Reported Decision : (2001) 33 MVR 181 New South Wales Court of Criminal Appeal CITATION : R v King [2001] NSWCCA 18 FILE NUMBER(S) : CCA 60655/00 HEARING DATE(S) : 8 February 2001 JUDGMENT DATE : 8 February 2001 PARTIES : Crown - Appellant Toby William King - Respondent JUDGMENT OF : Sheller JA at 1; Grove J at 43; Kirby J at 44 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0238 LOWER COURT JUDICIAL Moore DCJ OFFICER : COUNSEL : M C Marien - Crown P M Strickland - Respondent SOLICITORS : S E O'Connor - Crown D J Humphreys - Respondent CATCHWORDS : Criminal law and procedure - Aggravated dangerous driving causing grievous bodily harm - Appeal by Crown against sentence - when sentence of periodic detention appropriate - whether collision was due to 'momentary inattention or misjudgment' - Crimes Act 1900, s52A(4) - Criminal Appeal Act 1912, s5D LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 R v Jurisic (1998) 45 NSWLR 209 R v Tomson [1999] NSWCCA 308 R v Guilfoyle (1973) 57 Cr App R 549 R v Wegener [1999] NSWCCA 405 CASES CITED: R v Khatter [2000] NSWCCA 32 Dinsdale v The Queen (2000) 74 ALJR 1538 Everett v The Queen (1994) 181 CLR 295 Howland (1999) 104 A CrimR 273 R v Pelho (unreported) NSWCCA 1 August 1997 House v The King (1936) 55 CLR 499 DECISION : 1. Appeal allowed; 2. Sentence below quashed; 3. In lieu thereof, the respondent sentenced to a term of imprisonment of two years to commence on 8 September 2000 with a non-parole period of twelve months; 4. The respondent be released on parole on 7 September 2001; 5. The order for disqualification made by the sentencing Judge should be affirmed. IN THE COURT OF CRIMINAL APPEAL 60655/2000 SHELLER JA GROVE J KIRBY J Thursday, 8 February 2001 REGINA v Toby William KING JUDGMENT 1 SHELLER JA: On 17 August 2000 the respondent, Toby William King, pleaded guilty to a charge of aggravated dangerous driving occasioning grievous bodily harm; s52A(4) of the Crimes Act 1900. The circumstance of aggravation was the presence in the respondent's blood of the prescribed concentration of alcohol. The maximum penalty for this offence is eleven years imprisonment. 2 The respondent came up for sentence before Moore DCJ on 31 August 2000. His Honour sentenced the respondent to two years imprisonment, to be served by way of periodic detention. On 3 October 2000 the Crown appealed against the sentence on the ground that it was manifestly inadequate. The sentencing Judge also imposed a period of disqualification of driving licence of three years from 2 November 1998. 3 Judge Moore stated the facts as follows. The respondent was driving his station sedan south across the Martin Bridge at Taree at about fifty kilometres per hour. The speed limit in the area was sixty kilometres per hour. The traffic was described as medium. Martin Bridge is a narrow bridge. His Honour said: "That is an indication that there is a risk of danger in driving across the bridge if there is any inattention because of its narrowness and the proximity of oncoming traffic." 4 As he drove across the bridge, the respondent dropped a lighted cigarette onto the floor. He bent down to pick it up. In consequence, his eyes went below the level of his dashboard. The passenger side wheels hit the kerb. That caused the car to veer to its right and collide head-on with a car coming in the opposite direction. The passenger in that oncoming car suffered severe injuries, which will have a lasting effect upon her. The driver of the oncoming car was also injured, but to a lesser extent. 5 This incident occurred at about 10.20 am on Monday 2 November 1998. At 11.25 am on that morning a blood alcohol reading of the respondent showed .273. At 3.45pm on that afternoon a reading showed .196. Both readings are well in the high range of the prescribed concentration of alcohol. 6 The applicant had consumed a large amount of alcoholic liquor on the Sunday, the day before these events. He went to work that night on the dog shift; that is, from midnight to 8 o'clock on the Monday morning. He then had four more drinks of full strength alcohol (two stubbies and two middies) before setting off from his place of work for his home. It was on that journey that the collision occurred. The estimated distance between the point of departure and his home was about fifteen kilometres. 7 In his remarks on sentence, Judge Moore described the respondent's driving as the type of driving referred to in R v Jurisic (1998) 45 NSWLR 209, the guideline case for crimes of this nature, as momentary inattention or misjudgment. His Honour went on to say: "Of course that means such inattention or misjudgment as is dangerous and it was clearly dangerous on a bridge of the dimensions of the Martin Bridge." His Honour said: "It is also clear that the alcohol which was in his bloodstream - and he must have been clearly aware that whatever the reading might have been it was a substantial amount - was such as would contribute to his misjudgment, in turn leading to the motor vehicle colliding with the kerb and the immediate consequence of a collision with Miss Rudman's oncoming car." 8 The sentencing Judge went on to state background and subjective matters. The respondent was born on 3 August 1964 and was aged thirty-four years at the time of the accident and thirty-six at the date of sentencing. He had a good life history. However, he had two previous convictions for drink driving, one in 1988 and one in 1989. On both occasions the alcohol reading was in the mid range. Thereafter he had had no further convictions for drink driving offences. Judge Moore described that "as a good indication that he has reformed his driving in the meantime and there were exceptional circumstances which applied to his driving on this occasion." 