Reported Decision : 149 A Crim R 593 New South Wales Court of Criminal Appeal CITATION : R v Takai [2004] NSWCCA 392 HEARING DATE(S) : 10 November 2004 JUDGMENT DATE : 19 November 2004 JUDGMENT OF : Dunford J at 1; Simpson J at 2; Hidden J at 47 DECISION : (i) application for leave to appeal granted; (ii) appeal allowed, sentence quashed; (iii) the applicant be re-sentenced as follows: imprisonment for two years and six months to commence on 29 January 2004 and expire on 28 July 2006; non-parole period of one year and three months to commence on 29 January 2004 and expire on 28 April 2005. CATCHWORDS : appeal against severity of sentence - aggravated dangerous driving causing grievous bodily harm - plea of guilty - subjective circumstances - remarks on sentence - application of guideline judgments - level of moral culpability LEGISLATION CITED : Crimes Act 1900 s52A Crimes (Sentencing Procedure) Act 1999 , s5, s21A, s37A, s44 s54A Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 CASES CITED : R v Jurisic (1998) 45 NSWLR 209; R v McKinney [1999] NSWCCA 51; 29 MVR 355 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53 PARTIES : Crown - Respondent Applicant - Teresa Manufekai Takai FILE NUMBER(S) : CCA 2004/2219 COUNSEL : Crown - P Power SC Applicant - AJ Bellanto QC SOLICITORS : Crown - S Kavanagh (Solicitor for Public Prosecutions) Applicant - A Valenti LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/0340 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2219 DUNFORD J SIMPSON J HIDDEN J Friday 19 November 2004 REGINA v Teresa Manufekai TAKAI Judgment 1 DUNFORD J: I agree with Simpson J. 2 SIMPSON J: In this matter the applicant seeks leave to appeal against the severity of a sentence imposed upon her by Sorby DCJ in the District Court on 29 January 2004, following her plea of guilty to a charge of aggravated dangerous driving causing grievous bodily harm, a charge brought pursuant to s52A(4) of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for 11 years. Sorby DCJ sentenced the applicant to imprisonment for three and a half years with a non-parole period of 21 months, to commence on 29 January 2004. facts 3 The offence was committed in the early hours of Saturday 11 January 2003. The applicant, who was then employed as a bar attendant in a hotel at Pendle Hill, had worked from 10.00 am to 7.00 pm. The victim, Kelly Campbell, also worked in the hotel, and had completed her shift at 5.00 pm. When the applicant finished work she and Ms Campbell had one drink together, provided by the hotel, and some food. They agreed to go out together later that evening and the applicant drove Ms Campbell to her home at about 9.00 pm. She returned about an hour later and drove the two to a hotel in Parramatta. There the applicant drank eight or ten bourbons and coke and Ms Campbell drank red wine. At what must have been about 3.30 am, or a little later, the applicant drove away from the hotel with Ms Campbell as passenger. She was intending to drive Ms Campbell to her home at Wentworthville. On the Cumberland Highway she lost control of the vehicle and collided with a wooden power pole. Ms Campbell sustained multiple leg and back injuries and was taken to hospital. The applicant was also hospitalised for a short time but any injuries she suffered were not disclosed on the evidence. 4 No direct evidence was adduced establishing the distance from the hotel to Ms Kelly's home (the length of the journey contemplated) or the distance from the hotel to the location of the collision. However, in oral submissions it was put to Sorby DCJ that the latter involved a drive of 10 to 15 minutes, and this was not contested by the Crown and appears to have been accepted by the judge. 5 A blood alcohol sample was taken from the applicant and proved to contain 0.169g of alcohol per 100mls of blood. 6 A victim impact statement (of sorts) in relation to Ms Campbell was put before the sentencing judge. This document is undated and appears on the letterhead of a firm of solicitors who have been retained by Ms Campbell to represent her in civil litigation arising from her injuries. The solicitors stated that Ms Campbell remained an in-patient in hospital until 27 February 2003, a period of about six weeks. Upon discharge she was confined to a wheelchair for approximately three months and was due to return to hospital in March for further surgery on her left tibia. She was severely restricted in her movements and required a walking stick at all times; her back was bent at a forty-five degree angle and she had difficulty walking; she had become virtually housebound, reliant upon friends and was unable to work. No final prognosis was anticipated before January 2004 but it was said that there was a distinct possibility that she would be unable to return to her pre-accident employment. subjective circumstances 7 The applicant gave evidence in the sentencing proceedings, as did her father and two sisters. The sentencing judge also had the benefit of a short pre-sentence report provided by the Probation and Parole Service. From all of this the following emerged. The applicant was born in New Zealand on 19 November 1981 and was therefore 21 years of age at the time of the offence, 22 at sentencing. She had no prior convictions of any kind. She came to Australia in January 2000. By 2003 she was living in Smithfield, sharing accommodation with her sister and two friends. At the end of 2002 she discovered that her sister and one of her close friends had established a lesbian relationship. This revelation caused the applicant a great deal of hurt, anger, and anxiety and precipitated an escalation in her previously moderate drinking habits. 8 On the evening of 11 January 2003 the applicant intended to consume alcohol but only "to the limit", which she understood as allowing her one standard drink every hour. Plainly, she did not adhere to this intention. 9 The applicant has a supportive family network. Both parents travelled from New Zealand to Australia at the time of the accident and her father (at least) did so again for the purpose of the sentencing proceedings. Her two sisters also attended those proceedings. 10 In her evidence, her sister described the impact on the applicant of the discovery of her relationship with her friend, saying that, in the two months or so between the discovery and the accident, the applicant's behaviour was "out of control". Before that discovery the applicant had been a "happy-go-lucky kind of person". Since the accident, her sister described her as having calmed down, become more responsible, and to be "obviously remorseful". 11 Following the accident the applicant abstained from alcohol until her birthday in November. From that date to sentencing, although she resumed some consumption, it was to a moderate level. The sisters have also resumed their relationship. remarks on sentence 12 Sorby DCJ outlined the facts of the offence and the subjective circumstances. He referred to the decisions of this Court in R v Jurisic (1998) 45 NSWLR 209; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 and R v McKinney [1999] NSWCCA 51; 29 MVR 355. 13 He accepted that the applicant had entered a plea of guilty at the earliest opportunity; that her expressed remorse and contrition were genuine; and that she had an otherwise unblemished criminal record. He found that the offence was aggravated by the nature of the injuries suffered by Ms Campbell, the degree of the applicant's intoxication and the length of the journey she had undertaken in her plainly intoxicated state. He found that her actions exhibited "a high level of moral culpability". He found, pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), that special circumstances existed justifying departure from the statutory proportion between the non-parole period and the head sentence and imposed the sentence to which I have already referred. Before doing so he stated that he had considered whether non-custodial alternatives were available and concluded that they were not and that nothing other than a full-time custodial sentence was appropriate. He made specific reference to the need for the sentence to reflect the sentencing principles of general deterrence. the application for leave to appeal against sentence 14 Four grounds for the application were advanced. These were expressed as: "ground 1: His Honour erred in his application of the guideline judgments of Jurisic and Whyte ; ground 2: His Honour erred in failing to adequately consider and apply s5 and s21A of the Crimes (Sentencing Procedure) Act 1999 : ground 3: His Honour erred in imposing upon the applicant a disproportionate level of moral culpability; ground 4: The sentence imposed was manifestly excessive." grounds 1 and 2 15 Senior counsel for the applicant and for the Crown argued these two grounds together and it is appropriate to deal with them in the same way. S52A(4), under which subsection the applicant was charged, provides as follows: "A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this section is liable to imprisonment for 11 years." 16 The offence of dangerous driving occasioning grievous bodily harm is provided for in the preceding subsection, s52A(3). That subsection provides as follows: "A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle: (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to the other person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for seven years." 17 Subss 52A(1) and (2) provide for corresponding offences of dangerous driving occasioning death and aggravated dangerous driving occasioning death and prescribe penalties, respectively, of imprisonment for 10 years and imprisonment for 14 years. 18 "Circumstances of aggravation" are defined in subs(7) and relevantly include that: "(a) the prescribed concentration of alcohol was present in the accused's blood ..." In subs(9), "the prescribed concentration of alcohol" is defined as a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood. 19 The aggravating feature that took the applicant's offence out of subs(3) and into subs(4) was, obviously, that there was present in her blood more than the prescribed concentration of alcohol. 