Reported Decision : 108 A Crim R 489 New South Wales Court of Criminal Appeal CITATION : REGINA v JAWOROWSKI [1999] NSWCCA 430 FILE NUMBER(S) : CCA 60484/99 HEARING DATE(S) : 29 October 1999 JUDGMENT DATE : 29 October 1999 PARTIES : REGINA v Zigmunt Bruno JAWAROWSKI JUDGMENT OF : Simpson J at 1; Kirby J at 26 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0144 LOWER COURT JUDICIAL OFFICER : Goldring DCJ COUNSEL : P G Berman - Crown P J D Hamill - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : ACTS CITED : Crimes Act 1900 Sentencing Act 1989 R v Sen (CCA 11 June 1999) CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Veen No 2 (1987) 164 CLR 465 at 477 DECISION : Leave to appeal granted; the appeal allowed; the sentence quashed; in lieu thereof there be substituted a sentence of a total term of imprisonment for eight years comprising a minimum term of five years commencing on 14 August 1998 and expiring on 13 August 2003 and an additional term of three years commencing on 14 August 2003 and expiring on 13 August 2006. IN THE COURT OF CRIMINAL APPEAL 60484/98 SIMPSON J KIRBYJ 29 October 1999 REGINA v Zigmunt Bruno JAWROWSKI JUDGMENT SIMPSON J : 1 The applicant seeks leave to appeal a sentence imposed upon him by Goldring DCJ in the District Court on 14 August 1998 following his plea of guilty to a charge of dangerous driving causing death in circumstances of aggravation. The maximum penalty provided for the offence pursuant to s 52A(2) and (4) of the Crimes Act 1900 is imprisonment for fourteen years. Goldring DCJ sentenced the applicant to a total term of imprisonment for eight years. He declined to find that there were special circumstances justifying departure from the ratio referred to in s 5(2) of the Sentencing Act 1989 and divided the sentence conventionally into a minimum term of six years and an additional term of two years. 2 The offence was a very bad example of its kind. At 12.20pm on Tuesday 15 October 1996 the applicant drove his four wheel drive vehicle out of the driveway of his home at St Ives onto Eastern Arterial Road where he collided with a motorcycle being driven by David Peter Thorne who had been travelling east on that road. The cyclist came to rest beneath the four wheel drive and it seems the applicant initially sought to move his vehicle but was prevented from doing so by a passing motorist. He immediately realised what had happened and displayed signs of agitation. He went into the house to make a telephone call but then returned to the scene. It appears that while he was inside the house he consumed some alcohol. 3 Police attended the scene and the applicant told them that he had consumed a small quantity of brandy and dry ginger ale earlier in the day. A roadside breath test was conducted which returned a reading of .240 grams of alcohol per 100 millilitres of blood. A later test conducted at the police station on a breath analysis machine produced a reading of .270. 4 It may be that the alcohol consumed by the applicant after the offence and before the attendance of the police interfered to some extent with a true reading of his blood alcohol level at the time of the driving, but if that is so it seems to me to be a relatively insignificant interference. There is no question that the applicant was at the time he drove the vehicle significantly affected by alcohol. 5 Subsequently he was interviewed. He said that he had his first alcoholic drink, brandy and dry ginger at about 9.30am, his last at about 11am. He also told the police that he had a considerable quantity during the previous evening but believed that this was out of his bloodstream. He could not say precisely how much alcohol he had consumed. 6 The blood alcohol reading was the aggravating feature that brought the offence within s 52A(2) and escalated the penalty from ten years which it would have been under 52A(1) to fourteen years. 7 There is one particularly significant feature of the circumstances surrounding the offence. On 2 October 1996, less than two weeks previously, the applicant had appeared in the Balmain Local Court on a charge of driving whilst there was present in his blood the prescribed quantity of alcohol, the quantity on that occasion being in the high range prescribed by the Motor Traffic Act. That means that there was then present in his blood not less than .15 grams of alcohol per 100 millilitres of blood. 8 The magistrate then imposed a fine of $750 and disqualified the applicant from driving for two years. He was accordingly a disqualified driver at the time of the offence. Further, when interviewed by police he admitted that he had driven his vehicle earlier that day. The level of irresponsibility displayed by the applicant in driving his vehicle on the day of the offence needs no further elaboration nor was the offence for which he was dealt with on 2 October the first of its kind. 9 In September 1988 he appeared in the Penrith Local Court on a charge of high range PCA, as a result of which he was also fined $750 and disqualified from driving for nine months. 10 The applicant was born on 10 December 1952. He was forty-three years of age at the date of the offence. He was forty-five when sentenced by Goldring DCJ. There was evidence that he was an alcoholic and there was a psychiatric report in which the circumstances of his life were recounted. That showed that alcohol had long been a problem but that the applicant had had no treatment for that condition. He had for a short time previously attended Alcoholics Anonymous meetings but had discontinued this. 11 As I have said in the psychiatric report as written by Dr Strum the applicant's detailed history was given. It showed that he had suffered from a depressive illness for some time, often associated with the emotional upheavals in his life such as, on one occasion the death of his father, and on another the separation from his wife and daughters. 12 It appears that the two previous offences had both been committed at times of emotional upheaval as a result of those personal losses, the first following the death of his father to whom he had been attached, and the second following separation from his wife and children. At the time of the present offence the depression was severe enough to cause the applicant to feel suicidal, although this resulted in no actual attempts. His appetite was poor, he had lost weight and he was not sleeping well. 13 The applicant is intelligent and well educated and had worked as a computer consultant although it appears that he was unemployed at the time of the offence. He gave evidence in the sentencing proceedings, he expressed his contrition and it appears that the sentencing judge accepted those expressions as genuine. The applicant's former wife also gave evidence which confirmed his evidence that in the almost two years between the offence and sentencing the applicant had given up drinking alcohol. 14 On behalf of the applicant it was argued firstly that the total sentence imposed was manifestly excessive, and this was demonstrated both by the length of the sentencing itself and by reference to the subjective features that were before the sentencing judge, and secondly, that the judge erred in declining to find there were special circumstances justifying the extension of the additional term at the expense of the minimum term. 15 As I have noted above, the maximum sentence provided for by the Legislature is imprisonment for fourteen years. The sentence imposed on the applicant is said to be the longest on record for an offence under s 52A, a previously lengthier sentence having been reduced on appeal; R v Sen (CCA, 11 June 1999). 16 However this submission is to be read in the light of the fact that s 52A was recast as from December 1994 and that the penalties were then subsequently increased. This plainly reflects the view of the Legislature that driving offences causing injury or death are to be treated as very serious and warranting severe punishment. In fact it appears that only thirty-two or so cases of aggravated dangerous driving causing death have been dealt with since the redrafting of the legislation. 17 Nevertheless it was argued the total sentence itself suggests that inadequate attention was given to the subjective material tendered on behalf of the applicant and particularly his alcoholism and his history of major depressive illness. 18 I have given careful consideration to this argument. In the end I do not accept it. The subjective material was strong and it justified a degree of sympathy for the applicant but it did not demand leniency. What cannot be avoided is the objective seriousness of the applicant's conduct in driving a vehicle at all so soon after his disqualification and worse, after he had been drinking. It was acknowledged, as it had to be, that this offence was worse than that the subject of consideration in the guideline judgment of Jurisic (1998) 45 NSWLR 209. 19 Particular reference has to be made to the applicant's conduct in driving whilst he was disqualified. It was not suggested that this was not a relevant matter for the court's consideration but that it was not an aggravating feature in the sense that this court frequently considers aggravating features. I do not think it is necessary to embark upon a consideration of the way in which the applicant's conduct in this respect can be taken into account. 20 I have reread the relevant passage in R v Veen No 2 (1987) 164 CLR 465 at 477 and it seems to me that that authorises proper reference to be made to the applicant's conduct in driving not only in the condition he did but while he was disqualified, and it has to be said disqualified for an offence which, while not having the absolutely devastating consequences, is otherwise similar to the present offence. 21 Accordingly I am of the view that although the total sentence is a very heavy one it was not outside the range properly available to his Honour and it has not been demonstrated that in arriving at that sentence his Honour failed to have proper regard to this subjective material. 22 That brings me to the argument that his Honour was in error in failing to find that there were special circumstances justifying the extension of the additional term and a reduction of the minimum term. What his Honour said and he said it after he had imposed the sentence he did, was this: "I have considered whether in this case there are special circumstances which would justify me varying the ratio of that additional term to the minimum term. I take into account your belief and your remorse but I find that notwithstanding that there are no special circumstances." 23 The argument was this demonstrated error on the part of the sentencing judge in that he failed to turn his attention to other factors more particularly relevant to the question of special circumstances. There were significant such circumstances including the fact that the applicant is for the first time imprisoned, his status as an alcoholic, his history of depression and the lengthy term of imprisonment that he will in any event serve. In my opinion those features do point to a finding of special circumstances 24 I am satisfied that his Honour did not approach that question in the manner required and that it is necessary for this court to make its own evaluation of whether special circumstances exist. I am satisfied that they do and that accordingly, the sentence imposed should be restructured in that respect only. 25 I propose the following orders: leave to appeal be granted; the appeal allowed; the sentence quashed, in lieu thereof there be substituted a sentence of a total term of imprisonment for eight years comprising a minimum term of five years commencing on 14 August 1998 and expiring on 13 August 2003 and an additional term of three years commencing on 14 August 2003 and expiring on 13 August 2006. 26 KIRBY J: I agree with the reasons that have been given and the orders proposed. 27 SIMPSON J: The orders of the court will 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. 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