Regina v Khatter

Court of Criminal Appeal (NSW)|2000-02-29|Before: Sully J, Simpson J, Carruthers AJ

CITATION : Regina v Khatter [2000] NSWCCA 32 FILE NUMBER(S) : CCA 60433/99 HEARING DATE(S) : 1/2/2000 JUDGMENT DATE : 29 February 2000

PARTIES : Crown - Appellant Naresh KHATTER - Respondent JUDGMENT OF : Sully J at 1; Simpson J at 13; Carruthers AJ at 39

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/2200 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Howland [1999] NSWCCA 10; 104 A Crim R 273 R v Edwards (1996) 90 A Crim R 510 DECISION : Crown appeal against sentence allowed; Sentence quashed; Respondent re-sentenced to imprisonment for a fixed term of 3 months to date from today's date.

1 SULLY J: I have had the advantage of reading in draft the judgment of Simpson J. I regret that I am unable to agree with her Honour that the present Crown appeal should be dismissed. 2 The relevant objective facts are canvassed in detail in her Honour's judgment. I adopt gratefully what her Honour says in that regard. I would add to her Honour's canvass a brief, but I think significant, extract from the evidence given by the respondent at the sentence hearing. The relevant passage, given during the respondent's evidence in chief, is as follows: "Q. Had you intended to drive at all when you were consuming the alcohol? A. Yep, basically in the morning I have to start at 6 o'clock, I said "I don't want to go there" -- Q. Yes, you were intending to drive the next morning -- A. Yeah -- Q. -- to go to work but had you intended to drive that night - when you were drinking did you know then that you were going to go out driving that evening? A. Yep. Basically I said "I am drunk so I don't want to go for a drive", he was just compelling me, insisting really "Can you go there, I'm just very upset", so I said to him "Okay" because just after that I went for a drive. HIS HONOUR: Let me understand you. Do you say that he, as it were, forced you to drive? A. Yeah he forced me, like he was insisting, he was just compelling me "Naresh let's go, I don't want to stay, I just want to spend some time outside". Q. Where did he want to go? A. Bankstown and his girl friend." [Appeal Book at 14, 15] 3 There was some brief cross-examination about this topic. It was as follows: "Q. On the day of his death, he came to your house and you were sitting down and having some drinks? A. Yeah. Q. How long were you sitting down and having drinks for? A. Near - about two hours. Q. You've said in evidence that Param (as said) was compelling you to drive? A. Yes. Q. But you could have refused couldn't you? A. Yeah I refused two or three times. Q. And you could have refused again couldn't you? A. Yes. Q. What was there in Bankstown that you had to go to Bankstown? A. Yeah, he said to me "Let's go for a drive", then he said "I just want to go my Bankstown friend." [Appeal Book, 16,17] 4 Simpson J, in paragraph 19 of her Honour's judgment, says, among other things: "These courts deal with human beings, with all their human weaknesses, and while the courts cannot condone any act of driving whilst there is present in the blood more than the prescribed concentration of alcohol, it is not necessary to characterise every instance of the offence as an abandonment of personal responsibility." 5 Her Honour continues: "There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability." 6 I respectfully agree with these observations. I accept that it would not be fair to say of the present respondent that his particular moral culpability was to be assessed in terms of a simple and comprehensive abandonment of his relevant personal responsibility. I do think, however, that there is no escaping the simple fact that the respondent, on his own version of the relevant events, deliberately drove a motor vehicle on a public street when he realised that he was, by reason of the effects of alcohol previously ingested, in no fit state to do so. That entails, in my opinion, a real degree of moral culpability in the respondent. It is my respectful view that the learned primary Judge fell into error in that his Honour failed to take either any, or any sufficient account, of this particular aspect of the respondent's offence. 7 Simpson J has identified some other particular errors on the part of the learned primary Judge. I respectfully agree with what her Honour says in that connection. 