REGINA v. ROYAL [2003] NSWCCA 275

…………..Confinement in a prison serves the same purposes whether before or after the expiration of a non-parole period and, throughout, it is punishment, but punishment directed towards reformation. The only difference between the two periods is that during the former the prisoner cannot be released on the ground that the punishment has served its purpose sufficiently to warrant release from confinement, whereas in the latter he can. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention. 4 This view of the purpose of a non-parole period has been routinely cited with approval and applied by this Court ever since it was pronounced, regardless of what legislative scheme was in place for governing the parole of prisoners. Unless over-turned by a clear legislative intent, it will continue to apply to future regimes. 5 It should be made perfectly clear that the sentence imposed in the present case was wrong and the dismissal of the Crown appeal cannot be taken to suggest otherwise. 6 GREG JAMES, J: In these proceedings, the Director of Public Prosecutions appealed against the asserted inadequacy of a sentence of 16 months imprisonment to date from 20 May 2003 with a non-parole period of four months imposed upon the respondent in the District Court of New South Wales by his Honour Judge Coolahan following her plea of guilty to a count of dangerous driving occasioning grievous bodily harm. 7 At the hearing of the appeal, after reading the careful and detailed written submissions and hearing counsel, the court determined that the appeal should be dismissed. The following are my reasons for so concluding. 8 The offence for which his Honour had sentenced the respondent is provided for by s.52A(3)(c) of the Crimes Act 1900 and is punishable by a maximum penalty of seven years imprisonment. 9 The respondent had been granted conditional bail on the date of her arrest, 3 December 2001 and had, for some three months of that bail period, been subjected to conditions requiring reporting at the local police station. 10 The respondent's initial plea of guilty had been entered before a magistrate. She had adhered to that plea of guilty on coming before the District Court. She came before that court with no prior criminal history. She gave evidence before the trial judge on her plea and was cross-examined. 11 In support of her position were tendered written submissions, a report by Dr. Wendy Louise Walker, forensic psychologist, a report of Dr. Thomas Clarke, consultant psychiatrist and a number of testimonials together with other material. 12 The learned trial judge, in his remarks on sentence referred to the facts of the offence as taken from a short undated statement furnished to him together with the prosecution material. He set out the following recitation from that statement:- "About 6.40 am on Saturday 9 June 2001, the offender was driving a Mitsubishi Magna sedan south along the Pacific Highway towards Karuah after having left Forster at about 5.15 am to travel north. While travelling along an uphill grade leading into a moderate left-hand bend, her vehicle crossed the double unbroken centre line towards oncoming traffic. At about the same time, the victim was travelling north in his Hyundai Excel sedan. The evidence at the scene of the collision indicated that the victim moved to the left of his lane before being struck by the oncoming vehicle driven by the offender, the collision occurring near the fog line adjacent to the northbound lane. The victim was trapped until about 8.00 am, before being flown to John Hunter Hospital by rescue helicopter. He had critical injuries. The offender was also transported by helicopter to hospital, having sustained moderate injuries. Before the helicopter departed the scene, Senior Constable Alderson located in the offender's vehicle a brown paper bag containing numerous syringes. Police then searched an Esprit backpack style bag belonging to the offender and located $200 in cash along with six sachets of white powder, alcohol wipes, two capped syringes filed with clear liquid, and a small quantity of cannabis. Paramedics treating the offender noticed needle marks on the inside of her elbows, commensurate with significant intravenous drug use. Analysis of the white powder indicated the presence of a total of 5.73 grams of methylamphetamine. Each of the two syringes containing the liquid was a also shown to contain methylamphetamine." 13 His Honour noted that a blood sample taken from the offender during her treatment at hospital showed that she had in her blood 0.13 milligrams per litre of amphetamine and 1.2 milligrams pre litre of methamphetamine. 14 Dr. Judith Perl, a pharmacologist, referred to the concentration in the blood of methamphetamine as "in the toxic to fatal range" and that of amphetamine as being "above any therapeutic level". She was of the view that the respondent was under the influence of those drugs to the extent that "her driving ability would have been significantly impaired". 15 His Honour referred to a medical report from the Surgery Registrar of the John Hunter Hospital concerning the condition of the victim. The victim had a right pneumothorax with a right sided flail chest as a result of multiple rib fractures, a depressed sternal fracture and an interior chest wall contusion. When first seen, he was haemo-dynamically unstable with low blood pressure, his Glasgow coma score was 13 out of 15 and he was confused. In addition he suffered contusion to the right lung, a pericardial affusion, a myocardial contusion, lacerations to the face and the inside of the mouth, bleeding from the nose and left ear, a fractured left malleolus and calcaneus, a fracture of the right femur, a compound fracture of the left femur and patella, swelling to the right side of the face, a laceration to the chin, fractures of a number of bones on the left side of the face and contusions to his left arm. 16 His Honour noted that the doctor described these injuries as serious. Notwithstanding this, the Crown advised his Honour that the victim had returned to work by the time the matter came to be dealt with in the District Court, albeit with pain in his leg, although his ability to work, so his Honour was informed, was now unrestricted. 17 His Honour expressed the view that it was obviously a very serious offence, that the offender was under the influence of an extraordinarily concentration of illicit drugs, the injuries to the victim were serious and the initial injuries were of an horrific nature, including, in particular, the compound fracture which involved the bone protruding through the skin. 18 His Honour referred to the total irresponsibility of the offender in causing the victim such serious injuries. He said:- "It is trite to say that for such an objectively serious offence, unless there could be demonstrated … exceptional circumstances, the sentence must involve fulltime custody." 19 These are observations with which I can only agree. 20 His Honour turned to the respondent's subjective circumstances. He noted she had no serious criminal history although she had one minor speeding matter for which she was fined in 2002. He referred to the reports to which I have earlier made reference. His Honour quoted the following passage in his remarks from the clinical observations of Dr. Wendy Walker:- "Ms. Royal impressed as depressed, hating herself, vulnerable and agitated. The extent of her self-loathing was delusional and the extent of her being dominated by her physically and mentally abusive boyfriend, Matt Coburn, aged 21 years, was highly dysfunctional." 21 His Honour went on to remark that notwithstanding that the respondent had attributed a very large portion of the blame for her condition and hence for the collision upon her boyfriend, Coburn, it was clear to Dr. Walker at the time when she saw the respondent that the respondent was still in contact with Coburn and continued in some sort of relationship with him. Dr. Walker had expressed the view, from information supplied by the respondent's mother together with what she had heard of a telephone conversation between the respondent and Coburn, that Coburn would seem to be "overly psychotic, thought disordered, probably from drug abuse, sadistic, anti-social and disgustingly violent". 22 His Honour, however, discounted Dr. Walker's views to a certain extent as he had reservations as to her impartiality, he having gained the distinct impression she was acting somewhat as an advocate for the respondent. 23 He referred in detail to Dr. Walker's recital of the respondent's history. A summary of that history reveals the respondent, while obtaining a good TER, entered the banking industry upon leaving school, but developed bulimia nervosa for which she was eventually hospitalised. She apparently became subject to an obsessive compulsive disorder, although she continued to work. She began to drink heavily. Her existing relationship suffered. She adopted self-mutilating behaviour and went on to suffer major depression and has not worked since she left work in 2000. She admitted herself to the Wandine Psychiatric Clinic run by the Wesley Mission. After discharge, she still felt unstable and had herself re-admitted. During that stay in early 2001, she met another girl who was heavily involved in the drug industry. That girl introduced her to intravenous drug use and to the person Coburn. His Honour quoted Dr. Walker's report concerning Coburn:- "They began a relationship and this quite refined lady who had no criminal record became enmeshed both in intravenous drug use, speed and ice, and in a disgustingly abusive relationship in which she is bashed, bullied and subjected to constant threats of murder, along with emotional blackmail and draining of her finances." 