Regina v Nguyen

CATCHWORDS: Crown appeal on sentence - dangerous driving occasioning death - early plea of guilty - application of guideline judgment of R v Whyte - whether sentencing judge correctly applied guideline judgment.

Gillett v R [2006] NSWCCA 370 at [47] R v Jurisic (1998) 45 NSWLR 209 CASES CITED : R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Wall [2002] NSWCCA 42 R Whyte [2002] NSWCCA 343; 55 NSWLR 252 Veen v The Queen (No 2) (1998) 164 CLR 465

PARTIES: Crown - Appellant Thanh Nguyen - Respondent

COUNSEL: Ms N Adams - Appellant Crown Mr S Odgers SC - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Appellant Crown S O'Connor, Solicitor, Legal Aid Commission - Respondent

IN THE COURT OF CRIMINAL APPEAL 2008/071

JAMES J HOEBEN J HALL J

Wednesday, 4 June 2008 R v NGUYEN, Thanh Judgment 1 JAMES J: I agree with Hoeben J. 2 HOEBEN J: Offences and sentence The respondent entered a plea of guilty to one count of dangerous driving occasioning death on 25 August 2006, contrary to s 52A(1)(c) Crimes Act 1900. The maximum penalty is imprisonment for 10 years. 3 On 19 November 2007 Sides DCJ imposed a sentence of imprisonment with a non-parole period of 12 months commencing 14 November 2007 and expiring 13 November 2008 with a balance of term of 15 months expiring 13 February 2010. His Honour disqualified the respondent from holding a licence for 5 years. 4 The Crown has appealed from that sentence.

Factual background 5 On the evening of 25 August 2006 the respondent was at the victim's house in Cecil Hills drinking with the victim and another friend, Sergio Jape. At around 11.35pm the respondent suggested that they go for a drive. It was the respondent's evidence that they were going to get food. The respondent said that the outlet where it was intended to purchase food was about a kilometre or so away or one minute's drive from the victim's house. The respondent said that it did not occur to him to walk to get the food. 6 At the time the respondent had a provisional licence which had as a condition that he not drive after drinking. The respondent drove the vehicle with Mr Jape in the front passenger seat and the victim in the back. After having driven to the shops, the respondent was driving north in Spencer Street when, about 50 metres north of the intersection with Gabriella Street, he lost control of the car. The car spun out of control, mounted the kerb and collided with a wooden fence which was made of treated pine logs. One of the logs penetrated the car and struck the victim. The car travelled a little further and came to rest after hitting a tree. The victim sustained fatal injuries. The respondent and Mr Jape sustained minor injuries although the respondent did lose consciousness. 7 The respondent had no recollection of the accident. The evidence of Mr Jape was that the car started to pick up speed after entering Spencer Street near the high school, which is about 400 metres south of where the respondent lost control of the car. Mr Jape described the speed of the Integra as "pretty fast", "more than the speed limit". The speed limit was 50kph. 8 Although the respondent did not remember the speed at which the car was travelling, he accepted that he was speeding and accepted what Mr Jape had told him about the accident. During the ERISP interview the respondent said that he could not really remember how fast he was going but said that it was "pretty fast" and he suggested a figure of 80kph. At the time he was aware that the speed limit was 50 or 60 kph. 9 A nearby resident heard an engine revving loudly. He said that the car was going at "extremely high speed" and fishtailed on a bend where the driver lost control. This witness was stationary at the time. His Honour noted that it was notoriously difficult to accurately estimate speed when an observer was stationary. 