Remarks on Sentencing
12 It is apparent that the trial judge did take into account the applicant's plea of guilty at an early stage. While there was no quantification of the precise effect of that, there was no necessity to do so, as the Crown rightly pointed out, this being a matter for the discretion of the trial judge, though usually desirably done; R v Thomson; R v Houlton (2000) 49 NSWLR 383 per Spigelman CJ at 411 [112] and 419 [160(ii)].
13 This matter in any event ceases to have direct relevance save as part of the overall context, given that the applicant abandoned the first ground of application.
14 A considerable portion of the Remarks on Sentencing focuses on the police pursuit and the sentencing judge's evident concern at the apparent state of confusion surrounding it on the part of the Police. Thus he remarks adversely on the police pursuer not knowing precisely where she was located and apparently may have failed to radio superiors and colleagues of the fact of the pursuit and the particulars. What is clear is that this section of the Remarks on Sentencing occupies over a third of the totality. It may have led the sentencing judge inadvertently to place greater emphasis upon this aspect to the point where what the applicant contends was a critical part of the Pre-Sentence Report by Mr Copeland was omitted from the sentencing judge's remarks. That paragraph is as follows:
"Mr Pevy appears to be a young man from a stable and supportive environment who has acted against his own best interests firstly, in 1999, by acquiescing to peer pressure and now, in 2003, fleeing from the possibility of an embarrassing confrontation with police while driving after drinking. In the Pre-Sentence Report of July 2000, the assessing officer commented on the offender's immaturity. His mother said that her son fell in with the wrong crowd when he came to Sydney. Whilst peer pressure appears not to have been a factor in this offence, the fact that he had a conviction for a serious offence related to peer pressure, probably was. The impact of the current offence appears to be profound and it would be reasonable to expect that Mr Pevy will comply with the requirements of whatever sentence is imposed."
15 However, an examination of the Remarks on Sentencing indicates that the sentencing judge did quote an earlier section of the Report which states "In general the offender seems to have enjoyed a stable and happy home environment with loving and supporting parents". Likewise, the sentencing judge quotes from a subsequent portion that "the offender appears distraught about the offence and to be overcome with regret and remorse about the death of the victim".
16 It follows that the only relevance of the paragraph of the Pre-Sentence Report omitted relates to an earlier conviction for demanding money with menaces in 2000. The latter did not result in the applicant going to gaol but rather a suspended sentence.
17 On the surface, the only relevance of that earlier conviction and suspended sentence is that it was one of the two reasons why according to the applicant he panicked. It was "partly because he had been drinking and partly because of his prior offence" as stated in the Pre-Sentence Report quoted by the sentencing judge.
18 The relevance of this is that the sentencing judge must be taken to have had in mind the earlier offence. But there is nothing to indicate that the trial judge took into account its being the product of vulnerability to peer pressure which bore upon the applicant's inability to deal with difficult situations and bespoke his immaturity. Given that the reason for the tragic outcome was the applicant fleeing from the possibility of an embarrassing confrontation with police while driving after drinking, those earlier circumstances were highly relevant if not central to an assessment of the subjective elements bearing upon a sufficiently long period of parole. I refer in particular to the fact that it is only when the applicant is released from prison and has the freedom to resort to alcohol that he will find, as the submissions on behalf of the applicant point out:
"The pressures inside gaol are different from those outside, and the availability of drugs and alcohol there is limited. Despite a resolve to stop drinking alcohol, the applicant will face a difficult period of re-adjustment after years of incarceration and will have ready access to alcohol. He had tried before the offence, apparently unsuccessfully, to deal with his alcohol problem. He gave evidence (at T, p6.40) that, ' I have had problems with alcohol, I will admit, but I'd been trying to get myself over that as well .' It was a combination of the applicant's youth and immaturity, his vulnerability to peer pressure, his problem with alcohol and cannabis and the fact that this was his first period of imprisonment, which demonstrated special circumstances."
19 Essentially, the applicant's case is that the sentencing judge did not make reference in his remarks on sentencing to "special circumstances" in the context of whether the statutory proportion should be varied; in particular it is submitted that there was nothing to indicate that he gave consideration to that question at all. This is so, though the trial judge very properly emphasised that "offences of this kind are viewed very harshly by the community". Moreover, whilst he saw "no need to deter this offender from further breaches of the law" he recognised "the need to deter others"; Remarks on Sentencing at 8. Likewise, the sentencing judge accepted the proposition without reservation put by the applicant's counsel, namely "fundamentally the offender is a good man and this tragedy will be a turning point in his life" and "further, that his prospect of rehabilitation is excellent".
20 I here need to remind myself that the absence of any express consideration of special circumstances in the context of varying the statutory proportion mandated by s44(2) of the Crimes (Sentencing Procedures) Act 1999 must be understood in the way explained by Spigelman CJ in R v Simpson (2001) NSWLR 704 at 722 [88] as follows:
"In my opinion, in view of the wide range of considerations that are capable of constituting 'special circumstances', a failure to 'explain' why a statutory proportion was not varied will not readily be accepted as a basis for an inference that the sentencing Judge did not turn his or her mind to the issue."
21 Earlier, the Chief Justice confirmed that there was no obligation to give reasons for not finding special circumstances (at 721 [86]).
22 Here the difficulty lies in the fact, not that the trial judge failed to explain why the statutory proportion was not varied, but rather that the trial judge gave no consideration at all to whether the statutory proportion should be varied, with or without reference to special circumstances. In such a context, special circumstances do have a bearing.
23 I need however to emphasise again that, as Spigelman CJ said in Simpson at [67]:
"when a circumstance is taken into account by way of reduction of a head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence."
24 Moreover, as the Chief Justice said in R v Fidow [2004] NSWCCA 172 at [20]
"findings of special circumstances have become so common that it appears likely that there can be nothing 'special' about many cases in which the finding is made".
25 He added [22]
"simply because there is present in the case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation."
26 However, I do consider that here there were special circumstances in terms of the applicant's immaturity associated with his earlier offence, the latter reflecting vulnerability to peer pressure. That was in turn a central factor in his fleeing the scene, with the tragic outcome that followed. That factor, coupled with the influence of alcohol, and the consequent need for rehabilitation outside the artificial constraints of the prison, to my mind does constitute special circumstances such as to justify a reduction of the non-parole period of three years nine months to three years three months, a reduction of six months. I do consider that a shorter non-parole period would result in a sentence disproportionate to the objective seriousness of the case. In that regard I note the submission of the applicant that:
"in the present case the statistics indicate that only 20% of offenders charged with the same offence receive a higher non-parole period than the applicant (that is, on the statistics, higher than four years). It could not be reasonably argued that a non-parole period of less three years and nine months could not have been imposed in the circumstances of this case".
27 In saying this, I am not however to be understood as accepting the submissions of the applicant, subsequently not pressed, that the head sentence was in any way outside the range of an appropriate sentence when regard is had to comparable cases and their respective differences such as R v Quarta [2000] NSWCCA 406, R v Skrill [2002] NSWCCA 484, R v Woodward [2001] NSWCCA 90 and R v Elrifai [2002] NSWCCA 496. In particular Skrill involved speed and alcohol but no police pursuit, Quarta and Elrifai involved speed and a police pursuit but no alcohol, and Woodward involved speed and alcohol but no police pursuit. Here, speed, alcohol and police pursuit were all involved.