Regina v McMillan [2005] NSWCCA 28 | Case summary

Regina v McMillan [2005] NSWCCA 28 | Case summary | Zoe

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R v Andrew IVON McMILLAN 1 SANTOW JA: I agree with Howie J. 2 BELL J: I agree with Howie J. 3 HOWIE J: This is an application for an extension of time in which to appeal against conviction, an application for leave to appeal against sentence and a Crown appeal against sentence. The Crown appeal was first in time and for convenience I will refer to Mr McMillan as the respondent. The respondent was convicted on 3 May 2004 but did not appeal against conviction until 25 August 2004. 4 On 11 March 2004 the respondent was arraigned before the District Court on an indictment containing two counts in the alternative. The first count alleged the offence of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act. He pleaded not guilty to that count. The second count alleged the offence of aggravated dangerous driving occasioning grievous bodily harm contrary to s 52A(4) of the Act. On the respondent pleading guilty to the offence in the second count, the Crown accepted that plea in full discharge of the indictment. 5 Both charges in the indictment arose from a single course of driving by the respondent on 26 January 2002. The victim in each charge was the same, Glen Charles Powell. The difference between the two charges was that the first alleged that the death of Mr Powell was occasioned by the impact of the respondent's motor vehicle and the second alleged that the impact occasioned grievous bodily harm to Mr Powell. There was an issue as to causation between the impact and Mr Powell's death and this was determined in favour of the respondent by the acceptance of the plea of guilty. In both charges it was alleged that the respondent was at the time of the impact under the influence of alcohol. Each charge also alleged that the "prescribed concentration of alcohol" was present in the respondent's blood at the time of impact and this was the matter of aggravation relied upon by the Crown. 6 There are three grounds of appeal against conviction as follows:

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(7) Definitions In this section: prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood. 12 In summary the scheme of the legislation is as follows. There are two offences arising from the infliction of grievous bodily harm as a result of an impact when the driver of the motor vehicle was under the influence of liquor. The aggravated offence, s 52A(4) arises where the driver at the time of the impact has a concentration of alcohol of the prescribed quantity, s 52A(7), that is a blood alcohol reading of more than 0.15, s 52A(9). A driver is presumed to be driving under the influence of liquor where he has a prescribed concentration of alcohol at the time of the impact, s 52AA(1), that is a concentration above 0.15, s 52AA(7). The concentration determined by analysis is taken to be the concentration at the time of impact provided that the blood sample analysed was taken within two hours of the impact, s 52AA(3). 13 In that part of the proceedings, to which the transcript quoted above relates, it is clear that her Honour had raised the issue of the relevant blood alcohol reading for the purposes of sentencing the respondent and had determined to ignore a reference in the statement of facts to it being 0.205, because, as she was informed by counsel for the respondent, it was a reading taken "after the event". Her Honour was directed by the Crown to a report in the brief of evidence indicating that the blood alcohol range was between the 0.170 and 0.265, but the Crown acknowledged that it was relying upon the lowest end of that range. Judge Payne accepted that this was appropriate. When asked by her Honour why the Crown was relying upon an estimate of the blood alcohol reading rather than the blood sample, defence counsel informed her that the sample of blood was taken two hours and twenty minutes after the accident. Her Honour then raised the question of whether the respondent had been drinking all day and was referred to passages in the ERISP. 14 It is, therefore, apparent that the respondent continued to maintain his plea of guilty to the second count at a time when the question of proof of the blood alcohol concentration had been discussed openly between the parties and her Honour in circumstances where defence counsel must obviously have considered the issue of whether the Crown could prove the circumstance of aggravation and whether the respondent's plea of guilty was in accordance with the evidence in the prosecution brief. However, the respondent now seeks to resile from the position before the District Court and asks this Court, in effect, to grant him leave to go behind the plea of guilty and challenge his conviction of the offence on the second count. 15 The evidentiary material before her Honour relevant to the respondent's blood alcohol level included the following:

