New South Wales Court of Criminal Appeal CITATION : R v AUSTIN [1999] NSWCCA 101 FILE NUMBER(S) : CCA 60093/98 HEARING DATE(S) : 24 May 1999 JUDGMENT DATE : 24 May 1999 REGINA (Crown) PARTIES : v Mark William AUSTIN (Applicant) JUDGMENT OF : Barr J at 1; McInerney AJ at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/21/1119 LOWER COURT JUDICIAL OFFICER : Dent DCJ DN Howard (Crown) COUNSEL : DG Dalton (Applicant) CK Smith (Crown) SOLICITORS : TA Murphy (Applicant) CATCHWORDS : Criminal Law - sentencing - driving in a manner dangerous occasioning grievous bodily harm - whether sentences excessive DECISION : Leave to appeal refused IN THE COURT OF CRIMINAL APPEAL 60093/98 BARR J McINERNEY AJ Monday, 24 May 1999 REGINA v Mark William AUSTIN JUDGMENT 1 BARR J: Mark William Austin seeks leave to appeal against sentences imposed upon him in the District Court on 25 August 1997. On each of two counts of driving in a manner dangerous to the public occasioning grievous bodily harm, the applicant was sentenced to imprisonment for four years, comprising a minimum term of three years and an additional term of one year. The sentences were ordered to run concurrently and to commence on 13 February 1998. Upon each of two further counts for the same offence, the applicant was sentenced to a fixed term of imprisonment for twelve months commencing on 13 February 1998. The total effective sentence for the four offences was therefore one of four years imprisonment, comprising a minimum term of three years and an additional term of one year. 2 The attack made on the sentences is not on their total effective length but on the apportionment between the minimum and additional terms. It is submitted that his Honour should, within the confines of the four year total term, have allocated more time to the additional term and correspondingly less to the minimum term resulting in an earlier date upon which the applicant should become eligible to be released on parole. 3 The facts of the matter are as follows. On 25 December 1995 the applicant was the driver of a utility truck which was travelling south in Wallgrove Road, Eastern Creek. He carried a friend, Robert Fryer, as a passenger. A number of other cars were travelling south. The applicant's utility overtook one vehicle and then a second. The drivers of those vehicles estimated his speed at 120 kilometres per hour and 110 to 120 kilometres per hour respectively. He remained on the wrong side of the road before overtaking the first and the second of those vehicles and in doing so forced an oncoming vehicle off the road. Fortunately nobody was injured in that incident. 4 The utility then returned to the correct side of the road before pulling out over an unbroken separation line to overtake a third vehicle just before a left-hand bend. His speed was then estimated to be 150 kilometres per hour. 5 During that manoeuvre the applicant lost control of the utility, oversteered and caused it to fishtail and travel at an angle. It then veered sharply into the southbound lane again and continued off the road surface on to the gravel shoulder on the eastern side of the roadway. It continued along the shoulder until it veered sharply right across the roadway and into the northbound lane. It was by that stage quite out of control. It collided with a northbound car, somersaulted twice and came to rest on its wheels. 6 The speed limit in Wallgrove Road was ninety kilometres per hour. 7 Mr Fryer was very badly hurt. He was taken to Liverpool Hospital and placed under intensive care where he remained for four weeks. He initially had a glasco coma score of four and a CT scan showed a small hypodensity in the right inferior parietal region. His nasal bones were fractured and he had damage to the teeth. He ultimately lost all his teeth. 8 On his discharge from intensive care he was transferred to the brain injury unit. He demonstrated high level language impairment, tended to be verbose and demonstrated poor memory and poor new learning ability. He found it difficult to control his temper and his behaviour. 9 His physical condition improved but he continued to be unable to run because of unco-ordination. He had mild left sided weakness and a significant dysaesthesia and hypertomia on the left. 10 The last report available to his Honour showed that Mr Fryer had physical and cognitive attributes sufficient to perform manual and unskilled work but that his behavioural abnormalities and personality change precluded employment in the open market. He was thought unlikely to improve. 11 The driver of the northbound car was Mrs Debi Bryce. She too was very badly hurt. She was taken to intensive care at the Nepean Hospital. She had a closed head injury causing cranial nerve palsy, a fracture of the base of the skull, a compound fracture of the left knee requiring several operations during the course of which she contracted infection by Golden Staph, there were progressive significant degenerative changes. The left tibial plateau, the left humerus and wrist, the right wrist and olecranon were fractured. Two of the results were permanent deformity and scarring. 12 When the matter was before his Honour, Mrs Bryce was continuing to make progress but was found to have significant residual disabilities to the left arm and particularly the left leg. She would eventually need a total knee arthroplasty. Mrs Bryce had been an active sports woman but would never thereafter be more than a spectator. 13 The front seat passenger in Mrs Bryce's car was Julie Ann Bryce. She suffered fractures of the sternum, the left radius and the right radial head and suffered intensive seat belt bruising and abrasions. She spent four days in hospital. 14 A child, Amy Lee Bryce, was in the rear seat of Mrs Bryce's car. She received severe lacerations to the left groin requiring sutures and extensive bruising over the groin and a fractured pelvic bone. She spent six days in hospital. 15 The applicant was thirty-one years old at the time of the offences and thirty-three years old when sentenced. He had a criminal and traffic record which, as his Honour dispassionately observed, did not help him. His record is very bad. I will not detail the several offences of dishonesty. Between 1982 and 1997 he was dealt with in court or by traffic infringement notices sixteen times for offences arising out of the manner in which he drove a vehicle. Most were for speeding. On three occasions he exceeded the limit by more than thirty kilometres per hour, on one he exceeded it by more than forty-five kilometres per hour. There were three convictions for driving at a speed dangerous, in a manner dangerously and negligently. On several occasions he had been convicted of being an unlicensed driver or rider and otherwise behaving in an irresponsible way in connection with a motor vehicle. 16 The Probation and Parole Service furnished a pre-sentence report for his Honour's assistance. It summarised the applicant's extensive contact with that Service from July 1983, when he had been released to licence, until November 1990 when he had completed a Community Service Order. Over the seven-year-period he had been subject to supervisory recognisances and had been sentenced to two other Community Service Orders. 17 Although some reports prepared by the Service during the 1980s had been highly critical of the applicant's performance under supervision, he had appeared, as time went by, to make progress in some areas of his life so that towards the end of his involvement with the Service, comments about his performance had become more positive. A pre-sentence report prepared in June 1989 said that he appeared to be genuinely motivated to work and to wish to avoid future conflict with the law. It has to be said, unfortunately, that seven of the occasions upon which the applicant was dealt with because of the way he drove a vehicle, occurred after the date of that report. 18 Speaking about the offences and his driving generally, the applicant told the reporter that the accounts of the various witnesses did not reflect his perception of the collision. He admitted that he had had a number of traffic infringements but considered himself less fortunate than others in avoiding police detection on the roads. 19 The report commented favourably upon the applicant's work history and his attitude to work. The applicant was assessed as suitable for a community service order and for periodic detention. 20 His Honour drew attention to the maximum penalty applicable to each of the four counts, namely seven years imprisonment. His Honour considered that this case did not fall into the worst category of cases but it was, on its objective facts, a very very bad case. In my opinion this case did fall into the worst category of cases. 21 No criticism was made on appeal of his Honour's findings or remarks. It was put that the pre-sentence report, which I have summarised, implied that the applicant had benefited from prior supervision of that Service. Support was sought to be drawn from a remark by his Honour that the applicant had appeared to be settling down in recent times. As was noted in the pre-sentence report, the applicant's domestic circumstances have changed. He had separated from his former girlfriend and their daughter and had taken up life with a new partner. It was put that those changes provided strong grounds for an extended period of supervision and accordingly a longer additional term. 22 It does not appear evident to me that the applicant might need more than twelve months on parole to re-establish relations with his present partner and to achieve a proper relationship and arrangements with his former partner an child and to do the other things necessary to effect a proper entry once again into responsible community life. 23 It was put that the need was even greater bearing in mind what was described as a gap in the applicant's history of offences. As I have mentioned, there was no gap. The applicant's reversion to repeated speeding offences is a matter of considerable concern. 24 His Honour made no mention of any enquiry whether there existed circumstances which would justify an additional term which exceeded one-third of the minimum term for the purposes of s 5(2) of the Sentencing Act. There will be cases where the Court may infer from a sentencing judge's failure to mention such a matter that it has been overlooked. I would not draw such an inference in the present case. As I have said, none of the circumstances which have been put would seem to me to justify an additional term exceeding twelve months. 25 Secondly, I think that the objective seriousness of these offences call for the imposition of sentences which require the applicant to serve not less than three years full-time detention and I think that his Honour must have been of the same opinion. 26 I would refuse leave to appeal. 27 McINERNEY AJ: I agree with the orders proposed by the presiding judge and for the reasons he has advanced. 28 BARR J: The order of the Court therefore is 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. 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