Mr Boulton SC, for the applicant, argued 4 grounds of appeal:
1. that the sentence on the charge relating to Ms Sparks is manifestly excessive;
2. that his Honour erred in allowing a discount of only 20% for the utilitarian benefit of the plea of guilty to that charge;
3. that his Honour erred in ordering that sentence to be served entirely cumulatively upon the other two sentences; and
4. that there was a denial of procedural fairness to the applicant in relation to the bases upon which his Honour found special circumstances.
[2]
Manifestly excessive?
Mr Boulton noted that, in describing the applicant as having abandoned his responsibility to other users of the road, so that his moral culpability was high, his Honour was using the language to be found in the guideline judgment for sentencing in matters such as this in R v Jurisic (1998) 45 NSWLR 209, revisited in R v Whyte (2002) 55 NSWLR 252, [2002] NSWCCA 343. It is necessary to return to that familiar guideline and it is sufficient to to do so by reference to Whyte.
Relevantly, the guideline is that where an offender's moral culpability is high, a full time custodial sentence for an offence involving grievous bodily harm of less than 2 years would not generally be appropriate: Whyte at [229] (287). The typical offender in cases such as this was described in Whyte at [204] (284) as follows:
"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."
Mr Boulton noted that the applicant could not be described as a "young offender" while, on the other hand, his plea of guilty was of more than "limited utilitarian value". Certainly, Ms Sparks could be said to have suffered permanent injury but the applicant himself suffered significant injuries. Otherwise he shared the characteristics of the typical offender, being of good character with limited prior convictions and having demonstrated genuine remorse.
In Whyte at [216]-[218] (286), Spigelman CJ reviewed and revised the aggravating factors described in Jurisic which may indicate that an offender has abandoned responsibility for his or her conduct. These are:
(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 or aggressive 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;
(x) degree of sleep deprivation;
(xi) failing to stop.
Mr Boulton accepted that, of those characteristics, the present case raised (i), the extent and nature of the injuries inflicted, and (iv), degree of intoxication or of substance abuse. He acknowledged the serious injuries sustained by Ms Sparks (noting that the injuries sustained by Mr Sparks and Mr McNamara were not as serious). As to the degree of intoxication or of substance abuse, he noted that the degree of intoxication here was not high although it was sufficient to have impaired the applicant's driving. He pointed out that there was no suggestion of excessive speed or of erratic driving, although there is force in the observation of the Crown prosecutor in this Court that there was a measure of aggressive driving as it appears that the applicant had been "tailgating" the Holden sedan. None of the other aggravating features set out in Whyte were present. Mr Boulton submitted, and I accept, that (ii), the number of people put at risk, is directed to people other than the victims of the offence. It is not apparent that there were such people in the present case.
In relating those aggravating factors to the guideline in Whyte, Spigelman CJ said at [228] (287):
"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."
Mr Boulton pointed out that the effect of the guideline where there is a finding of high culpability, arising from abandonment of responsibility, is that a custodial sentence of at least 2 years is normally appropriate. He pointed out that the sentence of 5 years for the count relating to Ms Sparks, after a 20% discount for the plea of guilty, meant an undiscounted starting point of 6 years and 3 months. He argued that, giving due weight to the severity of the consequences of the accident for Ms Sparks, the absence of many of the aggravating features identified in Whyte demonstrates that a starting point so close to the maximum sentence of 7 years was not called for.
Mr Boulton supplied Judicial Commission statistics for offences of dangerous driving occasioning grievous bodily harm in the Local Court (93 cases between April 2012 and March 2016) and in the District Court (69 cases between January 2009 and December 2015). Of course, it is the District Court statistics which are of more significance. It appears that the sentence passed on the applicant in respect of the charge relating to Ms Sparks is the highest disclosed by the figures, both as to the head sentence and the non-parole period.
Both Mr Boulton and the Crown prosecutor referred to decisions of this Court concerning sentences for dangerous driving causing grievous bodily harm. In none of them was a single count visited with a sentence as high as that complained of here. Nor, in cases involving more than one count, was there a total sentence as high as that passed in the present case. Mr Boulton focussed upon cases involving a sustained course of dangerous driving.
In Harrigan v R [2005] NSWCCA 449, the offender drove aggressively, exceeding the speed limit, and from time to time swerving to the incorrect side of the road. He collided with the rear of another vehicle, causing it to collide with a telegraph pole. A 20 year old woman in that car, who was 7 months pregnant, suffered a ruptured uterus which led to a hysterectomy, lost her baby, and suffered fractures to her pelvis and her left ankle. She had continuing physical and emotional problems. The offender had a fairly lengthy criminal history, including driving offences.