10 His Honour found that it was impossible to determine accurately how fast the car was travelling when the respondent lost control. His Honour was satisfied beyond reasonable doubt that the car was travelling well in excess of the speed limit. 11 Spencer Street is not a straight street. It gradually curves from the roundabout near the high school to the intersection of Gabriella Street and then curves in the opposite direction. The respondent was familiar with the street and aware of its features. 12 His Honour was satisfied that the car was in good mechanical condition and that the road surface was in a good state of repair. 13 Prior to the offence, the respondent had been drinking vodka out of a large tumbler. A blood sample taken from him at the hospital gave a reading of 0.092 grams of alcohol per 100 millilitres of blood. The court accepted that at the time of impact the respondent's blood alcohol level was between .098 and .12, most probably about .1. The court also accepted expert opinion that for all people a reading of .098 would indicate an impairment of driving ability, particularly in relation to complex reaction skills, perception, judgment, decision making and glare resistance. 14 The court was satisfied beyond reasonable doubt that at the time of impact the respondent was significantly affected by alcohol and that as a consequence his skills necessary for driving were significantly impaired, as indicated in the expert's opinion. 15 On 20 August 2006, five days before the accident, the respondent had been booked for a low range PCA. In his evidence the respondent said that on that occasion he had slept before driving and only drove because he felt Okay. 16 On the night of the accident, the respondent said that he had not intended to drive after drinking. The respondent knew that it was a condition of his provisional licence that he must not drive after drinking. As was the case on 20 August, the respondent said that he felt Okay to drive on the 25th. 17 The area where the accident occurred is a residential area. Spencer Road is not a major thoroughfare or arterial road. The expectation would be that at that time of night traffic would be light and there would be few pedestrians, if any, about. Photographs indicated that the houses which were only on the eastern side of the road were well set back from the road itself. The court accepted that the distance over which the respondent exceeded the speed limit before losing control was very short. 18 The respondent was born on 19 August 1987 and had turned 19 shortly before the accident occurred. His driving record was poor. He obtained a learner's licence in December 2003 and his provisional licence in October 2004. He failed to comply with the conditions of his provisional licence on 4 January 2005, 9 April, 15 July and 5 August 2006. The respondent was fined for speeding in March and July 2005. As already indicated, on 20 August 2006 he had been booked for a low-range PCA and he was subsequently convicted of that offence.

