New South Wales Court of Criminal Appeal CITATION : Regina v Stephen Lawrence WELLS [1999] NSWCCA 226 FILE NUMBER(S) : CCA 60557 of 1998 HEARING DATE(S) : 4 August 1999 JUDGMENT DATE : 4 August 1999 REGINA PARTIES : v STEPHEN LAWRENCE WELLS JUDGMENT OF : Levine J at 1; Smart AJ at 20 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0307 LOWER COURT JUDICIAL OFFICER : Coleman DCJ P G Berman (Crown) COUNSEL : J S Andrews (Applicant) C K Smith (Crown) SOLICITORS : T A Murphy (Applicant) CATCHWORDS : Criminal Law - sentencing - dangerous driving causing death - Crimes Act 1900 s 52A CASES CITED: Regina v Jurisic (1998) 45 NSWLR 209 Regina v Hill (CCA, unreported, 4 December 1998) DECISION : See paragraphs 19-21 IN THE COURT OF CRIMINAL APPEAL 60557/98 LEVINE J SMART AJ WEDNESDAY 4 AUGUST 1999 REGINA v STEPHEN LAWRENCE WELLS JUDGMENT 1 LEVINE J: The applicant seeks leave to appeal against the severity of the sentence imposed upon him by Coleman DCJ, QC, at Parramatta District Court on 10 September 1998. 2 The applicant pleaded guilty on 15 May 1998 to a charge that on 24 March 1997 at Granville whilst under the influence of a drug, namely temazepam and methadone, he dangerously drove a vehicle occasioning death. The maximum penalty available pursuant to s 52A(1a) is 10 years imprisonment. Matters in a Form 2 were taken into account by the learned sentencing Judge relating to four matters of a summary nature, being part of back-up, charges and one matter in respect of an offence of break enter and steal for which the Crimes Act provides a maximum penalty of 14 years penal servitude. 3 The applicant was sentenced to a total term of six years made up of a minimum term of four and an additional term of two by reason of special circumstances found by his Honour arising from the age of the applicant, 23 years, that it was his first period in custody and the perceived and recognised need for rehabilitation. The applicant pleaded guilty to this charge as I understand it as an alternative to a charge of manslaughter. 4 The facts found by his Honour are: "On the morning in question he had ingested methadone as he was permitted to do under the program and drove along the Great Western Highway until he came to a set of traffic lights which would have allowed him access along a down ramp to the expressway. When he got to the traffic lights he pulled up behind another vehicle which was being driven by a young man who had his wife and child in the back seat of the vehicle. The prisoner's behaviour at the traffic lights was erratic and as both vehicles proceeded down the ramp he moved his vehicle from side to side behind the vehicle in front in an attempt to overtake it. The vehicles moved down on to the expressway and when they did, moved into a gap which had appeared in the traffic between two trucks. The prisoner then proceeded along the expressway. Both vehicles then travelled in the left lane of the expressway for a short distance. The vehicle in front which had been the vehicle at the lights, then moved into the right-hand overtaking lane and the prisoner also changed into the right-hand lane. The traffic flow at this stage was moving at about 60 kilometres per hour due to a number of vehicles which were present on the M4. The prisoner continued to swap between lanes by crossing the lane line with only half of his vehicle. He made constant attempts to weave between the lanes for several minutes but was unable to overtake or move further through the traffic because of its volume. He then moved his vehicle on to a grass strip along the shoulder of the roadway and then drove along that strip and came back on to the bitumen. He then went back on to the grass strip which is described as a median strip and drove along it in an attempt to overtake traffic which was moving in the right-hand lane. His vehicle then veered sharply to the left and went back on to the bitumen road surface in order to avoid a pole. It is apparent and I accept that the prisoner then lost control of the vehicle as it veered across two lanes of traffic and headed towards a concrete barrier on the left-hand side of the road. As the prisoner's vehicle was veering across the two lanes of traffic it was struck by a truck which was driven by another user on its passenger side. The prisoner's vehicle then went through a gap in the concrete barriers which had been erected to protect workmen who were working for contractors on the extensions to the M4 motorway where his vehicle collided with the late Mr Panebianco who was one of the construction workers who was working behind the barriers and who had at that time apparently no notice of his approach. The unfortunate Mr Panebianco was thrown to the ground and killed instantly. The prisoner's vehicle then collided with a parked vehicle within the construction area which was pushed on to the edge of the roadworks. The prisoner's vehicle went into a spin and during that time the unfortunate Mr Panebianco was hit again and the prisoner's vehicle then came to rest." 5 The relevant drug analysis disclosed 0.53 milligrams per litre of methadone and 0.20 milligrams per litre of temazepam in the applicant's blood. The temazepam was based upon the applicant's consumption of the drug known as Normison. The pharmacological evidence given by Ms Perl, which was uncontested, was to the effect that at the time of the collision the applicant was under the influence of both drugs to the extent that his driving ability would have been significantly impaired. Apparently the applicant had been stabilised on a methadone program but it was the combination of that drug and the temazepam in the form of Normison tablets to which he had become addicted, that gave rise to the impairment. 6 His Honour found the objective facts to be "on the scale of offences of this type a very serious offence". 7 His Honour found that the prisoner's driving on the day displayed a: "degree of recklessness and impatience which is absolutely unacceptable. His behaviour in driving his vehicle through the traffic in the way that he did before this unfortunate collision took place in my view objectively placed this matter beyond the middle range so far as the objective seriousness of this offence is concerned". 8 His Honour accepted the plea of guilty and that it came about at an early stage and demonstrated contrition for what the applicant had done. His Honour was at pains, and quite rightly so in the sense of the exercise of his judicial discretion in sentencing, not to permit the subjective circumstances to outweigh the objective seriousness of the offence. The subjective circumstances were acknowledged by his Honour with the assistance of reports from Dr Westmore, Dr Slezak and Ms Barrier. Particularly did his Honour have regard to the state of the applicant's health and accepted the submission of his counsel that by reason thereof it would be harder for the applicant in serving a full-time custodial sentence than it would be for an able bodied prisoner. 9 In the circumstances the applicant complains that the overall sentence of six years with a minimum term of four is manifestly excessive notwithstanding the serious matters to which he pleaded guilty. 10 Insofar as statistical information points to the sentence being imposed at an upper end and so far submissions are made that the sentence imposed is indicative of a view taken that it is towards the most serious of its kind, I am unimpressed by them. 11 The sentencing by his Honour took place, by an accident of the calendar one month roughly before the decision of this Court in Regina v Jurisic (1998) 45 NSWLR 209 and it is artificial in my view given the peculiar nature of this offence now to speak of pre-imposed Jurisic sentencing. 12 It seems with respect, more often than not to be overlooked that the offence to which this applicant pleaded guilty is one with which a great deal, or a high proportion of the population would have some familiarity and understanding, because of the number of people who drive cars, who are passengers in cars, who use the highways or are pedestrians. It is for that reason, amongst others, that the component of public general deterrence is of critical importance. It is for that reason, speaking for myself, that whilst it may be instructive to be referred to other cases, whether decided before or after Jurisic and to embark upon an analysis of various factors that may have influenced the sentencing Judge or the appellate court, in the end this particular type of offence because it is so public, because it is so intimately concerned with the every day activities of the great majority of people within the state, that care should be taken particularly to consider each case on its merits. 13 The applicant has acknowledged the aggravating factors to have been that his driving ability would have been significantly impaired; his driving was erratic; it was reckless and impatient; it took place over a sustained course and period of time within that catalogue of factors to which the Chief Justice refers in Jurisic. It is contended however that this is not the worst kind of case that could come within the section. His Honour did not find it to be the worst case, nor was it open to his Honour on the evidence as it appears to me, for his Honour to come to that view of it. It was clearly open, however to his Honour to come to the view he did that it was above the mid range. 14 A particular component of this applicant's case before this Court was the state of the applicant's health. The submission was made that it appears that the sentencing Judge did not give sufficient weight to it. If it was given sufficient weight, then that submission, which in my respectful view can so often be made more with facility, than substantive effect, is made his Honour started at "too high a level" before allowing the applicant the benefit of the clear finding of his Honour in that regard. His Honour appears quite clearly to have considered the objective circumstances and seriousness of this offence and the subjective features available to the applicant and to have been at pains to ensure there was no disproportion. 15 I am not persuaded that the sentence as formulated by his Honour in its respective parts or in its totality by itself or for any other reason, points to any error by the learned sentencing Judge in relation to the discrete matter of the applicant's health or indeed in respect of anything else. The objective facts which I have recited from his Honour's remarks on sentence speak of a course of conduct, even for the reasons giving rise to it, namely the consumption of the drugs, that fairly can be described as above the mid range of seriousness in relation to this offence. 16 This event occurred at 10.45am on a Monday on the M4. It is patently obvious that numerous people were at risk and that evidence was available to his Honour to that effect. One of the witnesses remarked upon the applicant's speed and the recitation of the course of the driving, including the nature strip component, reflects gravely upon the conduct leading to the applicant being before this Court today. 17 As I have said his Honour made appropriate findings as to the objective gravity and indeed with respect to his Honour the language he used was temperate. The circumstances to my mind were horrific. His Honour took into account the serious nature of the break enter and steal on the Form 2 and indeed his Honour formed the opinion that the applicant's antecedent criminal record although it was not such as to entitle him to any leniency, was not such as to be taken into account in any respect beyond the relevance of it to the offence of break enter and steal in the Form 2. 18 I happen to note that the applicant's driving record displays a flagrant disregard for driving obligations and the laws in relation to being qualified and licensed. For myself I have come to the view that that attitude the responsibilities of a person behind the wheel of a motor vehicle, compounded with the drug abuse, could be said almost to have made this tragedy inevitable at the hands of this applicant. 19 I have listened to all that Mr Andrews has said today and given it very serious consideration, particularly that component involving the health of the applicant. I am not persuaded that any error in that regard has been disclosed. By reference to the sentence imposed in all the circumstances in this case, by reference to other cases including decision of my own in the matter of Regina v Hill (CCA, unreported, 4 December 1998) am I persuaded that there is any basis for coming to a conclusion that error has been exposed by his Honour. I would propose that leave to appeal be granted, but that the appeal be dismissed. 20 SMART AJ: Notwithstanding the subjective features relating to the applicant, the gravity of the offence dictated the sentence imposed. I agree with Levine J and with the orders which he proposes. 21 LEVINE J: The orders of the Court will therefore be as I have proposed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.