Regina v Cameron [2005] NSWCCA 359 | Case summary

Friday 28 October 2005 REGINA v MATTHEW ALLAN CAMERON Judgment 1 McCLELLAN CJ at CL: I agree with the orders proposed by Grove J and his Honour's reasons. 2 The respondent's conduct in driving the motor vehicle with four passengers at what was on any view grossly excessive speed whilst under the influence of significant quantities of alcohol is conduct involving a high degree of criminality. Such a disregard for the safety of his passengers and other users of the road must be punished in a manner which both expresses the community's abhorrence of such conduct and sends a clear signal that it is not only criminal but will be met with a lengthy prison sentence. 3 But for the fact that this is a Crown appeal in respect of which the accepted principles require the respondent to be sentenced at the lowest end of the available range (see R v MD, BM, NA, JT [2005] NSWCCA 342) to my mind a significantly greater sentence may have been appropriate. In the circumstances the sentences proposed by Grove J and with which I agree should be seen as the minimum appropriate. 4 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Charteris DCJ at Orange District Court. The respondent had pleaded guilty to three counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm. On each of the counts of manslaughter the respondent was sentenced to imprisonment for six years with a non parole period of two years. The sentence and non parole period on the first count of manslaughter were directed to commence on 13 August 2004 and on the other two counts to commence on the same dates in 2005 and 2006 respectively. On the remaining count the respondent was sentenced to a fixed term of three years imprisonment commencing on 13 August 2004. The effective overall custody amounted to a total sentence of eight years imprisonment with a non parole period of four years. He was disqualified from holding any relevant driving licence for ten years from the date of sentence imposition, 1 June 2005. The prescribed maximum penalties for the offences of manslaughter and the statutory crime are twenty five and eleven years imprisonment respectively. 5 The offences occurred in the early hours of 21 March 2004. After charges were brought the respondent was admitted to bail. He was, however, taken into custody following a motor vehicle accident on 13 August 2004 arising out of which he was later convicted of driving under the influence of intoxicating liquor and without a licence. He has been in continuous custody since the lastmentioned date and hence the commencement date of sentence on the first and fourth counts ordered by Charteris DCJ. 6 The respondent's date of birth is 21 March 1983. On the evening of 20-21 March 2004, he visited several hotels, at some stage apparently in company with his parents. At about midnight he encountered a group of four young persons of his acquaintance. One of them, Daniel Tuxford, was the owner of a Commodore sedan equipped with a powerful 5 litre V8 engine. The respondent was permitted by Tuxford to drive the vehicle in response to a request for a "birthday present". The respondent did not then have, and never has had, a driving licence. 7 The car was driven out of the township of Parkes by another in the group, Jennifer Rea. Thereafter there was a change of driver and the respondent occupied the driving seat and headed back towards Parkes. Jennifer Rea became seated behind the respondent, adjacent to Daniel Tuxford with Joshua Klower being the other occupant of a rear seat. Cassandra Gibson was in the front passenger seat. 8 The respondent drove into the town area, entering a zone signed with a 50 kph speed limit. The respondent accelerated at that point and was asked by each of Miss Gibson, Miss Rea and Mr Tuxford to slow down. His Honour found that he failed to heed this advice. He continued to accelerate and reached a speed which his Honour described as considerably in excess of 100 kph. At a sweeping bend, the respondent lost control of the fast moving vehicle, slid to the incorrect side of the road forcing an oncoming vehicle to take action to avoid collision, but itself careering into the kerb and a telegraph pole. 9 The impact with the pole split the vehicle. Later, the rear section was located near the pole and the front section had been propelled nearly 60 metres away. The rear section caught fire. Joshua Klower had been ejected from the car onto the driveway of a motel which fronted the road. He suffered brain damage and died in hospital two days later. Daniel Tuxford was also ejected onto the lawn area of the motel. He died almost instantly from multiple injuries. Jennifer Rea suffered extensive comminuted skull and other fractures. She was not ejected from the rear portion of the car and her body was incinerated in the conflagration. 10 Cassandra Gibson, the front seat passenger, suffered a comminuted fracture of the right distal radius and other injuries, which were described in a statement of facts as "minor". 11 The collision occurred on a dark, clear night when visibility was described as excellent. The bitumen surface was in good condition and the centre of the road was marked by double unbroken painted lines. To one side of the road was a residential area and on the other, some light industrial development. 