Regina v Dhanhoa

1 PRIESTLEY JA: The Director of Public Prosecutions (the DPP) appeals pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of the sentence imposed upon the respondent by his Honour Judge Viney at the Port Macquarie District Court on 10 September 1999. 2 The sentence followed a plea of guilty by the respondent on 9 August 1999 to one count of dangerous driving occasioning death (s 52A Crimes Act 1900) for which offence the maximum penalty was imprisonment for ten years. 3 His Honour sentenced the respondent to a minimum term of twelve months imprisonment to commence on 10 September 1999 and to expire on 9 September 2000 with an additional term of two years to commence on 10 September 2000 and to expire on 9 September 2002. His Honour disqualified the respondent from holding or obtaining any licence or driving any vehicle for a period of two years from 10 September 1999. 4 The smash which caused the death happened at about 5 o'clock in the morning of New Years Day 1997. The respondent, who was twenty-one, and his passenger Elie Nahas, who was sixteen, had been at a New Years Eve party at camping grounds at Grassy Head where they had been holidaying with a group of people. At the party a large quantity of alcohol had been drunk. The respondent and the deceased had left the camping grounds and had got into a late model Daewoo three door hatch car, which, immediately before the accident, the respondent was driving in a southerly direction on Grassy Head Road, Yarrahappini, towards the township of Stuarts Point. The deceased was seated in the front passenger seat. On going into a left-hand bend the car crossed to the wrong side of the road, continued south, crossed back to the correct side of the road, then left the road on the eastern kerb alignment and hit a tree on the driver's side. The car then caught fire. 5 A number of people came to the scene and tried to put out the fire. After some time the respondent was removed from the driver's seat. The deceased in the passenger seat was not noticed because the cabin was filled with smoke. After the fire was put out by the bush fire brigade, the deceased's incinerated remains were found. 6 The respondent was first taken to Kempsey Hospital where he was admitted unconscious with head injury, multiple lacerations, fractured left femur and forearm, and smoke inhalation and received some treatment. Later was taken by helicopter to St George Hospital in Sydney where he remained until he was discharged on 20 January 1997. An examination of the car did not reveal any mechanical defect. It was a courtesy car which had been lent to Robert Saad, who was staying at the camping grounds, while his own car was being repaired. 7 A blood sample taken from the respondent while still at the Kempsey Hospital was found to have a blood alcohol reading of 0.175. Reports from Dr Anthony Moynham, Director, Clinical Forensic Medicine Unit of the NSW Police Service, tendered in the sentence proceedings stated that the blood alcohol concentration at the time of the accident would have been within a range of 0.144 to 0.233, indicating that close to a minimum of between 18.5 and 20 standard drinks would have been consumed, which would impair any person's driving ability. 8 At the time of the accident it was just on dawn. The weather was fine. The roadway was dry and in good repair. No-one saw the accident. There was a skid mark 78 metres long leading to the point of collision. 9 The respondent was interviewed by police on 19 February 1997. He said he was not the driver of the vehicle and he declined to answer any further questions about the accident. However, about this Judge Viney said in his remarks on sentence " The prisoner's position in accordance with the record of interview was that, in effect, he did not really know what had happened. In fact he was of the view he was not the driver. He said he was, and the medical evidence seems to support that he was certainly not only severely injured but he was in a coma for several days and thus his approach to the matter is probably explained on the basis that he just did not remember what had happened. I am not prepared to find that he was evasive or seeking to avoid responsibility. It seems a fairer conclusion that the gravity of his injuries are responsible for his lack of recollection of the incident. " 10 Material before Judge Viney indicated that the respondent and his father arrived in Australia from England in 1985 and that his mother arrived here in 1986. Some time after finishing school he took up employment as a trainee engraver with an engraving company. This was his employment at the time of the accident. 11 Judge Viney accepted that the respondent had a difficult and unhappy life as a youngster. There was considerable friction between his parents, who divorced in 1998. He suffered physical and emotional abuse at the hands of his father. The judge noted that the respondent's mother was overseas after the break down of the marriage during the period the respondent was trying to recover from his injuries. 12 The respondent left his employment on 27 March 1998 because he found he was not coping as a result of the psychological impact of the accident. In addition to his physical injuries he suffered Post Traumatic Stress Disorder and ongoing depression. These affected his social life and relationships and his physical health. 13 After referring to the features of the case personal to the respondent, including his difficult family life, his injuries from the accident and his ongoing physical and emotional problems, the judge said he accepted the statement of the counsellor that the respondent "has been enduring punishment for this incident for the last two and a half years". 