Stanton v R

Court of Criminal Appeal (NSW)|2021-05-31|Before: Harrison J, Beech-Jones J, Cavanagh J, Jones J

Solicitors: CBD Criminal Defence Lawyers (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2018/336441 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 454 Date of Decision: 30 June 2020 Before: Colefax SC DCJ File Number(s): 2018/336441

Judgment

HARRISON J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed for two offences under s s 52A(3)(a) of the Crimes Act 1900, namely, dangerous driving occasioning grievous bodily harm in circumstances where the vehicle driven by the offender was driving under the influence of an intoxicating drug.
On 30 June 2020, the applicant appeared before his Honour Judge Colefax SC in the District Court and adhered to his plea of guilty to both counts. On the same day, his Honour sentenced the applicant to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 3 years. The maximum penalty for an offence under s 52A(3)(a) is 7 years imprisonment. There is no standard non-parole period.

The Offences and the Sentencing Judgment

The essential facts of the offending, along with the various matters considered by the sentencing judge, were set out in his Honour's reasons, which should be read together with this judgment (R v Stanton [2020] NSWDC 454).
In summary, at around 6.30am on 8 May 2018, the applicant was driving along Picton Road, Picton with Mr Clarke as his passenger. His vehicle veered to the opposite side of the road and collided with the rear driver side of a vehicle travelling in the opposite direction. This caused that vehicle to spin around before it came to rest on an embankment. The applicant's vehicle continued to travel on the wrong side of the road and collided head on with Ms O'Regan's vehicle.
The passengers in the first vehicle the applicant collided with were uninjured. However, each of Ms O'Regan, Mr Clarke and the applicant were severely injured. Mr Clarke suffered serious fractures to his back as well as significant tears to his colon and bowel. Ms O'Regan was only 25 years of age and suffered scarring and damage to her bowel. She developed what is called "dumping syndrome" which causes her to have diarrhoea shortly after eating. She was placed in a medically induced coma for two days and her parents and partner thought she might die. By the time of the sentencing hearing she had already had a number of operations and she had six more surgical operations to complete. Her victim impact statement described in harrowing terms the physical and psychological effect of the accident upon her. According to the sentencing judge, the applicant's injuries left him unable to work for six months.
On the day after the accident, the applicant was interviewed by police. He accepted he may have fallen asleep or blacked out at the time of the accident. He claimed to have had approximately 9½ hours sleep the night before. He said he was not feeling tired and that if had felt tired he would have pulled over. When he was asked whether he was under the influence of drugs, he stated that he rarely drank. However, a blood test revealed that he had 0.11mg/L of methylamphetamine and .03mg/L of amphetamine in his blood. The methylamphetamine in his blood satisfied the element of the charges against him that required that he be under the influence of an intoxicating drug.
Before the sentencing judge, there was an issue raised as to how the applicant had ingested the methylamphetamine and how much he had ingested. In short, the sentencing judge rejected his evidence that he had passively inhaled the drug the previous evening while in the presence of others who were smoking it. Based on expert evidence led by the Crown, his Honour was satisfied beyond reasonable doubt that at the time of the offence the applicant "was significantly affected by the consumption of methylamphetamine" from the previous evening (at [21] to [24]). His Honour's findings on this topic are the subject of complaint by ground 1 of the application.
The sentencing judge found that the applicant's "moral culpability" was high (at [26]). Otherwise, he had a good work record and no prior convictions. His Honour was not satisfied that the applicant was remorseful but, nevertheless, found that he had reasonable prospects of rehabilitation (at [37]). His Honour allowed a discount on account of the applicant's plea of 20% rather than 25% given that the contest over the facts of the offending was resolved against the applicant (Sentencing Procedure Act, s 25F(4)). Allowing for the responsibility the applicant bore for the care of his young child, as well as the fact that it was his first term of imprisonment and the effects of the current pandemic, the sentencing judge made a finding of special circumstances (at [47]).

Ground 1: Alleged Material factual error

Ground 1 on the Notice of Appeal contends that his Honour made a "material factual error when he held that the applicant had a 'very significant quantity of methylamphetamine' found in his blood".
This ground relates to the following part of the sentencing judgment: "19 How did this accident come about? 20 You [ie the Applicant] told the police on the day after the accident that you may have fallen asleep or blacked out; that you had slept for nine and a half hours the night before; that you were not feeling tired; and that you rarely drink alcohol. Your blood, however, was tested and a very significant quantity of methylamphetamine was found in it. 21 You gave evidence today in which you adhered to what you told the police. … You sought to explain the presence of the methylamphetamine by denying that you had smoked it and suggesting that you had ingested it by, in effect, passively smoking the methylamphetamine smoke which four others in a small room had been smoking. 22 The Crown obtained an expert's report from a pharmacologist. It was added to today by a supplementary report. The effect of the report is that the level of methylamphetamine in your blood, that was taken at 10:30 am on the day of the accident, could not possibly have come about by you sitting in a room, even a small room, for an hour to an hour and a half with four other people in that room smoking methylamphetamine. The evidence of that witness was compelling. You called no expert evidence to contradict it. I accept that evidence beyond reasonable doubt. 23 ... 24 I am satisfied beyond reasonable doubt that you were significantly affected by the consumption of methylamphetamine when you drove that vehicle that morning. You have not been frank with the Court as to how much you smoked. But you were clearly well affected by it - as is shown by the first incident in which you veered off into the left hand side of the emergency lane. The camera footage today showed you weaving over the roadway." (emphasis added)
The reference to the "first incident" in this passage is to a seven‑minute period of driving that occurred just prior to the accident. This was captured on "dash cam" footage that was before the sentencing judge and made available to this Court. It shows the applicant's car drifting off to the left and right of the lane consistent with the applicant suffering significant fatigue.
The applicant's submissions conceded that the sentencing judge was entitled to reject the applicant's evidence that he had ingested the methylamphetamine by passive smoking and also find that he was affected by the drug at the time he drove the vehicle. It was nevertheless contended that the finding that he had a "very significant quantity of methylamphetamine" in his blood was made without any, or without any proper, evidentiary basis, as was the finding that the applicant was "significantly affected" by methylamphetamine. To address this contention, it is necessary to refer to the evidence that was before the sentencing judge on this topic.
As noted, the agreed facts record that the applicant had readings of .11mg/L of methylamphetamine and .03mg/L of amphetamine in his blood. The agreed facts further noted that "the offender was characterised as being under the influence of a rebound sedation of methylamphetamine withdrawal to the extent that his driving would have been impaired".
This latter observation has to be read with the two reports of the expert pharmacologist, Mr Ryan, that were tendered before the sentencing judge, as well as his oral evidence. In his first report, Mr Ryan described methylamphetamine as having a "biphasic mode of action … in which the initial 'rush' or excitatory phase is gradually replaced by the 'crash' or withdrawal and rebound sedative phase". He stated that, during the latter phase, there is a "reactive depression or sedation marked by fatigue, anxiety and sleepiness". Mr Ryan noted that the blood sample taken from the applicant was analysed as whole blood, whereas various reports in the literature about the relevant ranges of therapeutic and toxic amounts of methylamphetamine concerned the testing of blood plasma. He stated that his true blood level of methylamphetamine may have been "about 30-40% higher if plasma was analysed".
Mr Ryan said that the therapeutic concentration of methamphetamine in plasma had been reported to be .01mg/L to .05mg/L and that methylamphetamine concentrations in whole blood greater than 0.1mg/L had been described as potentially fatal. Mr Ryan did not accept, as a reasonable possibility, that the applicant's blood levels of methylamphetamine could have been due to passive exposure from being present while other persons smoked the drug on a previous night.
Further, in his oral evidence Mr Ryan was asked as follows as to the level of methylamphetamine in the offender's blood test results: "Q. The level of methylamphetamine in the offender's blood test results, what range is that considered to be ins blood test results, what range is that considered to be in? A. It's certainly pharmacologically appreciable. The literature would state that it's in excess of a previously established or previously used therapeutic range and it's into a range stated by Stead and Moffatt from one of their papers to be in a potentially fatal range according to the scientific literature. Also in consideration is it's whole bool to plasma ratio which means that basically when blood is drawn from the arm it comes out of the arm as whole blood. When it's put in a centrifuge and spun it divides it into red cells and plasma. So if you compare analysis between the whole blood and plasma, you find that the plasma level is usually higher by about 35% in the case of methylamphetamine. So in actual fact, the whole blood level is conservative. It's likely lower than what the plasma level would have been."
Further, in his oral evidence Mr Ryan described the so-called rebound sedative effect of methylamphetamine as being that "on the crash or withdrawal phase of effect of methylamphetamine, the presentation becomes one more of central nervous system depression as opposed to the initial stimulatory effects [of consumption of methylamphetamine] … So what we see is decrements in attention, vigilance, reaction time … as it applies to the driving task".
Mr Ryan was provided with details of the driving displayed by the applicant. He was asked: "Q. The manner of driving displayed by the [applicant], is that, in your opinion, consistent with the rebound sedative effect that you have spoken about? A. Yes. Yes, that's my opinion."
Given this uncontradicted evidence, it is not necessary to consider the debate in some authorities as to the appropriate standard of review by this Court of a finding of fact made by a sentencing judge (cf R v O'Donoghue (1988) 34 A Crim R 397; "O'Donoghue"; with Hordern v R [2019] NSWCCA 138 at [20]; "Hordern"). The sentencing judge's description of the amount of methylamphetamine in the applicant's blood as being a "very significant quantity" is more than substantiated by Mr Ryan's evidence. As Mr Ryan noted, the amount exceeded the therapeutic range and was above some descriptions of the fatal range, even before consideration is given to the fact that the testing was of whole blood as opposed to blood plasma. As for the sentencing judge's ultimate finding that the applicant was "significantly affected by the consumption of methylamphetamine", the same observation applies. On Mr Ryan's evidence, the applicant had a range of methylamphetamine in his blood consistent with his consumption of an amount that was potentially fatal. Mr Ryan's evidence also cogently described the effect of such doses on persons during their withdrawal stage. The objective evidence concerning the manner of the applicant's driving was completely consistent with Mr Ryan's description of the effect of that phase of methylamphetamine consumption. Accordingly, it was more than open to the sentencing judge to find that the applicant was "significantly affected' by the consumption of methylamphetamine when he committed the offence.
I would reject ground 1.

Ground 2: Alleged failure to apply R v Whyte

Ground 2 of the appeal alleges that the sentencing judge failed to apply the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 ("Whyte").
Section 42A(a) of the Sentencing Procedure Act provides that a "guideline that is expressed to be contained in a guideline judgment" is "required to be taken into account" under Division 1 of Part 3 which concerns the exercise of the power to impose sentence.
Whyte promulgated two relevant "guidelines" for sentencing for offences under s 52A of the Crimes Act. One concerned a "frequently recurring case" with some or all of the following characteristics namely (i) young offender; (ii) of good character with no or limited prior convictions; (iii) whose offending caused death or permanent injury to a single person; (iv) where the victim is a stranger; (v) no or limited injury to the driver or the driver's intimates; (vi) the offender was genuinely remorseful and (vii) where the plea of guilty was of limited utilitarian value (at [204]). In such cases, the relevant guideline is 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 misjudgement" (at [214]).
The other guideline promulgated in Whyte concerned the presence of various "aggravating factors … which directly impinge on the moral culpability of the offender at the time of the offence" and which involve a consideration of "whether the combination of circumstances is such that it can be said that the offender has abandoned responsibility for his or her own conduct" (at [228]). In such cases, the guideline for the "typical case" just noted is that in sentencing for offences against s 52A(1) and s 52A(3) of the Crimes Act, "[w]here the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate" (at [229]).
The aggravating factors identified by Spigelman CJ in Whyte concerning this second guideline were (i) the extent and nature of the injuries inflicted; (ii) the number of people put at risk by the offender; (iii) the degree of speed in their driving; (iv) the degree of the offender's intoxication or substance abuse; (v) whether the offender drove erratically or aggressively; (vi) whether the offender engaged in competitive driving or showing off; (vii) the length of the journey during which others were exposed to risk; (viii) whether the offender ignored warnings (ix) whether offender was escaping pursuing police; (x) the degree of the offender's sleep deprivation and (xi) whether the offender failed to stop (at [216] to [217]).
In Moodie v R [2020] NSWCCA 160, this Court upheld a contention a sentencing judge failed to take into account the guideline judgment in Whyte (at [73]). Bell P noted that a failure to formally refer to such a decision does "not mean that the matters highlighted in such a guideline judgment were not necessarily taken into account by the sentencing judge" and that equally "a formalistic reference to a guideline judgment in a sentencing decision will not necessarily mean that it has been taken into account in a meaningful and appropriate way" (at [47]). His Honour continued (at [48]): "The question is one as to whether or not the guideline judgment was in fact taken into account, as it must be: see Whyte at [62]. That question is one of substance and not form. It will principally fall to be assessed by a comparison between the factors identified in the guideline judgment and the reasons for the sentencing decision. Also relevant, but to a lesser degree, will be whether or not the sentencing judge has been referred to the relevant guideline judgment (in the present case, Whyte) in the course of submissions during the sentencing hearing. Here, it is common ground and plain on the face of the transcript that the sentencing judge was not referred to, and did not himself make reference to, Whyte." (emphasis added)
Further, in considering a contention that Whyte was not considered by a sentencing judge, regard should be had to the changes in the sentencing regime and practice between the time Whyte was decided and the present. For example, as noted, the "typical case" referred to by Spigelman CJ included an offender who had offered a plea of guilty of limited utilitarian value. This suggests that the guidelines allowed for the effect of the plea. However, the manner in which the plea of guilty is to be treated for offences on an indictment is now specified by statute (Sentencing Procedure Act, Pt 1, Div 1A). Further, the factors noted in [27] were treated by Spigelman CJ in Whyte as bearing on an assessment of the offender's "moral culpability". Many, if not all, of those factors could be correctly treated by a sentencing judge as relevant to an assessment of the "objective criminality" of the offender, a concept that finds statutory support in sentencing for offences that carry a standard non-parole period (Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]). An assessment of an offender's "moral culpability" can include subjective factors such as an offender's mental illness (Muldrock at [54]).
As the commencement of his ex tempore reasons in this case, His Honour noted the maximum penalty for the offence and then observed that there was "no standard non parole period, although there is a relevant guideline judgment of the Court of Criminal Appeal", being Whyte (at [3]). His Honour noted various aspects of the offending that reflect aggravating the factors identified in Whyte noted above, specifically factors (i), (ii), (iii), (iv), (v) and (viii). Critically, his Honour expressly found that the applicant's "conduct constituted a serious abandonment of responsibility" and his "moral culpability ... [was] therefore high" (at [26]). This is the precise language adopted by Spigelman CJ in relation to the second guideline in Whyte (Whyte at [228]). The sentence imposed in this case was consistent with that guideline in that the latter only specifies a minimum sentence below which a sentence for an offender with high moral culpability would not fall, namely 2 years.
Despite this, Counsel for the applicant, Mr Carroll, submitted that a failure to apply Whyte was established from the failure of the sentencing judge to expressly address the factors noted above (at [27]) which were not present in this case, specifically factors (vi), (vii), (ix) and (xi). Given that the balance of the judgment makes it clear that Whyte was the focus of the sentencing judge's attention, a failure to expressly address those factors is of no moment. For example, a discussion of the relevance of whether the applicant failed to stop would have been nonsensical when he was injured in the accident and unable to drive.
I would reject ground 2.

Ground 3: Manifest Excess

Ground 3 of the application contends that the sentence imposed is manifestly excessive.
The relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ("Hili"): "As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; "Wong"], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong [at [58]], '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition."
Further, where an aggregate sentence was imposed, as in this case, the indicative sentences are not themselves amenable to appeal, although they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; "JM"). That said, even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The "principle", or even ultimate "focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved" (JM at [40]).
In support of his contention that the sentence imposed was manifestly excessive, Mr Carroll, referred to two cases where this Court imposed or considered a sentence that was lesser or similar to the sentence imposed on the applicant even though the criminality involved was worse, including that they caused the death of a victim, specifically Moodie and Colville v R [2015] NSWCCA 149. However, the sentence imposed by this Court in Moodie did not follow from a finding of manifest excess but other errors on the part of the sentencing judge. In dismissing the appeal against sentence in Colville, this Court did not consider the length of the sentence but instead addressed discrete arguments alleging error in the sentencing process. The Crown correctly submitted that the sentences in Moodie and Colville do not define some form of range of sentences.
While acknowledging the limited use of statistics in supporting an argument as to manifest excess (see Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [54] to [55]), Mr Carroll nevertheless referred the Court to statistics from the Judicial Information Research System ("JIRS") which suggests that an aggregate sentence of four and half years for an offence under s 52A(3)(a) of the Crimes Act, is at the upper end of such sentences imposed during the two year period September 2018 to September 2020 (although it is not clear whether the aggregate sentences were imposed for, or at least included, multiple offences under s 52A(3)(a)). Hili cautions against drawing definitive conclusions from this analysis of past sentences, especially as to what may be the appropriate range (Hili at [54]). However, the statistics provide some empirical support for Mr Carroll's main submission, which in effect contended that a conclusion of manifest excess could be drawn from the circumstance that this case very much involved the "typical offender" referred to in Whyte with an otherwise strong subjective case and an offence that had some but not all the factors referred to at [27], yet the indicative sentences were well above the second guideline stated in Whyte. I accept that submission.
As noted, the second guideline stated in Whyte is that "[w]here the offender's moral culpability is high, a full-time custodial head sentence of less than …. two years … would not generally be appropriate" (at [229]). In this case, I accept that a consideration of the concept of moral culpability as discussed in Whyte brings this matter into the "high category". However, that analysis only takes one to the point that a sentence not less than two years would be appropriate. There are other matters to consider beyond that, both in relation to the indicative sentences and the aggregate sentence. The extent of the injuries to both victims was significant and that was especially so for Ms O'Regan. That said, the nature of the injuries contemplated by grievous bodily harm is very wide and can embrace such effects as quadriplegia. Further, I do not accept that the difference in the injuries to Mr Clarke and Ms O'Regan was so great as to warrant a difference of 18 months in their (pre‑discount) indicative sentences. Even though the sentencing judge did not accept that the applicant was remorseful, he nevertheless had a strong subjective case, being his relative youth, his absence of prior convictions, his good work record and family support.
Prior to the allowance for any discount, each of the indicative sentences was well above the two-year period referred to in the second guideline from Whyte. However, as noted, Whyte only specified a form of "lower limit for a typical case" (see WW v R [2012] NSWCCA 165 at [76]). A finding of manifest excess does not necessarily follow from the imposition of a penalty above, even well above, that lower limit for a typical case of the kind contemplated by the second guideline in Whyte. Even so, I do not accept that any aspect of the applicant's offending or subjective case made his circumstances that much more deserving of punishment than the typical offender and typical offending addressed by the second guideline from Whyte as appear to be reflected in his Honour's sentence. When regard is had to the extent of the criminality, the injuries suffered and the applicant's strong subjective case, I consider that the starting point for each of the indicative sentences, especially that concerning Ms O'Regan, was too high.
As already noted, this appeal is from an aggregate sentence and not the indicative sentences. The aggregate sentence imposed had to address totality, bearing in mind that the combined effect of all the sentences had to reflect the total criminality of the offender's conduct (Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]). The sentence imposed by his Honour clearly recognised this in that it reflected a significant degree of notional overlap between the two indicative sentences to account for the fact that it was the same conduct of the offender that gave rise to both offences as well as accumulation to allow for the fact that there were two different victims who both suffered greatly, albeit one more than the other. However, in circumstances where I consider that each of the indicative sentences was too high, I am also satisfied that the aggregate sentence was manifestly excessive. It reflected more than the totality of the criminality involved.
I would uphold ground 3.

Resentencing

In resentencing, I would adopt the findings of the sentencing judge noted above including the 20% discount allowed to the applicant on his plea of guilty, as well as the finding of special circumstances for the purposes of s 44(2B) of the Sentencing Procedure Act for the reasons his Honour gave.
I accept that different indicative sentences are warranted for the offence involving Ms O'Regan compared to that involving Mr Clarke on account of the injuries they each suffered. In the case of the offence committed against Ms O'Regan, I consider that an indicative sentence of 3 years and 4 months' imprisonment prior to any discount for the pleas of guilty is warranted. After allowing for the discount, that will become 2 years and 8 months. In the case of the offence committed against Mr Clarke, I consider that an indicative sentence of 2 years and 8 months prior to any discount for the pleas of guilty is warranted. After discount and rounding, that will become 2 years and 2 months.
Accordingly, I propose the following orders: (1) Appeal allowed; (2) Set aside the sentence imposed by Colefax SC DCJ on 30 June 2020; (3) In place thereof: (a) impose an aggregate sentence of 3 years and 4 months imprisonment to commence on 30 June 2020 and expire on 31 October 2023; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 2 years and 3 months commencing on 30 June 2020 and expiring 30 September 2022; (c) specify that the earliest date the applicant will be eligible to be released on parole is 30 September 2022; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows: Dangerous driving occasioning grievous bodily harm while under the influence of a prohibited drug (Ms O'Regan) - 2 years 8 months Dangerous driving occasioning grievous bodily harm while under the influence of a prohibited drug (Mr Clarke) - 2 years 2 months
CAVANAGH J: I agree with Beech-Jones J.

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