9 His Honour referred to a report by a registered nurse, Mr Berry, who spoke of a range of abnormal stresses in the respondent's life at the time. Mr Berry had examined those stresses, which his Honour said in summary: " ... led to [the respondent's] state of mind at the time that he had no purpose in life. He was not being permitted to be a proper father to his children and his life was empty." Mr Berry's assessment was that the respondent's history did not give an indication of a person who regularly abused alcohol or who was alcohol dependent. 10 On 1 September 1999 the respondent had submitted himself to a two-week course at Kirkwood House which dealt with problem drinking. That was an intensive course and it was undertaken on a voluntary basis. The respondent had tendered excellent references, both direct and mentioned in the professional reports, about his employment history. He was highly regarded in his present job. His employer gave evidence that he was an exceptionally hard worker. For much of his life he had worked at two jobs. 11 Judge Moore said there was a great volume of evidence which indicated that the respondent had a deep remorse for the injury caused to his victims and that he felt a responsibility to make sure that nothing like this ever happened again. 12 The sentencing Judge observed that the fact that the respondent was a young man who had never had any previous convictions involving gaol did not count as much in crimes of the nature here in question where so frequently the offenders are young persons. He observed that the respondent had then been estranged for some years from his wife and had two children. 13 The sentencing Judge then made reference to the principles expressed in Jurisic. He said: "As was said in the leading judgment of Spigelman CJ in that matter, a non-custodial sentence for offences of this nature should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. That statement, of course, does not mean in all cases where there is a momentary inattention or misjudgment there will not be a full-time custodial sentence. In view of the features of this case, I thought it necessary to give the matter very careful consideration. It is a matter where my mind has wavered, I must also frankly admit, on both sides of the watershed." 14 His Honour referred to R v Tomson [1999] NSWCCA 308 and R v Pelho (unreported) NSWCCA 1 August 1997. His Honour expressed his conclusions as follows: "Cases which are at the watershed are ones which are frequently difficult of decision and this case is one of those. I have come to the view that whilst there must be a sentence of imprisonment, it should be one served by way of periodic detention. It will impose particular hardship on Mr King because of the distance he has to travel each weekend to the Periodic Detention Centre at Tomago, but nevertheless he has been found fit by the Probation and Parole Service to perform that sentence." 15 On this appeal the Crown submitted that, given the grave nature of the offence and the serious aggravating features, the sentence imposed was inadequate and so inadequate as to imply error. The point was made that in imposing the periodic detention sentence his Honour failed to comply with what has been called the two-stage process: see R v Wegener [1999] NSWCCA 405. It is not necessary to deal further with that part of the appeal. 16 The Crown submitted that his Honour erred in treating this case as one of momentary inattention or misjudgment. A number of cases were referred to, in particular R v Guilfoyle (1973) 57 Cr AppR 549, a passage from which was quoted in the Chief Justice's decision in Jurisic at 223. In that case the English Court of Appeal pointed out that cases of a kind where the offence is of causing death by dangerous driving - " ... fall into two broad categories: first, those in which the accident has arisen through momentary inattention or misjudgment and, secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness. A sub-division of this category is provided by the cases in which an accident has been caused or contributed to by the accused's consumption of alcohol or drugs." 17 It was submitted that it was a misapplication of the principles stated in Jurisic to classify the respondent's driving in this case at the time of the collision as one of momentary inattention or misjudgment. It was submitted that the respondent had abandoned responsibility for his actions. He had ingested alcohol to the point where his bloodstream contained a high range concentration. There was a finding by the trial Judge that the drinking of a substantial amount of alcohol had contributed to his misjudgment. 18 He had conceded in the course of an interview that he was feeling fairly tired at the time when he set off to drive to his home. He was driving in traffic of medium density on a narrow bridge at fifty kilometres per hour and bent down to pick up a cigarette. This, it was submitted, was not a case of momentary inattention. 19 In the course of the interview the respondent had been asked whether he would agree that it was a very dangerous thing to do, to take his eyes off the road "when you are travelling across such a narrow bridge" and he had said that he did agree. 20 The Crown submitted that his Honour's reference to time having shown since the earlier convictions that the respondent had reformed his driving was a demonstration of misplaced confidence. It was pointed out that in Jurisic, in the passage at 231, it was 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." The Chief Justice went on to say: "The period of two years, once the threshold of abandoning responsibility has been reached, is a starting point." 21 It was submitted that the sentencing judge failed to give sufficient weight to public deterrence. The substance of the offence was dangerous driving in association with occasioning grievous bodily harm aggravated by the prescribed concentration of alcohol in the respondent's blood. 22 Mr Strickland, who appeared for the respondent, furnished both written and oral submissions. The argument was broken up into effectively three sections. First, that the finding of momentary inattention was open to the sentencing Judge and appropriate. Secondly, that there was, demonstrated in the remarks on sentence, the particular risk of danger in driving across this narrow bridge if there was any inattention because of its narrowness and the proximity of oncoming traffic. Thirdly, the cause of the accident was the dropping of the cigarette and the respondent's taking his eyes of the road. 23 We were referred by Mr Strickland to two recent decisions of this Court: R v Khatter [2000] NSWCCA 32 and, particularly, the judgment of one member of the majority, Sully J, paras 4, 5 and 6, where his Honour referred to the dissenting judgment of Simpson J. Her Honour said: "These Courts deal with human beings with all their human weaknesses and while the Courts cannot condone any act of driving whilst there is present in the blood more than the prescribed concentration of alcohol, it is not necessary to characterise every instance of the offence as an abandonment of personal responsibility. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the Courts to recognise a continuum rather than a dichotomy when assessing moral culpability." Sully J said he agreed with those observations. He accepted it would not be fair to say of the respondent in that case that a particular moral culpability was to be assessed in terms of a simple and comprehensive abandonment of his relevant personal responsibility. His Honour continued: "I do think, however, that there is no escaping the simple fact that the respondent on his own version of the relevant facts deliberately drove a motor vehicle on a public street when he realised that he was, by reason of the effects of alcohol previously ingested, in no fit state to do so. That entails, in my opinion, a real degree of moral culpability in the respondent." 24 In his judgment in Jurisic the Chief Justice set a guideline - and I accept no more than that - for cases of this type unless there are circumstances which are described as exceptional. The Chief Justice said that what is exceptional is almost invariably confined to cases involving momentary inattention or misjudgment. However, his Honour also made mention when describing the appropriate guideline that the context was that there was present "to a material degree" an aggravating factor. What in any particular case may be the material degree and the extent of that materiality is no doubt a matter to be taken into account. 25 In the course of both written and oral submissions reference was made to the recent decision of the High Court in Dinsdale v The Queen (2000) 74 ALJR 1538 and, in the judgment of Kirby J at para 63, to the proposition that where the Crown appeals it is clearly obliged to demonstrate very clearly the error of which it complains. 26 It was submitted that in this case the sentencing judge had taken account of all the relevant facts and had applied correctly the principles in Jurisic. 27 Mr Strickland emphasised that this Court may not, of course, simply substitute its own opinion for that of the sentencing judge merely because it may have exercised the discretion differently. Mr Strickland drew our attention to the principle of double jeopardy (Everett v The Queen (1994) 181 CLR 295) and again referred to the judgment of Kirby J in Dinsdale at para 62. 28 In the next stage of his argument Mr Strickland submitted that even if this Court were satisfied that there was an error, as a matter of discretion, it should not quash the sentence and re-sentence. The respondent had suffered a degree of hardship by serving, since 8 September 2000, the sentence of periodic detention. This involved him in travelling for some two or three hours back and forth between the detention centre and where he lives. 29 The subjective features that were referred to by the trial Judge were emphasised. It was pointed out that the respondent has made, and continues to make, attempts to overcome his alcohol problem. Emphasis was placed upon the fact that he had pleaded guilty when the matter was brought up for trial in August 2000. It was accepted that this may not have been a plea at the earliest point of time but it was not a plea, as it were, at the last moment. Finally, it was said - and in this regard we were taken to the decision of this Court in Howland (1999) 104 A Crim R 273 - that any full-time custodial sentence to be imposed should be effectively for no more than three months beyond this date. The submission stressed that while serving periodic detention the respondent had resumed a normal life. 30 Howland, a case in which