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Q You made the decision to drive after drinking most of the day? A Yes. 18 The respondent pleaded guilty to the aggravated offence as particularised by the Crown and, therefore, is to be taken as having admitted each of the elements of the offence of the charge, including the element of aggravation. Of course it was open for the sentencing judge to reject the plea but she was never asked to do so and there was nothing in the statements in the police brief or in the evidence of the respondent to raise any question about the propriety of the plea. Nor is there any material before this Court to indicate that the respondent's plea should not be taken for what it was: a voluntary admission of the elements of the offence. There is no evidence placed before this Court to suggest that any of the circumstances, in which this Court would permit a person to go behind the plea of guilty, existed. 19 The grounds of appeal are drawn in terms of asserting legal error arising from both the charging of the respondent with the offence of aggravated dangerous driving and in the Judge convicting the respondent of that charge. But these grounds seem to be based upon a misconception of the relevant provisions of s 52AA. These provisions are, as the heading to the section makes clear, procedural matters. In particular the provisions, referred to and relied upon by the respondent as indicating that the respondent was erroneously charged and convicted, merely facilitate the Crown in its proof of one or other of the elements of an offence created by s 52A. The respondent by pleading guilty relieved the Crown of the onus of proving any of the elements of the offence under s 53A(4) and, therefore, the provisions in s 52AA were made irrelevant. 20 For example, the fact that the sample of blood was taken more than two hours after the impact did not mean that the respondent could not be guilty of the offence under s 52A(4). That fact simply meant that, had the Crown been required to prove the charge, it could not rely upon the deeming provision in s 52AA(3) to prove the respondent's blood alcohol concentration at the time of impact. But there is nothing in the section that prevents the Crown from charging or proving the aggravated offence on the basis that the sample of blood was not taken within the two hour period. 21 The contention in ground 1 that the existence of s 52AA(3) prevented her Honour from convicting the respondent of an offence under s 52A(4) misconceives both the relevance of the provisions in s 52AA and the effect of the applicant's plea of guilty to the second count in the indictment. Similarly the assertion in ground 3 that the respondent should not have been charged with an offence under s 52A(4) finds no basis whatsoever in any of the provisions of s 52AA or the general law of criminal procedure. 22 The second ground asserts that the respondent should not have been convicted of the offence under s 52A(4). But there was no basis upon which the sentencing judge could have refrained from convicting the respondent of that offence in light of both his plea of guilty and the evidence before the court by way of the police brief and the respondent's testimony. The respondent argues that there was no sufficient basis upon which Dr Anderson could give the opinion as to the range of blood alcohol reading because there was no evidence to support his assumption of "continuous drinking" on the part of the respondent, whatever that term might involve. But whether or not Dr Anderson's opinion might have been admissible had objection been taken to it is beside the point in light of the applicant's plea and its acknowledgement that his blood alcohol concentration at the time of the impact was at least 0.150. Although the applicant's evidence was somewhat conflicting as to the amount of alcohol he had consumed prior to the accident, or at least as to whether he had any reliable memory of what he had consumed, ultimately he agreed with the Crown's assertion that he made the decision to drive "after drinking most of the day". 23 For the purpose of considering the respondent's appeal against conviction I have found it unnecessary to review in any detail the authorities concerned with the circumstances in which this Court would allow an appellant to traverse the plea of guilty. Those principles are well known and were reviewed comprehensively in Van (2002) 129 A Crim R 229. 24 Mr Halligan asserts, without evidence to support it, that the plea was entered without a full knowledge of the facts. See R v Ganderton (NSWCCA, unreported, 17 September 1998) where it was held:

