REGINA v TADMAN

COUNSEL : T A Game SC (Appellant) G E Smith (Respondent) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Respondent) CATCHWORDS : CRIMINAL LAW - dangerous driving occasioning death - whether sentence manifestly excessive - where strong subjective features redounding to appellant's credit - whether incorrect application of sentencing principles - R v Jurisic (1998) 45 NSWLR 209 LEGISLATION CITED : Crimes Act 1900 Justices Act 1902 Ibbs v The Queen (1987) 163 CLR 447 CASES CITED: R v Comber (NSWCCA, 11 November 1998, unreported) R v Jurisic (1998) 45 NSWLR 209 R v Thomson (2000) 49 NSWLR 383 DECISION : 1 Leave to appeal against sentence granted; 2 Appeal allowed; 3 Sentence of the District Court of 21 April 1999 quashed; 4 Appellant sentenced to five years and three months imprisonment commencing on 12 April 1999, expiring on 11 July 2004 with a non-parole period of two years and eight months commencing on 12 April 1999 and expiring on 11 December 2001.

• 11 - IN THE COURT OF CRIMINAL APPEAL

1 SPIGELMAN CJ: The Applicant pleaded guilty in the Local Court on 28 January 1999 to an offence of aggravated dangerous driving occasioning death contrary to s52A(2) of the Crimes Act 1900. The matter was referred to the District Court for sentencing pursuant to s51A of the Justices Act 1902. Mahoney DCJ sentenced the Applicant on 21 April 1999 to a total of seven years imprisonment comprising a minimum term of four years with an additional term of three years. The Applicant was disqualified from driving for five years. 2 Two other offences were to be taken into account on a Form 1 schedule. They were offences committed at the same time: self-administration of heroin and failing to stop after an accident. 3 As will presently appear, in the relevant accident one person died and a second person was injured. Nevertheless the Applicant was charged with one count under s52A(2) i.e. aggravated dangerous driving occasioning a death. There was no charge nor was the Court invited to take into account in sentencing, a further offence under s52A(4) of aggravated dangerous driving occasioning grievous bodily harm. 4 On 3 September 1998 the Applicant left his home at Baulkham Hills during the late afternoon and, eventually, went to Cabramatta where he bought heroin and injected himself. He then commenced to drive home. At 9.25pm the Applicant was seen by witnesses driving north in lane 3 (i.e. the lane closest to the median strip) of the Cumberland Highway at Wentworthville at a speed of about 65kph. Witnesses indicated a period of erratic driving on the part of the Applicant prior to the fatal impact. He was observed to be driving in an unsteady fashion and collided with the median strip on more than one occasion: up to three, according to one eye witness. 5 The Applicant was observed to veer into lane 2 and then back into lane 3. A short time later he veered sharply into lane 2 colliding with the driver's side of a Mazda sedan driven by Mrs Ann Sparks. As a result of that impact the Mazda sedan spun out of control on to the other side of the road into the face of oncoming traffic and collided with a southbound taxi. Mrs Sparks was killed in the collision and the taxi driver suffered head injuries. 6 The Applicant did not stop after the collision. An eyewitness decided to follow him. The Applicant was seen to be swerving from lane to lane and accelerating, giving the driver following the impression that he was aware of being followed. The Applicant extinguished his car lights from time to time, it appears in an attempt to evade his pursuer. At the intersection of the Cumberland Highway and the Old Windsor Road the Applicant was forced to slow down approaching a set of traffic lights. The person following him drove his car across the path of the Applicant's car to stop his progress. As the pursuer approached the driver's side of the Applicant's car, the Applicant reversed back, spinning his wheels, steered around the car of the pursuer and accelerated onto the Old Windsor Road, making his escape, although the pursuer had taken down his number plate. 7 Prior to the sentence hearing, Mahoney DCJ dealt with an application that the matter be referred to the Drug Court. His Honour refused the application, within the course of which his Honour received a considerable body of material about the incident and the circumstances of the Applicant. 8 When the matter came before his Honour for sentence the next week, his Honour had prepared a document entitled "Draft Reasons for Sentence" in which, without expressing a conclusion, his Honour had set out the facts of the offence, summarised other evidence put before the Court for purposes of sentence and outlined some preliminary views that his Honour had formed about the subjective features of the offence and the reliability of the prisoner as a witness. In another document entitled "Driving Causing Death" his Honour outlined an analysis of the law including the applicable factors, both mitigating and aggravating, which had been referred to in the judgment of this Court in R v Jurisic (1998) 45 NSWLR 209 esp at 231. His Honour described both these documents as indicating his "tentative views". 9 When his Honour came to deliver his reasons on sentence he did not repeat the matters contained in the "Draft Reasons" but said (at p3) "take them as read". By this I understand that his Honour treated the document headed "Draft Reasons" as if it were incorporated in his own reasons. His Honour had indicated that the pressure of matters to which he had to attend that day in the busy District Court at Parramatta was considerable. 10 With respect to the second document headed "Driving Causing Death" his Honour said: "I refer to and incorporate those three pages into these reasons for judgment". 