Remarks on sentence 19 His Honour accepted that the respondent had pleaded guilty at the earliest opportunity and applied a discount of 25% to reflect the utility of the plea. 20 Although his Honour did not think that the respondent's evidence conveyed the impression of sincere remorse, he found that there was other evidence which supported genuine remorse justifying leniency on that basis. In that regard his Honour noted that on 6 November 2006, after the offence, the respondent had driven a motor vehicle while disqualified and had remained in custody for 15 days after his arrest. His Honour thought that this was the main reason for the respondent changing his attitude of acting without considering the consequences. His Honour was, however, satisfied that the respondent had changed his attitude. 21 In assessing the quality of the respondent's behaviour in driving after drinking, his Honour found that the respondent took a calculated risk that the police would not detect him if he drove. His Honour found that the respondent's conduct in choosing to drive after drinking over some hours and in driving well in excess of the speed limit showed a high level of moral culpability. 22 His Honour reviewed the respondent's subjective features. The respondent was born to Vietnamese parents in a Thai refugee camp and had arrived with his family in Australia in 1990. Although the family experienced isolation and poverty, the family remained close and at the time of sentencing was supportive of the respondent. 23 The respondent had been expelled from school during year 11 for fighting. The respondent had intended to undertake a career in computing engineering but mixing with peers of questionable influence at school led to a loss of motivation. After leaving school he worked at the fish markets and then in 2004 began an electrical apprenticeship. He was forced to cease the apprenticeship in April 2007 because of the loss of his licence. His employer thought that the respondent had the capacity to become a skilful electrician and offered to re-employ him once his transport difficulties were overcome. The respondent had returned to work at the fish markets on 18 June 2007. He was regarded by that employer as a diligent, motivated and responsible employee. 24 The respondent began to drink at the age of 14. It was not long before he developed a pattern of binge drinking. His Honour found that although the respondent had used illegal drugs, he was not addicted to them and that they played no part in the commission of the offence. The respondent usually drank beer. 25 His Honour had before him a report from Dr Allnutt, psychiatrist. Doctor Allnutt recorded that the respondent had broken up with his girlfriend shortly before the accident and that this had led to a significant increase in his level of alcohol consumption. Doctor Allnutt recorded that the respondent had continued heavy drinking for some time after committing the offence. 26 His Honour accepted that the respondent had stopped all consumption of alcohol about two weeks before he saw Dr Allnutt on 13 February 2007. Upon Dr Allnutt's recommendation he had started alcohol counselling with a psychologist, Mr Watson-Munroe. 27 His Honour was satisfied that at the time of the accident the respondent was suffering mild depressive symptoms in response to the break-up of his relationship with his girlfriend shortly before, but that this had made no contribution to the commission of the offence other than its contribution to the respondent's drinking pattern. His Honour accepted that the respondent's depressive symptoms intensified after the incident because of the responsibility which he felt for the victim's death. 28 His Honour was satisfied that the respondent had made a significant attitudinal change and that his prospects of rehabilitation were good. His Honour thought it was unlikely that the applicant would re-offend. 29 His Honour accepted that the victim was a good friend of the respondent and that his death had had an impact upon him so as to entitle him to some leniency. Nevertheless, his Honour noted that the situation was not the same as where the deceased was a close relative. His Honour noted that the court had to have regard to the high value placed on human life by society. 30 His Honour noted the principle that in the case of young offenders less weight should be given to deterrence and greater weight to rehabilitation. Nevertheless, his Honour said that he was conscious of the seriousness of the offence and the high level of culpability involved. 31 His Honour took into account in the respondent's favour the delay in finalising the matter and the anxiety which this had caused the respondent. It is not clear what delay his Honour was referring to. The offence occurred on 25 August 2006, the respondent pleaded guilty in the Local Court on 11 April 2007 and was sentenced on 19 November 2007. The matter had originally been listed for sentence on 27 August 2007 when the respondent sought an adjournment due to the unavailability of his senior counsel. 32 His Honour thought that the respondent might well be at a crossroads in his life, but that this was only one consideration to be taken into account. His Honour concluded that in accordance with relevant legislation and established principle, including R Whyte [2002] NSWCCA 343; 55 NSWLR 252, a sentence of fulltime custody had to be imposed. In determining the sentence, his Honour said that he had taken into account the maximum penalty, the guilty plea, the objective gravity of the offence and the subjective features. 33 His Honour found special circumstances based on the respondent's age, his mental health issues, his vulnerability in prison and the fact that he had not previously served a prison sentence.

