Vale v R

Vale v R - [2016] NSWCCA 154 - NSWCCA 2016 case summary — Zoe

Judgment

HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty that on 4 August 2014 he committed the following offences: 1. Aggravated (escape police pursuit) dangerous driving occasioning grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 11 years. 2. Engage in police pursuit, contrary to s 51B(1) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 3 years.
Two matters were included on a Form 1 - possess prohibited drug for which the maximum penalty is imprisonment for 2 years and drive motor vehicle with an illicit drug present in blood for which the maximum penalty is a fine of $1,100 and a period of licence disqualification.
It was common ground that the applicant pleaded guilty at the earliest opportunity and accordingly was entitled to a discount of 25%.
On 15 April 2015 the applicant was sentenced by Toner SC DCJ as follows: 1. Aggravated dangerous driving - imprisonment for 6 years to date from 4 August 2014 and to expire 3 August 2020 with a non-parole period of 3 years to expire 3 August 2017. 2. Police pursuit - imprisonment for a fixed term of 3 years to commence 4 August 2014 and expire 3 August 2017. The applicant was disqualified from driving for a period of 5 years commencing 15 April 2015. Factual background
The victim AT was the cousin of the applicant and was aged 17 months at the time of the offence. On 4 August 2014 the applicant borrowed his sister's car, a 2002 Holden Commodore station wagon. At the time he was supposed to be babysitting the victim. He placed the victim in the front passenger seat, secured by a seatbelt, but did not place him in an approved child restraint/baby capsule as is required for children under four years of age.
Shortly before midday, police were patrolling West Kempsey when they observed the applicant driving at a speed in excess of the speed limit. As the police gave chase, the applicant drove his vehicle at speed down a number of residential streets causing police to lose sight of him for short periods of time. The applicant did not stop or slow but accelerated away from police reaching speeds of approximately 155 km/h. The speed limit applicable was 80 km/h.
After a short time, the surface of the road changed from bitumen to dirt and police terminated the chase due to safety concerns. The applicant continued to accelerate away from police causing clouds of dust which limited visibility. Police observed the applicant's vehicle travel over a crest on the incorrect side of the road and then heard a crash.
Police drove in the direction in which the applicant was travelling and saw tyre marks on the dirt road which suggested that he had lost control of the vehicle and that it had rotated sideways into a large gum tree before ricocheting and landing on the passenger side trapping the victim upside down. The applicant was thrown from the vehicle and was found a short distance from it in a dazed state and suffering various injuries. He was observed by the police to be pale in appearance, with drooping eyelids, enlarged pupils and incoherent and slurred speech. Police removed the victim from the wreckage and rendered first aid until ambulance personnel arrived.
Both the applicant and the victim were transferred to Port Macquarie Base Hospital for treatment. The force of the impact was such that the chassis was twisted and damaged beyond repair. The vehicle's engine was completely dislodged in the impact and the spare tyre, ordinarily stored in a recess in the boot, was dislodged and found more than 30 metres into the bush.
The vehicle was subsequently searched and police located an orange coloured purse containing two plastic resealable bags of a white crystalline substance. Police located a wallet containing cards in the name of the applicant, as well as a small plastic resealable bag containing a white substance. That substance was analysed and found to be .01g of methylamphetamine.
The victim was transferred by air to Sydney Children's Hospital due to the seriousness of his injuries. He sustained a fractured right clavicle (collarbone) and a haematoma (bruising) to his abdomen. Such an injury was serious for a child of the victim's age, and particularly because the victim had suffered liver problems from birth.
The victim was in hospital for two days before being discharged.
A victim impact statement indicated that the accident and the injuries suffered had a substantial impact on the child and the way he interacted with others. The long term effect on the victim's swollen liver was not known.
The applicant suffered a number of injuries and was transferred to John Hunter Hospital in Newcastle for treatment, and then to Prince of Wales Hospital at Randwick. His injuries included the following: 1. Spinal fractures. 2. Collapsed lung. 3. Multiple grazes and lacerations. 4. Facial injury caused by his teeth being forced into the roof of his mouth. 5. Fractures to both shoulder blades. There was no evidence of any continuing disability.