11 This is an unusual course but on the basis I have outlined, i.e. that each document is deemed to have been incorporated by his Honour in his actual reasons, I do not believe that there is any basis for complaint that his Honour did not fully set out his reasons for reaching the judgment that his Honour made. It is notable that with respect to one of the matters contained in his Draft Reasons his Honour was satisfied, on the basis of evidence and submissions before the court, that he reached a different conclusion to that which he had tentatively indicated in the Draft as a preliminary view. 12 The primary submission of the Applicant was that the sentence was manifestly excessive. It was also submitted that the manner in which his Honour proceeded was inappropriate. It was submitted that his Honour approached the case on the basis that a starting point was three years based on Jurisic and to this had to be added a substantial component for the presence of a significant number of the aggravating factors identified in Jurisic and an additional one which his Honour identified as applicable in the circumstances of this case. 13 His Honour's general approach was to indicate, it appears on the basis of Jurisic, that the appropriate sentence was at least three years and that "for the presence of any additional aggravating factors, that three years would have to be reviewed upwards". His Honour identified a multiplicity of aggravating factors, emphasising that the process of taking these into account was not a "merely mechanical or mathematical exercise". 14 In his application of the guideline judgment, in my opinion, his Honour adopted an inappropriate approach. The passage in Jurisic in which the guideline was set out did not distinguish between a minimum appropriate punishment, on the one hand, and aggravating factors, on the other. Indeed, it was only the presence of aggravating factors "to a material degree", which reached the level where it could be said that the offender abandoned responsibility for his or her own conduct, that the guideline indicated that a total sentence of less than three years should be regarded as exceptional. I went on to note in Jurisic at 231G, that once the threshold of abandoning responsibility had been reached, a period of three years should be regarded as a starting point but the presence of additional aggravating factors or the heightened intensity of any of the specific aggravating factors already taken into account "will determine the actual sentence". 15 In my opinion his Honour erred in failing to recognise that the guideline in Jurisic took into account matters identified as aggravating factors in formulating the three year starting point. 16 In the present case, one of the aggravating factors was present to such a degree that the Applicant was charged under s52A(2), being the aggravated form of the offence, for which the maximum penalty is fourteen years imprisonment. The maximum penalty for the basic offence under s52A(1) is ten years. 17 The relevant aggravation that distinguished this case from the basic offence was, it appears, the satisfaction of the standard found in s52A(7)(d): "the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug …" 18 The "very substantially imposed" standard contrast with the "under the influence of … a drug" standard in s52A(1). 19 The offence committed was a serious one and entirely justified a substantial custodial sentence. The Applicant's conduct led to the death of a woman. The Applicant continued to drive in a state where his ability to do so was, in accordance with his plea to the charge, "very seriously impaired". That course of driving occurred on a busy road over a lengthy period of time during which he put at risk numerous members of the community. 20 A number of eye witnesses testified to the erratic course of his driving, including his bumping into the median strip on a number of occasions, which must have brought home to him the difficulty he was having with driving. It was submitted to this Court that there was no evidence to suggest that the Applicant was aware that his driving capacity would be as severely impaired as it was. There was no need for any such evidence. When a person takes a drug like heroin, or indeed alcohol, the Court will infer that he or she understood that his or her ability to drive will be impaired. If an accused wishes to contest this obvious inference, it will be up to the accused to give evidence to that effect. See R v Comber (NSWCCA, 11 November 1998, unreported). 21 In the present case the offence was substantially aggravated by the fact that the accused left the scene of the accident and evaded a driver who pursued him with a view to having him stop and, presumably, return to the scene of the accident. He may not have understood at that moment the full impact and horror of what he had done, however, he understood fully well that he had done something. 22 There are important subjective aspects which are entitled to substantial weight in the sentencing exercise. The Applicant was just under twenty-two years of age at the time of the offence. I attach particular weight to the fact that he had no prior criminal convictions of any character. There was only one traffic breach, for speeding, over a period of approximately five years since he had been licensed as an 'L' plate driver. The trial judge found, and I accept, that the Applicant's sorrow and remorse was genuine and that the incident has had a very significant effect upon him. The intensity of his contrition is confirmed in the additional evidence filed in this Court. 23 His Honour had before him a pre-sentence report from the Probation and Parole Service and also a report from a psychologist. Much of the information in those reports was based, as is usually the case, on uncheckable assertions by the offender. His Honour found, correctly, that in some respects the offender's version of prior events was not reliable. 24 The Applicant asserted that he had had an abusive father. He claimed that he had been the victim of a sexual assault at the age of ten or eleven and that he commenced drug use in a social context, as a result of feelings of discontent with his life and as a means of escaping painful memories of his childhood. He also claimed that he returned to sporadic use of heroin following a parachuting accident in which he suffered injuries which caused him continuing pain. 25 The pre-sentence report concluded: "Mr Tadman presents as a disturbed, vulnerable young man who sought the solace of drugs to address a number of issues in the past which has caused him both psychological and physical pain."