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That assertion sits uneasily with the transcript of the proceedings before Judge Payne, set out above, which makes it plain that the respondent's legal representative was well aware of this "defect" in the Crown's evidence. In any event the fact that the plea was entered notwithstanding that the Crown might have difficulty in proving an element of the charge does not mean that the plea of guilty is not entered "with a full appreciation of the facts and as a genuine recognition of guilt". 26 It has been held that the Court should only entertain a ground of appeal such as the present with "caution bordering on circumspection" because of the significance of the plea of guilty: Liberti (1991) 55 A Crim R 120 at 122. The onus is upon the person seeking to have the conviction set aside to satisfy the Court that the conviction following the plea of guilty has resulted in a miscarriage of justice. In the present case the respondent has not only failed to fulfil that onus, but a consideration of the whole of the material including the evidence given by the respondent satisfies me that there is no possibility of miscarriage of justice having occurred. 27 I am of the opinion that the respondent should not be permitted to go behind the plea of guilty and the appeal against conviction fails. There should be an order that the application for an extension of time in which to appeal is granted but the appeal is refused. 28 This then leads to a consideration of the question of sentence. A conviction for the offence to which the respondent pleaded guilty exposed him to a maximum sentence of 11 years imprisonment. Judge Payne sentenced the respondent to imprisonment for 3 years from 3 May 2004 with a non-parole period of 1 year 9 months. The respondent will be released to parole on 2 February 2006. The respondent was also disqualified from driving for a period of 4 years from 26 January 2002. There is no appeal against that order. 29 The Notice of Appeal by the Crown is dated 12 May 2004 some 9 days after sentence was imposed. There was, therefore, no undue delay in the bringing of the appeal. Although the respondent sought leave to appeal against sentence, no submissions were made either orally or in writing in support of that application. Rather in submissions in answer to the Crown appeal the respondent sought to support the Judge's findings and the sentence imposed. 30 The facts can be briefly stated. On Australia Day 2002 at about 6pm, when driving home along a country road, the respondent allowed his vehicle to veer onto the incorrect side of the road where it collided with an on-coming vehicle. As a result, the driver of the other vehicle suffered extensive injuries to both legs and his left arm and internal injuries. He was hospitalised but died a short time later. As I have already noted, the acceptance of the plea of guilty by the Crown was on the basis that it was conceded that the respondent was not criminally liable for the death of Mr Powell. The respondent had a blood alcohol reading of at least .170 and it was estimated that he had consumed about 17 middies to reach that level of intoxication. The respondent had been drinking alcohol at various times throughout the day prior to driving his vehicle. 31 The respondent told investigating police that he did not see the other vehicle before the impact. He thought that he may have moved toward the centre of the road to avoid a wild animal or because there was loose gravel. He was distracted at the time by a twist in his seat belt. He believed that the road was not wide enough to allow for vehicles to pass with safety particularly if large trucks were using the road. He said that he did not feel intoxicated. Although he denied having alcohol in the vehicle, there was evidence of an open stubby near the foot pedals and a strong smell of alcohol coming from the vehicle. 32 The respondent was aged 52 years at the time of sentencing and was living on the proceeds of investments. He resided with a friend on a property near Tarago. He had a history of alcohol-related offences including a conviction for manslaughter in 1992 arising from the shooting of his then partner for which he received a sentence of imprisonment for 8 years with a minimum term of 5 years. He had prior PCA offences in 1975, 1977 and 1987. He had been reissued with his Class C licence in July 1998. 33 While the respondent was serving the sentence for manslaughter in 1993 he was assaulted in prison, receiving serious head injuries as a consequence, and there were before her Honour a number of reports concerning these injuries and their impact upon him. In particular there was a psychologist report dated March 2004 indicating that as a result of the assault in prison, the respondent suffered the following: fatigue; concentration difficulties; decreased motivation; slowed information processing; and feelings of unsteadiness and vertigo. He did not suffer any deterioration in his condition as a result of the collision. The respondent said in evidence that he also had trouble with blurred vision and dizziness. 34 The respondent gave evidence that he had attended counselling for alcohol use while in prison but did not consider that he had any problem with alcohol at the time of the collision. He did not regularly drink to excess. He had the prospect of obtaining work as a groundsman at a restaurant that was being established. He had been involved in voluntary work for Landcare for a number of years and in a local volunteer bush fire-fighting brigade. There were witnesses called as to the respondent's voluntary work, his standing in the community and his remorse for the injuries inflicted upon Mr Powell. 