12 I have already mentioned the applicable 50 kph speed limit. I should add that, imminently before impact, Jennifer Rea again asked the respondent to slow down and Joshua Klower said something which may have been to the same effect but, having regard to the volume emanating from a sound system in the vehicle and the respondent's enquiry "What?" his Honour was not satisfied that the respondent heard those warnings. He had, of course, found that he failed to heed earlier warnings to similar effect when he was accelerating the vehicle as the entered the speed restricted area. 13 The respondent himself suffered injuries which included a fractured rib, punctured lung and fractured hip. He was hospitalized for a few days and discharged home using crutches. He has since been diagnosed with a stress disorder. He has described being depressed and suffering from nightmares. A blood sample taken from the respondent read 0.114 mgs of alcohol per 100 mls of blood. Expert opinion was that at the time of collision it was higher. There was no suggestion that at the time of impact it was lower. Blood analysis also revealed traces of amphetamines, methamphetamines and cannabis, but his Honour was not satisfied that these were of consequence. He stated that he dealt with the respondent on the basis that he was so adversely affected by alcohol at the time of the impact that he was not fit to be controlling a vehicle, that his capacity to drive the vehicle was markedly impaired. 14 The learned sentencing judge discussed at length subjective factors concerning the respondent and it will suffice to refer to these matters, which were essentially uncontroversial, briefly. The respondent had prior convictions and at the time of these offences was subject to a recognizance to be of good behaviour for a period of two years. The commission of the offences during the currency of that bond was a matter of aggravation which his Honour stated would be taken into account. 15 The respondent's schooling was affected by a diagnosed attention deficit hyperactivity disorder for which he was given medication whilst a child over a prolonged period. I have mentioned his present nightmares and he has reported "flashbacks" which are described as consistent with post traumatic stress disorder. Dr Westmore, a psychiatrist who saw him in the month prior to sentence, considered that he urgently needed regular and consistent psychiatric care. Whilst in custody before sentence he was attacked by three other prisoners and rendered unconscious. There had been at the time some publicity on television news concerning the respondent's offences. He was placed on protection within custody and has remained on protection since. His Honour accepted that the respondent believes that this is unlikely to alter, but that he thought in the course of time he expected that the respondent would be able to join the general prison population with consequent greater access to rehabilitation courses and the like. 16 The respondent claimed that he had no memory of the accident and his Honour accepted his evidence to that effect. Although this claim would seem to be inconsistent with the complaint of "flashbacks" which are, I understand, forms of memory manifestation (albeit unwanted), his Honour's finding in this regard should be accepted. 17 His Honour also found that the respondent was genuinely contrite and remorseful. He noted that the respondent was originally charged with offences contrary to s 52A of the Crimes Act, but no doubt as a result of consideration by those with the duty of prosecution, three counts of manslaughter were charged in respect of the deaths. The transcript shows that a jury panel was called on 26 April 2005 but upon arraignment the respondent pleaded guilty to the three counts of manslaughter and the count of aggravated dangerous driving causing grievous bodily harm. For utilitarian reasons, his Honour indicated that he would discount the sentence (otherwise assessed) "closer to 20 percent rather than the 15 percent conceded by the Crown". 18 It is an initial contention on behalf of the Crown that his Honour "substantially reversed the sentencing process". The relevant portion of his remarks on sentence are: "I have had regard to the principles of totality, I am satisfied that I must impose a greater sentence to reflect the fact that three young lives have been needlessly taken from this community and that the behaviour of this offender, driving in the manner he did and in the state that he was in, was the sole cause of this tragic loss of life. I have formed the view that having regard to all of the offences to which he has pleaded guilty, that if I apply the principles of totality, I would arrive at a sentence of 11 years imprisonment, from that figure I will deduct an allowance for his plea of guilty, at a reasonably early stage, and to his genuine and deep remorse. I have not lost sight of the fact that the behaviour has robbed our community of three fine young people, but I also take into account the circumstances that he will live forever with the knowledge that he brought about the death of three close friends. I arrived at a figure of 11 years on the basis that had this been a charge of manslaughter involving the death of one person only, a starting point of the order of 7 years and six months was appropriate. I must not lose sight of the fact that three lives were lost here, and although I have said not much about it, significant injuries were also occasioned to Miss Gibson which forms the basis of the fourth count. It is on that basis having considered all the material, that a starting point for sentencing of this offender should be 11 years. I have reduced that sentence to 8 years to reflect the plea of guilty at the reasonably early opportunity and the genuine and deep contrition and remorse. I therefore intend to impose an effective sentence of 8 years imprisonment." 19 It was erroneous to approach the sentence on the basis, as his Honour apparently did, that what was involved was an offence, (putting to one side at the moment the offence which did not result in fatality) which resulted in the death of three people. Each of these offences resulted in a death. There were no reasons justifying a departure from the procedure specified in Pearce v The Queen 1998 194 CLR 610: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality": @ p 624 per McHugh, Hayne and Callinan JJ. 20 See also Mill v The Queen 1998 166 CLR 59. 