Richards v Regina

Richards v Regina - [2006] NSWCCA 262 - NSWCCA 2006 case summary — Zoe

[34]

22 The sentencing judge sentenced the applicant and the two Mobbs at the same time. He delivered one set of remarks on sentence, adapted as appropriate to deal with each offender's individual circumstances and, of course, their sentences. He summarised the effect of the accident upon the Gray family as follows: "In the event Mr Gray was killed instantly and Mrs Gray seriously injured with facial lacerations, fractured sternum, fractured ribs, and ligamentous damage to her right hand which required plastic surgery. She was unable to use her hand for twelve months. Kayla Gray, aged thirteen at the time of the accident, received crushed vertebrae, ribs, lacerated spleen, a bruised kidney and a fractured right arm. She was in intense pain and on a morphine drip and has found since her discharge from hospital that the door to her promising and burgeoning sporting life has been closed irrevocably upon her. Rhiannon Gray, aged eleven at the date of the accident, was brain damaged and rendered comatose for six weeks. She was so badly injured that it was not expected that she would live, but she recovered sufficiently to be discharged from hospital after six months. She now suffers hemiparesis and dysarthria, which has caused her to be confined to a wheelchair. Her brain damage is regarded as permanent. She is unable to speak properly and although she can now write to some degree it is at a level years below her chronological age. Each of the survivors has suffered deep psychological damage as could, under the circumstances, be prognosticated and understood. Mrs Gray has, therefore, been left not only widowed with deep emotional scars but in a position where her suffering is now compounded by her responsibility towards her two seriously injured daughters. These responsibilities are even further compounded by the fact that she has lost the principal wage earner of the family and her own capacity to earn income and is now reliant upon a reluctant insurer. Further, there are two other daughters from a previous marriage, now in their twenties, who must, in these circumstances, be regarded as direct victims. They have now to live under the shadow of this tragedy. They, too, have been deeply disturbed by what has occurred to their mother and half sisters. The young daughters, for their part, have not only been rendered fatherless, but have had their lives utterly shattered. The prisoner [the applicant] has, by his criminal action, killed one and ruined the lives of three. Even by this brief recitation of what can be found in the Victim's Impact Statement it can be seen that what befell this family was utterly catastrophic."

[85]

(b) the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination): s 52A(7)(d). 24 If the learned sentencing judge had s 52A(7)(a) or (d) in mind, as appears to be the case, then his Honour considered that Richards was liable to prosecution for the aggravated s 52A(7) offence but for the intervention of the Applicant and his cousin. 25 I return to the two errors which are said to arise under this ground. The first argument is that there was no evidence which permitted a finding that Richards had consumed alcohol or a drug prior to the collision. The evidence before his Honour did not support such a finding. Indeed, there was direct evidence from Richards that he had not been drinking. For reasons which could not be explained at the hearing in this Court, the blood sample taken from Richards was not analysed, although the police learned on 23 August 2003 that Richards had been the driver. 26 Secondly, it is submitted that even if there was evidence that Richards would have been liable for prosecution for the aggravated offence under s 52A, but for the hindrance of the Applicant, this was not a factor which the sentencing judge could take into account in passing sentence for an offence under s 315(1)(a) Crimes Act 1900. 27 That offence involves a person doing anything, intending in any way to hinder the investigation of a serious indictable offence committed by another person. The offence is to be contrasted with that under section 319 Crimes Act 1900 of perverting the course of justice. That offence involves a person doing any act or making any admission intending in any way to pervert the course of justice. That offence carries a maximum penalty of 14 years imprisonment. The meaning of 'pervert the course of justice" appears in s.312 Crimes Act 1900 which states: 'A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.' 28 Ms Francis referred to R v Selvage (1982) 1 QB 372, where it was held that, for the purposes of the common law offence of attempting to pervert the course of justice, the relevant intention required that the accused must either know that judicial proceedings are on foot, or that they are imminent or might occur. The Applicant submits that the finding made by his Honour was not open on the facts and was not, in any event, permissible on the De Simoni principle. 29 The Crown submits that the consequence of the hindrance by this Applicant was that an investigation was actually interfered with for 24 hours and that his Honour did not err in the manner alleged by the Applicant. 30 The offence under s 315(1)(a) lies within a statutory scheme in Part 7 of the Crimes Act 1900 which abolished the common law offences of perverting the course of justice or attempting or conspiring to do so (s 341). Accordingly, care must be taken in considering authorities concerning the common law offences such as Selvage or The Queen v Rogerson (1992) 174 CLR 268 where the scope of those offences was considered in the context of interference with a police investigation. 31 The offence under s 319 is regarded by the legislature as being more serious than an offence under s.315. As Howie J observed in R v Hamze [2005] NSWSC 136 at paragraph 24, insofar as the maximum penalty for a s 315 offence reflects Parliament's assessment of the conduct giving rise to the offence, a maximum penalty of seven years is 'a relatively modest one'. In passing sentence for a s 315 offence, it is necessary to keep in mind the different elements and penalties referable to offences under ss 315 and 319. A sentencing judge must not attribute to an offender conduct which would constitute a more serious offence that that for which he is to be sentenced: De Simoni; R v El-Zeyat [2002] NSWCCA 138 at paragraph 46. 32 An offence under s 315(1)(a) involves action by the offender with the intention to hinder the investigation of a serious indictable offence committed by another person. The relevant intention is not that required for the more serious offence under s 319 being an intent to obstruct, prevent, pervert or defeat the course of justice or the administration of the law. A finding that, but for the actions of a s 315 offender, another person would have been prosecuted for a more serious offence appears to me to move beyond the elements of a s 315 offence to a s 319 offence so as to infringe the De Simoni principle. 33 I have concluded that it was not open to his Honour on the evidence to find that, but for the intervention of the Applicant, Richards would have been charged with an aggravated offence within s 52A(7) which carried a maximum penalty of imprisonment for 14 years. That is sufficient to result in the first ground being upheld. However, even if such evidence was present, the finding would not be available by application of the De Simoni principle."

[112]

90 In his interview the applicant explained how he came to make the false accusation. He said: "…[When] it did happen, Luke Mobbs told everyone he was driving like. Just, he'd got out of the car and - but I was driving and I got out of the car and 'cause I was hurt and that, he just told everyone that sorta come out that he was driving it. He didn't want…he said he didn't…just wanted to leave me alone 'cause I was on the ground. And he didn't realize the seriousness…of it…And then, when the police in Bathurst come and seen me that night in hospital, I knew Luke had been tellin' everyone he was driving… … Q464 Ok, what was the purpose of him saying he was driving? A I don't know, I'm not sure. I said, 'Don't….just tell them the truth….No, just tell them I was driving….I dunno, he just, 'cause we were both….and he just….I'm not real sure why he….It just seemed the easiest thing to do at the time. … Q473 Can you recall much of what happened after the accident? When the accident happened and the car stopped on the road, can you describe what happened after that point step by step?---A Luke got out of the car first and went round to Kelly. Q474 Where was Kelly?---A In the seat behind me, the driver's, behind the driver's seat. Q475 Behind you?---A Yeah. And I just had to struggle to get out because my foot was caught and….when I got out, I got out by his door and by that time -- Q476 So you went out whose door?---A Out Luke's door, out the passenger door. Q477 Do you've climbed out over the console…onto the near side of the car to get out, yes?---A Yeah. And when I got out Kelly was layin' back behind the car on the road….side of the road. I tried to sort of walk on my foot and it was hurtin' too much, so I just went and laid down next to Kelly to make sure she was all right. And then I couldn't get up then 'cause it was too sore and Luke was, Luke was talkin' to the other bloke in the car, the bloke in the car we were trying to pass. He was saying something to him about phone….one was askin'….had a phone or something to ring up the police or whatever. And….after that I think the bloke drove off. I'm not sure where he went. And Luke was just down in the, at the other car just takin' his shirt and all that off and wrappin'….hands or whatever….cut hands or somethin'. He was with them tryin' to help them. Q478 Did, did Luke say anything when he came back up from the car, the one that…went over the embankment?---A He said….he said, 'Don't worry". I, I was sorta stressin' out about what happened. He said, 'Don't worry…. Q479 What's his reasoning behind that?---A I dunno, just to leave me behind I s'pose. I dunno…Probably so that, I dunno….I'm not real sure actually. Q481 So you ---?---A I said, 'No, just tell them I was….' He said, 'No, we'll just tell them I was….' I think it was just so people would leave me alone…."

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