Regina v Sen [1999] NSWCCA 199

New South Wales Court of Criminal Appeal CITATION : Regina v Sen [1999] NSWCCA 199 FILE NUMBER(S) : CCA 60843/98 HEARING DATE(S) : 11 June 1999 JUDGMENT DATE : 11 June 1999

PARTIES : Regina v Abnish Kumar Sen JUDGMENT OF : Grove J at 1; Carruthers AJ at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1304 LOWER COURT JUDICIAL OFFICER : O'Reilly DCJ

COUNSEL : R. A. Hulme (Crown) P.S. Hastings QC (Applicant) SOLICITORS : C.K. Smith (Crown) John H. Maait & Co (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Dangerous Driving Causing Death - Concession of Error in Aspect of Factual Material Provided to Sentencing Judge - Resentence CASES CITED: R v Jurisic 1998 101 A Crim R 259 R v McDonald CCA Unreported 12 Oct 1998 DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL

60843/98

GROVE J CARRUTHERS AJ

11 June 1999

REGINA v ABNISH KUMAR SEN

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by his Honour Judge O'Reilly in the Liverpool District Court on 10 December 1998. 2 On that occasion the applicant was required to appear for sentence having been committed pursuant to section 51A of the Justices Act upon two counts of aggravated dangerous driving occasioning death. The maximum prescribed penalty for each of those offences was 14 years imprisonment. This Court will come to the question of resentence of the applicant and I can briefly express reasons why that is so. 3 At the hearing in Liverpool District Court, his Honour was informed that the applicable speed limit at the site of the accident was 60 kilometres per hour. In his remarks on sentence his Honour made it clear that he regarded it as a significant factor that not only was the applicant driving whilst there was in his blood a considerable concentration of alcohol and that he passed through a red traffic control signal but also that in so doing he was driving at something in the vicinity of 80 to 85 kilometres per hour in an area where the prescribed limit was 20 to 25 kilometres per hour less. It is conceded by the Crown that the information given to his Honour was incorrect and that the prescribed speed limit was 80 kilometres per hour. 4 That misinformation led to the occurrence of error not on the part of the sentencing judge but in relation to the material upon which he relied. Therefore, as I have indicated, this Court should regard its jurisdiction as invoked. 5 His Honour dealt with the applicant by sentencing him to a total term of nine years imprisonment concurrent on each of the charges which he divided into minimum and additional terms of six years and nine month and two years and three months respectively. There is no doubt that that was a severe sentence. 6 Since the decision of this Court in R v Jurisic 1998 101 A Crim R 259 it is clear that it is the duty of sentencing judges to recognize an upward trend from what had emerged as a pattern of lenient sentences for offences of this nature. 7 Jurisic was in its terms what is described as a guideline judgment but it should be noted that Jurisic dealt with an offence under this section of the Crimes Act relating to what might be described as the basic offence. The legislature has also prescribed a more aggravated form of the offence which is available when the concentration of alcohol in the blood of the offender exceeds 0.15 per cent. In the current case the concentration in the blood of the applicant was 0.219 per cent. That is a considerable excess over the threshold and it is, of course, a considerable multiple of the concentration above which it is an offence to drive a motor vehicle on a public street at all. 8 I have already mentioned that the accident occurred when the applicant drove his vehicle contrary to traffic control signals. The two persons who were killed were women aged 26 and 80 respectively. 9 It has been observed that this offence involves not only the dangerous driving but its essence is that it is coupled with the consequence of causing death. In this case two deaths were caused and the offences are the more serious because of that multiplicity. 10 It has been pointed that out that statistics derived from records kept by the Judicial Commission indicate that this sentence is at the very top of those recorded instances. Nevertheless, as the Crown Prosecutor has observed, much of the source material must relate to penalties imposed prior to October last year when the decision in Jurisic was given. As I have indicated, the result of Jurisic is that an upward trend from previous sentencing levels can be observed. 11 I do not propose to refer to the numerous cases that senior counsel for the applicant and the Crown Prosecutor have accumulated for the guidance of this Court but I do propose to refer to McDonald , CCA unreported 12 October 1998 in which this Court handed down judgment coincidentally on the same day as Jurisic . That was a case where the offender had a blood alcohol level of 0.195 per cent. It was a Crown appeal and the court substituted a total sentence of six years for a sentence of five years which had been imposed in the court below. The restraint which is exercised in reimposing sentence after a successful Crown appeal does not require elaboration. 12 The offender McDonald had caused grievous bodily harm to one victim and death to another. Mr Hastings QC for the applicant has pointed out that McDonald had on his record a prior offence of driving whilst there was present in his blood the prescribed concentration of intoxicating liquor. Therefore, he contends, there is a distinction between the case of McDonald and the present. Obviously what he states is correct. 13 All cases are different but in seeking comparisons one could say that between the present appeal and McDonald , there is on the one hand that prior conviction of McDonald whereas in this case there has been the death of two people as distinguished from the death of one in the case of McDonald . 14 The learned sentencing judge took into account matters in the applicant's favour including the absence of significant prior conviction although he did have matters of exceeding the speed limit on his record. He found that there was remorse and contrition and, of course, his pleas of guilty at the earliest possible opportunity needed to be given weight. 15 The applicant is in a situation that his current remaining in Australia has been the subject of litigation in another jurisdiction. It appears clear that upon release from custody he will not be permitted to remain in this country. His Honour found that there were no special circumstances justifying departure from the formula mentioned in s5 (2) of the Sentencing Act. For myself I would come to the same conclusion. The question therefore is what is an appropriate penalty. 16 It was agreed that his Honour had approached this matter in terms of totality so that for each of the charges a similar but concurrently served sentence was imposed. 17 I am conscious of the recent remarks of the High Court in The Queen v Pearce 1998 72 ALJR 1416 concerning the approach to be taken where there are multiple offences however, nothing has been advanced to this Court suggesting that we should adopt an approach different from that of the sentencing judge. 18 Accordingly, I would propose the following orders: That the application for leave to appeal against sentence be granted, the appeal allowed and the sentences imposed in the District Court be quashed and in lieu thereof on each of the charges the applicant be sentenced to total terms of seven years imprisonment to be served concurrently, divided into minimum terms of five years three months, to commence on 10 December 1998 and to expire on 9 March 2004, together with additional terms of one year and nine months commencing on 10 March 2004. The applicant should be specified eligible for release on 9 March 2004. 19 CARRUTHERS AJ: I agree. I would merely add by way of comment that there is very significant criminality involved in driving a motor vehicle whilst under the influence of alcohol to the extent that the present case demonstrates. Here the applicant was driving with something like five times the prescribed limit. It is essential, as it is now clear, that the minimum term must reflect the degree of criminality as well as the overall sentence imposed. 20 There is a growing trend now within the judicial system to recognise the criminality involved in driving motor vehicles whilst significantly under the influence of alcohol and to impose sentences which reflect that criminality. There were special circumstances in this case which required this Court to intervene but the reduction in the sentence that became necessary here is not, one hopes, to be considered in any way to undermine or to depart from the acknowledgment of the serious criminality that is involved in offences of this nature. 21 I agree with the orders proposed by the presiding judge for the reasons which he has given. 22 GROVE J: The orders of the Court therefore will be as I proposed. **********