New South Wales Court of Criminal Appeal CITATION : REGINA v COUSINS [2002] NSWCCA 81 FILE NUMBER(S) : CCA 60878/01 HEARING DATE(S) : 5 March 2002 JUDGMENT DATE : 5 March 2002 PARTIES : Regina Peter John Cousins JUDGMENT OF : Spigelman CJ at 1,39; Grove J at 37; Smart AJ at 38 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0878 LOWER COURT JUDICIAL Naughton DCJ OFFICER : COUNSEL : R A Hulme (Crown) C B Craigie SC (Respondent) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - Crown appeal against inadequacy of sentence - whether sentence manifestly inadequate - aggravated dangerous driving occasioning death and grievous bodily harm - whether offence fell within worst category of offences of this kind - where gravity extremely high and subjective case for offender weak - whether discount for guilty plea appropriate - whether finding of special circumstances based on rehabilitative prospects appropriate where persistently defiant attitude to law demonstrated. LEGISLATION CITED : Crimes Act 1900 Siganto v The Queen (1998) 194 CLR 656 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 Cameron v The Queen [2002] HCA 6 DECISION : Appeal allowed, sentence for offence of dangerous driving occasioning death quashed. Respondent sentenced to imprisonment for eight years commencing 5 April 2001 with a non-parole period of six years expiring 4 April 2007. IN THE COURT OF CRIMINAL APPEAL 60878/01 SPIGELMAN CJ GROVE J SMART AJ Tuesday 5 March 2002 REGINA v PETER JOHN COUSINS Judgment 1 SPIGELMAN CJ: This is a crown appeal from the alleged inadequacy of the sentence imposed by his Honour Judge Naughton QC on 1 November 2001. The Respondent pleaded guilty to one charge of aggravated dangerous driving occasioning death contrary to s52A(2) of the Crimes Act 1900 and another count of aggravated dangerous driving occasioning grievous bodily harm contrary to the same section. Two comparatively minor matters were taken into account on a Form 1, but would have had little impact on the sentences. His Honour sentenced the Appellant to imprisonment for seven years with a non-parole period of four years on the first count and to a fixed term of four years for the second count. 2 On 5 April 2001, the Respondent was driving a car which he knew to have been stolen. In that car was his de facto wife, Tammy Francis and their two year old daughter. They travelled to a methadone clinic in Kogarah. After obtaining the methadone, they offered a lift to David Kristian and his girlfriend, Kelly Ton. In the accident, to which I will refer below, David Kristian died. This was the death referred to in count 1. Kelly Ton was injured. This was the grievous bodily harm referred to in count 2. 3 At about 11.33am while driving a friend's car, the owner of the stolen car saw his car being driven in Allawah. He followed it and noticed it pull into a service station in Hurstville. Miss Francis and her daughter left the car. Two police vehicles, responding to the owner's report, entered the service station. One was parked across the front of the stolen car. A uniformed police officer, Constable Rebecca Callas, reached in and grabbed the offender by the upper arm or shoulder and told him to get out of the car. He said something like, "Get fucked" or "Fuck off". He drove the stolen vehicle forward, wrenching himself free of the police officer's grip. He drove around the police vehicle which was attempting to block his exit and took off at high speed. 4 A police chase ensued, also at high speed. It lasted for about fourteen minutes through suburban streets, which his Honour found were moderately to heavily trafficked. The offender's speed reached well over 100 kilometres per hour. The offender was seen to weave at high speed around other vehicles, one of which he narrowly missed. Pursuing police vehicles had their emergency sirens and flashing lights in operation. 5 The accident occurred at the intersection of King Georges Road and Forest Road, Hurstville. Travelling south along King Georges Road the offender went through a red light at the intersection and hit the front corner of a cement truck which was travelling north along King Georges Road and was making a right hand turn across the path of the offender's vehicle, in accordance with a green arrow permitting a turn of that kind. 6 The stolen car sideslipped towards a raised traffic island that divided Forest Road in two sections at its intersection with King Georges Road. The passenger side of the car collided with a Toyota Land Cruiser that was standing stationary in Forest Road facing west, waiting to turn into King Georges Road. The stolen car then mounted the traffic island, the front passenger side hit a traffic light pole on the traffic island and bent it. The car then careered off the traffic island across the eastern turning lane of Forest Road and straight into a street light pole near the road edge on the eastern side of that lane. The car then came to a stop. 7 The driver of the cement truck estimated that when the stolen car collided with his truck, it was travelling at about 130 to 140 kilometres per hour. His Honour accepted this estimate. 8 The accident happened at about 11.53am. The police pursuit of the stolen car began at 11.39am. This, accordingly, lasted, as I have said, about fourteen minutes. It was the circumstance of the police pursuit that made each of the offences the aggravated form of the offence pursuant to section 52A(7)(c) of the Crimes Act 1900. The maximum penalty for the first count was fourteen years imprisonment and for the second count was eleven years imprisonment. 9 The passenger victim, David Kristian, died from the multiple serious injuries sustained in the accident. He was aged twenty-four. The passenger victim, Kelly Ton, was twenty-one. She spent three weeks in hospital as a result of the injuries that she sustained, which included a broken collar bone, two broken ribs and tears to her liver and lungs. She also suffered lacerations to her head and right leg and had stitches inserted in her leg wound. 10 The offender also suffered serious injury in the accident, including collapsed lungs, a broken sternum and broken ribs. 11 His Honour correctly described the criminal history of the Respondent as "appalling". The offender was thirty-seven at the time of the accident. His criminal history began in 1981 when he was seventeen. He was then convicted for malicious injury to property and abusing police. Subsequently, his record comprises many driving offences, including driving with more than the prescribed concentration of alcohol, driving in a manner dangerous to other persons, negligent driving, driving while disqualified and driving an uninsured vehicle. He also had convictions for car theft, firearms offences, assaults, including on police, escape from lawful custody, possession of drugs, goods in custody, stealing and possessing housebreaking implements. He has served a number of terms of imprisonment. In April 2001 he was declared a habitual offender. At the time of the offences presently under consideration, he was then a disqualified driver with a period of disqualification at least until 12 December 2010. As his Honour concluded: "The offender has demonstrated a persistently defiant attitude towards obedience of the law." 12 His Honour took into account the pleas of guilty. He did not, however, regard them as a manifestation of contrition or remorse. Indeed, his Honour specifically rejected a submission that there was any evidence of contrition or remorse. The plea was "simply an acceptance by the offender of the inevitable". His Honour did, however, say that he accepted the plea as having a "significant utilitarian value". This was in accordance with the longstanding acceptance of the fact that utilitarian value was a material consideration. (See, for example, the four judge joint judgment of the High Court in Siganto v The Queen (1998) 194 CLR 656 at [22].) This principle has been applied in numerous authorities, including in this Court's guideline judgment on the subject of pleas of guilty in R v Thomson and Houlton (2000) 49 NSWLR 383 see, for example, at [4]. 13 In view of the recent decision in Cameron v The Queen [2002] HCA 6 at [14] this approach has now, apparently, been disapproved, although s22(1)(b) of the Crimes (Sentencing Procedure) Act 1999 may be a distinguishing feature for the applicability of Cameron v The Queen in this State. 14 In any event, the majority of the High Court in Cameron accepted that a preparedness to assist the administration of justice was a relevant consideration, albeit seen from the perspective of the offender rather than from the perspective of the State. 15 The Court is entitled to take into account the preparedness of an offender to assist the administration of justice. This, however, according to Cameron, must be seen from the perspective of the offender. On this new basis, it may be difficult to accept, in the circumstances of this case, that a discount, as much as 15 to 20 percent at the higher end of the range of Thomson and Houlton was appropriate. I am not prepared to act on any other basis. The Crown in this case at trial accepted that there was a utilitarian value and that the plea had been made at the earliest opportunity. Accordingly, for the purposes of any resentencing, I propose to approach this case on the basis that a discount for the value of the plea high in the range of Thomson and Houlton would continue to be appropriate. 16 The size of any discount must still be considered in the light of the ultimate sentence and whether that sentence was, in accordance with the submissions of the Crown, manifestly inadequate. That is the basic issue before the Court. There are well-known restrictions on this Court interfering with the exercise of the sentencing discretion on this basis. Nevertheless, there are occasions on which it is appropriate to do so. 17 His Honour did not understate the objective gravity of the offences, the question is whether or not he failed to give that objective gravity sufficient weight in the outcome. 18 His Honour made reference to the personal and subjective circumstances of the offender, including the difficulties of his childhood associated with his father's heavy drinking and aggressive behaviour towards him and other family members. The offender left home at the age of eighteen to avoid, his Honour accepted, the continued abuse by his father. At an early age he developed a problem with drugs, which moved from cigarettes to marijuana, to amphetamines and, eventually, to heroin. His Honour noted that the Respondent spent something in the order of seven years of his adult life in prison. The offender did not have the benefit of family support, but had some bonding with his de facto wife and new daughter, and with a 15 year old son from an earlier de facto relationship. 19 His Honour accepted the report of a psychologist that the offender was gaining insight into his offending behaviour, but that, in the absence of professional intervention, he may still present a risk to others. These are matters which his Honour eventually took into account as constituting "special circumstances" entitling him to vary the usual relationship between the head sentence and the non-parole period. 20 The report of the psychologist recites, as is usual, what was reported to the professional by the Respondent. Psychologists and other experts do not set themselves up in any way as assessing the truth of what is said to them. They report, and in most cases, act on the basis of what is said to them. Nevertheless, in this case, the prospects for rehabilitation as considered by the consultant psychologist were, to say the least, not over-stated. Indeed, a proper understanding of the report is that the Respondent's prospects of rehabilitation are poor, given his history. The psychologist set out a number of risk factors for further offending which are substantial. She noted a number of matters that outline the prospect of successful rehabilitation. There appears to be some realisation of a need to change his ways. There seems to be some support for such a change from the limited family support that he has, particularly from his partner and child. 21 Nevertheless, the psychologist concluded that, in the absence of professional intervention to address his propensity to find in his antisocial behaviour a source of comfort and self-worth, "he may still present a risk to others". There is little support in what the psychologist said for any substantial degree of hope that the propensity would be overcome by such intervention. 22 Nothing in his Honour's remarks on sentence, as I have said, suggested that his Honour understated the objective gravity of the offences. His Honour referred to the need for "a firm element of general and specific deterrence" and to a need for the sentences to "reflect appropriate public denunciation and punishment". His Honour concluded that the objective seriousness of the offences "significantly outweighs the subjective factors personal to the offender". This is manifestly the case. The subjective case advanced on the part of the respondent was not a strong one. 23 Matters of aggravation of the offence included the fact that the Respondent was driving whilst disqualified; that he was using a stolen vehicle; his excessive speed; his long criminal history; the fact that there were multiple victims (including himself) and the recklessness involving a serious risk to many other innocent people, including the police, occasioned by a long period of erratic and dangerous driving. His Honour, I should note, specifically acknowledged the family tragedy outlined in the victim impact statements of the deceased's mother and father, referring to their feelings of horror, deprivation and anger. 24 The Crown submitted that this case was in the worst category of cases and that, indeed, it could attract the maximum penalty for which the law provides. It is unnecessary to attempt to analyse what may be the worst category of cases. As previous authorities have said, it is always possible to conceive of something worse. However, there is no doubt that the objective circumstances were amongst the worse that one could imagine. 25 The motivation for the action, which was the attempt to evade the police from apprehending him, in circumstances where the nature of the offence appeared to be stealing a vehicle, was, of course, what made the offence the aggravated version of the offence, for which the section provides. 26 The conduct of evading the police, escaping from an attempt to physically restrain him and driving around a second car which was attempting to block his path indicates the deliberate conduct in which he had engaged. But, more significant, is the fourteen minutes of aggressive driving on moderately to heavily trafficked suburban roads with at least one near miss, deliberately putting numerous members of the public at substantial risk. 27 It was only fortuitous that there was not in the car with him both his wife and daughter. If they had been in the car with him, they would have been, as I understand it, in the front seat, and would have suffered horrendous injuries and may very well have died. It was fortuitous that this did not happen. Furthermore, he happened to crash into a concrete truck at the speed of 130 to 140 kilometres per hour, as his Honour has found. Going through a red light, it was quite fortuitous it was a concrete truck and not something else. People in an ordinary car or cars would unquestionably have been injured and may well have died. This reinforces the gravity of his conduct in putting people at risk by taking deliberate steps to drive around a police vehicle and then for fourteen minutes, evade the police by weaving into and out of traffic at excessive speed and eventually running through a red light. 28 All of this indicates that the known gravity of the offence was extremely high. Nothing in the subjective case presented to this Court is such as to reduce in any substantial way the appropriate penalty that ought to be imposed. 29 This Court should only intervene in such circumstances in a case where the sentence below was manifestly inadequate and, when it does so, the principles, often referred to as the principles of double jeopardy, suggest that the sentence this Court imposes, in lieu of the sentence it is quashing, should be the least sentence that could reasonably be imposed in all of the circumstances of the case. 30 In the present case I believe that a significant increase is warranted and that his Honour imposed a sentence that was manifestly inadequate. The sentencing discretion must be re-exercised. 31 I do not reach the same conclusion as his Honour that this is a case in which there are special circumstances justifying a variation of the ratio between the head sentence and the non-parole period. In the event, on the orders I propose, there will be a two year non-parole period. There is no warrant to increase that to, say, three years in circumstances where there is nothing before the Court that indicates that the difference between two and three years would be of any substantial assistance. 32 The psychologist's report tendered in this case suggests that with some assistance the offender may be able to change his habitual course of offending. There is no reason to suggest that three years is required rather than two years in these circumstances. The thrust of the report is that it is really a question for the offender himself to make up his mind to change his ways. If he does that then, with some professional assistance, he will be able to achieve the desired result. If he does not do it and does not cure his addiction, then he will not. There does not appear to be any difference between two and three years, in that respect. 33 In my opinion, this Court should quash the orders below. In the circumstances of this case, but for the plea of guilty, I would have concluded that for the charge of aggravated dangerous driving occasioning death, a period of ten years imprisonment would have been appropriate, but by reason of the plea of guilty, it should be reduced to eight years. The non-parole period should be in accordance with the statutory ratio i.e. six years. 34 With respect to the offence of aggravated dangerous driving occasioning grievous bodily harm, no particular objection was taken to the imposition of a four year fixed term. I do not regard that as inappropriate and I do not propose to disturb that particular sentence. 35 Accordingly, the orders I propose are that the appeal be allowed, that the sentence for the offence of aggravated dangerous driving occasioning death be quashed and in lieu thereof the Respondent be sentenced to a term of imprisonment of eight years, commencing on 5 April 2001 and expiring on 4 April 2009. A non-parole period should be set at six years commencing on 5 April 2001 and expiring on 4 April 2007. 36 I add that the earliest date on which he is eligible to be released for parole is 4 April 2007. 37 GROVE J: I agree with the judgment of the Chief Justice. 38 SMART AJ: I also agree. 39 SPIGELMAN CJ: The orders of the Court are as I have indicated. ********** 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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