Appeal Ground 1: His Honour erred in failing to properly have regard to the objective seriousness of the offence. Ground 2: His Honour erred in allowing an effective discount of thirty five percent for the plea of guilty. Ground 3: His Honour erred in the manner in which he varied the statutory ratio. Ground 4: The sentence was manifestly inadequate 34 I agree with senior counsel for the respondent that Grounds of Appeal 1 to 3 simply raise different aspects of the underlying complaint by the Crown that the sentence passed by his Honour was manifestly inadequate. Accordingly, it is appropriate that the grounds of appeal be dealt with together. 35 The basis of the Crown appeal is that his Honour purported to apply the guideline judgment in R v Whyte but did not do so. The Crown submitted that the facts fitted closely with the "frequently recurring case" therein described: "[2004] (i) Young offender (ii) of good character with no or limited prior conviction; (iii) death or permanent injury to a single person (iv) the victim is a stranger (v) no or limited injury to the driver or the driver's intimates (vi) genuine remorse (vii) plea of guilty of limited utilitarian value."

The Crown submitted that except for items (iv) and (vii) the respondent fitted comfortably within that profile. 36 The Crown submitted that a substantial number of the aggravating features identified in R v Jurisic (1998) 45 NSWLR 209 and Whyte at [216] applied to this case: " … (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic or aggressive driving. … " 37 The Crown submitted that by having regard to those aggravating factors, the sentencing court can determine the moral culpability of the offender. A combination of these aggravating factors will indicate that the moral culpability is high and that is what his Honour found (Whyte [228]). It was in that context that the guideline for the "typical case" operated: "Where the offender's moral culpability is high, a fulltime custodial head sentence of less than 3 years (in the case of death) and 2 years (in the case of grievous bodily harm) would not generally be appropriate." ( Whyte [22[). 38 The Crown submitted that it was clear from his Honour's head sentence that his starting point had been 3 years which he had reduced to 2 years and 3 months after deducting twenty five percent for the early plea of guilty. The Crown submitted that this apparent starting point and his Honour's use of the phrase "a high level of moral culpability" indicated that his Honour was purporting to apply the Whyte guideline judgment. 39 The Crown submitted that Whyte did not suggest a head sentence of 3 years as a start point where the moral culpability is high. The Court was careful to say that a head sentence of less than 3 years would generally not be appropriate. The concepts are different. Already built into the Whyte judgment is that the offender is young, is remorseful and has entered a plea of guilty of limited value, ie approximately ten percent. 40 The Crown submitted that the guideline judgment in Whyte was meant to be a "guide" or "check" and was not designed as some form of template. A sentencing court was required to have specific regard to aggravating and mitigating factors as well as the guideline judgment. In this case, the Crown submitted, the aggravating factors of speed and the high alcohol reading (given that under his provisional licence the respondent was not allowed to drink at all) significantly impacted on the objective severity of the offence and should have led to a start point in the head sentence considerably higher than 3 years. This was particularly so when an important consideration in determining the start point for a head sentence is the maximum penalty for the offence - imprisonment for 10 years. 41 The respondent submitted that there was no express indication in the judgment that his Honour had applied Whyte in the way submitted by the Crown. His Honour had referred to Whyte as a guideline judgment to which he had regard but there was no indication that his Honour had chosen as his start point imprisonment for 3 years because that was the sentence referred to in Whyte. In the absence of some clear indication that his Honour had applied Whyte in that way, it was not open to the Crown to make such a submission. 42 In oral submissions the respondent submitted that R v Whyte had little application to the facts of this case. By reference to the indicia of a "frequently recurring case" the respondent submitted that the facts of his case were significantly different. In that regard senior counsel for the respondent referred to the fact that the victim was not a stranger and that the plea of guilty had been entered at the earliest opportunity. 43 The respondent stressed the very strong subjective case which had been made out on behalf of the respondent and which supported the sentence imposed by his Honour. These considerations were the respondent's remorse, his change of attitude, the cessation of his abuse of alcohol and the fact that he was now apparently at a "crossroads" in his life. The respondent stressed the immaturity and impulsiveness of youth which went a long way to explain the circumstances of this offence with its tragic consequences. The sentence which his Honour imposed was well open to him and had been arrived at by a process of intuitive synthesis not some incorrect application of the guideline in Whyte. 44 The respondent reminded the court of the principles applicable to a Crown appeal and in particular that:

(i) a successful Crown appeal involved appellate review of the exercise of a discretion;

(ii) it was not merely a question of the appellate court substituting its opinion for that of the sentencing court;

(iii) that successful Crown appeals should generally be rare;

(iv) Crown appeals against sentence should be concerned with establishing matters of principle.

Consideration 45 I cannot agree that the facts of this case do not attract the application of the guideline judgment in Whyte. On the contrary, it seems to me that the rationale in Whyte is of considerable assistance. The fact that the victim was not a stranger is not of particular significance in this case. As his Honour pointed out, the deceased was a friend, but not a partner or close relative. The timing of the plea of guilty is a matter to be taken into account when applying any discounts to the sentence, but does not go to the application or otherwise of Whyte. 46 I am also persuaded that his Honour had the decision in Whyte firmly in mind when he handed down his judgment and that in seeking to apply it, he made a number of errors. 47 Guideline judgments made pursuant to Part 3 of Division 3 of the Crimes (Sentencing Procedure) Act, which was introduced into the Act in 2001, in contra-distinction to the earlier guideline judgment in R v Jurisic and R v Henry are to be applied as a guide or a check and not as a start point. Sentencing judges retain their traditional flexibility in crafting sentences but need to have regard to guideline judgments such as Whyte. 48 In this matter no reason was given by his Honour for his choice of 3 years as the start point for the head sentence. The overwhelming inference is that he selected a head sentence of 3 years because this was the length of sentence referred to in Whyte. The reference in Whyte to 3 years, however, was not prescriptive and emphasised the discretion of the sentencing judge, ie a "head sentence of less than 3 years (in the case of death) … would not generally be appropriate". 49 Once it is accepted that his Honour was attempting to apply R v Whyte, it is clear that his Honour did double count the mitigating effect of the respondent's youth. One of the considerations already built into Whyte is that the court was dealing with a young offender. Part of the rationale for dealing more leniently with young offenders is that greater emphasis is to be placed on rehabilitation than on punishment. It is implicit in the guideline judgment that remorse has already been taken into account. 50 His Honour failed to appreciate that there was already a discount built into Whyte for a plea of guilty, albeit a plea of limited utilitarian value. By applying a discount of twenty five percent to a head sentence of 3 years, which already had within it a discount for the utilitarian value of a plea of guilty, his Honour was increasing the discount by at least ten percent. 51 It is not clear to what extent his Honour had regard to delay as a mitigating factor. As indicated, to the extent that there was any delay, it was largely a product of the respondent's desire to have his senior counsel of choice make submissions on sentence. It is also not clear what use, if any, his Honour made of the respondent's two prior speeding offences and the fact that he had been arrested for PCA some five days before this offence. It seems to me that his Honour should have regard to those matters as being indicative of an attitude of disobedience to the law and as requiring that some increased weight be given to retribution and deterrence. (Veen v The Queen (No 2) (1998) 164 CLR 465, R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566.) 52 It was common ground that the respondent's comparatively high alcohol reading and the high speed at which the vehicle was travelling (although this could not be otherwise quantified) played a significant part in his Honour's conclusion that this offence involved a high level of moral culpability on the part of the respondent. However, the effect of those factors was not spent by them being taken into account as part of that consideration. They were still relevant to his Honour's ultimate consideration of the objective seriousness of this offence. It is not clear that his Honour took them into account in that way. 53 As McClellan CJ at CL said in Gillett v R [2006] NSWCCA 370 at [47]: "Having regard to all of these matters his Honour concluded that the moral culpability of the appellant was "very high indeed." In my opinion not only was this finding open to his Honour but it was undoubtedly correct. Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks." 54 For the reasons I have given, error has been established. Further, I am satisfied that the sentence imposed was well below what was permissible in the exercise of a sound sentencing discretion. It did not take into account in any meaningful way the proper application of the guideline judgment in Whyte when applied to the particular facts of this case with their significant aggravating features. In my opinion the Crown appeal must succeed and the sentence must be set aside.

Re-sentence 55 In view of the above conclusion, it is necessary to re-sentence the respondent. Had I been sentencing the respondent at first instance, I would have chosen as a start point a head sentence of at least 5 years. I am, however, mindful of the fact that this is a Crown appeal and of the restraint which has to be exercised (R v Wall [2002] NSWCCA 42). I am mindful of the fact that a different sentence imposed by this Court on appeal will generally be less than that which should have been imposed by the sentencing court and will be at the lower end of the available range of sentences. 56 Bearing in mind those principles and adopting his Honour's finding of special circumstances, I propose that the respondent be sentenced to a non-parole period of 18 months with a balance of term of 18 months. 57 I note that his Honour disqualified the respondent from holding or obtaining a licence for 5 years. In the course of submissions, senior counsel for the respondent pointed out that the effect of that disqualification, taken with the respondent's previous driving record, would lead to a further administrative penalty being applied which would result in a further period of disqualification of 5 years. Having regard to the evidence of employment opportunities available to the respondent on his release, I regard such a period of disqualification as excessive and I propose to reflect that in my orders. 58 The orders which I propose are:

(i) That the Crown appeal be allowed and that the sentence imposed in the District Court be quashed.

(ii) In lieu thereof, the respondent is sentenced to imprisonment with a non-parole period of 18 months to commence on 14 November 2007 and to expire on 13 May 2009 with a balance of term of 18 months to expire on 13 November 2010.

(iii) The respondent is disqualified from holding or obtaining a licence under the relevant legislation from 14 November 2007 expiring 13 November 2012. I direct that no further period of disqualification be imposed on the respondent other than that which is hereby provided for.

59 HALL J: I agree with Hoeben J. **********

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