Regina v LEE [2002] NSWCCA 236 | Case summary

Wednesday 19 June 2002 REGINA v Doo Jin LEE Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal against the sentence imposed on the Applicant by his Honour Judge Christie QC. The Applicant pleaded guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm contrary to s52A(4) of the Crimes Act 1900. The circumstance of aggravation was that he had a blood concentration of alcohol of 0.190 grammes per 100 millilitres. He was sentenced to a term of imprisonment of three years with a non-parole period of eighteen months. He was disqualified from driving for a period of three years from the date of sentence. 2 The circumstances of the accident were as follows. In the early hours of Monday, 2 October 2000, the Applicant was driving a four wheel drive Landcruiser in a westerly direction along Canterbury Road, Sydney. At about 12.53am he approached the intersection of Ferncroft Parade and, in contravention of traffic control lights, turned right into the path of a Ducati motorcycle ridden by Darren Morris. Mr Morris suffered serious injuries including a broken pelvis, right leg, right elbow and left wrist. His injuries required the insertion of plates and screws. At the time of the accident the Applicant's licence was suspended in relation to charges which were not, in the event, proceeded with. 3 The Applicant had two prior drink driving convictions for high range prescribed concentration of alcohol. However, these offences had occurred in 1989 and 1991. The Applicant's drinking habits which resulted in these two prior offences had subsequently changed. The significance to be accorded to these prior convictions was limited, not only by reason of the length of time that had transpired since they were recorded, but also by reason of the circumstances in which the Applicant commenced to drink again. 4 In October 1998 his only child was murdered in a widely publicised gang attack. The Applicant suffered deeply from this loss. His Honour drew the inference that the resumption of his previous drinking habits was caused by the tragedy that had befallen himself and his wife. The medical evidence to which his Honour referred contained an assessment that he was suffering from depression. One doctor indicated that his behaviour was exacerbated around the anniversary of his son's murder in October of each year. The offence now before the Court was committed on 2 October 2000. A psychiatrist who saw him expressed the opinion that he was suffering from Bereavement Reaction with Abnormal Features including depression. 5 His Honour emphasised that the subjective circumstances of the Applicant presented a strong case. In the circumstances his Honour concluded: "I propose to deal with the matter as leniently as the circumstances permit." 6 His Honour noted that after the accident the Applicant had made good progress in controlling his drinking and in view of his significant prospects of rehabilitation proposed to find special circumstances for purposes of determining the relationship between the non-parole period and the total sentence. 7 His Honour made a finding that the Applicant was unlikely to re-offend and that, accordingly, specific deterrence was not a matter entitled to significant weight. His Honour did, however, refer to the need for general deterrence with respect to offences of this character. His Honour made reference to the prevalence of the offence and the seriousness with which the offence has come to be regarded by the community. This is no doubt a reference to the maximum sentences for which the legislation provides and the frequent repetition, over many years, in decisions of this Court of these considerations. 8 In his judgment his Honour referred to this Court's guideline judgment in R v Jurisic (1998) 45 NSWLR 209. His Honour quoted from the headnote at 211: "Guideline judgments perform a limited role. They are not binding in a formal sense. They are intended to be indicative only." 9 His Honour referred to the list of factors that are relevant to the determination of the appropriate penalty as set out at 231 of Jurisic and identified those which were pertinent to the case before him. He emphasised the degree of intoxication as the consideration entitled to particular weight. Indeed it was that factor which meant that in this case, unlike Jurisic, his Honour was concerned with the aggravated version of the offence for which the maximum penalty was eleven years, rather than the maximum penalty of seven years applicable where the degree of intoxication does not reach the level prescribed for purposes of s52A(4). 10 His Honour referred to that passage in Jurisic at 231 which indicates that one of the aggravating factors is present to a material degree when it may be inferred that the offender has abandoned responsibility for his or her conduct. He noted that in such circumstances, in the case of a plea of guilty, a custodial sentence of less than two years should be exceptional. His Honour also noted the guide expressed in Jurisic that such period of two years would be a "starting point". 11 His Honour, who described the subjective case of the present Applicant as "compelling", also had in mind the emphasis given in Jurisic to the seriousness with which the offence is treated. His Honour did at one point refer to Jurisic as indicating the significance of general deterrence. His Honour also said: "I propose to ameliorate as far as I am able on behalf of the prisoner the sentence that would be required, very largely because of the subjective circumstances surrounding the death of his son and the effect that must have had upon his wife and the effect, of course, that his imprisonment will have upon his wife. That is something I must take into account and I propose so to do. But I think the only way that that can be dealt with properly within the guidelines of R v Jurisic and within the requirements of the community is to find special circumstances related very principally to the contents of the Probation and Parole Report and I propose so to do." 12 His Honour went on to say: "There is not only a need to deter Mr Lee from further offending in this matter, there is, of course, a need to generally deter other citizens likeminded to offend in this way. That position is made perfectly clear by the learned judges in R v Jurisic. The maximum penalties for this offence are high. They have increased in recent years because of community concern." 