New South Wales Court of Criminal Appeal CITATION : R v DOUGLASS [2001] NSWCCA 250 revised - 2/07/2001 FILE NUMBER(S) : CCA 60090/01 HEARING DATE(S) : 23 May 2001 JUDGMENT DATE : 23 May 2001 PARTIES : Regina Robin Lyle Douglass JUDGMENT OF : Spigelman CJ at 16; Hulme J at 1; Howie J at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0134 LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : Crown: PG Berman SC Appellant: P Byrne SC SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys DECISION : See paragraphs 15 and 20 - 7 - IN THE COURT OF CRIMINAL APPEAL No:60090/01 SPIGELMAN CJ HULME J HOWIE J Wednesday, 23 May 2001 REGINA -v- Robin Lyle DOUGLASS JUDGMENT . SPIGELMAN CJ: I invite Hulme J to deliver the first Judgment. 1 HULME J: On 14 February 2001 the above-named applicant was found guilty of a charge that on 15 August 1997 he drove a motor vehicle when it was involved in an impact occasioning grievous bodily harm to his wife and that at the time the prescribed concentration of alcohol was in his blood. On 21 February he was sentenced by Judge Freeman to imprisonment for a term of two years, including a non-parole period of six months, both periods commencing on that day. He was disqualified from holding a driver's licence for two years. 2 The concentration of alcohol was not less than .190, a level which, it was found, severely compromised the applicant's ability to drive. The vehicle was known to have a propensity for instability. Judge Freeman found that the most he would conclude from the evidence as to the applicant's manner of driving was that it was in an assertive fashion and too fast in the circumstances. Although he was not prepared to find that the applicant had completely abandoned any sense of responsibility - a finding favourable to the applicant - his Honour said that the applicant was behaving reprehensibly and his conduct was well towards the upper level of culpability. In this connection his Honour recorded that the applicant had been convicted of driving with the prescribed concentration of alcohol in 1975 and 1979 and in 1990 of refusing a breath analysis. 3 The impact of the accident on Mrs Douglass was catastrophic. She became a C-4 quadriplegic, able to speak, breathe unassisted, swallow and turn her head to the side, but nothing more. His Honour recorded: "For the past three and a half years since being trained in these tasks at the Royal North Shore Hospital and at a rehabilitation centre, the Prisoner has provided this extremely high and continuous level of care for her. He has displayed what is described as comprehensive knowledge and admirable dedication. Mrs Douglass understandably does not want her husband, the Prisoner, to be incarcerated. She will suffer great inconvenience, the loss of his company, perhaps difficulties in not having the same uniform high standard of care and so on. There is no doubt that she will in a sense be punished even further than she has already been by the actions of the Prisoner and the Court's attempt to punish him for what he has already done to her. It seems that neither the family nor the community can sustain her in her own home. She will need to be admitted to a hospital or nursing home. She is vehemently opposed to that. She will undoubtedly feel the impact of admission to an institution very, very keenly. The psychologist Mr Drake, in perhaps emotive terms, describes both she and the Prisoner as having already received a life sentence. They are, he says, a bruised and fragile couple requiring special consideration." 4 His Honour observed that in the light of the applicant's criminality, "pursuant to the dictates of the Court of Criminal Appeal in Jurisic , that nothing other than a sentence of full-time custody would be appropriate on those objective facts." Later, after the reference which I have quoted to any punishment of the applicant being also a punishment of Mrs Douglass, his Honour continued: "Herein lies the essence of the problem. On the one hand his identified behaviour is such that the element of punishment and the principle of deterrence both personal and importantly general require that he be imprisoned. I am not free to ignore the guidelines of Jurisic , although regrettably this perhaps unique situation was not envisaged in that judgment." 5 Citing R v Edwards (1996) 90 A Crim R 510, his Honour correctly recognised that the impact of imprisonment on an offender's family is legitimately to be taken into account only when the impact is extraordinary. Finding that the circumstances fell within that description, his Honour concluded that that entitled him to alter the proportions set forth in the Sentencing Act and set a longer than usual parole term. 6 In support of the appeal it was argued that this was an inadequate recognition of the exceptional circumstances of the case, that the sentence was manifestly excessive, and that there should have been a non-custodial, suspended, or home detention sentence. 