Regina v Ryan

Court of Criminal Appeal (NSW)|2003-07-03|Before: Ipp JA, Grove J, Shaw J

CITATION : Regina v Ryan [2003] NSWCCA 202 HEARING DATE(S) : Thursday 3 July 2003 JUDGMENT DATE : 23 July 2003

JUDGMENT OF : Ipp JA at 1; Grove J at 2; Shaw J at 69 DECISION : APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - AGGRAVATED DANGEROUS DRIVING CAUSING DEATH - SENTENCE - LEAVING SCENE OF COLLISION - FURTHER OFFENCE ON FORM 1 - AVOIDANCE OF DOUBLE PUNISHMENT - ASSERTION OF POTENTIALLY MITIGATING CIRCUMSTANCE BY OFFENDER - NOTICE IF SOUGHT TO BE CONTROVERTED - PRIOR OTHERWISE GOOD CHARACTER - OBSERVATION OF SENTENCING PATTERNS LEGISLATION CITED : s70 Road Transport (Safety & Traffic Management) Act 1999 s21A Crimes (Sentencing Procedure) Act 1999 In Re The Attorney General's Application No 1 of 2002 [2002] NSWCCA 518 Lowe v The queen 1984 154 CLR 606 Pearce v The Queen 1998 194 CLR 610 R v Black, unreported CCA 23 July 1998 R v Bloomfield 1998 44 NSWLR 734 R v Cousins [2002] NSWCCA 81 R v Jurisic 1998 45 NSWLR 209 R v Kalanj, unreported CCA 18 December 1997 CASES CITED : R v McKinney, unreported CCA 10 March 1999 R v Rayne [2002] NSWCCA 309 R v Reeves [1999] NSWCCA 269 R v Sen [1999] NSWCCA 199 R v Tadman [2001] NSWCCA 225 R v Vukic [2003] NSWCCA 12 R v Whyte 2002 55 NSWLR 252 R v Woodward [2001] NSWCCA 90 Ryan v The Queen 2001 206 CLR 267 The Queen v Olbrich 1999 199 CLR 270 PARTIES : Regina v. Damian James Ryan FILE NUMBER(S) : CCA 60082/03 COUNSEL : D.M.L. Woodburne (Crown) I. Lloyd QC (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0592 FILE NUMBER(S) : LOWER COURT Blackmore DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60082/03

IPP JA GROVE J SHAW J

1 IPP JA: I agree with Grove J. 2 GROVE J: The applicant appeared for sentence before Blackmore DCJ at Sydney District Court, having pleaded guilty on arraignment to a count of aggravated dangerous driving causing death contrary to s52A(2) of the Crimes Act. Taken into account on a Form 1 was an offence of knowingly failing to stop and give assistance where death or injury had occurred contrary to s70 of the Road Transport (Safety and Traffic Management) Act. The prescribed maximum penalty for the indicted offence is fourteen years imprisonment. There was some controversy in the submissions concerning the applicable maximum penalty for an offence against s70. In addition to fine, the prescription was either a maximum of eighteen months or two years imprisonment. I shall return to that matter. 3 The statutory construct whereby the offence of dangerous driving occasioning death is elevated to an aggravated offence (increasing the available maximum from ten to fourteen years imprisonment) defines four alternative elements: impairment of driving ability by prior ingestion of intoxicating liquor or drugs or a combination of them; driving whilst a prescribed concentration of alcohol is present in the blood; driving to escape police pursuit and, relevant to this offence, driving at a speed exceeding an applicable limit by more than forty five kilometres per hour. 4 The facts relating to the offence are not in dispute. They were recounted by the learned sentencing judge as follows: "About 11.10 pm on Tuesday 5 June, 2001 the offender drove motor vehicle UWD-685, a 1997 Silver Mitsubishi Magna sedan in a westerly direction along President Avenue, Miranda. At the time the offender was travelling in lane two at an excessive speed. He was observed by police and civilians over about 3 kilometres before the impact. An estimate was put on his speed by one civilian as between one hundred and forty and one hundred and sixty kilometres, that is, Mr Parry-Williams, at one hundred and forty kilometres by Mr Spriggins, and police as not less than ninety kilometres an hour, Constable Brooks and one hundred and forty kilometres an hour by Sergeant Vickers. Upon approaching the intersection of President Avenue and Kiora Road, the offender continued at high speed up a moderate gradient. Upon reaching the crest of the gradient he applied the brakes of the motor vehicle causing the front tyres to lock and skid for approximately sixty-four metres. The front portion of the motor vehicle collided with the rear of motor vehicle RPM-336 which was then stationary in lane 2 facing west at the red traffic control light signal. At the time vehicle RPM-336 was being driven by Brett McArdle. A report was obtained by Police from a Mr Roger Stuart-Smith, a consulting traffic engineer, who estimated the pre-braking speed to be no less than one hundred and thirty five