Regina v Justin Cram [2002] NSWCCA 83

New South Wales Court of Criminal Appeal

CITATION : Regina v Justin Cram [2002] NSWCCA 83 FILE NUMBER(S) : CCA 60420/2001 HEARING DATE(S) : 21 March 2002 JUDGMENT DATE : 21 March 2002

PARTIES : Regina Justin Cram JUDGMENT OF : Greg James J at 18; Buddin J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/41/0090 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : PG Ingram (Crown) Applicant in person SOLICITORS : SE O'Connor (Crown) CATCHWORDS : Drive in a dangerous manner causing grievous bodily harm - drive conveyance without the owner's consent - Form 1 matters - operation of R v Jurisic - discount for plea of guilty where Crown case overwhelming - "special circumstances" - effect of cumulative sentence - no less severe sentence warranted Crimes Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED: R v Cameron [2002] HCA 6 R v Thomson & Houlton (2000) 49 NSWLR 383 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60420 of 2001

GREG JAMES J BUDDIN J

THURSDAY 21 MARCH 2002 REGINA V JUSTIN CRAM Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court where he adhered to pleas of guilty originally entered in the Local Court. The charges to which he pleaded guilty were first that, pursuant to s 52A(3)(c) of the Crimes Act, he drove a vehicle in a dangerous manner causing grievous bodily harm. That offence carries a maximum penalty of seven years' imprisonment. In respect of that offence the applicant was sentenced to imprisonment for three years and four months commencing on 31 March 2001 (the date on which he first went into custody) and concluding on 30 July 2004. A non-parole period of thirty months also commencing on 31 March 2001 but concluding on 30 September 2003 was fixed. At the request of the applicant seven additional matters on a Form 1 were taken into account by the sentencing judge when he imposed sentence upon this matter. 2 The applicant also pleaded guilty to an offence brought pursuant to s 154A(1)(b) of the Crimes Act that he drove the vehicle, the subject of the first charge, without the owner's consent. That offence attracts a maximum penalty of five years' imprisonment. In respect of that offence the applicant was sentenced to twelve months' imprisonment with a nine month non-parole period which was to be served cumulatively upon the first matter. That further sentence was ordered to commence on 31 (sic) September 2003 and to end on 30 September 2004. The applicant's non-parole period was fixed to expire on 30 June 2004. The overall effect of the sentences imposed was thus a head sentence of three years six months imprisonment and a non-parole period of three years three months imprisonment. 3 The facts in relation to the two charges to which the applicant pleaded guilty are conveniently summarised by the sentencing judge in the following terms: On 31 March 2001 a Holden Kingswood sedan was stolen from the carpark of The Parrish at Figtree. At about 4.30 pm on that day police attended an address at Gwynneville in relation to a domestic complaint. There the police observed the offender seated in the driver's seat of the stolen Holden Kingswood. As the police approached the vehicle the offender reversed the vehicle out of the driveway and drove off in a southerly direction. The offender was alone in the vehicle. To avoid police vehicles he drove onto a grassed nature strip, [and] stalled the engine of the Holden. When the police attempted to apprehend the offender he managed to restart the engine, drive off the grassed area and he then travelled south onto the F6 freeway, getting onto the freeway by driving up an off ramp in the wrong direction and contrary to a large red and white sign indicating that entering the off ramp was prohibited. Once onto the F6 freeway he then drove the Holden south along the northbound lanes against the flow of traffic. I reiterate that this was at a time late-ish in the afternoon. He drove approximately one kilometre on the incorrect side of the F6 to a point about 120 metres south of the Gipps Street overpass, where he faced then oncoming vehicles. The offender then braked harshly causing the Holder to fishtail to the right at which time his vehicle collided with the side of a northbound Hyundai sedan travelling in lane 2 of three lanes. The offender then continued to drive against the oncoming traffic when the front of the Holden collided heavily with the front near side of a Ford station sedan travelling in lane 3. The offender then continued on travelling south colliding head on with a white Pantec truck, also travelling in lane 3. That collision caused the vehicle being driven by the offender to rotate and to present its rear off side into lane 2 where it collided with a Mitsubishi Star Wagon being driven by Garry Hook. There was a heavy collision between the Holden driven by the offender and the rear off side guard of Mr Hook's vehicle. After coming to rest, the offender was able to free himself from the Holden and he ran in a westerly direction to the freeway's breakdown lane. He was arrested by police and cautioned by them at the scene. Mr Hook was less fortunate. He was not able to get out of his vehicle, because not only did he have multiple fractures to both his legs and to his right arm, but the force of the impact meant that he was trapped in the vehicle and he had to be cut out from it. In a statement in handwriting to police he said: "I was cut out of my car and placed into an ambulance and taken to Wollongong Hospital. As a result of the collision I received a dislocated left wrist which is in plaster. My left leg has three compound fractures in different places. My leg is in plaster and will be