R v Smith

R v Smith - [2010] NSWDC 202 - NSWDC 2010 case summary — Zoe

[11]

4 There is a statement of agreed facts tendered. In summary it asserts that a co-offender, a juvenile who I will refer to as JK stole a motor vehicle from an address at Lakemba Street, Belmore. The vehicle in question was a silver Ford sedan, "a Silver Service taxi cab" registered number T1189. The juvenile drove the stolen car to where the prisoner was apparently either waiting, or expecting to be picked up, and the prisoner got into the cab and then the juvenile drove to pick up another co-offender who as I understand was a juvenile female, who I shall refer to as RB, she too got into the taxi cab. Within the next twenty minutes or so the prisoner took over the driving of the vehicle. At about 1.10am he was seen to be driving the taxi in an easterly direction along Punchbowl Road, Wiley Park. RB who was the girlfriend of the prisoner was seated in the rear near-side passenger seat and JK was in the front passenger seat. A witness, Mr Saline, was driving along Canterbury Road and observed the taxi, driven by the prisoner in his rear vision mirror. At that point the vehicle was about ten car lengths behind him and the taxi was approximately 3.4 kilometres from where the collision occurred. Near the intersection of Myall Street and Punchbowl Road, which is approximately 1.7 kilometres, or just over a mile from where the collision occurred, the witness Saline drove past another motor vehicle which was stopped on the side of the road, he looked into his rear vision mirror and saw the sedan pull onto the road and then saw the taxi that was driven by the prisoner, swerve out onto the wrong side of the road to avoid a collision with the sedan. The prisoner continued to drive the taxi behind Mr Saline and as Mr Saline noticed that the taxi was getting closer to him, he sped up to about 75 kilometres per hour to get some distance between his car and the taxi. He was obviously concerned about the driving of the taxi. Past the lights of the intersection of Acacia Avenue and Punchbowl Road, approximately one kilometre from where the collision occurred, Mr Saline saw the taxi behind him, the taxi drove up, as it is described in the facts, "fast", behind Mr Saline's vehicle then swerved past his vehicle overtaking him. At this point Mr Saline described the taxi as travelling "really fast", when it overtook his vehicle.

[21]

14 A Probation and Parole Service report has been prepared and it would seem that it is somewhat less than flattering. The report sets out the background of the prisoner which I will deal with shortly when I refer to the psychologist's report, it notes the prisoner's upbringing in New Zealand, a previous pre-sentence report in 2008 that indicated that the prisoner was described as "immature and spoilt" and some friction between he and members of his family, although there are a number of members of his family that support him. That support is evidenced in references written for the prisoner. The prisoner would appear to have not had a permanent place of abode, living with family members, other than his immediate family from time to time. He left school at year 11, at the age of seventeen, he undertook some courses and has had some sporadic employment but the report from the Probation and Parole Service says that he was not in receipt of Centrelink payments for the last twelve months of unemployment because he could not establish his identify with Centrelink. He asserted that his lack of income "induced him to turn to crime". It is very difficult to see what financial advantage could have been a wrought for the prisoner by his driving of a stolen taxi cab. Certainly the claim of "turning to crime" through lack of income does not explain the manner of his driving for which I am concerned. The prisoner has claimed to the Probation and Parole Service that he has had a number of mental health issues. But a report in January 2009 stated that the prisoner is not mentally ill, within the terms of Chapter 3 of the Mental Health Act 2007. That same report further reported, however, that the prisoner required follow up and ongoing community management. The prisoner whilst he was at large was referred to the Mental Health Service for a follow up on 10 January but he failed to present himself. During the current period of custody he was prescribed some antipsychotic medication which is referred to in the psychologist's report. He was also prescribed methadone, but is no longer, I am told according to the Probation and Parole Service, receiving any of the antipsychotic medication. He claims use of cannabis at the age of 17 and he has used both crystal methylamphetamine and cocaine on one occasion. The prisoner was placed on a Methadone program, apparently in about June 2010. He is recorded in the Justice Health notes as having claimed use of the drug Bupremorphine, that being the only opiate drug of dependence that he said he has used. But to the reporter he denied the use of that drug. There is a note on his medical file referring to "previous heroin use". The prisoner does not believe he has a problem with his attitude. He told the Probation and Parole Service that he took over the driving of the vehicle because he was concerned with the co-offender's erratic driving. He claimed that at the time that the collision occurred that he just wanted to go home and he burnt his jacket because he was "really scared", having seen footage of the incident on television. He asserted to the Probation and Parole officer that he was "very, very regretful" and had nightmares about the collision.

[26]

19 That having been said, I note from the report that the prisoner was born on the North Island of New Zealand and Mr Watson-Munro describes him as a person of "mixed decent with his parents being from the Samoan and Cook Islands". He has got a younger brother and two younger sisters and he has the parents who are relatively young, forty and thirty-nine years of age. This report claims that "all family members are supportive of him" which is at odds with the report from the Probation and Parole Service. The family migrated to Australia in November 2006, so the report claims. The prisoner's education was somewhat disrupted, it is claimed because of his mother's employment in the New Zealand Army. He spent most of his primary school years in Wellington and Wainui. The report claims in contradiction of the previous paragraph that the family relocated to Sydney with him when he was eight years of age. On my calculation that would be around about the year 2000. The prisoner claimed to Mr Watson-Munro that in Australia he was bullied at Lakemba Public School and was sent back to New Zealand where he remained until he was sixteen years of age. Upon his return to Australia he went to Belmore Boy's High, half way through year 11 and claimed that he was bullied again, and claimed that he was bashed by Lebanese and Fijian students. I have no means of knowing whether that be true or not. In any event it seems to have very little, if anything to do with the circumstances with which I am concerned. Mr Watson-Munro reports that the prisoner worked at Pizza Hut and that work ceased after five months, again because of claimed "continuing problems with ethnic groups". The prisoner is said to have an ambition to be a diesel mechanic, but this never eventuated and again asserts his difficulties from "hanging out with the wrong people". He says in this context he was introduced to cannabis and that led to the charges of drug possession and supply to which I have referred. The formulation of Mr Watson-Munro really turns upon matters relating to emotional distress arising from his formative childhood years and depression and anxiety and low self-esteem arising out of separation from his family and episodes of bullying and the like. There are some dysfunctional relationships that are referred to in the report.

[56]

49 One important matter, the subject of considerable discussion, was the discount to be given for the utilitarian value of the plea of guilty. I was given some details from the bar table which I am prepared to accept and as I understand the matter, whilst this matter could have been dealt with through the conferencing system, the application by the prisoner pursuant to s 91 Criminal Procedure Act for witnesses or a witness to be called to give evidence, meant that there was no case conferencing. As I understood the submissions made, and I have no transcript of the submissions, the provisions in ss 16 and 17 Trial Case Conferencing Act did not apply. However, I am informed that the prisoner did plead guilty and was committed for sentence at the Local Court before any requirement was made by the Local Court for witnesses to actually attend. The chronology is not entirely clear, but my understanding was that on the day the s 91 application was to be heard, indication of a plea of guilty was given, or a plea of guilty was given. It was argued on behalf of the prisoner that the situation thus was not much different from what might have happened had the matter gone through case conferencing. The prisoner pleaded guilty during case conferencing and thus was entitled to the relevant discount of twenty-five percent under the relevant legislation. This is very much a case where the 'common law' principles in Thomson and Houlton come into contact, and overlap with, the case conferencing legislation. On the other hand the prisoner was not cooperative in the investigation and it is quite clear in relation to each of the three offences with which I am concerned, he was challenging the allegation of 'driver' up to a point when he pleaded guilty or indicated a wish to plead guilty. The Crown was put to the expense, if that be the correct word, of DNA testing to which I have referred, of obtaining expert reports in relation to matters that might otherwise have been self evident from the circumstances of the collision. I have had close regard to the guideline judgement of Thomson and Houlton, so far as it applies. I have had very much assistance from the submissions, but ultimately I could not afford the prisoner a discount of twenty-five percent given what was outlined even by his counsel. There was of course some delay in the matter coming to the District Court and the Crown pointed to certain time frames which must be accommodated for conferencing purposes. The fact that the matter was listed for s 91 application shows, at least at one point, a determination to at least explore the strength of the Crown case, in circumstances where, as we now know by his plea, the Crown case was overwhelming. I am of the view I should afford the prisoner a discount of twenty-two and a half percent, upon the otherwise appropriate sentence, in accordance with the discretion available to me under Thomson and Houlton. It is a marginal discount from that advanced by his counsel, but the full discount could not in my view properly be given.

[57]

50 Many of the submissions that have been made by the Crown and the defence which I generally referred to I have dealt with in the course of my analysis of legal issues and other matters. Clearly I am required to give a separate sentence as I have said for the matter on the s 166 certificate. The guideline judgement I have had close regard to but this case in all respects could be seen as a more serious case, clearly so than that contemplated by the guideline as a typical case and it has present in it, not only the aggravations spoken of in Whyte to a significant degree. But it has the aggravation, particularly under s.21A(2) to which I have referred, and the serious situation of a man, although young, driving a stolen motor vehicle when he had no right to be on the road at all and had nothing like the relevant qualifications one would expect as a bare minimum to control a motor vehicle. I have taken into account the circumstances of his custody. I am mindful of his youth as has been repeatedly pointed out by his counsel. I am mindful however also of observations that are made for example in TG about the fact that these cases frequently involve young people and the need for general deterrence is equally applicable in cases of this type where young drivers are involved, particularly where their actions are as calculated as occurred on this particular occasion. I have also had regard I, hasten to say, to the outcomes of the various cases to which I was referred so far as principles were concerned for some guidance as to appropriate sentences. I am mindful of course in TG that the total sentence imposed upon that offender, which was four years imprisonment as I understood it, for a case involving the deaths of four young people. Obviously it might be fairly said that causing four deaths as opposed to one death and one grievous bodily harm is assessed as objectively more serious. But the circumstances of that offence and particularly the conduct of the offender were nowhere near as egregious as the conduct of this prisoner. Of course, that young offender could be fairly said to have driven in a manner dangerous arising out of inexperience, not wilfully exercised. That young driver had a much clearer record than this offender and that young driver of course was in close friendship with the deceased persons. TG was licensed. Although I also point out in TG that whilst the appeal was unsuccessful on the part of the appellant the sentence was regarded by the court as being extremely lenient. In any event, every case has to be decided on its own facts and finding comfort from another case is very difficult where so many circumstances are varied and certainly that is the case here.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (63 paragraphs)

Parties

Cases Cited (17)