Rummukainen v R

Judgment

1. PAYNE JA: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by Buscombe DCJ on 17 May 2019 in the District Court: [2019] NSWDC 452.
2. The applicant was found guilty following a trial by jury of one count of dangerous driving that occasioned the death of Mr Alexander Henry on 27 November 2016 at Bellmount Forest. The maximum penalty for an offence pursuant to s 52A(1)(c) of the Crimes Act 1900 (NSW) is imprisonment for 10 years. On 17 May 2019, the applicant was sentenced to a term of imprisonment of 3 years, with a non-parole period of 18 months. The applicant is first eligible for parole on 16 November 2020.
3. By Notice of Appeal filed on 5 May 2020, the applicant seeks leave to appeal against this sentence. The applicant's counsel accepted that the applicant effectively relies on a single ground of appeal, with three particulars, that the sentencing judge erred in taking into account the applicant's consumption of alcohol prior to the collision in circumstances where the sentencing judge also found that the Crown had not proven beyond reasonable doubt that the applicant's blood alcohol concentration at the time of the collision was greater than 0.05.

The expert evidence about impairment

1. Two experts gave evidence in the trial concerning the presence of alcohol in the applicant's blood at the time of the collision. Dr Judith Perl was called to give evidence for the Crown. Professor MacDonald Christie was called to give evidence by the applicant.
2. A sample of blood was taken from the applicant at hospital at 6:37pm on 27 November 2016, the day of the collision. At that time, the applicant had a blood alcohol concentration of 0.07, above the legal blood alcohol concentration for the applicant's class of licence which was 0.05. The collision had occurred shortly before 4:50pm, and the applicant had not consumed any alcohol after that time.
3. Dr Perl gave evidence that the likely range of the applicant's blood alcohol concentration at the time of the collision was between 0.062 and 0.071, if it were assumed that the applicant did not consume alcohol after the collision, had not consumed alcohol continuously and had not had a substantial meal after lunch. In cross-examination, Dr Perl accepted that if the variables were different, the applicant's blood alcohol concentration could have been less than 0.05.
4. Dr Perl also gave evidence that the two mid-strength beers consumed by the applicant at and immediately after lunch were not sufficient to result in a 0.07 reading at 6:37pm, although she could not say how many drinks would need to have been consumed to effect that result. She stated that if the applicant had not been drinking continuously since 1:00pm, "in the last 50 minutes before the accident, he would've had to [have] consumed quite a … considerable amount of alcohol to obtain a [0.07] reading later".
5. Professor Christie's opinion was that it was not possible validly to calculate what the applicant's blood alcohol concentration would have been at the time of the collision. He stated that he "would be surprised if [the applicant's blood alcohol concentration] was very far lower than .05 at the time of the collision, but it could have been lower than .05, or it could have been greater than .05. It is impossible to state what it was". Nonetheless, Professor Christie was able to conclude that to obtain a blood alcohol level of 0.07 at 6:37pm, the applicant must at least have consumed a minimum of two full-strength beers immediately before the applicant departed his work premises at approximately 4:00pm (in addition to the two beers that he had consumed at lunchtime).
6. Dr Perl gave evidence, which was uncontradicted, that on the basis of recent research the scientific consensus "is that there is no blood alcohol concentration at which there is no impairment" of driving skills.

