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[2006] NSWCCA 262
Court of Criminal Appeal (NSW)
2006-04-26
McColl JA, Adams J, Latham J, Ms J, Coll JA
Original judgment source is linked above.
CITATION: Richards v Regina [2006] NSWCCA 262 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT OF: McColl JA at 1; Adams J at 86; Latham J at 112
DECISION: 1.Quash the sentences imposed by Judge Shadbolt in respect of counts 1, 2, 3 and 4 on the indictment dated 8 March 2005 and the count on the indictment dated 22 April 2005. 2. In respect of count 1 on the indictment dated 8 March 2005 sentence the applicant to imprisonment for four years and four months to commence 22 April 2006 and expire 21 August 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. 3. In respect of counts 2 - 4 on the indictment dated 8 March 2005 sentence the applicant to imprisonment on each for four years to commence 22 April 2006 and expire 21 April 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. 4. In respect of the count on the indictment dated 22 April 2005, sentence the applicant to twelve months imprisonment to commence on 22 April 2005 and expire on 21 April 2006. 5. Grant leave to appeal. 6. Dismiss the appeal.
CATCHWORDS: CRIMINAL LAW - APPEAL - SENTENCE - Plea of guilty to 1 count of dangerous driving occasioning death (s52A(1)(c) Crimes Act), 3 counts of dangerous driving occasioning grievous bodily harm (s52A(3)(c) Crimes Act) and 1 count of make accusation intending another person to be the subject of an investigation, knowing that person to be innocent of the offence alleged (s314,Crimes Act) - Whether sentencing judge erred by sentencing on basis of facts which gave rise to a more serious offence - Whether sentencing judge erred in failing to take into account the utilitarian value of plea of guilty - Objective criminality of s 314 offence - Whether lesser sentence warranted where sentencing judge failed to accumulate sentences on dangerous driving counts - s7(1A) Criminal Appeal Act discussed - SENTENCING - failure of judge formally to impose sentence - s43 Crimes (Sentencing Procedure) Act - LEGAL PRACTITIONERS - Obligation of Crown Prosecutor to assist court to avoid appealable error.
Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes (Public Justice) Amendment Act 1990 Criminal Appeal Act 1912 Road Transport (Safety and Traffic Management) Act 1999
Erceg v District Court (NSW); Virgin v District Court (NSW) [2003] NSWCA 379;(2003) 143 A Crim R 455 Gobbett v R [2006] NSWCCA 46 R H McL v R [2000] HCA 46; (2000) 203 CLR 452 Mobbs v R [2005] NSWCCA 438 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Amurao [2005] NSWCCA 32 R v Bottin [2005] NSWCCA 254 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Drew [2005] NSWCCA 50 R v Dutton [2005] NSWCCA 248 R v Galati [2003] NSWCCA 148 R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328 CASES CITED: R v Lloyd [2003] NSWCCA 49 R v McCarroll [1999] NSWCCA 237 R v Mobbs [2005] NSWCCA 371 R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 R v Pearson [2005] NSWCCA 116 R v Shankley [2003] NSWCCA 253 R v Smith [2005] NSWCCA 339 R v Taouk (1992) 65 A Crim R 387 R v Thomson; R v Houlton, [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 R v Wilson [2005] NSWCCA 219 R v Young [2003] NSWCCA 276 Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1
PARTIES: Corey Edward Richards (Appkicant) Regina (Respondent)
COUNSEL: Mr R Sutherland SC - Applicant Ms J Dwyer - Crown
SOLICITORS: Robertson Saxton Primrose Dunn - Applicant S Kavanagh - Crown
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 2005/2497 DC 04/61/0092
McCOLL JA ADAMS J LATHAM J
1 McCOLL JA: This is an application for leave to appeal against the severity of sentences imposed by Shadbolt DCJ on 13 May 2005 in the Sydney District Court.
2 The applicant pleaded guilty before Shadbolt DCJ at Bathurst District Court to four counts on an indictment dated 8 March 2005 being: (1) Dangerous driving occasioning death in contravention of s 52A(1)(c) of the Crimes Act 1900 - maximum penalty ten years imprisonment. (Count 1)
(2) Dangerous driving occasioning grievous bodily harm (three counts) in contravention of s 52A(3)(c) of the Crimes Act 1900 - maximum penalty seven years imprisonment. (Counts 2 - 4)
3 He also pleaded guilty before Shadbolt DCJ to a count of "make false accusation" in contravention of s 314 of the Crimes Act 1900 - maximum penalty seven years imprisonment set out in a second indictment dated 22 April 2005.
4 Although there were two indictments, the offences to which the applicant pleaded guilty all arose from one incident: a fatal car crash on 22 August 2003 which killed one person and gravely injured three others.
5 The applicant challenges the following sentences, which I have extracted from the Particulars of Trial: First Indictment (1) Count 1 - Imprisonment for four years and four months to commence 22 April 2006 and expire 21 August 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009.
(2) Counts 2 - 4 - On each, imprisonment for four years to commence 22 April 2006 and expire 21 April 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. Second indictment (3) Imprisonment for a fixed term of twelve months to commence 22 April 2005 and expire 21 April 2006.
6 The Crown has properly drawn the Court's attention to the fact that while it appears the sentencing judge intended to impose these sentences, his Honour did not formally pronounce sentence in respect of the s 314 offence. Accordingly the Crown concedes that for this, if for no other reason, the Court will have to intervene to correct that omission. Presumably, although it did not say so, the Crown sought to invoke s 43 of the Crimes (Sentencing Procedure) Act 1999; see Erceg v District Court of New South Wales; Virgin v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455 (at [103] - [104]). Mr R Sutherland of Senior Counsel, who appeared for the applicant, did not contest that this was, in the circumstances, a proper course. Indeed, he conceded that "notwithstanding the somewhat 'opaque' expression of reasons by the sentencing judge, the effective sentence was, as identified by the Crown in the Particulars of Trial." Factual Background
7 On 22 August 2003 at approximately 4.30pm the applicant was driving his 1998 Holden Commodore east along Duckmaloi Road near Oberon. With him in the car were his de facto wife, Kelly Mobbs, and her cousin, Lucas Mobbs. Lucas Mobbs was in the front seat.
8 The applicant was driving behind a vehicle driven by a Mr Freebody. At a straight section in the road the applicant manoeuvred his vehicle across the broken lane separation line running down the middle of the road no doubt intending to overtake Mr Freebody's vehicle. However, this placed the applicant's vehicle directly in the path of a vehicle driven by Mr Simon Gray resulting in a head-on collision. Mr Gray's car careered down a gully. Mr Gray was killed instantly, Mrs Gray, his wife, was seriously injured as, too, were his daughters, Kayla, aged eleven and Rhiannon, aged thirteen.
9 The applicant and Lucas Mobbs suffered minor injuries. Kelly Mobbs suffered, among other injuries, a fractured vertebra in her back which required hospitalisation.
10 Immediately after the accident Lucas Mobbs assisted the applicant and Kelly Mobbs from the vehicle. Mr Freebody had stopped his vehicle and returned to the scene of the accident. Lucas Mobbs asked him to go to a nearby house to call emergency services, a task he then undertook.
11 In the meantime Lucas Mobbs approached Mr Gray's vehicle and realised he had died and, apparently, that the other occupants of the vehicle were seriously injured. He then returned to the roadway where the applicant and Ms Mobbs were lying and informed the applicant that he would say he was driving the vehicle. The applicant agreed with this proposition. Mr Mobbs also told the applicant that the driver of the other vehicle was deceased. Mr Mobbs then placed his green "P" plate on the rear of the applicant's car to support his assertion he had been the driver.
12 In due course police, ambulances and emergency services arrived. Lighting was set up. A helicopter arrived to airlift the critically injured child, Rhiannon, while the other surviving occupants of both vehicles were conveyed to various hospitals by ambulance.
13 The applicant was aware that police and ambulance officers were asking Lucas Mobbs at the scene who had been driving their vehicle. He told ambulance officers at the scene, and later police and hospital staff, that Lucas Mobbs had been driving his car. Samples were taken of Lucas Mobbs' blood in compliance with, and for the purposes of, s 20 and s 23 of the Road Transport (Safety and Traffic Management) Act 1999. Blood samples were taken from the applicant for hospital pathology services only.
14 At 9.10pm on the day of the accident Constable Glenn Rose attended Bathurst Hospital with Constable Brian Cashen and spoke with the applicant. The applicant informed Constable Rose that Lucas Mobbs had been driving saying, "Yeah, he was driving because I drive trucks and I was driving all day and I was tired". He gave a detailed statement to Constable Rose. It is unnecessary to refer to the detail of that statement. Suffice to say it elaborated upon the lie.
15 The following morning, 23 August 2003, Lucas Mobbs telephoned Bathurst Police Station and left a message for Detective Ian Nightingale that he wished to change his statement. On 25 August 2003 the applicant rang police and informed them that he had been the driver of the vehicle. Earlier on that day the police had requested a drug test be undertaken on Lucas Mobbs' blood, indicating that at that time the investigation was still focused on him as the driver.
16 On 27 August 2003 the applicant and Lucas Mobbs were separately interviewed by way of ERISP and made admissions. On 4 September 2003 the police interviewed Ms Mobbs, who had also given a statement to the police on the evening of the accident in which she had informed them that the driver at the time was Lucas Mobbs.
17 In his ERISP the applicant informed the police he had drunk a couple of mouthfuls of beer on 22 August 2003 after returning from work and before driving. He informed police he did not consume any liquor after the collision.
18 The applicant was first charged with the counts under s 52A of the Crimes Act and with one count of pervert the course of justice pursuant to s 319 of the Crimes Act and one count of hinder investigation pursuant to s 315 of the Crimes Act. Lucas Mobbs and Kelly Mobbs were also each charged with one count of pervert the course of justice pursuant to s 319, Crimes Act and one count of hinder investigation pursuant to s 315, Crimes Act. 19 All three originally pleaded not guilty to all charges. A trial date was set for 7 March 2005. The indictment dated 8 March 2005 prepared for presentment at that trial included a count under s 315 of the Crimes Act against each of the applicant, Lucas and Kelly Mobbs to which they pleaded guilty. The s 319 charge had apparently been abandoned. On the same day the applicant also pleaded guilty to the s 52A charges. On 22 April 2005 he was given leave to withdraw his plea of guilty to the s 315 charge. He was then indicted on the indictment dated 22 April 2005 in respect of the offence under s 314 of the Crimes Act to which he pleaded guilty. The Crown advised the court there would be no further proceedings in relation to the s 315 count against him.
20 Proceedings on sentence against the applicant, Lucas and Kelly Mobbs commenced on 22 April and continued on 13 May 2005 on which day the sentencing judge passed sentence on all three offenders.
21 Lucas Mobbs was sentenced to twelve months imprisonment with an additional term of three months which was reduced, on appeal, to a fixed term of four months: R v Mobbs [2005] NSWCCA 371. Kelly Mobbs was sentenced to twelve months imprisonment with an additional term of three months to be served by way of periodic detention but, on appeal, her sentence was reduced to a term of imprisonment of six months and eleven days to be served by periodic detention: Mobbs v R [2005] NSWCCA 438. Remarks on sentence
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."
23 After referring to the fact that the applicant had pleaded guilty to the charges, his Honour set out the circumstances which gave rise to the offence, made the observations about the effect of the accident on the occupants of the other vehicle I have recounted, outlined the factual background to the circumstances in which Lucas Mobbs professed to have been driving the vehicle, then said (ROS 4): "If the intention of the Mobbs was to shield Richards from investigation, either in regard to his driving record, or his state of sobriety at that time, they were successful. The police conducted further interviews, recorded in a video in which the two Mobbs resiled from the falsehoods and Richards was charged under s 52A (1) which carries ten years rather than the aggravated offence which carries fourteen."
24 His Honour described the crimes committed by the applicant as being "so serious as to demand imprisonment" and referred to his criminal history (a conviction of common assault and, since 1999, six convictions for speeding, one for not wearing a seatbelt and one for negligent driving) which he described as "not a record which would permit this Court to extend to him any leniency."
25 He referred to evidence the applicant had given which maintained, in substance, a version of the accident which his Honour plainly rejected, then said (ROS 6): "Richards gave some mumbled apology for his actions, which lacked both conviction and any display of empathy for the damage which he had inflicted. Even allowing for his inarticulateness it was a platitudinous recitation. I gained the strong impression that the first time tears have been shed over this incident by these three was when I refused bail on the adjournment on the plea in mitigation. The offence itself, while it displays no prior course of dangerous conduct, is a piece of driving of a very dangerous nature. It was without any need and appears to have been utterly wanton and reckless. All those matters being aggravating factors set out in Whyte's case**, the extent of the injuries incurred, the number of people put at risk, and the degree of speed, certainly militate against the offender Richards. It is the kind of reckless conduct that places it within the band of those cases where moral culpability is very high." ** R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
26 His Honour then referred to the mitigating factors upon which the applicant relied, Crime (Sentencing Procedure) Act 1999, s 21A(g) (unlikelihood of re-offending), (h) - (good prospects of rehabilitation) and (i) - (showing remorse for the offence by making reparation for any injury, loss or damage or in any other manner), and said he did not accept those matters. He also referred to the applicant's reliance upon s 21A(k) - (plea of guilty) without comment. He noted the Crown relied on s 21A(g) (injury etc. caused by offence was substantial) and (m) (offence involved multiple victims).
27 Next, his Honour referred to the maximum sentence for the s 52A(1) offence of ten years and said: "….which in effect is seven and half years with a two and a half year additional term. This must, of course, be reserved for the worst type of driving undertaken, or bad driving by a repeat offender, or following conviction by a jury. A plea of guilty at the earliest opportunity would reduce that sentence to one of seven and a half years with a non-parole period of five years eight and a half months. In my view, this is a case which would call for four years imprisonment of a total sentence of five years and four months. That must be served at the conclusion of the one year for the offence under s 314 of the Crimes Act . Making in all a sentence of five years. I find special circumstances resulting from accumulation and I will reduce the sentence of imprisonment to one of four years of a total sentence of five years and four months. To reduce it further would be to ignore Simpson's case (2001) 53 NSWLR 704 at [63]**. In regard to the dangerous driving occasioning grievous bodily harm, each offence carries seven years imprisonment and the offender is sentenced to three years of a total sentence of four years. Because of the nature of the incident, each of these sentences will be concurrent with each other and concurrent with the sentence imposed under s 51A(1) but cumulative upon the sentence imposed for the offence under s 314." (emphasis added) ** A reference to that part of Spigelman CJ's judgment in which his Honour observed that "the non-parole period must … reflect the criminality involved in the offence." Grounds of appeal
28 The applicant relies upon the following grounds of appeal: (1) The learned sentencing judge erred in not making any reference to the applicant's plea of guilty, its timing and its influence, if any, on his sentencing decision.
