Regina v Khatter [2000] NSWCCA 32

New South Wales Court of Criminal Appeal

CITATION : Regina v Khatter [2000] NSWCCA 32 FILE NUMBER(S) : CCA 60433/99 HEARING DATE(S) : 1/2/2000 JUDGMENT DATE : 29 February 2000

PARTIES : Crown - Appellant Naresh KHATTER - Respondent JUDGMENT OF : Sully J at 1; Simpson J at 13; Carruthers AJ at 39

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/2200 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER :

COUNSEL : T L Budden SC - Crown Appellant P Kintominas - Respondent SOLICITORS : S E O'Connor - Crown Appellant Doherty & Partners - Respndent

LEGISLATION CITED : Crimes Act 1900 Sentencing Act 1989 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Howland [1999] NSWCCA 10; 104 A Crim R 273 R v Edwards (1996) 90 A Crim R 510 DECISION : Crown appeal against sentence allowed; Sentence quashed; Respondent re-sentenced to imprisonment for a fixed term of 3 months to date from today's date.

IN THE COURT OF CRIMINAL APPEAL

60433/99

SULLY J SIMPSON J CARRUTHERS AJ

Tuesday 29 February 2000

REGINA v Naresh KHATTER

JUDGMENT

1 SULLY J: I have had the advantage of reading in draft the judgment of Simpson J. I regret that I am unable to agree with her Honour that the present Crown appeal should be dismissed. 2 The relevant objective facts are canvassed in detail in her Honour's judgment. I adopt gratefully what her Honour says in that regard. I would add to her Honour's canvass a brief, but I think significant, extract from the evidence given by the respondent at the sentence hearing. The relevant passage, given during the respondent's evidence in chief, is as follows: "Q. Had you intended to drive at all when you were consuming the alcohol? A. Yep, basically in the morning I have to start at 6 o'clock, I said "I don't want to go there" -- Q. Yes, you were intending to drive the next morning -- A. Yeah -- Q. -- to go to work but had you intended to drive that night - when you were drinking did you know then that you were going to go out driving that evening? A. Yep. Basically I said "I am drunk so I don't want to go for a drive", he was just compelling me, insisting really "Can you go there, I'm just very upset", so I said to him "Okay" because just after that I went for a drive. HIS HONOUR: Let me understand you. Do you say that he, as it were, forced you to drive? A. Yeah he forced me, like he was insisting, he was just compelling me "Naresh let's go, I don't want to stay, I just want to spend some time outside". Q. Where did he want to go? A. Bankstown and his girl friend." [Appeal Book at 14, 15] 3 There was some brief cross-examination about this topic. It was as follows: "Q. On the day of his death, he came to your house and you were sitting down and having some drinks? A. Yeah. Q. How long were you sitting down and having drinks for? A. Near - about two hours. Q. You've said in evidence that Param (as said) was compelling you to drive? A. Yes. Q. But you could have refused couldn't you? A. Yeah I refused two or three times. Q. And you could have refused again couldn't you? A. Yes. Q. What was there in Bankstown that you had to go to Bankstown? A. Yeah, he said to me "Let's go for a drive", then he said "I just want to go my Bankstown friend." [Appeal Book, 16,17] 4 Simpson J, in paragraph 19 of her Honour's judgment, says, among other things: "These courts deal with human beings, with all their human weaknesses, and while the courts cannot condone any act of driving whilst there is present in the blood more than the prescribed concentration of alcohol, it is not necessary to characterise every instance of the offence as an abandonment of personal responsibility." 5 Her Honour continues: "There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability." 6 I respectfully agree with these observations. I accept that it would not be fair to say of the present respondent that his particular moral culpability was to be assessed in terms of a simple and comprehensive abandonment of his relevant personal responsibility. I do think, however, that there is no escaping the simple fact that the respondent, on his own version of the relevant events, deliberately drove a motor vehicle on a public street when he realised that he was, by reason of the effects of alcohol previously ingested, in no fit state to do so. That entails, in my opinion, a real degree of moral culpability in the respondent. It is my respectful view that the learned primary Judge fell into error in that his Honour failed to take either any, or any sufficient account, of this particular aspect of the respondent's offence. 7 Simpson J has identified some other particular errors on the part of the learned primary Judge. I respectfully agree with what her Honour says in that connection. 8 Simpson J explains, in paragraph 21 of her Honour's judgment, a process of reasoning which leads her Honour to the conclusion that the Crown submission that the sentence was, on its face, manifestly inadequate, should not be accepted. I am, with respect, of the contrary opinion. It is one thing to say, and I myself would accept, that the circumstances of the present particular case warranted the imposition of a full-time custodial sentence distinctly towards the lower point of the relevant proper sentencing range. And I would accept unhesitatingly that the present case is one in which it would be entirely correct to find "special circumstances" in the sense contemplated by s.5 of the Sentencing Act 1989 (NSW), so as to permit properly of the fixing of a much shorter than normal minimum term and a much longer than normal additional term. It is, however, an entirely different thing to say that the circumstances of the present case are such as to warrant the imposition of a penalty less than a sentence of full-time custody. I cannot accept that last proposition. To do so would be to entail, in my opinion, that the subjective features, real and compelling though they undoubtedly are, had been given disproportionate weight in relation to the relevant objective facts. 9 Fixing an appropriate full-time custodial sentence in the present particular case is no easy task. The guideline judgment of the Court in R v Jurisic (1998) 45 NSWLR 209 suggests that in a case of dangerous driving causing death, a custodial sentence of less than 3 years should be exceptional. I am unable to agree with Simpson J in her Honour's conclusion that the present particular case is so, and so clearly, exceptional as to justify an outright dismissal of the present Crown appeal. I accept, however, that the striking of a fair balance of the relevant objective and subjective features of the present particular case justifies, after proper allowance has been made for the well-recognised constraints attending any Crown appeal against sentence, the imposition of a sentence distinctly less than the sentence of 3 years suggested in the guideline judgment. 10 Initially, I was inclined to a sentence of imprisonment of 2 years. I would have back-dated such a sentence so as to have it commence on 31 July 1999; and that for the reasons explained by Simpson J in her Honour's judgment. It would have been, of course, necessary to apportion such a sentence between a minimum term and an additional term. That would have entailed, in turn, a consideration of the question of "special circumstances" as contemplated by s.5 of the Sentencing Act. The more I have thought about such an approach to any re-sentencing of the present respondent, the more dissatisfied I have become with what seems to me to be an unavoidable artificiality inherent in such an approach. There are, as I see the respondent's position, not really any "special circumstances" in the sense of circumstances requiring that a deliberately longer additional term be set in order thereby to make a necessary allowance for a need in the particular case of a deliberately extended period of post-custody rehabilitation. The present respondent does not seem to me to be a man who needs that kind of extended rehabilitation. Save for the offence now in question, the respondent appears to have been in every way a good and useful member of the community. What is required in his case, as it seems to me, is a sentencing approach which will do two things: first, administer to him what is sometimes referred to in the discussion of sentencing principles as a short, sharp shock, such as will ensure that the respondent will not offend again; and secondly, reinforce the public policy considerations that underlie the guideline judgment in Jurisic. In seeking to achieve both those objectives it is, of course, necessary to make allowance for the fact that the appellant has already performed in part the periodic detention ordered in the Court below. 11 I have come, therefore, to the conclusion that it would be a just approach to the re-sentencing of the present respondent to impose a sentence of a fixed term of imprisonment for a period of 3 months to date from the date of delivery of the judgment of this Court. 12 I would favour, therefore, orders as follows: