Thornton v R

Extension of Time to Seek Leave to Appeal

1. As noted, the applicant was sentenced on 15 March 2019. He requires an extension of time in which to seek leave to appeal. In support of his application for an extension affidavits were read from both the applicant and his solicitor. Those affidavits disclosed that there was some delay in 2019 in obtaining Legal Aid to pursue this application, but the matter had progressed such that he was able to obtain a hearing in this Court on 8 May 2020. However, the applicant states that in February 2020 he was advised by the Probation and Parole Service that in June 2020 he would be reviewed for progression to a "Reintegration Home Detention Order", but his outstanding appeal rendered him ineligible. He said that as a consequence he instructed his lawyer to abandon his appeal. In her affidavit, the applicant's solicitor has sworn that her office made enquiries of the Probation and Parole Service and confirmed that their position was as advised to the applicant, namely, that "to be considered for a Reintegration Home Detention Order" the applicant had to be "clear of court matters", including any appeal.
2. In June 2020 his application for a "Reintegration Home Detention Order" was rejected. The applicant then determined to revive his application for leave to appeal against sentence.
3. In light of this uncontested evidence, I considered that the applicant should be granted an extension of time.

The Offending

1. In light of the narrow issues that are raised on this application, it is only necessary to briefly summarise the facts of the offending. The following is taken from an agreed statement of facts that was tendered before the sentencing judge as supplemented by various findings of the sentencing judge that are not disputed.
2. At around 8.00pm on Friday, 16 February 2018, NSW Police established a roadside breath testing ("RBT") unit in the southbound lane of Campbelltown Road approximately 300m south of the intersection between Rose Payten Drive and Campbelltown Road. To the north of that intersection, Campbelltown Road crosses the Hume Highway.
3. The two victims, Senior Constable Foley and Senior Constable Wright, were rostered to assist with the operation. Senior Constable Foley parked his Highway Patrol vehicle in the far left-hand lane, activated his lights and placed a message board on the car reading "random breath testing".
4. Both victims walked to the boot of Senior Constable Foley's car to obtain equipment for the RBT operation. Both of them were in full uniform. Senior Constable Wright was wearing a high visibility vest, although Senior Constable Foley was not. It seems that when the boot was open it was obstructing the car's light bar.
5. At this time, the applicant left the Hume Highway and drove south along Campbelltown Road in the left-most lane. He drove through the Rose Payten Drive intersection. He did not see the RBT operation or the victims obtaining equipment from the open boot of the car. A number of other police officers who were near the rear of the car, saw him approaching. One of the police officers yelled "[S]top". The applicant's vehicle collided with the stationary police car. Both victims were caught between the two vehicles.
6. It was not disputed that the applicant's inattention was occasioned by his use of a mobile phone in the immediate period prior to the accident. However, there were inconsistent accounts of the period of that inattention.
7. The agreed facts recorded that the applicant had exchanged messages with his girlfriend between 7.08pm and the time of the accident at around 8.20pm. They also record that between 7.45pm and the time of the accident he had sent 29 messages and that there were further messages visible on a group chat.
8. At the scene of the accident the applicant had told police that he had been using his mobile phone at the time of the collision. Later that evening he was arrested and conveyed to Campbelltown Hospital. At the hospital he told investigators that when he was driving he received a message, picked up his phone and when he looked back up he saw the officers directly in front of him.
9. The applicant was conveyed from the hospital to the police station and interviewed there at around 2.47am in the morning. During that interview he told the police that he had manoeuvred his car around a moderate right-hand bend after the Rose Payten Drive intersection without looking and that he had estimated that he had been looking at messages for "10 [to] 20 seconds" prior to the accident. He said he was travelling at around 60km an hour. He said he only looked up when he was within four to five metres of the stationary police car. However, the applicant later told a psychologist prior to his sentencing that upon reflection he thought he was only on his phone for about 3 seconds before the collision.
10. The sentencing judge considered this material as well as accounts of other drivers. His Honour found that the applicant had travelled at a distance of 300m from the Rose Payten Drive intersection while he was looking at his phone and considered that this approximated to his estimate of between 10 and 20 seconds as referred to in his interview. There is no challenge to that finding.
11. In his interview the applicant also told the police that he had been using his mobile phone on the Hume Highway before he arrived at the Campbelltown exit. He had told them that he was able to unlock his phone while still watching the road and had sent approximately three messages. The sentencing judge found that his activities were "more extensive than as he estimated in his police interview", although his Honour was unable to determine the precise number sent while driving on the Hume Highway. The significance of this is that his Honour found that the applicant's "preoccupation with use of his mobile phone in texting and reading extended to when he was on the Hume Highway and that is part of the context of the offending".

Impact on the Victims

1. As a result of the accident, Senior Constable Wright lost a large amount of blood and required a blood transfusion. On the night of the collision he underwent surgery for a below knee amputation. Following complications, he had surgery for a through knee amputation on 2 March 2018. He suffered extreme pain while in hospital. Even on discharge from hospital on 10 March 2018 he was so heavily medicated that he required 24 hour supervision.
2. A victim impact statement from Senior Constable Wright that was read at the sentence hearing outlined the profound consequences for him of the offence. In effect his life has been transformed from a previously active one in which he was involved with his young family and his community, to dealing with chronic pain, fatigue, falls, the use of a prosthetic leg, attendances at a significant number of medical appointments, and attendant stress upon his family. The accident and its sequellae have severely limited his career. As at the date of his impact statement, he was approved to return to work as a police officer for 15 hours per week performing office duties.
3. Senior Constable Foley required immediate surgery to his right leg which involved the insertion of a titanium rod from his knee to his ankle, fixed with pins and screws. He underwent a second round of surgery the following week to remove and insert more pins and screws. He suffered permanent scaring to his right leg, left thigh, left arm and a deformity into his left index finger.
4. In his victim impact statement, Senior Constable Foley outlined the restrictions on his movement, the risk of early onset of arthritis and the suffering of bouts of depression and post‑traumatic stress disorder. He described the effect on his family and said that his "life now revolves around appointments". As at the date of sentencing he was working on restricted duties, and he can no longer drive a police car or interact with the public.

The Sentencing Judgment

1. After setting out the facts and circumstances surrounding the offending, the sentencing judge addressed the moral culpability of the applicant having regard to the factors identified in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 ("Whyte").
2. One of the guidelines specified in Whyte is that "[w]here the offender's moral culpability is high, a full-time custodial head sentence of less than 3 years (in the case of death) and 2 years (in the case of grievous bodily harm) would generally be appropriate" (at [229] per Spigelman CJ with whom Mason P, McLellan J, Barr and Bell JJ agreed). In that regard, the sentencing judge found that the injuries occasioned to Senior Constable Wright amounted to "grievous bodily harm of very high order" and those suffered by Senior Constable Foley were also serious. His Honour also found that others had been exposed to risk from the applicant's activities from at least the journey on the Hume Highway, but especially along Campbelltown Road from the intersection of Rose Payten Drive. His Honour concluded that the applicant's "moral culpability in this case was high" and that it was not an instance of momentary inattention or misjudgement, but rather an "irresponsible abdication of responsibility for an extended period".
3. Otherwise, I note nine matters about the balance of the sentencing judgment.
4. First, the sentencing judge described the applicant's subjective case. At the time of sentencing he was 23 years of age. He was profoundly affected by the suicide of his father when he was 15 years of age which impacted his performance in school. He left school in year 11 to pursue an apprenticeship which he did not complete, but he had nevertheless maintained continuous work in various jobs since that time. He was detained in custody for seven weeks after his arrest. Upon being granted bail, he had obtained work on a full-time basis.
5. Second, it was accepted that he was entitled to a discount on his sentence of 25% on account of his plea of guilty.
6. Third, the sentencing judge was satisfied that the applicant was previously of good character. However, having regard to his driving record, the sentencing judge considered that the offender was not entitled to be treated as a first time offender, although it was not necessary to give increased weight to personal deterrence on account of his driving record.
7. Fourth, leaving aside the debate about the period of time in which he was inattentive prior to the accident, the sentencing judge was satisfied that the applicant was remorseful.
8. Fifth, the sentencing judge noted the great sense of shame and guilt that the applicant had expressed in a letter of apology to the Court. His Honour found that this was consistent with the contents of a psychologist report, as well as a statement from his mother. The sentencing judge accepted that it was appropriate to take into account the applicant's "self-punishment".
9. Sixth, the sentencing judge noted the opinion of a psychologist that the applicant had been suffering symptoms of post‑traumatic stress disorder due to the collision and that he met the criteria for major depressive disorder. Although his Honour did not expressly say so, it seems that his Honour accepted those conclusions. Nevertheless, his Honour rejected a submission that these conditions rendered the applicant an inappropriate vehicle for general deterrence, but did accept that a custodial sentence would weigh more heavily upon him.
10. Seventh, the sentencing judge accepted that the applicant had good prospects of rehabilitation and a low likelihood of reoffending.
11. Eighth, as it is of relevance to the appeal, it is appropriate to note that his Honour expressly referred to considerations of concurrency. In particular, his Honour stated: "Having regard to the principles of totality, accumulation and concurrency, I note that in this case whilst there was a single act there were two victims. Some degree of concurrency and accumulation is called for in the context of an overall proportionate sentence which acknowledges the criminality of the offending."
12. Ninth, his Honour made a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Act by reason of the applicant's youth, good prospects of rehabilitation and low likelihood of reoffending.

The Appeal

1. As noted, the sole ground of appeal is that the sentence is manifestly excessive.
2. 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."
3. Further, as noted, the essence of the complaint of excess with the aggregate sentence concerns the "measure of notional accumulation of the indicative sentences, which is said to have led to a manifestly excessive aggregate sentence". I outlined the principles relating to such a complaint in Lee v R [2020] NSWCCA 244 (Payne JA and Fagan J agreeing), at [32] as follows: "Further, with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, 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 CJ and Adamson J agreed and cases cited thereat; "JM"). 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 corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; "Beale"). The "potentials for accumulation" of the various notional sentences can be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion" (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). 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])."
4. To this statement I would add the conclusion of N Adams J in Kliendienst v R [2020] NSWCCA 98 at [100] (with whom Simpson AJA and Rothman J agreed) that "there can be no expectation when an aggregate sentence is imposed that an offender will be able to arithmetically align that aggregate sentence with the indicative sentences, as can be done when an offender is sentenced in the traditional way", but nevertheless "it is not impermissible to have regard to the indicative sentences when looking at whether error is disclosed in the aggregate sentence" (at [103]).
5. In the written submissions in support of the application it was submitted that the difference in the indicative sentences appears to be explicable on the basis of the more severe injuries and consequences suffered by Senior Constable Wright compared with those suffered by Senior Constable Foley. I agree with that assessment. Further, it was submitted that, in determining what "notional accumulation" was involved in formulating the aggregate sentence, then if the sentence concerning Senior Constable Foley was taken as the commencing sentence, then there was an accumulation of 1 year and 7 months for sequence 2 involving Senior Constable Wright, or if it was the reverse it was 1 year and 1 month of accumulation. It was submitted that this was an excessive degree of accumulation for an aggregate sentence from a single act giving rise to two victims where the only differentiating feature between them is the more severe injuries.
6. I reject that contention. Decisions of this Court have recognised the necessity for there to be some accumulation to reflect the injury suffered by multiple victims who are injured in a single act of dangerous driving. Thus, in R v AB [2011] NSWCCA 229 ("AB"), this Court upheld a Crown appeal against a sentence imposed for three counts of dangerous driving occasioning grievous bodily harm on the basis that the sentencing judge had erred in insufficiently accumulating the sentences despite the very serious injuries suffered by each of the victims (at [123]-[124] per Johnson J with whom Bathurst CJ and Hoeben J agreed). Having regard to the injuries suffered by the three victims of each offence, Johnson J concluded that "[i]t was necessary that there be a significant and identifiable period of imprisonment referrable to the offence" against each of them (at [104]-[106]).
7. In AB, one of the victims of the offender's culpable driving lost an arm, another victim was rendered a tetraplegic, and a third victim suffered multiple fractures and some permanent nerve damage, although the sentencing judge found that, eventually at least "he escaped relatively unscathed" (at [56]). The ultimate sentence imposed by this Court involved an accumulation between each sentence of periods of 17 months and 23 months respectively (see R v AB (No 2) [2011] NSWCCA 256). In oral submissions, counsel for the applicant submitted that these periods of accumulation were partly a product of the relatively lenient sentences for each offence that were imposed at first instance and not interfered with on appeal. I do not accept that contention. Those sentences were eighteen months, two years and three years respectively (see AB at [7]). Sentences of that length are consistent with Whyte and broadly consistent with the indicative sentences specified by the trial judge in this case.
8. In Stanyard v R [2013] NSWCCA 134, an offender sought leave to appeal from a sentence imposed following a trial on two counts of dangerous driving occasioning grievous bodily harm which reflected the injuries suffered by two victims in the same driving incident. One of the victims was rendered a tetraplegic and the other victim suffered broken arms. The sentencing judge had accumulated the two sentences by a period of a year (at [5]). The effective total sentence was 5 years and 6 months with a non‑parole period of 3 years and 6 months (at [5]);
9. This Court rejected a contention that the trial judge had failed to apply the totality principle. In so doing, Fullerton J, with whom Bathurst CJ and Campbell J agreed, stated (at [37]): "Given the catastrophic nature of the injuries suffered by Ms Crawford, and the injury suffered by Ms Free which were also serious, a period of mandatory custody in the overall sentencing order attributable to the particular harm each young woman suffered was appropriately reflected in the effective sentence imposed."
10. When regard is had to these statements and the severity of the injuries suffered by Senior Constable Wright and Senior Constable Foley, it follows that the aggregate sentence imposed in this case was not excessive.
11. N ADAMS J: The judgment of Beech-Jones J reflects my reasons for joining in the orders made by the court on 30 September 2020.

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