Rigby v R

Court of Criminal Appeal (NSW)|2024-07-03|Before: Adamson JA, Wilson J, Dhanji J

The applicant's written submissions before the sentencing judge

The applicant submitted that as "the degree of injury is very low", the sentence ought be "at the lowest end of the spectrum". Her counsel argued that several of the factors outlined in Whyte were inapplicable and refused to concede that the injury to Ms Jervis was permanent, submitting that "the injuries caused here but barely meet the definition of [grievous bodily harm]".

The oral hearing

The sentence hearing was brief. The sentencing judge enquired of the parties whether there was any objection to the imposition of the sentence being deferred until after the applicant's son had completed his HSC exams. The parties agreed to this course. At the outset of the sentencing hearing before the parties had begun their oral submissions, the sentencing judge said: "Obviously, the considerations from the prosecution are going to be that, given the aggravating factor, which is the alcohol, that this clearly is a case where the Court might regard it as falling into the category of an abandonment of responsibility, and therefore, full-time custody is required."
The Crown submitted that Ms Jervis' injuries were not towards the mid-range but said that they had caused her to be taken to hospital after the accident and would have had a significant impact. In relation to delay, the Crown submitted that the applicant had only offered to plead guilty to the offence on 24 June 2022 and the delay until the plea was accepted in about May 2023 was due to the fact that the defence expert evidence which established that the causal nexus between the applicant's driving and Ms Jervis' death was severed was not served until this time. The Crown also relied on the applicant's prior criminal history of drink-driving offences and reiterated that the applicant had a high degree of moral culpability. The Crown reminded the sentencing judge of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which precludes a sentencing judge from taking self-induced intoxication into account as a mitigating factor.
The applicant submitted that Ms Jervis' injuries "fall very much to the bottom end of the scale" and that "the degree of injury is a significant indicator of objective criminality and, therefore, sentence". The applicant also submitted that, taking into account all relevant matters including the discount for the plea and some degree of extra-curial punishment, a sentence of less than two years' imprisonment might be appropriate, in which case an ICO would be a suitable alternative.
In the course of submissions, the sentencing judge put to the applicant's counsel that the applicant would appear to have abandoned her responsibility to other road users as follows: "But the fact of the matter is that with that level of alcohol, with the manner of driving that is clearly indicated in the facts, which causes her a total inability to be able to control her vehicle on that highway, causing her vehicle to leave the highway, go across, as I understand it, the grass verge between both the southern and northern highways, coming into collision head on with a person travelling north - under those circumstances with that level of alcohol, using the terminology that was referred to in [Whyte], the Court here would have to come to a view, would it not, that she has abandoned - or she had abandoned her responsibility to other users of the road."
The applicant argued against that proposition on the basis that the applicant had no memory of the collision. The sentencing judge put to the applicant's counsel that the fact of abandoned responsibility did not have to take into account any subjective material about what was in the mind of the offender at the time.

The sentencing judgment

The sentencing judge set out the facts in accordance with the agreed facts which have been summarised above.
His Honour described the injuries sustained by Ms Jervis correctly in the following passage: "Ms J[e]rvis sustained a shallow sternum fracture, a fracture to the L3 vertebrae, a fracture of a second rib, a thoracic trauma and various bruises and lacerations, including a small subdural haematoma. As I have already indicated, those injuries constituted grievous bodily harm."
However, there was a factual error regarding the treatment for Ms Jervis' injuries (highlighted in the extract below) when the sentencing judge addressed the objective seriousness of the offence as follows: "OBJECTIVE SERIOUSNESS As indicated in the facts, the offender had consumed alcohol over a significant period, somewhere in the vicinity of six hours, before she re-entered her vehicle for her intended return trip of some 50 kilometres to her residence in Nambucca Heads. Clearly, her manner of driving was affected by her high level of intoxication. … A submission was made that the collision occurred about, 'Five kilometres or ten minutes after,' the start of her return journey. That submission was made in the context of, 'The number of people put at risk. However, in my view, every person using this busy highway at that time of the early evening, whether southbound or northbound, was at grave risk of injury owing to the offender's high level of intoxication. The fact that she was incapable of controlling her vehicle, having negotiated only ten minutes of the return trip, simply highlights the degree of risk to which other users of the road were subjected. It was submitted that the injuries sustained by Ms Jervis were 'Right at the bottom of the range for grievous bodily harm.' However, the variety of injuries included fractures to the sternum, vertebrae and rib. She suffered the thoracic trauma, lacerations and bruising to her brain. Surgical intervention was required. So whilst I can accept that the nature of the injuries do not reach the high or catastrophic level so often seen in dangerous driving cases, I do not accept that they are right at the bottom end of the range. My examination of these facts has led me to a conclusion that the offender at the time of this dangerous driving, with her high level of intoxication, had abandoned her responsibility to other users of the road and, therefore, her moral culpability was high. The objective gravity of her criminal culpability falls, at least, in about the mid-range for offences of its type. (Emphasis added to indicate error relied on by the applicant.)
Under the heading, "SUBJECTIVE CIRCUMSTANCES", the sentencing judge referred to the applicant's criminal history as follows: "She has prior convictions for low-range PCA [prescribed concentration of alcohol] in 1990, high-range PCA in 1995 and a penalty notice for low-range PCA in 2019."
His Honour summarised the evidence adduced on behalf of the applicant, including as to the history of domestic abuse which she had first suffered when she was 22 years old and that this occurred again in a subsequent relationship. The abuse had continued until about six years before the sentence hearing.
The sentencing judge noted the injuries which the applicant sustained in the collision as follows: "As I have already outlined, the offender herself sustained injuries in the collision. These included several fractured cervical vertebrae and a severely broken wrist. This resulted in two surgeries in which screws were placed in both her neck and her wrist. Following her release from hospital, she was remanded in custody, that is, from 26 October until 7 December 2020, when she was released to bail. That seems to be a period of six weeks. At the time of the psychologist's assessment, she reported ongoing pain with limited mobility in her neck and wrist. She was no longer on opioid medication, but was prescribed meloxicam for neck pain."
The sentencing judge also referred to the history which the applicant had given to the psychologist that on the day before the offence she had had a distressing exchange with her former partner in which he told her, "'your kids are lucky they've still got a mum,' which she said she interpreted as a veiled threat". She chose to meet her friends in Coffs Harbour the following day at the hotel, hoping that "this would be 'therapeutic' for her, given her distressed state".
The sentencing judge referred to the purposes of sentencing in the following passage: "I have taken into account the various purposes of sentencing, set out in s 3A of the Crimes (Sentencing Procedure) Act. In the present sentencing exercise, deterrence, both specific and general, are significant factors. When dealing with the objective gravity of offender's conduct, I was of the view that she had abandoned her responsibility to other users of the road, and the facts demonstrated a high level of moral culpability. In those circumstances, what is required is the imposition of a sentence of imprisonment, beyond that which would allow for the imposition of an intensive correction order."

Ground 1: alleged error in assessment of objective seriousness

Ms Rodger, who appeared for the applicant in this Court, submitted that the sentencing judge's assessment of objective seriousness as being at least "mid-range" was based on two matters, each of which was erroneous: first, that it was based, "in large part" on the fact that the sentencing judge considered that the victim required surgery; and, second, that the sentencing judge failed to set out all the matters relevant to objective seriousness and the aggravating factors referred to in the guideline judgments of Whyte and Jurisic. These will be dealt with in turn.

The effect of the misstatement that Ms Jervis' injuries required surgical intervention