As part of the protocols following serious motor vehicle accidents, a sample of the applicant's urine was sent to FASS for analysis. That analysis revealed the presence of the following substances: (a) Amphetamine (b) Methylamphetamine (c) Morphine (d) Methadone (e) Delta-9-THC acid
The opinion of a forensic pharmacologist was that the presence of morphine could be due to treatment by ambulance/doctors after the accident. In regard to the amphetamine, he thought that it was usually present as a metabolite of methylamphetamine but that it might also have been present in a substance taken by the applicant. Lastly, he noted that THC acid was rarely detectable in urine samples due to its low water solubility meaning that persons can have a high presence in a blood sample and still not have the THC register in their urine.
The applicant was interviewed by police while in the hospital wing of Long Bay Gaol. He said that he had no memory of the accident. He denied ownership of the substance found in the orange purse but admitted ownership of the methylamphetamine located in his wallet. Sentence proceedings
The applicant gave evidence on sentence. In that evidence he said: 1. That he was given up by his mother when he was three weeks old because she was an active alcoholic. He was raised by the Marshall family in Mirriwinni Gardens at an Aboriginal boarding school. He would see his biological family during the holidays. 2. When he went to his mother's house on holidays he was molested by a family member. 3. He was paroled to live with his mother in Green Hills where this molestation happened. As a result he was not sleeping and turned to using ice. Marijuana had been part of his life since he was a teenager. He sometimes used speed. 4. He was in an induced coma for 4½ to 5 weeks after the accident. 5. There was no need to be frightened of the police. He did not know there were warrants out for his arrest. He had taken drugs and that would have made him not think straight. 6. He did not remember the day. 7. He was sorry for his nephew. 8. He was in protective custody as a result of these offences. 9. He had spent most of his adult life in gaol. 10. He wanted to do drug and alcohol counselling to turn his life around. He had come to this decision because he had almost lost his life in the accident. 11. He had lost a lot of his Aboriginal family because of the injury to his nephew. He did not have them to fall back on, to drink with and bludge with. That might actually be a blessing for him. 12. He had been given rehabilitation chances by Corrective Services before but they had not been successful. 13. He had been babysitting the victim for some months. He did not know that he was going to be chased by the police. He did not remember the victim not being properly restrained. He had just dropped his nieces and nephews off at school. 14. He agreed that it was a very foolish thing to do.
His Honour regarded the fact that the applicant was on parole at the time that he committed the offences as an important aggravating feature. His Honour also noted that he had to take into account the two matters on the Form 1 when sentencing for the aggravated dangerous driving offence.
Because the police pursuit count was so closely intertwined with the aggravated dangerous driving count, his Honour concluded that the principle of totality required that the sentence imposed for that count should be wholly concurrent with that imposed for the aggravated dangerous driving count.
His Honour commented that the applicant had one of the worst criminal records which he had seen for some time and that the applicant had spent most of his adult life in prison. The explanation for the offending in the opinion of his Honour was the applicant's undoubted drug addiction.
When considering the objective seriousness of the offending and the applicant's moral culpability, his Honour said: "This crime was terrible. His victim was a 17 month old baby, who he was supposed to be babysitting, who was more or less unrestrained in his car. The child was in the front seat of the car in a seatbelt, which would have been next to useless, given the size of the baby. The police pursuit which was initiated when they spotted him driving at high speed was terminated for good reason, but they clocked him travelling at 155 kilometres an hour in an 80 kilometre zone. Almost inevitably there was an accident and a catastrophic one. He hit a tree and I have seen the photographs of the car after that collision and it is amazing that anybody survived the accident. …" (Sentence judgment, 5.7)
By way of mitigation, his Honour had regard to the serious injuries suffered by the applicant as constituting extra curial punishment and used that as a basis for a finding of special circumstances. His Honour also had regard to the applicant's family background and specifically referred to Bugmy v The Queen [2013] HCA 37; 249 CLR 571. His Honour said: "As the High Court said in Bugmy, "one's childhood lives with one for the rest of your life" and it will with this man. Even though for a significant part of his childhood and adolescence he lived in a loving and protective environment, what preceded that was appalling, and I accept his evidence in that regard. That also plays not only upon the head sentence but also upon the non-parole period to be fixed in this case." (Sentence judgment, 6.7)
Despite those mitigating circumstances, his Honour determined that a significant sentence had to be imposed upon the applicant because of the seriousness of the crime. In doing so, his Honour had regard to the maximum sentence of 11 years imprisonment. Because the applicant had been in custody since 4 August 2014, his Honour commenced the sentences from that date, even though while in custody the applicant had been sentenced for unrelated matters in the District Court and those sentences had also commenced from that date. The appeal
The applicant relied upon the following grounds of appeal: Ground 1 - The head sentence imposed, being 6 years, does not adequately reflect allowances the court said it would make for the principles applicable from Bugmy and for extra curial punishment. Ground 2 - The sentence imposed did not adequately reflect that the injury occurring on the aggravated dangerous driving matter was at the lower end of seriousness. Ground 3 - The sentences imposed were manifestly excessive.
