Conclusions
32 As Hall J notes, applying R v Simpson (2001) 53 NSWLR 704 - see [116] below - the identification of error on the part of the sentencing judge is a necessary, but not sufficient, condition for quashing the sentence and passing some other sentence in substitution therefor. To take that step, the Court must be satisfied that some other sentence "is warranted in law". (Various of the cases in which that principle has been considered are discussed by Johnson J in Douar v Regina [2005] NSWCCA 455 at [80]-[123], in addressing whether it was open to the Court to receive evidence of post-sentence conduct.)
33 Taking into account these various factors, and the additional matters discussed by Hall J, and in particular the views expressed in Regina v McMillan [2005] NSWCCA 28, I accept that, subject to one qualification, and prior to any reduction for the plea of guilty, a sentence of between six and seven years imprisonment would have been justified.
34 The qualification flows from the difficulty of knowing what weight should properly have been given to the subjective circumstances of the case. There being material before the Court which was highly supportive of the applicant and which was not given proper weight by the sentencing judge, the proper course is to give that material significant weight, even though that course may be unduly beneficial to the applicant. Nevertheless, against that material must be weighed the history of prior conduct noted by Hall J, including the repeated use of drugs in combination with use of a motor vehicle. In the circumstances, it is appropriate to impose a sentence in the lower half of the proposed range, that is between six years and six and a half years.
35 When such a sentence is reduced by 20%, reflecting the trial judge's estimate of the utilitarian value of the guilty plea, it will be seen that no significant variation is required to the sentence of five years imposed in the District Court. Had the sentencing judge maintained the statutory relationship between the minimum term and the full sentence period, a non-parole period of three years nine months would have eventuated.
36 Again, despite his concerns as to the prospects of rehabilitation, his Honour found special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act and imposed a non-parole period which constituted 50% of the sentence, or, in the statutory terms, specified a balance of the term of the sentence which was 100% of the non-parole period. That result is not easy to reconcile with his Honour's expressed lack of confidence in the prospects of rehabilitation. Nevertheless, being favourable to the applicant, the conclusion should stand.
37 Because, as demonstrated by Hall J, the applicant established errors in approach on the part of the sentencing judge, it is appropriate to grant leave to appeal. However, not being satisfied that any lesser sentence than that imposed by the sentencing judge is warranted, the appeal should be dismissed.
38 HOWIE J: I have had the benefit of reading both the judgments of the other members of the Court in draft. I agree with the orders proposed by Hall J for the reasons given by him. I also agree with the judgment of Basten JA and wish to make a very brief comment about the matters referred to by the Presiding Judge.
39 It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section's demands.
40 There is now another unnecessary complication fully identified as arising from the introduction of the section that will plague sentencing judges and this Court: not only must the sentencing court not take into account as an aggravating feature an element of the offence, it also must not take into account as an aggravating feature an inherent characteristic of the class of offence of which the offence before the court is an example. Yet this must be so in order to avoid either real or apparent double counting of aggravating features. As Basten JA points out, this matter was referred to in R v Way (2004) 60 NSWLR 168 at [172], it was identified in R v McMIllan [2005] NSWCCA 28 at [38] and it was considered in R v Ancuta [2005] NSWCCA 275 at [11]. The fact that there is an apparent inconsistency in approach between the view taken in McMillan and that taken in Ancuta in relation to dangerous driving under the influence of alcohol shows how difficult it is to determine whether it is permissible to take into account the aggravating factor that "the offence was committed without regard for public safety" in any particular case.
41 However, a similar problem arises with other factors of aggravation set out in the section. It has been identified in cases of child sexual assault in relation to the aggravating factor that the victim was vulnerable: see R v JBD [2005] NSWCCA 102 but cf R v Pearson [2005] NSWCCA 116. The vulnerability of the child may or may not be an aggravating factor under the section depending upon the age of the child and the nature of the offence. This is because it is an inherent characteristic of the class of child sexual assault offences that the child is vulnerable.
42 Another example of the same issue arose in relation to armed robbery offences and the aggravating factor that "the injury…..was substantial": see R v Youkhana [2004] NSWCCA 412 but cf R v Solomon [2005] NSWCCA 158. Because the court always takes into account in armed robbery offences that the victim will be traumatised, there must be some harm proved that is more severe than that which is usually presumed to arise in the commission of such an offence before the aggravating factor could be applied. It is an inherent characteristic of the offence of armed robbery that the harm to the victim will be substantial.
43 So in relation to offences of aggravated dangerous driving causing grievous bodily harm or death, it will almost inevitably be the case that it is an inherent characteristic of the class of offence that it is committed without regard for public safety. And this will be so whether the lack of regard is viewed on an objective or subjective basis. Yet the prohibition against taking that aggravating factor into account is not universal because, in a particular case the lack of regard for public safety may be so egregious that it transcends that which would be regarded as an inherent characteristic of the offence.
44 In the present case there was simply no evidence upon which the sentencing judge could find that the lack of regard for public safety that is inherent in the offence of driving while under the influence of a drug was greater than that which would generally apply to that class of offence and, therefore, he was in error in finding that this instance of the offence was aggravated by that factor.
45 It should also be borne in mind that when sentencing for offences of aggravated dangerous driving it will almost inevitably be the case that the offender will have "abandoned responsibility" as that expression is used in R v Jurisic (1998) 45 NSWLR 209 or will have displayed "high moral culpability" as that expression is used in R v Whyte (2002) 55 NSWLR 252. The fact that the aggravating element of the offence is present will generally be sufficient to show that the offender's culpability has reached at least that degree. There is in my view simply no point in seeking to apply the guideline in Whyte in order to determine that question when the offence is an aggravated one by reason of the elements of the offence charged. There is a real risk that, in trying to apply the guideline judgment to decide that question, the court will double count an aggravating factor in the guideline which is an element of the aggravated offence. The judgment in Whyte recognises that the increased sentence for the aggravated offence will generally reflect the increased moral culpability inherent in the aggravated form of the offence.
46 HALL J: This is an application for leave to appeal by Travis James Elyard in respect of a sentence imposed upon him by the District Court of New South Wales at Campbelltown (his Honour, Judge B. Maguire) on 2 May 2005.
47 On 23 February 2005, the applicant entered a plea of guilty to the charge of aggravated dangerous driving occasioning grievous bodily harm pursuant to s.52A(4) of the Crimes Act 1900.
48 On 2 May 2005, the applicant was sentenced to a term of imprisonment with a non-parole period of two years and six months and a balance of term of two years and six months.
49 The application for leave to appeal dated 27 September 2005 and filed on 29 September 2005 is brought pursuant to s.5(1)(c) of the Criminal Appeal Act 1912.
50 The applicant relies upon eight grounds of appeal which I will consider later in this judgment.
51 The relevant factual circumstances are as follows. The applicant was born on 19 November 1979 and is presently 26 years of age. On 6 February 2004 at approximately 7.40 pm, he was driving his Mitsubishi van along the Hume Highway at Liverpool. The vehicle proceeded through the intersection of the Hume Highway and Moore Street against a red light at that intersection and collided with a pedestrian, Mrs. Mirka Subotic, who was crossing a marked pedestrian crossing in accordance with a green pedestrian light. Mrs. Subotic suffered significant injuries which required hospitalisation, emergency surgery and treatment which I will refer to in due course. She has been left with ongoing disabilities in consequence of them.
52 The collision occurred on a Friday evening at the above stated time when it is reasonable to assume that there was a considerable volume of traffic using the highway. Prior to the accident, he had driven from his home in Campbelltown to a friend's house at Mt. Pritchard. The accident occurred on the return trip, after driving for approximately 15 minutes, at the abovementioned time of 7.40 pm. In a statement provided by the applicant dated 18 April 2004, he falsely claimed that he had the green traffic light operating in his favour and inferred that the pedestrian simply stepped in front of his van causing the collision.
53 The evidence before the sentencing judge included a certificate of Judith Perl, a clinical forensic pharmacologist with the New South Wales Police Service, Clinical Forensic Medicine Unit. In her certificate dated 31 March 2004, she records observations of attending police at the accident scene about which there was no controversy. The following description appears:-
"… when spoken to by Police at the scene it was noted that ELYARD appeared to have slurred speech, he appeared pale, indifferent, relaxed, sedated, unable to follow instructions, he appeared unaware of events occurring around him, he appeared to be sleepy, his eyelids were drooping, his eyes were glazed, his pupils appeared pinpoint, his speech was slurred and slow and his movements were sluggish. He generally appeared to be well affected by some substance.
He admitted having taken some Valium and Serapax and using some cannabis earlier that day."
54 A blood sample was taken from the applicant at 9.10 pm on the day of the accident. It was found to have present morphine (total) 0.36 milligrams per litre, codeine (total) 0.03 milligrams per litre, diazepam 0.5 milligrams per litre, nordiazepam 0.4 milligrams per litre, oxazepam 0.4 milligrams per litre, temazepam 0.1 milligram per litre, clonazepam 0.01 milligrams per litre, delta-9-THC less than 0.005 milligrams per litre and delta-9-THC acid 0.035 milligrams per litre. His urine sample also indicated the presence of acetylcodeine, monoacetylmorphine, imipramine and methadone.
55 Dr. Perl in her report stated, by way of conclusion:-
"Based on my specialised knowledge and relying on the above information, I am of the opinion that at the time of driving ELYARD was under the influence of morphine (heroin), diazepam and oxazepam to the extent that his driving ability would have been significantly impaired. In addition, it is possible that methadone may have also been a contributory factor in the impairment."
56 It is apparent from the evidence of Dr. Perl that the abovementioned police observations as to the applicant's condition following the accident are consistent with the combined effects of central nervous system depressants as detected in the applicant's blood sample.