24 His Honour noted that Dr. Walker referred to the offender's parents having provided her with a house worth nearly half a million dollars and that Coburn had lived on the money from the proceeds of that house to the extent that apparently only about $200,000 worth of the proceeds was left. His Honour noted Dr. Walker's view that the offender was already psychiatrically very vulnerable before she became enmeshed in drug use and in the relationship with Coburn. His Honour quoted again from Dr. Walker's reports as to aspects of her relationship with Coburn:- "Between her visits to me in October 2001 and January 2002, I observed significant deterioration in Ms. Royal both in her mental state with increase in her depression and in noticeable weight loss. Her suggestibility and vulnerability had increased and when with me she would agree that Matt was a disaster and that she had to end her relationship. When he phoned repeatedly she would be sweet and placate him and would tell me after the call ended that she could not bring herself to hurt him." 25 Dr. Walker had said she understood it was the offender's relationship with Coburn which was said to be the cause of the charge, the offender having given her the following account of the events leading up to the collision:- "I had spoken to Mum and Dad and my ex Len and agreed to end it all with Matt. I was going home and Matt would not let me go by myself. After shouting and arguing and going on, we drove and he agreed to stay in a hotel in Belmont and I said I would get the houseboat for the weekend. I said I had a family thing for the weekend. However, I was going to leave him at the hotel and not come back. I agreed with Mum and Dad that I would stay with them. I had not slept that night for over 24 hours. I drove to Belmont. I had promised Mum and I would go home and Matt was arguing, pleading and threatening suicide. Then he held me up against the door with a knife at my throat and threatened to kill me and Mum and Dad. He kept saying how he would hunt us down and kill us, how he hated being by himself. Over and over he kept threatening to kill me, Mum and Dad. I was afraid police would be called to the hotel in Belmont because we were yelling and screaming. I ran out the door, jumped into the car and ran. He had a proper diving knife. I know now he was only manipulating. I do not know what time I got home, about three or 3.30, and I told Mum I had to go back, that he had threatened if I did not go back he would kill Mum and Dad and me, and at the time I believed all this crap. He threatened and Mum begged me not to go. I had a shower to try to wake myself up a bit and I mixed some speed just before I walked out the door. Dad was going on about drug use and everyone was arguing at this stage. I drove off feeling horrible because I had fought with Mum and Dad and broken my word. Matt had told me I had to be back by 7.00 am so he could get a boat to go fishing, otherwise he would do as threatened. I said I would do my best. Being completely stupid I believed everything he said and tried to get back and if I did not have the accident I would have been back just after that time. I had left home between 4.30 and 5.00 am and it was cold. I never use the heater but I put it on. I had not slept and I felt colder and put a blanket over my knees. At one stage on the phone to Matt I put my window down but it was too cold and I must have had a microsleep then and I woke up and the car was veering off the road. He asked what I was doing and I said, 'I fell asleep'. He told me I still had to be back by 7.00 am. He said later he said to pull over and have a sleep. The next thing I remember is driving, talking on the phone to Matt and he fell asleep. I do not remember hitting poles and the ditch. All I know I woke up as the car was about to hit Mr. Ridgeway's car and that was it. I remember spinning many times and how it hurt. I tried to get out of the car to get to his. There was dust from the airbag and I thought it was smoke. I jumped over the passenger side, then stood up and fell with a broken ankle. I could not get to him. He suffered terrible injuries. I could not get across to help him." 26 His Honour referred to Dr. Walker's belief that the offender was remorseful and suffered from intense guilt feelings. In particular, his Honour set out at length Dr. Walker's opinion which concluded:- "This has resulted in her self hatred and guilt feelings being manipulated ruthlessly by this very sadistic expedient and likely psychotic very young man. The offence currently before the court occurred in the context of (1) her trying to leave Matt at the urging of her parents, (2) lack of sleep for over 24 hours and, (3) use of speed to try to keep awake and, (4) terror that Matt would, as he had vividly threatened, kill her and her parents if she did not return to him by 7.00 am." 27 Dr. Walker recommended, as she had in an earlier report, an urgent assessment by a psychiatrist as the respondent was at major risk of suicide and, in particular, recommended that she be assessed for likely admission to the new psychiatric unit at Manning Base Hospital. She noted that the respondent still suffered the mental health conditions to which she had referred in her earlier report. 28 The respondent had also been seen by Dr. Clarke, who gave a similar but briefer history to that of Dr. Walker. To Dr. Clarke, the respondent had admitted she had consumed amphetamines in order to keep her from sleeping and whilst admitting she had not slept for 24 hours beforehand, referred to that lack of consciousness which caused her vehicle to collide with the victim's car as being occasioned by a "microsleep". Dr. Clarke described her as suffering from borderline features to her personality, being of the view that it was more likely this was a chronic depression or dysthymic disorder. The latter is a condition which involves a depressed mood with symptoms of poor appetite or overeating, insomnia or hyper insomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions and feelings of hopelessness. 29 His Honour expressed the view that the testimonials of all the referees, some of whom appeared to hold responsible positions, were greatly in her favour, albeit many of those giving the testimonials did not know of her drug use prior to giving the testimonial and expressed the opinion that it was out of character. He particularly noted a letter from her tendered on behalf of the respondent expressing remorse and apologising to her victim, in which the respondent said she was driving because her life was threatened as well as the lives of her parents and her close friend, but went on to say:- "I am disgusted that I hurt you so badly and endangered your life." 30 He referred to her evidence as confirmatory of the histories taken by Dr. Walker and Dr. Clarke and of the nature of the relationship with Coburn. His Honour accepted that the relationship was disastrous. The respondent's evidence in that respect was confirmed by that of her mother. His Honour specifically adverted to those passages of the respondent's evidence when she referred to her attempts to leave Coburn to go to Forster, he commenced yelling, screaming, held a knife to her throat and threatened her, her parents and her ex-boyfriend; together with her evidence that she believed his threats; that she did not dare go to the police to get him into trouble and that she really believed he had the capacity to carry out his threats and realised how stupid and gullible she had been. She asserted that she could terminate the relationship, no longer be manipulated by him and would not put herself in the position where this could happen again. She confirmed that her relationship with Coburn, as it then presently existed, was not a relationship of the kind that she had formerly had in that she could no longer be manipulated. 31 His Honour referred, however, to two important matters. Firstly, that in his view the offender's evidence was generally unconvincing and unimpressive, that she was trying to minimise her responsibility and was still in some sort of relationship with Coburn and secondly that there was nothing in her evidence which referred to any drug rehabilitation which she may have undergone since the collision. 32 The fact of the continuing relationship with Coburn was attested to by the respondent's mother, even though she also gave evidence that she had seen Coburn assault her daughter, kick her and try to choke her and that he had threatened her and her husband to the extent that they had taken out an AVO against him. She gave evidence that the house that had been provided by her husband and herself to the respondent and which had been sold had realised some $463,000 of which all the money had gone, most of it on Matt (Coburn). 33 His Honour did not accept there had been one unexpected microsleep, although accepting that it was during a microsleep that the car veered onto the wrong side of the road. In particular, he referred to evidence which he accepted that immediately preceding the collision, the respondent had had a similar experience some distance back down the road whilst she was also on the phone to Coburn. He noted that the offender herself had suffered a broken ankle. 34 He allowed a 20% deduction for the utilitarian value of the plea. He rejected an asserted duress or any prospect of successfully defending a trial as warranting "any additional discount for a plea". This, in the context of a submission that she should receive additional discount for her plea of guilty on the basis that she might have been able, successfully, to defend the proceedings. He accepted the offender had considerable contrition, though he was not convinced that she had, in her own mind, taken full responsibility for her behaviour and its consequences. But he accepted that she suffered severely from the mental conditions and personality problems to which I have referred, albeit that she had been able to hold quite responsible positions until 1997. 