It is plain from the sentencing judge's reasons for the finding of objective seriousness that the gravity of Ms Jervis' injuries was only one of a number of factors which were relevant to that assessment. The high level of intoxication, the applicant's incapacity to control her vehicle, the busyness of the highway at that time, the length of the trip and the time into the trip when the collision occurred were addressed before the trial judge referred to the injuries sustained by Ms Jervis, which his Honour did not accept fell "right at the bottom end of the range". His Honour's assessment of "these facts" (that is, all the facts under the heading, "OBJECTIVE SERIOUSNESS") led him to conclude that there had been (objectively) an abandonment of responsibility by the applicant whose moral culpability (judged objectively) was, accordingly, high.
Ms Rodger submitted that because the sentencing judge had made an error of fact in assessing the gravity of the injuries to Ms Jervis (by misstating that her injuries required surgery when that had not been positively established by the evidence), the assessment of objective seriousness was itself flawed and that this Court was, accordingly, required to set aside the sentence imposed and re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
The apparent error in the present case is of a similar type to that considered in Kendall v R [2015] NSWCCA 13. In that case, the sentencing judge erroneously found that the offender had punched the victim, a 71-year old woman who was sexually assaulted by the offender in the course of a break and enter offence. The evidence did not establish that he had punched her but it did establish that he had pushed her to the ground. As in the present case, the offender argued that the factual error led to an incorrect assessment of objective seriousness (which the sentencing judge found to be "near … the highest level of offending behaviour": [23]).
Hoeben CJ at CL (Johnson and Hamill JJ agreeing) said, at [27]: "As was properly conceded by the Crown, his Honour's finding that the applicant punched the victim in the course of the assault was not correct. That error, however, had little effect on the assessment of objective seriousness of the offences. This is particularly so when an elderly woman was forced to the floor in her own home, was sexually assaulted and where her assailant forced his hands onto her mouth to stop her screaming. This occurred in circumstances where the elderly victim was left with bruising and lacerations to her face and mouth. Accordingly, while factual error has been identified, it was of little consequence."
This Court criticised the applicant's submissions which it considered "somewhat artificially compartmentalised the elements of the offences as the only indicia of seriousness" and "made no mention of major aggravating features such as the vulnerability of the victim and the effect of the offences on her": [29]. This Court referred to the classic statement in Mulato v R [2006] NSWCCA 282 at [37] in which Spigelman CJ (Simpson and Adams JJ agreeing) said: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised."
Whether or not an injury requires surgical intervention does not determine its seriousness. Indeed, many very serious injuries are serious because they are "inoperable". Further, if surgery is not an option, the recovery may be more painful and take longer. A subdural haematoma (a bleed beneath the dura in the brain which gives rise to an accumulation of blood within the tissues) is commonly treated by surgery, although the evidence in the present case did not go so far as to establish positively that, but for Ms Jervis' untimely death, it would have been. There is no necessary relationship between the severity of an injury and whether surgery is appropriate to treat it. Accordingly, the treatment required was neither aggravating nor mitigating and belonged to the category of facts which did not attract the differential standard of proof considered in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ): see Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
In my view it was open to the sentencing judge to assess the objective seriousness as "mid-range". The level of alcohol consumed and the corresponding level of the applicant's intoxication, the speed at which she was travelling, the location, time and length of her journey, and the difficulties of successfully accomplishing the overtaking manoeuvre when her capacity to handle her vehicle was so significantly affected by her intoxication together put the objective seriousness well above the low level. The injuries sustained by Ms Jervis were very serious (as was implicit in the applicant's plea to an offence which had grievous bodily harm as an element) although, as the sentencing judge found, far from catastrophic in the context of that offence.
In my view, the factual error made was slight and of no consequence to the assessment of objective seriousness. It appears to have been no more than a slip of the tongue by the sentencing judge, who elsewhere stated the facts correctly. I am not persuaded that ground 1 has been made out on the basis of this alleged error.
It is therefore not necessary in the present case to address the different approaches taken by this Court as to the consequences of factual error, including because the parties did not address this matter in their submissions. The applicant appeared to assume that any factual error would lead to the setting aside of the sentence and the Crown took a narrower view and appeared to contend that, if the factual error was shown to be of no, or little, moment, there was no requirement for this Court to intervene.
The broadest approach to the effect of factual error on sentence is reflected in Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353 (Hordern). However, I do not understand Basten JA (Hamill and Lonergan JJ agreeing) in Hordern to have gone so far as to say that any factual error, of whatever magnitude or import, will invalidate the sentence and will require this Court to re-sentence the applicant. Rather, his Honour said that factual errors (implicitly, some factual errors) were capable of causing the sentencing discretion to miscarry such that the sentence imposed ought be set aside and the re-sentencing process undertaken.

The alleged failure to address the matters raised in the guideline judgments when assessing objective seriousness

The applicant submitted that the sentencing judge failed to address each of the characteristics of the "frequently recurring case of an offence under s 52A" of the Crimes Act set out in Whyte and each of the aggravating factors referred to in Jurisic.
Both Whyte and Jurisic were guideline judgments given pursuant to s 37A of the Crimes (Sentencing Procedure) Act which empowers this Court to give a judgment which contains guidelines to be taken into account by sentencing judges.
In Jurisic, Spigelman CJ said at 231B-D: "The list of mitigating and aggravating factors, conveniently collected by Lord B Lane CJ in R v Boswell and quoted above, are reflected in the judgments of this Court to which I have made reference. The presence or absence of these factors - and their degree - will determine the appropriate penalty. A survey of the authorities indicates that the following factors arise: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. A number of these factors are reflected in the definition of 'circumstances of D aggravation' in s 52A(7), for purposes of the two higher offences."
Spigelman CJ articulated the following guideline (with which the other members of the Court agreed) at 231E-F: "1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional."
In Whyte, Spigelman CJ said at [204]: "A frequently recurring case of an offence under s 52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value."
At [217] of Whyte, Spigelman CJ amended aggravating factor (v) in Jurisic from "erratic driving" to "erratic or aggressive driving" and also added to the list: "(x) Degree of sleep deprivation. (xi) Failing to stop."
Spigelman CJ said of the list of aggravating factors in Jurisic (as amended), at [228] of Whyte: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
The applicant was not a typical offender envisaged by the guideline judgments since she was 56 years old at the time of the offending; she had relevant prior convictions for drink driving; and she sustained injuries in the collision. As referred to above, the parties at the sentence hearing listed the factors from Whyte and Jurisic and indicated in respect of each whether it was contended to be relevant.
In this Court, Ms Rodger submitted that the sentencing judge's assessment of objective seriousness was erroneous when regard is had to the guideline judgments in the following respects: 1. the guideline referred to the typical case as one involving "permanent injury" but the evidence in the presence case (due to Ms Jervis' untimely death) did not establish whether any of the injuries she sustained were permanent; and accordingly the injuries could not be considered to be "mid-range"; 2. it was inconsistent with the guideline for the sentencing judge to find that the length of the trip (which the applicant submitted was a "short trip of 10 minutes") aggravated the seriousness of the offence; 3. it was erroneous to find that the applicant had abandoned responsibility when: 1. the Crown had not sought such a finding; 2. the swerving and loss of control of the vehicle while the applicant was intoxicated did not warrant the finding; and 3. the sentencing judge did not take into account the fact that the applicant was not speeding, competitive driving, showing off, ignoring of warnings, escaping police pursuit, sleep deprived or failing to stop as set out in Whyte such that there was no combination of circumstances indicative of high moral culpability; 1. the sentencing judge made no reference to the applicant's submission that summary disposal was available for the offence in circumstances where the strictly indictable offence (aggravated dangerous driving occasioning death) had been withdrawn and the applicant did not have a significant criminal history; and 2. the sentencing judge did not "truly contemplate" the imposition of an ICO.
As to (1), there were several significant differences between the typical case contemplated by the guideline judgments and the present case. Section 37A of the Crimes (Sentencing Procedure) Act does not require a sentencing judge to address factors in a guideline judgment which are not relevant to the case before the judge, particularly in a case such as the present which is far removed from the typical case envisaged by the guideline judgment. The sentencing judge did not sentence the applicant on the basis that Ms Jervis suffered permanent injury, it being plain that, in the events that happened, whether the injuries she sustained were permanent or not could not be ascertained. Further, the gravity or permanence of the injuries sustained is only one factor which is germane to an assessment of objective seriousness. Objective seriousness is not directly proportional to the gravity of the injuries sustained. For the reasons given above, their gravity was found to be neither at the lowest end nor catastrophic. The other factors identified above were plainly important to the assessment.
As to (2), I reject the applicant's submission that because the applicant's journey of 50km was brought to an end by the collision after 10 minutes, the journey ought be regarded as "short". There is a difference between embarking on a journey of 50km which is brought to an end after ten minutes by one's own criminal conduct and embarking on a ten-minute journey. All other things being equal, embarking on a journey of 50km when seriously intoxicated is objectively more serious than embarking on a 10-minute journey. The fact that the collision occurred early in the applicant's 50km journey is supportive of a finding that the applicant was unable to control her vehicle and was driving in a dangerous manner.
As to (3), the question of moral culpability arising from abandonment of responsibility was plainly raised in the passage extracted at [228] from Whyte. Although it was not raised by the Crown in the sentence hearing, it was raised by the sentencing judge before the oral submissions began and his Honour put it clearly to the applicant's counsel during the course of the submissions. I note for completeness that the moral culpability arising from abandonment of responsibility in this context was a purely objective matter arising from the level of intoxication, the length of the journey and the circumstances of the collision. There was no denial of natural justice to the applicant and it was entirely appropriate for the sentencing judge to raise it. I reject the applicant's submission that the issue of abandonment of responsibility was confined to the immediate circumstances of the collision - the swerving and loss of control of the vehicle while the applicant was intoxicated. It was also relevant to a finding whether the applicant could be regarded as having abandoned responsibility to consider the level of intoxication, the length of the proposed journey, the type of road, number of users and speed limit, the time of day, as well as the manoeuvre which the applicant sought to accomplish when she lost control.
In support of (4), the applicant relied on Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 (Zreika). In Zreika, the Court (Johnson J, McClellan CJ at CL and Rothman J agreeing) considered the relevance, or otherwise, of an offence being charged on indictment although it could, and would, have been dealt with summarily but for extraneous factors. In [103] of Zreika, the Court referred to R v El Masri [2005] NSWCCA 167, in which the applicant was found not guilty of assault with intent to rob in circumstances of aggravation. He had pleaded guilty to the alternative count of assault occasioning actual bodily harm, but the Crown rejected the plea and the applicant was convicted of the second count only at trial. The Crown accepted that the offence for which the applicant stood to be sentenced would have been dealt with summarily, but for the inclusion of the more serious charge on the indictment.
In Zreika, Johnson J said, of the relevance of an offence being amenable to being dealt with summarily: "109 Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice … … 111 The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court."
The applicant referred to the circumstance that the matter could have been dealt with summarily before the sentencing judge in support of the submission that Local Court sentencing statistics were also relevant. However, the prospect that the matter could have been dealt with by the Local Court did not, in my view, rise beyond a "bare theoretical possibility". It is plain from the sentence actually imposed that the sentencing judge considered that the appropriate sentence (a head sentence of 2 years and 6 months' imprisonment) exceeded the jurisdictional limit of the Local Court of 2 years' imprisonment: see s 267(2) of the Criminal Procedure Act 1986 (NSW). Accordingly, in these circumstances, it was not necessary for the sentencing judge to state expressly in his Honour's reasons for judgment that the matter could have been dealt with by the Local Court because, on his view, it would not have been appropriate in any event for that to have occurred.
As to (5), it is plain from the transcript that the sentencing judge had read the material, including the parties' written submissions, before the commencement of the sentence hearing. The fact that his Honour raised the possibility of deferring imposition of the sentence until after the applicant's son had completed his HSC exams was a clear indication that the sentencing judge envisaged that a sentence of full-time imprisonment would be required.
An ICO is not available for a single offence if "the duration of the term of imprisonment exceeds 2 years": s 68(1) of the Crimes (Sentencing Procedure) Act. The sentencing judge followed the approach set out in Stanley: namely, his Honour determined that the threshold for a sentence of imprisonment had been crossed and determined the total term of the sentence (2 years and 6 months). As the term was greater than would allow for an ICO, his Honour was not obliged to consider an ICO further.

Ground 2: alleged error in assessing the applicant's subjective circumstances

The applicant submitted that the sentencing judge erred in addressing the applicant's subjective circumstances by failing to address the following matters: 1. the relevance of the applicant's prior offending; 2. the submission by the applicant that the injuries she suffered amounted to extra-curial punishment; and 3. the relevance of domestic abuse and the applicant's use of alcohol to self-medicate.
As to (1), the sentencing judge noted the applicant's prior offending and found specific deterrence to be a "significant factor". It was not necessary for the sentencing judge to say more than this since it was evident from the applicant's written submissions that the applicant accepted that her criminal history was relevant to the index offending. I reject the applicant's submission that it was put on her behalf that the criminal history was only such as to disentitle her from leniency. The applicant's legal representative plainly appreciated that the criminal history was a matter which was potentially relevant to several factors, including specific deterrence, prospects of rehabilitation, likelihood of re-offending and the need for a sentence of full-time custody.
As to (2), the applicant's counsel in the sentence hearing made reference to "extra-curial punishment" in support of his submission that an ICO would be appropriate. However, it is not clear from the submission what was being referred to since there was no reference in this context to the injuries which the applicant had sustained in the collision (which were amply detailed in the sentencing judgment). It is possible that it was a reference to the disqualification from driving which had, during the period between the offending conduct and the imposition of the sentence, resulted in the applicant not being permitted to drive (including to obtain treatment for cancer). In these circumstances, it was not erroneous for the sentencing judge not to address the submission which was put on behalf of the applicant in this Court (and not the Court below) that her injuries amounted to extra-curial punishment. It is, accordingly, unnecessary for this Court to say anything further about whether such injuries amount to extra-curial punishment.
As to (3), his Honour plainly took into account the applicant's subjective circumstances, which included domestic abuse, and her tendency to self-medicate with alcohol at times of stress. However, the sentencing judge was prohibited by s 21A(5AA) of the Crimes (Sentencing Procedure) Act from taking into account self-induced intoxication as a mitigating factor when determining an appropriate sentence. Thus, even if it be the case that the applicant drank to excess because of the stress she was suffering as a result of the interchange with a former domestic partner the day before, the sentencing judge could not take that matter into account (because the applicant's intoxication was self-induced) in mitigation on sentence. It was the applicant's decision to drive while intoxicated, not her decision to drink and thereby render herself intoxicated, for which she is to be punished. I am not persuaded that his Honour was in error as alleged.
For the reasons given above, ground 2 has not been made out.

Proposed orders

For the reasons given above, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
WILSON J: I agree with the orders proposed by Adamson JA, for the reason her Honour has given.
DHANJI J: I agree with the orders proposed by Adamson JA and, subject to the following observations, with her Honour's reasons.
Sentencing for offences such as the present is notoriously difficult. That difficulty, in large measure, stems from the fact that any sentence must incorporate the offender's responsibility for death or serious injury which was neither intended, nor, in nearly all cases, contemplated by the offender. It was that difficulty that led to this Court setting, prior to any legislative scheme for doing so, the first of various guideline judgments in R v Jurisic (1998) 45 NSWLR 209 (which guideline was later modified in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343). The conduct of the applicant in embarking on a lengthy journey, necessarily involving driving at high speed, with such a high level of alcohol in her blood, involved a high level of moral culpability. The consequences of her driving, that is, whether it occasioned death or serious injury, or something less, was largely a matter of happenstance. Nonetheless, as a result-based offence, the degree of injury is a significant aspect of the objective gravity of the offence. In the present case, the injuries were at the lower end of the range, though found by the sentencing judge not to be "right at the bottom end of the range". Given this important aspect of the objective seriousness of the offending, I would accept that the sentence imposed on the applicant was a severe one. However, given the nature of the appeal (assuming leave is granted) it is necessary for the applicant to establish error in the exercise of his Honour's discretionary judgment.
With respect to ground 1, the applicant's submissions in this Court were, as expressed in the ground itself, focussed on establishing an error in the assessment of objective seriousness. As Adamson JA points out, establishing a complaint in these terms will often be difficult, having regard to the nature of the exercise being performed by the sentencing judge when making this assessment: Mulato v R [2006] NSWCCA 282. As has been pointed out many times, expressions such as "mid-range", "above mid-range" or "below mid-range" are necessarily imprecise: see the discussion in JG v R [2023] NSWCCA 33 at [94]-[103] , per Wilson J (in dissent, but not as to this point); Salama v R [2023] NSWCCA 141 at [47]-[49] per Wilson J (Wright and Fagan JJ agreeing); Braithwaite v R [2024] NSWCCA 15 at [37] (per Leeming JA); DH v R [2022] NSWCCA 200 at [60]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204 at [88].
The point made above, however, does not mean that if the sentencing judge mistakes the facts in making an assessment of objective seriousness, that error is of no consequence if the assessment of objective seriousness ultimately arrived at was open to the sentencing judge. Indeed, it is because of the imprecision in the conclusion as to objective seriousness that an error of fact in the context of the assessment of objective gravity cannot be dismissed in this way. That is to say, the imprecision in the ultimate assessment of objective seriousness will often mean any contribution made to it by an error as to a fact cannot be determined, with the result that the possibility the error (adversely) impacted the result cannot be excluded.
Returning to the present case, an aspect of the applicant's complaint was that the sentencing judge mistook the facts when assessing the objective seriousness of the offence. House v The King (1936) 55 CLR 499 at 505 definitively sets out the bases on which it may be established that the exercise of a discretion has miscarried. A mistake as to the facts is, of course, one of those bases. Despite the apparent breadth of the High Court's statement in House v The King, it will not be every mistake as to the facts (or error as to principle, or relevant or irrelevant consideration wrongly overlooked or taken into account) that will vitiate the exercise of the discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. For example, here, had the sentencing judge mistakenly considered the applicant to have been 57 years old rather than 56 at the time of driving, this would be an error of fact, but one which was not material. Here, the sentencing judge wrongly referred to the victim as having required surgery. As Adamson JA points out, his Honour did so after having correctly referred to the applicant's injuries. I accept there is significance in his Honour's incorrect reference coming, as it did, in the context of assessing objective seriousness. Nonetheless, the question remains as to the relationship between that finding and the assessment of objective seriousness. A conclusion that the error was not material is not as obviously drawn as with the example I have given in relation to the applicant's age. In circumstances where nothing else is known about an injury, that there was a need for surgery will be informative (without providing clarity). That is, absent any other information, the need for surgery suggests something beyond a trivial injury. Here, however, it was accepted that the injuries amounted to grievous bodily harm. In a context where the injuries had necessarily reached that threshold, whether surgery was or was not required was not informative of their seriousness. That is so for the reasons given by Adamson JA.
In relation to ground 2, unlike Adamson JA, I would accept that the submission on behalf of the applicant in the court below, referring to "extra-curial punishment" was a reference to the applicant's injuries. That is, to my mind, the most natural meaning of the submission in its context. I would not however, infer that the sentencing judge failed to take this matter into account. As Adamson JA has pointed out, the sentencing judge was aware of the applicant's injuries, correctly referring to them in the course of his reasons. In circumstances where the submission was not developed in detail, or given particular emphasis, I would not infer that, having referred to the applicant's injuries, they did not form part of the synthesis of the various relevant considerations taken into account by his Honour in arriving at the sentence ultimately imposed.
The applicant has not established either of the errors complained of and the appeal must be dismissed.

