New South Wales Court of Criminal Appeal CITATION : R .v. COOK [2002] NSWCCA 140 FILE NUMBER(S) : CCA 60868/01 HEARING DATE(S) : 15th April 2002 JUDGMENT DATE : 24 April 2002 PARTIES : Rodney William COOK - Applicant Regina - Respondent JUDGMENT OF : Spigelman CJ at 1; Mason P at 2; Barr J at 3; Bell J at 22; McClellan J at 23 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/1035 LOWER COURT JUDICIAL Payne DCJ OFFICER : Mr P. Kintominas for the Applicant COUNSEL : Mr G.E. Smith for the Crown Mr A.C. Haesler for the Public Defender intervening Mr R.D. Cogswell SC/ M. Buscombe/ B. Baker for the Attorney General intervening SOLICITORS : Michael Croke and Company for the Applicant S.E. O'Connor for the Crown CATCHWORDS : Criminal law - sentencing - driving in a manner dangerous causing grevious bodily harm - whether, assuming error in sentencing, any less severe sentence warranted. LEGISLATION CITED : Crimes Act 1900 s 52A Criminal Appeal Act 1912 s 6 (3) R v Thomson and Holton (2000) 49 NSWLR 383 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: Wong and Leung v The Queen [2001] HCA 64 Neal v The Queen (1982) 149 CLR 305 R v Simpson [2001] NSWCCA 534 DECISION : See Judgment at Paragraph 21 IN THE COURT OF CRIMINAL APPEAL 60868/01 Spigelman CJ Mason P Barr J Bell J McClellan J 24 April 2002 Regina v Rodney William COOK Judgment 1 Spigelman CJ: I agree with Barr J. 2 Mason P: I agree with Barr J. 3 Barr J: The applicant, Rodney William Cook, applies for leave to appeal against a sentence imposed in the District Court following his plea of guilty to the charge that on 21 May 1998 at Quakers Hill he drove a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned. By s 52A(3) Crimes Act the maximum penalty prescribed for that offence is imprisonment for seven years. Payne DCJ sentenced the applicant to imprisonment for one year and ten months and fixed a non-parole period of twelve months. 4 The facts were as follows. The applicant and a friend were drinking at the Marayong Hotel. They left the hotel just after 6:00pm on Thursday 21 May 1998 and travelled in the applicant's car towards Quakers Hill. The applicant was driving. During the course of the journey the applicant drove along Railway Road Quakers Hill where the speed limit was sixty kilometres per hour. He drove his car at a speed at a little under one hundred kilometres per hour. The vehicle came into collision with the rear of a slow-moving car driven by Mrs Marta Puchalska. Mrs Puchalska's car had just reversed out of a parking place beside the road. The impact pushed Mrs Puchalska's car into collision with a third vehicle. She suffered serious head injuries, brain damage, a ruptured spleen and a fractured pelvis. She was taken to Westmead hospital and kept there in intensive care, undergoing surgery for her head injuries. After that she was transferred to the Brain Injury Rehabilitation Unit and after that underwent intensive rehabilitation including physiotherapy, occupational therapy, speech pathology and rehabilitation nursing. She was eventually allowed to go home and reached a condition in which she was able to do most things for herself. However, she is now permanently incapacitated, unable to work and requires assistance and supervision in her daily and home tasks. She has poor memory, poor organisational and problem-solving skills, poor initiation and poor temper control and suffers from fatigue and depression. She was fifty-four years of age at the time of the collision. 5 After the collision the applicant ran away but before long he went in distress to the police station and told an officer that he was responsible. He said that he had been driving at one hundred kilometres per hour. 6 Blood was taken for testing and was found to contain 0.052 grams per 100 millilitres of blood. The applicant was charged with the offence of which he was eventually convicted. He did not take the opportunity to plead guilty to the charge, however, when it was preferred in the Local Court. Later on the Director of Public Prosecutions took over the conduct of the case and charged the applicant under s 52A(4) with the offence of aggravated dangerous driving causing grievous bodily harm. The maximum penalty for that offence is eleven years' imprisonment. The aggravation relied on was that the applicant was exceeding the speed limit by more than forty-five kilometres per hour. He was committed to the District Court for trial on that charge. 7 In the District Court the Crown indicated that it was prepared to accept a plea of guilty to the offence under subs (3) and the applicant forthwith entered that plea. 8 Her Honour noted that although the applicant had not pleaded guilty at the first opportunity he had done so on his first arraignment in the District Court and as soon as the Crown indicated in that Court that it was prepared to accept a conviction of the unaggravated form of the offence. Referring to R v Thomson and Houlton (2000) 49 NSWLR 383, her Honour decided to reduce the sentence by 17% to allow for the utilitarian value of the plea. 9 Her Honour noted that the Crown case was strong, though assisted by the applicant's voluntary remarks to the police, to which he adhered in the District Court. Her Honour noted the high speed at which the applicant was driving. She accepted the genuineness of his contrition. Then, referring to R v Jurisic (1998) 45 NSWLR 209, her Honour noted a number of features categorised in that case as relevant to sentencing in an offence of this kind and present in this case. They were the extent of the injuries inflicted, the number of persons put at risk, the degree of speed of the vehicle and the length of the journey during which others were exposed to risk. Her Honour stated that although this was not an example of momentary inattention or misjudgment she was not prepared to say in all the circumstances that the degree of speed represented an abandonment by the applicant of his responsibility, although it was very close to such an abandonment. 10 In making those observations her Honour was referring to the judgment of Spigelman CJ in R v Jurisic at 231 in which his Honour observed that the presence of factors by which the conduct of an offender might be assessed (here excessive speed) might lead to the conclusion that an offender had abandoned responsibility for his or her own conduct. When such a factor could be so described then it could be said to be present to a material degree for the purposes of determining an appropriate sentence. Such a conclusion would attract the application of the guidelines set forth in his Honour's judgment. 11 Having observed that the applicant's case presented a serious example of the behaviour made criminal under s 52A(3) her Honour said that a conclusion that there had been no abandonment of responsibility did not mean that a full-time custodial sentence was not appropriate. Her Honour was undoubtedly right about that because an independent factor bearing on sentence was the degree of resulting harm. In due course her Honour explained why she thought that nothing less than the imposition of a full-time custodial sentence would be appropriate. 12 Her Honour noted the subjective features of the applicant's case. I have already referred to his contrition. He was twenty-one years eight months of age at the time of the collision and twenty-four years and ten months of age when sentenced. He had no prior criminal record and had a good work history. He had substantial support in the community and a settled home life. Her Honour thought him highly unlikely ever to drive in such a fashion again, notwithstanding his record of three prior offences for exceeding the speed limit. Her Honour thought that his record did not disentitle him to some leniency. 13 Her Honour observed that a reduction of about 10% would be appropriate for the late plea of guilty, referring to R v Thomson and Houlton. Her Honour then constructed a sentence, starting at two years but increasing that term by 10% to two years and four months on the assumption that the two year R v Thomson and Houlton starting point incorporated a 10% reduction for a plea of guilty, and then deducted the 17% I have already mentioned to take account of the utilitarian considerations of the plea of guilty. So a sentence of twenty-two months was arrived at. 14 A number of attacks were made on appeal about the principles employed in the formulation of the sentence and about the precise manner of its calculation. 15 It was submitted by counsel for the applicant that her Honour erred in her reference to R v Jurisic and what was said to be her purported application of the principles set forth therein. It was submitted that R v Jurisic should not be followed, first because it had been implicitly disapproved by the High Court of Australia in Wong and Leung v The Queen [2001] HCA 64 and secondly because the judgment was fundamentally flawed for various reasons articulated in the written submissions. 16 Then it was submitted, assuming that the Jurisic guidelines had validity, that her Honour was wrong, in view of her failure to find an abandonment of responsibility, to refer to the guidelines at all as justifying her starting point of two years. It was submitted that if a starting point was appropriate it should be considerably less than two years. It was submitted that increasing the two year period by 10% wrongly assumed that a starting point suggested in R v Jurisic contained a built-in R v Thomson and Houlton discount of 10%. Her Honour's mathematical calculations were criticised and were said to illustrate the dangers inherent in a "two-tiered" approach to sentencing, which was wrong. 17 Attention was drawn to the favourable findings of her Honour and to the subjective features favouring leniency. The submission may be taken to have been that the length of the sentence itself manifested error, her Honour having stopped short of a conclusion that the applicant had abandoned his responsibility. 18 To my mind this appeal does not give rise to the need to reconsider the principles set forth in R v Jurisic, whether by reference to Wong and Leung v The Queen or otherwise. Neither is it necessary in my view to make any final determination about the manner in which her Honour calculated the head sentence of one year ten months. Her Honour's calculations contain one patent error, namely an increase by one-tenth, rather than one-ninth, to allow for an assumed prior discount of one-tenth. But this is a minor matter. Assuming in favour of the applicant that her Honour erred in every submitted respect it does not seem to me that this Court would be justified in setting aside the sentence and substituting any lesser sentence. Notwithstanding the respectable subjective case the applicant was able to put forward, the manner of his driving and the tragic results amounted in my opinion to a very serious case of the type contemplated by s 52A(3). 19 It seems to me that driving at a speed close to 100 kilometres per hour in a sixty kilometres per hour zone in the vicinity of a railway station where cars and pedestrians might be expected to be moving about was highly dangerous. The day was a Thursday and it was a little after 6:00pm. Numerous people might be expected to be leaving the railway station on their way home from work. It was well after sunset. In my opinion the conclusion that the applicant had not abandoned his responsibility for his conduct was not open to her Honour. The high degree of dangerousness of the applicant's driving combined with the grave injury caused to Mrs Puchalska to make it necessary to impose a substantial custodial sentence. In my opinion the sentence imposed was lenient. 20 Insofar as the applicant's submissions proceeded on the assumption that any demonstration of error obliged this Court to interfere and impose a lesser sentence they were not in accordance with the jurisdiction exercised by this Court. Notwithstanding any demonstration of error, the Court must dismiss an appeal against sentence unless it comes to the view that a less severe sentence is warranted in law. This is the effect of ss5(1)(c) and 6(3), Criminal Appeal Act, reading down the latter subsection in accordance with Neal v The Queen (1982) 149 CLR 305. See also R v Simpson [2001] NSWCCA 534 in the judgment of Spigelman CJ at paras 74-79. 21 In my opinion no sentence less than a head sentence of one year ten months is warranted in this case. In my opinion no non-parole period of less than twelve months is warranted. I would grant leave to appeal but would dismiss the appeal. 22 Bell J: I agree with Barr J. 23 McClellan J: I agree with Barr J. ********** 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.