7 In opposition, counsel for the Crown drew attention to the extent of the applicant's criminality as summarised above and to the extent to which the sentencing criteria listed in Jurisic were fulfilled in this case; e.g. the extent and nature of the injuries, the number of persons put at risk - two or three - the degree of speed and intoxication and the length of the journey on which the applicant was engaged - about six kilometres. 8 It may fairly be said that in this case his Honour's task was not an easy one. However, it does seem to me that his Honour did feel himself more constrained by Jurisic (1998) 101 A Crim R 259 than was justified. For in Jurisic the Chief Justice was at pains to point out that the guidelines there set forth were but that, and they did allow for the "special or exceptional case" and that "a trial Judge can respond appropriately to all the circumstances of a particular case." (My emphasis.) When, at page 277 of the report, the guidelines were promulgated they were expressed in terms which included the words "exceptional" and "almost invariably". Jurisic did envisage there would be cases unique, or at least rare, where sentences imposed would properly differ from those indicated. 9 In these circumstances, the sentencing of the applicant miscarried and it falls to this Court to re-sentence him. 10 In anticipation that that might be the case, the Court has been provided with evidence as to the care of Mrs Douglass since the applicant's incarceration. It is clear that the possibility to which his Honour referred of perhaps difficulties in not having the same uniform high standard of care previously given by the Applicant has been realised. It is unnecessary to detail the problems which Mrs Douglass has experienced and which clearly indicate that she has suffered by the applicant's incarceration. 11 For my part, I think the circumstances of this case are sufficiently exceptional to justify a sentence which did not include immediate and certain custody. As was said by Wells J in Wirth (1976) 14 SASR 291 at 295, in a passage quoted with approval in Edwards : "But it has been often remarked that the strength of our law lies in the willingness of Judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so." 12 Although they are clearly related, in this case there are two features which make the case exceptional. One is the situation of the applicant's wife. Unless completely unavoidable, it would be an affront to common sense to impose any further hardship whatsoever on her. 13 The second is the situation of the applicant himself. Although any death or permanent injury to a family member caused by stupidity such as that of the applicant will almost inevitably have repercussions which amount to some punishment of the offender, such consequences cannot in the ordinary case be allowed to substitute for that for which Parliament has provided. But in this case, the impact on the applicant is such that those consequences may fairly be taken into account. The extent to which he has immersed himself in his wife's care provides justification for the observation of counsel for the applicant that, "The applicant has effectively served some three and a half years' home detention during the time that his wife has been out of hospital since the accident." 14 Remarks made in Jurisic made it clear that general deterrence had a large part to play in sentences imposed for offences of the nature of that committed by the applicant. However, that does not mean that in every case deterrence must dominate the sentencing exercise. Given the exceptional circumstances, there is no ground for thinking that if the sentence in this case departs from the general pattern that pattern is at risk. 15 As I have indicated, the applicant has been in custody now since 21 February, a period of approximately three months. In these circumstances, I would propose that the sentence imposed by Judge Freeman be quashed, that in lieu thereof the applicant be sentenced to imprisonment for a period of 21 months commencing today, but that that sentence be suspended for a period of 21 months and that the Court direct that the applicant be released from custody, on condition he enters into a good behaviour bond for that period of 21 months. 16 SPIGELMAN CJ: I agree with the judgment of Hulme J, with His Honour's reasons and the orders His Honour proposes. 17 HOWIE J : I also agree. 18 SPIGELMAN CJ : The orders of the Court will be as indicated by Hulme J. 19 Our attention has been drawn to the fact that in quashing his Honour's sentence we also quashed the order his Honour made with respect to the disqualification and failed to substitute a further order in the same terms. It is appropriate that we do so. 20 Accordingly, to the orders made earlier by the Court the Court adds the following order: that the applicant is disqualified from holding a licence for a period of two years, commencing on 21 February 2001. oooooooooooooooooo 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.