20 On 12 October 1998 this Court, constituted by Spigelman CJ, Wood CJ at CL and Sully, BM James and Adams JJ, promulgated the first NSW guideline judgment: R v Jurisic (1998) 45 NSWLR 209. That judgment dealt with three offences against s52A(3)(a) of the Crimes Act, that is, offences of dangerous driving occasioning grievous bodily harm (without the aggravating feature that escalates an offence into one against s52A(4)) and carrying a maximum penalty of imprisonment for seven years. In relation to such an offence the court promulgated a guideline in the following terms: "1 A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement. 2 With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of ... less than two years should be exceptional." 21 Subsequently, the NSW Parliament enacted ss5 and 21A of the Sentencing Procedure Act. Those sections are relevantly in the following terms: "5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." S21A sets out a (non-exhaustive) catalogue of aggravating and mitigating factors that a sentencing court is obliged to take into account. 22 In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 the Court (constituted by Spigelman CJ, Mason P, and Barr, Bell and McClellan JJ) considered the effect of the enactment of those two sections upon the principles and guidelines stated in Jurisic. By that time the Parliament had also given statutory authorisation (if it were needed) to the publication of guideline judgments: see s37A of the Sentencing Procedure Act. In accordance with that section and having regard to s5(1) the Court reformulated the guideline previously promulgated with respect to sentences under s52A in the following way: "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 misjudgement." 23 Specifically, for offences against s52A(3), the court promulgated the following guideline: "Where the offender's moral culpability is high, a full-time custodial head sentence less than ... two years would not generally be appropriate." 24 Offences against s54A(4) were not directly before the Court in that case. However, at [231] Spigelman CJ wrote: "In the case of the aggravated version of each offence under s52A [including an offence against s52A(4), with which the present applicant was charged] 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." 25 At [210] his Honour made it clear that the reformulation was intended, in conformity with ss5 and 21A, to be less prescriptive than the formulation specified in Jurisic. At [232] his Honour reiterated that a guideline operates as a "guide" or "check" and restated the discretionary nature of the sentencing exercise. 26 The first and second grounds of appeal are, essentially, that the sentencing judge, although mentioning the decision in Whyte, focussed primarily upon the decision in Jurisic and failed to have adequate regard to the provisions of s5 of the Sentencing Procedure Act. It is correct that, in quoting from passages from the guideline judgment, the sentencing judge extracted passages from Jurisic, and not from Whyte. In a subsequent passage the sentencing judge directly adverted to Whyte, including the references to the "moral culpability of the offender" and to the "abandonment of responsibility" (a phrase which appears in both judgments). 27 The nub of the complaint made concerns his Honour's approach to s5(1), and to his consideration of the possibility of a penalty otherwise than by a full-time custodial sentence. In this respect his Honour said: "It was submitted that a sentence of less than full-time custody would be appropriate here and under s5A (sic) of the Sentencing (CP) Act (sic) I must consider all alternatives. However, having considered all that has been put before me whether I have expressly here referred to it or not, this is matter (sic) that must carry a full-time custodial sentence. In determining which sentence is appropriate I have looked at all possible alternatives including a non-custodial sentence by way of periodic detention. I have concluded that nothing else other than a full-time custodial sentence is appropriate. I have reached that conclusion having considered all the material that has been put before me whether I specifically here refer to it or not." 28 In my opinion, this passage makes it clear that the sentencing judge was well aware of the requirements of s5(1). 29 It was further argued that, within the passage I have extracted, a clear misapprehension on the part of his Honour as to the implications of a sentence to be served by way of periodic detention was revealed. This emerged from the reference to: "... all possible alternatives including a non-custodial sentence by way of periodic detention." The argument was that this shows that his Honour erroneously regarded a sentence to be served by way of periodic detention as a non-custodial sentence, and, therefore, inappropriately failed to consider such a sentence. 30 It is true that the phraseology is infelicitous, but, taken in the context of the whole of the passage extracted above, I am satisfied that his Honour was not under that misapprehension. It is well established that a sentence to be served by periodic detention contains a significant element of leniency but remains a custodial sentence: hence the reference to "full-time custodial sentence", which clearly distinguishes that form of sentence from a sentence to be served by periodic detention. 