(2) With respect to the offence pursuant to s 314 of the Crimes Act 1900, the sentencing judge erred in sentencing the applicant upon the basis of findings which would have given rise to the more serious offence of perverting the course of justice. (3) The learned sentencing judge erred in not finding that the applicant expressed and evinced contrition. (4) In all the circumstances the sentence imposed was manifestly excessive. Submissions
29 The first and second ground sought, in part, to rely upon the success of similar grounds of appeal in Lucas Mobbs' appeal.
30 The applicant's first complaint is that because the sentencing judge did not refer to s 22 of the Crimes (Sentencing Procedure) Act or to the utilitarian value of his plea of guilty, had not expressly quantified a discount for his plea nor determined whether it was entered at the earliest opportunity, error was disclosed: cf R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383.
31 The Crown conceded that the sentencing judge did not, as he ought have, refer to the utilitarian value of the plea in his Remarks on Sentence. The Crown contended, however, that the sentencing judge's remarks during the proceedings on sentence, (13 May 2005, t/s 23.14) that "they have each pleaded guilty, they get the full discount for that", indicated he had acknowledged each offender, including the applicant, was entitled to a discount of 25 percent.
32 The Crown also drew attention to the sentencing judge's observations, which I have earlier extracted, albeit expressed in general terms, that a plea of guilty at the earliest opportunity would reduce the maximum sentence for the s 52A(1) charge from seven and half years with two and a half year additional term to one of seven and a half years with a non-parole period of five years eight and a half months and his observation that this was a case calling for a total sentence of five years and four months with four years imprisonment. It contended that this demonstrated his Honour had allowed a discount of 25 percent on the s 52A offences, albeit that he had taken it off the maximum sentence. It submitted that it should not readily be concluded that a senior experienced judge, as there is no doubt his Honour is, would have overlooked such a significant aspect of the sentencing exercise as the application of a discount for a plea of guilty.
33 The Crown submitted, in any event, that the applicant's plea was late, having been entered only on the day the trial was to commence, and, accordingly, had diminished utilitarian value. 34 Finally, the Crown submitted the sentence of twelve months for the s 314 offence was clearly subject to a 25 percent discount, drawing attention to R v Pearson [2005] NSWCCA 116 in which this Court dismissed an appeal against a head sentence of eighteen months after a discount of 20 percent for an offence under s 315(1)(a) and s 345, Crimes Act 1900 for which the maximum sentence was also seven years.
35 The applicant submits that the sentencing judge's reasons disclosed his view that he had lied about the driver's identity in order to escape liability for the more serious offence of aggravated dangerous driving which carries the prospect of a more severe penalty, imprisonment for fourteen years: s 52A(2), Crimes Act. Accordingly, his second ground of appeal is that this Court ought to conclude that in sentencing him in respect of the s 314 offence, his Honour erred in ascribing the intent applicable to the more serious offence of perverting the course of justice to him, contrary to R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. He relies, in part, upon the fact that this conclusion was reached in R v Mobbs (at [23] - [33]), and urges this Court to reach the same conclusion. 36 In the event his De Simoni argument fails, the applicant also submits that the s 314 offence to which he pleaded guilty fell in the lower range of such types of offence, bearing in mind that his false accusation was to accuse Lucas Mobbs of the offences of driving dangerously (in substance) in contravention of s 52A in circumstances where Lucas Mobbs had identified himself as the driver.
37 The Crown submitted that there had been no breach of the De Simoni principle. It submitted that this Court should revisit that issue rather than following R v Mobbs. It also sought to distinguish the case from Lucas Mobbs' appeal by drawing attention to evidence which was not before the Court in that case.
38 Thus, whereas Johnson J accepted in R v Mobbs (at [25]) that there was no evidence the applicant had consumed alcohol prior to the collision, the Crown drew attention to the applicant's record of interview in which he admitted that on the day of the collision he had drunk a couple of mouthfuls of beer just before he got into the car (ERISP Q 322-325). Secondly, the Crown sought to explain the evidentiary gap to which Johnson J referred in Lucas Mobbs' appeal (at [25]) by contending blood was taken from the applicant for hospital pathology purposes and after the lie was exposed, a warrant was executed on 5 September 2003 on the hospital to obtain the applicant's blood but by then it had been destroyed. 39 The Crown submits the sentencing judge's remarks upon which the applicant relies was an expression of his Honour's assessment of the factual outcome of the actions of the applicant and his co-offenders in diverting the police investigation from the course which would properly have followed had they been informed of the true identity of the driver, namely testing the applicant's blood in accordance with the Road Transport (Safety and Traffic Management) Act. It contended it did not follow, however, that the sentencing judge treated that conclusion as evidence of an intention to pervert the course of justice. The Crown argued that the sentencing judge's observation was expressed in hypothetical terms ("if the intention etc") not as a factual finding of intention.
40 The Crown also submitted the sentencing judge was clearly aware of the difference between the offences of hinder investigation and pervert the course of justice as demonstrated by the following exchange between the sentencing judge and counsel for the applicant in the course of the proceedings on sentence: "HH: What the combination of 315 on behalf of two and 314 on behalf of him was to deprive the police of an opportunity to properly investigate the matter.
HH: What they would have found out would be a matter of mere speculation.
HH: Well what they did was to deprive them of the chance of finding out.
HH: Of confirming one way or the other, what his state was."
41 The Crown also relied, in this respect, upon the sentencing judge's observation (ROS 9.2) that the Mobbs' "… lies were, in the first instance accepted and … seriously hindered [the police] in their investigation."
42 Finally, the Crown submitted the sentence imposed on the applicant for the offence pursuant to s 314 was well within the range, and arguably at the lower end of the range, bearing in mind that the maximum penalty was seven years imprisonment. The Crown contends the applicant's s 314 criminality was more serious than Lucas Mobbs', as it was he who had most to gain by diverting the police investigation. The Crown submitted that as the driver of the vehicle at fault, in full knowledge that a man had died and his wife and children were critically injured, the applicant chose to engage in deception of both the police and medical personnel. The Crown drew attention to the applicant's answers in his ERISP that he was aware that "they test for alcohol when you are involved in an accident", that he knew at the scene that the driver of the other car had died and that he was at fault and could be charged.
43 The third ground of appeal is that the sentencing judge erred in concluding the applicant was not contrite about his conduct. The applicant submits that the sentencing judge formed a particularly adverse view of the credit of the three offenders he was sentencing and that errors in relation to Ms Mobbs, derived from the failure of her counsel to assist his Honour with respect to erroneous matters which were taken into account adverse to her credit, had a flow-on effect in relation to the applicant.
44 The applicant was called to give evidence on 22 April 2005 concerning his feelings and attitude to the victims and survivors of his crime and gave the following evidence: "Q. Just before going on with that, you have also read the large volume of material provided by Dr Gwen Latimore in the form of a Victim's Impact Statement.
Q. When you read that material, how did that make you feel?
A. Not real good, fairly sad that I'd hurt them people the way I did, and their - for their - they lost their husband and father. And it doesn't make me feel real good.
Q. Well, from the day when this accident occurred and you became aware of the death of one and the serious injury to others caused by the accident, what were your feelings and reactions about that?
A. It was hard to believe it had happened. I didn't think that would ever happen to someone and I would be involved in it. It's just something you don't think about. It's a - I don't know, it shouldn't have happened like, but -
Q. You've heard Mrs Grey (sic) read her statement for the Court today?
A. Terrible really, I just - I can't imagine how'd she feel. If it was me, I - if it was my family, if - like, if it was the other way round and it was Kelly, I would - I would just - I can't imagine how they'd feel. I would never want it to happen to me. It's -
Q. Would you like to tell them today that you're sorry?
A. I am sorry, very sorry. I didn't mean for it to happen."
45 The applicant submits that the expressions of remorse and contrition given in this evidence which were not challenged in cross-examination by the Crown were further buttressed by the pre-sentence report relating to him and evidence that Ms Mobbs and he had taken steps to "try and help these people and they had done such things as held garage sales and donated the money through this family's friends….".
46 In such circumstances, the applicant submitted that the sentencing judge's findings that he had not demonstrated contrition and remorse were harsh and not fairly open. In particular, notwithstanding the advantage held by an "observational judge", the applicant submitted that his expression of contrition and remorse was not fairly described as "a platitudinous recitation".
47 The Crown accepted that the applicant's evidence of contrition had not been challenged in cross examination, but drew attention to the fact it had submitted the sentencing judge would have some concerns about the applicant's genuineness, his evidence having focused on what was happening to him as opposed to expressing contrition and remorse for what he had done.
48 The final ground of appeal is that the sentence was manifestly excessive. Mr Sutherland accepted that the sentences on the s 52A offences were within the range (Appeal Transcript 7). He submitted, however, that the accumulation of the s 52A sentences on the s 314 sentence warranted the Court's intervention to reduce the effective non-parole period. (AT 8). He also argued the s 314 sentence should be reduced to be consistent with the reduced sentences each of the Mobbs had received on appeal.
49 The Crown submitted that the applicant had not demonstrated that a lesser sentence was warranted and should have been passed (s 6(3), Criminal Appeal Act) but that in view of the errors made by the sentencing judge, all of which favoured the applicant, should the Court re-sentence the applicant the aggregate sentence should be no less than that imposed by his Honour, so that the overall term and non-parole period remained the same: Ian Gobbet v R [2006] NSWCCA 46.
50 The Crown submitted the sentencing judge had erred in imposing concurrent terms imposed in respect of counts 2 - 4 on the first indictment. This, it contended, failed to recognize that those counts involved three separate offences which should have been reflected in the sentences: see R v Wilson [2005] NSWCCA 219 (at [38]) per Simpson J (Barr and Latham JJ agreeing); R v Janceski [2005] NSWCCA 288 (at [21] - [23]); (2005) 44 MVR 328.
51 Accordingly, the Crown contended the applicant's overall sentence was arguably too lenient, if not manifestly inadequate, because the sentencing judge imposed no discrete punishment for the second, third and fourth offences on the first indictment. The Crown contended his Honour should have partially accumulated the sentences on counts 2 - 4 to impose a period of custody attributable to each offence. The Crown argued that his Honour's failure to accumulate the sentences for these offences, at least partially, may well be seen as a failure to acknowledge the harm done to Kathy Gray, Kayla Gray and, in particular, Rhiannon Gray which was substantial and an aggravating feature of the offence: R v Whyte. It argued that the injury caused to the victim of an offence under s 52A, Crimes Act, was a major consideration in determining the degree to which retribution and general deterrence were relevant: R v Dutton [2005] NSWCCA 248. Criminal Appeal Act s 7(1A)
52 Although the Crown submitted that if the applicant established error on the s 314 sentence, the Court should adjust the sentence to ensure the overall outcome was not changed, the Crown's written submissions did not address the source, or ambit, of the Court's power to achieve that outcome. Accordingly, at the conclusion of the hearing, the Court asked the parties for additional submissions as to its powers under s 7(1A), Criminal Appeal Act which provides: "(1A) If on an appeal against a sentence under section 5 (1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial: (a) in relation to any offence charged in any other count or part of the same indictment, or (b) in relation to any offence charged in any count or part of any other indictment, or (c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986 , or (d) in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986 , and pass such sentence, whether more or less severe , in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence." (emphasis added)
53 The Crown's additional submissions argued the Court should adopt the approach taken in R v Amurao [2005] NSWCCA 32 in which Hulme J (with whom Ipp JA and Hislop J agreed) applied s 7(1A) in circumstances where he had concluded that the sentencing judge had failed to apply Pearce v R [1998] HCA 57; (1998) 194 CLR 610 and had reflected in the sentence imposed for one count, the applicant's criminality in relation to all, or at least others, of the six counts on which he had stood for sentence. Hulme J then examined all six sentences and adjusted them to reflect his view of the maximum effective sentence which should have been imposed.
54 The Crown also submitted the Court may exercise its powers pursuant to s 7(1A) where error is demonstrated, to adjust the sentences with the effect of maintaining the overall sentence, even if some of the individual sentences are reduced.
55 Mr Sutherland drew attention to the fact that in some cases, the application of s 7(1A) had resulted in a reduction in the overall sentence: R v Amurao; R v Smith [2005] NSWCCA 339. In two others, R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596 and R v Bottin [2005] NSWCCA 254, notwithstanding the identification of error which could have warranted s 7(1A) intervention, the Court applied s 6(3) of the Criminal Appeal Act to conclude no less severe sentence would be warranted in law.
56 Mr Sutherland submitted, however, that in circumstances where the Crown had not appealed from the adequacy of the sentence, nor had submitted that a sentence of four years four months in respect of count 1 was manifestly inadequate or excessively lenient, it would be unfair, if the applicant successfully challenged his sentence in respect to the s 314 offence, that he not receive the benefit of some reduction in the sentence passed in that respect. He submitted that a reduction was called for particularly where the s 314 criminality was discrete from the manner of driving.
57 The obligation that a sentencing judge expressly refer to the manner in which a plea of guilty has been taken into account is consonant with the judicial obligation to give reasons for sentence as "a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done": R v Thomson per Spigelman CJ (at [42]). His Honour added, in observations which are of particular relevance to this case (at [45]): "In some cases, the weight given to a plea becomes of particular significance to the sentencing process. This may be the case, for example, in assessing the issue of parity between co-offenders. An express reference is of particular significance in such a case."
58 Sentencing judges are to quantify the effect of the plea if appropriate by reference, inter alia, to contrition, witness vulnerability and utilitarian value. The sentencing judge is generally to assess the utilitarian value in the range of 10-25 per cent discount on sentence: Thomson (at [160]). A sentencing judge's failure to refer to how a guilty plea has been taken into account on sentence leads to an inference that the plea was not given weight: Thomson (at [52], [160]).
59 It is not to point, therefore, in my view, for the Crown to point to remarks in the proceedings on sentence indicating the sentencing judge's acknowledgement of the necessity to give weight to the plea of guilty. Nor does it avail the Crown to point to the indubitable fact that the sentencing judge referred to the plea of guilty in his Remarks on Sentence. His Honour did not make express reference to the utilitarian value of the plea. While he referred to his assessment of the applicant's contrition, that remark was not made in the context of assessing the effect of the guilty plea. It must, therefore, be inferred that the applicant's plea was not given weight.
60 In R v Mobbs, Johnson J (with whom Simpson and Adams JJ agreed) also concluded the sentencing judge had failed to give Mr Mobbs any discount on account of his plea and held (at [42]) it ought to have attracted a significant quantified discount. His Honour appears to have reached this conclusion partly by application of the parity principle - because he concluded (at [43]) that Kelly Mobbs had been given a discounted sentence by virtue of her plea - and also because (at [44]) Lucas Mobbs' admissions demonstrated remorse and contrition which ought to have been taken into account, in addition to the utilitarian elements.
61 The Thomson argument was advanced in Kelly Mobbs' appeal but McClellan CJ at CL (with whom Studdert and James JJ agreed) concluded her appeal could be determined on other grounds: Mobbs v R (at [25] - [28]).
62 This case differs from R v Mobbs in that Mr Mobbs pleaded guilty to only one count whereas the applicant pleaded guilty to four counts under s 52A as well as the s 314 count. This is not a case, in my view, in which the applicant's pleas of guilty ought to have attracted a significant discount. It might be accepted, having regard to the fact the Crown did not proceed with the s 315 count against the applicant, but proceeded against him on the s 314 count, that his plea to that charge might be regarded as having been entered "early", in a relative sense. However he did not plead guilty to the s 52A offences until, in effect, the morning of the trial. He had admitted the essential elements of all offences in his ERISP. Accordingly, the utilitarian value of his plea was slight and any discount should, in my view, have been at the lower end of the range indicated by Thomson. I would not have allowed more than 10% discount for that factor.
63 The applicant's second ground of appeal also sought to rely upon the Court's treatment of a like ground of appeal in Lucas Mobbs' case. I have earlier referred to the passage in the Remarks on Sentence in which the sentencing judge identified the Mobbs' possible motive in lying about the identity of the driver. In his appeal Lucas Mobbs argued successfully that these passages infringed De Simoni. In allowing that ground of appeal, Johnson J said: 23 Reference should be made to s 52A Crimes Act 1900. His Honour referred to the aggravated offence under that section which carries 14 years imprisonment. That is a reference to 'circumstances of aggravation' under s 52A(7) which, in this case, relates to circumstances where: (a) the driver had the prescribed concentration of alcohol present in his blood at the relevant time: s 52A(7)(a); or
(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."
64 The Court referred to, but did not determine, the same ground in Kelly Mobbs' appeal, McClellan CJ at CL again being of the view (at [24]) that her appeal could be determined on other grounds.
65 It is not apparent to me that the sentencing judge's remarks concerning the Mobbs' intention which attracted favourable consideration in Lucas Mobbs' appeal tainted his Honour's consideration of the s 314 offence. His Honour's remarks about the Mobbs' intentions which attracted the Court's attention in Lucas Mobbs appear to have been linked to his later observation (ROS 8 - 9) in which he made it plain he was not sentencing them in relation to the motor vehicle accident but for: "Their guilt is…in lying to the police…to protect Richards"
To which he added: "Silence is a right, but to wilfully place an obstacle in the way of an investigation must be dealt with very severely. The more serious the crime the more serious is the offence under s 315. This was a very serious offence. Their lies were, in the first instance, accepted and the police, in this respect, seriously hindered in their investigation."
66 Even if the applicant was given the benefit of the doubt in this respect having regard, in particular, to the absence elsewhere in the Remarks on Sentence to any consideration of the objective criminality of the s 314 offence, that would not, in my view, attract this Court's intervention when regard is had to the objective criminality of his offence. It was, as the Crown submits, far greater than that of either of his co-offenders.
67 Section 314 of the Crimes Act provides: "314 False accusations etc A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years."
68 Section 314 appears in Pt 7 of the Crimes Act which is concerned with Public Justice Offences. Part 7 was inserted in the Crimes Act by the Crimes (Public Justice) Amendment Act 1990 in order to "… rationalise and reform the law concerning offences involving interference with the course of justice": Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 May 1990 at 3691. As the Attorney-General, The Hon John Dowd MLA said, in moving the Bill which became the Act: "Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end it must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done."
69 The applicant knew almost immediately after the accident that the driver of the other car was dead, that his vehicle was at fault and that the driver of the motor vehicle would be charged as a result of the collision. (ERISP Questions 666-676.) The only explanation he gave for falsely accusing Lucas Mobbs of being the driver was that he had gone along with Lucas Mobbs' suggestion, in effect because he did not want to be asked questions at the time (ERISP Q 554, 562 are indicative of this response). Although he claimed he wanted to tell the truth (ERISP Q 554) he did not contact the police to change his story until after he had been discharged from hospital (ERISP Q 662-665).
70 If the applicant had admitted from the outset that he had been driving the vehicle, his blood would have been sampled and tested for the presence of alcohol or drugs: ss 20, 23 Road Transport (Safety and Traffic Management) Act. As I have indicated the material before this Court differs from that before the court in Lucas Mobbs' appeal to the extent that there is some evidence that the applicant had been drinking prior to the accident and, too, according to the Crown, when the police sought access to the applicant's blood to test it for the presence of alcohol, the blood samples taken from him had been destroyed - presumably by the hospital. Mr Sutherland did not dispute the latter proposition. It would not be proper to speculate what the outcome would have been had the applicant's blood sample been tested. It is appropriate, however, in assessing the objective criminality of the s 314 offence to identify a critical respect in which the police investigation was diverted.
71 The inference is plainly open that the applicant's motive in falsely accusing Lucas Mobbs of driving was to ensure he would not be charged with the offences he knew would arise from the motor vehicle accident. He said as much in his record of interview. The proposition that the objective criminality of his offence was reduced because Lucas Mobbs falsely admitted to being the driver need only be stated to be rejected. It could hardly reduce the objective criminality of the applicant's offence to say that his co-offender was also breaching the law, in this case s 315 of the Crimes Act.
72 This case involved a serious interference with the administration of justice. It diverted the police investigation into the cause of a catastrophic motor vehicle accident. In such a case general deterrence must play a particularly important role in determining the appropriate sentence: see R v Taouk (1992) 65 A Crim R 387 at 392. The offence called for a denunciatory sentence to make clear the seriousness with which the courts regard interference with the course of justice.
73 Turning to ground 3, I can see no substance in the applicant's submission that the sentencing judge erred in finding he lacked true contrition. The sentencing judge saw the applicant give evidence. He was in the best position to determine his demeanour when giving evidence going to this issue. I cannot discern any flow-on effect, as the applicant submitted, in the view the sentencing judge formed of Kelly Mobbs to that he formed of the applicant. This ground of appeal should be rejected.
74 I turn finally to the applicant's submission that, in all the circumstances, his sentence was excessive.
75 I have already indicated my view of the objective criminality of the s 314 offence. In my view the objective criminality of that offence was greater than that of his co-offenders. He stood to gain most whilst they, particularly Lucas Mobbs, stood to suffer. This is not, therefore, a case which attracts the parity principle in respect of the s 314 offence. Insofar as the s 52A offences are concerned, Mr Sutherland only challenged the fact they were cumulative on the s 314 sentence. In my view that was an appropriate course having regard to the fact the sentences were for discrete offences.
76 The applicant has, therefore, identified error in respect of the failure to discount the sentence for his guilty plea and I am prepared to extend him the benefit of the doubt on the De Simoni point 77 Do the errors which have been established, or assumed, in the applicant's favour, call for intervention?
