New South Wales Court of Criminal Appeal CITATION : R v Sutton [2004] NSWCCA 225 HEARING DATE(S) : 1 July 2004 JUDGMENT DATE : 6 July 2004 JUDGMENT OF : Studdert J at 32; Dunford J at 33; Howie J at 1 DECISION : Leave to appeal granted; appeal allowed; sentence imposed quashed; applicant sentenced to a term of six and a half years made up of a non parole period of 4 years to date from 9 September 2003 and to expire on 8 September 2007 with a balance of the term being 2 years and 6 months to expire on 8 March 2010. LEGISLATION CITED : Crimes Act, s 52A R v Bell [2003] NSWCCA 132 R v Bugeja [2001] NSWCCA 196 R v Deluca [2002] NSWCCA 446 R v Fernando [2004] NSWCCA 147 R v Gorgievski [2002] NSWCCA 45 R v Grbin [2004] NSWCCA 220 R v Ho [2002] NSWCCA 379 R v Hunter [2001] NSWCCA 530 R v Kay [2002] NSWCCA 286 R v Mako [2004] NSWCCA 90 CASES CITED : R v Parkinson (2001) 125 A Crim R 1 R v Petrie [2003] NSWCCA 208 R v Ryan [2003] NSWCCA 202 R v Scott [2003] NSWCCA 286 R v Smith [2001] NSWCCA 420 R v Strong [2003] NSWCCA 123 R v Sullivan [2004] NSWCCA 99 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Trad [2003] NSWCCA 213 R v Vukic [2003] NSWCCA 13 R v Wan [2001] NSWCCA 501 R v Way [2004] NSWCCA 131 PARTIES : Regina v Geoffrey Nelson Sutton FILE NUMBER(S) : CCA 60127/04 COUNSEL : P. Power SC (Crown) C. Smith (Applicant) SOLICITORS : S. Kavanagh (Crown) S.E. O'Connor (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0097 FILE NUMBER(S) : LOWER COURT Ducker DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60127/04 STUDDERT J DUNFORD J HOWIE J Tuesday 6 July 2004 R v Geoffrey Nelson SUTTON Judgment 1 HOWIE J: The applicant pleaded guilty in the Local Court to a charge of aggravated dangerous driving occasioning death. He was committed for sentence and adhered to his plea before Acting Judge Ducker. That is an offence contrary to s 52A(2) of the Crimes Act for which the maximum penalty prescribed is imprisonment for 14 years. On 9 September 2003 the applicant was sentenced to a sentence made up of a non-parole period of four and a half years with a balance of the term being 2 years. The sentences commenced on 9 September 2003 and the applicant is eligible to be released to parole on 8 March 2008. The applicant was disqualified from holding a driver's licence for a period of 12 years. 2 The offending driving occurred on Saturday 22 February 2003. The applicant was driving his Mitsubishi van with a blood alcohol reading of at least .268. It was that reading which gave rise to the aggravated offence under s 52A with which the applicant was charged. The applicant had been drinking alcohol throughout the day at an hotel in Ballina. He left at about 4 pm driving his vehicle home toward South Ballina. While travelling along a straight stretch of road his vehicle crossed to the wrong side and collided with a female cyclist causing her fatal injuries. The applicant did not stop. 3 The deceased was riding with her de facto partner in single file. He was wearing a bright yellow cycling vest and riding in front of his partner. The day was overcast but fine and the road surface dry. The applicant's vehicle swerved suddenly across the road, narrowly missing the male cyclist and hitting the female. She later died from the injuries she sustained. 4 The applicant's driving had been witnessed by a number of members of the public. One person had seen the applicant's vehicle about 200 meters away come off a bridge on the wrong side of the road and gradually swerve back onto the correct side. As he watched the vehicle coming toward him, it moved again onto the incorrect side of the road and travelled past the witness on the wrong side at about 80 to 90kms. The vehicle continued to weave from one side of the road to the other until it passed out of sight. The applicable speed limit was 100kph. 5 When police arrived at the applicant's home he was still sitting in his vehicle in the driveway, his head slumped on his chest. When prodded he opened his eyes but his eyelids were droopy and he smelt strongly of intoxicating liquor. Initially, when told he had hit a cyclist, he denied it. He alleged that the cyclists had swerved out in front of him. He said that he had been drinking from about 8 am that morning and had consumed about six schooners. 6 The sentencing judge summarised the facts as follows: In short this is a case of a person grossly intoxicated, who did not have a licence, who swerved suddenly onto the incorrect side of the road, almost struck one cyclist, struck and killed another, drove away without stopping, and was observed driving in an erratic fashion both before and after the impact. 7 The applicant was aged 44 years and had a criminal record containing three relevant matters. In 1987 he was fined $600 for driving with a high range PCA and disqualified for 6 months. In 1988 the applicant was ordered to perform 100 hours community service for an offence of driving under the influence and fined for failing to stop. He was disqualified from holding a licence for 3 years. In 1991 the applicant was placed on a good behaviour bond for driving whilst disqualified. It was a condition of that bond that he continue counselling and treatment for alcoholism. The applicant was also fined for an offence of high range PCA, ordered to perform 100 hours of community service and disqualified for 3 years from 5 December 1991. The applicant had never sought to obtain a licence after his period of disqualification expired. 8 The applicant normally lives with his wife and three children. However, at the time of the offence he and his wife had separated due to stress relating to the applicant's unemployment and his abuse of alcohol. The applicant had moved from the family home to a caravan. The family were reunited after the accident and they are close to, and supportive of, him. The applicant is a butcher by trade but he injured his spine and fractured a finger of his right hand in a fall in December 2002. These injuries interfered with his ability to work and led to financial strains on the family. He does not believe that he will be able to return to his trade. 9 The applicant claimed to the probation officer preparing a pre-sentence report not to have consumed alcohol since the accident because of the impact of the death of the victim upon him. He did, however, acknowledge to a psychologist that he had consumed some alcohol watching sport on television subsequent to the accident. He considered that he was an alcoholic. 10 There was evidence from a medical practitioner that the applicant had been severely depressed and anxious since his arrest and he was referred to a psychologist and prescribed tranquillisers. There was a psychologist report prepared for the sentencing proceedings that outlined his background and history but it is of little relevance to the outcome of this appeal. The psychologist noted that the applicant had been diagnosed as clinically depressed prior to the accident and continued to be so after his arrest. He was described as profoundly remorseful and guilt ridden. There were also testimonials in evidence indicating the otherwise good character of the applicant and the effect upon him of the accident. 11 The first ground of appeal is that his Honour erred in his treatment of the plea of guilty. Once again this Court is confronted with a statement made by a sentencing judge about the effect of a plea of guilty which will almost guarantee a ground of appeal as it has in many cases since the decision in R v Thomson and Houlton (2000) 49 NSWLR 383. During the course of his remarks his Honour stated: …….Evidence from a number of sources speaks of his remorse, which I accept as genuine. He entered a plea of guilty, which has some but not a lot of utilitarian value. The reality is that there was an overwhelming case against him. He is entitled however to consideration for his plea of guilty notwithstanding. The submission for the applicant is that this passage reveals an erroneous quantification of the discount for the utilitarian value by taking into account the strength of the Crown case. 12 This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence. The following are but some of the decisions on this point in the four years since Thomson and Houlton was decided, and this is not to indicate that the principle was other than patently obvious from the judgment of the Chief Justice in the guideline judgment, see at [154]: R v Bugeja [2001] NSWCCA 196 at [27]; R v Smith [2001] NSW CCA 420 at [10]; R v Wan [2001] NSWCCA 501 at [10]; R v Parkinson (2001) 125 A Crim R 1; R v Hunter [2001] NSWCCA 530; R v Gorgievski [2002] NSWCCA 45 at [8]; R v Kay [2002] NSWCCA 286 at [58]; R v Ho [2002] NSWCCA 379 at [23]; R v Deluca [2002] NSWCCA 446 at [15]-[16]; R v Strong [2003] NSWCCA 123 at [52]; R v Bell [2003] NSWCCA 132 at [15]–[20]; R v Petrie [2003] NSWCCA 208 at [15]; R v Trad [2003] NSWCCA 213 at [55]; R v Scott [2003] NSWCCA 286 at [18]; R v Sullivan [2004] NSWCCA 99 at [56]; R v Way [2004] NSWCCA 131 at [144]-[150]; R v Grbin [2004] NSWCCA 220 at [20]. 13 Unlike Sullivan, there can be no ambiguity about what his Honour said. In the present case the strength of the Crown case was completely irrelevant because his Honour found that the applicant was genuinely remorseful. The utilitarian value of the plea was as significant as a plea made at the first opportunity in the Local Court could be. The Crown before this Court relied upon the fact that the present would not have been a lengthy or complex case had the applicant sought to defend the charge. But that is a factor that will only rarely affect the benefit obtained by the plea and it is not the reason given by his Honour for devaluing it. 14 Judges of the District Court must surely be aware by now that to suggest, as his Honour clearly did, that the utilitarian value of the plea has been reduced by the strength of the Crown case is an error which might warrant the intervention of this Court. It may well, as in this present case, require this Court to re-sentence the applicant taking into account evidence of matters not placed before the judge at first instance and of facts and circumstances arising since sentence was imposed. It can in effect put at nought the sentencing proceedings before the District Court and result in a waste of the valuable resources of this Court, to say nothing of the costs to the community associated with appeals from the District Court. 15 Nor should the parties sit idly by while such an obvious error is made in the sentencing remarks without bringing the matter to the attention of the judge and so provide the opportunity for the sentencer to reconsider the sentence, and the discount in particular, if it has been infected with this error. No judge could be ungrateful for such assistance even if the judge believes that the error has not been made or that it ultimately made no difference to the sentence imposed. 16 While there is no obligation on a sentencer to nominate the utilitarian value for the plea, I cannot personally understand why certain judges seek to avoid doing so in simple cases, such as the present. But if judges are not prepared to make the discount clear by quantifying it or indicating the starting point of the sentence before the application of the discount, then with respect, they should carefully and correctly enunciate the factors taken into account and the principles being applied in determining the discount which they are applying. As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]: In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed. 17 Time and again this Court is left to try to fathom what discount was given, either for pure utilitarian value or in combination with contrition, in cases where the judge has not referred to the fact that a discount was given or the value of it, when a simple statement of the percentage value of the discount or the starting point of the undiscounted sentence would have revealed whether the sentencing discretion miscarried on that account. 18 Error having been shown this Court must consider whether some other sentence is warranted and this requires the Court to determine for itself the appropriate sentence to be imposed upon the applicant taking into account fresh material that has been produced for the hearing of the appeal. The applicant has made an affidavit annexing copies of certificates he has earned while in custody for attending courses. He has also detailed his history in custody both as to the conditions of his confinement and his employment and recreational pursuits. He has indicated his present attitude to alcohol and reiterated his remorse. There is also attached a letter from a medical practitioner to the Governor of Grafton Correctional Centre as to the impact of the offence on the applicant. 19 On behalf of the applicant it has been submitted that he should have received the benefit of the fact that he assisted police by voluntarily giving a breath test and breath analysis when the police had no right to enforce such a procedure because the applicant had the good fortune to make it to the driveway of his "normal place of abode". There may be some question as to whether the applicant would have been entitled to refuse to take a breath test because he was not at the time living in the house where he was arrested by police. However, certainly the police officer did not believe that he could require the applicant to submit to a breath test and told him so. But, when the police spoke to the applicant in his motor vehicle, he was obviously heavily intoxicated and, although he was told that he did not have to submit to a breath test, it is highly likely that he was not sober enough to exercise a choice about whether he would submit to the breath test or not. 20 However that may be, it is argued that the voluntary submission of the applicant to be tested was in effect the same as if he had made admissions to prove the Crown case, because without the blood alcohol reading the applicant could not have been charged with the aggravated offence. 21 It has been held that the voluntary production of incriminating evidence by an accused to police will not always operate to reduce a sentence imposed for the offence proved by that evidence. So, for example, in R v Fernando [2004] NSWCCA 147 the fact that the offender voluntarily provided a DNA sample to police was held not to warrant a specific discount or a greater discount than was justified by the plea of guilty. Kirby J, with whom the other members of the Court agreed, stated: [41] Here there was no justification for a specific discount. Mr Fernando did not give evidence. It is not known, for instance, whether Mr Fernando appreciated that the police had his earring, although he presumably knew he had lost an earring. His motivation in providing the sample was unknown. In some circumstances co-operation with the police may signify contrition, especially where admissions are made after arrest, and more especially made in respect of matters completely unknown to the police (as in R v Ellis [(1986) 6 NSWLR 603]). Contrition may justify more lenient treatment, although the degree of leniency is not usually quantified. Where an offender unwittingly assists the police, whether by making statements which he does not recognise as incriminating, or providing a sample of his handwriting or DNA, not fully appreciating its evidentiary significance, it is difficult to see why any discount is justified unless it can be seen as evidence of contrition. 22 As I have already indicated, in the present case it is highly doubtful that because of his level of intoxication the applicant could have been aware of his rights to refuse to give a sample of breath. Certainly there was not the slightest evidence of contrition at the time of his conversation in the driveway of his home where he initially denied the accident and then later blamed the cyclists for swerving in front of him. In any event his Honour found the applicant remorseful. In my opinion this is not a matter than in this case warrants further leniency than that which otherwise flows from the plea and the contrition shown by the applicant once he had sobered and come to a full realisation of what he had done. 23 The applicant also submits that there was insufficient weight given to the subjective circumstances of the applicant. It was contended that the applicant's subjective case was "very strong". Reliance is placed on the fact that for a period of 10 years prior to the accident he had not offended, his financial stressors at the time due to his injury and incapacity, his depression and the fact that he had gone to the hotel on the day after arrangements for his family to visit him fell through. 