14 His Honour then referred to this court's decisions in R v Jurisic (1998) 45 NSWLR 209 and R v Mansour [1999] NSWCCA 180 and listed the following aggravating features of the case; first, the alcohol in the respondent's blood at the time of the accident; second, the "considerable" speed of the vehicle at the time of the accident and, third, that the respondent was a disqualified driver at the time of the accident. He said: " Those are aggravating features which, to some extent, indicate as [Spigelman CJ] said in Jurisic, that he abandoned responsibility for his actions ." 15 He added: " Clearly a gaol sentence has to be imposed and clearly it seems to be this case falls within the range of a three year sentence. " 16 His Honour accepted defence counsel's submission that the following matters constituted "special circumstances" for the purposes of s 5(2) of the Sentencing Act 1989: (i) The ongoing medical and psychological problems the respondent is suffering which will need to be addressed. (ii) His plea of guilty being an indication of his contrition. (iii) The " considerable degree of punishment " already suffered by the respondent. 17 The DPP's submissions. The DPP's submissions were as follows: 1. Given the extremely grave nature of the respondent's offence and the serious aggravating features of the case, his Honour's sentence was inadequate to such a degree as to show error. R v Tait and Bartley (1979) 24 ALR 473 at 476; R v Francesco Barbara (CCA, 24 February 1997, unreported) at 5-6 and R v Wright (1997) 93 A Crim R 48 at 53, were relied on. 18 2. The DPP drew attention to the second guideline stated in Jurisic. This was: " With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous grievous bodily harm) should be exceptional. " (at 231) 19 It was submitted that the words "present to a material degree" were explained in terms of "the offender has abandoned responsibility for his or her own conduct' (at 231D and F). The submission continued that the court had then said: " The period of two or three years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence. " (231G) 20 Although Judge Viney found, in terms of Jurisic, that the respondent had abandoned responsibility for his actions, it was submitted that the material before his Honour showed further aggravating features which he did not mention and which took the case beyond the starting point of a total sentence of three years, the main one of these being the "considerable speed" at which the respondent had been driving. 21 3. The specific submission was then made that the trial judge had erred in exercise of his discretion in that the respondent's prior record with respect to driving offences was a further serious aggravating feature of the case and insufficient weight had been given to it. 22 The DPP submitted that not only had the respondent had been a disqualified driver at the time of the accident, having been disqualified as a result of his conviction on 8 June 1996 for the offence of aiding and abetting a driver under the influence of alcohol or drug, he also had a prior conviction on 5 June 1996 for driving with mid-range prescribed concentration of alcohol, for which he was fined $450 and disqualified from driving for six months and also had two convictions in 1993 for driving/riding while unlicensed. 23 Regina v Jaworowski [1999] NSWCCA 430 per Simpson J at 4-5 was cited in support of the submission that the respondent's full driving record was relevant to the sentencing exercise, making his "moral culpability" regarding the instant offence all the greater. The submission was that although his Honour recognised that the respondent was a disqualified driver at the time of the accident and that this was an aggravating feature, he appeared to have failed to take into account the respondent's full prior driving record. 24 4. It was submitted that a further error in exercise of discretion was that although it was open to his Honour to take into account the continuing physical and emotional problems of the respondent resulting from the accident, Regina v Turner (CCA, 12 August, 1991, unreported) at 6, he placed undue weight on this factor. It was submitted that injuries sustained by an offender in such circumstances should not provide the basis for extending undue leniency in the sentencing exercise. It was submitted that the respondent's case did not fall into the class where the evidence establishes that imprisonment will be more burdensome because of the offender's state of health or that imprisonment will have a "gravely adverse effect on the offender's health" as was discussed in R v Smith (1987) 44 SASR 587 at 589. 25 5. The next submission also asserted a discretionary error in that the way his Honour dealt with special circumstances and the relationship between minimum and additional terms was "unwarranted and contrary to principle". 26 In support of this contention reference was again made to his Honour's emphasis upon the "considerable degree of punishment" already suffered by the respondent. It was this factor together with the respondent's plea of guilty and the need to address the respondent's ongoing medical and psychological problems that led his Honour to find "special circumstances" requiring variation of the statutory ratio between the minimum and additional terms (s 5(2) of the Sentencing Act). 