R v Tuhakaraina

The Facts of the Crime

1. The sentence proceedings commenced before her Honour on 24 September 2015. The Crown tendered a statement of facts, the accuracy of which was not disputed by the respondent. The following account is drawn from that evidence.
2. On the day of the offence, Monday 25 August 2014, the respondent was the driver of a Mitsubishi Lancer, which he had driven to work. During his lunch break, between 11am and 12pm, the respondent drank five 375ml stubbies of full strength beer.
3. Later, at about 2.30 in the afternoon, the respondent drove to a nearby hotel where he parked his car. He went into the hotel and remained there between about 2.30 and 3.15, consuming four schooners of full strength beer in that time.
4. On leaving the hotel the respondent returned to his car and drove off. His departure in the car was captured by the hotel's closed circuit surveillance system.
5. The respondent drove onto The River Road at Revesby, and turned west into Marco Avenue at about 3.25pm. There is a railway station on this street, and the speed limit is posted at forty kilometres per hour. There are four pedestrian crossings on the section of roadway traversed by the respondent. The respondent next turned into Polo Street and thence Bransgrove Road at Revesby, both residential streets.
6. The respondent commenced a right turn from Bransgrove Road into Simmons Street at Revesby. In executing the turn, he failed to give way to an oncoming motorcyclist and collided with the bike. The rider of the bike, Jeffery Woods, was injured when his right leg was caught between the bike and the respondent's car, and crushed. Mr Woods was further injured when the bike thereafter fell to the left and slid along the roadway, with his left leg between the road surface and the bike. After a short distance, Mr Woods and the bike separated with Mr Woods coming to a stop some distance from his bike.
7. The respondent parked his car in Simmons Street and got out of it. He remained standing by his car for some minutes before walking the short distance to his home. He did not stop to check on Mr Woods' condition, and did nothing to obtain assistance for him.
8. Having obtained the registration details for the respondent's car, investigating police went to his home where they found the respondent sitting outside. He acknowledged having been the driver of the car at the time of the collision, and returned to the crash site with them.
9. The officers observed the respondent to be unsteady on his feet, and his movements exaggerated and slow. His eyes were glazed and he smelt strongly of alcohol. A roadside breath test for alcohol was positive, and the respondent was thereupon taken to hospital where blood and urine samples were obtained from him.
10. Some days later the respondent attended a police station voluntarily to be interviewed about the crash. He gave police an account of the drive preceding the crash which was not consistent with surveillance footage or witness accounts. He acknowledged having been drinking prior to the collision, and conceded that an account that he had given to police at the scene of having consumed alcohol after the crash was not true.
11. Dr Judith Perl, a Forensic Pharmacologist, provided an opinion that at the time of the crash the respondent would have had a blood alcohol concentration within a range of 0.187 grams of alcohol per 100 millilitres of blood and 0.207 grams of alcohol per 100 millilitres of blood, with the most likely reading being 0.194 grams of alcohol per 100 millilitres of blood. Even at the lowest end of that range, the respondent's ability to drive would have been very substantially impaired.
12. After the collision, Mr Woods was taken by ambulance to hospital, where he was treated for a number of injuries, including fractures to his right leg at the hip joint, just above the knee, and to the lower leg; a dislocated right ankle; a fractured left kneecap; a significant laceration to the right ankle; and ligament damage. He underwent a number of surgical procedures to repair the fractures, including the insertion of pins, plates, and screws; a skin graft was required to repair the ankle laceration. Although the ultimate efficacy of those various procedures was not fully determined at the time when sentence was imposed, it is likely that Mr Woods will suffer lifelong functional impairment, as well as ongoing chronic pain and stiffness in his ankle.
13. Prior to the collision in which Mr Woods was injured the respondent had travelled about 1.5 kilometres, through areas with high pedestrian traffic, and at a time of day when many people, including children making their way home from school, could be expected to be on the streets.

