Ul-Hassan v R

[2018] NSWCCA 177

Court of Criminal Appeal (NSW)|2018-04-20|Before: Fullerton J, Davies J, Lonergan J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-04-20

Before

Fullerton J, Davies J, Lonergan J

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Judgment

FULLERTON J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty to three counts of aggravated dangerous driving occasioning grievous bodily harm. The maximum penalty for this offence is 11 years imprisonment together with periods of disqualification from driving.
He was also charged with driving with a mid-range of prescribed concentration of alcohol. The maximum penalty for this offence is 20 penalty units and/or imprisonment for nine months. There are also periods of disqualification from driving. That offence was placed on a s 166 certificate.
On 15 December 2016 he was sentenced by Judge McLennan SC to an aggregate sentence of six years imprisonment commencing 15 December 2016 and expiring 14 December 2022 with a non-parole period of three years expiring 14 December 2019. He was also disqualified from driving for a period of two years which, by virtue of the legislation, means two years dating from his release to parole.
The applicant now seeks leave to appeal against the severity of his sentence on the following grounds:
His Honour erred by failing to take into account the applicant's Major Depressive Disorder, for which he was taking medication, at the time of the offences.
His Honour erred in finding that the applicant's conduct amounted to an "abandonment of responsibility" and that his moral culpability was high.
His Honour erred by failing to take into account the degree of permanent injury to the victims and that they all made a complete recovery.
His Honour erred by failing to take proper account of the applicant's extra-curial punishment as a mitigating factor on sentence.
His Honour erred by failing to take into account the applicant's unblemished criminal and driving record.
The sentences imposed were manifestly excessive and unreasonable.

[11]

Record of interview with applicant

Due to his facial injuries, the applicant was unable to be interviewed for some time. On 2 June 2015, arrangements were made for the applicant to attend Merrylands Police Station whereby he was cautioned and placed under arrest.
The applicant agreed to participate in a recorded interview and told police the following: a. He resided at XX Merrylands Road, Merrylands; b. He worked as a courier driver. He was currently in Australia on a student visa studying Business through the Kings Own Institute. After he finishes his studies he wanted to go back to Pakistan. c. Before the offence, he was making enquiries to obtain a NSW Driver's Licence. He was in the process of booking his Driver's Knowledge Test. d. On 21 March 2015, he woke up at 7.00pm and went to his friend's house in Styles Place, Merrylands. There he consumed two beers. At about 10.00pm he took the anti-depressant Zoloft as he gets home sick. e. At about 10.15pm he picked up his housemate from Merrylands railway station. They purchased some food from Kabul House and while they were there they met his housemate Hashim. They all travelled back to Styles Place. Sometime in the evening they were joined by Mohommad Aslum who had walked to Styles Place. It takes about 15 minutes to walk from the applicant's address to Styles Place. f. Whilst the applicant was at Styles Place he ate dinner and had one glass of red wine. He then spent the evening talking, watching a movie and playing cards. g. At about 3.00am they decided to leave. He did not feel affected by alcohol. h. In relation to the offence, the applicant told police that he saw the amber light was going to turn red so he tried to 'pass' his vehicle through the amber light. He told police that he sped up and when he passed the light, he felt the vehicle was not in his control. He tried to brake but he hit the building. He said he applied full pressure on the foot brake and when that didn't work, he pulled the handbrake. i. He told police that prior to that night, he felt the vehicle had a problem with the brakes. j. He told police that he thought the speed limit on McFarlane Street was 50 or 60km/h. When he reached the restaurant 'HRT 2 HRT' he accelerated to about 60-65km/h in order to make the lights. He was probably travelling at 70km/h when he went through the intersection. His intention was to turn left into Treves Street. He thought he could negotiate the turn safely at the speed he was travelling. k. He said the light was still amber when he crossed into the T-intersection. I. He could not remember if there was any conversation in the car prior to the collision. He just remembers waking up at Westmead Hospital. He was discharged after a week in hospital. m. He told police that he had driven on McFarlane Street before, as it was right in front of his house. He drove on that road on a daily basis.
The applicant was charged on 27 July 2015.

