(2015) 90 ALJR 13
R v Sward [2014] NSWCCA 259
R v Thomson
R v Houlton [2000] NSWCCA 309
(2000) 49 NSWLR 383
R v Whyte [2002] NSWCCA 343
Source
Original judgment source is linked above.
Catchwords
(2010) 77 NSWLR 7
R v Pham [2015] HCA 39(2015) 90 ALJR 13
R v Sward [2014] NSWCCA 259
R v ThomsonR v Houlton [2000] NSWCCA 309(2000) 49 NSWLR 383
R v Whyte [2002] NSWCCA 343
Judgment (3 paragraphs)
[1]
Solicitors:
C Hyland - Solicitor for Public Prosecutions (Applicant)
S E O'Connor - Legal Aid New South Wales (Respondent)
File Number(s): 2014/126912
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 5 June 2015
Before: McClintock SC DCJ
File Number(s): 2014/00126912
[2]
Judgment
GLEESON JA: I agree with Button J.
BUTTON J: This is a Crown appeal brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). It is against an aggregate sentence imposed by his Honour Judge McClintock SC upon Jeremy Paul Price (the respondent) in the District Court of New South Wales on 5 June 2015.
Background
The respondent pleaded guilty to a number of offences, all of which he committed on 24 April 2014 at Coolangatta.
There were three offences that were committed to the District Court for sentence after pleas of guilty entered by the respondent in the Local Court.
The first was dangerous driving occasioning the death of Mr Bernard Hayden. The count was brought pursuant to s 52A(1)(c) of the Crimes Act 1900 (NSW), and the Crown alleged that the offence was made out by the respondent driving in a manner dangerous to another person or persons. That offence carries a maximum penalty of imprisonment for 10 years, and has no standard non-parole period.
The second offence committed for sentence was dangerous driving occasioning the death of Mrs Eileen Hayden. That count was brought pursuant to the same subsection of the Crimes Act, and founded upon the same allegation.
The third offence committed for sentence was dangerous driving occasioning grievous bodily harm to the two year old son of the respondent (in an effort to protect his anonymity, I shall not name him). That offence was brought pursuant to s 52A(3)(c) of the same Act. Again, the Crown alleged that the respondent had driven in a manner dangerous to another person or persons. The offence carries a maximum penalty of imprisonment for seven years, and has no standard non-parole period.
Separately, three further offences were placed before his Honour pursuant to Ch 3 Pt 3 Div 7 of the Criminal Procedure Act 1986 (NSW) as "related offences". Each of them had also been committed by the respondent on 24 April 2014.
The first was an offence of possessing a prohibited drug, namely 1.010 g of methylamphetamine (the charge sheet speaks of 2.25 g, but the agreed facts speak of 1.010 g; I proceed on the lesser amount). Pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), that wholly summary offence carries a maximum penalty of imprisonment for two years.
The second was an offence of having in his custody $1,110 in cash that may reasonably have been suspected of being stolen or otherwise unlawfully obtained. Pursuant to s 527C(1)(a) of the Crimes Act, the maximum penalty of that wholly summary offence is imprisonment for six months.
The third and final offence on the certificate prepared pursuant to s 166 of the Criminal Procedure Act (the s 166 certificate) was an offence of supplying a prohibited drug; namely, methylamphetamine. That offence was brought pursuant to s 25(1) of the Drug Misuse and Trafficking Act. When dealt with in the Local Court, that indictable offence is subject to a jurisdictional limit of imprisonment for two years, pursuant to s 267(2) and Table 1 of the Criminal Procedure Act (in light of the fact that the amount of the prohibited drug was just over the "small" quantity in Sch 1 of the Drug Misuse and Trafficking Act).
The learned sentencing judge decided to impose an aggregate sentence for all offences, including the related offences, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Ultimately, after having provided indicative sentences that I shall detail later, his Honour imposed an aggregate head sentence of imprisonment for six years with a non-parole period of four years.
Two grounds of the Crown appeal were notified and pressed. The first was that the aggregate sentence is manifestly inadequate. The second can be summarised as being that s 168(3) of the Criminal Procedure Act has the effect that offences that are placed before the District Court or the Supreme Court pursuant to a s 166 certificate cannot be incorporated in an aggregate sentence imposed by either one of those courts.
Objective features of the offences
The following is derived from the comprehensive discussion in the remarks on sentence. No fact found by his Honour was impugned by the Crown in its appeal.
On about midday on Thursday 24 April 2014, the respondent was driving his Toyota Camry in an easterly direction on a main road of Coolangatta. The only passenger was his two-year-old son. Although his son was in a booster seat, it was not appropriate for children of his age. Even more dangerous was the fact that the respondent was affected by the prohibited drug methylamphetamine, which he had consumed some time before.
