Regina v Ammar Elrifai [2002] NSWCCA 496

New South Wales Court of Criminal Appeal

CITATION : Regina v Ammar Elrifai [2002] NSWCCA 496 FILE NUMBER(S) : CCA 60004/02 HEARING DATE(S) : 09/12/02 JUDGMENT DATE : 9 December 2002

PARTIES : Regina Ammar Elrifai (Applicant) JUDGMENT OF : Bell J at 20; Buddin J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0226 LOWER COURT JUDICIAL Tupman DCJ OFFICER :

COUNSEL : GIO Rowling (Crown) HK Dhanji (Applicant) SOLICITORS : SE O'Connor (Crown) DJ Humphreys (Applicant) CATCHWORDS : Severity appeal - plea of guilty to offence of aggravated dangerous driving occasioning death - circumstance of aggravation being escaping from a police pursuit - impact of R v Whyte upon R v Jurisic - applicant suffered severe injuries - deceased was his best friend. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2002] NSWCCA 343 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60004/02

BELL J BUDDIN J

MONDAY 9 DECEMBER 2002 REGINA v AMMAR ELRIFAI Judgment 1 BELL J: I will ask Buddin J to give the first judgment. 2 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court in relation to a charge brought pursuant to s 52A(2) of the Crimes Act 1900. The applicant originally pleaded guilty in the Local Court and he adhered to that plea when he appeared for sentence in the District Court. The offence attracts a maximum penalty of fourteen years' imprisonment. The offence charged was one of aggravated dangerous driving occasioning death in which the circumstance of aggravation was that the applicant was driving to escape a police pursuit and was as a result involved in an impact which occasioned the death of his passenger. The applicant was sentenced to four years' imprisonment with a non-parole period of two years. He was also disqualified from holding or obtaining a driving licence for a period of three years. 3 The sentencing judge found the following facts, which are not the subject of challenge in this Court, for the purpose of sentencing the applicant. I gratefully adopt her Honour's summary of those facts which is in the following terms: …at about 10.10 pm on 5 August 2000, police noticed the 1998 Ford Falcon being driven by the prisoner, driving along Pitt Street, Merrylands at about 40 kilometres per hour, and noticed that it was driving straddling lanes one and two. Police were suspicious that the driver of the vehicle was under the influence of alcohol or some other substance and proposed to pull the vehicle over for a random breath test. They tried to do so by using their red and blue flashing lights and then their siren. The prisoner did not stop, although I accept must have known that the police were attempting to pull him over by the use of both lights and sirens. He accelerated harshly and sped away from police who gave chase. A police pursuit was put in place. At the intersection with Railway Parade, the prisoner drove through a red traffic control signal and continued through the intersection. I accept that the lights had only just turned red at the time he did this. His estimated speed at the time was in excess of a hundred kilometres per hour. This was a sixty kilometre per hour residential area. This section of Pitt Street ascends to the Great Western Highway and after it crosses that it descends to the intersection of Campbell Street. When the prisoner reached that intersection with the Great Western Highway, he again went through a red signal which I also accept had only just turned red. As he did so, his vehicle became airborne. I accept that the vehicle was airborne for approximately twenty-six metres, and then came back down to the roadway with a heavy thud. I accept that more probably than not, the prisoner realised at this point that he was likely to collide with a kerb and turned the wheel to the right which led to him losing control, travelling in a yaw and colliding with a tree at the edge of the road. As a result of the collision the front passenger side was extensively damaged. There was a passenger in the vehicle with the prisoner, Mr Mahmoud Merheb, a twenty five year old man who suffered fatal injuries as a result of that high speed collision with the tree. I accept from the report of Mr Skulthorpe that the prisoner was travelling at no less than 111 kilometres per hour at the time immediately before his vehicle became airborne. The prisoner too suffered injuries, which I will come to in a moment. He was taken to Westmead Hospital where he stayed for treatment as an in-patient for about a month. When interviewed by police on 29 August 2000 in relation to this incident, the prisoner indicated that he did not remember anything about the collision, nor anything about the events leading up to it and declined to participate in an interview. He did not hold a New South Wales Driver's licence at the time, although he had a learner's permit. He did not have an authorised licence holder in the vehicle with him at the time of the collision. He has given evidence today that he held some form of driver's licence from Lebanon, his country of origin, but there is no evidence before me to indicate that this was a licence which would have enabled him to drive lawfully on the streets of Sydney without further action being taken by him. 4 Her Honour then set out at some length the features of the case that entitled the applicant to a moderation of the otherwise appropriate sentence. The applicant was twenty-four years old at the time of the offence and twenty-six years old at the time of sentence. He had come to Australia from his native Lebanon about two years prior to the accident. He had met and married an Australian citizen in Lebanon before coming with her to Australia. They had a daughter in June 1999, however his wife had ended the relationship shortly prior to the birth. The applicant had continued to have contact with his daughter and paid his wife child support up until the time of the accident. 5 As a consequence of the accident, the applicant lost his job which meant that he could not continue paying child support as he was ineligible to receive social security benefits and had no other source of income. Thereafter his wife limited his contact with his daughter. The applicant came to Australia on a spouse visa but his application for permanent residency was rejected. He is seeking a review of that decision although it would appear that his prospects of success may not be assisted by reason of the infrequent contact which he has with his daughter. 6 There were two features of the case upon which the sentencing judge placed particular emphasis. The first was that the applicant had himself suffered serious injuries arising from the accident. Her Honour's description of that evidence emerges in the following passage in the Remarks on Sentence. Her Honour said that: [he] suffered a skull fracture with loss of consciousness, bruising to the brain and a fracture of a cervical vertebra. He had a leak of cerebrospinal fluid evident in the early stages of his hospitalisation. He suffered a deep vein thrombosis in one of his legs. He suffered post traumatic amnesia, fracture of his nasal bones, a contusion and haematoma of his lung, a fractured rib, abrasions to his wrist and hand and superficial injuries to his abdomen, lower back and pelvis. He required surgery under general anaesthesia, many investigations, a tracheostomy, several transfusions and similar investigations and interventions during the one month that he was an in-patient. Up until July 2001, he continued to be followed up by the Brain Injury Unit and rehabilitation medicine specialist at Westmead Hospital. I accept, more probably than not, that he has suffered from post traumatic stress disorder. He continues to have back pain, headaches, loss of memory, some dizziness and depression as a result of the accident. In particular the depression and post traumatic stress disorder, the on-going back pain, headaches and dizziness will have an impact on his experience of gaol. He will find the experience of gaol more onerous, given these on-going physical and psychological conditions than would the general prison population. I accept that whilst he will have some access to on-going medical and psychiatric care in prison, it will be of a relatively limited nature, given the resources available to the Corrective Services Department. He has been referred for psychiatric care by Westmead Hospital. He has seen a psychiatrist on five occasions but was unable to continue with the treatment because of lack of funds. As I have said, he has no income since losing his job after this accident. 7 There was evidence before her Honour that the applicant did not appear to have suffered any significant cognitive impairment or have any neurological deficits. 8 Secondly, there was the fact that the passenger who had died had been the applicant's best friend in Australia. He was one of the few people that he knew here, having been acquainted with him from his days in Lebanon. As to that matter her Honour said: The prisoner is, I accept, extremely remorseful, not only for the position in relation to which he now finds himself, but because he realises that his actions have caused the death of his best friend. He carries a photograph of this man with him in his wallet all the time, and I accept, still has dreams and memories of his friendship with him. He gave evidence that he thinks of him every day, and I accept that he will continue to have the memory of the impact that his driving has had causing the death of his friend for the rest of his life. It goes without saying that I accept his remorse and contrition is genuine, evidenced not only from the plea of guilty, but also from the evidence he has given about the impact that his friend's death has had on him. 9 Her Honour also took into account the fact that the applicant had no prior criminal convictions and also assessed him as having good prospects for rehabilitation. Her Honour acknowledged the fact that the applicant had pleaded guilty at an early stage of proceedings, albeit following negotiations which had seen the Crown withdraw the charge of manslaughter that had originally been preferred against the applicant. In all the circumstances the applicant was given a total discount of 30% on account of the plea of guilty. 10 Her Honour made a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 by reason of the following matters: (a) this was the applicant's first gaol term; (b) he will serve the sentence in circumstances of isolation, given the lack of family and community support available to him; (c) his need for ongoing medical treatment for post-traumatic stress disorder and the other injuries which he had sustained in the accident; (d) his need for ongoing supervision to monitor his immigration status and the proceedings that will inevitably follow his eventual release from custody. 11 The sentencing judge made specific reference to, and placed reliance upon, this Court's guideline judgment in R v Jurisic (1998) 45 NSWLR 209. Her Honour did not have available to her, at the time of imposing sentence, this Court's later decision in R v Whyte [2002] NSWCCA 343. In Whyte, Spigelman CJ reformulated the guideline in relation to cases of dangerous driving. His Honour identified a frequently recurring case under s 52A as having the following characteristics: (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. (at par 204) 12 In such a case his Honour indicated that: A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment. (at para 214) 13 His Honour set out the following list of aggravating factors: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop. (at paras 216-7) 14 His Honour then expressed the following numerical guideline: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. (at para 229) 15 His Honour continued: In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. (at para 231) 16 Whilst accepting, as clearly he had to, that an appropriate increment was required to give effect to the aggravating factors which were present in this case, counsel for the applicant submitted that the decision in Whyte had seen a shift in emphasis in the content of the matters identified in Jurisic as giving rise to a typical case. It was submitted that the present case was atypical by reason of the fact that the deceased was not a stranger to the applicant and that he himself had been injured. It was thus submitted that her Honour had erred in using as a starting-point the typical case identified in Jurisic when the present case could not be so described. 17 It may be accepted that some of the matters referred to in Whyte were not present in this case. Nevertheless her Honour in any event gave sympathetic consideration to each of those clearly important features of the case. Furthermore those matters had to be weighed in the balance against the fact that this was a case in which there was present not only a statutory aggravating factor by reason of the applicant's endeavour to escape the police pursuit, but also a number of other matters which underscored the objective seriousness of the offence. These included the fact that the applicant drove at an excessive speed (not less than 111 kph in a 60 kph maximum speed residential area) whilst not being the holder of anything but a learner's permit and whilst not accompanied by an authorised license holder. Moreover he failed to stop at two sets of traffic control lights which were showing red at the relevant time. Her Honour observed that "his decision to attempt to escape from police and the way in which he drove, makes this a very serious case indeed." Her Honour also unsurprisingly found that this was a case in which the applicant had abandoned his responsibility as a driver and that "the speed at which the prisoner was driving played a significant part in the causation of the accident." 18 I am not persuaded that her Honour fell into error of the kind that was asserted or that she failed to give adequate weight to the factors to which counsel has drawn our attention. In my view Whyte has not affected any meaningful change to the numerical guideline enunciated in Jurisic and certainly not in a way that has any significance in the present case. In my view the guideline as reformulated in Whyte does not cease to take its proper place in the sentencing process simply because one or more of the factors identified in a frequently recurring case is or are absent. This was indeed a tragic case but that is a description which is apt in very many cases of this kind. Her Honour was required to impose a sentence which adequately marked out the community's disapproval of conduct of the type upon which the applicant embarked, particularly in view of the presence of the aggravating features to which reference has been made. In view of those features of the case, the sentence at which her Honour arrived is clearly explicable by reason of the fact that she had in fact given appropriate attention to all the other relevant considerations which pointed in the direction of leniency and had substantially ameliorated the sentence to be imposed in order to give effect to them. The proportion which the non-parole period that was imposed, bears to the head sentence, supports such a conclusion. 19 Sentencing judges are obliged to "take into account" guideline judgments of this Court: s 37A of the Crimes (Sentencing Procedure) Act 1999. Guideline judgments are however "indicative only" and as such are not intended to constrain the proper exercise of the sentencing discretion in a particular case. In my view it has not been demonstrated that that discretion has miscarried in the present case. 20 I would propose the following orders: