R v Plumb

LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0248 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

• 6 - IN THE COURT OF CRIMINAL APPEAL 60426/03

WOOD CJ at CL SMART AJ

Monday 1 December 2003 Regina v Craig John Plumb Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the sentences imposed upon him by his Honour Judge Taylor, in the District Court, on 4 April 2003, following his committal for sentence in relation to two counts of aggravated dangerous driving occasioning grievous bodily harm. He was sentenced on each count to imprisonment for two years with a non-parole period of twelve months. An accumulation of six months was effectively directed so that the effective overall sentence was one of imprisonment for two and a half years with a non-parole period of eighteen months. Additionally he was disqualified from driving for two years. 2 The offences were committed on 13 April 2002, when the Holden Commodore driven by the applicant came into a head-on collision with a Toyota Hilux utility on the Gundaroo Road, near Sutton. At the time of the collision, which occurred when the Holden crossed onto the incorrect side of the road, over double unbroken separated lines, on the crest of a hill, the applicant had a blood alcohol concentration between 0.205 grams per 100 millilitres and 0.260 grams per 100 millilitres of blood. At those levels, as the evidence showed, his driving ability would have been "very significantly impaired". 3 On the applicant's own admission he was travelling at about 100 kilometres per hour at the time of the collision. Although that was within the speed limit for the relevant stretch of road, it does tend to explain why it was that the impact was so severe, and why it left the occupants of the Toyota, who were trapped for a time in their vehicle, with very serious injuries. It may be observed that the accident was inadvertent insofar as the applicant at the time was reaching for an inhaler in order to deal with a problem of asthma. 4 One occupant of the Toyota suffered fractures to both arms and to her right leg, requiring multiple surgical intervention as well as tears to her bowel that also required surgery. The other occupant sustained multiple fractures to his legs requiring surgery, four broken ribs, facial fractures requiring surgery including replacement of his left eye, a closed head wound and abdominal injuries that required surgery to remove his spleen and to repair his bowel. 5 The evidence showed that the applicant had consumed ten to twelve middies of beer during the preceding evening. On the day of the accident he had one light beer before a round of golf and then between 3pm and 4pm he had a further three middies of full strength beer at the golf club. Between 4.15 and 5.30pm he consumed a further two stubbies of full strength beer at home before leaving those premises to drive to Dickson in the ACT. The collision occurred forty to sixty minutes later, by which time he had travelled a distance of seventy to eighty kilometres. 6 The sentencing judge expressly took into account the aggravating circumstances, which he understood to be applicable, having regard to the decision in Regina v Jurisic (1998) 45 NSWLR 209, namely that:

(a) The injuries sustained by the victims were very serious; (b) The applicant's driving ability would have been very significantly impaired by a blood/alcohol concentration, which was about four times the permissible limit; (c) He had driven in that state for about an hour, which had exposed other road users to significant danger; (d) His moral culpability was high.

7 His Honour did not accept the applicant's account that he had been surprised at the reading when tested by police, finding it inherently unlikely that he was not aware that he was well over the legal limit. He did, however, accept that he had not anticipated, when he returned home, that he would need to drive to Canberra to see his partner, who was having some problems with a child. 8 His Honour also accepted in his favour that: (a) He was entitled to a discount of 20 per cent for the plea, which had been offered at the earliest opportunity; (b) He had demonstrated remorse; (c) He was a person of good character and had a good driving record; (d) He was normally a moderate drinker; (e) His prospects of rehabilitation were high; (f) He could well suffer additional punishment in the loss of his long term job with the RTA, whose vehicle he had been driving.