There were other vehicles on the road, both behind the respondent (that is, to the west) and in front of him (that is, to the east). Travelling in a westerly direction towards the respondent on the southern side of the road were Mr and Mrs Hayden, an elderly couple.
As the respondent drove around a left hand bend, his vehicle moved to the right. It ended up in a position whereby almost the entirety of his car was on the wrong side of the road, and travelling into the path of oncoming traffic from the east.
Although there was evidence that, before that event occurred, the respondent had been driving in a way that suggested that he wished to overtake another vehicle travelling in an easterly direction, his Honour was not satisfied beyond reasonable doubt that the respondent was driving aggressively or impulsively. In particular, his Honour was not satisfied that the car driven by the respondent was on the wrong side of the road because the respondent was seeking to overtake another vehicle.
Tragically, the Camry collided very heavily with the vehicle of Mr and Mrs Hayden. Mr Hayden died at the scene. Mrs Hayden died later in hospital. The son of the respondent suffered very severe injuries, an overview of which I shall provide shortly. The dangerous driving of the respondent, and its disastrous consequences, founds the three counts that were committed for sentence.
After the collision, the respondent alighted from his motor vehicle. As it happened, one of the persons who came across the scene was an acquaintance of the respondent. The respondent took the opportunity to divest himself of a small quantity of methylamphetamine by giving it to that acquaintance. The possession of that prohibited drug by the respondent, and his provision of it to another person, founded the charges of possession and supply of a prohibited drug on the s 166 certificate. The respondent also handed the acquaintance his wallet, which contained a large amount of cash. The possession of that cash by the respondent founded the third charge on the certificate.
Clearly enough, the inference that the respondent was more concerned to protect himself from criminal inculpation with regard to those matters than anything else, including providing assistance to those who were dead, dying, or gravely injured in the aftermath of the collision, needed to be considered by the sentencing judge. After reflection, however, his Honour determined that that conduct of the respondent after the collision should not aggravate the criminality of the three major offences, and was not satisfied beyond reasonable doubt that this conduct demonstrated callousness towards the victims of the offences.
The motor vehicle of the respondent was free of mechanical defect. Neither the condition of the road, nor the weather, nor any other surrounding circumstance played a role in the collision. The respondent was travelling within the speed limit. As I have said, his Honour was not satisfied that the respondent was driving aggressively or impetuously. Rather, his Honour proceeded on the basis that the respondent was substantially affected by prohibited drugs; that his intoxication reduced his ability to drive safely; and that it caused him to be driving in such a way that his vehicle ended up almost entirely on the wrong side of the road before it fatally collided with another vehicle.
As for the son of the respondent, he spent eight months in hospital after the collision. There is no doubt that he has suffered a traumatic brain injury, though the precise effects of that will take quite some time to be known. What is known is that he will suffer from paraplegia, including bowel and bladder incontinence, for the rest of his life.
His Honour assessed the objective seriousness of the three substantive offences as part of the determination of sentence, noting "a high level of abandonment of responsibility and moral culpability" and the "terrible and tragic consequences" of the offence.
Subjective features
Pleas of guilty and remorse
Turning from the attributes of the offences to the attributes of the offender, as I have said, pleas of guilty were entered in the Local Court with regard to the three substantive offences. His Honour sentenced on the basis that there had been early pleas of guilty to the certificate offences as well. A 25% discount was applied to the (indicative) sentences that would otherwise have been imposed, in accordance with principle: see JM v R [2014] NSWCCA 297 at [39]. That discount is not impugned by the Crown.
As well as that, his Honour found that the respondent was very remorseful for what he had done. His Honour's finding is encapsulated in the following extract from p 22 of the remarks on sentence: "The offender's letter to the court, which I take to be genuine, expresses deep remorse… and he seems further down the path to taking responsibility for his actions and with greater insight into how they led to the collision".
Personal circumstances
The respondent was born in January 1979, and accordingly was aged 35 years at the time of the offence, and 36 years as at the date of the imposition of sentence.
One of three siblings, he enjoyed a reasonably stable and supportive upbringing. However, he performed poorly at school, and experienced problems with learning and behaviour. He remained in school until year 10, and obtained his School Certificate. After leaving school he became a qualified printer. He also did some work as a labourer, before qualifying as a machine and plant operator in his mid-twenties.
During his adolescence, the respondent frequently engaged in impulsive and risk-taking behaviour. As part of that, he began drinking alcohol at age 13. At age 15, he began smoking cannabis daily. He remained dependent on cannabis for well over a decade thereafter. At age 22, he began using crystal methamphetamine (also known as "ice") occasionally on the weekend. Later, he began using that drug on a weekly basis.
At age 24, he commenced a relationship with the woman who was to become the mother of his two children. Their relationship was a stable one. However, in its latter stages, they were both using drugs, including methylamphetamine.
When the respondent was aged 34, the relationship with his partner ended. He did not cope well with the separation, and began using ice on almost a daily basis. Despite his heavy drug use, he maintained contact with his children, and reported a close bond with them.
In short, the respondent is a man who has abused prohibited drugs for over 20 years. Until the collision, however, he was able to keep that abuse under control sufficiently to avoid it having disastrous consequences.
As for prior offending, the criminal record of the respondent did not assist him on sentence, and his record of traffic offences was very adverse.
Criminal record
Turning to his criminal record first, in 2002 the respondent was placed on a bond for an offence of assault occasioning actual bodily harm.
In 2004, he was sentenced in the District Court to a head sentence of imprisonment for two years and eight months with a non-parole period of 18 months, for an offence of aggravated break and enter and commit a serious indictable offence, that being assault occasioning actual bodily harm. A successful appeal to this Court led to a reduction in sentence, with the result that the head sentence became one year and four months, and the non-parole period became nine months.
In 2008, the respondent was placed on a bond for possessing a prohibited drug.
In 2009, for the same offence (along with the offence of possessing equipment for the administration of a prohibited drug) he was placed on a further bond.
In 2012, he was fined for an offence of common assault, and ordered to perform community service for a separate offence of assault occasioning actual bodily harm.
In short, while not overly lengthy, the criminal record of the respondent showed that he had had a problem with prohibited drugs; that he had committed acts of violence; and that one of his acts of violence has been sufficiently serious as to call for incarceration, albeit for a short period.
Traffic record
Turning now to the traffic record of the respondent, whilst on a provisional licence at the age of 17 years, on two occasions in 1996 he did not display his P plates.
In 1997, he exceeded the speed limit by more than 15 km/h but less than 30 km/h.
In 1998 he drove negligently, by driving through a stop sign.
Thereafter his licence was cancelled for loss of demerit points.
Later in 1998, he exceeded the speed limit by more than 15 km/h, but less than 30 km/h.
Early in 1999, he was fined for not wearing his seat belt.
Less than two months later, the respondent exceeded the speed limit by more than 30 km/h but less than 45 km/h.
In 2000, he was fined $1400 and disqualified for 18 months for using an unregistered and uninsured motor vehicle, and for driving that vehicle recklessly or furiously, or in a dangerous speed or manner.
In the same year, his licence was suspended for a second time for loss of demerit points.
In 2002, he was fined for performing a "burnout". Eight days later, he was fined for negligent driving.
In December 2002, he exceeded the speed limit by more than 15 km/h.
In May 2004, he exceeded the speed limit by more than 45 km/h.
In August 2004, he exceeded the speed limit by more than 15 km/h but less than 30 km/h. Shortly thereafter, in September 2004, his licence was suspended for a third time due to loss of demerit points.
In 2006, he exceeded the speed limit by less than 15 km/h.
That same year, the respondent was convicted of driving with the middle range prescribed concentration of alcohol in his blood. He was fined $1000, and disqualified from driving for nine months.
In July 2008, he was fined for exceeding the speed limit by more than 15 km/h but less than 30 km/h.
In 2010, he was fined for driving whilst using a mobile phone.
In June 2014, the respondent was fined for exceeding the speed limit by more than 10 km/h but less than 20 km/h. That offence had occurred on 18 March 2014. It will be recalled that the offences under discussion occurred on 24 April 2014.
In short, the record of traffic offences of the respondent extended over many years and was extremely poor. It featured a conviction in 2006 for driving whilst affected by a substance that could impair his ability to drive safely. Regrettably, it showed that, over a lengthy period, the respondent has been unable or unwilling to obey the road rules. As well as that, the last of the many driving offences committed by the respondent had been committed a little over one month before the day upon which his driving led to the death of two persons, and the occasioning of permanent and extremely grave disabilities to his two-year-old child.
Aspects of sentence
As I have said, his Honour decided to impose an aggregate sentence. The indicative sentences provided by his Honour were as follows (it will be recalled that each of the following had been reduced from its starting point by 25%).
For each of the offences of dangerous driving causing death, a head sentence of four years (accordingly the starting point for each was five years and four months).
For the offence of dangerous driving occasioning grievous bodily harm, a head sentence of three years (the starting point was four years).