Without accepting all of the details of the Applicant's version of his life, this general conclusion appears to be correct. It represents an explanation for his heroin use, but other than as such explanation, does not detract from his responsibility for the death he has caused. 26 A number of statements were placed before the Court supportive of his character, the strength of his religious beliefs and of the remorse and contrition he has manifested since the accident. The evidence indicates that he maintained a strong and close relationship with his mother and that until the accident he held down a responsible and respectable job and was a useful member of the community. 27 Further evidence has been presented to this Court about his conduct in prison and this confirms the impression that his prospects for rehabilitation are high. 28 A report from the Welfare Officer at the Oberon Correctional Centre outlines his general approach and indicated that he was partaking in programmes well. That officer was impressed with him and his level of honesty and maturity and she expressed the further opinion that: "... he has huge potential for personal growth whilst here at Oberon Correctional Centre and this view is shared by other colleagues here at the centre."

29 He himself gave evidence as to the scope and nature of the courses that he has attended and to the counselling from a psychologist and a drug and alcohol counsellor of which he has availed himself whilst incarcerated. He indicated that he has remained drug free and that his religion and belief in God helps him to get through the difficulties that he has faced in that regard. He expresses the view that he is now fit and healthy. 30 The information from the Department of Corrective Services as to his conduct in prison contains a range of complimentary remarks about his application to various opportunities made available to him during the course of his incarceration. Such comments include, in a document entitled "Inmate Assessment", comments of the following character: · Always polite and professional · Always completes tasks · Always searching out work to be completed. Comments of this character redound to his credit. 31 Finally, there are further supporting statements in the form of testimonials from his mother, Ms Wendy Mason, a church youth leader, Pastor Grygoruk, pastor of the Hills Church, Maree Calderwood, a friend and Leng Yeow, a friend and youth worker, all of which spoke highly of his application to his rehabilitation during the course of his incarceration. 32 This was, in my opinion, a strong subjective case, which has been confirmed by the evidence which had been tendered in this Court. This case is entitled to significant weight in the exercise of the sentencing discretion. 33 The Applicant pleaded guilty to the offence at the earliest opportunity, i.e. at the committal stage. Accordingly he is entitled to a discount for the significant utilitarian value of the plea. This discount ought to be at or towards the top of the range identified by this Court in R v Thomson (2000) 49 NSWLR 383. 34 In my opinion, the appropriate sentence in this case would have been, but for the plea of guilty, a head sentence of seven years. With a discount for the plea, that should be reduced to a head sentence of five years and three months. 35 His Honour found that there were special circumstances in the present case and that the non-parole period would be set at lower than the statutory relationship. I agree that there are such special circumstances, particularly as the Applicant will need a longer than usual period of rehabilitation in order to ensure he has fully recovered from his heroin addiction and adjusted to the aspects of his past life that appear to have led him into that addiction. Accordingly, I would impose a non-parole period of two years and eight months. 36 His Honour imposed a disqualification for a period of five years. In doing so his Honour had in mind the fact that the minimum sentence was four years and, if his Honour had not imposed a longer than statutory period of disqualification, the Applicant would have been entitled to commence driving as soon as he left gaol. 37 In view of the fact that I propose to impose a non-parole period below the statutory period for disqualification, it is not necessary to vary that statutory period. 38 The orders I propose are:

