TG v Regina

COUNSEL: J A Girdham - Crown N A P Harrison - Applicant

SOLICITORS: S Kavanagh - Crown James Fuggle, Rummery Solicitors - Applicant

IN THE COURT OF CRIMINAL APPEAL 2007/6189

McCLELLAN CJ at CL HOWIE J HARRISON J

TUESDAY 2 MARCH 2010 TG v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against sentences imposed by Charteris DCJ (the Judge) upon a juvenile for four offences of dangerous driving causing death. Each of the offences was contrary to s 52A(1) of the Crimes Act in respect of which the maximum penalty is imprisonment for 10 years. The trial of the applicant on aggravated charges of dangerous driving commenced and a jury was empanelled. However, after a voir dire and limited evidence before the jury, there were negotiations between the parties resulting in pleas to the alternative counts on the indictment being accepted by the Crown. Notwithstanding the late pleas, the Judge awarded him a discount of 15 per cent for the utilitarian value of his pleas. 3 The applicant was sentenced on 30 January 2009 to an overall sentence of imprisonment for 4 years with an overall non-parole period of 2 years. The sentences dated from 30 January 2009 and the applicant is to be released to parole on 29 January 2011. The Judge made an order pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 that the applicant serve his sentence as a juvenile offender until he attained the age of 21. 4 The following grounds of appeal were filed:

"1. His Honour erred in finding that the Applicant's moral culpability was above mid range in seriousness.

His Honour erred in his use of the fact that four deaths were occasioned as an aggravating feature on four different issues.

His Honour failed to give adequate weight to the extra curial suffering of the Applicant.

His Honour failed to give adequate weight to the applicant's youth and immaturity.

The sentencing judge failed to give adequate weight to the Applicant's need for rehabilitation.

His Honour the sentencing judge erred in his application of s 19 of the Children (Criminal Proceedings) Act 1987.

The total sentence was manifestly excessive and outside the range of sentences appropriate to the Applicant's criminality." The facts 5 In the early hours of the morning of 22 October 2006 the applicant was driving a vehicle in which there were four passengers. He was then aged 17 years and 6 months and had held a provisional licence for 3 months. The applicant was following another vehicle driven by an acquaintance. The accident occurred shortly after the applicant had overtaken that vehicle across double unbroken separation lines at a speed of slightly over 100 kph on a wet road at night. Immediately after this manoeuvre he negotiated a bend in the road but was confronted with a further bend to the left. He lost control of the vehicle and left the highway travelling some 60 metres before the vehicle impacted with a tree. The speed at which the vehicle left the road was between 95 to 111 kph. The four passengers were killed. The applicant suffered relatively minor injuries including a fracture of the thumb. 6 The applicant knew that he was restricted to a speed limit of 90 kph by reason of holding a provisional licence. He had travelled on that stretch of road before and said he believed the speed limit was 100 kph although in fact it was 80 kph. The speed limit had recently been altered and there was some confusion caused by the signage on the road. But the applicant had exceeded what he believed to be the speed limit on the road and the limit imposed by his licence. The applicant conceded that he had given no consideration to the danger of his overtaking or that he was putting his passengers at risk. He accepted that he did not pay a great deal of attention to speed limits or road conditions. The vehicle, which was owned by the applicant's father, had a number of defects that contributed to the accident but were unknown by the applicant. The front tyres were unroadworthy. The rear tyres were directional and fitted incorrectly so that there was a reduced traction on the road surface. 7 The passengers in the vehicles were all known to the applicant and were aged between 16 and 17 years. The Judge recounted the background to the driving and how the persons came to be in the applicant's vehicle but it is of no relevance to an assessment of the appropriate sentence. The subjective case 8 The applicant gave evidence before the Judge. He was of good character and had no prior convictions. The Judge remarked on his evidence as follows:

……… He has been through an extraordinary series of events relating not only to the terrible loss of the lives of his friends, his attendance upon each of their funerals, the eventual charging of him and the criminal process including the trial. As I have observed him in court and in the witness box, one could not other than be impressed with the dignity in which he has conducted himself and the way he has addressed the predicament that circumstance has delivered to him.…….. 9 The applicant described his conduct as "a silly piece of driving" on his behalf. He did not consider that he had been driving in a dangerous manner. 10 He was taking medication to address his depression and his inability to sleep as a result of the accident. He sought medical treatment for anxiety, sleep disorders and depressed mood and was referred to a psychiatrist. He diagnosed the applicant as suffering from chronic post traumatic stress disorder and what is known as "survivor guilt" because his life was spared. With treatment the psychiatrist considered the applicant to have a "reasonably good" prognosis. There was also psychiatric evidence as to "adolescent decision making" and the recklessness of young males as they approach adulthood by reason of different processes in the brain. 11 There was a positive Juvenile Justice report. There was also evidence of the applicant's employment as an apprenticed motor mechanic since the accident and his satisfactory performance despite the fact that he had no drivers licence. There was other evidence as to the applicant's good character and standing in the community. The sentencing remarks 12 The sentencing remarks were lengthy and referred to the evidence in considerable detail. 13 The Judge accepted that the applicant's impulsiveness in his driving on this particular occasion was linked to the applicant's immaturity as a seventeen year old. However he held that any seventeen year old of average maturity "knows not to drive at excessive speed, knows not to cross unbroken separation lines and knows to reduce speed on approaching bends". 14 His Honour referred to the guideline judgment of this Court in R v Whyte [2002] NSWCCA 543; (2002) 55 NSWLR 252. He noted the applicant's good character and absence of record, either criminal or traffic. He took into account that the applicant's grief was greater as the result of the death of acquaintances. He took into account his remorse and plea of guilty. The Judge described the driving as a "fundamental error of judgment and contrary to what the offender knew to be appropriate behaviour". 15 His Honour noted that the prosecution did not contend that the applicant had abandoned responsibility. However the Judge found that his driving was above the middle range of culpability but not at the very high end: "it is at a point between that". He also took into account the necessity for general deterrence but found that personal deterrence was not required. He concluded that the applicant was not likely to re-offend. 16 His Honour stated:

There must be a message sent to young drivers that the courts will impose significant penalties for offences of this nature. I do, as I have said, take into account his youth, it is a significant factor. The sentence I impose will be significantly less than a mature adult could expect. I take into account his good character, I also have regard to his suffering outside the court imposed punishment. His life has been changed dramatically as a result of these events. 17 The Judge determined that a sentence of two years and six months should be imposed for each offence. He then turned to the question of accumulation of the sentences. He said:

The offences of which the [applicant] has been convicted are ones that are described as "result offences". He did not ever intend that his friends would be injured, let alone lose their lives. Many young people, indeed many adults, have driven in the fashion that he has driven but by the circumstance of good fortune have not suffered the result that the driving of [the applicant] has achieved. However, the Parliament is imposing penalties of this nature because of the loss of life; each loss of life is a very significant matter. I must accumulate the penalties. In my view, addressing issues of totality, I should accumulate the sentences so that there will be an effective sentence of four years imprisonment. 18 The Judge then turned to the issue of special circumstances. He found special circumstances existed by reason of the applicant's youth, his psychological problems, his need for rehabilitation, and the fact that his apprenticeship had been brought to an end by the sentence to be imposed. The Judge determined that the applicant should serve a minimum period of two years imprisonment. The Judge then imposed sentences in respect of each of the offences in order to bring about the result that he had intended. 19 He imposed the same sentence for each offence being a term of imprisonment made up of a non-parole period of 15 months and a balance of term of 15 months. The first sentence dated from 30 January 2009. Each of the other sentences commenced six months after the previously imposed sentence. Grounds 20 In oral argument the applicant maintained that the principal complaints were (a) that the Judge took undue account of the fact that four persons had died and (b) that his Honour could have structured a sentence to permit the applicant to remain for the duration of his sentence in a juvenile facility in order to aid in his rehabilitation. 21 The written submissions under ground 7, the "manifest excessive ground", submitted that, if the Court was minded to find in favour of ground 2, "the totality ground", the Court would substitute sentences that would result in a reduction in the non-parole period to 20 months as against the overall total term of imprisonment of 4 years. In oral submissions it was made clear that this was the adjustment that was being sought regardless of the success or otherwise of any of the particular grounds of appeal. 22 The reason for this submission was made clear in oral argument. Such a non-parole period would result in a sentence that would have the effect of permitting the applicant to be released to parole prior to his 21st birthday and, therefore, he would avoid serving any part of the sentence in an adult prison. It was submitted that this would aid in his rehabilitation. 23 The short answer to both the written submissions and those made orally is that the sentence imposed by his Honour is probably inadequate. The Judge allowed a discount of 15 per cent for the utilitarian value of the pleas and a discount of that degree was entirely unjustified in light of the stage in the proceedings when the pleas were made. But in any event, however derived, a minimum period of custody of 2 years for causing four deaths by the driving in which the applicant engaged does not in my opinion adequately reflect general deterrence and denunciation. In other words, whatever success there might have been on any of the grounds of appeal, the applicant would fail because no lesser sentence was warranted. 24 Certainly no reduction in the sentence could be justified for the reasons put forward by Mr Harrison for the applicant. The suggestion that a sentence should, or could, be constructed with a view to bringing about a certain type of custodial arrangement should be firmly rejected. It is rarely, if ever, appropriate for a sentencing court to take into account administrative arrangements or executive decisions in determining the sentence to be imposed upon an offender. More importantly it would be quite wrong for a judge to seek to avoid a statutory prescription upon where a juvenile offender is to serve a sentence by reducing the sentence to avoid the administrative decision that a juvenile upon reaching the age of 21 is to be transferred to an adult prison. 25 This Court has stated consistently that the proper approach is to determine the appropriate sentence and then consider what, if any, options exist as to how that sentence is to be served. That approach was clearly stated in R v Zamagias [2002] NSWCCA 17. That decision has been quoted and applied in a large number of decisions of this Court that need not be cited. In a case involving a juvenile offender being sentenced at law, the same principle applies. The judge is to determine the sentence and then consider whether it is necessary and appropriate to make an order under s 19 of the Children (Criminal Proceedings) Act. It would be unprincipled and an error of discretion for the court to reduce a sentence solely in an attempt to avoid a juvenile offender spending a period of custody in an adult facility. 26 In any event, the court's intention in this regard can legitimately be frustrated by a decision made by the Director General to transfer a juvenile offender pursuant to s 28 of the Children (Detention Centres) Act to a "correctional centre". Section 19(7) specifically states that the section does not limit the operation of s 28. 27 Although the application should be rejected because it completely lacks any merit, I wish to make some brief comments about the grounds raised and the issues before the sentencing judge. First, His Honour was in error in determining the culpability of the applicant by taking into account that four persons had died. When assessing the moral culpability of the applicant, His Honour referred to the fact that "other than the terrible loss of life and speed" there was no other aggravating factor as mentioned in R v Whyte. Loss of life, however terrible, is not relevant to an assessment of moral culpability: Rosenthal v R [2008] NSWCCA 149. 28 However, one of the factors relevant to an assessment of the applicant's culpability was the number of persons put at risk by the driving. In Whyte this factor, listed as (ii) in the aggravating factors, was not considered to be a factor impinging upon moral culpability. However, in the Application of the Attorney General (No 3 of 2002) (the High-range PCA Guideline), [2004] NSWCCA 303; (2004) 61 NSWLR 305, with the concurrence of the other members of the Court), I stated:

[107] But, in my opinion those factors that aggravate the moral culpability of the driver and aggravate the seriousness of the conduct apply with equal force to the offence of high range PCA. These are expressed in Whyte as:

•Degree of intoxication •Erratic or aggressive driving •Competitive driving or showing off •Length of the journey at which others are exposed to risk

Although this was identified as an aggravating factor in Whyte , it was not marked as a matter relating to the moral culpability of the offender. With respect, I agree that this is so if this factor is having regard to members of the public in general. But I consider that a person's moral culpability is increased where the driver knows that other persons are being put at risk, for example where there are passengers in the vehicle.

See also R v Price [2004] NSWCCA 186 at [35] - [36]. 29 In the present case, therefore, although his Honour erred in taking into account the number of deaths as a factor relevant to an assessment of the moral culpability of the offender in respect of the driving causing death, his Honour was in error in not taking into account as an aggravating factor that the applicant was putting at risk the lives of four persons in his vehicle. 30 In the result there was no error in the Judge concluding that the applicant's moral culpability was high. It was deliberate risk taking, in that he overtook the other vehicle across unbroken centre lines, without any reason to do so. He was travelling at speed on a dark, wet road and where he could not sufficiently see the road in front of him to be aware of what was coming by way either of other vehicles or the characteristics of the roadway. He was an inexperienced driver and the limit on his licence as to the speed at which he could drive was intended to limit the risk of that inexperience resulting in a serious motor vehicle accident. The submission made on behalf of the applicant that the moral culpability was in the low range should be rejected. 31 In light of the Judge's finding as to moral culpability, a sentence of 30 months was very lenient. When a non-parole period of 50 per cent was imposed the sentence was verging on the inadequate as there was a significant degree of double counting involved. The leniency of the sentences was markedly increased by the limited cumulation between the sentences. 32 Secondly, it would have been a serious error had his Honour not imposed partly cumulative sentences for each of the offences. It has been made clear in decisions of this Court that the number of persons killed is an aggravating factor and will result in an increase in the overall sentence imposed: R v Price at [35]; R v Janceski [2005] NSWCCA 288 at [21]-[25]. The sentence for one offence cannot be increased because of the presence of other offences so that the only way in which an increased sentence can be imposed to represent the total criminality is to at least partially accumulate the sentences for each of the offences. 33 Thirdly, evidence from a psychiatrist as to the immaturity of young males of the age of the applicant was irrelevant. If a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the traffic rules. In SBF v R [2009] NSWCCA 231; 53 MVR 438 at 151 Johnson J stated:

[151] Ms Francis referred in submissions to the Applicant "having little appreciation of his own mortality" (T5.35, 22 June 2009). The Applicant's counsel in the District Court had submitted that "it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally" (T6.10, 5 August 2008). In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender "like many young men … saw [himself] as 'bullet proof'." The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case.

The reference to "Neethling" was a reference DPP v Neethling [2009] VSCA 116; (2009) 52 MVR 422. 34 The majority of the grounds of appeal went to the issue of whether the sentence was excessive having regard to matters that the Judge specifically took into account. The only argument was whether his Honour had given them sufficient weight. It is obvious that the overall sentence was not excessive, quite the contrary. As I have noted, the real basis for the application was that this Court should alter the sentence for a reason that was unprincipled. It, therefore, had no prospect of success. 35 I propose that leave to appeal be refused. 36 HARRISON J: I agree with Howie J. **********

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