R v HOWCHER [2004] NSWCCA 179

Reported Decision : 146 A Crim R 371

New South Wales Court of Criminal Appeal

CITATION : R v HOWCHER [2004] NSWCCA 179 HEARING DATE(S) : 12 December 2003 JUDGMENT DATE : 21 June 2004

JUDGMENT OF : Grove J at 1; Hulme J at 2; Smart AJ at 54 DECISION : Leave to appeal granted; Appeal dismissed

PARTIES : Regina Mohamad HOWCHER FILE NUMBER(S) : CCA 60278/03 COUNSEL : Crown: D Frearson Appellant: P Byrne SC SOLICITORS : Crown: CK Smith Appellant: W Ball

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0279 FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER :

- 20 - IN THE COURT OF CRIMINAL APPEAL 60278/03

GROVE J HULME J SMART AJ

Monday, 21 June 2004 R v Mohamad HOWCHER Judgment 1 GROVE J: I agree with Hulme J. 2 HULME J: On 12 September 2002 the abovenamed Applicant for leave to appeal pleaded guilty to a charge that on 20 May 1996 he drove a motor vehicle in a manner dangerous to another person or persons when it was involved in an impact occasioning death and at the time of the impact the Applicant was driving the vehicle on a road in circumstances of aggravation, namely a speed that exceeded by more than 45 kms per hour the applicable speed limit. 3 On 28 November 2002 Judge Sides sentenced the Applicant to imprisonment for 3 ½ years commencing on 21 November 2002 such term to include a non-parole period of 2 years. His Honour disqualified the Applicant from holding or obtaining a driving licence for 4 years from 28 November 2002. 4 The circumstances of the offence as found by his Honour – and to these there is no challenge – included the following. During the late morning of that day the Applicant was demonstrating the capabilities of a car he had purchased some 3 days before to some friends. After one friend had received such a demonstration, he got out of the car and the deceased became the passenger. The weather was fine. The road surface was dry and in a good state of repair and the visibility was excellent. The vehicle was an RX3 Mazda Rotary Sedan which, as the Applicant knew at the time of his purchase of it had been modified for the purposes of improving its performance. The modifications increased its maximum speed capability and its acceleration capacity. The speed limit in the area where the incident occurred was 60km per hour. 5 His Honour was satisfied to the requisite standard that the vehicle had began to yaw as a result of the Applicant driving the vehicle at a very high speed, somewhere within the range of 115-126kms per hour. His Honour was also satisfied that the vehicle had reached this speed as a result of the Applicant deliberately accelerating at a very rapid rate over a short distance. 6 His Honour was not persuaded that the Applicant lost control of the vehicle when he manoeuvred to overtake a learner driver or that any of three defects – contaminated rear brake linings, cracks and a lack of tread on the rear tyres and alterations to the differential had, either alone or in combination, caused the Mazda to yaw. His Honour also found that at the time of the incident the Applicant was under the influence of cannabis to an extent that his driving ability would have been impaired but his Honour was unable to determine the extent of such impairment. The Applicant had tried, unsuccessfully, to correct the yaw by movement of the steering wheel but the vehicle commenced to rotate about its vertical axis, crossed to the incorrect side of the road, mounted the kerb, crossed over a footpath, collided with a gum tree and split in two. The front portion of the vehicle came to rest about 14 metres west of the gum tree and the rear portion about 10 metres north of that tree. 7 In May 1996 the Applicant was aged 20. Although he had had the benefit of a close and supportive family he had been expelled from two schools and not welcome to return to a third. He left school shortly after the commencement of year 11 and from then until the time of the accident he was mostly unemployed. 8 He had started to abuse cannabis in his early teens and by the age of 18 was injecting heroin daily and binge using cocaine and amphetamines. Although he commenced a methadone program in 1996, he continued to use illicit drugs. 9 In the second half of 1996 in breach of bail he left Australia and went to Lebanon. He continued to abuse illicit drugs there until he entered a detoxification facility in January 1997. There he completed an 8 month residential rehabilitation program which concluded in August 1997. The Applicant asserted, and his Honour seemed to accept, that the Applicant had been free of illegal drugs since January 1997. 10 Thereafter the Applicant lived with his extended family in a village in Lebanon, obtained full employment, and in 1998 he married. His Honour accepted:- "That the offender has matured considerably since he left this country in 1996. He is no longer an irresponsible individual but rather a person who is making a contribution to the community and seeking to establish a meaningful and productive life for himself. Also, he has been involved in charity work since his return to Australia." 11 His Honour also accepted that the Applicant had returned to Australia on 22 May 2002 and did so to give himself up. He was in fact arrested on that day. 12 Some reference should be made to the Applicant's prior record. It included in October 1992 driving in a manner dangerous and while unlicensed and driving an uninsured and unregistered vehicle; in January 1994 driving whilst disqualified and driving a vehicle unregistered and uninsured. In October 1993 the Applicant offended by the unlawful possession of a licence and driving an uninsured and unregistered motor vehicle. In August 1993 he exceeded the speed limit by between 15 and 30kms an hour. Community service he was ordered to perform was carried out so tardily that a further such order was made. In January 1994 he drove an uninsured motor vehicle whilst disqualified. In August 1995 he was convicted of conspiracy to rob and possession of a prohibited weapon having been charged with these offences in December 1994. In respect of the latter offence a 3 year bond was imposed. Obviously this bond was current at the time of the subject offence. At no time had the Applicant held a driving licence and his Honour concluded "that from an early age he has clearly established an attitude of ongoing disobedience to the law. This offence is a further example of that pattern. His prior traffic record demonstrates that this offence is not an isolated and uncharacteristic aberration. This is a relevant matter to consider in assessing his moral culpability - Veen (No 2) v R (1987-88) 164 CLR 465 at 477-478. 13 The grounds of appeal are:-