[15]

Subjective matters

His Honour made the following findings. He found that the applicant was of good character, that his prospects of rehabilitation were good, that it was unlikely he would reoffend, that he was deeply remorseful and his remorse had been demonstrated by his care for his victims, that he pleaded guilty at the earliest opportunity and that he sustained serious injuries himself.
His Honour noted that each of the persons injured in the vehicle had written a letter to the court requesting leniency on his behalf. Those letters testified to his remorse and to his care for them after the accident and while they were in the process of recovering from their injuries. His Honour noted other references from the applicant's employers, from his landlord and from a friend, all of whom spoke glowingly of his personal characteristics.
His Honour noted a report from a consultant psychologist, Anne Lucas. She noted an unexceptional upbringing, and that the applicant had come to Australia to gain qualifications that would see him better placed for personal advancement when he returned to Pakistan. He suffered from homesickness followed by depression. A general practitioner provided him with Zoloft which he took intermittently due to its side effects which included drowsiness. Ms Lucas referred to the applicant's diagnosis of depression, noting that it predated the offences by some 12 months.
His Honour noted the account the applicant gave to Ms Lucas about the events leading up to the accident. His Honour said that, having regard to the objective facts relating to the applicant's speed and blood-alcohol reading, his Honour was unpersuaded by his unsworn statements concerning his alcohol consumption and the speed at which he was driving. The applicant did not give evidence at the sentence hearing. Nevertheless, his Honour said that the matters he had identified collectively presented a strong subjective case.
His Honour also had the benefit of a pre-sentence report where the account given by the applicant in his ERISP differed to some extent. He told the Community Corrections officer that on the night of the offence he consumed a few beers at a friend's house. He subsequently attended another residence where he consumed a further four beers as well as a glass of wine. He said also that he had taken a Zofolt tablet on the night of the offence. He told the Community Corrections officer that, while he was initially reluctant to drive, given the peer influence and the short distance from home, he made the decision to drive. The Community Corrections officer noted that the applicant made no attempt to minimise his actions or deflect blame.

[17]

Submissions

The applicant submitted that he was taking Zoloft for depression in a non-prescribed manner because it made him feel "woozy" and tired. The applicant drew attention to what the psychologist had said about the side effects which included drowsiness, dizziness, feeling lightheaded and having a dry mouth. He also drew attention to what Dr Perl had said, that either he was being provided with inadequate instructions in the use of Zoloft or was provided with incorrect instructions about them.
The applicant submitted that his depression had lowered his level of assertiveness, making it more difficult for him to resist the urgings of his friends to drive the vehicle on the night.
The applicant submitted that the psychologist provided evidence that Zoloft may have contributed to the applicant misjudging his level of intoxication and the speed at which he was traveling. The applicant submitted that inasmuch as the sentencing judge rejected the psychologist's opinion that the applicant may not have been reckless at the time he drove, his Honour failed to take into account the psychologist's expert opinion on his depression and the likely effect of Zoloft on his judgment. The applicant submitted that the sentencing judge did not refer to Dr Perl's report concerning the adverse effects of Zoloft on driving. It followed, the applicant submitted, that the sentencing judge must have considered that drug and its potential effects to be irrelevant to the issue of the applicant's judgment about his own impairment.
The Crown submitted that for the applicant to establish this ground of appeal, he must first show that the sentencing judge failed to take into account his major depressive disorder and the fact that he was taking medication for that disorder at the time. The Crown submitted that a fair reading of the sentencing remarks disclosed that his Honour did take those matters into account.
The Crown submitted that the submissions now made, namely, that the applicant's depressive disorder mitigated the his moral culpability because of his lowered assertiveness and because his judgment may have been impaired by the effects of Zoloft and alcohol, were not submissions that were made to the sentencing judge. Reference was made to what was said in Zreika v R (2012) 223 A Crim R 460.
The Crown submitted that the psychologist was not an expert in pharmacology and was not in a position to give expert evidence about the effect of Zoloft on the applicant's behaviour. The Crown submitted that the report of Dr Perl referred to studies showing that Zoloft was nearly free of adverse effects, and that it did not interact with alcohol to exacerbate the impairing effects of alcohol.

[18]

Determination

In his Remarks on Sentence, the sentencing judge said this in relation to the applicant's depression and use of Zoloft: A report by Anne Lucas, consultant psychologist, details what I consider to be an unexceptional upbringing. He has come to Australia to gain qualifications that will hopefully see him better placed for personal advancement when he returns to Pakistan. Unsurprisingly perhaps, as a result of language and cultural differences and difficulties, he experienced a bout of homesickness followed by depression. A general practitioner provided him with Zoloft which he took intermittently due to the side effects, including drowsiness. The diagnosis of depression is confirmed by Ms Lucas for the reasons detailed in her report at pp 39 to 54. The depression predates the offences by some 12 months approximately. The offender has provided Ms Lucas with a history of the events leading up to these offences. Having regard to the objective facts relating to his speed and blood alcohol reading I am unpersuaded by the unsworn history concerning his alcohol consumption and the speed at which he was driving. I note that he had taken Zoloft this evening. I note that the opinion of Judith Perl, as revealed in the agreed facts, is that Zoloft is not recommended to be used on an ad hoc basis. I note that Zoloft is said not to interact with alcohol to alter the impairing effects of alcohol, although the label on the box (tendered as part of exhibit 1) clearly states it may affect mental alertness and/or coordination and that driving a motor vehicle or operating machinery should be avoided if affected. Ms Lucas' report at para 74 to 76 suggests the possibility that the combination of alcohol and Zoloft may have impaired the offender's judgment when he got behind the wheel of the car and that he had not been simply reckless. In my view getting behind the wheel of a car when you are .13, having taken medication which past experience teaches you makes you drowsy, irrespective of alcohol consumption (and drowsiness is the reason why you take it infrequently) simply, approaches a high degree of recklessness. That recklessness is exacerbated by driving in the manner alleged with three passengers in a car. Put differently, I do not consider the analysis of Ms Lucas as mitigating the offender's conduct.
It is clear from that passage that his Honour did not fail to take into account the applicant's major depressive disorder. His Honour made specific reference to those parts of the psychologist's report that dealt with that diagnosis. His Honour also made detailed reference to what Dr Perl had said about Zoloft and set out what Dr Perl had said at the end of her report about studies that had been conducted on patients and volunteers with Zoloft and whether it interacted with alcohol and how it might impair driving ability.
The psychologist was not an expert in pharmacology and even if some regard could be had to her expressed views about Zoloft, those views could not prevail in the face of the evidence from the expert pharmacologist. There was, in any event, no evidence to suggest that drowsiness had contributed to the accident.
In relation to the effect of the depression on the applicant's assertiveness, the psychologist said this (at para 78): His depression is likely to have made his already low levels of assertiveness lower. Although Mr Ul-Hassan said he had felt Ok to drive, it was noted that he was driving his friend's car the request of his friends. If he was more assertive he may have declined.
That passage was not drawn specifically to his Honour's attention, nor was any submission made in relation to the applicant's lack of assertiveness flowing from his depression. The psychologist's statement that if he was more assertive he may have declined to drive can only be seen to be speculation on her part. A more likely explanation might be, as Dr Perl said, that a blood alcohol concentration of 0.130g/100ml might have produced disinhibition and risk-taking behaviour.
The sentencing judge took into account the applicant's major depressive disorder and took into account the likely effect of Zoloft on his behaviour at the time. No error is shown. This ground is not made out.

[26]

Submissions

The applicant submitted that serious injuries to an offender due to dangerous driving may be taken into account as extra curial punishment. The applicant submitted that while the sentencing judge included the applicant's serious injuries in the list of matters informing the strong subjective case, his Honour said nothing more about them.
His Honour's description of the applicant's injuries as "not insignificant but in my estimate … less than those sustained by his passengers", was submitted by the applicant to reveal error, in that his Honour did not take account of those injuries independent of such a comparison. Further, they were not taken into account as extra curial punishment going to mitigation.
The applicant submitted that his relationship with the victims might also give rise to extra curial punishment and that was so in offences of this type where the victims are not strangers. Reference was made to R v Howcher [2004] NSWCCA 179.
The applicant pointed to his deep remorse and shame at the consequences of his driving, and to his care and attention to each of the victims after the accident, as demonstrated in the letters from the victims.
The Crown accepted that injuries that are self-inflicted in the course of the commission of an offence are capable of being taken into account as extra curial punishment. The Crown submitted that whilst passing reference was made by the applicant's counsel to the applicant's injuries when addressing the sentencing judge, no submission was made that his injuries should be taken into account as extra-curial punishment.
The Crown submitted that, in any event, his Honour listed the applicant's serious injuries as part of the strong subjective case, and that those injuries were the only matter on that list not required to be taken into as a mitigating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In that way, his Honour recognised that the injuries were a mitigating factor on sentence in a way that can only be derived from its characterisation as extra curial punishment.
The Crown submitted that the ground was one that effectively asserted that insufficient or inadequate weight was given to the factor inasmuch as the complaint was that his Honour had failed to take proper account of the applicant's injuries.

[27]

Determination

There appeared to be two aspects to this ground of appeal. The first concerned the suffering of injury by the applicant. The second concerned the suffering of injury by the victims.
The sentencing judge said this in relation to the applicant: Mr Hassan himself, the offender, also sustained a number of injuries as a result of the collision, including a punctured lung, a fracture to his 10th rib, bilateral mandible facial fractures and a Type III odontoid fracture (cervical vertebrae No. 2). In relation to his facial fractures, he was seen by the Oral Maxillofacial Surgery team. The offender required operative fixation of these fractures on 24 March 2015 and was later placed on a soft food diet for six weeks. He was also treated with a cervical collar. Due to his facial injuries, the offender was unable to be interviewed for some time. On 2 June 2015, arrangements were made for the offender to attend the Merrylands' Police Station whereby he was cautioned and placed under arrest.
His Honour thereafter included in his list of matters going to make up his strong subjective case that the applicant had sustained serious injuries himself.
His Honour was not asked to take those injuries into account as amounting to extra curial punishment. In Zreika, Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said at [79]-[82] that this Court was a court of error, that there was a practical expectation that an offender's legal representative would make submissions to the sentencing judge at first instance by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand, and that this Court would not lightly entertain arguments that could have been put, but were not advanced on the plea.
In that way, it is difficult to see how error is shown in the present case when no finding was made in respect of a matter about which the sentencing judge was not asked to make such a finding.
As to the second aspect, after dealing with the applicant's subjective matters, the sentencing judge said: Each of the victims has written a letter to the Court requesting leniency on behalf of the offender. They testify to remorse and to his care for them after the accident and whilst they were in the process of recovering from the injuries. Other references from his employers and landlord and friend speak glowingly of his personal characteristics.
In Howcher, Hulme J (with whom Grove J and Smart AJ agreed) said at [16]: [16] Despite the reference in R v Whyte to the victim being a stranger and the extent of injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather is it a case that the offender's relationship with the victim may be some indication of extra-curial suffering flowing from the occurrence.
In the present matter, there was no evidence of suffering on the applicant's part in relation to the victims. There was evidence of what the applicant had done for the victims. That was taken into account by the sentencing judge. In the absence of any other evidence or of any submissions made to the sentencing judge, no error is shown.
Finally, a ground of appeal that complains of failure to take "proper account" of some matter is a complaint about the weight that was given to that matter. Questions of weight are matters for the first instance judge: R v Baker [2000] NSWCCA 85 at [11]; Vaiusu v R [2017] NSWCCA 71 at [29].
I would reject this ground.

[30]

Determination

The applicant had no criminal record. He had two matters on his driving record; one of them was exceeding the speed limit by not more than 10 km/h (camera detected) on 4 August 2015, and the other was driving without his headlight lit on 13 December 2014.
In submissions made on the applicant's behalf to the sentencing judge, the applicant's counsel said this: …[T]he other thing which I think is quite usual in these sort of cases is that he has no criminal convictions, his traffic record is minimal. I understand your Honour might have raised some queries in relation to this traffic record. He's had an offence that was committed in April 2015 and that can be explained as it wasn't committed by the offender himself as he was in a state where he just got out released out of hospital, he had these disabilities it was actually committed by his flatmate that was driving the car… . HIS HONOUR: There's a wall [scil. world] of difference between exceeding the speed limit by not more than ten kilometres an hour and exceeding the speed limit by 70 kilometres an hour - MILANOVIC: Certainly. HIS HONOUR: -- a world of difference. I'm not going to take a view of your client's driving record which is adverse to him.
Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act requires the fact that an offender does not have any record or any significant record of previous convictions to be taken into account as a mitigating factor. Although his Honour listed other mitigating factors, including that he was of good character, he did not say anything about the applicant's lack of a criminal record or that he effectively only had one minor driving matter on his driving record. The Crown faintly suggested that good character involved somebody not having a prior criminal record but, nevertheless, accepted that his Honour made no express reference to his lack of convictions.
This was an error by oversight on his Honour's part. It is no answer to point, as the Crown did, to the exchange set out above at [104]. The Remarks on sentence were delivered almost five weeks after the sentencing hearing. It cannot be assumed that his Honour remembered that exchange where the Remarks were silent about the matter.
This ground is made out and requires the Court to resentence the applicant.

[32]

Submissions

The applicant submitted that the offences involved one course of conduct, that is, dangerous driving, in which three separate persons, apart from the applicant, were injured. In those circumstances, he submitted that there should be a significant concurrency of either the indicative sentences or the individual sentences imposed. The applicant submitted that that would result in a lesser sentence than the aggregate sentence imposed by the sentencing judge.
The applicant submitted that the indicative sentences were, in any event, manifestly unreasonable because his Honour found that the sentences were in the mid-range of objective seriousness and because of the applicant's strong subjective case. The applicant submitted, in any event, that the objective seriousness should be assessed as being at the lower end of the mid-range.
The applicant also relied on a table of comparable cases, accepting the limitations and qualifications that must necessarily be applied to those, which he submitted showed that there were only three cases since the guideline judgment in R v Whyte where aggregate sentences longer than in the present case had been imposed. The applicant submitted that one of those cases, R v Wright [2013] NSWCCA 82 involved one victim dying and the second having serious head, leg and pelvic injuries. The other two cases were Priovolidis v R [2016] NSWCCA 201 and Vale v R [2016] NSWCCA 154 where the applicant submitted much higher criminal culpability was involved than in the present case.
The Crown pointed to the following matters to suggest that no lesser sentence should be imposed: (a) The offence involved the serious aggravating feature of exceeding the speed limit by more than 70kph with a blood alcohol reading of at least 0.130; (b) The applicant was aware of the effect of Zoloft on him and yet drove; (c) Each of the victims suffered serious injuries; (d) The manner in which the applicant drove amounted to abandonment of responsibility; (e) The offences were comfortably within the mid-range of objective seriousness; (f) Each of the offences carried a maximum penalty of 11 years imprisonment; (g) The guideline judgment in Whyte established a guideline tariff of not less than two years imprisonment for an offence against s 52A(3) where, as here, the moral culpability was assessed as high. The guideline incorporates an allowance for the plea of guilty. Here the applicant was to be sentenced for the aggravated offence against s 52A(4) so that an appropriate increment was required; (h) The indicative sentences appropriately reflected the extent of the injuries suffered by the victims with the indicative sentence for the offence involving Mr Manzoor being six months longer than the others; (i) The aggregate sentence is shown to have incorporated partial accumulation of the indicative sentences; and (j) The adjustment for special circumstances reduced the aggregate non-parole period to 50% and was in that way generous to the applicant.
The Crown submitted that the comparable cases showed that the sentence imposed by the sentencing judge comfortably fitted within the range of appropriate sentences.

[33]

Determination

Although the applicant relied on no additional evidence in the event of resentence, leave was sought and granted at the end of the hearing for evidence to be filed in relation to the recovery of each of the victims from their injuries. The Crown did not oppose that evidence.
Each of the victims has sworn an affidavit saying that he is fully recovered from his injuries and does not suffer ongoing pain or discomfort. The only matter outstanding relates to Mr Ijaz who is due to consult with his orthopaedic surgeon with a view to having the screws in his leg removed. He says that he will do that if so advised by the specialist.
In my opinion the manner of driving of the vehicle and the surrounding facts clearly indicate that the moral culpability of the offending was high and that the offences sit within the mid-range of objective seriousness.
The subjective factors are strongly favourable to the applicant. He is of good character, he has no prior convictions, and his traffic record is such that it may be disregarded. His prospects of rehabilitation are good, he is unlikely to reoffend. He is deeply remorseful and that has been demonstrated by his care for the victims even before he was charged with the offences. He pleaded guilty at the earliest opportunity and he sustained serious injuries himself.
The serious injuries suffered by the victims who were and are friends of the applicant, his considerable care for them including payments of money on their behalf and assistance in obtaining employment after they had recovered from their injuries, should be regarded as some indication of extra-curial suffering flowing from the offences.
The applicant is entitled to a 25% discount for his early pleas. I consider that a finding of special circumstances should be made bearing in mind that it is his first time in custody, that custody will be spent some considerable distance from his family, and a custodial sentence will be more difficult by reason of his imperfect English and different cultural background. In addition, he suffers from depression that predated the offending, and that will make the custodial experience more severe.
Although three separate offences have been charged in addition to the PCA offence on the s 166 certificate, all offences arose from the same course of conduct. The guideline judgment in Whyte suggests that more than one victim would require an appropriate increment if one offence was charged. That points to a degree of notional accumulation where an aggregate sentence is to be imposed.
I consider that an aggregate sentence should be imposed in circumstances where all three offences of dangerous driving and the PCA offence arose from the same conduct. There must be significant notional concurrency whilst not overlooking that there were three separate victims.
I would propose a sentence of five years with a non-parole period of two years and six months. There is little to distinguish amongst the three victims in terms of the severity of their injuries, the number of operations needed, their time in hospital and their recovery from their injuries. I would propose the following indicative sentences: Sequence 2 (Mr Manzoor): 2 years and 6 months Sequence 3 (Mr Ijaz): 2 years and 6 months Sequence 4 (Mr Aslam): 2 years and 6 months Sequence 1 (s 166 certificate): 4 months

Ul-Hassan v R

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