21 Although the procedure described in Pearce is not immutable and, having regard only to the total effective sentence to be passed on an offender has not been condemned as inevitably erroneous, it has been categorized as undesirable: Johnson v The Queen 2004 78 ALJR 616, there should be some discernible reason for departing from orthodox approach. 22 Although his Honour expressed an estimate of a "starting point" if there had been a charge involving one death, it is plain from his language that he commenced by assessing a total imposition. The Crown's contention is made out, however it remains to consider whether the sentences ultimately imposed were manifestly inadequate. 23 Before turning to that issue, it is convenient to deal with some particular submissions advanced on behalf of the respondent. 24 In a written submission it was put: "The general argument in this part of the submissions is that an offence of manslaughter must be dealt with much more severely than an offence of dangerous driving occasioning death. It is not immediately clear why this should necessarily be the case and why the mere fact that the prosecuting authorities have chosen, in this case belatedly, to charge the more serious offence of manslaughter should automatically result in a more significant sentence than if the matter was prosecuted as an offence of aggravated dangerous driving occasioning death. The availability of a higher maximum penalty is of course acknowledged, but at all times it is necessary to look at what it was that the offender did: Olbrich v The Queen 1999 199 CLR 270. The mere fact that the offence is charged as manslaughter should not of itself bring a substantially higher penalty upon the offender". 25 It is not a question of "automatically" elevating sentence but of assessing a sentence appropriate to the objective and subjective circumstances of the offence. The reference to Olbrich is taken out of context somewhat. It is true that the joint judgment (Gleeson CJ, Gaudron, Hayne and Callinan J) in referring to characterizing the roles of various offenders in a drug importation said that such "must not obscure the assessment of what the offender did" (@ p 279). I see no reason why that observation should not be taken to be of general application but it is to be understood in the light of the preceding remark "…..it is always necessary …..to bear steadily in mind the offence for which the offender is to be sentenced". 26 In the present case, the principal relevant offences are manslaughter and it is unproductive to consider what might have been an appropriate punishment if they were aggravated dangerous driving causing death. 27 In R v Vukic [2003] NSWCCA 13, Adams J commented: "…..there is a real distinction between the extent of culpability reflected in the offence of manslaughter as distinct from the offence of dangerous driving causing death, characterised by the differing ingredients of each crime. In some cases, of course, the distinction may be a fine one but that ought not to obscure the fundamental point that an offender can be punished only for the crime of which he or she is convicted, an obvious and fundamental notion of justice which is given authoritative expression in The Queen v De Simoni 1981 147 CLR 383". 28 Adams J was concerned to caution against an offence contrary to s 52A being treated as an offence of manslaughter but it is equally a matter of principle to caution against an offence of manslaughter being treated as if it were an offence against the statute. That manslaughter is a markedly more serious offence than an offence contrary to s 52A was demonstrated in the lengthy historical review by O'Brien J in R v Buttsworth 1983 1 NSWLR 658. It is recognized that, since that judgment was delivered, the aggravated forms of offence contrary to s 52A have been legislated but the distinction between manslaughter and the statutory offences remains valid. 29 The respondent's written submissions added: "There is always, where the charge is manslaughter, the prospect that a jury may regard the matter as for some reason being less than manslaughter and convict of an alternative count of aggravated dangerous driving occasioning death". 30 The pleas of guilty conceded the crimes of manslaughter and those are the crimes for which the respondent stood for sentence. 31 In viewing the asserted inadequacy of sentence it was submitted that "a further decision of this Court … which should be considered in this context is R v Holton [2002] NSWSC 775"; [2004] NSWCCA 214. That was a case of murder, the common feature with the present case being that the deceased police officer was struck by a motor vehicle driven by the offender. The death of a human being is an intrinsic element of all homicides. Once an appropriate sentence is assessed for each of the three crimes of manslaughter committed by the respondent, questions of concurrence, cumulation and totality are to be considered: Pearce. Holton was a sentence for a different and more serious homicide in which a single loss of life was involved. He was in fact sentenced to imprisonment for sixteen years with a non parole period of twelve years. I reject the submission that Holton offers assistance, by way of analogy or otherwise, to analysis of sentence in the present instance. 32 Neither counsel in the appeal sought to advert to the sentencing statistics maintained by the Judicial Commission and it is apparent that, whilst statistics for the crime of manslaughter are collated, there is no collation of a sub-category of "motor car manslaughter". 