8 Simpson J explains, in paragraph 21 of her Honour's judgment, a process of reasoning which leads her Honour to the conclusion that the Crown submission that the sentence was, on its face, manifestly inadequate, should not be accepted. I am, with respect, of the contrary opinion. It is one thing to say, and I myself would accept, that the circumstances of the present particular case warranted the imposition of a full-time custodial sentence distinctly towards the lower point of the relevant proper sentencing range. And I would accept unhesitatingly that the present case is one in which it would be entirely correct to find "special circumstances" in the sense contemplated by s.5 of the Sentencing Act 1989 (NSW), so as to permit properly of the fixing of a much shorter than normal minimum term and a much longer than normal additional term. It is, however, an entirely different thing to say that the circumstances of the present case are such as to warrant the imposition of a penalty less than a sentence of full-time custody. I cannot accept that last proposition. To do so would be to entail, in my opinion, that the subjective features, real and compelling though they undoubtedly are, had been given disproportionate weight in relation to the relevant objective facts. 9 Fixing an appropriate full-time custodial sentence in the present particular case is no easy task. The guideline judgment of the Court in R v Jurisic (1998) 45 NSWLR 209 suggests that in a case of dangerous driving causing death, a custodial sentence of less than 3 years should be exceptional. I am unable to agree with Simpson J in her Honour's conclusion that the present particular case is so, and so clearly, exceptional as to justify an outright dismissal of the present Crown appeal. I accept, however, that the striking of a fair balance of the relevant objective and subjective features of the present particular case justifies, after proper allowance has been made for the well-recognised constraints attending any Crown appeal against sentence, the imposition of a sentence distinctly less than the sentence of 3 years suggested in the guideline judgment. 10 Initially, I was inclined to a sentence of imprisonment of 2 years. I would have back-dated such a sentence so as to have it commence on 31 July 1999; and that for the reasons explained by Simpson J in her Honour's judgment. It would have been, of course, necessary to apportion such a sentence between a minimum term and an additional term. That would have entailed, in turn, a consideration of the question of "special circumstances" as contemplated by s.5 of the Sentencing Act. The more I have thought about such an approach to any re-sentencing of the present respondent, the more dissatisfied I have become with what seems to me to be an unavoidable artificiality inherent in such an approach. There are, as I see the respondent's position, not really any "special circumstances" in the sense of circumstances requiring that a deliberately longer additional term be set in order thereby to make a necessary allowance for a need in the particular case of a deliberately extended period of post-custody rehabilitation. The present respondent does not seem to me to be a man who needs that kind of extended rehabilitation. Save for the offence now in question, the respondent appears to have been in every way a good and useful member of the community. What is required in his case, as it seems to me, is a sentencing approach which will do two things: first, administer to him what is sometimes referred to in the discussion of sentencing principles as a short, sharp shock, such as will ensure that the respondent will not offend again; and secondly, reinforce the public policy considerations that underlie the guideline judgment in Jurisic. In seeking to achieve both those objectives it is, of course, necessary to make allowance for the fact that the appellant has already performed in part the periodic detention ordered in the Court below. 11 I have come, therefore, to the conclusion that it would be a just approach to the re-sentencing of the present respondent to impose a sentence of a fixed term of imprisonment for a period of 3 months to date from the date of delivery of the judgment of this Court. 12 I would favour, therefore, orders as follows:

1] That the Crown appeal against sentence be allowed.

2] That the sentence passed upon the respondent in the Court below be quashed.

3] That the respondent be re-sentenced to imprisonment for a fixed term of 3 months to date from today's date.

IN THE COURT OF CRIMINAL APPEAL 60433/99

Sully J Simpson J Carruthers AJ

SIMPSON J : 13 On 16 July 1999, following his plea of guilty to a charge of dangerous driving causing the death of Paramjit Singh, the respondent was sentenced by Judge O'Reilly in the District Court to imprisonment for two years to be served by way of periodic detention. The charge was brought under s 52A(1) of the Crimes Act 1900 which prescribes a maximum penalty of imprisonment for ten years for the offence. The Crown has appealed against the sentence imposed. 14 The basic objective facts may be stated briefly. During the afternoon of 12 April 1998, a Sunday, Mr Singh and his wife and daughter visited the respondent at his home at Liverpool. In the early evening the two men began to consume some alcohol, of what kind, or in what quantities is not (other than will appear below) revealed by the evidence. At about 11.30 pm, after having a meal with other members of their families, the men left in the respondent's car. The respondent was driving, Mr Singh sat in the front passenger seat. They drove firstly to a public telephone booth where Mr Singh made a call to his father in India and then drove on. They were intending to travel to Bankstown to visit another of Mr Singh's friends. At 11.45 they were in Newbridge Road, Moorebank, a six lane, well lit and virtually deserted highway. The respondent lost control of the vehicle which failed to take a bend. It struck the median strip, continued to travel across the wrong side of the road, mounted the far kerb, collided with a fence, rolled several times and collided with a tree and continued a further 51 metres before coming to a halt on its roof in the front yard of a suburban house. In all, the vehicle travelled 112 metres from the point where it first struck the median strip. Mr Singh died instantly as a result of the injuries he sustained. 15 Subsequent testing revealed that at 12.15 am the following morning the respondent had a blood alcohol concentration of not less than 0.099 grams per 100 millilitres of blood. Expert evidence, uncontested and accepted by the sentencing judge, was that at the time of the collision the respondent's blood alcohol content would have been between 0.09 and 0.105 grams per 100 millilitres, the most likely level being 0.105. It was accepted both by the respondent and by the sentencing judge that a blood alcohol content of such a level would have impaired the respondent's driving ability and emergency reaction skill. 16 Uncontested evidence from an engineer established that immediately before the car ran out of control it would have been travelling at a speed of between 90 and 100 kms per hour. The speed limit applicable to the area was 70 kms per hour. 17 On these objective facts it is obvious that the offence was very serious, calling for severe penalty, and certainly for a penalty within the guideline promulgated by this Court with respect to offences against s 52A in R v Jurisic (1998) 45 NSWLR 209. In this regard it is appropriate here to note that the charge to which the respondent pleaded guilty was a charge under s 52A(1), carrying the maximum penalty of ten years imprisonment to which I have already referred, and not the aggravated offence provided for in s 52A(2), carrying a maximum penalty of imprisonment for fourteen years. Nevertheless, the fact of the respondent's alcohol intake is a matter of aggravation. In Jurisic, this Court declared that, in circumstances into which the respondent's case objectively falls, a sentence of less than a total term of three years (full time) custody should be exceptional. 18 Of course, the sentencing exercise is not limited to the objective facts stated and it is necessary to recount some further important matters. Here it may be observed that the respondent gave evidence in the sentencing proceedings, and, while his Honour did not expressly refer to some important aspects of his evidence, it is clear that he accepted the respondent as a truthful witness and accepted his account of events. That account does, to some extent, cast a different light upon the bare facts as I have already stated them. 19 Mr Singh was the respondent's closest friend. Their friendship dated back twenty years, from their school days in India, and had continued thereafter. The respondent immigrated to Australia (in circumstances shortly to be mentioned) in 1996. Mr Singh immigrated to this country only a couple of months before his death. He was very unhappy in Australia and called upon the respondent for comfort. On the afternoon of 12 April he confided his unhappiness to the respondent. It was in these circumstances that the two men came to be drinking alcohol that day. It was not the usual practice of either man to do so and Mr Singh was pouring the drinks. This took place at the respondent's own home, and he had at that time no intention of subsequently driving. Mr Singh later prevailed upon the respondent to drive, notwithstanding the respondent's stated recognition of his intoxicated condition, and his protests to Mr Singh. During the drive Mr Singh became tearful. The respondent reached out with his left hand to offer physical comfort, while attempting to maintain control of the vehicle with his right. It was during this interlude that he missed the bend and collided with the median strip. 20 It may be inferred that not only was Mr Singh distressed, but the respondent was also. He had shortly before heard Mr Singh speaking to his father and telling him of his unhappiness, and had himself spoken to the father who had reiterated that fact and asked the respondent to take care of Mr Singh. It was no doubt a very emotional time for the respondent. 21 The respondent is thirty years of age. He has no prior convictions of any kind. He holds a degree in commerce from an Indian university. Since his arrival in Australia in 1996 he has maintained continuous employment, since March 1998 as a security officer. His background is marked by some very unusual and compelling personal circumstances. He has been granted refugee status in Australia as a result of a genuinely held and well founded fear of persecution in his homeland. The reason for this is that, although a Hindu himself, he worked in the Punjab as a journalist and there supported the Sikh community. His first wife was tortured and killed in 1995. 22 He now has a second wife and a two year old daughter. Another child is expected within days of the time of writing. He has no prior convictions of any kind. 23 Judge O'Reilly accepted a version of the facts extremely favourable to the respondent. The Crown has not submitted (except in one respect, which will appear below) that his fact finding was erroneous, but rather that he gave undue emphasis to certain facts, or that a wrong construction which he placed on others led him into error. He took the view that the case: "leans more towards a momentary inattention than it does to a sustained course of outrageous driving"

and that, given the time (late on a Sunday evening) and road and weather conditions, the speed at which the vehicle was travelling was not "intrinsically dangerous". He said that he could: "see no benefit to society in imposing full time custody".

He referred to Judicial Commission statistics that showed that of seventy-four charges under s 52A(1), 32 percent attracted prison sentences but another 42 percent attracted either community service or periodic detention. He recognised and referred to the decision in Jurisic , but his attention was directed principally to those passages in which the court acknowledged the infinite variety of factual circumstances involved in criminal cases, and the consequent need for flexibility of approach. He did not otherwise explain his decision to depart from the guideline. 24 The Crown asserts that a number of errors can be discerned in the sentencing process. These were identified as:

(i) the failure to give any explanation for the departure from the Jurisic guideline;

(ii) inappropriate and undue weight accorded to subjective circumstances such as the respondent's prior good record, his plea of guilty, remorse, and his employment history;

(iii) the judge's opinion that no benefit to society would result from the respondent's imprisonment;

(iv) reliance on Judicial Commission statistics that pre-date Jurisic ;

(v) the conclusion that the case was closer to one of momentary inattention than a sustained course of outrageous driving;

(vi) manifest inadequacy of the sentence. 25 There is merit in a number of the arguments advanced by the Crown. I begin with the criticism that his Honour failed to give any adequate explanation for what must be categorised as a rather radical departure from the guideline promulgated in Jurisic. In R v Henry [1999] NSW CCA 111; (1999) 46 NSWLR 346 the Chief Justice, with whom all other members of the Court essentially agreed, said that the basis for departure from a relevant guideline should be articulated. Judge O'Reilly recognised the applicability of Jurisic, but did not explicitly state his reasons for his decision to diverge from the sentencing range there stated. It is necessary to examine the remarks on sentence to discern what may have been the underlying and unstated reasons for the divergence. 26 It is therefore to be expected that the reasons for a decision not to apply a stated guideline will be clearly stated in the remarks on sentence, and this was not done by Judge O'Reilly. However, it does not follow that failure to articulate the reasons necessarily amounts to error in the sentencing process. Failure to explain the departure does not necessarily lead to the conclusion that the sentence imposed was erroneous. The statement of reasons for departure from a guideline is required to serve the public interest in the perception of consistency in sentencing decisions, and to provide proper information to this Court in the exercise of its appellate jurisdiction: Henry, para 31. Of course, failure to state the reason for departure may have the consequence that this Court is unable to discern legitimate reasons for departure. That, in turn, may give rise to the inference that there is no proper basis for the departure. 27 The Crown criticised the weight given by the judge to the respondent's prior good record, observing, as has often been observed by this Court in the past, that many individuals convicted under s 52A have no prior criminal history, and can show otherwise favourable subjective circumstances. It was perfectly proper to take all these matters into account, and it was not suggested otherwise, the argument being that the sentence itself demonstrated that excessive weight had been given to these circumstances. There is nothing in the remarks on sentence to indicate that this is so; such a conclusion can only be drawn from the sentence itself. This is a separate matter. 28 Further criticism was made of the judge's stated opinion that there was no benefit to society in sentencing the respondent to a term of full time custody. In general terms, if one leaves aside questions of deterrence, that may be said of many cases of dangerous driving. But the conclusion can be seen to be flawed, in two respects. It disregards the strictures of this Court, most comprehensively pronounced in Jurisic, but also in other cases that pre and post date Jurisic, that, in recognition of community attitudes and the expressed intention of Parliament, custodial sentences should be imposed where death is caused by dangerous driving other than in exceptional circumstances. Moreover, the conclusion fails to recognise the benefit to society in the public punishment of behaviour in which others may be tempted to engage. The courts must do their duty by the entire citizenry, and this includes conveying a message that driving whilst intoxicated will not be tolerated. The remark denotes too narrow a focus. I am, accordingly, satisfied that error has been demonstrated in this respect. 29 I have already mentioned his Honour's reference to Judicial Commission statistics that pre-date Jurisic in relation to sentences imposed on offenders convicted under s 52A(1). Plainly enough, his Honour sought to draw comfort from the relatively high proportion of cases in which a sentence of full time custody was not imposed. In Jurisic a comprehensive review of sentences was undertaken and the guideline promulgated for the future. That renders reliance on pre-Jurisic statistics inappropriate. The purpose of Jurisic was to evaluate sentencing patterns up to that time. I am satisfied that error has been demonstrated in this respect also. 30 The next matter raised by the Crown concerns the observation of the judge that this case "leans more towards a momentary inattention than it does to a sustained course of outrageous driving". 