kilometres per hour. It might be trite to say that the offender's speed in his vehicle was at that time more than seventy-five kilometres per hour over the legal speed limit of that particular road. That speed demonstrates to my satisfaction the utter stupidity and dangerousness of his driving on that day. Vehicle UWD-685 being driven by the offender then continued to skid and forced vehicle RPM-336 into the intersection against the red light signal where the front near side of vehicle RPM-336 collided with the front near side of motor vehicle PSL-856, a white Ford Falcon Sedan which was making a right hand turn from Kiora Road into westbound lanes of President Avenue. All three vehicles have come to a complete stop within the intersection. The offender then alighted from vehicle UWD-685 and left the scene of the collision. As a result of the collision Brett MCARDLE died at the scene. The occupants of vehicle PSL-856, Miss Rosa Jaajaa who was the driver and Danny Jaajaa who was the passenger, were conveyed to Sutherland Hospital, but suffered only minor injuries. At the time of the collision weather was fine and the road surface was dry and sealed bitumen. Traffic was minimal in all directions. Street lighting was on." 5 The applicant was spoken to at his home in Menai at about 4.25 am, that is about five hours after the incident. He was taken to Miranda Police Station where he was interviewed and a video recording of this interview was made. He had been visiting a friend at Cronulla before setting out on the journey. After leaving the site of the collision he went to the house of a friend at Gymea Bay and telephoned his mother who collected him and took him home. He said that he intended to contact police in the morning "to deal with it properly". He said that he had been hysterical and not thinking straight. 6 He told Police Sergeant Pagano who arrested him at his home that after the accident he had panicked and run away. It is noted that Sergeant Pagano said nothing about any observation of the applicant suggestive of recent ingestion of intoxicating liquor or drugs. Constable Hamilton, of the Crash Investigation Unit, expressly noted that he could not smell any intoxicating liquor emanating from the applicant whom he saw shortly before 5 am. At a later interview the applicant told police that he had not consumed any alcohol in the twenty four hours prior to the collision. He was not tested for alcohol or drugs but there was no evidence whatever that he had partaken of any such and the matter needed to be dealt with in accordance with the situation that neither drug nor alcohol played any part in the offence. 7 The applicant was sentenced to imprisonment for seven years and six months with a non-parole period of five years. He was disqualified from driving for fifteen years from the date of sentence. 8 The essence of the applicant's grounds was that the sentence was manifestly excessive and this was sought to be demonstrated by a number of factors and by challenges to certain findings made by the sentencing judge. 9 It is convenient first to deal with argument concerning the offence taken into account on Form 1. It was submitted that the conduct in leaving the scene was "part and parcel" of the facts of the principal offence and did not justify any increase in sentence. I do not accept that submission. The departure from the scene was clearly an independent offending act after completion of all the actions and consequences which constituted the offence on the indictment. 10 As the applicant sought and the Crown consented to this charge being taken into account on sentence for the principal offence it was appropriate not to specify a notional sentence in respect of it. The offence in isolation is not indictable but it is capable of being taken into account on a Form 1. The absence of quantification of penalty derives from the circumstance that sentence must be imposed only for the indicted offence. The admission of guilt of the offence on Form 1 does not give rise to a conviction but the facts and circumstances relating to it can give rise to increase in the penalty which would otherwise be appropriate for the "principal" offence: In Re The Attorney General's Application No 1 of 2002 [2002] NSWCCA 518. 11 It was in this context that counsel debated what would, in any event, be the prescribed maximum penalty for the particular offence. Resolution of this debate requires a journey through a legislative maze. 12 The relevant part of s70 provides: "Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence)."