27 The DPP conceded it had been open to his Honour in finding "special circumstances" to take into account the need to address the respondent's ongoing medical and psychological problems but submitted he could not take into account the respondent's plea of guilty and the punishment he had already suffered. The latter two factors were unrelated to "the need or the desirability for the [respondent] to be subjected to an extended period of conditional release subject to supervision on parole": see R v Phelan (1993) 66 A Crim R 446. 28 6. The DPP further submitted that in arriving at minimum and additional terms the judge had adopted a two stage or sequential approach, and had wrongly acted on the basis he could link a finding of "special circumstances" with a reduction in the minimum term, contrary to what had been said in Regina v Hampton (CCA, 25 June 1998, unreported); Regina v Mcdonald (CCA, 12 October 1998, unreported). 29 7. Further, given the strength of the case against him, the respondent's plea of guilty was clearly recognition of the inevitable, so that less weight must be given to that plea. R v Winchester (1992) 58 A Crim R 345 at 350. 30 8. Further, when in setting out the facts, his Honour said of the respondent's statements following the accident the he did not really know what happened (see par 9 above) it was unclear from what material his Honour arrived at that view. 31 9. Finally, what was, broadly speaking, the DPP's main submission, (see submission 1) was repeated, namely that his Honour erred in reducing the minimum term as he did, and that the minimum term failed to reflect the objective seriousness of the offence and the need for general deterrence. R v Stone (1995) 85 A Crim R 436. 32 The respondent's submissions. As to the DPP's submission 2, it was submitted for the respondent that there had been no breach by the sentencing judge of the second guideline in Jurisic , and that, as to the DPP's argument about aggravating factors of the kind identified in Jurisic , it was said that a decision that a driver has " abandoned responsibility for his actions ", might in this case be based upon a multiplicity of factors present in varying degrees; the presence of more than one such factor did not necessarily mean that the sentence should be any higher than three years. Before a decision could be made to that effect, there should be a discretionary weighing of those factors, and their relative seriousness, along with any other mitigating factors. 33 As to the DPP's submission 3 concerning the appellant's prior driving history, it was conceded that the sentencing judge did not refer specifically to the offence of 5 June 1996 and that this antecedent was relevant to the culpability of the offender, but it was submitted first that the sentencing judge had referred to the fact that the respondent was disqualified from driving at the time of the offence and identified this as an aggravating feature and second that the sequence of events recorded in the transcript of the sentencing proceedings showed that the judge must have had the respondent's full driving record in mind at the time of giving reasons for his decision. 34 The DPP's submissions 4 and 8 were connected. In answer to them, it was asserted that the focus of the DPP's submission 4 was the physical injuries sustained by the respondent, but that the judge had been principally concerned with the deep feelings of guilt and sadness that the respondent felt by reason of his actions and their pathological manifestation in post traumatic stress disorder and that this kind of "self" punishment (namely, the self inflicted sense of guilt and shame) was highly significant in any sentencing process, and particularly in this case. 35 In answer to the DPP's submission 8, the respondent was able to point to medical reports and (written) evidence from a social worker justifying his Honour's acceptance as a fact that the respondent did not of his own knowledge know whether he had been the driver, although because of the statements of others, and other evidence, he acknowledged his responsibility and pleaded guilty on that basis. 36 As to the DPP's submissions 5 and 6 regarding special circumstances, it was said that there was no need for a sentencing judge to find more than one special circumstance; once special circumstances were found the discretion was at large; having decided to find special circumstances there was no reason why the judge should not have had regard to the other matters referred to, bearing in mind, in particular, that he was sentencing a young man with severe physical and psychiatric problems who was serving his first term of imprisonment. 37 Issue was taken with the DPP's submissions 1 and 8 which involve an overall assessment of an appropriate sentence in all the circumstances of the case. 38 Discussion. At the end of the oral argument the court reserved its decision. The court thought there was a real possibility that the DPP's appeal should be upheld and the question had arisen whether, in that event, the Sentencing Act 1989 (now repealed) or its successor the Crimes (Sentencing Procedure) Act 1999 should apply. That question has since been resolved ( R v Carrion [2000] NSWCCA 191; R v Robinson [2000] NSWCCA 182) in favour of the view that the Crimes (Sentencing Procedure) Act is the applicable one. 39 For my part, another reason for reserving the court's decision was a wish to consider further whether the appeal should be upheld. My provisional opinion was that the minimum term imposed by the sentencing judge was probably too low, but I was also concerned that when the so-called double jeopardy principle (see Gleeson CJ in Rose CCA 23 May 1996 at p 3) was taken into account any different period from that fixed by the judge which this court might arrive at might not be different enough from the sentencing judge's sentence to warrant any interference with it. I also wanted the opportunity to give further and more detailed consideration to the sentencing judge's reasons for the course which he had taken. 