Decision of the sentencing judge

1. As I have noted, the applicant's single ground of appeal contained three particulars. The background to that ground was the following observations of the sentencing judge about the evidence of Dr Perl and Professor Christie: "[11] While there was a dispute between Dr Perl and Professor Christie as to both the method of calculation and the result of any such calculation as to the offender's likely blood alcohol as at the time of the collision, by the end of their respective evidence both agreed that the offender may have been under the .05 prescribed content of alcohol limit and that he might have been at or above that level. Given the overall effect of their evidence, I cannot find beyond reasonable doubt that the offender was at or above the .05 prescribed content of alcohol limit as at the time of the collision."
2. Although the sentencing judge was not able to conclude beyond reasonable doubt that the applicant's blood alcohol concentration was at or above 0.05 at the time of the collision, his Honour was satisfied that the applicant was impaired to some extent as a result of his consumption of alcohol. In particular, his Honour found that: "[12] Both experts agreed that the blood alcohol level that was detected as at 6.37pm meant that the offender must have consumed more than the single beer which Mr Riley said he saw the offender consume around lunchtime and the beer that Mr Riley saw the offender take away from the area where lunch was consumed. There was no challenge, however, to Dr Perl's evidence that recent research in relation to the effect of alcohol upon human beings is to the effect that there will be some impairment of skills and functions of a person with any level of alcohol in their blood, even if that level is below the limit of .05 set by the legislature."
3. The sentencing judge held that there had been some impairment of the applicant's driving skills due to his consumption of alcohol, but that he was unable to say to what degree the applicant's driving skills had been impaired. His Honour continued: "[13] … I am not able to find beyond reasonable doubt what caused the offender to be on the wrong side of the road as at the time of the impact with the deceased's vehicle. The evidence of him working quite hard that day given by Mr Riley and the offender's consumption of alcohol that day strongly suggest that it was a combination of tiredness and the effect of alcohol that may have led him to be on the wrong side of the road at that time although, as I say, I am unable to make that finding beyond reasonable doubt. I consider that the evidence in the trial was to the effect that the road concerned was a fairly typical country road, having a single lane on each side. The evidence was that it was a fine afternoon and there were no visibility issues."
4. The first of the three particulars of the applicant's complaint related to his Honour's conclusion at [14]: "[14] I turn then to my assessment of the objective seriousness of the offence. The factors to consider when assessing the objective seriousness of a dangerous driving causing death offence were discussed in the guideline judgment of R v Whyte (2002) 55 NSWLR 252. Here the injuries suffered by the victim, of course, caused his tragic death. There was no element of speed but there was a level of impairment of driving skills due to alcohol consumption although, as I say, I cannot determine to what degree his skills had been impaired. Shortly before the impact the offender had been using his mobile phone, although I am not able to find that he was distracted by the use of it as at the time of the impact."
5. The sentencing judge observed at [15] that the applicant was driving on the wrong side of the road on a clear, fine day. The sentencing judge did not consider that the applicant had "abandoned responsibility" or that his moral culpability was high, but nor was his moral culpability low. The sentencing judge assessed the objective seriousness of the offence as below the mid-range, but stated that "I do not, however, consider that, overall, the objective seriousness can be described as low".
6. The second of the three particulars of the applicant's complaint related to his Honour's conclusion about the applicant's criminal record, where the sentencing judge stated: "[17] … His lack of significant criminal record does entitle him to some leniency here, but it is significant, in my opinion, to note that his only prior offence is one of drink driving, given he had been drinking prior to driving on the day of this offence."
7. The third of the three particulars of the applicant's complaint related to his Honour's conclusion in respect of general deterrence. The sentencing judge said: "[23] General deterrence is always a significant factor when sentencing for this offence which involved the needless, tragic loss of a human life. This is because of the prevalence of driving as an activity in our community and the terrible consequences, as demonstrated here, that can flow from a failure by a driver in the management of a motor vehicle. As a general proposition, in my view the consumption of alcohol should be seen as significantly increasing the risk to other users of the road even, in my view, where it cannot be found beyond reasonable doubt that an offender was above the legal limit. The road toll in this State remains at far too high a level and the sentences imposed for this type of offence must constitute a real deterrent."

Consideration

1. The essence of the applicant's complaint is that the sentencing judge was not permitted to take into account evidence about the applicant's impairment in any of the three ways his Honour did because the Crown had not demonstrated that the applicant had committed an offence of driving with the prescribed concentration of alcohol contrary to ss 108 and 110 of the Road Transport Act 2013 (NSW). The applicant's counsel submitted: "Our submission is that the blood alcohol level enshrined in the Road Transport Act of .05 or above for someone in the appellant's licence class reflects a deliberate policy choice by the Parliament, a deliberate balancing of the desire among people to consume alcohol and still be able to drive and the risks that alcohol obviously poses to road users, and that Parliament has made that deliberate policy choice and it would be to interfere in that policy choice for sentencing courts to take into account affectation brought about by a blood alcohol level below .05, and indeed to seek to deter persons from driving where their blood alcohol level is [at] or above .05."
2. The applicant's alternative submission was that the sentencing judge was not permitted to take into account evidence about the applicant's impairment in addressing general deterrence. The submission was that: "… The fall back is that if the Court was, for example, persuaded that it was relevant to the moral culpability of the appellant that error is still demonstrated because the learned judge [took it] into account in a number of ways and, in our submission, at least in relation to the question of general deterrence which the Court will find that the remarks on sentence at para 23 [set out at [16] above]."
3. I do not accept the applicant's submission that the sentencing judge was not entitled to take into account the evidence of the applicant's impairment by reason of consumption of alcohol in the three limited ways his Honour did. I do not accept that the policy choice of the legislature to permit people to consume alcohol and still be able to drive means that in assessing the appropriate sentence for a quite separate criminal offence, dangerous driving causing death, a sentencing judge must regard as irrelevant evidence of impairment in driving ability by reason of alcohol consumption that is properly before the court.
4. This Court's longstanding guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 is inconsistent with the applicant's submission. This Court there determined that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.
5. The Court identified eleven "aggravating factors" which sentencing judges should take into account in sentencing for dangerous driving causing death. "Aggravating factors" nominated in this list are to be distinguished from those "circumstances of aggravation" which take an offence of dangerous driving either occasioning death, or occasioning grievous bodily harm, into a higher penalty scheme: R v Millwood [2012] NSWCCA 2 per Simpson J (with whom Bathurst CJ and Adamson J agreed). The eleven "aggravating factors" identified in Whyte are the: 1. extent and nature of the injuries inflicted; 2. number of people put at risk; 3. degree of speed; 4. degree of intoxication or of substance abuse; 5. erratic or aggressive driving; 6. competitive driving or showing off; 7. length of the journey during which others were exposed to risk; 8. ignoring of warnings; 9. escaping police pursuit; 10. degree of sleep deprivation; and 11. failing to stop.
6. This Court held that items (3) to (11) relate to the moral culpability of an offender. Moral culpability is relevant in determining the objective seriousness of an offence: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 per French CJ, Bell, Keane and Nettle JJ at [70]. Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 per McHugh J at [52].
7. Whilst a number of these aggravating factors may in a particular case amount to separate offences, many do not necessarily involve the commission of an offence. Those factors may nonetheless be taken into account on sentence, including in assessing moral culpability. It is correct to say that the legislature has made a policy choice that it is not unlawful, per se, to drive after consuming alcohol or to drive "sleep deprived" or having ingested medication which was lawfully prescribed. That does not mean that in sentencing an offender for dangerous driving occasioning death it is irrelevant that the offender had been consuming alcohol or was sleep deprived or that his or her driving skills were impaired by having ingested prescription medication. Examples may be multiplied. Item (4) identified in Whyte as an aggravating factor going to moral culpability is the degree of intoxication. That aggravating factor is not limited to intoxication which constitutes a separate offence.
8. There is no basis in sentencing for dangerous driving causing death to treat as irrelevant evidence of one of the Whyte factors unless the Crown can establish beyond reasonable doubt that a separate offence was thereby committed.
9. In any event, the premise of the applicant's submission that the applicant's conduct in drinking alcohol and driving was permitted by the legislative scheme concerning drink driving is not sustainable. The applicant had a blood alcohol concentration of 0.07 at 6:37pm. The collision had occurred shortly before 4:50pm. Far from permitting the applicant to drive after having consumed alcohol, the statutory scheme would have required the applicant to prove he had a blood alcohol concentration below 0.05. Section 110(3)(a) of the Road Transport Act 2013 (NSW) relevantly provides "A person must not, while there is present in the person's breath or blood the low range prescribed concentration of alcohol … drive a motor vehicle." Clause 31 of sch 3 of the Road Transport Act provides that in a case such as the present, if an offence under s 110 of the Road Transport Act were in question, the blood alcohol concentration described in an evidential certificate, here 0.07, is taken to be correct unless the applicant proved that the concentration of alcohol in his breath or blood at the relevant time was "less than 0.05 grams of alcohol in 210 litres of breath or 100 millilitres of blood". As the summary of the expert evidence makes clear, that matter could not have been proved by the applicant in this case. Contrary to the applicant's submission, the applicant's conduct in this case was not permitted by the legislative scheme concerning drink driving.
10. It was not necessary for the sentencing judge to find that the applicant's impairment had caused the collision in order for his driving after drinking to be relevant to the objective seriousness of the offence, or the assessment of the applicant's moral culpability. As this Court held in Shashati v R [2018] NSWCCA 167; (2018) 85 MVR 194 at [24], "evidence relevant to the moral culpability of the offender is not to be narrowly confined". Such evidence includes evidence about any disability or impairment under which the offender is labouring. The same point was made in R v Manok [2017] NSWCCA 232; (2017) 81 MVR 427, where I said: "[4] Whilst the moral culpability of the respondent was low on the hypothesis that the length of the journey during which others in the car were exposed to risk was only the 12km from the turn off onto Peats Ridge Road until the point of the accident, I am unable to accept this finding as one open to the sentencing judge on the evidence. [5] Whilst it may be accepted that, subjectively, the respondent only 'felt tired' from the turn off onto Peats Ridge Road, the objective evidence about the length of the journey during which others in the car were exposed to risk was to the contrary. [6] The relevant circumstances were that the respondent: (1) had returned from a trip to Malaysia three days prior to the accident on an eight hour flight (on which he slept); (2) slept for four or five hours the two nights after returning from Malaysia; (3) worked until midnight the day before the accident setting up the new restaurant in Pyrmont; (4) woke up between 4:15am and 4:30am the day of the accident for morning prayer; (5) worked all day the day of the accident at the restaurant opening; and (6) began driving at about 10.30 or 11 pm that evening from Pyrmont to Guildford and on to Mangrove Mountain, a journey of about 1.5 hours. [7] The circumstances in which the respondent entered the car that evening were objectively dangerous and exposed passengers in the vehicle and others on the road to real risk from the time that the respondent decided to drive home. I accept the submission of the Crown that the risk 'increased with every kilometre travelled by the respondent'. The decision to drive in the circumstances described above was a decision that carried with it real risks. Tragically, those risks came to pass."
11. To similar effect, Wilson J stated: "[74] It must be borne in mind that, in circumstances where the respondent was aware of the heavy workload and small amount of sleep he had had over the preceding three days, and must have been conscious of his tiredness, he commenced to drive from Guildford, late at night, upon a journey involving both city road conditions and highway driving. When he left the motorway at Peats Ridge Road he continued to drive despite being so tired that, within what can only have been two or three minutes of taking the exit, he fell asleep at the wheel of a moving car. He must have been aware of his acute level of tiredness from a point before falling asleep for the first time, but drove on nevertheless. In doing so the respondent subjected his passengers and other road users to a high level of risk, a risk which sadly manifested. … [76] The respondent's decision to drive at all, but particularly to continue to drive as he entered Peats Ridge Road, represents more than a fleeting error of misjudgement involving low moral culpability; rather, the misjudgement was a serious one, and it was maintained over some time and many kilometres before the first sleep incident occurred, and thereafter until the fatal crash."
12. The evidence relevant to the moral culpability of the offender in the present case is not to be narrowly confined. That evidence included the admissible and unchallenged evidence of Dr Perl which demonstrated some impairment of driving skills in this case. The applicant's complaint must be assessed in the context of the evidence at trial and the findings of the sentencing judge set out above. In particular: 1. the applicant had consumed at least two beers over the course of his lunch, and had consumed further alcohol after lunch. Although the sentencing judge could not say how much, or the time of that consumption of alcohol proximate to the collision, the applicant's expert, Professor Christie, gave evidence that if the applicant had not been continuously drinking since 1:00pm, the applicant would need to have quickly consumed at least two (and probably three) stubbies of full-strength beer in a short period before he left his work premises, to result in the 0.07 reading at 6:37pm; 2. the Crown had not proved beyond reasonable doubt that the applicant's blood alcohol concentration was above 0.05 at the time of the collision, or that the alcohol consumption led the applicant to be on the wrong side of the road. Nonetheless, the applicant's driving skills at the time of the collision were impaired to some extent by his alcohol consumption.
13. In view of these findings, it was open to the trial judge to take into account the applicant's consumption of alcohol prior to the collision in the three respects his Honour did. It was relevant to moral culpability and thus the objective seriousness of the offence. The offence was more objectively serious as the offender drove dangerously while impaired to some extent by alcohol. The evidence of alcohol consumption was also relevant to general deterrence. The more objectively serious the criminal conduct, here dangerous driving causing death whilst impaired by alcohol, the greater the need for general deterrence. It is undoubtedly correct, as the sentencing judge remarked, that the road toll in this State remains at far too high a level and the sentences imposed for this type of offence must constitute a real deterrent. In this context, his Honour's observation that the consumption of alcohol should be seen as significantly increasing the risk to other users of the road even where it cannot be found beyond reasonable doubt that an offender was above the legal limit was not an error. Finally, in considering the significance of the applicant's prior record, which included the commission of a drink driving offence in 2012, the sentencing judge was entitled to take the drinking of the applicant on the afternoon of the dangerous driving causing death into account in the limited way his Honour did as a matter of context.
14. Here the offence for which the applicant was being sentenced was dangerous driving causing death. That offence having been established beyond reasonable doubt, the applicant's conduct from the time he began drinking before setting out to drive home was relevant to the sentencing exercise and involved matters which the sentencing judge was entitled to take into account.
15. It was not necessary for the Crown to prove that any impairment was known by the applicant before that impairment could be taken into account. It could not be suggested that the applicant had a reasonable basis for believing that he was not impaired by alcohol at the time that he started driving. The applicant had consumed at least two beers at lunch time and then consumed a further quantity of alcohol before driving a not insignificant distance following a long day at work. The alcohol that the applicant had consumed prior to driving was sufficient to result in a blood alcohol concentration of 0.07 when the applicant was tested almost two hours after the collision. Having consumed this quantity of alcohol, the applicant, without explanation, drove on the wrong side of the road, colliding with an oncoming car and causing the death of Mr Alexander Henry.
16. The sentencing judge's careful reasons were founded on the expert evidence at the trial. As the applicant has not established that the sentencing judge erred by taking into account the applicant's impairment by reason of consumption of alcohol, the ground of appeal is not established. Accordingly, whilst leave to appeal should be granted the appeal should be dismissed.

Orders 1. Application for leave to appeal granted; 2. Appeal dismissed.

1. WILSON J: I agree with the orders proposed by Payne JA, for the reasons given by him.
2. IERACE J: I also agree with the orders proposed by Payne JA, and with his Honour's reasons.

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