Regina v Smith [2005] NSWCCA 19 | Case summary

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Black DCJ in the District Court at Lismore. On 27 February 2004 following a plea of guilty, his Honour sentenced the applicant to imprisonment for seven years with a non parole period of four years on a count of aggravated dangerous driving occasioning death. 2 The offence occurred on 8 August 2003. Shortly before 2 am the applicant was driving a vehicle departing from the city of Lismore in which Rowena Gallen was riding as a passenger. The applicant and Ms Gallen had relatively recently formed a relationship and they lived together. On the preceding evening, the applicant had collected her from work. They went to a hotel but made a journey home in connection with spare car keys (a set had accidentally been locked into the car) but returned to the hotel and resumed drinking. The applicant consumed both beer and spirits. They were friendly with a staff member at a second hotel to which they repaired and they remained drinking after hotel closing. Shortly before the fatal incident the applicant's vehicle had entered a 100 kph speed zone. A witness, Mr Goodman, was driving another vehicle in the same direction at a stated speed of 95 kph. He described the applicant's vehicle as overtaking him at a speed greater than that of his vehicle of about 20 kilometres per hour. He saw the applicant's vehicle lose control, hit a fence, and roll into a paddock turning over "at least half a dozen times". 3 Mr Goodman approached the wreckage and spoke to the applicant who did not complain to him of any injury although Mr Goodman noted scratches on his face. The applicant was apparently confused and upon arrival of police and ambulance, when questioned, he said that he had been alone in the car. This was, of course, not the case and Ms Gallen was in the vehicle and died of injuries sustained in the incident. 4 At 2.45 am a blood sample was taken from the applicant and found to have present alcohol in a concentration of 0.208 grams per 100 millilitres and delta-9-THC 0.011 milligrams per litre and delta-9-THC acid 0.097 milligrams per litre. 5 Without objection there was before the learned sentencing judge a report by Dr Judith Perl, pharmacologist, relating to this analysis. She expressed the opinion that the applicant at the time of driving was under the influence of alcohol and cannabis to the extent that his driving ability would have very substantially been impaired. Her final opinion was expressed in these terms:- "The blood concentration of delta-9-THC and delta-9-THC acid are indicative of very recent usage of cannabis and with such recent use I would certainly expect some impairment. This impairment would be at least addictive to the effect of the alcohol but may in fact have exacerbated the effects of alcohol. Nevertheless, the blood alcohol concentration would have been the primary source of impairment." 6 His Honour found that "it is the drink that would substantially disable the driver from the proper conduct of the vehicle." 7 The applicant had offered the plea of guilty at the earliest opportunity and his Honour gave appropriate credit for that. It was also relevant, however, that although it arose in effect from honest recounting by the applicant, it was shown that he had ignored a specific warning from a friend who raised the issue of his ability to drive when the applicant ceased drinking but the warning was brushed aside upon the applicant's self assessment that he could make his way home. 8 His Honour paid due regard to relevant subjective circumstances touching the applicant including his care for a child born of a relationship prior to that with the deceased and his generally favourable work record, most of which involved fulltime service as a member of the Army Reserve. His prior record included a conviction for high range PCA and being an unlicensed driver. These convictions were entered in 1991 when the applicant would have been aged nineteen. Other matters on his record were not of significance. Complaint was made that his Honour had observed that "the only way his previous record can be described I think is poor" was, at the least, a mis-statement. I do not doubt that any judge would have seen records which were far worse but the applicant's record could not accurately be described as good and "poor" is an appropriate antonym of "good". 9 Two grounds of appeal were presented. Ground 1 contended "the learned sentencing judge erred by imposing sentence in accordance with the terms of the repealed version of s44 Crimes (Sentencing Procedure) Act 1999". 10 His Honour announced the total term and then the non parole period. The current terms of the section referred to require first the setting of the non parole period. Such an occurrence is not a novel. In Regina v Cramp [2004] NSWCCA 264 Spigelman CJ observed: "It is necessary to correct the sentence imposed so it conforms with the structure required by s44 in the form in which it is applicable. The Applicant submitted that by reason of this error the Court was entitled to set aside the sentence and proceed to determine the sentence which it believed should be imposed. The error that has been identified did not affect the exercise of discretion by the trial judge. The Court is able to, and should, resentence the Applicant. However, unless some other aspect of the sentence warrants the Court proceeding to sentence afresh, I would not do so. The error identified is a technical one and does not justify this Court proceeding as if his Honour's exercise of the sentencing discretion miscarried." 11 It follows that standing alone, the identification of such an error does not give rise to an entitlement to resentence. 12 The gravamen of the argument on behalf of the applicant was presented in relation to ground 2, which was simply expressed as "the sentence is manifestly excessive." 13 There has been extensive analysis of the sentencing principles applicable to crimes causing unintended death or maiming arising out of dangerous driving. It can be noted that the Parliament created an aggravated form of offence and that by reason of the high concentration of alcohol in the applicant's bloodstream at the time, his offence is in the more serious category. There is no need to recapitulate the principles which were extensively articulated in R v Jurisic 1998 45 NSWLR 209 and later in R v Whyte 2002 55 NSWLR 252. 14 Senior counsel for the applicant drew attention to the facts and circumstances in R v Vukic [2003] NSWCCA 13 where a number of cases were discussed providing, it was submitted, a useful context upon which to assess the severity of sentence imposed in the present case. A similar exercise was undertaken in R v Ryan [2003] NSWCCA 202. 15 Senior counsel for the applicant acknowledged the need for caution in comparing sentences imposed in other cases: cf R v Morgan 1993 70 A Crim R 368 but he elaborated the facts in R v Vukic in which a sentence identical to the present was imposed and it was submitted Vukic "warranted a significantly greater sentence than the applicant in the present matter." Vukic drove in a suburban street at high speed, well in excess of applicable limit, crossed to the incorrect side of the road and killed the driver of an oncoming vehicle. His blood alcohol reading was 0.172. He had two convictions for PCA and eight speeding convictions as well as other infringements. 16 Reference was also made to R v Sutton [2004] NSWCCA 225 where a sentence of six and half years with a non parole period of four and half years was varied by reducing the non parole period to four years. Again, on the facts of that case it was submitted that Sutton would warrant a significantly greater sentence than the applicant. Sutton was driving in the afternoon in a country town. He was seen driving erratically. He crossed to the incorrect side of the road and killed a female cyclist. He narrowly missed another cyclist riding near her. He did not stop after the collision. He had three prior convictions for PCA, two of them "high range". His measured blood alcohol was 0.268. 17 The particular case in which it was expressly submitted the result should be regarded as comparable to that which should have been in the present case was R v Berg [2004] NSWCCA 300 which was accurately epitomised in these terms: "The sentencing judge had imposed a sentence of five years with a non parole period of three years which was quashed by this Court. Mr Berg had driven a motor vehicle with a blood alcohol level of 0.20 grams per 100 millilitres as well as having morphine and cannabis detected in his blood, although he would not have been affected by the latter drugs to any significant degree. His vehicle left the roadway and collided with an embankment which caused the vehicle to roll. A passenger, a woman with whom the applicant had been in a relationship for some months, died. The vehicle's tyres had less tread depth than the legal requirement and the braking system was in poor condition. The road was wet and it was raining at the time. Mr Berg was 45 years old. He had a record for criminal offences, primarily for matters of dishonesty, which was regarded as being irrelevant. He also had a record of traffic matters including a PCA offence twenty one months before the accident. The applicant was engaged in community work, charitable work for which he had been commended by the receipt of service awards. He was said to be deeply traumatized and guilt ridden and the sentencing judge accepted that he had shown remorse. The sentencing discretion was found to have miscarried in the manner in which s21A factors were considered. This Court moved to resentence and Howie J, with whom Spigelman CJ and Wood CJ at CL agreed, determined that the appropriate sentence was one of four years with a non parole period of two years three months." 18 It should be noted that the estimate of speed of the applicant's vehicle was mentioned by the learned sentencing judge as being some 20 to 25 kilometres per hour faster than the estimated 95 kilometres an hour at which Mr Goodman's vehicle was travelling. There was nothing in the material which suggested that in the overtaking manoeuvre or indeed at any time the applicant's vehicle exceeded the speed of that being driven by Mr Goodman by more than 20 kilometres per hour. Counsel drew attention to the absence of any evidence suggesting erratic driving by the applicant prior to losing control when the vehicle had performed that manoeuvre. 19 It was submitted by the Crown that the offence fell within the description of "the worst type of case" given by Smart AJ in R v Vukic. The reasons for these were stated as "a combination of factors, in this case, high speed, a blood alcohol reading of more than 2.00 (sic), the recent use of cannabis exacerbating the impairment of his driving, a warning against driving, driving while unlicensed and driving an unregistered and uninsured vehicle." 20 There was no evidence of the existence of traffic on this rural road other than the two vehicles which I have mentioned and the evidence did not establish that the applicant's vehicle was travelling at a speed greater than 15 kph over the limit during an overtaking manoeuvre. Whether, in motoring parlance this can be described as a "high" speed overtaking in the circumstances is open to debate. Nevertheless, 115 kph is in terms of simple accelerated movement along a road undoubtedly a "high" speed. There were a number of offences in addition to that which is the subject of appeal dealt with by his Honour, that is say for driving the unregistered and uninsured vehicle for which convictions were entered without penalty. However, the charge of unlicensed driving was referred to the Local Court for hearing, it being the stated position of the applicant that he wished to defend that matter on the ground of, in effect, honest and reasonable mistake. The Court was informed that this matter has never come to trial but it was accordingly not open to be argued by the Crown that driving whilst unlicensed was a factor contributing towards the applicant's being in the "worst case" category. On an overview of all the available evidence I am unpersuaded that this case is in such category. 21 I return to the submission that sentence in this case should be comparable with that imposed in Berg. 22 Sentencing is not a process that leads to a single correct answer: see Pearce v The Queen 1998 194 CLR 610 @ 624. It follows from the discretionary nature of sentencing that in any given case a sentence will be invulnerable to appellate intervention which, absent error of fact or principle, lies within the range of the sound exercise of judicial discretion. 23 The ultimate question in the present case is whether the imposition of a sentence of seven years imprisonment with a non parole period of four years is so outside that notional range and, Berg, given some general similarity of facts and circumstances, can be looked at for guidance. Although both the applicant and Berg had similar concentrations of alcohol as well as some drugs within their bloodstreams, the applicant's culpability was enhanced by the unchallenged evidence of his recent use of prohibited drug. 24 Whilst I have already cautioned against the dangers of seeking precisely to compare one case with another, it can be observed that there are substantial similarities in some aspects of the present case with Berg. Coincidentally, both cases were dealt with at Lismore District Court and involved accidents in the Northern Rivers area. The alcohol level detected in Berg's blood was 0.2 and traces were also found of other drugs including morphine and cannabis. However, the expert evidence in the case of Berg was that it was unlikely that he would have been affected to any significant degree by the drug other than alcohol. I have already set out Dr Perl's opinion regarding the recent consumption of cannabis by the applicant. The report does not disclose the speed at which Berg was travelling but it was at about 1 am and the weather was poor and the tyres on the vehicle were without adequate tread pattern. Both Berg and the applicant had been in a relationship with the female passenger whose death was caused, for a brief period before the accident, although Berg and the deceased woman had not been actually living together. 25 Berg was initially sentenced to five years imprisonment with a non parole period of three years in contrast with the applicant who, as I have said, is sentenced to seven years imprisonment with a non parole period of four years. Berg's sentence was reduced to what effectively amounted to imprisonment for four years with a non parole period of two years and three months. 26 A question therefore arises as to whether the sentence received by the applicant exceeds an established pattern of sentencing so as to invoke the intervention by this Court. 27 I have mentioned the analyses of cases undertaken in Vukic and Ryan. In R v Cousins [2002] NSWCCA 81 the offender was convicted of aggravated dangerous driving occasioning death and also a second count of causing grievous bodily harm. He was driving a stolen motor vehicle and the evidence showed serious risk to many innocent people by a long period of erratic and dangerous driving. He had a record described as appalling. A sentence of eight years imprisonment with a non parole period of six years was effectively imposed. The aggravating features just mentioned were absent in the present case. 28 In R v Jaworowski (1999) 108 A Crim R 489 the offender struck a motorcyclist on a road in suburban Sydney. Tests revealed blood readings of 0.240 grams of alcohol and 0.270 grams. Less than two weeks prior to the offence the offender had been dealt with in the Local Court for high range PCA and disqualified from driving. He also had a previous similar offence. A sentence of eight years imprisonment with a non parole period of five years was the eventual outcome. 29 For ease of reference where sentences were imposed under previous sentencing regimes I have "translated" them into the present form of sentencing. 30 In R v Sen [1999] NSWCCA 199 the offender pleaded guilty to aggravated dangerous driving causing death. He had passed through a red traffic control light and testing revealed a blood alcohol content at 0.219. He was without significant prior record and was sentenced to four years imprisonment with a non parole period of two years three months. 31 In R v Hawkins [2002] NSWCCA 280 the offender received a sentence of five years imprisonment with a non parole period of four years. He was travelling at least 100 kph in a 70 kph area. There was erratic driving prior to the collision. He had prior PCA convictions. On this occasion his alcohol reading was 0.216. 32 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 millilitres. The offender had, knowing that she should not, partaken of alcohol after having ingested prescribed medication for a psychiatric condition. The effective sentence was imprisonment for five years with a non parole period of two and half years. 33 In Ryan the offender drove a motor vehicle in a suburban street in Sydney at a speed variously estimated by witnesses as between not less than 90 kilometres an hour and up to 160 kilometres per hour. He collided with a stationary vehicle which was stopped in response to a red traffic control signal. The driver of that vehicle was killed. The offender left the scene. There was no involvement of alcohol or drugs. A sentence of six years imprisonment with four years non parole period was the final outcome. 34 Those references are by no means exhaustive even of the cases of which mention is made in Vukic and Ryan. The issue remains as I have earlier posed. 35 A survey of available material for comparison leads me to the conclusion that the sentence here imposed was excessive. In reaching that conclusion I consider that special regard should be paid to Berg which, as noted, has marked similarities. 36 For the purpose of resentence this Court has been provided with information as to the progress of the applicant whilst in prison. He has responded extremely well and has taken advantage of courses and rehabilitation which is available to him. The Court was informed that the child of whom he had care has been able to be accommodated within his family whilst he is in incarceration. 37 His progress towards rehabilitation appears commendable and the prospect of reoffending can be assessed as low. I would find special circumstances for reasons coordinate with those of the learned first instance sentencing judge. 38 I propose the following orders:

Regina v Smith

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