13 The ordinary use of language invites a conclusion that the parenthetical mentions of offences refer to offences against that section. However, the dictionary to the particular statute provides a definition of terms used within it, viz: "2(1) An offence against a provision of this Act is a second or subsequent offence only if, within the period of five years immediately before a person is convicted of the offence, the person was convicted of another offence against the same provision or of a major offence." 14 The dictionary also provides a definition of major offence in these terms: " Major offence has the same meaning as it has in the Road Transport (General) Act 1999." 15 The definition of major offence in s3 of the lastmentioned Act is: " Major offence means: (a) A crime or offence referred to in the definition of 'convicted person' in s25(1), or (b) any other crime or offence, at the time it was committed, was a major offence under this Act or the Traffic Act 1909." 16 There is no apparent relevant reference in s25(1) of that Act, however the Traffic act 1909 has a definition for the purposes of that statute in these terms: " Major offence means: (a) A crime or offence referred to in s10A(1), or (b) an offence under s4E(1) or (1B) as in force before the commencement of this paragraph." 17 There is reference in s10A(1)(b)(ii) to offences under s4E(1F)(a) or (b). 18 An offence is created under s4E(1F)(a) where a person drives a motor vehicle while there is present in his blood the middle range prescribed concentration of alcohol. 19 These lastmentioned provisions have now been transferred into the Road Transport (Safety and Traffic Management) Act 1999, but the present relevance is that on 21 April 1998 the applicant's record shows that he was convicted for "mid range PCA", that being an offence contrary to s4E(1F)(a) abovementioned. 20 The conclusion is therefore that, if the applicant were convicted of an offence charged under s70 he would face an available maximum as prescribed for the case of a second or subsequent offence. The applicant was not convicted of such an offence but it was dealt with under the Form 1 procedure. 21 In referring to the charge his Honour said: "In the circumstances of this case this is also a very serious offence. The maximum penalty applicable to that offence is at least a sentence of eighteen months imprisonment. I will take that matter into account on sentence." 22 His Honour could not have meant that the prescription of a maximum penalty attracted a sentence of "at least" the specified period. He returned to the issue when he was making reference to aggravating features and said: "As a result he ploughed into a stationary vehicle waiting at those lights departing the scene of the accident. I have already said that this amounted to an offence and that I will take that offence into account on sentence. It is not the case that a court will merely give lip service to such a matter not providing any additional punishment. In this case that offence is worthy of specific recognition and I propose to increase the sentence that I would otherwise impose accordingly." 23 No further reference was made other than saying that the offence was taken into account in assessing an appropriate sentence of ten years imprisonment before applying a "discount" for the plea of guilty. 24 In oral submission Mr Lloyd QC for the applicant contended that it should be discerned that his Honour had imposed "double punishment" for this offence. Blackmore DCJ had cited portion of the judgment of Spigelman CJ in R v Jurisic 1998 45 NSWLR 209 in which he listed possible aggravating factors which may be taken into account in an offence like that of the present indictment. (Jurisic was dealt with for three counts of dangerous driving occasioning grievous bodily harm contrary to s52A(3)(a) of the Crimes Act for which offences the statutory maximum was seven years imprisonment). In R v Whyte 2002 55 NSWLR 252 the Chief Justice returned to that list and said: "Further consideration of the authorities would cause me to amend this list by ……. adding: …………………. (xi) failing to stop." 25 Thus, as I understand the argument, if the failure to stop was properly taken into account as an aggravating factor, it should not have been used to extend the term further because it was to be taken into account on a Form 1. 