13 His Honour went on to refer to other judgments of this Court and stated that: "The Jurisic guidelines would need to be proportionately increased for the aggravated versions of the offences arising in cases of death under s52A(2) … and in cases of grievous bodily harm …" 14 His Honour concluded: "I realise that I have been somewhat lengthy in setting forth some matters largely to acquaint the public with the seriousness with which these offences are these days considered. I propose to deal with the matter as leniently as the circumstances permit, having regard to the subjective circumstance to which I have made reference. The special circumstances that I am prepared to find relate to the rehabilitation prospects of the prisoner and the fact that those rehabilitation prospects appear to have been enhanced over the years since those two convictions to which I made reference by reason of the alteration of his drinking habits. I gained from the Probation and Parole Report that the alteration of those habits has been resumed and that the tragedy that befell this cyclist in October last year is perhaps much less likely to be repeated at least at the hands of the prisoner. I would be quietly confident that the prisoner may be unlikely to re-offend but the need for general deterrence is constantly referred to by the superior courts of this State and I cannot ignore that need." 15 His Honour went on to determine the sentence and also found "special circumstances" of a character enabling him to fix a non-parole period at the level of 50 percent of the head sentence that he imposed. 16 It is of particular significance, in view of some of the matters raised by way of appeal, that his Honour considered in some detail a submission that had been made to him that this was an appropriate case in which to suspend the custodial sentence. His Honour referred to the High Court's decision in Dinsdale v The Queen (2000) 202 CLR 321 and quoted a number of passages from the judgment of Kirby J in Dinsdale, including his Honour's statement at [68]: "It is true that both by the applicable statute, and by the common law, a primary duty of judges on sentencing is to give due weight to the objective seriousness of the offence." 17 At this point his Honour referred to R v Dodd (1991) 57 A Crim R 349 at 354. His Honour proceeded to reject the submission that he should suspend the sentence on the facts of that case. He said: "But there is here a prisoner who cannot claim to be a young person with no prior convictions. There is here a prisoner who has apparently deliberately opted to drive in circumstances in which the chances of his coming to grief must have been very high, and indeed the prisoner is a person who has had previous experience, dare I say it, considerable experience with the courts in relation to driving while heavily intoxicated by liquor. I see in the interests of the community not the slightest elbow room to consider the suspension of any part of his sentence." 18 The appeal in this case was heard together with a number of other cases in which this Court was asked to review the continued authority of this Court's guideline judgments, relevantly R v Jurisic, in light of the decision of the High Court in Wong v The Queen [2001] HCA 64; 76 ALJR 79. It is not necessary to decide this case on that basis. 19 The Applicant relied on a number of different grounds for his submission that the exercise of discretion by the sentencing judge miscarried. One of these grounds was that his Honour gave inappropriate weight to the starting point in the guidelines, namely a term of two years in a case of the infliction of grievous bodily harm. His Honour made reference to Jurisic but it does not appear to me that his Honour regarded the starting point as constraining the exercise of the discretion. I have quoted above the relevant extracts from his remarks on sentence. The extent to which his Honour adopted the guideline is not entirely apparent. 20 This case can, however, be determined on the basis of another and alternative submission made to the Court. It was submitted that the exercise of the sentencing discretion miscarried by reason of the fact that his Honour did not take into account the utilitarian value of the plea. (See R v Thomson (2000) 49 NSWLR 383 and R v Sharma [2002] NSWCCA 142.) 21 His Honour did refer to the plea, but only in terms of it constituting a "genuine expression of contrition and remorse". His Honour did not refer in any way to the utilitarian value of the plea. Nor did his Honour provide any quantification of the amount of discount for the plea which he was proposing to allow. 22 In the usual case this Court will be slow to infer that a trial judge has failed to take into account a well-known consideration, merely by reason of a failure to refer to that consideration. However, in this case such an inference, in my opinion, ought to be drawn. 23 As quoted above the trial judge expressly said: "I propose to ameliorate as far as I am able on behalf of the prisoner the sentence that would be required" and "I propose to deal with the matter as leniently as the circumstances permit". In the light of this general approach which his Honour said he adopted, it appears to me that if he had given the utilitarian value of the plea the full weight that it deserved, which is substantial, there would have been an express reference to that consideration. 24 In my view, the exercise of the sentencing discretion miscarried by reason of his Honour's failure to take into account this material factor. The discretion falls to be re-exercised by this Court. 25 His Honour indicated that the circumstances of the offence called for a custodial sentence and that it was not an appropriate case in which to suspend such sentence. In this respect his Honour referred to Jurisic, but indicated that he would have come to that view irrespective of the reasoning in Jurisic. His Honour also referred to Dinsdale as quoted above. I agree with his Honour's conclusion in this respect. 26 The relevant circumstances are set out in his Honour's judgment and have been briefly summarised above. The subjective circumstances are entitled to particular weight. The tragic circumstances in which the Applicant returned to a course of binge drinking is entitled to sympathy, although it does not excuse his conduct which endangered the public by driving while under the influence. 27 There is also material before this Court that was not available to his Honour. It appears that he is making further progress in prison with respect to his alcohol problem. When he was first placed in custody at the Metropolitan Remand and Reception Centre at Silverwater he was held in Pod 10. He became aware that an inmate in the adjoining pod was the person who had been charged with the murder of his son and he could hear his name being called out from time to time. He said that he found this an extremely stressful experience. In this regard the circumstances of his incarceration were particularly harsh. 28 I agree with his Honour's conclusion that a term of three years was an appropriate starting point, in all of the circumstances, particularly by reason of the strong subjective case put before the Court. However, I would apply a discount of twenty-five percent to that term by reason of the utilitarian value of the plea. Accordingly, I would replace his Honour's term of imprisonment with a term of two years and three months. 29 His Honour fixed the non-parole period at fifty percent of the head sentence. It is not clear to me that all of the matters to which his Honour referred constituted special circumstances which justified a variation in the statutory ratio of this degree. Nevertheless, I am not minded to change the proportion bearing in mind the principle of double jeopardy. 30 I propose the following orders:

Regina v LEE

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