24 I do not consider the subjective circumstances to be of any special significance or could moderate the sentence to any great degree. The simple fact is that the applicant voluntarily attended the hotel, drank alcohol until he was so affected that he could not safely manage to drive a vehicle and then drove for some distance in a highly erratic manner and was a real danger to any person on or about the road at the time. Unfortunately persons who abuse alcohol almost invariably do so in order to find relief from the stresses and difficulties of their personal lives. There was nothing particularly special about the applicant, other than that he had earlier been offered advantages of counselling and assistance, from which it appears he derived some benefit so that he was able to avoid offending for a significant period before the offence. 25 The applicant relies upon the fact that he had curbed his alcohol consumption after the offence and argues that his Honour should not have considered him as being at risk of re-offending simply because he was an admitted alcoholic. His avoidance of alcohol was no doubt a consequence of his remorse for the death of the cyclist. However, it is of concern that he drank alcohol on at least one occasion after the accident, apparently without the knowledge of his wife. But his attempts at rehabilitation and the effects of his conduct upon him did not require his Honour, or this Court, to form a favourable view of his likelihood of re-offending especially in light of his relapse into alcohol abuse during the period leading up to the offence. As dangerous driving cases go, the applicant's is not a particularly strong subjective case. 26 However, it is a very serious case so far as the objective facts are concerned. The blood alcohol reading was very high especially having regard to the fact that it is the 0.15 level that demarks the aggravated form from the simple offence. It was a not an insignificant distance travelled by the applicant, about two kilometres, in a state where he was simply unfit to drive the vehicle safely. He failed to stop after the accident and his previous record cannot be overlooked. He was also an unlicensed driver at the time. 27 The Court was referred to the decision in R v Vukic [2003] NSWCCA 13 in which Smart AJ considered a large number of cases concerning sentences for aggravated dangerous driving. In that case an appeal was allowed by a two-person bench against a sentence of 8 years imprisonment after a plea of guilty with one death and a reading of 0.175 on the basis that it was manifestly excessive. The applicant in that case had suffered serious physical and psychological injuries as a result of the offence. The Court substituted a sentence of imprisonment for 7 years and set a non-parole period of 4 years. In my view the present is a worse case by reason of the blood alcohol reading and the prolonged period of dangerous driving. 28 In R v Ryan [2003] NSWCCA 202 this Court allowed an appeal from a sentence of 7 years and six months after a plea of guilty where the aggravating factor was grossly excessive speed. The sentence was reduced because of errors made by the sentencing judge and a sentence of 6 years with a non-parole period of 4 years was imposed. I believe the present to be a more serious case because of the extended period of the dangerous driving and the high reading. The applicant in Ryan was a much younger man than the applicant. 29 I believe that in the present case a starting point should be in the range of 8 to 9 years, taking into account the applicant's remorse and his endeavours at rehabilitation to date. There should be a reduction by about 25 per cent for the early plea. The sentence thus derived is about that which his Honour imposed, and certainly is close enough that intervention by this Court is not warranted. 30 His Honour found special circumstances and reduced the ratio between head sentence and non-parole period from the statutory ratio of 75 per cent to about 70 per cent. This meant a reduction in the non-parole period by about three months after the applicant had served four years six months in gaol. With respect, this rather makes a mockery of a finding of special circumstances in response to the need his Honour found for "extended supervision and counselling". I believe that the non-parole period should be four years. 31 I propose that the application be granted and the appeal allowed. The sentence imposed should be quashed. The applicant should be sentenced to a term of six and a half years made up of a non-parole period of 4 years to date from 9 September 2003 and to expire on 8 September 2007 with a balance of the term being 2 years and 6 months to expire on 8 March 2010. 32 STUDDERT J: I agree. 33 DUNFORD J: I agree with Howie J. ********** Last Modified: 07/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.