33 Without departing from the stance that, in general, manslaughter is a more serious offence than an offence against s 52A, the Crown referred to R v Ryan 2003 39 MVR 395 where, after successful appeal in this Court by an offender, a sentence of six years imprisonment with a non parole period of four years was imposed. In that case there was a single victim but in the judgment reference was made to a number of other instances where there were charges concerning multiple victims. There is no need to recite what can be read there. Insofar as the cases cited in Ryan reveal any broad pattern of sentencing, it can be observed that the sentences received by the respondent would appear mild by comparison if he were guilty of an offences against s 52A. Having conceded his culpability for more serious offences and having regard to the undisputed facts and circumstances, I consider that the Crown contention of manifest inadequacy of sentence is made out. 34 Adopting the expression of assessing "what he did" from Olbrich, but focussing upon the actual crimes for which the respondent stood to be sentenced, his culpability derived from these acts and omissions. Ignoring pleadings of passengers to reduce speed, driving a vehicle for which he was unlicenced but with which powerful machine he was, more significantly, unfamiliar, accelerating to a velocity exceeding twice the prescribed speed limit and being markedly affected by the prior ingestion of a considerable quantity of intoxicating liquor, the respondent provoked what can only be described as carnage. His conduct must be regarded as being of a high order of culpability. 35 The Crown also specifically challenged the extent to which his Honour proportioned the non parole periods to the balance of sentences. On each of the counts of manslaughter he specified a non parole period of two years against a total term of imprisonment for six years. The Crown did not challenge the finding that there were special circumstances but challenged the extent which minimum custodial term was proportioned in favour of the respondent. 36 Assuming for the moment that a head sentence of six years imprisonment on each count could be appropriate, application of the statutory prescription would result in non parole periods of four years and six months. The setting of a period of less than half of that term is highly suggestive of error. 37 In R v Simpson 2001 53 NSWLR 704 @ 718, the discretionary element of fixing a non parole period was recognized, as was the operation of the prescription of proportion by the statute as a form of "fetter" on that discretion, but the judgment emphasized: "More significantly, there is the ultimate constraint that the non parole period must itself appropriately reflect the criminality involved in the offence". 38 The respondent argued that the issue could be addressed by examining the effective sentence which amounted to a head sentence of eight years with a minimum term of custody of four years. Whilst that is undoubtedly arithmetically correct, analysis along those lines would inevitably be tainted by the approach which his Honour adopted, accurately described in the Crown submission as substantially reversing the sentencing process. 39 The Crown contention that the ratio of non parole period to total sentence did not reflect the objective gravity of the offence is made out. 40 It was also contended that there was detectable error in the structure of sentences whereby that imposed for the offence in which Cassandra Gibson was the victim was wholly subsumed within the impositions for the counts of manslaughter. The Crown accepted that his Honour had some discretion in this regard and it was acknowledged that this was not a matter of concern in isolation, provided that the ultimate sentence was effectively adequate. 41 For the reasons above given, I am of opinion that the appeal should be allowed, and this Court should proceed to resentence. In so doing the well established restraint when proceeding to resentence after successful Crown appeal should be applied. 42 I would respectfully adopt his Honour's finding as to the matters which might be found mitigatory in favour of the respondent and, applying the principle just mentioned, I would assess the appropriate sentence for each count of manslaughter as consisting of a non parole period of four years and a balance term of three years. That assessment is reached after reduction of a notional head sentence of nine years representing the result of balancing objective and subjective factors, and a further "utilitarian" reduction for the pleas of guilty to a notional head sentence assessment of seven years. 43 Having made that assessment it is then apt to consider questions of concurrence, cumulation and totality. With those factors in mind I would adopt his Honour's approach concerning the count of aggravating dangerous driving causing grievous bodily harm and his finding that there were special circumstances justifying departure from the statutory prescription in proportioning non parole period to balance term. 44 I would not, however, adopt the proportion selected by Charteris DCJ to reflect special circumstances. Viewed individually, on my proposed re-assessment of sentence on the manslaughter counts, application of the statutory proportion would be represented by a non parole period of five years three months and balance term of one year nine months constituting total sentence of seven years. I have, as stated, reduced the non parole period element to four years in each case to reflect a finding of special circumstances. 45 My proposal as to partial cumulation has the effective overall consequence of a sentence consisting of minimum custody of six years before eligibility for parole and a balance term of three years. Application of the statutory formula to that total assessment would result in a non parole period of six years nine months and a balance term of two years three months. Viewed in totality, the respondent retains a benefit to the extent of nine months reflecting the finding of special circumstances. 46 Nothing was put to suggest that his Honour's exercise of discretion concerning licence disqualification should be the subject of variation. 47 I propose the following orders:

Regina v Cameron

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