40 Before coming to that matter, I should state that I accept the substance of the respondent's answers to the DPP's submissions 2, 3, 4 and 8 and that in my opinion the respondent's answers to the DPP's submissions 5 and 6 are sufficient to show that nothing in those submissions is sufficiently decisive, either separately or together, to warrant the upholding of the appeal in this court. Although the DPP's submission 7 was not in terms dealt with by the respondent I regard it as being in the same category as submissions 5 and 6; they deal with matters to be taken into account, as do the earlier submissions, in considering the real question which in my opinion the appeal raises, namely, in light of all the circumstances of the case, should this court come to the conclusion that the minimum sentence was so manifestly inadequate as to indicate error on the part of the sentencing judge, even though no clear cut sentencing mistake on his part has been identified; that is, in my opinion, the real issues in the appeal are those raised by the DPP's submissions 1 and 8. 41 It appears from what has already been referred to in pars 12, 24 and 34 above, that the sentencing judge seems to have given particular consideration to the effects of the accident upon the respondent himself. As appeared from the DPP's submissions, the DPP's substantial complaint about this was not that these matters were taken into account, which the DPP conceded was appropriate, but that on its being taken into account, too much emphasis was placed upon them. 42 However, on considering the materials that were in evidence before the sentencing judge, from a social worker (Susan Ducie), Dr Kusuma, an intern psychologist (Lyn Wallace) and Dr Tyagi of the Trans Cultural Mental Health Centre, the evidence of none of whom was questioned before the sentencing judge by the DPP, there seems to have been ample evidence before the sentencing judge of real and continuing psychiatric illness suffered by the respondent as a result of the accident. I do not see any signs of overstatement in this evidence. Dr Tyagi's report identified the respondent as suffering from post traumatic stress disorder as defined in DSM-IV and moderate depression as defined by the Beck-II Depression Inventory. The former disorder scored a symptom severity rating of "Moderate to Severe"; the latter was described as "Moderate Depression". 43 The point was made on behalf of the respondent that the term moderate in regard to the respondent's depression could be misleading unless it was recognised that what was being described was clinical depression as a psychiatric disorder which, by itself, was a condition of some severity, and that it was within the range covered by the disorder that the term moderate was to be understood. A similar point seems to me also to be valid in regard to the post traumatic stress disorder and its rating as moderate to severe. 44 It seems to me that the sentencing judge must have taken this approach to the psychiatric evidence when taking into account the various factors affecting his exercise of discretion in regard to deciding upon the minimum term. I do not think he can be criticised for this. 45 Upon myself taking into account the weight which I think the sentencing judge legitimately attached to the effects upon the respondent himself of the accident, and after taking into account the other matters I have mentioned in the course of these reasons, I have reached the opinion that I would not uphold the DPP's appeal. Overall, I have not seen anything in the case which justifies a conclusion that the sentencing judge made any mistake in the way in which he approached the sentencing duty. Clearly, different judges may well have given different weight from that apparently given by the sentencing judge to some of the relevant sentencing factors and may have arrived at a different result. In my view however nothing said by the sentencing judge in his reasons shows that in respect of any matter he attached importance to it outside the range of what he might reasonably do. 46 When considering the actual minimum sentence imposed, it seems to me to be close to the bottom of the reasonably available range in the circumstances. It may even be below it, but if so, the double jeopardy consideration earlier mentioned would operate to cause me to come to the same conclusion, that the appeal should not be upheld. 47 Conclusion. In the result, the appeal should, in my opinion, be dismissed. 48 FOSTER AJA: I agree with Priestley JA. 49 SPERLING J: I have read Priestley JA's judgment in draft. He has concluded that this Court should not intervene. Foster AJA agrees with that result. 50 I am of the contrary view. Finding myself in the minority, there is no point in being other than brief. 51 Priestley JA has reviewed the considerations which, I respectfully agree, bear upon the outcome of the appeal. The difference of opinion arises in the weight to be given to those considerations. 52 In my view, the serious objective circumstances of the offence are such that the appeal should be allowed. 53 I would substitute a sentence of three years imprisonment consisting of a minium term of two years and an additional term of one year. **********

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