New South Wales Court of Criminal Appeal CITATION : Regina v Frascella [2001] NSWCCA 137 FILE NUMBER(S) : CCA 60438/00 HEARING DATE(S) : 6 April 2001 JUDGMENT DATE : 6 April 2001 PARTIES : Regina v Anthony Frascella JUDGMENT OF : O'Keefe J at 20; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1050 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER : COUNSEL : (A) H Dhanji (R) G E Smith SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Sentencing - dangerous driving causing death with other offences taken into account - driving conveyance taken without consent of owner - correct sentence for each offence to be imposed - application of Pearce v The Queen (1998) 194 CLR 610 LEGISLATION CITED : Nil R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Mansour [1999] NSWCCA 180 Pearce v The Queen (1998) 194 CLR 610 DECISION : (a) Leave to appeal granted (b) Appeal allowed - sentence quashed (c) In lieu of the sentences imposed the applicant is sentenced (i) On count 2 (driving a conveyance taken without the consent of the owner) to imprisonment for two years starting on 23 June 2000 with a non-parole period of six months starting that day and ending on 22 Decmber 2000 (ii) On count 1 (dangerous driving occasioning death) and taking into account the offences on the two Forms 1, the applicant is sentenced to imprisonment for three years six months starting on 23 December 2000 with a non-parole period of 18 months starting that day and ending on 22 June 2002 (d) The applicant is disqualified from holding a driver's licence for two years from 23 June 2000. IN THE COURT OF CRIMINAL APPEAL 60438/00 O'KEEFE J SMART AJ Friday, 6 April 2001 REGINA v Athony FRASCELLA JUDGMENT 1 SMART AJ : Anthony Frascella seeks leave to appeal against the severity of a sentence of imprisonment for four years with a non-parole period of two years to be served in a detention centre for dangerous driving occasioning death on 29 August 1999, taking into account one offence of take conveyance without consent of the owner, one offence of being an unlicensed driver and one offence of negligent driving. Those offences taken into account all arose out of events occurring on 15 August 1999. The fourth offence taken into account was one of being carried in a conveyance without the consent of the owner on 22 August 1999. 2 The applicant also seeks leave to appeal against the severity of a concurrent sentence of a fixed term of imprisonment for two years for driving a conveyance taken without the consent of the owner. There was also an order the applicant be disqualified for two years. This last order has not been challenged. 3 On 28/29 August 1999, a Ford sedan UPB 633 was stolen from the property of its owner at Mt Victoria. About 12.20pm on Sunday, 29 August 1999, the applicant drove that vehicle at high speed in a general easterly direction along the Great Western Highway at Faulconbridge. The speed limit was 60 kilometres per hour. The road was wet and slippery and rain was falling intermittently. Traffic conditions were heavy. Careful driving was required. The applicant was aged 17½, having been born on 25 February 1982. The passenger in the front driver's seat was an acquaintance who was aged about 20. 4 When west of Parkes Crescent, the vehicle driven by the applicant overtook a number of vehicles on the nearside. The applicant was driving in what might be described as the breakdown lane adjacent to the east-bound lane. The vehicle merged sharply to the right into the line of traffic. It braked heavily and the applicant lost control of it. The vehicle rotated and skidded on to the incorrect side of the road across the painted median and unbroken centre lines and into the path of oncoming traffic. The rear portion of the Ford sedan collided with the front portion of a Toyota sedan being driven generally west in the west-bound lane. The vehicle contained a family of five. The judge appears to have accepted the account of Mr M A Hutson who was in a car driving east along the highway. He said: "I was nearly to where the lanes narrow to one. I looked in the rear view. I was still in the lane closest to the median strip. I looked in the mirror and saw a white car behind me When I first saw him he was behind me I think he was in the other lane. Next thing he overtook me up the left side. He was trying to beat me into the single lane. I was doing 60 by then. He went past quick. He was going a lot faster than I was going. I estimate at least 100 kilometres per hour. He went past then swerved to the right into the lane in front of me. He was about three car lengths in front of me. I don't know whether he braked at that point. I am pretty sure he did brake I don't remember seeing brake lights but he appeared to brake heavily and lose control all at the same time. The car started to fish-tail and swerve. The car swerved right to left a couple of times then the car slid around and travelled backwards and sideways at an angle. He was facing back towards me as he slid. I could see that there were two people in the car. The white Ford slid backwards onto the wrong side of the road. I could see the traffic coming the other way. I saw the back end of the white car crash into a car coming the other way." 5 As a result of the impact of the collision, the passenger in the front passenger seat of the Ford sedan suffered fatal head and neck injuries. He died on 3 September 1999. Three children of the family in the Toyota were not injured, but the father suffered severe facial injuries and the mother suffered facial injuries and bruising. These matters are not the subject of any charge, but they indicate the potential risk of danger of the conduct of the applicant towards others. 6 The applicant was also taken to hospital. He appeared fully conscious when he spoke to the police. The applicant said that the Ford sedan was stolen, that he did not remember the crash, and that he did not have a licence. 7 I turn to the three offences taken into account which occurred on 15 August 1999. The applicant entered a Ford sedan which was parked in the driveway of private premises at Lalor Park, manipulated the ignition and drove the vehicle to Lithgow. He was unlicensed. The third offence involved the applicant driving negligently in that he lost control of the vehicle which collided with a telegraph pole. The remaining offence took place on 22 August 1999 between Blacktown and Penrith, the applicant being carried in a conveyance without the consent of the owner. 8 On 26 March 1998 the applicant was dealt with in the Kingaroy District Court for offences of dishonesty, wilful damage and destruction. No conviction was recorded. He was placed on probation for two years and required to serve 200 hours of community service. There were other conditions. He also committed two offences of drive whilst unlicensed. These offences appear to have occurred on 29 July 1999, but the sentences for them were imposed after 29 August 1999. There were also two offences about 29 July 1999 of driving a conveyance taken without the owner's consent. 9 What emerges is that on at least three occasions prior to 29 August 1999, the applicant was driving a motor vehicle whilst unlicensed and driving vehicles taken without the owner's consent. 10 The judge observed: "… the framework of the objective situation is that it is a very serious matter. A young man is dead. Looking at the Jurisic criteria, I note that there were five people in the Camry, some of whom suffered significant injury and the roadway was busy, so that other people were potentially at risk. A speed at that particular geographical location of a hundred kilometres per hour being some forty kilometres over the limit is a significant departure for accepted standards of driving and the endeavour, as it were, to beat Mr Hutson's vehicle into the single lane stretch of roadway can be fairly described as erratic driving. Now the Form 1 matters are not to be brushed over. They show a similar pattern of behaviour." 11 The judge thought that it was more appropriate to deal with the matter according to law, rather than under the Children's Criminal Proceedings Act 1987. That was the correct decision. Dangerous driving causing death is a serious matter. Further, this offence occurred against a background of driving whilst unlicensed and car stealing. 12 The judge also decided that, in view of the applicant's age and intelligence level, it would be best to use section 19 of the Act and send the applicant to a detention centre rather than an adult gaol. The judge said that he did not understand the Court of Criminal Appeal to have said that juveniles generically are entitled to any particular form of consideration in this type of case. Rehabilitation is always of considerable importance with a young offender. However, this class of case raises serious problems. Many serious road accidents are caused by erratic, dangerous or negligent driving by teenagers in their late teens. It is important that young people understand that if they drive dangerously and cause death they will be severely punished. They too must observe the sanctity of human life. General deterrence is an important and major consideration in this type of case. 13 The letter of the applicant's mother and the report of the consultant psychologist, Ms Kusch, set out the applicant's personal circumstances. He is one of eight children. Although there have been some difficulties, it is clear enough that he comes from a warm and supportive family. The psychologist said that his intellectual functioning was in the upper end of the below average range. She wrote: "... he is most likely to be a well-functioning individual, essentially 'normal' with no major personality disturbance who may currently be undergoing psychosocial stresses and is therefore exhibiting troublesome symptoms that are situational and transient." 14 She continued : "The impact of the control order imposed upon him appears to have been a positive one. Since his release from juvenile detention, he has ceased abusing drugs and appears to have repaired his relationship with his father. In fact, he continues to receive support from all family members. Anthony has also involved himself in vocational training and seems to have developed some career goals. The opportunity for further education and training and securing meaningful employment would enhance his prognosis." 15 She thought that well judged and moderate psychotherapy would be useful. The judge did not expressly discuss special circumstances, but he made a significant allowance for them and was obviously very conscious of them. Appeal ground 1 reads: "The sentencing judge erred in failing to backdate the sentence to 6 May 2000." It was common ground that the applicant had spent a period of approximately six weeks and five days in pre-sentence custody. The judge expressly took this into account, but he did not backdate the sentence. It was submitted that because of the provisions of section 47 of the Crimes (Sentencing Proceedings) Act 1999 the judge should have backdated the sentence. 16 It is true that under section 47(3) the judge must take into account any time for which the offender has been held in custody in relation to the offence to which the sentence relates. The judge did so. Section 47(3) does not oblige the judge to, in fact, backdate the sentence. He has a discretion whether to do so under section 47(2). The judge having expressly stated that the matter had been taken into consideration - and that obviously means in determining the sentence - I do not think that this ground of appeal should be sustained. 17 Appeal ground 2 reads: "The sentencing judge misapplied the guideline judgment of Jurisic". Counsel undertook a detailed examination of this judgment and, at times, in the applicant's submission, it seemed to be treated as though it was virtually an ex cathedra pronouncement. It is no more than a guideline. Attention was drawn to point number 2 of the guidelines promulgated in R v Jurisic (1998) 45 NSWLR 209 where the Chief Justice said: "With a plea of guilty wherever there is present to a material degree any aggravating factor involving the conduct of the offender a custodial sentence (minimum plus additional) or fixed term of less than three years in the case of dangerous driving causing death and less than two years in the case of dangerous driving causing grievous bodily harm should be exceptional." 18 The reference to "a material degree" was explained in terms of the offender having abandoned responsibility for his or her own conduct. The Chief Justice in R v Mansour [1999] NSWCCA 180 stressed that the words used in his judgment in Jurisic should not be treated as though they were contained in a statute. In the present case, the judge took the correct course. He concentrated on the facts which emerged from the evidence and their gravity. Put shortly, to overtake on the nearside and to endeavour to beat someone into the main line of traffic on a road which is wet and slippery in circumstances of intermittent rain and with heavy traffic is abandoning responsibility. There is no substance in this complaint. 19 Appeal ground 3 reads: "The sentencing judge erred in failing to take into account in determining the term of imprisonment the fact that the offence could have been dealt with in the Children's Court". This offence could technically have been dealt with in the Children's Court. The offence covers a wide range of factual situations. Occasionally there may be cases where this offence could be dealt with in the Children's Court. I do not say that there are. In any event, this was certainly not a case which should have been dealt with in the Children's Court. The fact that technically the matter could have been dealt with in the Children's Court is not a factor which, in the present circumstances, should be given any weight. 20 Appeal Ground 4 reads: "The sentencing judge failed to give any weight to the youth of the applicant". From the judge's remarks on sentence and the direction that the applicant serve his sentence in a juvenile detention centre, it appears that the judge did give weight to the applicant's youth. The sentence ultimately imposed contains a significant allowance for special circumstances. These included the youth of the applicant and the desirability of his rehabilitation. This complaint has not been sustained. 21 Appeal ground 5 reads: "The sentencing judge failed to give the applicant sufficient credit for his plea of guilty". The judge stated "He pleaded guilty to those counts and I convict him of those offences." He did not specifically mention that he was giving a discount for the plea of guilty based on the utilitarian value of the plea or otherwise. However, the actual sentence imposed reflects that such an allowance must have been made. 22 Appeal ground 6 reads: "The sentence is manifestly excessive". The Court is not dealing simply with an offence of dangerous driving causing death, bad as that was in the present case, but also the four offences taken into account. It is enough to state that the sentencing overall was not manifestly excessive. 23 Appeal ground 7 reads: "The sentencing judge erred in failing to correctly apply Pearce v the Queen (1998) 194 CLR 610". The judge stated: "In obedience to the High Court, I would say that if I were dealing separately with the second count I would impose an overall term of imprisonment of two years. Again, if I was dealing separately with the s 52A(1) offence I would impose a sentence of three and a half years. What I propose to do is apply a sentence in respect of the first count which I regard to cover the whole criminality involved and I will impose a concurrent fixed term in respect of the s 154A offence". 24 The approach taken by the judge does not literally comply with the requirements of Pearce. That means that this Court has to re-sentence. 25 Taking into the account the seriousness of the offences, the four matters on the two Forms 1, the discount to which the applicant was entitled for his early plea of guilty, his youth, his subjective features, the period of six weeks two days which the applicant spent in custody prior to sentence, and the principle of totality, I am of the opinion that it was not reasonably open to the judge to impose a lesser overall sentence. It would have been open to the judge to have imposed a greater penalty. However, the structure of the sentence should be adjusted to accord with Pearce. 26 I propose the following orders: (a) Leave to appeal granted. (b) Appeal allowed; sentence quashed. (c) In lieu of the sentences imposed, the applicant is sentenced - (i) On count 2 (driving a conveyance taken without the consent of the owner) to imprisonment for two years starting on 23 June 2000 with a non-parole period of six months starting that day and ending on 22 December 2000. (ii) On count 1 (dangerous driving occasioning death) and taking into account the offences on the two Forms 1, the applicant is sentenced to imprisonment for three years six months starting on 23 December 2000 with a non-parole period of 18 months starting that day and ending on 22 June 2002. (d) The applicant is disqualified from holding a driver's licence for two years from 23 June 2000. 27 O'KEEFE J: I agree. 28 The orders of the Court will be as proposed by Smart AJ. ******** 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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