Reddy v R

Court of Criminal Appeal (NSW)|2018-03-12|Before: Bathurst CJ, Fullerton J, Campbell J

The NSW Court of Criminal Appeal allowed an appeal against sentence where the sentencing judge failed to account for time spent in voluntary residential drug and alcohol rehabilitation as 'quasi-custody'. The Court held that voluntary participation in restrictive residential rehabilitation programs can count as quasi-custody, and that sentencing judges may be required to consider this even if not specifically asked. The Court backdated the sentence by 4 months (50% of the 8-month rehabilitation period) and reduced the automatic licence disqualification from 3 years to 18 months to promote the offender's rehabilitation and reintegration.

Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2015/0024968 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 08 March 2017 Before: Frearson SC DCJ File Number(s): 2015/242968

Judgment

BATHURST CJ: I agree with Campbell J.
FULLERTON J: I agree with Campbell J.
CAMPBELL J: The applicant for leave to appeal was sentenced by his Honour Judge Frearson SC in the District Court at Goulburn on 8 March 2017 to a term of imprisonment having a non-parole period of 2 years commencing on the day of sentence, 8 March 2017 and expiring on 7 March 2019 with an additional term of 1 year and 5 months commencing on 8 March 2019 and expiring on 7 August 2020 for a single offence of aggravated dangerous driving occasioning grievous bodily harm occurring on 19 August 2015 contrary to s 52A(4) of the Crimes Act 1900 (NSW). The circumstance of aggravation was driving with a prescribed concentration of alcohol ("PCA"); on the facts, high range PCA.

Grounds of appeal

The applicant relies upon the following two grounds of appeal: 1. Ground 1: his Honour erred in failing to backdate the sentence to allow for a period of quasi-custody being the period spent in a residential rehabilitation program; and 2. Ground 2: the sentence is manifestly excessive.

Agreed facts

The applicant was sentenced upon agreed facts. It is unnecessary to set them out fully in this judgment. They may be re-stated briefly.
At about 1:31pm on Wednesday 19 August 2015, the applicant was driving his utility in a southerly direction on the Hume Highway towards Marulan while on a journey from Leppington to Canberra. At about 1 kilometre north of the George Street Highway interchange, the offender's vehicle collided with the rear end of the vehicle travelling directly ahead of him.
When the collision occurred the applicant's vehicle was travelling at a speed between 110 and 120 kilometres per hour. Both vehicles were extensively damaged and the driver of the other vehicle, Ms Judith Fowler, suffered really serious personal injury.
Ms Fowler's injuries included a fracture of the C2 vertebral body in her spinal column, high in her neck. There was some suggestion of instability in the fracture and a halo brace was applied to stabilise her neck. She also received four fractured ribs resulting in a right sided pneumothorax. Other injuries included a laceration of her scalp and extensive bruising to the left side of her body. Ms Fowler was conveyed by ambulance to Goulburn Hospital.
The accident occurred during daylight hours in moderate traffic. At the scene of the accident investigating police were approached by five witnesses who gave accounts of the applicant's manner of driving leading up to the collision. The complaints made by these witnesses included driving at an excessive speed, changing lanes without adequate care and leaving the carriageway to travel in the breakdown lane, emergency exits and exit lanes. One witness showed police dash-cam footage of the applicant's vehicle wandering in the lane and crossing fog lines. Nearby vehicles were shown to be taking evasive action.
A roadside breath test returned a reading of 0.290. Breath analysis at the police station upon the applicant's arrest returned a reading of 0.27 grams of alcohol per 100 litres of blood, nearly twice the 0.15 threshold for high range PCA. This reading was obtained about 1 hour and a half after the collision.
When spoken to by police at the police station, the offender was apparently emotionally labile, frequently losing his composure. However, he was able to tell police that he had consumed 1 litre of scotch between 7:00am on 18 August 2015 and 5:00am the following morning at a relative's home in Leppington. While still very heavily affected by alcohol he decided to embark on the return journey to Canberra to visit his children who were living with his wife from whom he had been separated.

Subjective circumstances

Apart from his problem with alcohol abuse, which so clearly contributed to this offending, the applicant presented a relatively strong, indeed compelling, subjective case. He was born on 29 March 1983 and was accordingly 32 years of age at the time of the offending and nearly 34 when sentenced. He was born in Fiji of Indian ethnicity and migrated to Australia in 1987 to undertake tertiary education. In Australia he completed a Bachelor's degree in Information Technology at Charles Sturt University and obtained a post-graduate certificate in the same field from the University of Canberra. According to the account he gave to Dr Robyn Goodwin, a psychologist, whose report of 13 October 2016 was admitted as Ex 7. The applicant worked part-time while a student to support himself. After graduation he worked full-time and apparently was well regarded by employers until his drinking problem overtook him. His employment was terminated twice due to alcohol related absenteeism. It is unclear whether he was ever successful in obtaining work in his chosen field.
He and his wife, from whom he has been separated since about the middle of 2015, have 2 children. Unfortunately, a son has been diagnosed with an autism spectrum disorder. The applicant and his wife had been attempting to reconcile around the time of the offending but since then she has refused to see him or to allow him to see their children.
Again apart from his drinking he was of prior good character having neither a previous criminal record nor any matters on his traffic record.
He gave evidence, which the sentencing judge accepted, expressing his sincere remorse, and of the efforts made to rehabilitate himself from his alcohol abuse. These steps included completing the Sober Driver Program at the Canberra Institute of Technology and more significantly his self-admission into two residential programs of rehabilitation for his alcohol abuse. The evidence before the sentencing judge consisted of 2 letters from a case worker with the Salvation Army's Bridge Program ("Bridge Program") at their Canberra Recovery Centre dated 16 November 2016 and 7 March 2017. This evidence indicated that the applicant had been resident and participating in that organisation's program since 4 May 2016. The Bridge Program may be taken to be known to the Court: Judicial Commissioner of New South Wales, Sentencing Bench Book (2016, Judicial Commissioner of New South Wales) at [12 - 530]. From those exhibits, and a report by officers of ACT Corrections dated 5 August 2016, it is also apparent that he had undertaken a residential program at Arcadia House, ACT. The Community Corrections report suggested that this course had preceded the Bridge Program, but on the evidence read on the usual basis at the hearing in this court that may not be correct. I interpolate, that evidence suggests that the applicant undertook the Arcadia House's Residential Program for 8 weeks from 24 September 2016. And at its completion on 23 November 2016 he returned to the Bridge Program.
Dr Goodwin considered that the applicant suffered from major depression after the offending and at the time of her assessment he continued to experience symptoms of depression in the mild range according to the battery of tests she administered. In her opinion, he was well motivated to avoid future criminal involvement and, I infer, was keen to continue with his rehabilitation.

The sentencing judge's reasons

Having recounted the factors, the sentencing judge said (at AB 6): "One only has to read out those facts to realise that this was an extreme example of quite atrocious driving, when viewed objectively. He was heavily inebriated and he had little control of the vehicle. He embarked upon an extremely long journey incompetently, because of his alcohol affectation. This is an extreme example, objectively, of this type of offence, and one would say that his moral culpability for this behaviour is extremely high".
His Honour expressed surprise that a person of his prior good character could face this charge which he appears to have put down to his problem with alcohol abuse. Having reviewed the subjective factors that I have set out above, his Honour said (at AB 9): "I do not actually find anything in the material that mitigates the culpability of this extremely serious offence. There is nothing that precluded a full appreciate that he was doing the wrong thing, driving while intoxicated. There is nothing which precluded his appreciation of the consequences."
His Honour did accept, however, from all of the material, and from the applicant's evidence that he is remorseful. His Honour accepted that he is "very, very sorry for what has happened" (AB 9). The sentencing judge referred to the assistance he had received from the Salvation Army which "set him on a path to rehabilitation" (AB 9). His Honour considered the applicant unlikely to offend in the same way in the future and that he had good prospects of rehabilitation.
His Honour made passing reference to R v Jurisic [1998] NSWSC 597 and R v Whyte (2000) 55 NSWLR 252; [2002] NSWCCA 343 ("R v Whyte"), but observed that as the case at hand was concerned with the aggravated offence, it was more serious carrying a maximum penalty of 11 years imprisonment rather than 7 years.
His Honour allowed a discount of 25 per cent for the utilitarian value of the applicant's early plea of guilty in the Local Court (AB 4). He also found special circumstances on the basis of the applicant's need to continue with rehabilitation under supervision in the community and to some extent to take account of his continuing psychological problems. The sentence passed is set out above (at [3]).

The submissions of the parties

In advancing Ground 1, Mr Evers of counsel acknowledged that the advocate who had appeared before the sentencing judge had not asked his Honour to make a finding that the pre-sentence residential rehabilitation amounted to quasi-custody and to backdate the commencement of the sentence to take account of it. He acknowledged the difficulty which may be presented in this regard by Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 ("Zreika") at [81].
Mr Evers relied upon what he characterised as exceptional circumstances justifying the matter being raised for the first time on appeal. He argued that compelling material was available which was either not used or misunderstood and which demonstrates that there has been a miscarriage of justice: Zreika at [81] (per Johnson J). He also relied upon a number of cases where the failure to expressly rely upon the point at first instance had not been a bar to the matter being considered for the first time in the Court of Criminal Appeal: Renshaw v R [2012] NSWCCA 91 ("Renshaw v R"); Bonett v R [2013] NSWCCA 234 ("Bonett v R") (in Bonett v R the appeal was unsuccessful); and Gardiner v R [2018] NSWCCA 27 ("Gardiner v R").
Turning to Ground 2, Mr Evers relied upon 2 matters to demonstrate that the sentence was manifestly excessive. First, he argued that the sentencing judge's assessment of objective seriousness miscarried because there was no evidence that the serious personal injuries suffered by Ms Fowler had resulted in any permanent disability. It was argued this entitled the applicant to have the objective seriousness of the offending assessed on the basis that they did not. The second point was that considering the R v Whyte guidelines and allowing for the 25 per cent discount, his Honour's starting point must have been one of four years and six months. It was submitted given this was a first offence, and having regard to the strong subjective case presented such an assessment was well out of step with R v Whyte even allowing for the more serious nature of the aggravated offence.
The Crown relied heavily on Zreika, and argued that the evidence before the sentencing judge was not explicit as to the constraints on the applicant's liberty involved in the residential programs.
Emphasis was also placed, by reference to Bonett v R, upon the consideration that the applicant's participation in the programs was borne of his self-referral. There was no compulsion involved, such as, by reference to necessary compliance with a court order for example by way of a Griffiths remand or a bail condition: Griffiths v The Queen (1977) 137 CLR 293; s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Concerning Ground 2, the Crown invoked the principles governing the exercise of the Court's powers in relation to a manifest excess appeal by reference to Vaiusu v R [2017] NSWCCA 71 at [28] - [29], per RA Hulme J. Given the finding of objective seriousness, which was open to the sentencing judge, and the unchallenged assessment of the high degree of moral culpability involved, it could not be said that the sentence passed was plainly unreasonable.

Determination

In Gardiner v R, Simpson JA (Fullerton and McCallum JJ agreeing) said (at [34]): "I do not accept that the applicant's right to consideration of amelioration in his sentence is forfeited by the failure of his legal representatives explicitly to ask for the sentence to be backdated (or otherwise reduced) (citation omitted) …. Although it may not have been obligatory upon his Honour to have taken it [that is, a period of residential rehabilitation] into account, it is significant that he stated that intention to do so, but that that intention was not carried into effect." I acknowledge in the present case there was no expression of intention to take participation in the residential programs into account per se, except to the extent to which his Honour regarded that participation as having set the applicant on a path to rehabilitation (AB 9).
In Renshaw v R, Hoeben JA (as the Chief Judge at Common Law then was) (RS Hulme and Fullerton JJ agreeing) said (at [28] - [29]): "No submissions were made to his Honour, on behalf of the applicant, as to the relevance of "quasi-custody" with respect to his time spent in rehabilitation. The applicant's attendance at the rehabilitation centre, gave rise to two issues: Firstly, the positive effect of the rehabilitation and secondly, the time actually spent at the rehabilitation centre. His Honour specifically took into account the first of those issues, but made no mention of the second. I infer that because it was not expressly drawn to his attention and because he failed to make any reference to it, that his Honour did not take that matter into account. His Honour's failure to take this matter into account did constitute error."
In Bonett v R, Adamson J (Gleeson JA and RA Hulme J agreeing) (at [50] - [51]), while pointing out that reducing a sentence for quasi-custody was not a mandatory relevant consideration for sentencing purposes, said, "in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to". Her Honour referred to Renshaw v R.
It must be borne in mind that reducing or backdating sentences to take account of an offender's participation in pre-sentence residential rehabilitation programs has long been recognised as an available sentencing option by this Court: R v Cartwright (1989) 17 NSWLR 243 at 259 per Hunt and Badgery-Parker JJ; R v Eastway (Court of Criminal Appeal (NSW), 19 May 1992, unrep) per Hunt CJ at CL, Gleeson CJ and Matthews J agreeing.
The evidence below, while it may not have been detailed, did make clear that the applicant had voluntarily referred himself to two separate residential rehabilitation programs continuously for a number of months leading up to the sentencing hearing. The sentencing judge was aware of his participation before sentence as his Honour had adjourned the matter to enable the applicant to continue the course of full-time residential rehabilitation in which he had been engaged since May 2016 (AB 56 and 58).
In my judgment it makes no difference that the applicant's participation was voluntary, rather than by compulsion of court order. I understand that this was regarded as relevant as a reason for not reducing the sentence in Bonett v R ([58], per Adamson J). However that may be, I would not regard it as a condition of a sentencing court taking quasi-custody into account that the offender's attendance should have been under legal compulsion. The earlier cases do not say so. Moreover, even where participation is pursuant to a court order such as a Griffiths remand (these days under s 11 of the Sentencing Procedure Act) or as a condition of bail, in our adversarial system of criminal justice normally it will have been the offender who has moved the court for the order. I am unsure how often orders in the nature of a Griffiths remand are made. Bail is not infrequently granted (in appropriate cases) to enable a person on remand to attend a full-time residential program. In those cases invariably it is the offender who moves the court for that order. If anything the offender's own attempts at rehabilitation were to his credit. That he actively pursued it, and that it was apparently productive enhances this impression. I am of the view that justice requires the Court to permit the matter to be raised albeit for the first time on appeal.
This conclusion implies a finding of error by the sentencing judge failing to take into account an applicable principle, requiring the sentencing discretion to be re-exercised. However, before turning to that I will deal with Ground 2.
One may accept, especially if one has regard to his Honour's apparent starting point of four years and six months that this was a stern sentence in the face of a compelling subjective case. However, that is not the test for manifest excessiveness. The question is whether after a consideration of all the facts, matters and circumstances relevant to this offending and this offender, the sentence passed is plainly unjust? I have concluded that it is not.
I accept the force of Mr Evers argument that had the Crown proved beyond reasonable doubt that Ms Fowler's serious injury left her with a serious disability the objective gravity of the offending would have been higher still. But, this is really no answer to the findings the sentencing judge made focusing upon the objective facts surrounding the nature of the offending, leaving to one side the characteristics personal to the offender.
It cannot be gainsaid that this was a very serious example of aggravated dangerous driving. The relevant factors, as identified by the sentencing judge included: 1. the high reading of 0.270 which put the applicant well into the high range of PCA. A low range reading of over 0.05 would have been a sufficient circumstance of aggravation; 2. the length of the proposed journey from Leppington to Canberra; 3. the very dangerous manner in which he had driven between Leppington and Marulan, as supported by the accounts of 5 eyewitnesses; and 4. the circumstances of the collision involving the applicant driving into the rear end of a moving vehicle in front. A circumstance suggesting driving at a very high level of dangerousness. These circumstances in combination exposed Ms Fowler to the risk of grievous bodily harm, which materialised in her case. All other users of the highway connecting the nation's largest city with its capital in the applicant's near vicinity were exposed to the same risk.
Notwithstanding the compelling nature of the subjective case, as his Honour pointed out, none of those compelling circumstances in any way reduced or ameliorated the high moral culpability involved in this offending. This finding is not challenged.
The maximum penalty for aggravated dangerous driving causing grievous bodily harm is 11 years. Bearing in mind the principle of proportionality, absent the applicant's compelling subjective case, a sterner sentence would have been justified. It is also not irrelevant to consider the fairly generous adjustment of the statutory ratio for the finding of special circumstances. The non-parole period was fixed at about 58 per cent of the total sentence.

Is some lesser sentence warranted?

As I have already stated, additional affidavits were read at the Hearing without objection on the usual basis that they may be used for re-sentencing purposes. They were an affidavit of the applicant affirmed on 1 March 2018 and an affidavit of his solicitor, Mr John Pearson, affirmed on the same day. Mr Pearson's affidavit annexed more detailed information than had been available to the sentencing judge about the nature of the rehabilitation programs and the applicant's participation in them.
Before turning to that matter, I acknowledge that in his affidavit the applicant again expressed his remorse and confirmed that he attended both Arcadia House's Residential Program and the Bridge Program. He indicated that those courses placed emphasis upon taking responsibility for one's actions and reflecting on how one's behaviour affects others. He also gave evidence of his experience in custody. After being sentenced he was held for one month in Goulburn Correctional Centre in the maximum security section. He was ashamed of being in gaol and was terrified of the other inmates. Since then, however, he has received a C2 classification and is housed at the Mannus Correctional Centre where he is employed in the Industries Office. This work seems to be that of an accounts payable and receivable clerk in what might be regarded as a prison farm. He is permitted to work outside the gaol and perform work at the Tumbarumba Racecourse, with others, attending the ground maintenance. When he made his affidavit he expected to receive a C3 classification. He has also taken the opportunity of undertaking available education courses. He has received notice from the Department of Immigration that his visa may be cancelled.
I am satisfied by reference to the material attached to Mr Pearson's affidavit that the applicant commenced the Bridge Program at Canberra on 4 May 2016 and continued in that full-time residential program until he was admitted to Arcadia House's Residential Program on 24 September 2016. Upon completion of that latter course, on 23 November 2016, he returned to the Bridge Program until he was sentenced.
From the evidence of Mr Pearson's affidavit I am satisfied that each of the programs is residential with limited opportunity for participants to leave the facility. Any absences are required to be undertaken in the company of a staff member. Telephone calls were restricted to three 10 minute calls per week at Arcadia House's Residential Program. Access to the internet was only permitted with prior approval. Residence at the program involved: restriction on activities, discipline and compulsory participation in designated activities.
The Bridge Program at the Canberra Recovery Services involved a similar level of restriction upon the participant's freedom. Full participation in the activities constituting the program was compulsory. Abstinence is essential and the evidence indicates that the applicant fully complied with that condition. Participation in the program extended over 7 days per week. Free time was limited and on occasions the participant is rostered to perform domestic chores referred to as "family duties" during free time. Participants are not permitted to leave the residence except with prior approval. Church attendance twice a week is compulsory. Visitors were only permitted with prior approval. There seems to be strict rules, supervision and discipline.
I am satisfied that the applicant's participation in these courses from 4 May 2016 satisfies as a matter of fact the description of "quasi-custody". It seems to me that what matters more is not whether the applicant's participation was voluntary or under legal compulsion, but rather whether the applicant did in fact subject himself to the restrictions of the course. I am satisfied that he did. It also seems from the evidence, as I have said, that his participation was productive.
The Court normally takes account of pre-sentence quasi-custody by backdating the commencement of the sentence rather than by making an actual deduction or discount in the appropriate sentence for the offence and the offender: Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155 ("Hughes v R") (per Groves J with McClellan CJ at CL and Simpson J agreeing); Renshaw v R at [34] (per Hoeben JA). Generally a proportion only of the time spent in quasi-custody is "credited". As Grove J pointed out in Hughes v R (at [38]) a rate of 50 per cent of the time spent "has been endorsed": R v Douglas (Court of Criminal Appeal (NSW), 4 March 1997, unrep); R v McHugh (1985) 1 NSWLR 588.
I think it appropriate to proceed in this way in the present case. I would not interfere otherwise with the sentence imposed by the sentencing judge, but I would backdate the commencement of the sentence so to allow a "credit" equivalent to or about 50 per cent of the pre-sentence quasi-custody. As I have said the applicant went into residential rehabilitation on 4 May 2016. He was sentenced on 8 March 2017. This was a period near-enough to 8 months. I would backdate the commencement of the sentence by a period of 4 months to 8 November 2016. Otherwise I am not satisfied that a lesser sentence is warranted for the reasons I have given.
Before proposing orders it should be pointed out that the offence of aggravated dangerous driving of which the applicant has been convicted is a major offence for the purpose of s 205 of the Road Transport Act 2013 (NSW) ("Road Transport Act"). For this offence under s 205(2)(d) there is an automatic disqualification from holding a driver's licence for 3 years unless the court orders otherwise under s 205(2)(d)(ii) of that Act. The sentencing judge was content to specify that the applicant "is disqualified from driving for the automatic period" (AB 11). This was not strictly necessary because the "automatic disqualification" operates "without specific order of a court": s 205(1) of the Road Transport Act. As the applicant's appeal has been successful and it is necessary for this court to re-exercise the sentencing discretion afresh, I think it appropriate to revisit this issue.
In my judgment the automatic disqualification should be reduced to 18 months after the applicant's release to parole. He has already made strong gains in his progress towards rehabilitation not only from his participation in the residential programs before he was sentenced but also, from the affidavit evidence, during his time in custody. He was a person of prior good character, as I have pointed out. He never previously offended in any way and has no record of any infringement of the traffic laws. Although he had an admitted problem with alcohol, the evidence at the proceedings on sentence conveyed he was not a person who normally drove after drinking, and this is given credence by his good record. In the circumstances I consider it appropriate, to promote his further rehabilitation and reintegration into society as a contributing law abiding person, that the automatic disqualification should be reduced.
It is not necessary to order that the disqualification from holding a driver's licence commences on the applicant's release to parole. By s 206A (3) of that Act the disqualification period is extended by the time an offender actually spends in custody for the major offence as defined by the Act.
The orders I propose are: 1. Grant leave to appeal. 2. Appeal allowed. 3. Set aside the sentence passed in the District Court and instead sentence the applicant as follows: 1. A term of imprisonment having a non-parole period of 2 years commencing on 8 November 2016 and expiring on 7 November 2018 with an additional term of 1 year and 5 months commencing on 8 November 2018 and expiring on 7 April 2020. 2. The applicant will first be eligible for parole after the expiration of the non-parole period on 7 November 2018. 3. Under s 205(2)(d)(ii) of the Road Transport Act 2013 (NSW) order that the applicant is disqualified from holding a drivers' licence for a period of 18 months.

Amendments 18 October 2018 - Paragraph [21]. Last sentence "above at [1]" amended to "above at [3]" 22 October 2018 - Paragraph [29] "RA Hulme" amended to "RS Hulme" 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: 22 October 2018

Outcomeappellant

Disposition:

Leave to appeal granted; appeal allowed; District Court sentence set aside; applicant re-sentenced to term of imprisonment with non-parole period of 2 years commencing 8 November 2016 and expiring 7 November 2018, with additional term of 1 year 5 months commencing 8 November 2018 and expiring 7 April 2020; licence disqualification reduced to 18 months under s 205(2)(d)(ii) Road Transport Act 2013 (NSW)

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