26 The submission fails as it is clear from his Honour's remarks above quoted that he did not take the applicant's failure to stop into account other than as an offence on Form 1 of which guilt was admitted. The absence of error can be perceived if attention is directed to the alternative ways in which the criminality involved in the s70 offence might have been before the Court. Had it been charged as a separate offence punishment could have been accumulated upon that imposed for the aggravated dangerous driving offence, or it could have been taken into account as a specific aggravating factor of that offence pursuant to R v Whyte or taken into account as an admitted offence on a Form 1. His Honour's remarks show that he dealt with the matter only in terms of the third alternative and there was no "double punishment". 27 There was a specific challenge in relation to an allied matter. His Honour rejected a submission in these terms: "It has been put to me that I should accept that he only departed the scene as a result of panic. I do not accept that submission. It is only backed up by hearsay assertions made by the offender." 28 The Crown tendered statements of police officers to whom the applicant had made relevant assertion of panic and the transcript of the interview in which he had himself so stated. There was no indication that the Crown did not accept this assertion. No direction was given pursuant to s4 of the Evidence Act so that material was not limited to strictly admissible evidence. In The Queen v Olbrich 1999 199 CLR 270 @ 281 it was observed in a joint judgment (Gleeson CJ, Gaudron, Haynes and Callinan JJ): "References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say 'if necessary' because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)" 29 There was no counter evidence against the applicant's assertion nor was he put on notice by the Crown or by the presiding judge that his assertion was not to be accepted. The challenge to the approach disclosed in his Honour's reasoning is made good. 30 The assertion however, even if accepted, as it ought to have been, does not necessarily provide an element of mitigation but what the applicant was entitled to was to have assessed the assertion and patently, it was not. 31 The evidence went no further than statements of being affected by panic and hysteria. These were not suggested to be, nor were they, excuses for leaving the scene. Neither is it perceptible in the circumstances that they were mitigatory factors. Whatever the applicant's condition, the undisputed facts were that he left three vehicles and their occupants in collision or aftermath in the street, went to a friend's home, telephoned his mother, was collected by her and went to bed where he remained until police arrived. 32 Although I would sustain the argument advanced, this leads to no result of any consequence. I would not grant leave and intervene on sentence on this ground. 33 A further challenge was made to the way in which the learned sentencing judge dealt with the issue of prior character. 34 The applicant's date of birth is 10 October 1977. He obtained a learner's licence on 12 October 1993. On 20 June 1994 he was fined at Sutherland Chlidren's Court for driving with the special range concentration of alcohol (between 0.02 and 0.05 grams per 100 ml of blood) without an accompanying driver and not displaying "L" plates. In November 1994 he received a traffic infringement notice for negligent driving. In December 1994 he received another traffic infringement notice for exceeding the speed limit by more than thirty kph and less than forty five kph. He had not attained the age of eighteen when these offences were committed. 35 In November 1996 he received a traffic infringement notice for camera detected disobeying of traffic lights, in March 1997 a traffic infringement notice for exceeding the speed limit by less than forty five kph but more than thirty kph and in April 1998 he was convicted of "mid range PCA" which I have already mentioned and exceeding the speed limit by less than thirty kph but more than fifteen kph. He was then disqualified for two years and an unrestricted licence was restored to him on 1 May 2000. 36 The above is the entirety of relevant traffic and criminal record. In his remarks on sentence his Honour recited the record including some reference to licence issue and demerit points. He commenced by observing "for the offender who has not yet reached twenty five years of age he has obtained a traffic record which is nothing less than deplorable", and he concluded by repeating that the record was "simply deplorable". 37 Senior counsel for the applicant contended that this was not a fair description but no point will be served by analysis of what was essentially a flourish of language. It is perhaps worthy of note that, with the exception of the offence of negligent driving, none of the recorded offences appears to involve directly other road users and the traffic infringement notice fine of $138 for that negligent driving is not suggestive of an offence in the upper range of culpability. I am not suggesting that potential interference with the safe use of the road by others by the commission of offences which do not cause specific damage is not significant, but I am calling to attention that what, at first blush seems an alarming litany of offences, does bear some analysis in order to gauge its seriousness. 