For the related offence of possessing a prohibited drug, a sentence of three months (the starting point was four months).
For the related offence of supplying a prohibited drug, a sentence of six months (the starting point was eight months).
For the related offence colloquially known as having goods in custody, a sentence of three months (the starting point was four months).
Applying principles of totality, as I have said his Honour imposed a single aggregate sentence with a head sentence of imprisonment for six years, with a non-parole period of four years. Clearly enough, special circumstances were found that led to a reduction of the ratio between the aggregate non-parole period and the aggregate head sentence from three-quarters to two-thirds.
Grounds of appeal
The following grounds of appeal by the Crown were notified and pressed at the hearing:
Ground One: The sentence imposed is manifestly inadequate.
Ground Two: The inclusion of the s 166 offences in the aggregate sentence was not in accordance to law [sic].
Ground two
It is convenient to deal with this ground first.
The Crown submitted that the plain meaning of s 168(3) of the Criminal Procedure Act is that the sentence for a "Local Court offence" (whether that be a wholly summary offence, or an indictable offence being dealt with summarily) imposed by the District or Supreme Court, by way of the well-known mechanism of placing such matters on a certificate when substantive matters are being committed for trial or sentence, cannot be incorporated within an aggregate sentence, as a matter of statutory interpretation. It was said that, to the extent that his Honour purported to do so with regard to the three offences on the s 166 certificate, that constituted an error of law.
We were invited by the Crown to the decision of this Court in R v Sward [2014] NSWCCA 259 at [51], but only to show that in that matter the question had not been decided, and it remains an open one.
The respondent submitted that, properly understood, the provision does not prohibit what occurred here, and his Honour committed no error.
The particular provision in question is as follows:
168 Procedures for dealing with certain offences related to indictable offences
(1) The court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section.
(2) The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the back up offence or related offence.
(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court.
(4) Rules of court may be made with respect to back up offences or related offences dealt with under this Part.
(emphasis added)
To my mind, this ground can be dealt with shortly. I do not accept that the provision has the effect for which the Crown contends. That is so for the following reasons.
First, the provision must be read in light of other provisions enacted by Parliament with regard to sentencing.
Section 53A of the Crimes (Sentencing Procedure) Act is as follows:
53A Aggregate sentences of imprisonment
(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.
(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following:
(a) the fact that an aggregate sentence is being imposed,
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.
(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.
(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
(emphasis added)
Section 49 of the Crimes (Sentencing Procedure) Act is as follows:
49 Restriction on term of sentence
(1) The term of a sentence of imprisonment (other than an aggregate sentence of imprisonment):
(a) must not be more than the maximum term of imprisonment that may be imposed for the offence, and
(b) must not be less than the shortest term of imprisonment (if any) that must be imposed for the offence.
(2) The term of an aggregate sentence of imprisonment:
(a) must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates, and
(b) must not be less than the shortest term of imprisonment (if any) that must be imposed for any separate offence or, if the sentence relates to more than one such offence, must not be less than the shortest term of imprisonment that must be imposed for any of the offences.
(emphasis added)
Reading those three provisions as a harmonious whole, there is nothing to suggest explicitly or implicitly that a Local Court offence that is before the District Court or the Supreme Court, pursuant to s 166 of the Criminal Procedure Act, cannot be "picked up" by an aggregate sentence that that court imposes (pursuant to s 53A of the Crimes (Sentencing Procedure) Act). Nor is there anything to suggest explicitly or implicitly that there is any limitation upon that process, pursuant to s 49 of the same Act.
Secondly, the mechanisms whereby related Local Court offences may be placed before the District Court or the Supreme Court and whereby aggregate sentences may be imposed are facilitative, in that they are designed to free the process of sentencing from unnecessary technicality and fragmentation. And yet to interpret the statutes as requiring a judge, when imposing an aggregate sentence on matters committed to his or her court, to impose at the same time separate substantive sentences for Local Court matters that are also before the very same judge, re-introduces those negative characteristics to the process.
Thirdly, in any event, s 168(3), the central provision said before us to give rise to the prohibition, speaks of the District or Supreme Court sentencing for certificate offences in accordance with "the same functions…restrictions and procedures" as the Local Court. And yet it can be seen from s 53A that, within its jurisdictional limits, it is perfectly open to the Local Court to impose aggregate sentences; the Crown did not contend to the contrary.
In other words, I consider that the result would be strange indeed if the Local Court were able to impose aggregate sentences for Local Court offences placed before it, but the District and Supreme Courts were prohibited from doing so with regard to the very same offences. I do not accept that that was the intention of Parliament, objectively discerned from a reading of the legislation, bearing in mind its purposes and its context.
In short, reading the provision in the context of the entirety of Div 7 of Pt 3 of the Criminal Procedure Act, and the context of the salient parts of the Crimes (Sentencing Procedure) Act, I do not interpret s 168(3) of the Criminal Procedure Act as prohibiting the incorporation of Local Court offences within aggregate sentences imposed in the District Court or the Supreme Court. Of course, in sentencing for offences placed upon a certificate, the applicable maximum penalty (with regard to wholly summary offences) and the applicable jurisdictional limit (with regard to indictable offences being dealt with summarily) must be respected in the superior courts. As can be seen from the indicative sentences provided by his Honour for the related offences, that is precisely what happened here.
I would reject ground two of the Crown appeal.
Ground one
Submissions
Although in its written submissions the Crown invited us to a number of particular aspects of the remarks on sentence, a process of refinement occurred in oral submissions. The Crown simply submitted that, although neither a procedural or evidential error in the proceedings on sentence nor an error of fact or law in the remarks on sentence can be identified, nevertheless the sentence ultimately imposed is of itself erroneous. That is because, it was said, the sentence failed to reflect all of the very adverse objective and subjective features of the matter.
Senior counsel for the respondent submitted that the sentence does adequately give weight to those features. He emphasised that his Honour had not found that the respondent was driving aggressively or wantonly; that his Honour had accepted that the respondent was remorseful; that each of the three driving offences was the non-aggravated version of the offence (as opposed to the offences to be found in s 52A(2) and s 52A(4) of the Crimes Act); that there was an inevitable aspect of extra-curial punishment arising from the respondent knowing that he had very adversely affected the life of his own son; and that the early pleas of guilty had a significant utilitarian value.
Separately, he accepted that the only sentence the subject of an appeal is the aggregate head sentence actually imposed. Nevertheless, he submitted that it is useful to consider the indicative sentences, and to do so in the light of the applicable guideline judgment of this Court, R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.
He submitted that, in the circumstances recounted in the guideline judgment, a head sentence of three years for the offence of dangerous driving occasioning death was suggested, and a head sentence of two years when the consequence is grievous bodily harm: R v Whyte at [229]. And he noted that those head sentences were said to be applicable when there was a late plea: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [161].
Analysing mathematically what those proposed head sentences would be if there had been (as here) a plea of guilty at the earliest opportunity attracting a 25% discount, he submitted that the head sentence suggested by the guideline judgment for an offence occasioning death would be two years six months, and the suggested head sentence for an offence occasioning grievous bodily harm would be one year eight months. And yet the head sentences indicated by his Honour for the three offences (four years for the offences occasioning death, and three years for the offence occasioning grievous bodily harm) were well above those sentences implicitly suggested in the guideline judgment for early plea matters. That suggested, he submitted, that there was no error in the approach of his Honour.
As for the implicit approach to the principle of totality of the sentencing judge (which can be derived from reflection upon all of the indicative sentences and the aggregate head sentence actually imposed), he submitted that that approach was open to the discretion of his Honour. He emphasised that, in truth, all three substantive offences were derived from the single act of driving dangerously as a result of impairment by way of a prohibited drug.
In short, he submitted that the aggregate sentence imposed was within the discretion of the sentencing judge, and does not demonstrate error.
Determination
Turning to my determination, it is true that the matter is to be considered on the basis that the respondent was not driving quickly or aggressively as a result of the effects of the prohibited drug. But the conclusion that the objective gravity and moral culpability of the three offences committed for sentence was nevertheless extremely high is, to my mind, unavoidable.
Objective seriousness
The result of the intoxication of the respondent was that he was driving his motor vehicle in a flagrantly dangerous manner; namely, almost completely on the wrong side of the road. And he was doing so on a thoroughfare in a large regional centre on which there was a substantial amount of traffic, and at a speed of over 80 km/h. Before the collision, he had not only endangered members of the community in general for a considerable period, in light of the fact that he was substantially affected by a prohibited drug. He had also endangered his two-year-old son in particular, by not ensuring that he was appropriately restrained.
As well as that, bearing in mind the very broad range of injuries that could constitute grievous bodily harm, the injuries inflicted upon the two-year-old victim were approaching the worst class of case.
Moral culpability
Separately, I consider that the moral culpability of the respondent was also extremely high. I say that chiefly because, by the time of the commission of the offences, he had breached the road rules more or less continuously over the years; indeed, he had done so a little over one month previously. Quite apart from the fact that all members of the community surely know of the danger and unlawfulness of driving whilst affected by alcohol or prohibited drugs, the respondent was personally well aware of that. That was because in 2006 he had been punished for an offence of driving with a mid-range prescribed concentration of alcohol in his blood.
In short, the objective gravity of the offences, and the offender's moral culpability for them, was profound. Two people were killed and one person was gravely disabled for the rest of his life by an intoxicated person who had a very poor driving record. I respectfully reject the proposition that an aggregate head sentence of six years adequately reflects the very pronounced objective gravity and moral culpability of this matter.
The guideline judgment
Turning to analyse the guideline judgment upon which counsel for the respondent relied, to my mind it does not support the proposition that the sentence is free of error. That can be seen from the combination of two factors. The first is that subsequent authority of this Court has established that the guideline judgment sets a standard below which sentences for the offence in question should not usually fall: R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [54], rather than a mean or median. The second is that, with regard to almost every objective or subjective factor, this case is more serious than the putative case discussed in the guideline judgment. I proceed to demonstrate the ways in which that is so.
The guideline judgment spoke of seven factors: see [204] of that judgment.
The first factor is the youth of the offender. In the guideline judgment, the putative offender is "young", a factor that very often entitles an offender to leniency. But here, the respondent was aged 35 years at the time of the offence, and was on the cusp of early middle age. This factor tells against the respondent.
The second factor is character and previous convictions. In the guideline judgment, the putative offender is of good character with no or limited prior convictions. In contrast, the respondent had a significant history of driving offences that disentitled him to leniency based on previous good behaviour. Nor was he a person of good character. This factor tells against the respondent.
The third factor relates to the extent of injury. In the guideline judgment, the putative outcome of the dangerous driving is death or permanent injury to a single person. In contrast, in the present case there were multiple victims, two of whom were killed, and one of whom suffered very grave life-long injuries. This factor tells against the respondent.
The fourth factor is the status of the victim. In the guideline judgment, the victim is a stranger to the putative offender. In the present case, two of the victims were strangers to the respondent, but the third victim was the son of the applicant and under his care at the time of the incident. This factor is neutral.
The fifth factor relates to injury to the driver. In the guideline judgment, there is no or limited injury to the driver or the driver's intimates. In contrast, although there was no evidence of injury to the respondent, there was very substantial injury to the two-year-old son of the respondent in the present case. I regard this factor as neutral.
The sixth factor is genuine remorse. In the guideline judgment, the putative offender demonstrates genuine remorse. Similarly, in this case the sentencing judge made a finding of genuine remorse of the respondent. This factor is neutral.
The seventh factor is a plea of guilty. In the guideline judgment, the putative offender enters a plea of guilty of limited utilitarian value. In the present case, the respondent entered an early guilty plea with significant utilitarian value, which was reflected by the 25% discount upon sentence. This factor tells in favour of the respondent, albeit it has been neutralised by the mathematical calculation undertaken by counsel for the respondent.
Taken as a whole, those generally subjective features are adverse to the respondent, and do not speak in favour of the adequacy of the sentence actually imposed.
Furthermore, the guideline judgment speaks of matters that can be taken into account as "aggravating factors" with regard to the conduct of an offender: at [215] and following. Because I have already discussed the objective features of the offence, I shall not analyse those factors in detail. Suffice to say, the driving of the respondent did not involve speeding, or erratic or aggressive driving; nor competitive driving or showing off; nor an ignoring of warnings; nor an escape from the police. On the other hand, the extent and nature of the injuries and deaths inflicted was extremely grave; a large number of road users were put at risk, including a two-year-old child; the degree of impairment arising from drug abuse was substantial; and the duration of the endangerment of others was not insubstantial.
Taken as a whole, those objective factors also do not speak in favour of the adequacy of the sentence imposed.
In short, I accept that the guideline judgment delivered fourteen years ago has a significant (but by no means determinative) role in assessing the quantum of sentence. Although not to be seen as prescriptive, it can inform one's analysis of questions of manifest excessiveness or inadequacy. Approached in that way, it does not support the proposition that the sentences imposed were adequate. To express that conclusion another way, I respectfully consider that the circumstances of this case called for indicative sentences much longer than those suggested in the guideline judgment.
Other sentences imposed in broadly similar matters
Neither party took us to other decisions of this Court in broadly similar matters, no doubt in light of the recent warnings against adopting a simplistic or prescriptive approach to the degree to which other sentences in general can inform the correctness of a particular sentence: R v Pham [2015] HCA 39; (2015) 90 ALJR 13 at [29]; King v R [2015] NSWCCA 99 at [80].
The only decision of this Court to which we were taken by the parties was R v Harris.
That was a Crown appeal in which the offender had pleaded guilty to three counts of dangerous driving causing death (s 52A(1)(c)), one count of dangerous driving causing grievous bodily harm (s 52A(3)(c)), and two Form 1 offences: taking and driving a conveyance without the consent of owner (s 154A(1)(a) Crimes Act) and self-administering a prohibited drug (s 12(1) Drug Misuse and Trafficking Act).
The offender in R v Harris had prohibited and prescription drugs present in his blood (including diazepam, morphine, methadone and cannabinoids), possessed a record of driving offences, and was on parole at the time of the collision.
Three victims in the other vehicle were killed as a result of the collision. The three-year-old child of the offender suffered a traumatic brain injury, a broken right arm and a fractured jaw.
In upholding the Crown appeal, this Court quashed the original overall sentence of four years and seven months with a non-parole period of three years and three months. The offender was re-sentenced to an aggregate term of seven years and six months with a non-parole period of five years and six months.
It can be seen, however, that there were two sharply differentiating features between that case and this case.
First, in R v Harris the offender was suffering from the effects of epilepsy, which in the result led to the collision, and the dangerous character of his driving lay in the fact that it was undertaken in the face of the risk, known to him, that he may suffer a seizure whilst at the wheel.
Secondly, the sentencing judge in that matter found that the offender was not materially affected by drug usage at the time of the collision (although this Court found that his ability to drive was impaired to some extent by the drugs he ingested).
Because of those points of differentiation, the sentence imposed by this Court after the successful Crown appeal in R v Harris has only a very limited role in assessing whether the aggregate sentence under consideration is manifestly inadequate. It does not affirmatively support the correctness of the sentence imposed in this case.
Totality
Two further matters require consideration. The first is that (leaving aside entirely the s 166 certificate matters) the sentencing judge provided discounted indicative head sentences of four years, four years, and three years. And yet an aggregate head sentence of only six years was imposed, by way of the application of the principles of totality.
It is true that all of the offences were part of the same collision; having said that, each offence had its own separate, tragic, and permanent consequences.
It is beyond controversy that questions of concurrence and cumulation are very much vouchsafed to a sentencing judge. They include questions of implicit concurrence and cumulation within the context of an aggregate sentence. Nevertheless, the degree of implicit concurrence demonstrated by reflection upon the three head sentences that were indicated and the aggregate head sentence that was actually imposed is, I respectfully consider, supportive of error.
Minimum period of incarceration
Finally, focusing upon the practical effect on the liberty of the respondent of the sentence imposed (assuming that he is released at the end of his non-parole period) I respectfully do not accept that the minimum term of imprisonment actually to be served by the respondent of four years appropriately reflects his criminality in general, and in particular the consequences of it.
Conclusion
In short, the objective gravity of the offences generally, including the life-long disabilities inflicted on a child who was in the care of the respondent; the subjective moral culpability of the respondent; the guideline judgment; the degree of implicit concurrence provided; and the length of the non-parole period as a reflection of the mandatory minimum period of incarceration, all strongly suggest that the sentence imposed is so lenient as to be beyond the parameters of the sentencing discretion.
To my mind, considering the combined effect of all of the matters that I have discussed, the aggregate head sentence and the aggregate non-parole period are inadequate to reflect the concatenation of objective and subjective features in this matter. On reflection, I respectfully consider that that inadequacy is manifest. To express my opinion another way, I consider that the aggregate head sentence and aggregate non-parole period imposed at first instance were both unreasonable and plainly unjust. It follows that I consider that the first ground of the Crown appeal has been made out.
Discretion not to intervene
Turning to the discretion not to intervene, the Crown notified the respondent promptly that it would be appealing against the sentence to this Court. There was no delay in the appeal being brought on. The respondent is in custody in any event, and a successful Crown appeal would not lead to a person who was at liberty being abruptly imprisoned or re-imprisoned. There is no compelling subjective factor that has arisen since sentence that would favour non-intervention. And in any event, the disjunction between the sentence imposed and the sentence that should have been imposed is so pronounced as to argue inherently for intervention.
To my mind, the Crown has established that the discretion of this Court not to intervene should not be exercised. To express that more succinctly and comprehensibly, this Court should proceed to resentence.
Resentence
Since R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7, it has been established that, in a successful Crown appeal, the respondent cannot point to general anxiety or distress in support of a reduction of the sentence to be imposed on re-sentence. A respondent remains entitled to point to specific evidence of his or her individual emotional suffering for that purpose.
In considering the question of re-sentence, I have reflected upon the decisions of this Court to which I have referred above. I have also borne in mind, of course, the applicable maximum penalties, and the fact that the respondent is not to be sentenced for the aggravated version of the three substantive offences.
A number of aspects of the approach of the sentencing judge were not the subject of dispute before us, and should be replicated on re-sentence.
First, an identical backdate should be granted.
Secondly, the utilitarian discount of 25% should be maintained.
Thirdly, an aggregate sentence should be imposed.
Fourthly, the ratio of two-thirds between the aggregate non-parole period and the aggregate head sentence should be maintained.
Fifthly, the indicative sentences provided for the related offences (three months for possessing a prohibited drug, three months for unlawfully possessing property, and six months for supplying a prohibited drug) should not be altered.
Affidavits were read by senior counsel for the respondent, against the contingency of resentence. They show that there have been the following developments since the imposition of sentence in June 2015.
The respondent has achieved a medium security classification. A back injury that he suffered as a result of the collision has presented difficulties in custody. He has been anxious and depressed. He was "gutted" to learn of the Crown appeal. The respondent now has no contact with his son, or with his daughter who is now aged six. He hopes to be able to help his son deal with his disabilities upon his release. In light of all that has happened, the respondent has made a firm commitment to abstain from prohibited drugs. Finally, the respondent has deposed that he will "never get past the blame" for what he has done.
I have taken that material into account in the indicative sentences and aggregate sentences that I propose.
To my mind, the starting point of the head sentence for each offence occasioning death (before the application of the discount of 25%) should be imprisonment for seven years. I am well aware that that starting point is beginning to approach the maximum penalty of 10 years; I do not regard that as inappropriate in the objective and subjective circumstances of this case. Applying the utilitarian discount of 25%, for each of the offences of dangerous driving occasioning death to Mr Hayden and Mrs Hayden, I would indicate a head sentence of imprisonment for five years and three months.
For the offence occasioning grievous bodily harm to the son of the respondent, I consider that a starting point before reduction of a head sentence of imprisonment for six years is appropriate. Again, I say that well aware that that starting point is close to the maximum penalty of seven years; for reasons given earlier in this judgment, I consider that to be appropriate. Applying the discount of 25% to that starting point, I would indicate for the offence of dangerous driving occasioning grievous bodily harm to the son of the respondent a head sentence of four years and six months.
Applying the principle of totality to the six indicative sentences, I consider that there should be an aggregate head sentence of imprisonment for eight years and six months. Maintaining the ratio of two-thirds between the aggregate non-parole period and aggregate head sentence, that would lead to a non-parole period of five years and eight months. That constitutes an extension of the current aggregated non-parole period of the respondent by one year and eight months.
Quite apart from the process of step-by-step analysis above that leads to the non-parole period that I propose, I consider that any lesser non-parole period would not properly reflect the minimum period of imprisonment that the respondent should serve as a result of his offences.
Finally, it can be seen that his Honour imposed a disqualification period of five years upon the respondent. The remarks on sentence are unclear as to the precise commencement date of that period of disqualification. If it was the date upon which the respondent came into custody, that would have seemingly meant that the respondent would have been disqualified whilst at liberty for a period of only one year (assuming that he was to be released at the end of the aggregate non-parole period imposed at first instance).
Section 206A of the Road Transport Act 2013 (NSW) (as it was at the date of sentence, and as it remains today), however, would have the effect of ensuring that the period of disqualification would not commence until the date upon which the respondent is released from custody. Certainly, no lesser effective period of disqualification should be countenanced.
On the understanding that the disqualification period will not commence until whichever day the respondent is released to parole, or upon the expiry of the entirety of his head sentence, I am content not to interfere with the disqualification period of five years. For abundant caution, I propose that the period of disqualification imposed be quashed and clarified by a new order.
Proposed orders
I propose the following orders:
1. The Crown appeal is allowed.
2. The aggregate sentence imposed on 5 June 2015 is quashed.
3. The respondent, Jeremy Paul Price, is sentenced to an aggregate head sentence of imprisonment of 8 years and 6 months to date from 15 November 2014 and expire on 14 May 2023, with a non-parole period of 5 years and 8 months to expire on 14 July 2020.
4. The period of disqualification imposed on 5 June 2015 is quashed.
5. The respondent is subject to a period of disqualification from driving of five years. Pursuant to s 206A of the Road Transport Act 2013 (NSW), that period of disqualification commences upon the first date upon which the respondent is released from custody.
6. The earliest possible date upon which the respondent may be released to parole is 14 July 2020.
FAGAN J: I agree with Button J.
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Decision last updated: 08 April 2016