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Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/306487 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Rigby [2023] NSWDC 636 Date of Decision: 13 November 2023 Before: Conlon SC ADCJ File Number(s): 2020/306487

HEADNOTE [This headnote is not to be read as part of the judgment] On Friday 4 September 2020, Cecilia Rigby (the applicant) drove 50km from her home in Nambucca Heads to Coffs Harbour, where she met friends at a hotel at noon. She drank wine at the hotel until 6pm when she got into her car and began to drive home along the Pacific Highway. The applicant was travelling at 90km/h in a southerly direction when she attempted to overtake the vehicle in front of her. She made contact with that vehicle, causing her car to spin out of control across the grass median strip and collide with a vehicle driven by Lynette Jervis which was travelling in the opposite direction. Ms Jervis suffered a fractured sternum, vertebrae and ribs, a subdural haematoma, thoracic trauma and various bruises and lacerations. She was taken to hospital where, due to negligent medical treatment, she died. A blood sample of the applicant taken at 7.30pm that day returned a blood alcohol concentration reading of 0.208g/100ml. She was arrested and charged with aggravated dangerous driving causing death. Following a two-year investigation into the cause of Ms Jervis' death, the applicant ultimately pleaded guilty to one count of aggravated dangerous driving occasioning grievous bodily harm contrary to s 52A(4) of the Crimes Act 1900 (NSW), which was accepted by the Crown. On 13 November 2023, Conlon SC ADCJ (the sentencing judge) sentenced the applicant to 2 years and 6 months imprisonment, commencing on 13 September 2023 and expiring on 12 March 2026, with a non-parole period of 1 year and 2 months. The applicant seeks leave to appeal against her sentence on the following grounds: (1) The sentencing judge erred in his assessment of the objective seriousness of the offence; and (2) The sentencing judge erred in his assessment of the subjective circumstances of the applicant. In support of ground 1 the applicant submitted that the sentencing judge's assessment of objective seriousness as being at least mid-range was erroneous. She relied, firstly, on a factual error made by the sentencing judge in his Honour's reasons for sentence, in which he stated that "surgical intervention was required" to treat Ms Jervis' injuries where it was not possible to make such a finding. Secondly, she submitted that the sentencing judge erroneously failed to set out all the matters relevant to objective seriousness referred to in the guideline judgments of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte) and R v Jurisic (1998) 45 NSWLR 209 (Jurisic). In support of ground 2 the applicant submitted that the sentencing judge erroneously failed to address the relevance of the applicant's prior offending, her submission that the injuries she suffered in the crash amounted to extra-curial punishment and the relevance of her past experiences of domestic abuse and use of alcohol to self-medicate. The Court held (Adamson JA, Wilson and Dhanji JJ agreeing) granting leave to appeal but dismissing the appeal: Ground 1: assessment of objective seriousness (1) It is plain from the sentencing judge's reasons that the gravity of Ms Jervis' injuries was only one of a number of factors relevant to the assessment of objective seriousness. The applicant's high level of intoxication, incapacity to control her vehicle, speed at which she was travelling, busyness of the highway, length of trip and time into the trip when the collision occurred involved a high level of moral culpability and led the sentencing judge to conclude that there had been (objectively) an abandonment of responsibility by the applicant: at [42] (Adamson JA); [77] (Dhanji J). (2) The factual error made was slight and of no consequence to the assessment of objective seriousness (as whether surgery was required was not informative of the seriousness of Ms Jervis' injuries). Ground 1 is not made out on this basis: at [44]-[45], [47]-[49] (Adamson JA). Kendall v R [2015] NSWCCA 13, applied. (3) The applicant was not a typical offender envisaged by the guideline judgments (Whyte and Jurisic). Section 37A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not require a sentencing judge to address factors in a guideline judgment which are not relevant to the case before them: at [59], [61] (Adamson JA). Ground 2: assessment of subjective circumstances (4) The sentencing judge noted the applicant's prior offending and found that specific deterrence was a significant factor. It was not necessary for his Honour to say more than this in circumstances where the applicant's trial counsel plainly appreciated that the applicant's criminal history was potentially relevant to several factors: at [70] (Adamson JA). (5) It was not explicitly submitted in the court below that the applicant's injuries amounted to extra-curial punishment. In these circumstances it was not erroneous for the sentencing judge not to address that issue: at [71] (Adamson JA). (6) Accepting that the reference to extra-curial punishment made by the applicant in the Court below was a reference to the applicant's injuries (although that submission was not developed in detail), there is still no error. The sentencing judge referred to the applicant's injuries in the course of his Honour's reasons: at [81] (Dhanji J). (7) The sentencing judge plainly took into account the applicant's domestic abuse and was prohibited by s 21A(5AA) of the Crimes (Sentencing Procedure) Act from taking into account her self-induced intoxication as a mitigating factor. His Honour was not in error: at [72] (Adamson JA).

The Crown's written submissions before the sentencing judge

The Crown submitted in writing that, although Ms Jervis' injuries did not reach the catastrophic level seen in other matters, the injuries were not at the "bottom of the range". It submitted further: "The complainant sustained a variety of injuries including fractures to sternum, vertebrae and rib. She suffered thoracic trauma, bruising, lacerations and a bruising to her brain. The injuries required hospitalisation. Long term consequences cannot be assessed."
As to the subjective material, the Crown submitted: "The offender relies on a large amount of material that demonstrates significant subjective factors relevant to the offender. The Crown does not take issue with the assertions contained in that material as to the impacts that various events including the collision have had on the offender and third parties but submits that, for the most part, they will have minimal impact on a determination of appropriate penalty."
The Crown referred to the material tendered by the applicant which was "presumably relied upon to explain her consumption of alcohol prior to the collision" and referred to R v Doyle [2006] NSWCCA 118 in which this Court held at [28]-[30] that the reasons for consumption of alcohol were largely irrelevant since it was the decision to drive while affected which is the subject of punishment. It also submitted that the applicant's "level of intoxication, length and timing of the trip proposed and thoroughfare to be negotiated resulted in significant risk presenting to the community".
The Crown highlighted the importance of general and specific deterrence. The Crown addressed the guideline judgments of R v Jurisic (1998) 45 NSWLR 209 (Jurisic) and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte).
The Crown accepted that there had been some delay, noting that the time between 26 October 2020, when the applicant was arrested, and 24 June 2022, when the applicant offered to plead guilty to aggravated dangerous driving occasioning grievous bodily harm, was attributable to a considerable investigation into the cause of Ms Jervis' death. It was not until 17 April 2023, when the defence served a report of Dr Frellich that "sufficiently demonstrated the severance of the causal nexus" between the death of Ms Jervis and the applicant's driving, that the Crown had a foundation to accept the plea, which was accepted in about May 2023.
The Crown also accepted that the applicant's subjective circumstances (particularly her diagnosis with cancer in June 2022 and her otherwise good character) establish special circumstances which would warrant an alteration of the statutory ratio.

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