Regina v Pates

Court of Criminal Appeal (NSW)|2001-04-06|Before: O'Keefe J, Smart AJ

CITATION : Regina v Pates [2001] NSWCCA 142 FILE NUMBER(S) : CCA 60413/00 HEARING DATE(S) : 6/4/01 JUDGMENT DATE : 6 April 2001

PARTIES : REGINA v STEPHEN PATES JUDGMENT OF : O'Keefe J at 1;32; Smart AJ at 31

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0445 LOWER COURT JUDICIAL McGuire DCJ OFFICER :

1 O'KEEFE J: Stephen Pates, the applicant, has sought leave to appeal against the severity of the sentence imposed in the District Court by Judge McGuire (the Judge) on 30 June 2000. 2 The applicant pleaded guilty to a charge of driving in a manner dangerous causing grievous bodily harm in circumstances of aggravation. That charge carried a maximum penalty of 11 years imprisonment. In addition, the applicant asked the Court to take into account an offence of car stealing and another of larceny, each of which carries a maximum penalty of five years imprisonment. 3 The judge sentenced the applicant to imprisonment for four years and six months to commence on 9 June 2000 and to expire on 8 December 2004. The non-parole period was fixed at three years. 4 The circumstances which gave rise to the principal charge were that the applicant had stolen a car some four or five days prior to the date of his arrest. He did not then have a current driver's licence. The records show that he had only ever held a learner's permit and that it had expired in 1986. Having stolen the car, he was observed by police on 25 May 1999, and was followed by them in a police vehicle. The applicant sought to escape by accelerating through a give-way sign, accelerate again and went through a red light at speed at a busy suburban intersection. In the course of so doing, the vehicle he was driving collided with another vehicle. The force of the collision was such as to push the vehicle with which he had collided a number of metres so that it hit the kerb and struck a light pole with the front of the vehicle he was driving embedded in its side. The force of the collision trapped the driver of the other vehicle in his vehicle for some 45 minutes and caused him serious injuries, including a broken shoulder and five broken ribs. His condition was serious enough to require mechanical assistance for his breathing. It was later found he had also suffered damage to internal organs. Lacerations which he sustained required 17 sutures. 5 The area where the applicant was driving was a busy suburban intersection. Where the collision occurred was part of a major thoroughfare, and at the time of the collision there was heavy traffic present upon it. Furthermore, there was a significant number of pedestrians in the vicinity. 6 From this recounting of events it can be seen that the circumstances were such as to give rise to a high likelihood of other vehicles and pedestrians present being subjected to danger and potential for harm. However, as the judge properly remarked, the applicant simply ignored what might have happened to these people. He also ignored the danger that was posed to his own passenger, his only concern apparently being to preserve his own liberty. 7 The application for leave is based upon six express grounds. 8 Ground 1 - Legal Aid did not present the case as instructed.

No details are given in relation to this ground and no evidence has been filed by the applicant to support it. Neither the transcript of the sentencing hearing nor the Reasons for Sentence disclose anything to support this ground. Certainly nothing was said by the applicant, and as the judge said in his reasons for sentence: "The applicant's counsel comprehensively placed before me matters which no doubt accurately reflect the prisoner's instructions". In light of that comment, the absence of any submission by the prisoner is significant against this ground. 9 At the hearing today the applicant asserted that he gave instructions that matters relating to his personal situation and that of his girlfriend were to be put before the Court; so too with the circumstances of employment. Although that was said, today's statement is the first time that it has been said. Furthermore, there is no evidence as to those assertions. 10 In my opinion, the first ground is not made out. 11 Grounds 2 and 3 - failure to appear at District Court and failure to appear because of fear of returning to gaol.

In imposing the sentence the judge did not make any reference to the failure by the applicant to appear. It is quite apparent from the reasons for sentence that the circumstances of the principal offence and matters on the Schedule were the matters taken into account adversely to the applicant. Nothing was said to suggest that any failure to appear was taken into account adversely to the applicant. 12 In my opinion, grounds 2 and 3 are not made out. 13 Ground 4 - The applicant was unaware of the defect in the vehicle because it had been previously stolen.

In addition to being irrelevant to the charge in respect of which the applicant was sentenced, it should be remembered that the vehicle had been stolen some 4 to 5 days before the incident which led to the applicant's arrest. During this time there should have been ample opportunity to gauge the roadworthiness of the vehicle. Furthermore, the collision which gave rise to the injuries sustained by the driver of the other vehicle occurred because the applicant went through a red light at high speed to avoid the police and did so at a busy major suburban intersection. The collision had nothing to do with any supposed inadequacies in the vehicle. 14 This ground (4) is irrelevant and without substance. It does not provide a basis on which leave to appeal should be granted. 15 Ground 5 - Hardship caused to his three year old child in foster care and his 21 year-old girlfriend.

Hardship must be taken into account in reducing a sentence if it is established that imprisonment would cause extreme or exceptional hardship. However, it is for the prisoner (in this case, applicant) to establish such hardship. 16 In Queen v Edwards (1996) 19 ACR 510 Gleeson CJ (as he then was) highlighted how difficult it is to satisfy the relevant test. He said: "The real difficulty about a case such as the present and many other cases in which imprisonment causes hardship to a third party is to identify a ground upon which they can properly and relevantly be regarded as exceptional. Regrettably, causing hardship to third parties by the imprisonment of the offender is all to common." (at 516) 17 In the present case there is no evidence of hardship that is exceptional, nor is there anything to suggest that the judge failed to take into account the situation of the applicant's child or his girlfriend, namely, the child's mother. These matters are expressly referred to, as is the fact that an apprehended violence order had been taken out by such girlfriend against him, although the fact that he had breached that order in 1998 was not taken into account adversely to him. Furthermore, the fact that such girlfriend was in Court on the day the applicant was sentenced was also adverted to by the judge. However, the reconciliation (if that is what was sought to be deduced from her being there), must have happened after he was taken into custody on 25 May 1999 since the female passenger with him in the vehicle at the time of the collision was not the girlfriend present in the Court, that is the mother of his child, but another female. That other female was described by the applicant in his record of interview (see questions 20 to 26 inclusive) as his "girlfriend". 18 The hardship, if any, occasioned to his son and former girlfriend, the mother of such child, fails to satisfy the test referred to by Gleeson CJ in Queen v Edwards supra. This ground fails. 19 Ground 6 - The police stopped the video on a number of occasions. The video did not accurately depict what occurred.

This ground is irrelevant to the application before the Court. Whatever may be the position in relation to an appeal against conviction, the material that was before the Court was adequate to show the extent of the gravity of the offence in which the applicant had been involved. The circumstances and evidence showed that this was aggravated by the fact that his manner of driving was predicated upon an attempt to escape arrest by police. There is no evidence to support this ground. It fails. 20 Although not expressly raised, it is appropriate to consider whether the sentence imposed was excessive or whether there was a failure on the part of the judge to reflect a discount in the sentence as a consequence of the plea of guilty entered by the applicant. 21 I say it is appropriate to consider this because the applicant appears in person and the Court should not overlook the general question of the proportionality of the sentence imposed to the gravity of the offence or offences in respect of which such sentence has been imposed. 22 The judge referred expressly to the plea of guilty and said the applicant would "receive some consideration for this". He undoubtedly did receive consideration for that matter, since the sentence imposed was significantly less than the maximum provided in s 51(A) of the Crimes Act 1900. Notwithstanding that, the circumstances of the crime were properly described by the judge as "appalling". Furthermore, the judge rightly said the sort of conduct in which the applicant was engaging "simply must be deterred". 23 What the applicant did was highly dangerous. He exhibited a total disregard for the safety of innocent bystanders and drivers of other vehicles as well as for his own safety and the safety of the passenger in the vehicle he was driving. To use the words of Spigelman CJ in Queen v Jurisic (1998) 45 NSWLR 209 the applicant "abandoned responsibility for ... his own conduct." (at 231) It should not be forgotten that whilst the circumstances of the principal charge itself call for a substantial sentence, including a sentence of the kind imposed, the offences which the judge took into account were not trivial. Their inclusion confirms that the sentence imposed was in no way excessive. 24 In my opinion, the application in the present instance is without merit. Conduct of the kind engaged by the applicant calls for severe punishment as a deterrent to the perpetrator and as an indicator to others who might be tempted to engage in such conduct that the Court will punish such conduct severely. 25 I propose that the application for leave to appeal be refused. 26 SMART AJ: I agree. 27 O'KEEFE J: The order of the Court will be, the application for leave to appeal is refused. **********

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