9 Those circumstances clearly do reflect a significant humanitarian factor, which his Honour had to address. Special circumstances were found in relation to the likely loss of the applicant's job, the need for assistance and supervision in re-establishing himself and the fact that he had an important role to play in the upbringing of his partner's child. 10 In determining the manner in which the sentences should be served his Honour said: "Pearce's case requires that the court fix an appropriate sentence for each offence and consider questions of accumulation and concurrence, as well as totality. The accumulation of the sentences I have determined would create a period of imprisonment in excess of what is appropriate for the totality of the criminality involved in these offences when considered together. The accumulation will be partial." 11 I am of the clear impression that, in this paragraph, his Honour was referring to the fact that a full accumulation of the two sentences, each of two, years, would have created a sentence that was disproportionate to the criminality involved. The contrary submission that his Honour was saying that there should be no accumulation is without particular foundation. Similarly, I am satisfied that although his Honour did not use express words of direction concerning that accumulation, that was the clear impact of the decision, and of the order that was ultimately made. 12 No complaint is made in relation to the sentencing exercise other than for the fact of accumulation. It was submitted that, since the two counts arose out of the same activity, and were so closely connected, they should be regarded as part of the one incident. Consistently with the approach referred to by Street CJ in Regina v Melville (1956) 73 WN (NSW) 579 at 583, it was argued the sentences should, as a consequence, have been directed to be served wholly concurrently. 13 There is no inflexible rule to the effect of that suggested by the applicant, as was recognised in Regina v Wilkins (1988) 8 MVR 404 where Lee CJ at CL observed: "I am not satisfied that it should be held that the practice of treating certain circumstances as one enterprise and then not accumulating sentences in respect of offences that come within the ambit of that enterprise is one that must be followed in every case and certainly I am not satisfied that should be followed in the case of s 52A."

14 The "practice" to which his Honour referred, in any event, needs to now be understood in the light of the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 where the majority said: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well, of course, as questions of totality." 15 This decision marked an end to the approach previously followed, which had support in Mill v The Queen (1988) 166 CLR 59 and in Regina v Holder and Johnston [1983] 3 NSWLR 245, which placed the focus upon the practical significance of the overall sentencing order, rather than upon its individual components. 16 In accordance with the Pearce approach, sentences considered appropriate for each offence are to be determined, and the overall objective criminality is then to be taken into account when considering whether they should be served concurrently or cumulatively upon one another, either in part or totally. 17 The decision in Pearce is better suited to a sentencing exercise that involves quite separate offences than it is with one that involves a number of offences arising out of a single event, or closely connected events. However, it currently represents the law in relation to any sentencing exercise that involves more than one count. 18 The decision whether to direct accumulation or concurrency of sentence is discretionary, and it is one where Simpson J noted in Regina v Hammoud (2000) 118 A Crim R 66, that judges can legitimately reach different views. 19 There are other cases, decided in comparatively recent times, where concurrent sentences have been imposed for multiple offences arising out of the one motor vehicle accident: for example, see Regina v McDonald NSWCCA 12 October 1998, Regina v Comber NSWCCA 11 November 1998, Regina v Sen [1999] NSWCCA 109, Regina v Gleeson [2000] NSWCCA 108, Regina v Dunlop [2001] NSWCCA 435 and Regina v Bishop [2002] NSWCCA 263. In none of these decisions, which include Crown appeals as well as applications for leave to appeal against severity, was the point that arises in this case specifically addressed, it being dealt with sub silentio. 20 In Regina v Skrill [2002] NSWCCA 484 the court intervened in a Crown appeal in a case where there were multiple counts arising out of the one event and directed an accumulation of sentence. In that case Carruthers AJ, with whom Hulme J agreed, observed that in this kind of case, where there was more than one victim, the customary reference to a "single discrete episode of criminality" is of little, if any, assistance. Together with the decision in Regina v Wilkins it was a case that departed from the "practice", which it was here suggested had been if not universal then almost universal. 21 I am not persuaded in the present case, having regard to the very serious injuries inflicted on the two victims, that some degree of accumulation was not called for. Otherwise it is difficult to see how the overall objective criminality could be accommodated within the confines of Pearce. 22 Quite independent of this consideration, however, reference to the current guideline judgment in Regina v Whyte (2002) 55 NSWLR 252 leaves me unpersuaded that any sentence should have been passed other than that which was in fact imposed. 23 The present case does fall outside the "typical case" there mentioned insofar as there was more than one victim, and insofar as the applicant was not strictly a young offender. Additionally there were present a number of the aggravating circumstances mentioned, namely those falling within items (i), (ii), (iv) and (vii) of the Guidelines. 24 I would grant leave to appeal but I would dismiss the appeal. 25 SMART AJ: I agree. 26 WOOD CJ at CL: The order of the court will be as I proposed.

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