Rose v R

Rose v R - [2010] NSWCCA 166 - NSWCCA 2010 case summary — Zoe

[15]

10 The Crown also accepted that were his Honour to have taken into account the aggravating factors in (a) or (b) above, that would also constitute patent error being contrary to what this Court has most recently stated to be the law in Whybrow v R [2008] NSWCCA 270. The Crown submitted, however, that on a proper reading of his Honour's sentencing remarks he did not in fact take the deaths of the young people into account as an aggravating factor (having been informed by the Crown in sentence proceedings that this was an impermissible approach), and did not make a finding that the grievous bodily harm suffered by AnB was substantial. (I note that there was no medical evidence tendered on sentence which identified the nature of the injuries he sustained in any event and the agreed facts makes no reference to the injuries he suffered.) It was also submitted by the Crown that although his Honour referred to the emotional loss resulting from the offences as substantial, and referred to the devastating effect on the families of the young people who were killed, he did not do so in an impermissible way, but did so simply to identify the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act and to emphasise that the offences for which the applicant was to be sentenced were serious and that the community was entitled to expect retribution. This, it was submitted, was an approach in accordance with R v Palu [2002] NSWCCA 381; 134 A Crim R 174 where Howie J (Levine and Hidden JJ agreeing) said at [37]: "The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim." 11 I am unable to agree with the Crown's construction of his Honour's sentencing remarks. In my view the following passage makes it clear that his Honour's approach to the question of whether there were established factors of aggravation in this case was in error in the way contended for by the applicant. His Honour said: "The relevant aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act , and referred to by the Crown, are also matters which the court ought to take into account in determining the objective criminality involved. One of those factors is that the injury, emotional harm and loss caused by the offences was substantial.

[67]

45 In addition, while I accept that the evidence reveals that the applicant knew what he was doing was wrong, and that he was aware of the inherent danger in permitting JA to drive with a number of young people unrestrained in the tray of the utility, I am not persuaded that he had the capacity to fully appreciate the extent of the danger the young people were exposed to by his actions, or to appreciate that his conduct was criminal, as contended for by the Crown on appeal (see Ayton v R [2008] NSWCCA 13; 180 A Crim R 578 at [33]-[34]). 46 There are no other aggravating features listed in the guideline judgment relevant to an assessment of the applicant's moral culpability. This Court has emphasised that this list is illustrative, and not definitive, of what is capable of amounting to conduct representing an offender's abandonment of responsibility or level of moral culpability (see R v Errington [2005] NSWCCA 348; 157 A Crim R 553 at [36]). That said, there were no other features of the offending identified by the Crown as deserving of weight in the event that the Court was to re-sentence the applicant. 47 The factor which dominates the re-sentencing exercise is the extent to which the applicant's diminished capacity to resist the repeated requests from a number of the young people who wanted to drive his car, and his compromised capacity to re-evaluate and appreciate the risks inherent in continuing to allow some of them to drive after they had moved from the skate park to Racecourse Road, with others unrestrained in the tray of the utility, impacts on sentence. It was the interplay of both of these features of his disability which led directly to the offender committing the offences to which he has pleaded guilty. 48 In the result, I am satisfied that a custodial sentence should be imposed, but one that effects a reduction in the sentences imposed by the sentencing judge both to reflect the fact that matters of aggravation were taken into account in error and to reflect my finding that there is a much moderated impact of those factors I have identified as aggravating the offending. The applicant's subjective circumstances

[68]

49 The applicant was aged 32 at the time of the offences and 34 at the time of sentence. He has no criminal record and was described by his general practitioner as never having caused any behavioural or social problems in the community in which he lived. He lived alone in Warialda, although his sister assisted him to deal with his correspondence and his maternal grandmother attended his home on a regular basis to help him identify and organise his domestic tasks. His social interaction was largely limited to his family or close neighbours and attending a weekly darts competition with his father. 50 According to the Probation and Parole Service pre-sentence report the applicant was bullied and harassed during his school years and, although he completed both primary and secondary schooling, his secondary schooling was undertaken in a special class via correspondence. Since leaving school the applicant has had access to training and employment options through various Commonwealth programs. The first program assisted him to acquire the necessary skills to obtain his driver's licence which he eventually obtained after repeated attempts and with the assistance of another person to complete the written component of the licensing exercise. He has held an unencumbered driver's licence since 1995. His licence was cancelled upon his arrest on the basis of a finding that he is not a fit and proper person to drive a vehicle. There were no entries on his traffic record at the time of cancellation. The Probation and Parole Service report notes that the applicant was the subject of abuse from some family members of the deceased and intrusive media attention, which has left him ostracised from his community. 51 In his affidavit, received without objection for the purposes of re-sentence, the applicant describes having injured himself in prison on a number of occasions by falling over as a result of the eye injury he sustained in the accident. He said that when he fell over a welfare officer, he was moved to a bottom bunk to minimise the risk of harming himself. The eye injury also inhibits his capacity to work in the prison setting although he sometimes helps the wing sweeper by lifting or moving things. He said he was hopeful of improving his literacy by going to a reading and writing class once a week. He said that as he was moved within the prison system he initially found social interaction with other prisoners frightening but that since being housed in Long Bay he has settled down. Since being in custody he has been prescribed antidepressant medication and is maintained on anti-epileptic medication. He said he intends to return to his home upon release and he is hopeful of being able to help people around the town with any projects they might need help with and to help with the sheep kept in the yard near where he lives.

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