31 It was also argued that his Honour's remarks show that he understood (erroneously) that the guideline judgments mandated the imposition of a custodial sentence. This argument was put by reference to the less prescriptive tone expressly and deliberately adopted by this Court in Whyte as distinct from the guidelines pronounced in Jurisic. 32 Guideline judgments have invariably emphasised that a sentencing judge's discretion remains alive and that guidelines promulgated are to be applied by reference to the individual facts and circumstances of each case. Sorby DCJ, in his remarks, exposes no misapprehension about that approach. 33 I am satisfied that his Honour approached this sentencing exercise, appropriately, by reference to a combination of the guideline judgments and the facts and circumstances of the case. 34 A further argument was that his Honour did not have regard to some mitigating factors stated in s21A, these being: (i) the circumstance that the applicant is unlikely to re-offend (s21A(3)(g)); (ii) her good prospects for rehabilitation (s21A(3)(h)); and (iii) her level of remorse (s21A(3)(i)). 35 I do not accept this criticism. The sentencing judge paid careful attention to the evidence that had been put before him, and recounted much of the evidence given by the witnesses. He made specific references to her supportive family, and to her remorse. I would reject these grounds of the application. ground 3 36 The next complaint concerned the express finding that the offence demonstrated a high level of moral culpability. In this context his Honour said: "This is a case of aggravated dangerous driving. It carries a maximum penalty of eleven years. The level of intoxication was particularly high. The injuries to the victim serious and the length of the journey as shown in exhibit 3 [a series of maps which are, for the purposes of this Court, not very helpful] was relatively long in the circumstances and hence the exposure to risk of injury." The references to "the level of intoxication", "the length of the journey" and the seriousness of the injuries are drawn from the decision in Whyte , which adopted what had been said in Jurisic . 37 There, the Chief Justice set out a list of aggravating factors which had been established in previous authorities. These included: "(i) extent and nature of the injuries inflicted"; "(iv) degree of intoxication or of substance abuse"; and "(vii) length of journey during which others were exposed to risk". 38 In my opinion, the finding as to the level of moral culpability is unimpeachable, even if regard is had only to the level of intoxication disclosed by the very high reading. His Honour also had regard to the nature and extent of the injuries inflicted and the length of the journey. I have, above, referred to the nature and extent of Ms Campbell's injuries. That is sufficient to dispose of this aspect of the complaint. 39 Particular complaint was made in this context, of the reference to the length of the journey as an aggravating factor. What his Honour found was that the distance to be travelled was "relatively long in the circumstances". It is difficult to be precise about this because the evidence as to the length of the journey was itself imprecise. In passing, I would note that, logically, the "journey" contemplated by Spigelman CJ was the intended journey, and not the journey attenuated by the collision: see also Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303, para 139. An attempt was made to show that the journey was relatively short by reference to the distance driven in other decided cases. The information provided to the judge (in submissions, not by way of evidence) was that the total journey would have been approximately fifteen minutes. Here, what is known is that the applicant was driving to Ms Campbell's home, but was intending then to drive to her own home. It is to be remembered that this journey was undertaken in a built up area. There is no absolute demarcation of what is a "long journey" or a "not long journey", or a "short journey"; the danger created by the length of the journey will vary according to other circumstances, such as the time at which it is undertaken, the amount of traffic, and the locale. True it is, that this journey, taking place at 4.00 am or thereabouts, may well be taken to have been in other than heavy traffic – but nevertheless, it was through suburban streets. I do not think it was erroneous to describe the distance travelled as an aggravating factor. It does not appear to me that undue weight was given to this finding. ground 4 40 It is of significance that the offence to which the applicant pleaded guilty was the aggravated version of the offence, carrying a maximum penalty of imprisonment for 11 years. For that reason it was appropriate for the sentencing judge to impose a term longer than the term suggested in the guideline judgments, each of which is concerned with offences of the non-aggravated variety. Nevertheless, it is appropriate to consider whether the increment specified by his Honour was excessive in the circumstances. 41 To this end senior counsel provided the Court with samples of previously decided cases, together with three tables, analysing the relevant circumstances and sentences imposed on other offenders in those cases. 42 It would be unproductive to go into all the details of the significant analysis contained in those tables; it is sufficient to say that the analysis persuades me that the sentence imposed did exceed the range legitimately available to the sentencing judge. 43 In the context of this ground, senior counsel for the applicant made specific reference to one matter contained in the remarks on sentence. His Honour said: "I have detailed the severe injuries the victim Kelly Campbell and the prisoner had, at the time of the collision to hospital a blood alcohol reading five times the legal limit of alcohol." (sic) 44 The applicant's reading was, in fact, 0.169. The legal limit is 0.05. The applicant's reading was not five times the legal limit, but somewhere between three and four times that limit – closer to three than four. How his Honour made this error cannot be explained; it may have been a slip of the tongue, it may even represent a transcription error; however, if his Honour had been under the impression that the applicant's reading was five times the legal limit, that may explain why the sentence imposed was as long as it was. An additional circumstance, also relevant to the reading, lies in the level of blood alcohol that brings into play the aggravated offence provided for by subs(4). That level is 0.15. The applicant's reading, while high, was over that cut-off point by a relatively small margin. In other words, as senior counsel submitted, notwithstanding that it was a high reading, the offence must be seen as towards the lower end of the subs(4) scale. It did not, therefore, warrant an increment of the dimension specified by the sentencing judge. 45 I am persuaded that the sentence was manifestly excessive and should be set aside. It will therefore be necessary to re-sentence the applicant. To this end the Court received additional evidence, this going to the applicant's rehabilitation whilst in custody. It is encouraging. The applicant has been involved in a programme called "The Mobile Outreach Programme", involving her in work in bush regeneration, the clearing of cemetery grounds, planting of trees and eradication of weeds in and around the district of Emu Plains, the prison in which the applicant is held. She was one of only five of two hundred prisoners selected for that programme, which involves a very high level of trust. She participates in an alcohol programme. She is to be given credit for her efforts. 46 I propose the following orders: (i) application for leave to appeal granted; (ii) appeal allowed, sentence quashed; (iii) the applicant be re-sentenced as follows: imprisonment for two years and six months to commence on 29 January 2004 and expire on 28 July 2006; non-parole period of one year and three months to commence on 29 January 2004 and expire on 28 April 2005. 47 HIDDEN J: I agree with the orders proposed by Simpson J and, with one reservation, with her Honour's reasons. 48 My reservation is this. In the course of dealing with ground 3 of the application, her Honour has referred to one of the aggravating factors set out by Spigelman CJ in Whyte: "length of journey during which others were exposed to risk." Her Honour has observed that the "journey" contemplated by the Chief Justice "was the intended journey, and not the journey attenuated by the collision." That appears also to have been the view of Howie J, with whom the Chief Justice and the other members of the Court agreed, in Attorney General's Application for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSW CCA 303. At [106] - [107] his Honour referred to the aggravating features in Whyte, and at [139] he said: I have already indicated that there can be factors concerned with the driving that would generally increase the moral culpability of the driver and, therefore, the seriousness of the offence in accordance with Whyte. These include the distance travelled, or that was to be travelled, before detection. 49 With respect, I doubt that that was what the Chief Justice intended to convey in Whyte. The reference to the length of journey "during which others were exposed to risk" (my emphasis) suggests that his Honour was speaking of the journey up to the time of the collision, during which members of the public were in fact exposed to risk. In assessing the culpability of an offence of driving with the prescribed concentration of alcohol, where usually no collision is involved, the length of the intended journey assumes an importance which it may not have when considering an offence of dangerous driving causing death or grievous bodily harm. 50 That said, this is not a matter which need be decided for the purpose of the present application and I express no concluded view about it. ********** Last Modified: 11/29/2004 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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