Other Evidence in the Crown Case on Sentence

1. In a victim impact statement read to and received by the sentencing judge pursuant to s 28 of the Crimes (Sentencing Procedure) Act, Mr Woods described the terrible impact that the crash had had on his health and life. He referred to months spent in great pain, with ongoing pain, restricted movement, and a lack of independence. Mr Woods' capacity to earn an income was adversely effected, as was his quality of life. His life changed dramatically as a consequence of the crash.
2. The sentencing judge was additionally provided with the respondent's traffic and criminal antecedents. The respondent had no prior criminal convictions but he had a number of traffic entries recorded against him. The respondent was first licenced in New South Wales in 1999. He had a brief fine default suspension in 1999, and a demerit point suspension for three months in 2009- 2010. The demerit points had accrued for infringements including a number of speeding offences and disobeying a traffic sign.
3. A pre-sentence report provided information as to the respondent's personal circumstances and history. The respondent was born in New Zealand and was aged 49 years old at the time of sentence. He was one of eight children to loving and supportive parents.
4. The applicant is married to his wife of twenty-six years and the couple have a (now adult) son. The family moved to Australia in 1999 where the respondent gained employment as a scaffolder, an occupation he has pursued since he was a young man. At the time of the sentence proceedings the respondent was working on a casual basis five or six days each week.
5. At about age twenty the respondent began drinking alcohol to excess, binge drinking, initially in the context of sporting activities. This became a weekly event. The respondent told the author of the pre-sentence report that, since the crash, he had engaged in psychological and alcohol rehabilitation counselling in an attempt to address his problematic drinking. He also completed the Traffic Offenders Programme.
6. The respondent expressed remorse for his offending behaviour to the author of the pre-sentence report.

The Subjective Case

1. The respondent both gave and adduced evidence to the sentencing judge on 24 September 2015.
2. In his evidence the respondent said that he was first licenced to drive at about the age of twenty years, and had been licensed in both New Zealand and Australia.
3. Following the collision he said that he got out of his car and checked on Mr Woods, before returning to his car and parking it in Simmons Street. He said that after waiting for a period at his car, he walked home as he needed to use a bathroom. He said that he made no attempt to contact police or an ambulance as he believed that emergency services had already been summonsed.
4. The respondent told the sentencing judge that he had consulted two psychologists following the crash, and had undertaken both the Positive Lifestyle Programme and the Traffic Offenders Programme. He said that, whilst his alcohol consumption had slowed a bit, he had been going through hard times. He apologised for what he had done and the harm caused to Mr Woods and said that he thought about the crash every day.
5. He referred to medical conditions from which he suffered, including asthma and gout, and to his wife's heart condition.
6. A letter written by the respondent was also tendered to the sentencing court, in which the respondent expressed his shame at his actions, apologised to Mr Woods, and evinced an intention never again to drink and drive.
7. In cross-examination the respondent conceded having a problem with alcohol, and acknowledged that he continued to consume alcohol as it helped him cope with stress.
8. The respondent's wife, Arahana Mihinui, also gave evidence before the sentencing judge and provided a letter she had written in support of him. Somewhat in contrast to the respondent's evidence, she deposed that her husband's drinking had dropped so dramatically since the crash that he didn't drink much at all. She confirmed his history of asthma and gout.
9. As to her own health, Ms Mihinui deposed that she had an erratic heart beat and had previously experienced seizures during which she collapsed and lost consciousness. She was treated in New Zealand for her condition and, ultimately, was fitted with a defibrillator (in 2012) to monitor and regulate her heart rate, and to administer an electric shock or shocks during seizures. The seizures occurred without warning, there having been four such attacks following the implantation of the defibrillator. She deposed that she had been told her condition was life threatening.
10. Ms Mihinui said that the respondent had always been present on the occasions when she had experienced a seizure and been able to call an ambulance for her. She was frightened by the prospect of a seizure occurring when he was not present. She acknowledged in cross-examination that she had other family living in Sydney.
11. Confirming the evidence concerning Ms Mihinui's medical condition was a report from her treating cardiologist, Associate Professor Michael Kilborn, in which her situation was described as, "[…] completely life threatening and involv[ing] recurrent ventricular tachycardia causing effective cardiac arrest and blackouts."
12. The report, tendered on 27 November 2014 continued, "These episodes are very serious. They may cause blackouts and need for hospital treatment. The specific risks if she has an episode are death, collapse, and injury from falling. When she is having an episode she is completely helpless and having someone to help her substantially reduces the risk of such an episode being of lasting consequence or even fatal."
13. The episodes were noted to occur unpredictably, and could be precipitated by stress.
14. Reports from psychologists Neil Balladie and Carolyn Mutch were tendered by the respondent.
15. Mr Balladie began treating the respondent in November 2014 following a referral from his general practitioner. The respondent completed a self-report designed to measure the severity of symptoms common to stress, depression, and anxiety, with Mr Balladie concluding that he was highly stressed and depressed. He opined that the respondent's depressive condition probably existed prior to the crash, but the circumstances surrounding the crash and the subsequent criminal proceedings had worsened it.
16. The respondent acknowledged to Mr Balladie that he used alcohol to excess to cope with stress, and understood that his drinking was problematic. He expressed considerable remorse for his actions and the consequences.
17. Mr Balladie concluded that the respondent was an intelligent and insightful individual, who had resorted to alcohol to help him deal with depression and stress, but who had the capacity to rehabilitate himself. He expressed concern at the potentially damaging effect of a custodial sentence.
18. Ms Mutch, a psychologist and drug and alcohol counsellor at a community health service, confirmed in a short report of September 2015 that she had provided counselling to the respondent, at his initiative, since April 2015. She outlined the nature of the counselling provided and reported the respondent's stated aim of achieving alcohol abstention.