35 The respondent had been under the care of a psychiatrist, Dr McConnell since 1996. Following the collision with Mr Powell's vehicle the respondent became depressed with suicidal thoughts. He was prescribed anti-depressant medication. The psychiatrist last saw the respondent on 10 April 2003 and at that time he expressed his remorse, assuring the psychiatrist that, if he had his licence returned, he would never drive again after consuming alcohol. Although he was still depressed, he was refusing to take medication. The respondent was fearful about the prospect of going to gaol, believing that there was a high risk of him again being assaulted. 36 Judge Payne granted the respondent a discount of 20 per cent for the plea of guilty and found the respondent to be contrite and remorseful. Her Honour considered the guideline judgment in R v Whyte (2002) 55 NSWLR 252 and noted the differences between the features of the present case and those considered as the normal case in Whyte. Unlike the characteristic offender considered in Whyte, the respondent was neither a young offender nor did he have good character or limited prior record. Her Honour, however, noted that unlike the normal case where the plea of guilty had limited utilitarian value, in the present case the plea was of significant value. Her Honour also considered the aggravating features listed in R v Jurisic (1990) 45 NSWLR 209 and determined that the respondent had demonstrated a high level of moral culpability and had abandoned responsibility for his own conduct. She noted that the respondent had to travel "a fairly long distance on a difficult road". 37 Her Honour then went on to consider the list of aggravating factors contained in s 21A of the Crimes (Sentencing Procedure) Act and found that two were present: (d), a record of previous convictions, and (g), the injury, emotional harm, loss or damage was substantial. Judge Payne did not find that (i), the offence was committed without regard for public safety, was made out. The Crown relies upon this finding as an error. 38 Section 21A(2) provides:

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The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence If the respondent had been charged with an offence based upon the fact that he was driving in a manner dangerous to the public, it seems clear that a court could not take into account that the offence was committed without regard to public safety because that fact is an element of the offence. An offence based upon the fact that the driver was under the influence of liquor does not explicitly contain as an element of the offence that the driving was without regard to public safety. But the offence of driving under the influence, particularly where it is alleged that the driver has a blood alcohol reading over 0.15, is premised on the fact that to drive in such a condition is dangerous to other persons on the road. It seems to me that there would be an element of double counting in finding that the offence was aggravated by those factors mentioned in Jurisic and Whyte , which are generally concerned with the danger posed to members of the public by the driving, and then to find that the offence is also aggravated because the driving was without regard to public safety. 39 I do not believe her Honour was in error in not finding the offence was aggravated by item (i) in s 21A(2) because that factor is reflected in the elements of an offence under s 52A and in the aggravating factors to which a court is to have regard specifically when sentencing for such an offence. 40 Judge Payne next considered the mitigating factors under s 21A(3). Her Honour found that the following were present: (b), the offence was not part of a planned or organised criminal activity (g), offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, (i), the offender was remorseful, and (k) a plea of guilty. Her Honour also found that the respondent would be more vulnerable in custody and his conditions of custody would be more onerous because of his fear, poor health and the effects of his brain injury. 41 The Crown does not cavil with any of these findings, but it does assert that her Honour was in error in taking into account that the offence could have been dealt with summarily. Despite the fact that she found that the case was not appropriate for summary disposal, Judge Payne took into account that the offence could be disposed of summarily and gave "some very small consideration to this": see R v Barton [2001] NSWCCA 63. In my view this particular offence would never have been dealt with summarily and there was no basis to take that consideration into account at all: see R v Royal [2003] NSWCCA 275 at [38]. However, this is a minor matter and cannot have affected the sentence to such a degree that this Court would interfere. 42 Judge Payne found that there were special circumstances justifying a reduction in the non-parole period. Although the Crown, as I understand it, does not contend that this finding was not open to the Judge, it does submit that the non-parole period specified was inadequate to reflect the criminality involved in the offence. 43 On the face of it the sentence seems unduly lenient. This was a very serious instance of an offence for which the maximum penalty prescribed is imprisonment for 11 years. As her Honour found, the offence was aggravated by the abandonment of responsibility by the respondent in determining to drive about 15 kilometres on a difficult stretch of road on which he knew there might be other drivers even occasionally trucks. It was the type of road where all of a sober driver's care and attention was required. To undertake the road when he was well aware that he had been consuming alcohol for the large part of the day was not simply irresponsible, it was seriously criminal. In Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 at [102] it was stated:

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A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases. At the high range level of PCA it could rarely, if ever, be suggested that the person lacked this appreciation at some point of time before the decision was made to get behind the wheel of [a] motor vehicle. These observations may be trite, but they must be kept in mind when consideration is given to the level of criminality involved in driving at the high range PCA and the appropriate punishment necessary to reflect it. 44 Further the respondent must have known that by reason of his brain injuries and other difficulties he was a greater risk on the road after consuming alcohol than other persons not suffering from those problems. 45 The respondent had little in his background to assist him. His voluntary work for the community was of little importance given the seriousness of the offence and his record. Despite his statements to the contrary the applicant has obviously abused alcohol for the greater part of his life. His prospects for rehabilitation, as her Honour noted, depended upon his ability to control his use of alcohol. It is difficult with respect to support her Honour's findings that his prospects of rehabilitation were good in light of the fact that he appears to have learned nothing about the responsible use of alcohol from his earlier offences and the courses he attended while in gaol. Although he was unlikely to offend if he remained sober, the chance of that occurring was, to say the least, speculative. 46 The Crown contends that the discount for the plea of guilty was too generous as, despite her Honour's finding to the contrary, there was little utilitarian value in the plea. The only real issue was whether the Crown could prove the causal link between the impact and the death of Mr Powell. A trial of the offence to which the applicant pleaded guilty would have been short and the witnesses to be called would have been police officers. However, her Honour indicated during her remarks that the Crown before her had accepted that a reduction of 20 per cent was appropriate. Certainly the Crown did not cavil with her Honour's statement of intention to give such a discount during submissions by the defence. The Crown should not be heard to take issue with that matter now. 47 As against a maximum penalty of 11 years, the undiscounted sentence of 3 years 9 months is in my view inadequate to reflect the serious criminality involved in the offence, the serious injuries occasioned to Mr Powell and in light of the respondent's record. I would have thought that an appropriate starting point was about 6 years. A discount of 20 per cent would lead to a head sentence of 4 years 9 months. 48 However, the respondent argued that, having regard to the statistical information concerning sentences imposed for an offence contrary to s 52A(3), the sentence imposed was well with the range open to her Honour. The statistics show that for an offence of this type, after a plea of guilty, 77 per cent of head sentences are under 42 months with 60 per cent under 36 months. This is a surprising result in view of a maximum penalty of 11 years. The longest sentence imposed was 6 years. It might be thought that these statistics reflect to some degree that many of the offenders have no prior criminal record, but the statistics show that, even where the offender has a prior record for similar offences, 75 per cent still received sentences of less than 3 years (although the sample size is very small only being 12 cases). 49 It should be noted that the maximum penalty for an offence under s 52A(4) is greater than that for a non-aggravated offence causing death, the maximum penalty for an offence under s 52A(1) being 10 years. Parliament should be taken as being of the view that generally an offence under s 52A(4) is slightly more serious than an offence under s 52A(1) notwithstanding that the consequences of the driving will be less serious. Yet the statistics show that sentences for an offence under s 52A(1) are markedly more severe than those for an offence under s 52A(4): only 14 per cent of head sentences are less than 3 years. 