31 It seems to me that what his Honour meant by this was that, notwithstanding the respondent's blood alcohol content, the event which immediately precipitated the collision was the respondent's loss of concentration when he reached out to comfort his friend. But that event cannot be seen in isolation from the unavoidable fact that the respondent was driving whilst there was present in his blood, alcohol at a level of a little more or a little less than twice the legal limit. I do not accept the Crown's contention that the fact of the blood alcohol level means that this was a case in which the respondent had abandoned responsibility for his behaviour. These courts deal with human beings, with all their human weaknesses, and while the courts cannot condone any act of driving whilst there is present in the blood more than the prescribed concentration of alcohol, it is not necessary to characterise every instance of the offence as an abandonment of personal responsibility. Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability. This was the approach taken by the Chief Justice in R v Howland [1999] NSWCCA 10; 104 A Crim R 273. The circumstances in which the respondent came to be driving after consuming alcohol should not be overlooked. He did not anticipate driving when he was drinking, and he initially resisted the request to drive, recognising that he should not do so. These were very unusual circumstances and very relevant to a proper evaluation of his moral culpability. 32 While it is, as I have observed above, wrong to characterise the offence as being an offence of "momentary inattention", it would also be wrong to characterise it as one in which the respondent abandoned responsibility for his conduct. 33 The Crown's final argument is that the sentence was, on its face, manifestly inadequate. I was initially inclined to accept this argument. However, upon reflection, I have concluded that the argument depends too heavily upon the guideline pronounced in Jurisic, without sufficient reference to repeated acknowledgments in Jurisic, and in Henry, that each case is to be considered on its own merits, that the guideline is not to be seen as prescriptive, and that exceptional cases will arise justifying exceptional sentences. This, in my view, is one such case. It is not necessary to reach a firm conclusion on whether the sentence was manifestly inadequately because I am satisfied that the other errors I have identified did infect the sentencing process. Those errors are such as would ordinarily require this Court to re-sentence the respondent. The Crown maintains that nothing less than a term of fulltime custody is sufficient to meet the objective seriousness of this case. 34 There are, however, some additional considerations. Firstly, the respondent has been serving his periodic detention sentence. Other than on occasions when he has properly been granted leave of absence he has attended regularly. He is well into the sentence. While there is no question of attributing blame to either party, the fact remains that considerable time has elapsed since the sentence was imposed and the respondent has complied conscientiously with his obligations. That circumstance led the Crown, very fairly, to concede that it would not be inappropriate to order that the sentence commence on the date when the periodic detention sentence commenced. That was 31 July 1999. 35 The second matter concerns the respondent's family circumstances. Against the possibility of re-sentencing the Court received, without objection, an affidavit of the respondent's wife, Ms Nidhi Sharma. She deposes that she is expected to give birth to her second child on or about 6 February 2000. She has suffered complications with her pregnancy and has spent some time in hospital. She is expected to remain in hospital for about ten days following the birth. Neither she nor the respondent has any family or relatives in Australia, nor friends who are not in employment who would be available to care for their two year old daughter. The appeal was heard on 1 February 2000. 36 It is well established that hardship to families may be taken into account as a sentencing factor only where circumstances are highly exceptional: R v Edwards (1996) 90 A Crim R 510. In my view the circumstances of the respondent's family qualify for that description. 37 Given the course his Honour was taking, it was not necessary for him to consider whether special circumstances existed justifying departure from the sentencing ratio provided for by s 5(2) of the Sentencing Act 1989 . However, the Crown accepts that this would be an appropriate case in which to make such a finding and I agree that this is so. If this Court were to re-sentence the respondent, the sentence I would propose is one of a total term of two years, made up of a minimum term of nine months and an additional term of fifteen months or alternatively, a fixed term of nine months If the Court then adopted the course accepted by the Crown as appropriate and backdated the sentence to commence on the date of the periodic detention sentence, the respondent would be entitled to release on 30 April 2000. Depending on the date judgment is delivered, he would serve two to three months in full time custody. I would be prepared to assume, without evidence, that such an absence would carry risks to his employment. 38 While I recognise some merit in taking such a course in that even such a short term would convey the important message that offences under s 52A(1), at least where alcohol is involved, will almost invariably be met with custodial sentences, I have come to the view that it is open to this Court, in the unusual circumstances of this case, and in the exercise of its residual discretion, to dismiss the Crown appeal. That is the order I propose.

IN THE COURT OF CRIMINAL APPEAL CCA60433/99

SULLY J SIMPSON J CARRUTHERS AJ

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Sentencing Act 1989(NSW)

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