3 Sentence of the District Court of 21 April 1999 quashed.

4 The Appellant is sentenced to a period of five years and three months commencing on 12 April 1999 expiring on 11 July 2004 with a non-parole period of two years and eight months, commencing on 12 April 1999 and expiring on 11 December 2001 on which date he will be eligible for parole. 39 HULME J: The facts of this matter, both relating to the offence and the subjective circumstances of the Applicant both at the time of the sentence and since his incarceration, have been summarised in the judgment of the Chief Justice and I gratefully accept that summary. 40 I am content to proceed also on the assumption that the sentencing judge erred in his approach to Jurisic and to the sentencing of the Applicant. That said, I would not interfere with the sentence which has been imposed. 41 In my view, the Applicant's conduct displayed a gross example of abandonment of responsibility, not just in his taking of heroin and driving when his driving ability was substantially impaired, but in disregarding the warnings which he must have had when he struck the median strip a few times prior to the final impact which resulted in the death of another citizen. That the Appellant was in a position to appreciate what was happening in the course of his driving was demonstrated by his conduct afterwards when pursued by another motorist, when quite clearly he had enough of his wits about him to adopt a number of steps directed to evading his pursuer and responsibility for the accident. 42 Parliament has provided a maximum penalty of fourteen years. In my view, anything else than a minimum term of four years and a total sentence of, or very close to, seven years gives insufficient recognition to what Parliament has provided and to the need for general deterrence. 43 I propose that the appeal be dismissed. 44 HOWIE J: I agree with the reasons and sentence imposed by the Chief Justice. 45 In determining the seriousness of an offence under s52A(2) as against the maximum penalty prescribed for that offence, it may not be the case that each of the aggravating features specified in s52A(7) are of the same seriousness or that, in an appropriate case, each require the maximum penalty prescribed to be imposed: See Ibbs v The Queen (1987) 163 CLR 447. For example, it seems to me that the aggravating feature contained in s52A(7)(c) would generally be regarded as a more serious aggravating feature than perhaps the circumstance described in s52A(7)(d). However, for the purposes of the present appeal it is unnecessary to resolve that matter. 46 However, I wish to make it clear that the sentence proposed by the Chief Justice is lower than would generally be appropriate, in my view, to reflect the seriousness of the offence and the requirement for general deterrence. 47 I only agree to the sentence proposed because of the lack of any significant traffic record, which would indicate that the abandonment of the Applicant's responsibility. On this particular occasion was an aberration on his part, the plea of guilty and the very strong evidence of remorse and, in particular, the evidence of the strong prospects of rehabilitation, which has been placed before the Court today. I would not normally accept that a non-parole period of the length proposed in this case would be sufficient to reflect the seriousness of the offence or the need for general deterrence. 48 The sentence which will be imposed by this Court is not to be considered as a general guide to an appropriate sentence for such a case as the objective facts of this matter disclose and, in my view, it is the very least sentence which could be imposed as justified by the subjective matters in this particular case. 49 SPIGELMAN CJ: The orders of the Court are as I have indicated. **********

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