After a 20% discount for his plea of guilty, he was sentenced to imprisonment for 4 years 9 months, with a non-parole period of 3 years 3 months, that sentence being accumulated upon a fixed term of 18 months for a related offence of attempting to pervert the course of justice. (The non-parole period of 3 years 3 months exceeds the figures in the Judicial Commission statistics, but it should be noted that the case was decided in 2005, before the period covered by the figures.) Accordingly, the starting point for the driving offence was 6 years. The offence was accepted as towards the top of the range. An appeal against that sentence was dismissed.
In Black v R [2010] NSWCCA 321, the offender had picked up a number of people at a hotel in Newcastle. Immediately after they had got into the car he accelerated away, while four people in the back seat were not wearing seat belts and one of them was still trying to close the rear door. He did a U-turn across a raised median strip, causing the vehicle to bounce, and one of the passengers was ejected head first through the door, suffering a fractured skull and severe brain damage, as well as a fractured jaw. She was left with lifelong disabilities. The offender had a criminal history, including what was described by Schmidt J, delivering the leading judgment, as a "poor driving record": [9].
After pleas of guilty to dangerous driving causing grievous bodily harm and several related offences, the offender was sentenced on the dangerous driving charge to imprisonment for 2 years 3 months with a non-parole period of 1 year 3 months. He received a 25% discount for his plea of guilty, so that the starting point was 3 years. The total effective sentence was 2 years 9 months with a non-parole period of 1 year 9 months. Again, an appeal against the sentence was dismissed.
R v AB [2011] NSWCCA 229 was a successful Crown appeal against sentences imposed for 3 charges of dangerous driving causing grievous bodily harm. In that case the offender was driving a utility, in which the passengers were two of his sons and one of their friends (referred to in the proceedings as DW). He was driving in the Southern Highlands area at high speed, such that DW asked him to slow down and, indeed, to stop so that he could get out. The vehicle failed to take a bend and careered off the road, eventually colliding with a tree, which was uprooted, and rolling onto its roof. The offender had a blood alcohol reading of a little over .09 grams per 100 millilitres of blood. The two sons were seriously injured, one of them suffering a traumatic amputation of his left arm above the elbow. DW suffered catastrophic injuries to his spine and was left a tetraplegic.
Johnson J, delivering the leading judgment, said at [104]:
"The Crown submission that the offence involving DW is close to a worst-category offence of this kind is correct. The driving of the Respondent, as the sentencing Judge found, involved a high level of moral culpability. Added to this were the devastating consequences for DW, a teenager whose life has been altered profoundly. It is difficult to envisage a more serious example of 'grievous bodily harm' than that relating to DW. It was and remains important that the grave seriousness of the Respondent's crime against DW be marked by a significant period of imprisonment referrable to that offence alone."
The offender had a criminal record and a history of driving offences, including one some years earlier of driving in a manner dangerous. Johnson J observed at [110] that he had "few factors operating in his favour on sentence". The Court intervened, not by altering the sentences passed in the District Court but by increasing the measure of accumulation between them. Initially the Court re-sentenced the offender to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, but it was necessary to revisit the matter primarily because the offender's pleas of guilty had been entered before that provision came into effect: R v AB (No 2) [2011] NSWCCA 256.
Apart from the three counts of dangerous driving causing grievous bodily harm, the offender was also dealt with for deemed larceny of a motor vehicle (s 154A of the Crimes Act 1900) because the utility was taken from his place of work without his employer's permission. The Court imposed partially accumulated sentences for each of the four counts, leading to a total term of 6 years 5 months with an effective non-parole period of 4 years 9 months. A discount of 25% was allowed for the pleas of guilty. The sentence for the offence relating to DW was 3 years with a non-parole period of 1 year and 4 months. It was accumulated almost entirely upon the other sentences (the overlap being only 1 month).
The Crown prosecutor referred to two other cases of dangerous driving causing grievous bodily harm which should be noted. In Stanyard v R [2013] NSWCCA 134, the offender was convicted at trial of two such offences. He was driving a four wheel drive convertible over a sand dune when it became airborne, struck the sand and flipped over. The trial judge found that he was driving at a speed which, while moderate, was excessive in the circumstances. His conduct was the product of "youthful exuberance" and he failed to appreciate the danger posed by it. He was found to have been "showing off", driving intentionally so as to cause all four wheels of the vehicle to leave the surface of the sand. Two young women who were passengers in the vehicle were injured, one of them being rendered a tetraplegic. The trial judge found the offender's moral culpability to be high, and the injuries to that woman to be in the worst category.
The offender was a young man with no criminal record but with a history of traffic offences, including a number of speeding offences. For the two counts he was sentenced to terms aggregating 5 ½ years with an effective non-parole period of 3 ½ years. The sentence for the count relating to the woman who was rendered a tetraplegic was 4 ½ years with a non-parole period of 2 ½ years. His appeal against these sentences was dismissed.
In Primmer v R [2015] NSWCCA 155, the offender was driving at an excessive speed and to some degree under the influence of drugs. While executing a right hand turn, the vehicle veered to the wrong side of the road, the offender lost control of it and it collided heavily with a power pole. A passenger in the car, a 14 year old girl, suffered irreversible brain damage and was left with permanent disabilities as a result. The offender's moral culpability was found by the sentencing judge to be high.
The offender was 19 years old at the time. He had a significant history of traffic offences. He also had an intellectual disability, which this Court found to be relevant to his moral culpability and the need for general deterrence. His appeal against sentence was successful. The Court quashed a sentence of 3 ½ years with a non-parole period of 2 ½ years, and he was re-sentenced to imprisonment for 3 years with a non-parole period of 1 year and 7 months. The Court arrived at the sentence after a reduction of 25% for the offender's plea of guilty.
Mr Boulton also referred to two cases of dangerous driving causing death, the offence under s 52A(1) of the Crimes Act which carries a maximum sentence of ten years imprisonment. In Hughes v R (2008) 185 A Crim R 155, [2008] NSWCCA 48; the offender was driving a laden semi-trailer while under the influence of cannabis. His 18 year old partner, who was three months pregnant, was a passenger in the vehicle. At a right hand bend he lost control of the vehicle, colliding with a concrete median barrier, and proceeding on top of the barrier for some distance until the vehicle ended up on its passenger side on the opposite side of the road. He managed to get out of the driver's door, but the prime mover caught fire and he was unable to get his partner out. She was consumed by the fire and her foetus did not survive.
He had some minor prior convictions and a traffic record which included some speeding offences. After a 25% discount for his plea of guilty, he was sentenced in the District Court to imprisonment for 4 ½ years with a non-parole period of 3 years. His appeal was successful, and he was re-sentenced to imprisonment for 3 years with a non-parole period of 2 years.
R v Price [2016] NSWCCA 50 was a successful Crown appeal in a case in which the offender had pleaded guilty to two counts of dangerous driving causing death and one of dangerous driving causing grievous bodily harm. He had been driving in a rural area while affected by methylamphetamine. His two year old son was in a booster seat which was not appropriate for a child of his age. While taking a left hand bend, the vehicle veered to the wrong side of the road and collided with a car travelling in the opposite direction. The driver and passenger in that car, a married couple, were killed. The offender's son suffered a traumatic brain injury, leading to paraplegia and bowel and bladder incontinence.
The sentencing judge was not satisfied that the offender had been driving aggressively or impetuously, and attributed his conduct to the effect of the drug. Nevertheless, Button J, delivering the leading judgment, characterised his driving on the wrong side of the road as "flagrantly dangerous": [90]. The offender had a criminal history and a traffic record which, Button J noted, "extended over many years and was extremely poor": [58]. Upholding the Crown appeal, the Court substituted an aggregate sentence of 8 ½ years with a non-parole period of 5 years and 8 months. Each indicative sentence was reduced by 25% on account of the pleas of guilty. The indicative sentence for the count relating to the offender's son was 4 ½ years, the starting point being 6 years.
As to the examination of the features of the present case in the light of the guideline judgment in Whyte, the Crown prosecutor reminded us of the following passage from the judgment of Johnson J in the original judgment in AB, referred to above, at [103]:
"It is important that the guideline judgment in R v Whyte does not become the undue focus of attention on the part of a sentencing Judge, with less attention being paid to the maximum penalty for each offence (in this case imprisonment for seven years). The guideline is a "guide" or "check" with the sentence to be imposed to be determined by the exercise of a broad discretion taking into account all relevant factors, including the maximum penalty: R v Whyte at 288 [232]. As Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59], "a guideline is not a tramline"."
The Crown prosecutor also emphasised the seriousness of driving a vehicle onto the incorrect side of the road in the face of oncoming traffic, whatever the circumstances might be, relying upon the characterisation of that conduct by Button J in Price (supra) as flagrantly dangerous. She pointed out that in the present case the accident occurred on a bridge where the oncoming vehicle had no opportunity to take any action to avoid a collision. No doubt, to be confronted with an imminent and inevitable head-on collision with a vehicle on its incorrect side of the road is every driver's nightmare. That said, the point Mr Boulton sought to make was that the applicant's conduct was an error of judgement, albeit a serious one, rather than a more sustained course of dangerous driving such as that to be found in most of the cases cited in argument.
As to those cases and the statistics, the limitations on the use of material of that kind, spelled out in Hili and Jones v The Queen (2010) 242 CLR 520, [2010] HCA 45, are familiar and have been recognised in numerous decisions of this Court before and after that High Court decision. The limited use of statistics, saying "nothing about why sentences were fixed as they were", was referred to by the High Court in Hili at [48] (535). As to other cases involving a sentence for the offence at hand, the High Court at [54] (537) cited with approval the judgment of Simpson J (as she then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, at [303]-[305] (70-71), [2010] NSWCCA 194. The High Court summarised her Honour's observations as follows:
"… As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence.' Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'."
[Footnotes omitted]
In my view, the cases cited here do provide a useful yardstick against which to examine the sentence passed upon the applicant. In four of the cases this Court passed sentence after successful appeals by the Crown or the offender: AB, Primmer, Hughes and Price. In each of the five cases involving grievous bodily harm only there was a more or less sustained course of dangerous driving leading to very serious injury. One of them, Harrigan, also involved the death of a foetus. The highest sentence for a single count was 4 years and 9 months with a non-parole period of 3 years and 3 months (Harrigan), and in cases involving more than one count, the highest aggregate sentence was 6 ½ years with a non-parole period of 4 years and 9 months (AB).
Of the two cases involving death, the victim in Hughes was a woman bearing a child and this Court intervened to reduce the sentence to 3 years with a non-parole period of 2 years. Price, a case also involving a head-on collision in which the offender was drug affected, involved not only the death of two people but very serious injury to a child. The indicative sentence for the count relating to the child was 4 ½ years, and the aggregate sentence was 8 ½ years with a non-parole period of 5 years and 8 months. Thus, as Mr Boulton pointed out, the sentence for the grievous bodily harm count was less severe than that passed on the applicant and, as to the aggregate sentence, the head sentence was only marginally greater, and the non-parole period a little less, than the total sentence and effective non-parole period in the present case. It should also be noted that that offender had a poor traffic record (as was also the case in Black and AB).
In the light of these cases, the sentence for the count relating to Ms Sparks does appear to be severe, as does the aggregate sentence for all three counts, to which it was the major contributor. However, I do not find it necessary to determine the ground that it is manifestly excessive because, as I perceive error on other grounds, it would be open to this Court to re-sentence in its own discretion.
[3]
Discount for plea
As I have said, his Honour discounted the sentence for the count relating to Ms Sparks by 20% on account of the plea of guilty, whereas the pleas of guilty to the other two counts were recognised by a discount of 25%. His Honour distinguished the discount for the count relating to Ms Sparks on the basis that the effect of a greater discount would be to reduce the sentence below that which was necessary to reflect the objective gravity of the offence: a recognition of the requirement in s 22(1A) of the Crimes (Sentencing Procedure) Act 1999 that a lesser sentence imposed on account of a plea of guilty "must not be unreasonably disproportionate to the nature and circumstances of the offence".
This is not the occasion to revisit the guideline judgment in relation to reduction of sentence for the utilitarian value of a plea of guilty in Thomson and Houlton v R (2000) 49 NSWLR 383, [2000] NSWCCA 309. It is accepted that the discretion to allow a reduction of sentence for the utilitarian value of a plea of guilty remains a wide one. Nevertheless, there is some incongruity in reducing the sentence for two counts by 25% but for the other by 20%. Given the conclusion I have reached about the severity of the sentence for the relevant count, it is difficult to see how a 25% discount would have produced a sentence less than was required to mark the gravity of the offence.
If this were the only ground of the application, one would not expect that this Court would intervene because the difference is a matter of a few months only. However, as I consider that there is merit in the next ground, and I consider that the combination of errors has caused the sentencing process to miscarry, I would uphold this ground.
[4]
Accumulation
In considering the question of accumulation, his Honour referred to R v Janceski [2005] NSWCCA 288. That was a case involving two counts of dangerous driving causing grievous bodily harm arising out of the same accident, in which Hunt AJA (with whom Spigelman CJ and Howie J agreed) considered the issue of concurrency and accumulation in cases of this kind. His Honour considered cases in which one incident gives rise to different charges with different victims. He divided that category of case into two sub-categories. An example of the first was where an offender repeatedly fires a gun, injuring a number of different people in the same incident, where it would be appropriate "to take into account the fact that the offences were substantially contemporaneous and connected …". The second was where "the one action by the offender causes a number of people to be injured and where separate charges are laid in respect of each victim": [21].
Hunt AJA continued at [23]:
"In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45]-[48] - and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46]-[53] and Regina v Price [2004] NSWCCA 186 at [38], [49] - when applying the general principles relating to the aggregation of sentences to this particular sub-category."
As I have said, his Honour accumulated the sentence for the count relating to Ms Sparks wholly upon the sentences for the other two counts. He gave no reason for taking that course. Presumably, it was because he considered the overall sentence of 8 years with a non-parole period of 6 years necessary to reflect the applicant's total criminality. Of course, courts have a wide discretion in dealing with questions of accumulation and concurrence, and totality is an important consideration. Total, or near total, accumulation in sentencing for multiple counts in cases such as this arising from the same accident are not unknown: see, for example, AB (No 2) (supra). However, consistently with the view expressed by Hunt AJA in the quoted passage, partly accumulative sentences are the normal practice.
I see no reason why that course should not have been adopted here. Certainly, given my view of the severity of the sentence for the count in question, I cannot see that totality required such an approach. I find this ground also established.
Accordingly, I am of the view that this Court should intervene and re-sentence the applicant. That being so, it becomes unnecessary to determine the fourth ground, alleging a denial of procedural fairness to the applicant in relation to the bases upon which his Honour found special circumstances. In any event, I would not have upheld that ground. It is based upon an exchange in argument between his Honour and counsel then representing the applicant which, in my view, does not bear the interpretation which Mr Boulton sought to place upon it.
[5]
Re-sentence
The offence in question remains very serious. Undoubtedly, his Honour was faced with a difficult sentencing exercise in a distressing case, and one could not but have the deepest sympathy for the unfortunate victim.
In the event of resentence, the Crown sought to rely on additional material updating Ms Spark's condition. This is an exceptional course, as the Crown usually leads evidence on resentence only in response to further evidence relied upon by the applicant. However, this is not the occasion to decide the permissibility of that course. It is sufficient to say that what emerges from the new material is consistent with the trial judge's findings about the lasting effects upon her of the offence and does not require any re-examination of those findings. Accordingly, I would decline to receive that additional material in evidence.
I would reduce the sentence on the count relating to Ms Sparks to a modest extent, I would allow a reduction of 25% for the plea of guilty, and I would direct that it be served concurrently to the extent of 6 months with the sentence on the count relating to Mr Sparks. Because of the degree of accumulation, I would find special circumstances, so as to depart from the statutory proportion between sentence and non-parole period. In the result, the effective non-parole period would also depart from the statutory proportion in its relationship to the overall sentence, but only to a modest extent. The period of parole eligibility, in my view, would be adequate to foster the applicant's rehabilitation.
I would allow the necessary extension of time, grant leave to appeal, and allow the appeal. The sentences on the counts related to Mr McNamara and Mr Sparks would stand. However, I would quash the sentence on the count relating to Ms Sparks and re-sentence the applicant on that count. My starting point would be 6 years, producing a sentence of 4 ½ years after a 25% reduction. I would fix a non-parole period of 2 ½ years.
Accordingly, on the count relating to Ms Sparks, I would sentence the applicant to a non-parole period of 2 ½ years, commencing on 1 April 2017 and expiring on 30 September 2019, and a balance of term of 2 years, commencing on 1 October 2019 and expiring on 30 September 2021. The overall sentence, then, would be imprisonment for 7 years with a non-parole period of 5 years, commencing on 1 October 2014. The applicant would become eligible for release on parole on 30 September 2019.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 November 2016
Parties
Applicant/Plaintiff:
Silvestri
Respondent/Defendant:
R
Cases Cited (21)
Solicitors:
Mr TJ Carter - Applicant
Ms C Hyland - Respondent Crown
File Number(s): xxx
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Citation: R v Silvestri [2014] NSWDC 369
Date of Decision: 22 October 2014
Before: Conlon DCJ
File Number(s): 2014/70760