Regina v Richmond [2000] NSWCCA 173

New South Wales Court of Criminal Appeal

CITATION : Regina v Richmond [2000] NSWCCA 173 FILE NUMBER(S) : CCA 60020 of 2000 HEARING DATE(S) : 3 May 2000 JUDGMENT DATE : 3 May 2000

PARTIES : Regina v Paul Stephen Richmond JUDGMENT OF : Dunford J at 1, 26, 28; Foster AJA at 27; Smart AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0857 LOWER COURT JUDICIAL Williams DCJ OFFICER :

C K Maxwell QC (Crown/Appellant) COUNSEL : P G Hogan (Respondent) S E O'Connor (Crown/Appellant) SOLICITORS : Baird & Associates (Respondent) CATCHWORDS : Criminal law - sentencing - nature of offence under s315 of the Crimes Act. LEGISLATION CITED : Crimes Act, 1900; Motor Traffic Act, 1909; Road Transport (General) Act. DECISION : Crown appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

CCA 60020/00

DUNFORD J FOSTER AJA SMART AJ Wednesday 3 May 2000 REGINA v Paul Stephen RICHMOND JUDGMENT:

1 DUNFORD J: In this matter I will ask Smart AJ to deliver the first judgment. 2 SMART AJ The Crown appeals against the alleged inadequacy of a sentence of 300 hours of community service in respect of the offence that Mr Richmond falsely stated that he was the driver of BMW motor vehicle number 825-CNZ (Qld) when it was involved in a collision with Toyota motor vehicle number TV-1976 which resulted in the death of Lewis Ryu with intent to hinder police investigations into the identity of the driver of motor vehicle number 825-CNZ for the offence of dangerous driving causing death. This offence under s 315 of the Crimes Act, 1900 carries a maximum penalty of seven years imprisonment. 3 The Crown case was that on 2 March 1997 Mr Richmond was a passenger in the BMW which collided with a Toyota minibus after the BMW went through a red traffic lights on New South Head Road at the corner of McLaughlin Street, travelling in excess of 60-70 kilometres per hour. Mr Ryu was killed and another occupant of the minibus was seriously injured. 4 The driver was seen to get out of the BMW, walk around the vehicle and look in at the front passenger side from outside the vehicle and leave the scene. Mr Richmond was removed by police officers, ambulance officers and paramedics from the front passenger side area. He was wedged in. He was taken to hospital suffering from fractured ribs and bruising. He was treated in hospital for five days. 5 Mr Richmond stated at the scene that he was the driver. He continued to assert that during an ERISP interview on 21 March 1997. He maintained that he had a green light immediately prior to the collision and that he was driving very slowly. 6 On 30 August 1997 when formally requested by the police to supply the name and details of the driver he replied that he did not commit an offence and that he was the driver. The police did not accept that Mr Richmond was the driver, having compelling evidence that he was not. 7 Mr Richmond was charged and subsequently committed for trial in November 1998, some four witnesses having been cross-examined. On 25 February 1999 he pleaded guilty to the subject offence. The Crown had apparently contemplated laying a more serious charge. Thereafter the sentencing hearing was adjourned from time to time for reasons not before this Court. 8 On 6 September 1999 Mr Richmond's solicitor forwarded to the DPP's office a facsimile copy of an unsigned draft statement from Mr Richmond wherein he nominated Louise Hall as the driver of the vehicle. The police experienced some difficulty in contacting Mr Richmond whom they claimed, did not return telephone calls. Eventually, on 29 September 1999 Mr Richmond supplied a telephone number and an address in London for Miss Louise Hall. The police made further inquiries. 9 In November 1999 the police had received information that Louise Hall was believed to be residing in Perth, Western Australia. On 21 November 1999 the police sought to contact Mr Richmond. On the afternoon of 22 November 1999 he attended Kingsgrove police station and was interviewed by the police. 10 In his evidence before the sentencing judge Mr Richmond said that he was prepared to give evidence on any occasion if the DPP required him to do so. He said that at some distance Louise Hall might appear to be a male, given the slimness of her build. He could not understand why the police had trouble contacting him as they had his mobile telephone number. 11 It seems that on the morning of the accident Mr Richmond left his home and his wife to go to a nightclub/bar he ran at Kings Cross. He picked up Ms Hall on the way. She was an English tourist with whom he had been having an affair for the previous ten days. He claimed that he did not want his wife to find out about it; their marriage was rocky. 12 For some months prior to the accident Mr Richmond had been depressed as a result of an acrimonious parting with his father and sister arising out of difficulties in the conduct of the family business in Cairns. He claimed that he was subjected to unjust criticism from family members. Relations were such that he withdrew from the family business at a large personal and financial cost to himself and came to Sydney with his wife and two young children to start afresh. The business in Sydney required a great deal of his personal attention and time. 13 The judge found, and it was open to him to do so, that when asked by the police about the accident Mr Richmond was still suffering from the after-effects of the injury and his depression which had deepened noticeably. The judge seemed to accept that Mr Richmond chose not to tell the truth about who was the driver of the BMW in order to try and prevent what would probably have been a catastrophic end to his marriage and his business. 14 Mr Richmond said that he was unable to work after the accident for many months. He could not settle down and apply himself. His wife stepped in and shouldered a heavy load. Notwithstanding this and because of his condition he lost the business with consequential financial loss. The judge observed that the decisions made by Mr Richmond not to supply accurate information were reprehensible. 15 It is understandable, but not justifiable a man might lie to hide an affair from his wife if he thought that would completely end his marriage and he did not want that to happen, or even to protect his lover. Mr Richmond must have been in a desperate and disordered state. He took the risk of being convicted of a serious driving offence and being sent to gaol. In one sense this was to lie against his own interests. 16 Under s 315 of the Crimes Act 1900 the offence of Mr Richmond lay in the lie he told, not in failing to disclose the name of the driver and her address. Section 315(3) provides that it is not an offence against this section merely to refuse or to fail to divulge information. Of course, it is an offence not to supply the name and address of the driver to the police on request. This was the position both under the Motor Traffic Act 1909 and under its successor, the Road Transport (General) Act. 17 As earlier mentioned, the police did not believe Mr Richmond's assertion that he was the driver. The police lost time and incurred expense in obtaining an expert report and in making investigations. It should not be assumed that at any stage Miss Hall would or would not agree to being interviewed. This is not known. 18 The judge recognised that the delay would make it more difficult for the Crown to prove its case. The judge recorded that Mr Richmond and his wife had separated in November 1998 but that there was a real possibility of their marriage being rescued and revived. 19 Mr Richmond was born on 16 November 1960. He has had but one previous conviction; namely, driving under the influence in 1982. That can safely be disregarded. For some time, prior to the date of sentencing Mr Richmond had been employed in a responsible position and was doing well. He was building up his employer's business and earning a good salary. He often worked seven days per week. 20 The judge was reluctant to take a course which would result in Mr Richmond losing his job when he was rehabilitating himself so well after being injured, suffering depression (for which he had been on medication) and losing his business. Family considerations were not overlooked. 21 A submission was put to the Court on behalf of Mr Richmond that the Crown could not now urge that a custodial sentence be imposed because it had not sought that at the hearing before the sentencing judge. When one has regard to the remarks of the solicitor for the Crown at the sentencing hearing and the judge's remarks at page 8 of his judgment, it is apparent that the question of a custodial sentence was at least in contemplation. 22 The offence was serious but it had unusual aspects and there were strong subjective features. It is over five months since Mr Richmond was sentenced and over three years since the offence. Considerations of double jeopardy are important when there has already been a large measure of recovery and no custodial sentence has been imposed. 23 This Court has the advantage of having Mr Richmond's situation brought up to date. That indicates that he now has different employment and that he is, again, in receipt of a substantial income. Importantly, he, his wife and the children have become reconciled and are living together at Bondi. 24 While the police were subjected to additional expense and there was probably some delay in the investigation, it could not be said that Mr Richmond's criminality extended to other than making a false statement which was not accepted. 25 In the whole, of the circumstances, I am of the view that the Crown appeal should be dismissed. 26 DUNFORD J: I agree, 27 FOSTER AJA: I likewise agree. 28 DUNFORD J: The order of the Court will, therefore be that the Crown appeal is dismissed.