the accused had gone through a red light and as a result impacted with a motor cyclist who had died, was a case in which there was no suggestion of the presence of alcohol. In the course of his judgment, Spigelman CJ said at 278-279: "His Honour's express finding that the car in front did not suddenly brake puts the respondent's version in a completely different light. The combined effect of this finding and the finding that the motorcyclist proceeded slowly after his lights had turned green indicate that this was not a case of momentary inattention of a character which can happen to any driver on the road. Rather it was a case in which the driver took a calculated risk to run the red light. In view of the action taken by the respondent in changing lanes and then accelerating, on his own version of the facts, he took the risk of running the light." 31 In my opinion, the Crown has demonstrated that the sentence imposed in this case was manifestly inadequate. The extent of that inadequacy demonstrates, in accordance with the principles stated by the High Court in House v The King (1936) 55 CLR 499, that there was error in the sentencing procedure. I am not persuaded that it was correct to classify this as a case of momentary inattention as that expression is used in Jurisic. No doubt the particular circumstances described, however defined, have to be taken into account in determining the seriousness of the offence. Such expressions have to be understood in that context. 32 In this case the respondent set out to drive home when he was aware that he had had a large amount of alcohol to drink the previous day between about 11am and 4pm. Apparently the amount was about twenty-four stubbies full strength. He then went to work after about four or five hours sleep. When he finished work he consumed more alcoholic liquor, as it was described in the remarks on sentence. The respondent described himself at that stage as fairly tired. 33 He set out to drive a distance of about fifteen kilometres. While driving across a narrow bridge he dropped a lighted cigarette on the floor of the vehicle. In that situation, driving at fifty kilometres per hour on a narrow bridge in medium density traffic, he bent down in a way which meant that his eyes were beneath the dashboard and he could not see the road. It was at that point that the vehicle reacted in the way that it did and the collision occurred. 34 The respondent accepted it was a very dangerous thing to do, to take his eyes off the road when driving across a narrow bridge. In my opinion, the respondent, in setting out to drive home and continuing on his way with a concentration of alcohol well above the lower limit of the high range and while tired, had undertaken quite deliberately and recklessly a dangerous enterprise. 35 In my opinion, the sentence, as explained by the sentencing Judge, failed properly to take into account the seriousness of the offence as charged. In particular, it seems to me that no proper account was taken of the part to be played by and the need for public or general deterrence. 36 These factors lead me to the conclusion, bearing in mind the amount of the sentence imposed, that his Honour erred in the sentencing procedure. The question is whether this Court should, as a matter of discretion, exercise its power to revisit the sentence. 37 In my opinion, it should. I reiterate the gravity of the offence with a maximum penalty of eleven years imprisonment. I have taken careful account of the subjective matters set out in the remarks on sentence. 38 There was filed in court today an affidavit by the respondent, which I have read. I take account particularly of the respondent's employment history and I take account of the evidence that he gives about his attempts to deal with his alcohol problem. 39 In determining what should now be done, I also take account of the fact that the respondent, having been already sentenced for the offences to which he has pleaded guilty, is now brought up for sentence again and therefore suffers double jeopardy. It is, of course, also important to bear in mind that the respondent pleaded guilty as early as he did. As I have said, in my opinion, this is a case in which the sentence imposed by Judge Moore should be set aside and this Court itself should re-sentence. 40 Judge Moore made no reference in his remarks on sentence to special circumstances. In my opinion, there are special circumstances. The respondent has never been to gaol before. He has, over a period of some five months, attended and served the sentence of periodic detention. He is undergoing treatment to deal with his alcohol problem. It seems to me that in determining what the non-parole period should be, there is benefit in an extension of the period of rehabilitation. 41 In my opinion, the appeal should be allowed, the sentence below quashed. In lieu thereof the respondent should be sentenced to a term of imprisonment of two years, to commence on 8 September 2000. There should be a non-parole period of twelve months. 42 Accordingly, the Court should order that the respondent be released on parole on 7 September 2001. The order for disqualification made by the sentencing Judge should be affirmed. 43 GROVE J: I agree with Sheller JA. 44 KIRBY J: I also agree with the reasons of the presiding Judge and the orders proposed. 45 SHELLER JA: The order of the Court will therefore 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. 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.