for three months." A discharge summary from the Wollongong Hospital, dated 10 April 2001, when Mr Hook was discharged indicated that he sustained a left fractured tibia and fibula; a dislocated left wrist; a fractured right ring finger. X-rays showed a transverse mid shaft fracture to the left tibia; a segmental non displaced fracture to the left fibula and dislocation at the left wrist. It appears that Mr Hook received operative treatment in hospital for his various injuries. When spoken to by police the offender declined to take part in an electronic interview. When he was informed by the police that he would be charged he said, "Yeah, I don't know why. I didn't do anything". He was, in fact, a disqualified driver at the time of these offences, having been disqualified from holding a licence from 13 November 1995 to 29 May 2001. A statement of facts prepared by the police states that the F6 freeway is a major arterial road connecting Wollongong with the northern suburbs and is the freeway to Sydney. At the time of the collision there was moderate weekend traffic. The road surface was said to be dry bitumen and the weather was fine. In my view the circumstances of the commission of these offences, particularly the dangerous driving offence, are alarming and of the utmost seriousness. 4 A number of other people involved in the various collisions sustained what were fortunately in the circumstances relatively minor injuries. 5 The matters on the Form 1 related to an incident which had taken place a month prior to the two offences which occurred on 31 March 2001. The applicant had gone to a retirement village where he had behaved in a very aggressive manner and had smashed a window. When police had arrived he had continued to behave aggressively and had assaulted them. He was accordingly charged with two offences of assaulting police, two offences of resisting police, as well as malicious damage to property and using offensive language. The remaining matter on the Form 1 related to his being a disqualified driver whilst committing the two offences to which I have earlier referred. 6 The applicant had accumulated a significant number of prior convictions, starting with matters recorded against him when he was only 14. He had been subject to control orders whilst a juvenile and had also been imprisoned as an adult. His record included previous entries for stealing and illegal use of motor vehicles, break, enter and steal and other offences of dishonesty, driving whilst disqualified, driving in a manner dangerous, resist police, assault police and drug offences. His traffic record also revealed numerous convictions for a variety of offences. He had been convicted on five previous occasions for driving whilst disqualified and on four previous occasions for driving in a manner dangerous. There were also five prior occasions on which he had been convicted for stealing or illegally using vehicles. 7 It was against that background that the sentencing judge made the remarks which are set out below: In my view it is clear from his long record of previous convictions, particularly for offences like the ones I am to sentence him for and also offences of the kind that appear on the Form 1, that is to say, driving whilst disqualified and assaulting police officers in the execution of their duty, that this offender demonstrates an utter contempt for the criminal law and an utter contempt for the safety and the rights of other people. In my view, these offences and in particular the offence of dangerous driving in the circumstances that I have outlined, is an offence of the utmost seriousness and merits an appropriate increase in the minimum penalty set out in the guideline judgment of R v Jurisic reported at, amongst other places, 101 ACR 259, in particular at 277 and 278. In that case the Chief Justice said that an appropriate guideline for offences of this kind with a plea of guilty whenever there is prison (sic) to a material degree any aggravating factor involving the conduct of the offender is a custodial sentence; in the case of the causing of grievous bodily harm of not less than two years. The Chief Justice said that the period of two years, once the threshold of abandoning responsibility has been reached, is a starting point and the presence of additional aggravating factors or their increased intensity will determine the actual sentence. There is no question that in this case the offender went a long way past abandoning responsibility for his driving. In my view, the seriousness of this offence is increased by the number of people he put at risk, that is to say, a number of motorists on the F6 freeway; the length of the journey during which he exposed others to risk, that is to say, over more than a kilometre while he was driving against the oncoming traffic and the fact that he was deliberately driving in that way in an endeavour to escape the police. In my view, the presence of those aggravating factors warrants a significant increase in the minimum term of two years that the Chief Justice spoke about in Jurisic . In addition to that there are the matters on the Form 1 which, in my view, must themselves bring an increased penalty in accordance with the Court of Criminal Appeal's decision in R v Morgan as per what Hunt J, the Chief Judge at Common Law, said in that case. That is so in this instance, particularly in relation to assaulting police officers and driving whilst disqualified because, as I have already indicated, this offender has been convicted of those same offences on a number of previous occasions. In my view, it is necessary to impose sentences on this offender which reflect considerations of not only