38 Although the offence of driving with "mid range PCA" is something more than what is colloquially referred to as a "traffic offence" it was part of the applicant's record and after his second reference to the record as deplorable, his Honour stated: "Such record, in my view, disentitles him to any consideration on sentence by way of character whatsoever." 39 This finding was not subsequently qualified in the remarks on sentence. When turning to subjective matters his Honour recounted the applicant's family, education and work history. He accepted that he was remorseful and contrite but so to find is different from giving account to aspects of prior good character. When coming to positive evidence which was tendered on behalf of the applicant his Honour said: "Further I have taken into account written testimonials which talk in glowing terms of the offender. I must say that I find those somewhat difficult to reconcile with the person who has acquired the traffic record I have already set out in these reasons." 40 He later added: "Finally I should note that I have also had regard to a Probation and Parole record prepared in relation to the offender." 41 In a written submission to this Court the Crown Prosecutor summarized that report as outlining aspects of the applicant's good character including the fact that he was an intelligent, articulate young man with a positive work ethic and who resided within a supportive home and social environment. 42 As McHugh J remarked in Ryan v The Queen 2001 206 CLR 267 @ 277: "Notwithstanding the 'remarkable' rationale for taking into account a person's otherwise good character, at common law it is an established mitigating factor in the sentencing process."

In Ryan the Court was dealing with "otherwise" good character in distinction from the offences then charged. In the present case what needed to be dealt with was "otherwise" good character in contrast with the offence and a "deplorable" driving record. 43 The Crown submissions acknowledge (at least impliedly) that his Honour was bound to give weight to the evidence of prior good character. The error of the sentencing judge in Ryan was to engage no leniency whatsoever for the otherwise good character although it was accepted that it would not be erroneous in appropriate cases to withhold significant leniency. 44 It is argued that in this case the sentencing judge would also have been entitled to regard the evidence of good character as of limited significance and it is contended that the statement which I have extracted from the remarks on sentence was not erroneous "because it was made in relation to the applicant's driving record which did operate to deprive the applicant of the benefit of a finding of good character in that regard". This Crown argument must fail. His Honour did not limit his finding to character "in that regard" but unequivocally found that the applicant was disentitled to "any consideration on sentence by way of character whatsoever". His language almost precisely echoes the error identified in the sentencing proceedings in Ryan. 45 The applicant was therefore denied an entitlement to have his otherwise good character weighed as a matter of mitigation and included in the assessment of sentence. It is some further indication of the absence of that element, although none is needed having regard to his Honour's express statement, that the sentence initially assessed was ten years imprisonment reduced by one quarter exclusively by reason of the timely plea of guilty. 46 The next issue relates to contention concerning established patterns of sentencing. Statistics collated by the Judicial Commission and sample judgments were invited to be surveyed. In approaching this issue it must be borne in mind that bald statistics are of limited use, however they may provide indications of general sentencing trends and standards, assist in assuring consistency and be useful in determining whether a sentence is manifestly excessive or manifestly inadequate: R v Bloomfield 1998 44 NSWLR 734. 47 Statistics have been extracted relating to cases since publication of the guideline judgment in Jurisic, however only seven cases are reflected in the graphs. That paucity of number makes them of little utility. The Court has, however, been provided with reference to more than twenty appellate decisions relating to sentence for dangerous driving causing death and/or grievous bodily harm and some similar cases where the circumstances of aggravation did not fulfil the requirements for elevation into the more serious form of offence. Within some of the judgments are numerous, but admittedly inexhaustive, précis of still more cases for comparison or contrast. 48 A similar so extensive exercise is not necessary, but it is instructive to look at some cases including those where the sentence approximates that imposed upon this applicant. In order to enable convenient comparisons I will "translate" minimum and additional terms under the Sentencing Act 1989 into equivalent head sentences and non-parole periods. 49 In R v Woodward [2001] NSWCCA 90 a sentence of eight years imprisonment with five years non-parole period for causing one death was sustained. The aggravating feature was that the offender had a blood alcohol concentration of 0.216 grams per 100 ml, that is more than four times the prescribed limit for a driver. The vehicle left the road at an intersection, mounted the kerb, crossed a grass verge and collided with a pole. He had pleaded not guilty. An assertion that the true cause of the accident was mechanical failure was rejected by the jury and also by the judge in his findings for the purposes of sentence. Except for the specific reduction for the plea it is to be remembered that the applicant's sentence was assessed at ten years imprisonment. 50 In R v Cousins [2002] NSWCCA 81 after a successful Crown appeal against inadequacy of sentence an imposition of eight years imprisonment with a non-parole period of six years was imposed. Two victims were involved, one fatally injured and the other sustaining grievously bodily harm. There was a plea of guilty. The offender had a criminal history not limited to road and traffic matters although he was in fact disqualified from driving at the time of the offences. His record was described as "appalling". The vehicle he was driving was stolen. His driving was terminated when he drove through an intersection against a red traffic control light at 130 - 140 kph and collided with a concrete delivery truck. He was seeking to evade police pursuit at the time. It appears therefore that the facts included two of the available circumstances which would have placed the offences into the aggravated category. 51 In R v Rayner [2002] NSWCCA 309 an appeal against severity of an effective sentence of six years imprisonment with a non-parole period of four years for one count of aggravated driving causing death and one of causing grievous bodily harm was dismissed. The deceased was a passenger in the offender's car, the injured person was a motorcyclist travelling in the opposite direction. The offender's vehicle had crossed a median strip thus provoking collision. He was a police officer aged thirty seven years. At the time he was subject to a current recognizance to be of good behaviour for three years following a conviction for dangerous driving. His blood alcohol level was in the range of 0.270 to 0.294 grams per 100 ml. 52 In R v Sen [1999] NSWCCA 199 concurrent sentences of nine years imprisonment with non-parole period of six years and nine months were reduced to seven years imprisonment with non-parole period of five years and three months for two counts of aggravated dangerous driving causing death. There was a blood alcohol concentration of the offender measured at 0.219 grams per 100 ml but the sentencing judge had been wrongly informed about an applicable speed limit and he expressly found that the margin by which it had been exceeded was a significant aggravating factor which he was reflecting in his assessment. On appeal the Crown conceded that misinformation and that the offender was travelling in fact at or about the applicable limit. 53 In R v Kalanj, unreported CCA 18 December 1997 upon successful Crown appeal against inadequacy the offender was sentenced to five years imprisonment with a non-parole period of two and half years on a count of aggravated dangerous driving causing death. The circumstance of aggravation was a blood alcohol concentration of 0.16 grams per 100 ml. This decision, of course, antedated the guideline judgments in Jurisic and Whyte. The accident occurred at about 11.30 pm in an area where the speed limit had been reduced from 100 kph to 60 kph by reason of some road works but the offender's vehicle had simply crossed to the incorrect side and collided with an oncoming car. 54 In R v Black, unreported CCA 23 July 1998 the offender pleaded guilty to a count of aggravated dangerous driving causing death and another count of causing grievous bodily harm. The victims were the occupants of a vehicle travelling at about 6 am through the intersection of Parramatta Road and Bold Street, Granville. The offender's vehicle entered the intersection against a red traffic control light at 110 kph. That speed sufficed to elevate the offence into the category of aggravation but, in addition, the offender's driving ability was impaired by the prior ingestion of intoxicating liquor. The blood alcohol concentration was between 0.120 grams to 0.135 grams per 100 ml. He had no prior criminal or traffic antecedents, but did not hold a New South Wales driving licence. The Crown had submitted that the case fell into the worst category of offence. An effective sentence of five years imprisonment with three years non-parole period was imposed after successful Crown appeal. This was accompanied by a reminder that sentences after Crown appeal are of little value in ascertaining the appropriate range of sentence to be imposed in trial courts. 55 R v McKinney, unreported CCA 10 March 1999 was again a sentence in this Court following a Crown appeal. On a count of aggravated dangerous driving causing death a sentence of three years imprisonment with a non-parole period of one year and six months was imposed. There were some unusually poignant facts in that the victim was the offender's wife who was a passenger in the car which was returning from a visit to an alcohol rehabilitation centre in order to begin a program to cure her addiction. The offender had been drinking while waiting for her. The aggravating circumstance was his blood alcohol concentration of between 0.166 grams and 0.282 grams per 100 ml. 56 In R v Reeves [1999] NSWCCA 269 the offender was convicted of one count of aggravated dangerous driving causing death and two counts of causing grievous bodily harm. The fatally injured victim was a seventeen year old girl. She and one other victim were pedestrians, the other was a passenger in the offender's car. The aggravating factor was a blood alcohol concentration of at least 0.166 grams per 100 ml. The offender had, knowing that she should not, partaken of alcohol after having ingested prescribed medication for a psychiatric condition. An appeal against severity of an effective sentence of five years imprisonment with a non-parole period of two years and six months was dismissed. 57 In R v Tadman [2001] NSWCCA 225 the offender pleaded guilty to a count of aggravated dangerous driving causing death. Taken into account on a Form 1 were offences of self administration of heroin and failing to stop. As well as the fatality, one other person was injured but no charge was preferred in that regard and the Court was not invited to take any further offence into account in sentencing. The aggravating factor which elevated this offence into the more serious category was that the offender drove whilst under the influence of a drug. He had no prior criminal record and one previous traffic offence of exceeding the speed limit. It was held that the appropriate sentence would be seven years imprisonment but this was reduced to five years and three months (non-parole period of two years and eight months) by reason of a very timely plea of guilty. The fatally injured person was the driver of a car with which the offender's vehicle collided causing it to spin out of control and into the path of an oncoming taxicab. 58 R v Vukic [2003] NSWCCA 13 was a decision upon which the appellant sought to place particular reliance. The offender had been sentenced to eight years imprisonment with a non-parole period of five years for aggravated dangerous driving causing death. He had been drinking to the extent that he was refused readmission to the premises at which he had been imbibing. He had made arrangements to leave his car but in fact got into it and drove along Sydney suburban streets until he crossed unbroken separation lines and collided with an oncoming vehicle killing the driver. He claimed a total loss of relevant recollection. At the time of collision he was travelling at an undetermined speed but it was described by a witness, an experienced bus driver, as too fast. His blood alcohol concentration was not less than 0.172 grams per 100 ml. 59 It was described as a bad case but not one of the worst of its type. It was recognized as that in some cases there can be present aggravating factors in multiplicity. A large number of cases and their outcomes was surveyed in the leading judgment. Some of them I have mentioned and I will not recapitulate the other references. None of them attracted a sentence as high as the one presently under consideration. Smart AJ concluded that: "The correct head sentence in the case of the appellant is one of seven years."

Whilst I accept his Honour's assessment I respectfully disagree with his expression. In Pearce v The Queen 1998 194 CLR 610 in a joint judgment McHugh, Hayne and Callinan JJ said: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision" - @ 624.

I would add - or by any other route. Hayne J further explained in Ryan @ 307: "It is because sentencing, being discretionary, admits of no single 'correct' answer that the task of intermediate appellate courts, on appeal against sentence, is to examine whether the appellant makes good the allegation that the sentencer made an error of principle, not whether they agreed with the sentence imposed." 60 Save occasions of mandatory imposition, for example as used be required by statute upon conviction for murder, it is erroneous to speak of a "correct sentence". 61 In the event, Vukic was sentenced to seven years imprisonment with a non-parole period of four years. 62 The preponderance of sentences at the upper range of impositions involve the aggravating factor of prior voluntary ingestion of alcohol or drugs or involve multiple available factors of defined aggravation or multiple victims. That is not the present case. 63 In summary, in my view, the applicant has made good his challenges to the rejection (although inconsequential) of his assertion that he left the scene in panic and the conclusion that he was disentitled "to any consideration on sentence by way of character whatsoever". Those matters ought to have been assessed. Thirdly, the sentence imposed on the applicant is at the extreme upper level of the range of sentence in observable sentencing patterns, however, when examined, sentences comparable to that received by the applicant have occurred when there have been multiple deaths or injuries or multiple circumstances of aggravation and/or prior voluntary ingestion of alcohol or drugs. 64 In a comprehensive written submission to this Court the Crown Prosecutor scheduled factors asserted to demonstrate that the sentence was not manifestly excessive and that accordingly intervention and imposition of a lesser sentence should not occur. It was essential to the guilt of the applicant, acknowledged by his plea of guilty, that his driving was dangerous, resulted in fatality and that his speed exceeded the prescribed limit by more than forty five kilometres per hour. It is not open to this Court, as invited, to make a finding that the applicant had a specific realization of risk in the absence of any such finding by the sentencing judge. What his Honour said was that "it may not have been inevitable that some accident would occur but his driving certainly enhanced that prospect." An express submission that quitting the scene prevented testing for drugs or alcohol was unaccompanied by any indication as to what this should lead to. It would be an egregious error to guess that, although there was no evidence of consumption of drugs or alcohol (indeed as mentioned, the Crown tendered evidence of the applicant's denials) the offence can somehow be regarded as aggravated by such a factor. For my part, I am unable to discern what the submission was intended to invite. 65 It was appropriate for his Honour to acknowledge the impact upon the victim's family and comment to the extent specified in the Crimes (Sentencing Procedure) Act 1999 s28(3). It scarcely requires statement that the pain and loss felt by the family of the deceased would be likely to seem to be without prospect of consolation. This is particularly so where the grief is that of parents as it is contrary to our nature that older generations should not see the flourishing of the younger. The task of the Court, however, is objective. Consistency in punishment is a fundamental element in any rational and fair system of criminal justice. It is a reflection of the notion of equal justice: see Lowe v The Queen 1984 154 CLR 606 @ 610. A determination of sentence which has been reached after omission to assess factors of possible mitigation and which is inconsistent with established sentencing patterns (in the absence of cogent reason for departing therefrom) requires this Court to consider resentence. 66 A final matter of challenge by the applicant related to the order for disqualification of the applicant from driving for fifteen years. Pursuant to s25(3)(d) of the Road Transport (General) Act 1999 the applicant was prima facie liable to automatic disqualification for five years subject to a longer period being ordered if the court thinks fit. A significant portion of disqualification will be of little practical affect during the necessary custody of the applicant. His trade qualifications and employment history in the mechanical and motor industry were pointed to. However, the applicant's driving behaviour on the occasion, even absent the tragic consequences, was reprehensible. On this aspect his record of repeated offence against the traffic laws is highly significant. I perceive no miscarriage of his Honour's discretionary judgment on this issue. 67 For the reasons already expressed I consider that this Court should proceed to resentence. The conclusion of the sentencing judge that there should be a departure from the statutory formula in setting the non-parole period should be adopted. Given the whole of the circumstances which I have outlined and incorporating detail mentioned in the remarks on sentence at first instance and paying regard to the factors listed in s21A of the Crimes (Sentencing Procedure) Act I would assess an appropriate sentence as six years imprisonment. 68 I would order as follows:

(1) Application for leave to appeal against sentence granted. (2) Appeal allowed. (3) Sentence imposed in the District Court quashed and in lieu thereof, taking into account the offence on the Form 1, the applicant sentenced to imprisonment for six years from 13 September 2002 and to expire on 12 September 2008, with a non-parole period of four years commencing on 13 September 2002 and expiring on 12 September 2006. (4) First date of eligibility of parole specified as 12 September 2006. (5) Disqualification from holding a driver's licence for fifteen years from 13 September 2002 to stand. 69 SHAW J: I agree with Grove J.

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