The Remarks of the Sentencing Judge

1. In her remarks the sentencing judge set out the facts of the respondent's crime, which she referred to as agreed facts. Despite that characterisation of them, her Honour accepted the evidence given by the respondent - contrary to the facts - that he had gone immediately to check on Mr Woods following the crash. Her Honour concluded that this ameliorated conduct which would otherwise indicate a disregard for the motorcyclist's welfare.
2. The sentencing judge set out in detail the injuries to Mr Woods and the terrible ongoing consequence of those injuries.
3. Referring to the opinion as to the respondent's impairment provided by Dr Perl, the sentencing judge concluded that his blood alcohol content at the time of the crash represented, at 0.187 millilitres of alcohol per litre of blood, a significant increment on the threshold for the offence of 0.15.
4. She noted that, although the respondent had travelled only a short distance, being about 1.4 kilometres, he had nevertheless posed a danger to others since, at 3.30 in the afternoon on residential streets, there were likely to be people about. That danger manifested in the crash in which Mr Woods was grievously injured. Her Honour described the offence as "serious", and the respondent's moral culpability as "high".
5. She indicated an intention to allow the respondent a discount of 25% on the sentence that would have otherwise been imposed to reflect the respondent's early plea of guilty to the charge.
6. The sentencing judge set out in detail the respondent's personal circumstances and, referring to the report from Mr Balladie, noted that the respondent now accepted that he had had a problem with alcohol at the time of the crash, excessive alcohol consumption being at least in part a mechanism to assist him to cope with the grief occasioned at his father's death in June 2014.
7. Her Honour regarded the counselling and courses the respondent had undertaken since the crash as being to his credit, and indicative of significant steps towards rehabilitation.
8. She accepted that the respondent was genuine in his expressions of shame and remorse.
9. Her Honour noted that the respondent had not driven since the crash. (Contrary to that statement, the respondent had continued to drive until the suspension of his driver's licence on 14 November 2014, and had incurred an infringement for negligent driving on 16 October 2014.)
10. The sentencing judge concluded that the respondent was at a low risk of re-offending.
11. Referring to the asthma and gout from which the respondent suffered, the sentencing judge noted that his ill health and depressive condition, whilst able to be managed in a custodial setting, would make any custodial sentence more onerous for the respondent than for persons without such conditions.
12. Her Honour then turned to the cardiac condition suffered by the respondent's wife, setting out in full detail the nature of the illness, its impact upon Ms Mihinui, and the desirability of her having her husband with her in the event of a seizure. Ultimately, the sentencing judge reduced the non-parole period to be imposed upon the respondent because of his wife's ill health.

The Crown's Submissions

1. As noted above at [16] the Crown appeals against the sentence on two grounds, being error in the manner in which the sentencing judge treated the medical condition suffered by the respondent's wife, and manifest inadequacy.
2. In relation to ground one, the Crown submits that, although Ms Mihinui's condition is not an exceptional circumstance as referred to in R v Edwards (1996) 90 A Crim R 510 at 516 ("Edwards"), and the sentencing judge concluded as much, this feature of the respondent's subjective case was nevertheless given undue weight, and influenced her Honour to reduce the non-parole period to an impermissible extent, such that it was incapable of adequately reflecting the gravity of the crime or fulfilling the purposes of sentencing.
3. The Crown's submissions in support of ground two rely to a significant extent on the arguments advanced in support of ground one. Conceding at the hearing of the matter before this Court that the Crown's real complaint was with the non-parole period rather than the head sentence, the Crown argued that a non-parole period of six months, being only 20% of the head sentence imposed, was inadequate to reflect the gravity of an offence involving a blood alcohol reading significantly above the threshold level, where significant and lasting injury had been inflicted.
4. The Crown contended that this was not a matter where the Court's residual discretion to decline to intervene to correct an erroneous sentence should be exercised, because of the need for strong denunciation for offences such as this, and where there has been no delay or other impropriety by the Crown concerning the matter.

The Respondent's Submissions

1. In relation to ground one the respondent acknowledged that the sentencing judge gave great weight to the issue of Ms Mihinui's medical condition, but contended that it was open to her Honour to make a finding of special circumstances on that and a number of other bases, and to reduce the non-parole period in the exercise of her discretion.
2. Attention was called to the absence of any obligatory ratio of non-parole period to head sentence following a finding of special circumstances, and to the "deeply entrenched sentencing practice" in the District Court of imposing "very significant variations to the statutory ratio" (respondent's written submissions at [31]).
3. With respect to ground two the respondent noted that, without the application of the discount on sentence of 25%, the head sentence was one of three years and four months, and such a sentence was broadly consistent with sentencing patterns established by the statistics for this offence held by the Judicial Commission of New South Wales.
4. The respondent argued that, even if error was found, the overall sentence imposed was not so inconsistent with community expectations as to warrant the intervention of this Court.
5. The respondent also drew attention to the close proximity of the date specified for the respondent to be released to parole, 26 May 2016, arguing that to increase his sentence at such a late stage was unfair to him.

Consideration

1. Since the arguments advanced by the Crown in support of ground two rely upon and reflect those in support of ground one, both grounds are here considered together. Given the Crown's concession that the head sentence imposed upon the respondent was, whilst lenient, within the range of the valid exercise of the sentencing discretion, the focus of the Crown's submissions before this Court was in support of ground one, and the asserted inadequacy of the non-parole period.
2. It is clear from both the transcript of the proceedings on sentence in the District Court and from the remarks of the sentencing judge that there was considerable focus on the medical condition suffered by the respondent's wife. It was there argued by the respondent that the dangerousness of Ms Mihinui's situation amounted to an exceptional circumstance such that a sentence other than full time imprisonment should be considered.
3. Having heard the evidence adduced by both parties on 24 September 2015, the sentencing judge suggested to the respondent's representative that, if it was proposed to rely upon Ms Mihinui's condition as a basis for the imposition of a community-based sentence, further evidence of it should be provided to the court. It was on the basis of her Honour's suggestion that an adjournment was sought to obtain a medical report.
4. After receiving the additional evidence (the report from Associate Professor Kilborn), her Honour imposed sentence, noting that, "I have been troubled by the tensions between the seriousness of Mr Tuhakaraina's offence and the consequences for his victim, and the risks associated with Ms Mihinui's medical condition."
5. Although her Honour went on to reject the respondent's contention that this feature of the case was an exceptional circumstance justifying a non-custodial sentence (correctly in my view), she appears to have concluded that it did amount to a special circumstance justifying a reduction in the non-parole period. Without referring to s 44(2) of the Crimes (Sentencing Procedure) Act, or using the phrase "special circumstances" which is found in that provision, the sentencing judge said, "I have come to the view that because of the seriousness of his offence Mr Tuhakaraina must spend some time in custody. However, I have taken into account his partner's condition to reduce the non-parole period from the statutory ratio."
6. The Crown accepted in submission to this Court that it was open to the sentencing judge to make a finding of special circumstances and a consequent adjustment to the usual statutory ratio of sentence, a concession which is properly made.
7. Whilst the need for transparency in sentence is such that it would have been preferable for her Honour to clearly articulate her finding of special circumstances and the reasons for it, it is plain that she did make such a finding. It is equally plain that there were features of the respondent's case, including his wife's medical condition, which provided a legitimate basis for that finding.
8. There was evidence before the sentencing judge which established that the respondent had a depressive condition which was inextricably intertwined with his alcoholism, and that he was in need of treatment, treatment which was best provided in a community setting. The fact that the respondent had already undertaken some counselling and other psychological treatment to address these disorders, with some positive result, provided a basis for concluding that special circumstances existed.
9. Additionally, a further basis for a finding of special circumstances is found in the sentencing judge's conclusion that the respondent's ill health and depressive disorder would make a sentence of imprisonment more burdensome on him than it would otherwise be.
10. Whilst these conclusions did not oblige her Honour to adjust the ratio of sentence, that being a discretionary matter, it entitled her to do so.
11. There is, however, nothing in her Honour's remarks to suggest that the finding of special circumstances that she must have made to adjust the ratio of sentence as she did was based on these features of the respondent's case. Rather, it is apparent that the decision to vary the ratio rested solely on considerations connected with Ms Mihinui's heart condition. Her Honour said as much in the extract set out at [79] above.
12. There is authority that supports a conclusion that the welfare of a third party, even not amounting to a circumstance of extreme hardship, can be taken into account by a sentencing judge as part of an offender's subjective case when fixing the sentence to be imposed upon an offender: R v Girard [2004] NSWCCA 170 at [21]; Dipangkear v R [2010] NSWCCA 156 at [41] where such an approach was referred to as "lenient"; Delaney v R [2013] NSWCCA 150 at [81].
13. It is important however that, where such a matter is taken into consideration, it is not allowed to take on such significance as to be treated as a case of the sort envisioned in Edwards, where it is the impact upon the third party of itself that justifies a reduction in the sentence that would otherwise be imposed.
14. In the present case, her Honour was entitled to have regard to the situation of the respondent's wife insofar as it was relevant to the respondent's subjective circumstances. There was evidence before the sentencing court (in the report of Mr Balladie) that the respondent's depression and anxiety had been exacerbated by his feelings of guilt and anxiety over the consequences to his wife of his likely incarceration. The exacerbation of those conditions led in turn to a greater need for treatment and rehabilitation, and to the likelihood that the respondent would experience a custodial sentence as more onerous than would otherwise have been the case, and more onerous than for prisoners without that added layer of anxiety.
15. This provided a proper basis for a finding of special circumstances and some appropriate reduction in the non-parole period pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act.
16. The real question here is whether, having made a finding of special circumstances that it was open to the court to make, her Honour erred in the extent to which she reduced the non-parole period, leading to a non-parole period that was incapable of performing the functions required by s 3A of the Crimes (Sentencing Procedure) Act, and of adequately reflecting the seriousness of the respondent's crime. In my view, her Honour did fall into error in varying the non-parole period to the very significant extent that she did.
17. Although it is neither necessary nor prudent to state any general rule or formula for the determination of a proper ratio of sentence once a finding of special circumstances has been made, that being a discretionary matter in any event, it should be very rare indeed for a non-parole period to comprise only twenty per cent of an overall sentence. It could only be in the most extraordinary circumstances that such a ratio of sentence could be justified. That is because, absent some highly exceptional feature, it is difficult to see how a non-parole period of twenty per cent of the head sentence could perform the manifold functions of sentence specified by s 3A of the Crimes (Sentencing Procedure) Act, including as they do punishment, denunciation, making an offender accountable, recognition of harm, and general deterrence.
18. Relying upon Judicial Commission statistics reported in 2002 and referred to in R v Fidow [2004] NSWCCA 172 ("Fidow") at [21], the respondent submitted that this Court should asses the non-parole period imposed in this instance by reference to a deeply entrenched pattern of sentencing in the District Court, where special circumstances were regularly found to exist, and non-parole periods were frequently reduced to an amount of less than fifty per cent of the head sentence.
19. It should be noted that Fidow made reference to now dated statistics and the apparent practice they reflected to decry that practice; this Court can hardly rely upon an erroneous and discredited practice to support what occurred in this case.
20. Whilst the extent of the reduction in the non-parole period allowed to an offender after a finding of special circumstances has been made is a matter within the discretion of the sentencing judge, the discretion will miscarry where the non-parole period fails to reflect the gravity of the offence, or where it fails to reflect the finding of special circumstances itself.
21. The health of the respondent's wife, whilst a consideration to be taken into account as part of the respondent's subjective case (since it had an adverse impact on the respondent's psychological health) was not something which could justify a departure of this magnitude from the statutory ratio of sentence. Some very modest adjustment would have been an appropriate reflection of it.
22. The respondent's crime was a very serious example of aggravated dangerous driving. A blood alcohol level of 0.187 millilitres per 100 grams is in excess of the threshold level of 0.15 to a considerable degree and, more significantly, it reflects a level of impairment in driving ability substantially greater than that which might accompany a lower reading. The respondent would have been well aware that he was not fit to drive, but drove nevertheless, and through suburban residential streets in the middle of the afternoon on a weekday, where the risk he posed to others was considerable.
23. The dangerousness of the respondent's conduct manifested in the terrible injuries inflicted on Mr Woods. Whilst it is true, as the respondent submitted, that more serious examples of grievous bodily harm are caught within s 52A of the Crimes Act, the injuries inflicted on the victim as a consequence of the respondent's conduct were very serious and will endure at some level throughout his life. A custodial sentence and non-parole period of some length was required to reflect that harm.
24. Whilst the head sentence might be regarded as a very lenient sentence, albeit one within the legitimate exercise of the sentencing discretion, such a crime warranted a considerably higher non-parole period than that which was in fact imposed. In my view, any reduction of the non-parole period lower than sixty per cent of the total, in the particular circumstances of this case, would result in a sentence that failed entirely to reflect the seriousness of the offence.
25. I accept the Crown's submission that the sentencing judge fell into error in giving such determinative weight to the health of the respondent's wife, and as a consequence of that error, reduced the non-parole period to such an extent that it was incapable of adequately addressing the magnitude of the respondent's crime, or meeting the requirements of sentencing more generally.
26. I would, subject to the exercise of residual discretion, uphold these grounds of appeal.

Should this Court Intervene to Re-sentence the Respondent?

1. Whilst the Crown has a right of appeal against sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the efficacy of that right has been limited to a degree by the principles that govern Crown appeals. As the High Court made clear in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1], the primary purpose of an appeal by the Crown is to lay down principles for the governance and guidance of the courts which have the duty of sentencing offenders. Appellate courts retain the discretion to decline to interfere with a sentence even where, as here, it is erroneously lenient.
2. In considering whether to exercise the discretion, relevant considerations include consistency in the application of sentencing principles so that sentences imposed by the courts for the same offences are broadly uniform within a legitimate range of sentence, and the maintenance of public confidence in the administration of criminal justice. Another consideration of some importance in the context of an offence of this nature is the need to give effect to the requirement for denunciation and general deterrence. The sentence imposed at first instance could do little to meet those requirements.
3. Each of those considerations would ordinarily militate in favour of intervention by this Court to resentence the respondent, and increase the non-parole period imposed upon him.
4. However, although the Crown's appeal was filed promptly and prosecuted quickly, and there has been no failure by the Crown in relation to this matter, the hearing of the appeal was considerably delayed because this Court did not give the appeal the necessary level of priority. That has had the consequence of leaving the respondent anxiously awaiting the resolution of his appeal for almost the whole of the non-parole period fixed upon him by the sentencing judge. To intervene at this late stage and resentence the respondent by tripling the non-parole period he is to serve - as I believe is necessary to achieve an adequate non-parole period - would work an unfairness on the respondent.
5. For that reason I would not intervene to resentence the respondent.
6. The orders I propose are: 1. The Crown appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2016