general deterrence but, in this man's case because of his appalling criminal record, specific deterrence as well. 8 The sentencing judge had before him a report from a psychologist, Ross Leonard. It revealed that the applicant had been raised in a highly dysfunctional environment marked by his father's alcoholism and his mother's physical and psychological abuse. His Honour referred to the fact that the applicant had been significantly affected by the loss of his brother in a car accident in late 2000. His Honour then made specific reference to the section in the report entitled "Opinions and Conclusions". Mr Leonard's findings were in the following terms: The results of his personality questionnaire show Justin to be someone who is essentially antisocial in his demeanour. Implicit, in this description is a proneness to be impulsive, short sighted and irresponsible. Angry, acting out behaviour is also consistent, as is disregard for the rights, property and integrity of others. Justin was at pains to point out that his (sic) is, 'not a violent person'. His offences however, incorporate behaving hastily and impulsively without considering the consequences. Furthermore, the fact that he was under the influence of alcohol at the time would have reduced his already inadequate impulse control. He is yet to gain insight into his obvious problem with the under controlled anger and reckless, dangerous acting out, nor does the (sic) fully appreciate the disinhibiting affect of alcohol and possibly drugs on his actions… Trauma counselling sessions are needed to address his grief over the death of his brother. His participation in programs aimed at anger management and conflict resolution would also be considered appropriate and he has expressed and (sic) interest in this. He may be an appropriate candidate for the violent offenders program based at Long Bay Gaol. His committed involvement would certainly enhance his prognosis. 9 The applicant, who appeared unrepresented in this Court, made a submission which, when distilled, amounted to an argument that the sentences imposed upon him were manifestly excessive. He referred to a number of matters including the fact that he was in a state of severe depression at the time of the offences by reason of his brother's death. I am not persuaded either that his Honour failed to have regard to these matters or that he did not give them sufficient weight. 10 The sentencing judge allowed the applicant a discount of 10% for the plea of guilty in purported compliance with R v Thomson & Houlton (2000) 49 NSWLR 383. He did so on the basis that it had a utilitarian value but his Honour said however that he was not prepared to give any further discount because of the overwhelming nature of the Crown case. 11 I am of the view that his Honour erred in having regard, contrary to what was said by this Court in Thomson & Houlton, to the strength of the Crown case in assessing the appropriate discount for the utilitarian value of the plea. It is of course now necessary to refer to the offender's "willingness to facilitate the course of justice." See R v Cameron [2002] HCA 6. I will return in due course to consider what consequence, if any, flows from this conclusion. 12 It is clear that his Honour intended that the sentence for the second offence should be served wholly cumulatively upon the first sentence. It was open to his Honour to so conclude. It was also open to his Honour to find that this was not a case in which there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 13 In my view what the sentencing judge intended to achieve was an overall head sentence of four years and four months imprisonment (comprising individual head sentences of three years four months and twelve months respectively) with an aggregate non-parole period of three years and three months (consisting of individual non-parole periods of two years six months and nine months respectively). As I earlier pointed out the effective sentence which was imposed was a head sentence of three years six months imprisonment with a non-parole period of three years and three months. The apparently anomalous result at which the sentencing judge arrived appears to have occurred because his Honour ordered that both the head sentence and the non-parole period for the second offence were to commence on the expiration of the non-parole period fixed for the first offence. 14 Ordinarily a non-parole period which was ordered to run for all but three months of an overall sentence of three years six months would suggest, in the absence of any explanation, that the sentencing process may have miscarried. However in the circumstances of the present case what has occurred is that the applicant has received a benefit which the sentencing judge clearly did not intend (namely that his overall sentence expires ten months before the sentencing judge intended that it should or putting it another way, that the applicant will be potentially subject to parole for ten months less than was in fact intended). In those circumstances I am not of the view that there is any warrant to intervene to address the anomalous situation that I have described. 15 Furthermore and notwithstanding the conclusion at which I earlier arrived concerning the error made by his Honour in respect of the applicant's plea of guilty, I am not of the view that a less severe sentence is warranted in law: Criminal Appeal Act 1912 s 6(3). 16 In my view given the very significant objective criminality displayed by the applicant against the background of his extensive antecedents no other sentences than those which were imposed could be contemplated. 17 Accordingly I propose the following orders: