Regina v Berg

LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0191 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

THE COURT OF CRIMINAL APPEAL 60319/04

SPIGELMAN CJ WOOD CJ AT CL HOWIE J

WEDNESDAY 25 AUGUST 2004 REGINA v DAVID BERG Judgment 1 HOWIE J: In the early hours of Monday 24 February 2003 the applicant, David Berg, was driving his motor vehicle when it left the edge of the roadway and came to rest on the passenger's side of the vehicle. As a result the passenger in the motor vehicle was killed. At the time of the accident the applicant was under the influence of intoxicating liquor. A blood sample taken a short time later showed an alcohol reading of 0.2. The applicant was charged with an offence of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act. This is an offence carrying a maximum penalty of imprisonment for 14 years. The applicant pleaded guilty to the offence in the Local Court and was committed for sentence to the District Court. 2 He appeared in the District Court at Lismore where he adhered to the plea of guilty. As a result Judge Phelan sentenced him to imprisonment totalling 5 years dating from 19 December 2003. His Honour fixed a non-parole period of 3 years to expire on 18 December 2006, the date upon which the applicant is eligible to be released to parole. There is a balance of the term of 2 years. His Honour also disqualified the applicant for a period of 3 years from the date of the commencement of the sentence. 3 The applicant appeals against the severity of his sentence on grounds asserting that his Honour Judge Phelan erroneously took into account aggravating factors when assessing the seriousness of the offence and therefore a lesser sentence than that imposed is warranted in law. 4 There was no dispute as to the facts and they can be stated briefly. At the time of the accident the applicant was driving a Toyota Hi-Ace light goods van along New Ballina Road. It was raining and the road surface was wet. The vehicle left the passenger-side of the roadway and in doing so the front of the vehicle collided with an earth embankment. The impact caused the vehicle to roll and it came to rest on the passenger's side. The deceased, who was not wearing a seat belt, was partially ejected from the vehicle as it rolled over and she died as a result of injuries occasioned when the vehicle came to rest across her body. There did not appear to be any other vehicle involved in the collision. A later examination of the vehicle revealed that the tyres displayed tread depths below the minimum legal requirement. The braking system was also in a poor condition. 5 A sample of the blood of the applicant revealed not only the presence of alcohol in the high range of PCA but also the existence of other drugs including morphine and cannabis. The expert evidence, however, was that, although the applicant would have been under the influence of alcohol at the time of the collision, it was unlikely that he would have been affected to any significant degree by the other drugs. 6 A reading of 0.2 is substantially over the lower limit for high range PCA. There was also evidence that the applicant was showing signs of intoxication when he was spoken to at the scene and later in hospital. He was described by a police officer as being well under the influence of alcohol or drugs. 7 The applicant did not give evidence at the sentencing hearing but there was a psychological report tendered on his behalf that contained an account of the circumstances leading up to the offence. The applicant had been in a relationship with the deceased since November 2002, although they had not lived together. He described her as "a mate with similar goals and interests to his own". He and the deceased agreed to meet at the deceased's home on Sunday afternoon so that he could assist her nephew repair his motor vehicle. He remembers taking four bottles of beer to share with her. At about 1 a.m. the nephew wanted some food and they decided to drive to a nearby service station to purchase some. The accident occurred on the return journey. The applicant told the psychologist that he believed that an animal ran across the road and he swerved to miss it. He expressed disbelief to the psychologist that his blood alcohol reading was as high as was proved to be. 8 The applicant was aged 45 years at the time of sentence. He has a record for criminal offences and traffic matters dating from November 1978. His criminal antecedents include principally matters of dishonesty. He was sentenced to imprisonment in 1981 for charges of imposition and break, enter and steal offences in Queensland. In 1984 he was sentenced to imprisonment for burglary in Victoria. In 1985 he was placed on a good behaviour bond for an armed robbery in Victoria on condition that he attend Odyssey House, a drug rehabilitation centre. In 1988 he was placed on recognizance for 3 years under the NSW Probation and Parole Service for an offence of malicious wounding. In May 2001 he was placed on a good behaviour bond by the Albury Local Court for break, enter and steal and burglary. In May 2001 he was given a community based order by the Wodonga Magistrates Court for an offence of exceeding the prescribed concentration of alcohol after a breath test. 9 The applicant was first licensed in NSW in November 1989. At the time of the accident he had an unrestricted Class C licence. There was no traffic history recorded against him in this State although as I have already indicated there were some matters in Queensland and Victoria. 10 The psychologist reported that, although the applicant had abused both alcohol and drugs until his early 20's, he settled down after he completed a rehabilitation programme and was, thereafter, able to maintain a steady relationship and constant employment. However, in 1988 he was injured in what was described as a "near-fatal accident" in his work place and as a result he became severely depressed and disorganised. He was unable to maintain his employment and his then relationship fell apart. In the years leading up to the accident the applicant had been trying to cope with depression and residual symptoms of post-traumatic stress disorder for which at one time he was receiving medication and counselling. 11 At the time of the offence the applicant was engaged in a welfare programme called "Meals on the Street - Caring and Sharing" and was operating the "Communal Five Loaves Mobile Soup Kitchen". In evidence before his Honour was a letter from the Mayor of Lismore dated February 2002 stating that the applicant was involved with providing free meals for homeless people and the distribution of second hand furniture for the needy. The applicant's charitable works were funded by public donations. As a result of his efforts he received a number of service awards including in 1988 the Australia Day Award for Community Services and in 2000 he was Citizen of the Year. There were testimonials before his Honour as to the applicant's general good character and the high regard in which he was held in the community. 12 There was also evidence as to the effect upon the applicant of the death of the deceased. The psychologist reported that the applicant was deeply traumatised and guilt-ridden over the accident and had contemplated suicide at times. The applicant told the psychologist that he was resigned to spending a period in prison and could cope with such a sentence. 13 Judge Phelan accepted that the applicant had shown considerable remorse. His Honour did not indicate the extent of the discount given for the plea or contrition but one can only assume that it must have been towards the top of the range as the applicant had pleaded guilty in the Local Court. The sentencing judge accepted that generally the applicant was a responsible, caring and mostly law-abiding person. 14 In light of the attack made upon his Honour's use of the guideline judgment in R v Whyte (2002) 55 NSWLR 252 and s 21A of the Crimes (Sentencing Procedure) Act, it is appropriate to quote in full two passages from the Remarks on Sentence which, it is asserted by the applicant, disclose error. His Honour said "In relation to the decision in [Whyte] , he does not fall particularly into the profile referred to there, as he is no longer young. He has a fairly long list of convictions, even up to the recent past. Other factors which I accept, such as genuine remorse and his plea of guilty, are of perhaps limited utilitarian value having regard to the high reading and the state of the car. I take into account the aggravating factors listed in [Whyte]. The degree of intoxication was very high. In relation to the matters for consideration under s21A of the Crimes (Sentencing Procedure) Act, the aggravating features which I have to consider include: the record of previous convictions; the injury, emotional harm, loss or damage caused by the offence was substantial; the offence was committed without regard for public safety. As regards mitigating factors, clearly the deceased's relatives suffered emotional harm. If the offender undertakes substantial rehabilitation in relation to his alcohol it seems likely that he will not re-offend. He has good prospects of rehabilitation, as it has been demonstrated in the past that he has been able to overcome a drug problem, and with the same perseverance and the support of his network of friends he may be able to do the same."

His Honour also stated: In the circumstances it seems to me that the high reading and the state of the tyres in the rain place this in an intermediate category of seriousness. 15 The relevant factors influencing an assessment of the objective seriousness of the offence were to be found in three distinct but related areas: the elements of the offence of aggravated dangerous driving; the guideline judgment in Whyte; and s 21A of the Crimes (Sentencing Procedure) Act. There was a degree of overlap in the areas and the relevant considerations arising under each. Section 52A(7) makes it a matter of aggravation that the applicant's blood alcohol concentration was more than 0.15. The fact that there was a death was also an element of the offence. The presence of these two facts meant that the maximum penalty was imprisonment for 14 years. 16 In Whyte this Court indicated the features of a frequently occurring case of an offence under either s 52A(1) or s 52A(3) that made it a typical instance of the offence of dangerous driving causing death. These features were:

(i) Young offender. (ii) Of good character with no or limited prior convictions. (i) Death or permanent injury to a single person. (ii) The victim is a stranger. (iii) No or limited injury to the driver or the driver's intimates. (iv) Genuine remorse. (vii) Plea of guilty of limited utilitarian value.

The Court then identified a number of matters that aggravate the offence as being:

(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit (x) Degree of sleep deprivation. (xi) Failing to stop.

Matters numbered (iii) to (xi) were viewed as affecting the offender's moral culpability. 17 The guideline in Whyte is to the effect that for an offence under s 52A(3) and where the offender's moral culpability is high, a full time sentence of less than 3 years would not be appropriate. It was also stated that, in the aggravated form of the offence, it would be necessary to reflect the increased maximum penalty and the higher level of culpability. The applicant of course was sentenced for the aggravated offence and clearly a sentence of more than 3 years was warranted. 18 Section 21A of the Crimes (Sentencing Procedure) Act requires the sentencing judge to take into account the presence of nominated aggravating or mitigating factors in determining the seriousness of the offence. These considerations reflect matters that would have been taken into account under the common law and the stated factors have to be read in light of the fact that Parliament by reason of the terms of s 21A(1) and s 21A(4) was not intending by the section to alter the common law approach to sentencing: R v Way [2004] NSWCCA 131; R v Wickham [2004] NSWCCA 193. 19 In respect of the guideline in Whyte, Judge Phelan noted that the applicant did not fall into the typical case because the applicant was not young and had a criminal record. Those observations were with respect apposite. His Honour also said that he was taking into account the aggravating factors referred to in the guideline judgment and added the observation that "the degree of intoxication was very high". 20 It is argued on behalf of the applicant, that his Honour was in error in not taking into account that the applicant fell outside the typical case because the deceased was not a stranger and that the applicant suffered psychological injury as a result of the accident. This argument however misunderstands the effect of the first limb of the guideline in Whyte which is as follows: A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment. 21 But the factors in the list set out in Whyte, as indicative of a typical case, do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge's discretion in the way the applicant suggests. If the applicant does not fall within a typical case for whatever reason, then the guideline is of less assistance than it might otherwise have been. The applicant fell outside the typical case of an offender to be sentenced for dangerous driving for a number of reasons and, therefore, the guideline had less influence upon the exercise of his Honour's sentencing discretion. 22 In any event, to my mind the matters stated by his Honour were of more relevance than those omitted in this particular case. To take into account the effects of the accident upon the offender is really no more than to recognise that, as a matter of common humanity, the offender might have already been grievously punished by the consequences of his or her actions. But such feelings must give way to the importance of denunciation and general deterrence where appropriate. In my view that was the appropriate approach in the present case. 23 It was submitted further that his Honour erred in having regard to the aggravating features stated in Whyte because the only two of such features that were applicable were the level of intoxication and death. But, so the argument ran, as both of these matters were elements of the offence for which the applicant was to be sentenced, they could not be taken into account as aggravating factors because of the application of s 21A(2). 24 As I have already indicated, s 21A sets out aggravating and mitigating factors to be considered by a sentencing court. After listing the aggravating features to which a court is to have regard, s 21A(2) states: The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

It is submitted that his Honour breached this provision. 25 I do not agree. I see no error in his Honour referring in general terms to the aggravating factors identified in Whyte or in mentioning the level of the blood alcohol reading in particular. The fact that the applicant had a reading that was 30 per cent higher than the reading that would have made him liable for the aggravated offence was a highly relevant matter. Whyte accepts that generally the level of intoxication is an aggravating factor and, in my view, there is nothing in s 21A that prohibited his Honour taking that particular reading into account. 26 Nor do I accept that intoxication and death were the only matters of aggravation. The number of persons put at risk was a relevant factor and in this case the applicant knew he had a passenger in the motor vehicle who was in danger from his inability to control the vehicle because of his intoxicated state. The risk was increased by the wet conditions, the state of the tyres of the vehicle and the fact that the deceased would not wear a seat belt. In respect of this last matter, the applicant was in fact in breach of s 47B of the Road Transport Safety and Traffic Management Road Rules 1999. In my view these were all matters that went to the moral culpability of the applicant driving in his intoxicated state. 27 However, I believe that there is more merit in the criticism based upon his Honour's consideration of the aggravating features under s 21A. In Wickham, above, it was pointed out that a sentencing court needs to exercise some care in considering s 21A(2), particularly having regard to the limitations found in subsection 2 itself and also in subsection 21A(4). It was noted that some of the aggravating factors mentioned in the section could not be taken at face value because they were limited in their scope by the application of common law principles. After referring to terms of s 21A(2), it was stated: 24. This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that the offender has a record of previous convictions. On its face that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle: R v Johnson [2004] NSWCCA 76. 25. Similarly the aggravating factor in s 21A(2)(g): The injury, emotional harm, loss or damage caused by the offence was substantial would be limited by the rule that the effect upon persons of the death of the victim is not an aggravating feature of an offence such as murder: R v Previtera (1997) 94 A Crim R 76. It would also be limited by the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Wise v R [1965] Tas SR 196; R v Boyd [1975] VR 168. 28 The other way in which the limitation in the section can operate is so that a factor cannot be taken into account if to do so would be to punish the offender for some more serious offence than the one charged. This is not a matter that is of concern for the present application. 29 With respect, however, it appears to me that at least his Honour gave insufficient consideration to the factors listed in the sub-section and how they impacted on the particular case before him having regard to the relevant facts proved in evidence. There were two factors which his Honour took into account as aggravating features in relation to s 21A(2). The first was the applicant's criminal record. Much of that record was, in my view, irrelevant. However, there was one matter which was relevant to a consideration of the sentence to be imposed upon the applicant and that was the fact that in 2001 the applicant had been convicted of an offence which appears to have arisen from his use of a vehicle while under the influence of intoxicating liquor. That was a matter which his Honour would have been entitled to take into account as indicating, in accordance with the principle in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 that personal deterrence was a matter which was to be given more significance than might otherwise have been the case. 30 The other matter raised was under s 21A(2)(g) in relation to whether "the injury, emotional harm, loss or damage caused by the offence was substantial". Although his Honour quoted the terms of that provision, he did not indicate what it was that was being taken into account as an aggravating factor. If his Honour meant by that reference, that he was taking into account that death was occasioned to the deceased, then clearly he was in error because, as has been pointed out, that is an element of the offence with which his Honour was sentencing the applicant and was not a matter his Honour could take into account additionally having regard to s 21A(2). 31 If his Honour was referring to the emotional harm suffered by the deceased's relatives, there is some question as to whether his Honour had sufficient evidentiary material on which to make that finding. There was in this case, unusually perhaps, no victim impact statement. Nor was there any other material that indicated to any particular degree the effect upon the relatives of the deceased by her death. Clearly, one can presume that it would have had an impact. However, this is an aggravating factor and if it is to be taken into account there must be appropriate evidentiary material on which his Honour could be satisfied to the appropriate degree that the injury, emotional harm, loss or damage was substantial. In my view, the criticism made of his Honour's sentencing remarks in this regard in the exercise of his sentencing discretion has been made out and, in my view, this Court is required to reconsider the exercise of his Honour's discretion. 32 In that regard the Court has been provided with material as to courses the applicant has undertaken during the period of his custody. We have before us, for the purpose of considering the re-sentencing of the applicant, a number of certificates awarded to him during the course of his custodial progress to date. They incorporate most relevantly that he has completed a course in lifestyle incorporating a component of alcohol abuse and one in respect of relapse prevention that also concerns the misuse of alcohol. 33 It is significant in sentencing the applicant that he has a substantial and lengthy period of rehabilitation following a start in his earlier life that might otherwise have augured badly for him. As I have already indicated, the psychologist noted that after his difficulties caused by, apparently, alcohol and drugs in the early twenties, he recovered and rehabilitated himself until met by another crisis in 1988 that apparently resulted in his lapse again to the misuse of alcohol. 