When the matter came before the Court for hearing, counsel for the applicant advised that the applicant was relying only upon Ground 3 with Grounds 1 and 2 providing particulars of the matters relied upon in support of Ground 3.
The applicant submitted that when one took into account the 25% discount for an early plea, the starting point for the head sentence must have been 8 years. He submitted that when one also took into account the relatively low level of injury suffered by the victim, the serious injuries giving rise to extra curial punishment and the Bugmy considerations, a starting point for the head sentence of 8 years was clearly excessive. The applicant submitted that this was so despite the significant reduction in the ratio between the non-parole period of 3 years and the head sentence of 6 years. The applicant submitted that while the driving represented a clear abandonment of responsibility, it was by no means an extreme example of such conduct.
The applicant submitted that a starting point of 8 years for the head sentence was excessive and did not properly reflect the criminality associated with the offending. He submitted that the pursuit was not lengthy and although dangerous, it was not outstandingly so. He submitted that although grievous bodily harm to the victim was made out, this element was at the lowest point on a range of seriousness and it was unlikely that the victim would suffer long term consequences. The applicant submitted that when one added the fact of the applicant's childhood background and applied the Bugmy approach, the head sentence was clearly excessive.
The Court was taken to six cases involving aggravated dangerous driving occasioning grievous bodily harm which were said to show more serious criminality and moral culpability than that which was before the Court. The applicant submitted that in each case the sentence, in particular the head sentence, was less than that imposed in this case. These cases were: R v Khan [2000] NSWCCA 454 (Wood CJ at CL and Whealy J) - substantial speed, ran off road, victim lost her lower left leg, high blood alcohol concentration of .182. Sentence of 4 years and 6 months with a non-parole period of 3 years and 4 months imposed. R v Pates [2001] NSWCCA 142 (O'Keefe and Smart JJ) - driving stolen vehicle during a police chase. Collided with another vehicle forcing driver into a power pole and trapping him. That victim suffered serious fractures. Sentence 4 years and 6 months with a non-parole period of 3 years. R v Kaliti [2001] NSWCCA 268 (Wood CJ at CL and Howie J) - matter of aggravation was alcohol - .2. Serious injuries including amputation of one leg. Sentence of 5 years with a non-parole period of 3 years and 9 months. Elyard v Regina [2006] NSWCCA 43 (Basten JA, Howie and Hall JJ) - Elyard ran a red light at an intersection and collided with a pedestrian. Serious injuries to victim. Drugs were found in a blood sample and a pharmacologist opined that the drugs would have affected the driving. Sentence of 5 years with a non-parole period of 2 years and 6 months. The court opined that a sentence of between 6 and 7 years would have been justified and so the offender's appeal was dismissed despite error having been identified. R v Kyle [2014] NSWCCA 300 (Macfarlan JA, Hidden and Adams JJ) - high blood alcohol reading (.206) crossed centre line in road and collided with motorcycle. Serious injuries suffered by victim. Original sentence of 3 years with a non-parole period of 1 year and 9 months increased to 4 years and 6 months with a non-parole period of 2 years and 9 months. R v Kopacka [2005] NSWCCA 83 (Wood CJ at CL, Hislop and Johnson JJ) - unsafe overtaking manoeuvre. Two passengers seriously injured. High blood alcohol reading (.281). Sentence 4½ years with a non-parole period of 2½ years.
In response the Crown pointed out that three of the six cases relied upon by the applicant comprised a bench of two judges and that only one reflected recent sentencing trends (R v Kyle). The Crown also added some further information concerning the factual background of those cases. In Khan it was found that the offender was a person of good character. In R v Kaliti there was no evidence of bad driving, rather it was the presence of a high alcohol reading which gave rise to the moral culpability. In Kyle the driver was young and was a person of good character.
The Crown submitted that while it was necessary for his Honour to take into account the applicant's serious injuries as a relevant factor, how much weight a sentencing judge should give to extra curial punishment would depend very much on the circumstances of the case. There may well be many cases (such as this where the applicant himself was the author of his injuries) where extra judicial punishment attracts little or no significant weight.
The Crown submitted that it was solely the applicant's conduct by engaging in a police pursuit and driving at dangerous speed onto an unsealed road that resulted in loss of control of the vehicle, which contributed to the magnitude of the injuries suffered by him. The Crown submitted that despite the seriousness of the injuries, it was clear from the Agreed Facts that there was no continuing disability or any injury causing a more burdensome experience of custody for him. The Crown submitted that in the circumstances, the weight to be given to the finding of extra curial punishment on the basis of the applicant's injuries should not have been great.
The Crown submitted that in relation to the Bugmy issues, there was no suggestion of any mistreatment or disadvantage while he was residing with the Marshall family. The applicant's unfortunate childhood issues related to time spent with his mother during holidays. In any event, the Crown noted that his Honour had appropriately acknowledged the effect of this aspect of his childhood in line with the High Court's observations in Bugmy. In this case, however, the evidence was of a relatively modest level of disadvantage by the applicant, particularly by comparison with others from an Aboriginal background who have come before this Court.
The Crown submitted that as was recognised in Bugmy and Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 while childhood deprivation and disadvantage is recognised, it does not automatically nor in every case result in a degree of a mitigation of sentence. The Crown submitted that in Bugmy the majority referred to R v Engert (1995) 84 A Crim R 67 at 68 and noted that in a particular case a feature that might otherwise lessen the importance of general deterrence might at the same time increase the importance of personal deterrence of the offender.
The Crown also relied upon the observation of Johnson J in Jinnette v R [2012] NSWCCA 217 that: "104 It is the case that the Applicant has had a terrible life involving a dysfunctional family and constant negative events involving abuse and exploitation of him by others. There is no way that his life can be recalled and a more positive life substituted for it. All reasonable persons will have a considerable measure of sympathy for him. 105 At the same time, reasonable members of the community will observe what the Applicant has done consistently when at large in the community, offending in different ways including placing members of the community at risk and harming them. There is a history of failed conditional liberty and breaches of parole. The criminal justice system has no ready solution for cases such as this given the relatively blunt instruments available to it. 106 The protection of the community remains a most important consideration in a case such as this, involving incapacitation through incarceration of the Applicant, and also the protection of the community in taking reasonable steps to provide an opportunity for intensive supervision when the Applicant comes to be considered for release on parole."
The Crown submitted that his Honour was well aware of the relevant factors and took them into account in accordance with a proper application of the authority. Although his Honour noted that for a significant part of his childhood and adolescence, the applicant lived in a loving and protective environment, he accepted that part of that background involved abuse such as would impact on sentence. Consideration
As was recently stated by R A Hulme J in Alrubae v R [2016] NSWCCA 142: "28 The principles concerned with the determination of a ground of appeal asserting that a sentence is manifestly excessive are not in issue. They were helpfully referred to in the submissions of both parties. 29 Key aspects of the principles are that appellate intervention is not justified simply because the result arrived at in the court below is markedly different from other sentences imposed in other cases. It is not to the point that this Court might have exercised the sentencing discretion differently. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. It is for the applicant to establish that the sentence was unreasonable or plainly unjust. See, for example, Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370 - 371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]."
What the applicant needed to demonstrate was that the length of the sentence was such that it might be inferred that there was some misapplication of principle in his sentencing, even though where and how was not apparent from the statement of the sentencing judge's reasons. The applicant needed to establish that the sentence was unreasonable or plainly unjust (House v R [1936] HCA 40; 55 CLR 499 at 505; Dinsdale v The Queen at [6]). The ultimate fetter upon the sentencing discretion is that the non-parole period must reflect the objective gravity of the applicant's conduct. The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment including rehabilitation, the seriousness of the offence and the offender's subjective circumstances.
The cases to which the Court was taken by the applicant, not surprisingly, turned on their own facts. None of those factual backgrounds bore any close similarity to the facts of this matter. On the contrary, the level of criminality and moral culpability on the part of the applicant in this case was significantly higher than in any of the cases relied upon by him.
He was not a person of good character. He was not young. He was on parole. The driving involved a complete abandonment of responsibility, i.e. very significant speed (155 km/h) in dangerous circumstances (a dirt road and a police pursuit) at a time when the applicant was affected by illegal drugs. The extent of that affectation is, of course, not known but it is not without significance that in his evidence the applicant agreed that the presence of drugs in his system would have prevented him from thinking clearly and that at the time he was "doped up".
The victim, a 17 months old baby, was helpless and entirely dependent upon the applicant. Far from providing the care to which the victim was entitled, the applicant inadequately restrained him in the front passenger seat (a notorious position of danger) and proceeded while drug-affected to drive in the manner previously described. While the injuries ultimately suffered by the victim were not as serious as they might have been, the potential for a catastrophic outcome of either death or severe injury was high. The breach of trust on the part of the applicant in this regard was of a high level. There was no evidence of any remorse on the applicant's part.
In those circumstances, apart from a scenario where catastrophic injuries were caused to the victim, it is difficult to imagine an example of this offence which involved a higher level of criminality and moral culpability. When one assesses those matters against the aggravating features identified in the guideline judgments of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 that conclusion is confirmed. Apart from the early plea of guilty, none of the mitigating factors there analysed were present.
While it is true that the victim did not suffer catastrophic injuries, this was not due to any conduct on the part of the applicant. The potential for such an outcome was very high and it was only by sheer good fortune that the victim did not suffer more significant injuries. Even so the injuries suffered by the victim were serious given his age and given the fact of his pre-existing liver problem and the effect on it of trauma. The victim was at risk from the moment that the applicant commenced driving, because of the completely inadequate means of restraint which was used and the placing of him in the front passenger seat. The facts of this case were clearly more serious than those envisaged in either of the guideline judgments.
It is not suggested by the applicant that his Honour failed to take into account the fact of extra curial punishment or the effect of childhood hardship in accordance with the guidance provided in Bugmy. The complaint is that these matters were not "adequately" taken into account. Such a complaint acknowledges that his Honour did take those matters into account but challenges his Honour's exercise of the sentencing discretion. It has not been shown that his discretion miscarried so as to constitute error.
It cannot be said that the sentence imposed upon the applicant was unreasonable or plainly unjust, taking into account the following considerations. 1. His Honour determined that the sentences for each offence should be wholly concurrent. 2. The commencement date of the sentences meant that the sentences were concurrent with sentences being served for the balance of parole (10.8.14 - 21.11.14. The unrelated offences in respect of which sentences commenced on 10 August 2014 were as follows: 1. Larceny - 12 months with 9 months NPP. 2. GIC - 6 months fixed term. 3. Larceny - 12 months with 8 months NPP. 1. The applicant's significant criminal record, demonstrating as it did a continuing attitude of disobedience of the law meant that retribution, deterrence and the protection of society warranted a more severe penalty. 2. The offences were committed while on conditional liberty (parole). 3. The two matters on a Form 1. 4. The issues specifically relating to objective seriousness and moral culpability already referred to. 5. The very generous allowance made for special circumstances so as to produce a non-parole period which was 50% of the head sentence.
Taking all those matters into account, the sentence imposed although stern, particularly insofar as the head sentence is concerned, was within the legitimate exercise of his Honour's sentencing discretion. The ground of appeal raising manifest excess has not been made out. Conclusion
The orders which I propose are as follows: 1. Leave to appeal granted. 2. The appeal is dismissed.
ROTHMAN J: I have had the advantage of reading the draft reasons for judgment of the Chief Judge at Common Law. I agree with Hoeben CJ at CL, both as to the proposed order and his Honour's reasons.
R A HULME J: I agree with Hoeben CJ at CL.

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