35 His Honour, while adverting to the principle in Regina v. Engert (1995) 84 A. Crim. R. 67 was of the view that there had been a limited causal relation between the psychiatric problems and the commission of the offence and that thus the case was not one in which there was no room for an element of general deterrence, particularly because the offender made a conscious decision to drive notwithstanding she had been deprived of sleep for over 24 hours, after taking a large dose of illegal drugs and had continued to drive after being warned, by falling asleep, that it was dangerous to do so. His Honour accepted, however, that her assertion she was under pressure to visit her parents and the asserted pressure to return to Coburn. 36 He concluded, however, accepting the submissions made by the Crown, that there had been a total abandonment of responsibility on behalf of the offender and this was not merely a case of momentary inattention. 37 His Honour was of the view that, although the penalty for offence with which the applicant had been charged was one that could be determined in the Local Court, that matter, although relevant, should not be determinative of the penalty to be imposed. 38 So far as his Honour expressed the view that matter "takes the matter out of the guideline decision initially in Jurisic and later in White [sic]", in my view his Honour fell into error. It is not a matter of whether or not a particular criminal offence might fall within the jurisdiction of the Local Court to which such a principle adverts but whether the facts of the individual matter charged might, if there were jurisdiction in the Local Court, be appropriately dealt with in that jurisdiction and thus be subject to a lower effective maximum sentence, that is important in a given case. As the Crown submitted to us on the hearing of this appeal, it was never the case that it would have been appropriate for a matter as serious as this to be dealt with in the Local Court. In those circumstances, there is no principle that a sentence otherwise appropriate should be reduced on the basis that a jurisdiction existed in the Local Court to deal with offences of this kind. So far as his Honour might have considered otherwise in my view, he erred. Further, so far as his Honour might have considered there was some bright line demarcation limit which, if crossed, has the effect that the guidance provided by this court to sentencing judges by guideline judgments such as Whyte (supra) becomes irrelevant, I consider he also erred. 39 It is to mistake the nature of guideline judgments to approach sentencing on matters to which the judgments would otherwise apply on the basis that the presence of one among the many possible considerations applicable to the proper exercise of discretion would entirely displace the application of the principles referred to in the guideline judgments. 40 However, his Honour adverted to all the matters to which. 21A of the Crimes (Sentencing Procedure) Act 1999 required him to advert and adverted to the threats made by Coburn as motivating factors behind the respondent getting behind the wheel of the car. He adverted to her vulnerability arising from the addiction to the drug. He rightly concluded, taking into account all the circumstances, that the matter could not be dealt with by way of a sentence other than one of full time custody, but did conclude that, adverting to all those matters and the subjective features, that he should impose a sentence somewhat less than that which would otherwise have been imposed. He entirely appropriately, concluded that there were special circumstances warranting the reduction of the non-parole period very significantly, in particular arising from the prior good record, the medical problems, and the necessity for lengthy supervision on release. He reduced the non-parole period that would otherwise have been imposed in compliance with s.44 of the Crimes (Sentencing Procedure) Act 1999 to one of four months, providing for release on parole conditional upon her submitting to the supervision and guidance of the Probation and Parole Service and imposed the statutory disqualification from driving. His Honour further recommended the offender be classified as soon as possible and if thought appropriate housed at a minimum security institution; that whilst in custody she be closely supervised and monitored until assessed regarding a risk of suicide. 41 In his written submissions, the learned Crown Prosecutor contended his Honour had erred in imposing a sentence and non-parole period which were manifestly inadequate and which did not reflect the principles referred to in the guideline judgments in Regina v. Jurisic (1998) 45 NSWLR 209 and Regina v. Whyte (2002) 55 NSWLR 252. It was contended that his Honour principally had erred in considering that some reduction to an otherwise appropriate sentence should be given as the matter could have been dealt with in the Local Court. He referred to the matters of aggravation referred to in Regina v. Whyte (supra) and referred to the following five particular matters:- "(a) the injuries suffered by the victim were very serious: see R. v. Whyte (supra), paragraph 216(i) per Spigelman, CJ.; (b) at the time of the collision the respondent was under the influence of methylamphetamine and amphetamine to the extent that her driving ability would have been significantly impaired: see R. v. Whyte (supra), paragraph 216(iv) per Spigelman, CJ.; (c) at the time of the collision the respondent had been driving without sleep and under the influence of methylamphetamine and amphetamine for a considerable period: see R. v. Whyte (supra), paragraph 216(iv) per Spigelman, CJ.; (d) the respondent had ignored the significant warning that she had received that it was totally unsafe to drive: see R. v. Whyte (supra) paragraph 216(viii) per Spigelman, CJ; and (e) at the time of the collision the respondent had been without sleep for more than 24 hours: see R. v. Whyte (supra) paragraph 217(x) per Spigelman, CJ." 42 It was submitted that, having regard to those matters, it was incumbent upon his Honour to have had what was submitted was proper regard for the abandonment of responsibility and that, having regard to Whyte (supra), it was necessary for his Honour to take into account what was said at paragraphs 229-230 by the Chief Justice in that decision, viz:- "A full time custodial sentence of less than two years would not generally be appropriate." 43 It was contended that his Honour fell into error in passing a sentence, notwithstanding the peculiar circumstances of this case, which was less than two years. 44 As I have said, It was submitted that his Honour had fallen into error in respect of his views concerning the availability of the matter being dealt with in the Local Court. I have already referred to this. As I have said, I agree his Honour here fell into error but the important question here is whether in the result the sentence or the non-parole period should be disturbed. 45 It was contended that it was incumbent upon his Honour to pass a sentence with an associated non-parole period such that both reflected the objective seriousness of the offence and the need for general deterrence. 46 On behalf of the respondent, Mr. Hulme of Senior Counsel, whilst accepting that the trial judge generally found the respondent's evidence unconvincing and unimpressive, pointed to his Honour's acceptance of the general substance of her evidence as to her vulnerability to drugs and her relationship at the time of the offence with Coburn and the effect of Coburn's threats upon her. It was contended that the special and peculiar circumstances of this respondent permitted the trial judge, even in the context of being guided by the views expressed in Whyte (supra), to have imposed the sentence that he did. 47 These submissions, emphasising as they do, the most unusual features of this case, focus on the role of guideline judgments which, whilst operating as indicators of the proper range of sentences, are not intended to unduly circumscribe the application of a reasoned and principled discretion by the trial judge. 48 In this regard, proper attention, it was submitted, had to be paid to the Chief Justice's reference in the sentence quoted from his judgment in Whyte (supra) above to the applicability of the sentence he referred to to the general case. It was submitted that the particular features of this case sufficiently took it out of the general such that the head sentence of 16 months was not outside the range of a proper exercise of discretion or was at least not so far out of the range as to attract appellate intervention by this court in the exercise of its discretion. 49 It was submitted that the peculiar features of the case were such that the remarkably short non-parole period was justified or at least should not be set aside by this court in the exercise of its discretion, considering all the circumstances. 50 I came to the conclusion that, notwithstanding particularly the non-parole period appear to me to be very short, I was not persuaded that this court should intervene having regard to the well known principles applicable to Crown appeals, and having regard to the peculiar circumstances of the case, notwithstanding the trial judge's errors to which I have referred, since, although the sentence and particularly the non-parole period might have, notwithstanding the peculiar circumstances of this case, been appropriately characterised as manifestly inadequate at the time sentence was imposed, the respondent has already served the bulk of that non-parole period and the case is so unusual. 51 In particular, I was of this view because of the exceptional circumstances in which the respondent was placed at the time of the commission of this offence and that in my view it is in the community's interests that a person who, notwithstanding the problems with which this respondent has had to cope over the years and who has coped with them otherwise so successfully, except when under this pressure, should receive, in the interests of the community for the future, an extended period on parole during which the rehabilitation process may be reinforced. 52 I therefore, having regard to those matters, considered that the appeal be dismissed. **********

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