78 It was also, as the Crown submits, an error on the sentencing judge's part to impose concurrent sentences in relation to the three s 52A(3)(c) offences. His Honour's failure to accumulate those sentences, at least partially, appears to have been a failure to acknowledge the harm done to the individual victims: R v Wilson (at [38]); R v Janceski (at [21-23]). It would also have been appropriate, in my view, to accumulate, at least partially, the sentence on count 1 on the first indictment on the remaining three counts.
79 I have had regard to the applicant's submission that having regard to the cases in which s 7(1A) of the Criminal Appeal Act has been applied, having identified error on the part of the sentencing judge he ought receive some reduction in his overall sentence. However an applicant for leave to appeal against sentence must always be conscious of the possibility that even if error is discerned, the Court may dismiss the appeal because it forms the view that no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912.
80 I accept the Crown's submission that the sentences imposed upon the applicant should not be any less than that imposed by the sentencing judge. I have taken into account, in this respect, that his Honour clearly had regard to the totality principle and also found special circumstances resulting from accumulation and, accordingly, reduced the applicant's imprisonment to four years.
81 In my view, having regard to the total criminality of the applicant and the leniency demonstrated by the sentencing judge's failure to accumulate the s 52A sentences, the overall sentence was appropriate and no less severe punishment is warranted: s 6(3) of the Criminal Appeal Act; cf R v Bottin (at [37]) per Studdert J (with whom Kirby and Howie JJ agreed).
82 Having regard to the sentencing judge's failure to impose the s 314 sentence on the applicant it is necessary to deal with that matter and having regard to other submissions made by the Crown concerning the uncertainty with which the other sentences were pronounced I propose the following orders pursuant to s 43 of the Crimes (Sentencing Procedure) Act in order to formalise the sentences the sentencing judge plainly intended to impose: (1) Quash the sentences imposed by Judge Shadbolt in respect of counts 1, 2, 3 and 4 on the indictment dated 8 March 2005 and the count on the indictment dated 22 April 2005. (2) In respect of count 1 on the indictment dated 8 March 2005 sentence the applicant to imprisonment for four years and four months to commence 22 April 2006 and expire 21 August 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. (3) In respect of counts 2 - 4 on the indictment dated 8 March 2005 sentence the applicant to imprisonment on each for four years to commence 22 April 2006 and expire 21 April 2010 with a non-parole period of three years to commence 22 April 2006 and expire 21 April 2009. (4) In respect of the count on the indictment dated 22 April 2005, sentence the applicant to twelve months imprisonment to commence on 22 April 2005 and expire on 21 April 2006. (5) Grant leave to appeal. (6) Dismiss the appeal. Obligations of the Crown
83 It should be noted that at the end of his remarks on sentence before he formally imposed the sentences on the three offenders, the sentencing judge asked the Crown Prosecutor whether there were any matters to which he ought to refer. The Crown Prosecutor then asked his Honour to particularise the dates from which the sentences dated. The Crown Prosecutor did not, however, draw his Honour's attention to the fact that he had made no reference to how, if at all, he had taken the applicant's plea of guilty into account. Nor, did the Crown Prosecutor refer to the proposition that the sentences in respect of counts 2 - 4 on the first indictment should reflect the fact three separate offences had been committed, a matter which should be reflected in the sentences by, at least, partial accumulation.
84 A Crown Prosecutor is obliged to inform the court of any relevant authority bearing on the appropriate sentence and should assist the court to avoid appealable error on the issue of sentence: r 71(b) and (c), New South Wales Barristers' Rules; Erceg v District Court of New South Wales; Virgin v District Court (NSW) (at [176]). Any error should be corrected by the Crown so that the sentencing judge can consider the consequence upon the sentence he or she has determined to impose before it is imposed: R v Shankley [2003] NSWCCA 253 (at [20]) per Howie J (with whom Greg James J and Smart AJ agreed).
85 The obligation to deal expressly with the effect of a plea of guilty has been entrenched in this State since, at least, R v Thomson. It is regrettable that sentencing judges appear to overlook it. It is even more regrettable that Crown Prosecutors charged with the responsibility of giving the court all assistance in the sentencing process overlook such an obvious omission.
86 ADAMS J: I agree with the orders proposed by McColl JA and with her Honour's reasons for dismissing the appeal so far as the offences under s 52A(1)(c) and s 52A(3)(c) of the Crimes Act 1900 are concerned. Although I agree that there should be no variation in the sentence imposed for the offence under s 314, I wish to make some comments of my own concerning the outcome of the appeal in respect of that offence.
87 Section 314 provides that a person who knows that another is innocent of the offence and makes an accusation intending that person to be the subject of an investigation, commits an offence carrying a maximum of seven years imprisonment. In this case the applicant pleaded guilty to this offence, having in substance admitted it when he was first interviewed by the police after the false accusation was brought to their attention.
88 In assessing the objective seriousness of the offence, the extent to which the investigation was deflected is material. In the circumstances here, the identified problem concerned the failure to investigate at an early stage whether the applicant had been affected by alcohol when he was driving. In his interview with the police the applicant said that he had consumed a "couple of mouthfuls of beer" about 20 minutes before he got into the car. He said that, when he came home from work, "there was no drink or nothin' in the fridge and Kelly (his partner) had a beer open [and] I just grabbed it and had a couple of mouthfuls before I went and got changed…". He added, "It was hardly, like, it wouldn't have been half a glass, it would have been just a little mouthful". The applicant was asked: "Q594 OK, when you were on the ground prior to being taken to hospital, were you aware that you'd most likely have a blood alcohol sample or a blood sample taken for testing for blood, being the driver. A. I didn't even think about it, no. Q595 OK, did anyone else mention that? A. No. Q640 [Having said that he knew there was beer in the car], do you know where the beer was kept? A No. It didn't worry me 'cause I wasn't drinking it, so I didn't ask."
89 The applicant informed the police when he was interviewed that a sample of his blood had been taken at the hospital on his initial admission after the accident, at a time when he knew that it could have been tested for alcohol. In my view, it should be inferred that the police could have obtained that sample for the purpose of testing. It appears that they did not do so until after the sample had been destroyed. Although it is true that, had the applicant immediately informed the police that he was the driver, a blood sample would have been taken and, in that sense, his assertion that he was the passenger was a contributing cause of the resulting lack of testing, the fact that he corrected the misinformation at a time when the sample already taken by the hospital could have been obtained for testing significantly reduces the objective seriousness of the offence.
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…."
91 The applicant was then asked about the circumstances of the accident and the questioning moved on to when he had first spoken to Kelly after the accident. This occurred at the hospital on the night after the accident at about 9 pm. "Q509 Did you talk to her about the collision between [sic] that time?---A Yeah, I just, I said, I said to her, I said, 'Did you know Luke was sayin' I was drivin'? She said, 'Yeah'…[511] And I just said, 'Well…he tellin' the truth or….I dunno what he's tryin' but he's just tryin' to….I dunno, a mate I s'pose and help me out but its no good him takin' the rap for somethin' he didn't do….just tell them the truth'. So that's what….she knew he said it, like she knew that he was sayin' it and she wanted me to tell the truth and I wanted to tell the truth anyway, so."
92 The interviewer then took the applicant to the statement he made to police at the hospital at about 9 pm on the evening of the accident. The applicant read it and agreed that it was his, including the statement nominating Lucas Mobbs as the driver. "Q561/2 As you said, your intention in doing that was what?---A ….I just, I wanted to see what Luke had been sayin', like telling everyone he was drivin'….I don't know, actually, know why I went along, just why I said that. I can't even really remember making the statement, you know. I was on morphine…."
93 It appears to be undisputed that the applicant had sustained a number of comparatively minor injuries in the accident, including torn ligaments in his right foot, soreness to his right hip, grazing across his stomach from the seat belt and a slightly bruised shoulder. That he was in some pain, perhaps considerable pain, from the injured foot can be accepted, especially since he was given morphine at the hospital.
94 It is not disputed that the applicant and Lucas Mobbs agreed on the morning after the accident that the police must be informed of the fact that the applicant was the driver. Lucas Mobbs called the police station to talk to the relevant officer, Detective Nightingale, to arrange to bring the applicant down to see him but he was not there. Lucas spoke to a person he identified as Jo and left a message identifying himself, saying that he was the person in the car accident and that he and the applicant "needed to see him about some change in the statements that were made on Friday night". He left his mobile number. I think that it should be accepted that, had Detective Nightingale been able to take the call, the identification of the applicant as the driver would have been immediately made. Detective Nightingale was made aware of this call shortly afterwards. He said that he spoke by telephone to the appellant at about 1pm on Monday, 25 August 2003 and that the appellant told him that he was the driver, not Lucas Mobbs and gave a brief description of the accident. The applicant attended at the Oberon Police Station on 26 August 2003, for a detailed interview. In the end, the evidence demonstrates that the applicant intended to inform the police that he was the driver on the morning after the accident. This did not occur because Lucas Mobbs did not speak to Detective Nightingale. Police were given the new information at about 1pm on 25 August 2003.
95 The extent to which the investigation was deflected is, of course, relevant to the objective seriousness of the offence. It was for the prosecution to establish the objective circumstances that enabled this assessment to be made and thus, in the present context, the extent to which the investigation was deflected and how that occurred. The only significant result of the misinformation was that, by the time police were aware of the driver's identity, it was too late to take a blood test of any value in determining whether the applicant had been affected by alcohol at the time of the accident and, if so, to what extent. Even had the lie been corrected on the Saturday morning, as intended by the applicant and Lucas Mobbs, it would have been too late to take a blood sample. Police sought the sample on 5 September but by that time it had apparently been destroyed. There is no evidence as to when it was destroyed but it cannot be inferred that it was too late to obtain the hospital sample on 25 or 26 August. It seems to me likely that the sample was then still in existence and it is difficult to understand why police did not immediately ask the hospital to preserve it. The correction of the lie, at least, appears to have provided the police with an opportunity to "turn back the clock". I would not be prepared to infer, adversely to the applicant, that there was no such opportunity. This is a significant factor in the fair evaluation of the objective gravity of the offence. Of course, the fact the applicant lied was a substantial cause of the failure to obtain his blood sample and the assessment of the gravity of the offence must give appropriate weight to this consideration but, at the same time, due weight should be given to his attempt to correct the lie.
96 It must be accepted that, but for the misidentification of the appellant as a passenger, a breath test and, if it were positive, a subsequent blood test would have been conducted. This did not happen because of Lucas Mobbs' lie, of which the appellant was aware. The appellant had also lied to an ambulance officer on his way to hospital. However, it seems virtually certain that this was not brought to the attention of investigating police until much later in the investigation.
97 The chronological account of events cannot be allowed to disguise the fundamental question, which must focus on the acts of the appellant in committing the offence charged and, in particular, the time when it was committed. The indictment specifies 22 August 2003 as the date of the relevant accusation. The crucial time for assessing the objective seriousness of the s314 offence is as at the time when the offence occurred, namely, when the appellant made his dishonest statement to the police at the hospital at about 9 pm on 22 August. It is this statement that is identified by the Crown prosecutor as the relevant accusation. It was put to the learned sentencing judge that this statement "prevented" the police from taking a blood sample from the appellant. The statement certainly led the police not to have a sample taken but it is clear from s20 of the Road Transport (Safety and Traffic Management) Act 1999 that it could not have prevented the taking of a sample. As it happened, however, a blood sample had indeed been taken by the hospital, presumably under that provision, it being evident that the applicant's injuries were relatively minor. The police did not become aware of it, however, until the interview with the appellant on 26 August, when it was brought to the attention of police by the appellant. It seems to me to follow, therefore, that the objective fact that the police did not breath-test the appellant at the scene cannot make his offence more serious. That deflection of the investigation cannot be laid at his door.
98 The circumstances of the offence committed by the applicant were, unfortunately, not referred to by the learned sentencing judge. Nor were the circumstances of his disclosure. To my mind this matter is of considerable, indeed crucial, significance in assessing the objective culpability of the applicant. It was given at a time when he was aware that the hospital had taken a sample of his blood. In the result, the false accusation was alive for something less than three days and was brought to an end voluntarily by the applicant at a time when it might have been possible to have remedied the deflection. Nor is it disputed that the applicant had not instigated the offence: he went along with the foolish gesture of Lucas. The evidence does not permit the conclusion that his failure at the scene to dissent from Lucas' assertion was motivated by a fear of being breathalysed or that this was the motive for his subsequent statement at the hospital that Lucas was the driver, although I accept that there are grounds for suspecting that this might have been the case. Had the applicant told the truth at the hospital, a blood sample might have been taken at police direction but in fact a blood sample had been taken at all events. I think that it was most unlikely, in these circumstances, that the applicant lied in order to avoid having his blood tested for alcohol.
99 The applicant's ultimate account of the course of events to police was, essentially, supported by those of Kelly and Lucas Mobbs. Nor was the applicant cross-examined at the sentencing hearing to suggest that what he told the police was untrue.
100 In my respectful view, the sentence of twelve months imprisonment for a false accusation that lasted less than three days and was voluntarily corrected could only be justified in the circumstances here, if at all, by a conclusion that the purpose was to pervert the course of justice. I have concluded, with respect, that it was this characterisation of the intention of the applicant that led the learned sentencing judge to impose the sentence. This is a significant error of law.
101 I have also formed the view that the sentence was manifestly excessive. The objective seriousness of the offence did not justify a sentence of twelve months imprisonment, let alone a sentence of which twelve months was the non-parole period. The applicant had pleaded to an offence under s 315. Since this offence required that the hindering relate to offences committed by another person, this charge was plainly inappropriate, though perhaps by artificial reasoning it might have been thought that the principal offender was Lucas and the applicant was his accomplice. The Crown prosecutor conceded to the learned sentencing judge that the charge was a mistake and the applicant was permitted to withdraw his earlier plea and plead guilty to the correct offence. Having regard to the applicant's admissions, I am of the view that this plea was indeed made at the earliest practicable opportunity and thus that the maximum utilitarian discount should have been extended to him in respect of this offence.
102 The Crown prosecutor submitted in this Court that, since the sentences for the s 52A offences should have been accumulated to some degree to reflect their overall objective gravity, even if the sentence for the s 314 offence was excessive, this Court should not interfere, citing s 7(1A) of the Criminal Appeal Act 1912 and, inter alia, R v Bottin [2005] NSWCCA 254. Section 7(1A) is in the following terms - "(1A) If on an appeal against a sentence under section 5 (1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial: (a) in relation to any offence charged in any other count or part of the same indictment, or (b) in relation to any offence charged in any count or part of any other indictment, or (c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986, or (d) in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986, and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence."
103 I notice that, in Bottin, the sentence in respect of which error had been identified was, although high, held not to be outside the available discretionary range. Studdert J, with whom Kirby and Howie JJ agreed said: "[37] Section 6(3) of the Criminal Appeal Act is to be read, where appropriate, in conjunction with s 7(1A) of that Act. There is a need to consider the total criminality of the applicant, and when this is done, it seems to me that the overall effect of the sentences passed, namely a non parole period of seven years and an available parole period of four years, affords appropriate punishment for the offences committed. In my opinion, punishment no less than that was warranted, and I would therefore not be disposed to interfere with the sentences as structured: see R v Carr [2002] 135 A Crim R 171 at para 35 and R v Shankley [2003] NSWCCA 253 at para 20."
104 I do not think that this case is authority for the proposition that s 7(1A) can be used to refuse reduction of an excessively heavy sentence merely because it is one of a number of sentences passed at the same time and the overall sentence is, despite the excessively heavy sentence, within range or, in the absence of a Crown appeal in respect of one or more of the other sentences, excessively lenient. The reference by Studdert J to totality and the structure of the sentences makes it clear that his honour did not have in mind so general an application of the provision.
105 The, or at least one, purpose of the Victorian equivalent to s 7(1A) was discussed in R H McL v R [2000] HCA 46; (2000) 203 CLR 452. At [2000] HCA [32], Gleeson CJ, Gaudron and Callinan JJ cited with approval the following passage from the judgment of Brennan J in Ryan v the Queen (1982) 149 CLR 1 at 22-23: "When an accused person is convicted on two or more counts regularly joined, the trial judge is entitled to assess an appropriate overall sentence having regard to the entire course of criminal conduct which constitutes the several elements of the offences of which the accused is convicted. If the offences are founded on the same facts, it is necessary to ensure that the appropriate penalty for the same act or omission is not imposed twice; if the offences are part of a series, the entirety of the criminal conduct of the same or similar character, rather than the several acts or omissions constituting the separate offences, may determine the appropriate overall sentence to be imposed. In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively. On appeal against conviction, if the conviction upon one or more counts is quashed but the conviction upon another count or other counts stands, the sentences in respect of the quashed convictions must be set aside while the sentences in respect of the other convictions stand. The overall sentence may thus be altered, and the alteration may prove to be anomalous. Section 569 (1) of the Crimes Act 1958 allows the correction of such an anomaly. It empowers the Full Court to alter the sentence when a conviction on one count in an indictment is quashed and a conviction on another count stands."
106 Although s 569(1) of the Victorian Act is directed to the same matter as that dealt with in s 7(1) of the Criminal Appeal Act 1912, and thus this passage does not deal with an equivalent of s 7(1A), it seems to me that the legislative purpose of the latter provision is fundamentally the same as that with which the former sub-section is concerned. It is, I think, directed to the situation that arises where the other sentences were adjusted at first instance either in length or extent of accumulation because of totality and that calculus is significantly changed because one or more of the sentences under appeal is taken out of account by the quashing of the underlying conviction or the making of significant variation.
107 In the present case, the learned sentencing judge said: "In my view this [offence under s 52A(1)(c)] is a case which would call for four years imprisonment of a total sentence of five years and four months. That must be served at the conclusion of the one year for the offence under s 314 of the Crimes Act. Making in all a sentence of five years, I find special circumstances resulting from the accumulation and I will reduce the sentence of imprisonment to one of four years of a total sentence of five years and four months… In regard to the dangerous driving occasioning grievous bodily harm, each offence carries seven years imprisonment and the offender is sentenced to three years of a total sentence of four years. Because of the nature of the incident, each of these sentences will be concurrent with each other and concurrent with the sentence imposed under s 52A(1) but cumulative upon the sentence imposed for the offence under s 314."
108 It will be seen that the sentence for the offence under s 52A(1)(c) was reduced because it was accumulated on the sentence imposed for the s 314 offence. The extent of the adjustment would obviously have been less if the sentence for the s 314 offence had been significantly lower. However, the other sentences were made concurrent because they arose out of the same criminality as that which led to the offence under s 52A(1)(c). They were not adjusted, either as to length or starting point by reference to the sentence passed on the s 314 offence. Even accepting that the orders making the s 52A sentences concurrent was an application of the principle of totality, it was unconnected with and independent of the sentence for the s 314 offence. I do not think that, absent a Crown appeal against the leniency of the s 52A(3)(c) sentences, the mere fact that the sentence for the s 314 offence is reduced should lead to the reconsideration of those sentences, whose incidents or elements were not adjusted because of the s 314 sentence. Amongst other things, the very substantial delay in the sought upward variation would militate strongly, perhaps decisively, against the Court exercising its discretion in favour of the Crown. I am troubled by the notion that, if it is inappropriate to vary the other sentences, their apparent leniency can nevertheless be used to refuse to reduce a sentence found to be manifestly excessive, even though that leniency does not result from downward adjustment because of the application of the principle of totality to the scheme of sentences including the impugned sentence.
109 In my view the variation contemplated by s 7(1A) is one that is necessary because the sentences not subject to appeal were calculated by taking into account the sentence that is removed or reduced, so that one or more of them become inappropriately lenient by removal or reduction of that sentence and adjustment is necessary to restore the appropriate balance. (Indeed, I note that in the present case, the Crown does not seek to vary the concurrency of the sentences passed under s 52A.) It seems to me that s 7(1A) does or ought not to provide a mode of back-door or derivative Crown appeal but is ancillary to the exercise of the Court's powers under the specified sections in relation to the sentence which is the subject of the appeal. That being so, I do not think that it is appropriate to take into account the posited leniency of sentences that happen to be passed at the same time as the appealed-from sentence but which were not adjusted by virtue of that sentence. Where there is no Crown appeal against the other sentences and they were passed independently of the impugned sentence, I cannot see that s 7(1a) is material to the disposition of the appeal concerning the impugned sentence. To take those sentences into account is, to my mind, contrary to the fundamental principle stated in Pearce v R (1998) 194 CLR 610 at 623, per McHugh, Hayne and Callinan JJ: "To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality…"
I venture to suggest that, in the circumstances of the present case, it would be as much an error for this Court to ask "how long" by reference to the s 52A(3)(c) offences when considering the appropriate disposition of the s 314 sentence, which was independently imposed.
110 It is evident from the passage I have quoted above from the reasons for sentence of the learned sentencing judge that the sentence on the s 52A(1)(c) offence was reduced by a year because of the sentence on the s 314 offence. Any reduction in the latter sentence raises the question whether an upward adjustment would need to be made in the former sentence. Although this Court, if exercising its discretion under s 7(1A), must come to its own view about the appropriate adjustment that should be made, if any, and is therefore not required to adopt the calculation (if it is evident) of the court at first instance, the sentence that his Honour would have imposed but for totality could not be said to be excessive.
111 It is sufficient, I think, to say that, in my opinion, any reduction in the severity of the s 314 offence would require there to be an upward adjustment in the sentence for the s 52A(1)(c) offence. After such adjustments, there should not be, in the circumstances of this case, a lesser overall sentence. It follows that s 6(3) requires the appeal to be dismissed.
28/08/2006 - Judgment date on front sheet - Paragraph(s) Front Sheet
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Richards
Regina
[1998] HCA 57
(2000) 203 CLR 452
(1998) 194 CLR 610
(1981) 147 CLR 383
(2005) 44 MVR 328
(2004) 59 NSWLR 596
(2000) 49 NSWLR 383
(2002) 55 NSWLR 252
(1982) 149 CLR 1
(2001) 53 NSWLR 704
(1992) 174 CLR 268