50 This difference is perhaps understandable in that the courts will generally consider that an offence in which a death has been occasioned will be more serious than where death did not occur. This no doubt reflects community attitudes. But the offence of dangerous driving has two features: the driving and the result. The aggravated form of the offences reflects the aggravated criminality of the driving by reason of the presence of one of the facts set out in s 52A(7). Each of those facts represent a very significant increase in the criminality from the non-aggravated form of the offence whatever might be the other objective facts of the particular offence for which sentence is being passed. 51 It may well be the case that insufficient regard is being paid to the seriousness of the driving as reflected in the matters of aggravation specified in the s 52A(7) and the increased penalties that the aggravated form of the offence attracts. Appropriately the statistics do reflect a difference in sentencing between the non-aggravated form of the offence and the aggravated form: 83 per cent of sentences for an offence under s 52A(3) are less than 3 years. But the difference between the range of sentences imposed for that offence and the range for an offence under s 52A(4) do not appear to reflect the increased maximum penalty or the increased culpability arising from the fact that the offence is an aggravated one and the serious nature of the element of aggravation. 52 In Whyte it was held that, where the offender's moral culpability is high, a sentence of less than two years would not generally be appropriate for an offence under s 52A(3). It was also held that for an aggravated offence "an appropriate increment is required". The appropriate increment must recognise the increase in the maximum sentence from 7 years to 11 years and the increased criminality arising simply from the fact that the offence is an aggravated one. 53 So in the present case her Honour had to sentence the applicant for an offence of significant gravity before any other objective factor was taken into account. She found, with respect, correctly that the applicant's moral culpability was high and that he had abandoned responsibility. In light of the period over which he had been drinking alcohol and the nature of the driving he had to undertake these findings were clearly required. But these findings were to be taken into account over and above the fact that he had a reading of over .015, this being an element of the offence. His offending under the influence of alcohol in the past, both generally and specifically in relation to driving motor vehicles, deprived him of any leniency. The injuries occasioned to Mr Powell were serious. It was, therefore, an offence, although not the worst of its kind, coming within the upper range of offences of its type. 54 The Crown cannot point to any specific error that would indicate that her Honour's discretion miscarried. In that case it would be exceptional for this Court to allow the appeal simply on a finding that the sentence was inadequate: R v Baker [2000] NSWCCA 85. However, notwithstanding the range of sentences for this type of offence revealed by the statistics, I am firmly of the view that the sentence was inadequate having regard to the seriousness of the driving, its consequences and in light of the applicant's record. There could, in my opinion, be little moderation of the head sentence on the basis that the respondent might find imprisonment more difficult because of his injuries and fear of further attack. There were little other subjective or objective matters of mitigation that could reduce the sentence to that chosen by her Honour. 55 I remain of the view that the appropriate starting sentence would have been 6 years but that should be moderated because of the existing range of sentences to 5 years. A discount of 20 per cent reduces the sentence to 4 years. I would find special circumstances for the reason given by her Honour but the reduction in the non-parole period is limited by the importance of the minimum term of imprisonment reflecting both general and special deterrence and the seriousness of the offence. The non-parole period should be 2 years and 6 months. In determining that the Court should interfere and what sentence should be imposed, I have taken into account the limitations on this Court interfering at the behest of the Crown: see R v Wall [2002] NSWCCA 42 at [70]. 56 I propose that the application for leave to appeal against sentence be refused. I further propose that the Crown appeal be allowed and the sentence imposed by Judge Payne be quashed. In lieu I would impose a sentence of 4 years to commence on 3 May 2004. There should be a non-parole period of 2 years and 6 months to commence from 3 May 2004 and the respondent is eligible to be released to parole on 2 November 2006. **********

Regina v McMillan

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