almost automatically go back to gaol. Do you understand that, right, thank you.
Could I ask a question of you, Mr Crown, in relation to that just before I formalise the orders. I have formulated a period of disqualification for ten years. Should I adjust the period of disqualification to take into account the time that he has been in custody or not?
KERK: Your Honour should do that, yes.
HIS HONOUR: Then I'll do the maths. What period are we talking about now, May 2015, we're talking one year one month and approximately two weeks, are we not?
KERK: Yes, your Honour.
HIS HONOUR: So we're talking about eight years - sorry to do this to my associate - ten months and two weeks approximately from today.
KERK: From today, yes.
HIS HONOUR: Today is 1 July and thus we're talking - well the two years doesn't make any difference for the other one.
KERK: No.
HIS HONOUR: I'm sorry, Mr Perrim, in relation to the principal offence you will be disqualified for a period of eight years ten months and two weeks from today. In relation to the other offence I will leave that disqualification as two years. That is included within that period two years from today. Do you understand that? The expiry date of any period of disqualification would be on my rough calculation 14 May 2025.
Is there anything else from you, Mr Vo?
VO: No, thank you, your Honour.
HIS HONOUR: Anything from you, Mr Crown?
KERK; No, thank you, your Honour.
HIS HONOUR: Do you understand the sentence I've imposed, Mr Perrim?
OFFENDER: Yes.
HIS HONOUR: You will be eligible for release to parole in April of 2020 but whether you are released to parole will be a matter for the Parole Authority and very much dependent upon your conduct in custody. You must understand that, right. The backup charges and related charges are withdrawn and dismissed.
[3]
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Decision last updated: 14 June 2017