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.
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