34 In those circumstances, it seems to me that his Honour was correct in finding that there were special circumstances in relation to fixing the proportion between the non-parole period and the head sentence. 35 Another very significant consideration in the present case is the applicant's history of social service, as indicated in the letter of the Mayor of Lismore and, as I have already indicated, in such a case as this, an offender is entitled to call upon the bank of credit arising from his community welfare support that has mounted over the years by way of mitigation. 36 The Court should grant leave to appeal and allow the appeal, quash the orders made by Phelan DCJ and in lieu thereof sentence the applicant to a term of imprisonment comprising a non-parole period of two years and three months, that period to commence on 19 December 2003 and to expire on 18 March 2006, the date upon which the applicant is eligible to be released to parole. There should be a balance of the term of imprisonment of one year nine months which is to commence on 19 March 2006. 37 SPIGELMAN CJ: I agree with the orders proposed by Howie J and with his Honour's reasons. I wish to add observations of my own on three matters. 38 First, Howie J referred to the sentencing Judge's treatment of s21A(2)(g) with respect to injury, emotional harm, loss or damage being substantial. I agree with what Howie J has said that there was no evidence upon which the emotional harm suffered by the relatives of the deceased could have been assessed as substantial by his Honour. 39 There is, however, one other factor which his Honour may have been referring to when indicating in his reasons that s21A(2)(g) was relevant, namely, that injury by way of death to the deceased was substantial. This is the only other matter that, in my opinion, could have answered that description. If his Honour was intending to take that matter into account, then his Honour was prohibited from doing so by the concluding words of s21A which state that additional regard may not be had to a factor which is an element of the offence. Death was an element of the offence of which the appellant was charged. 40 The second matter to which I wish to refer is the reference to the prior convictions as a relevant aggravating factor under s21A(2)(d). Howie J has referred to his judgment to Wickham and has set out in his judgment pars [24] and [25] thereof. In par [24] his Honour made reference to a suggestion that a prior criminal record is a matter of aggravation by making the offence more serious. In his judgment today, Howie J has referred to the principles set down by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 which indicates the circumstances in which prior convictions become material to sentence. It is not necessary for me to decide in this case whether or not that part of the High Court's judgment was intended as a comprehensive statement of those circumstances. It is sufficient to note that there are such relevant circumstances and that the terms of s21A(2)(d) of the Sentencing Procedure Act 1999 identify aggravating circumstances which, as the introductory words of the subsection state, are "to be taken into account in determining the appropriate sentence". This is a different test to that stated in Wickham to the effect that a matter of aggravation makes the offence more serious. As Veen v The Queen makes clear, and as Howie J's judgment today indicates, there are such matters which become relevant to the process of "determining the appropriate sentence". 41 I agree with what Howie J has said, that in the present case there was only one relevant conviction. That was the conviction in 2001 for an offence involving drinking and driving. This did suggest that considerations of personal deterrence were relevant to the sentencing exercise. 42 The final matter to which I wish to refer is the case of R v Previtera (1997) 94 A Crim R 76 which is referred to in par [25] of Wickham. That case does suggest that a victim impact statement is not relevant to the sentencing exercise, at least in the circumstances considered in that case, where there had been a death. 43 The reasons given in Previtera may need to be reconsidered in an appropriate case, by reason of the inclusion of the statement of the purposes of sentencing in s3A of the Sentencing Procedure Act 1999. I refer particularly to the reference in s3A(g) "To recognise the harm done to ... the community." (See Re Attorney General's Application under s32 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) (2002) 136 A Crim R 196 at [57]-[59].) 44 It appears to me strongly arguable that the recognition of this purpose of sentencing would encompass the kind of matters which are incorporated in a victim impact statement. It may in some cases, be appropriate to consider the contents of such statements in the sentencing exercise. This was not a purpose of sentence recognised by Hunt CJ at CL in Previtera, see at p86. 45 The terminology considered by Hunt CJ at CL in Previtera which confers a discretion on the Court to consider the contents of the victim impact statement, which was present in the legislation then under consideration, is still contained in the reference to "if it considers it appropriate to do so" in s28 of the Crimes (Sentencing Procedure) Act 1999. Whether or not Previtera needs to be re-visited in terms of its specific reasoning on the role of the victim impact statement, and more generally on the apparent application of s21A(2)(g) to the injury, emotional harm, loss or damage caused by the offence to third parties, need not be determined on this occasion. There is no victim impact statement in this case. Nor, for the reasons given by Howie J, was there evidence capable of satisfying the particular statutory test in this case. 46 I agree with the orders proposed by Howie J. 47 WOOD CJ at CL: I agree with the orders proposed by Howie J and with the reasons therefor stated by his Honour. I also agree with the additional observations of Spigelman CJ. 48 However, I would sound a note of caution in relation to the proper approach to fact-finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination. 49 I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial Judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence. 50 SPIGELMAN CJ: The order of the Court is as indicated by Howie J. **********

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