Circumstances of the Case
235 On the evening of 8 April 2000 the Respondent was driving a motor vehicle in a southerly direction through the township of Aberdeen, along a section of the New England Highway known as MacQueen Street. At about 6.10pm his vehicle crossed to the incorrect side of the road whilst negotiating a moderate right hand bend. The vehicle collided with two other vehicles, a Chrysler Galant sedan driven by Lindsay Keys and a mini-bus driven by Robert Lawford.
236 The breath analysis of the Respondent in Muswellbrook Police Station had a positive reading. The evidence before the Court was that the Respondent's blood alcohol at the time of impact would have been in the range of 0.204 grams to 0.257 grams of alcohol per 100 millilitres of blood, the most likely level being 0.241. The prescribed concentration of alcohol for purposes of constituting the aggravated version of the offence under s52A(4) of the Crimes Act 1900 was 0.15 grams per 100 millilitres of blood. The expert evidence before the Court was that even at the lowest level of the estimated range, the Respondent's driving would have been grossly impaired. Most persons would be in a comatose or stuporous condition with a blood alcohol reading of that level. The evidence was that only a very regular heavy drinker would be capable of walking and driving with such a high blood alcohol level, but that even such an individual would be very significantly impaired.
237 The Respondent had told police that he had commenced drinking at about 11.00am and consumed his last drink at about 5.00pm at a Murrurundi Hotel. The distance from Murrurundi to Aberdeen is approximately fifty kilometres.
238 In the record of interview the Respondent indicated that he had consumed probably about twenty schooners on the evening prior to the day of the collision and another dozen schooners on the day of the collision. The Respondent indicated that he had been feeling very tired. The Respondent was unable to recall the circumstances in which the accident occurred. Mr Keys gave evidence that he saw the Respondent's vehicle travelling in a straight line and drifting to the right. The trial judge concluded the Respondent had fallen asleep before the collision.
239 The result of the collision was that there was very serious injury to a Charles Hague, then aged sixty-three, a passenger in the mini-bus. He had a fracture dislocation to the left hip, multiple lacerations and abrasions to the lower leg and a fracture of the lateral tibial plateau. He needed a total hip replacement and suffers a permanent disability with respect to his left lower limb. The sentencing judge identified the extent of injuries as "substantial" and described the effect on the victim as a 'serious adverse impact'.
240 The sentencing judge recited the expert evidence about the Respondent's physical condition. One report indicated that the prisoner may have a sleep abnormality. Another report by a consultant physician referred to a history of excessive sleepiness and came to the conclusion that the Respondent does suffer from narcolepsy and possibly a mild sleep apnoea. The report noted that sleep disorder is severely aggravated by alcohol. The trial judge concluded:
"I have no doubt that the large amount of alcohol the prisoner had consumed was the principal reason the prisoner fell asleep whilst driving his vehicle. The prisoner was, whilst driving his vehicle, intoxicated to a high degree. His ability to drive the vehicle was very significantly impaired.
I accept, on the probabilities, that the prisoner was prone to narcolepsy prior to the offence. The fact that he was is not a matter of mitigation in the present circumstances.
…
The factors present: drowsiness, fatigue, history of excessive sleepiness, and the large amount of alcohol consumed, were a dangerous combination. The prisoner should not have driven his vehicle. However, he chose, for his own reasons to do so. In his own words he took a calculated risk."
241 The sentencing judge noted the prisoner's history. He had been convicted of a charge of common assault and a mid-range prescribed concentration alcohol offence which involved an accident. His Honour said:
"The prisoner's record does not entitle him to leniency."
242 The sentencing judge also noted the guilty plea on the second day of the trial which, he said, arose:
" … from a recognition of an inevitable adverse finding by the jury. The prisoner's plea of guilty however saved the cost of the trial proceeding further. The utilitarian benefit of the plea entitles the prisoner to a discount on sentence of 10 per cent."
243 The sentencing judge also noted and accepted as genuine the Respondent's expressions of remorse.
244 The sentencing judge took into account a range of subjective features including those set out in a psychologist's report. Although the seriousness of the Respondent's drinking problem was apparent, he acknowledged that he had not altered his drinking habits since the accident. His Honour specifically accepted the psychologist's conclusion that the Respondent remains at risk primarily because of the drinking culture of the country town in which he lives.
245 There was a significant body of evidence of good character from the Respondent's work and from social associates.
246 The sentencing judge referred to the list of considerations set out in Jurisic at 231, noting the serious nature of the injuries to Mr Hague, the number of people put at risk by the prisoner's driving, the high degree of intoxication, the fact that he had driven for some fifty kilometres on a major roadway upon which significant traffic could be expected. His Honour also made reference to the High Court judgment in Wong, specifically to the three judge joint judgment at pars [76]-[78], and set out the effect of that judgment. His Honour added:
"…in sentencing the prisoner I have taken into account all the circumstances of the offence and of the prisoner."
247 His Honour concluded:
"Each case I am aware depends upon its own circumstances. The circumstances of the offence lead me to conclude, however, that in driving his motor vehicle, the prisoner abandoned the responsibility to drive safely which he owed to other road users and to himself. This is not a case of a momentary or casual lapse of attention. There is no alternative but to sentence the prisoner to a term of full-time imprisonment."
248 It is apparent from his Honour's reasons that he did not regard the guideline in Jurisic as prescriptive. He treated it as a guide or check.
249 As noted above, His Honour imposed a head sentence of two years and three months with a non-parole period of twelve months. The finding of special circumstances was based on the need for a lengthy period of supervision to assist with the Respondent's excessive consumption of alcohol. There was no challenge to this finding.
250 The Crown submitted that the sentence, especially the non-parole period, was manifestly inadequate. It noted that this case involved the aggravated version of the offence, by reason of the high blood alcohol concentration. It submitted that the sentencing judge failed to give appropriate weight to the objective seriousness of the offence.
251 The Crown referred to a number of allegedly comparable cases in which substantially higher sentences had been imposed: R v McAskill (2001) 31 MVR 508; R v Khan [2000] NSWCCA 454; R v Kaliti [2001] NSWCCA 268 and R v Bicheno [1999] NSWCCA 148. However, as Mr Thraves, who appeared for the Respondent, submitted, the cases relied on by the Crown involved significantly worse injuries to victims than that in the present case (e.g. multiple victims, amputation and blinding).
252 Mr Thraves submitted that the sentencing judge had taken into account all relevant considerations, including the objective gravity of the offence. He submitted that the long period on parole was required in order to provide assistance to overcome the Respondent's drinking problem.
253 The present case features two offsetting considerations. The injuries caused to the victim are serious but not of so high a degree as has often featured in such cases, e.g. amputation, blinding, multiple victims. On the other hand, the moral culpability of the offender was of a very high order. A long period of binge drinking and significant sleep deprivation was not, as the trial judge found, mitigated by susceptibility to narcolepsy.
254 But for one circumstance, I would have found the sentence, particularly the non-parole period, to have been manifestly inadequate. The circumstance is the delay that has been occasioned by reason of this case becoming, in effect, a test case with respect to guideline judgments.
255 The sentence was imposed on 30 November 2001. The notice of appeal was not filed for two months. Listing for hearing was delayed to a time convenient for a number of different counsel in the cases to be listed together. The complexity of the issues has meant a significant delay in the delivery of judgment which would, in the ordinary course, have been delivered ex tempore. In the result, the Respondent has only a few months left of his non-parole period.
256 In all the circumstances, in my opinion, the Court should, in the exercise of its discretion, dismiss the appeal.
257 MASON P: I agree with the Chief Justice.
258 I also agree with the additional remarks of McClellan J, to which I would add reference to my own comments about the analogous difficulties experienced by inexperienced trial and appellate judges so long as Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 remains (see Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at 281, Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343 at 351-2).
259 BARR J: I agree with the Chief Justice.
260 BELL J: I agree with Spigelman CJ.
261 McCLELLAN J: I have had the benefit of reading the reasons for judgment prepared by Spigelman CJ, with which I agree. However, there are some remarks which I wish to add, not because of their novelty, but because of the significance of the issues to an understanding of the contribution which guideline judgments can make to the administration of criminal law.
262 It is often believed that controversy with respect to the appropriate sentence for a particular offence is a recent phenomenon, fuelled by exchanges in the electronic media and strident headlines in the popular press. Although the mechanisms for the expression of public dissatisfaction with individual sentences or sentencing patterns may have changed in recent years, the potential for controversy has, as the Chief Justice observes, existed for many years. The need perceived by the judges of the Kings Bench in 1901 to formulate a statement of "normal punishments" makes this plain. (see R M Jackson, Enforcing the Law, Penguin Books, 1972, Appendix V, 391).
263 Any judge who has been required to sentence a person for committing a crime, will be aware of the significant burdens which the making of the decision imposes. An experienced judge, particularly one with access to colleagues constantly involved in the sentencing process and the benefit of exchanges in an appellate court, may find the task less burdensome. However, many sentences must be imposed by judges with less experience and the majority of sentencing judges will never be involved in sentence appeals.
264 The structure of the modern legal profession, which demands specialisation by practitioners in particular areas of the law, will have the effect that a person who is, without doubt, appropriate for judicial appointment, may not have any, or significant experience, in the sentencing process. Even when a new judge has gained the necessary experience, the task of sentencing by the process often referred to as "instinctive synthesis", has in recent years become more difficult and prone to miscarry. It was, I apprehend, for this reason, amongst others, that guideline judgments were initiated. (see R v Jurisic).
265 The sentencing process involves a balancing of many factors derived from considerations of the circumstances of the crime, the victim and the offender. If the sentence imposed is to be accepted as just, it must be consistent with sentences imposed on other offenders where the relevant factors are similar. (see Gleeson CJ in Wong at para 6).
266 The increasing number of sentences which are imposed and, as the Chief Justice has pointed out, the great many appeals in relation to sentences, has meant that the ideal of the individual sentencing judge being abreast of all of the sentences which are being imposed, is impossible. Even keeping abreast of the decisions of this Court is immensely difficult. The task is more difficult for the judge who has, as yet, limited experience in the sentencing process.
267 There are many areas in which the general community interacts with the judicial process and the judges who administer it. Public acceptance of the role of the judiciary in the making of decisions, which affect members of the community, emanates from a fundamental belief that the decisions which are made, provide a just outcome. This is the foundation for acceptance by the community of sentences imposed upon individuals by sentencing judges. But as Kirby J pointed out in Wong para 102, continued public confidence in the administration of justice requires effective transparency and honesty just as those attributes are required of other areas of public administration in contemporary society. The law must facilitate this objective.
268 Individual members of the community will usually be exposed to the criminal process only in a particular case. Victims, and relatives of victims, will very often, and understandably, have difficulty accepting a sentence which has been imposed where consideration of the objective criminality of the offence may have been balanced by the sentencing judge with the fact of a plea of guilty, the age of the offender, whether the offender has any previous convictions and other relevant considerations. Although controversy in relation to an individual sentence may or may not be justified and, even though an error can be corrected on appeal, the fundamental objective of the process must be to ensure that sentencing judges have available to them all the assistance which the law can provide in determining the appropriate sentence in an individual case.
269 Guideline judgments utilised as a "check, guide or indicator" have the benefit of distilling the experience of this and other courts, so that guidance provided by those decisions in relation to other offenders may be readily available to the sentencing judge. They also assist the members of the public, with an interest in the individual case, to understand the reasoning process which resulted in the particular sentence and the relationship of that sentence to other sentences which have been imposed.
270 I agree with the reasons of Spigelman CJ and the order he proposes.
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