Regina v Hobday [2003] NSWCCA 345

New South Wales Court of Criminal Appeal

CITATION : Regina v Hobday [2003] NSWCCA 345 HEARING DATE(S) : Wednesday 19 November 2003 JUDGMENT DATE : 19 November 2003

JUDGMENT OF : Handley JA at 28; Grove J at 1; Adams J at 29 DECISION : APPEAL AGAINST SENTENCE ALLOWED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - DANGEROUS DRIVING CAUSING DEATH - SENTENCE - ERRORS DETECTABLE IN SENTENCING JUDGE'S REMARKS - NEED TO ACCOMMODATE "DISCOUNT" FOR UTILITARIAN VALUE AND OFFENDER'S SUBJECTIVE CASE - MANIFESTLY EXCESSIVE Di Simoni v The Queen (1981) 147 CLR 383 CASES CITED : R v Jurisic 1998 45 NSWLR 203 The Queen v Olbrich (1999) 199 CLR 270 R v Whyte 2002 55 NSWLR 253 PARTIES : Regina v Nathan Andrew Hobday FILE NUMBER(S) : CCA 60252/03 COUNSEL : E. Wilkins (Crown) H. Cox (Applicant) SOLICITORS : C.K. Smith (Crown) S. O'Connor (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0261 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60252/03

HANDLEY JA GROVE J ADAMS J Wednesday 19 November 2003

REGINA v NATHAN ANDREW HOBDAY JUDGMENT 1 GROVE J: The applicant seeks leave to appeal against the severity of sentence imposed by English DCJ at Gosford District Court on 4 December 2002 upon his conviction for dangerous driving occasioning death contrary to s52A(1)(a) of the Crimes Act. The applicant was sentenced to imprisonment for five years commencing on 4 December 2002 with a non-parole period of three years commencing on that date and expiring on 3 December 2005. The prescribed maximum penalty for the offence is 10 years imprisonment. 2 At the time of the offence the applicant was aged 21 years. He had been in constant employment at Ingham's Chickens where he met Toni Meha, a woman some 11 years older than himself. She had three children from earlier relationships. At the date of the offence, 26 January 2002, they had lived together for about seven months. 3 On 25 January 2002, after ceasing work at about 1.30pm, the applicant and Ms Meha attended Mangrove Mountain Country Club where they stayed for approximately two hours. They partook of intoxicating liquor. They then returned home. In the evening they may have partaken of some food but in due course they travelled to Tuggerawong Caravan Park where they socialised with friends until about 1.30am on 26 January. They partook of further intoxicating liquor. 4 At that time they proceeded to return home, Ms Meha riding as a passenger in a vehicle being driven by the applicant in Wolseley Road, Tacoma. About 10 minutes into the journey the vehicle came to a bend in the road where the applicant lost control of it and collided with a tree and telegraph pole adjacent to the road. It was raining at the time. 5 The applicant told police that he was driving at about 70 kilometres per hour. He believed the speed limit was 60 kilometres per hour. He had not noticed a sign restricting speed to 50 kilometres an hour nor had he observed an advisory speed sign relating to the curve in the road suggesting a speed of 35 kilometres per hour. 6 Ms Meha sustained head injuries in the collision and died as a result. Police attending the scene noted that the applicant had a strong smell of intoxicating liquor on his breath, his eyes were very bloodshot, his speech was slurred and opinion was expressed that he was moderately affected by alcohol. A roadside breath test proved positive. 7 The accident occurred at about 1.50am. At 2.43am a breath analysis returned a result of .105 grams of alcohol per 100 ml of blood. At 5.20am a blood sample was taken which, on analysis, revealed a concentration of .066 grams of alcohol per 100 ml. These results were analysed by Ms Perl, a pharmacologist whose opinion was that, based upon the breath analysis, at the time of collision the applicant would have had a blood alcohol concentration between not less than 0.155 grams per 100 ml and 0.126 grams per 100 ml and that, based on the analysis of the blood sample, the blood alcohol concentration of the applicant would have been not less than 0.112 grams per 100 ml with an upper limit of 0.157 grams per 100 ml. 8 The existence of a blood alcohol concentration exceeding 0.15 grams per 100 ml makes an offender liable to be punished for the offence of aggravated dangerous driving occasioning death contrary to s 52A(2) of the Crimes Act and a prescribed maximum penalty of 14 years imprisonment. 9 The first ground argued on behalf of the applicant asserts that the sentencing judge took into account as an aggravating feature a fact which would have warranted a conviction for a more serious offence. It is argued that her Honour took into account a blood alcohol concentration exceeding 0.15 grams per 100 ml thus assessing the culpability of the applicant as if he were guilty of the aggravated form of offence and contrary to the well recognised principle articulated in Di Simoni v The Queen (1981) 147 CLR 383. 10 The argument is founded upon two extracts from her Honour's remarks on sentence. Her Honour made reference to the amendments to the relevant legislation when the prescriptions of maximum penalties were increased and the aggravated form of offence created. It is clear to my mind that the passage relied upon is in response to a submission by counsel appearing at the sentencing proceedings that alcohol consumption should not be taken into account as an aggravating feature of the offence (at all) because it was a fundamental ingredient of the offence to which the plea of guilty had been offered. The submission was rightly rejected. The degree of intoxication is obviously a factor in assessing the seriousness of the particular offence. If authority be required, it can be found in R v Whyte (2002) 55 NSWLR 253. 11 The second passage of the remarks relied upon by the applicant is as follows: "I find that at the time the offender drove his motor vehicle his blood alcohol level was at least .115 grams per 100 ml of blood. His ability I find to drive under the influence of alcohol was significantly impaired. I find he consumed far more alcohol in the seven hours whilst he was at the caravan park than he told police and this court. His evidence in that regard I find to be unreliable. I find it more probable than not indeed that his blood alcohol level was at the upper end of the range, as evidenced by Judith Perl in her expert report." 12 The last mentioned finding gives rise to some concern. Those preceding it were clearly open to her Honour on the evidence. It is well established that a finding of fact by a judge contrary to the interests of an offender standing for sentence needs to be established to the criminal standard of proof: The Queen v Olbrich (1999) 199 CLR 270. 13 Of course, her Honour did not specify which of the upper ranges mentioned by Ms Perl she was referring to, however it is open to conclusion that she was making reference to the estimate of 0.157 grams of alcohol per 100 ml of blood. Against that conclusion, it should be observed that when reciting figures at any point from Ms Perl's report, the sentencing judge made no mention of that particular figure and the context of her remarks needs to be assessed in the light of her initial statement that the applicable maximum penalty was 10 years, and not 14 years which would be the case in respect of the aggravated form of the offence. 14 Nevertheless, as I have said, it is a matter of concern that the purpose of her Honour's finding, specifying the "upper end of the range" on the balance of probabilities, is unexpressed. There is no indication of what use she made of that finding. 15 Given the whole of the circumstances, I would be unpersuaded that her Honour's remark, if viewed in isolation, was necessarily indicative of miscarriage in the sentencing process. 16 The second ground argued was that upon the established facts it was unreasonable to find that there were no contributing factors to the death of Ms Meha which reduced the moral culpability of the applicant. Reference is made to a report from a towing service and an investigation by the local shire traffic committee in the light of a reported circumstance that there had been "a few fatal accidents where vehicles have hit the tree". There was evidence before her Honour that, subsequent to the accident, it had been determined to install a further speed reduction advisory sign before the bend in the road and place guiding chevrons around the bend. 17 Her Honour found that the applicant had chosen to drive the vehicle at some 20 kilometres per hour in excess of the speed limit, in heavy rain, knowing that he had consumed alcohol, being unfamiliar with the road and, in those circumstances, failing to see the speed limit sign and the existing advisory sign. 18 These were questions of fact to be determined by her Honour and the implication of the argument is that it should be found that no reasonable tribunal of fact could have reached the findings which she did. That submission should be rejected. 19 The third argument was founded upon a comprehensive assertion that the sentence was manifestly excessive. 20 The applicant presented a substantial subjective case which was accepted by her Honour. She accepted as genuine his expression of remorse and contrition. The victim was not a stranger and the applicant was grieving at her loss. It was undisputed that the applicant had offered his plea of guilty at the earliest opportunity but, somewhat cryptically, her Honour remarked that, in connection with offences such as these, offenders "are genuinely remorseful but their plea is of limited utilitarian value". 21 There is no connection between remorse and utilitarian value of a plea of guilty. Neither am I aware of any rationale, nor any authority, for the proposition that the utilitarian value of pleas of guilty to offences of dangerous driving causing death or grievous bodily harm is in some diminished category. 22 In the event, her Honour did not express her precise measure of the utilitarian value of the plea of guilty, but stated that she had "reduced his sentence by 18 percent for contrition and as having public utility". On that overall basis it follows that the starting point of her assessment of appropriate sentence was between six years and one month and six years and two months, as against a prescribed maximum penalty of 10 years imprisonment. 23 The applicant had no prior convictions for criminal offences but had paid traffic infringement penalties. There is a useful tabulation of aggravating factors established by authorities in Whyte at p 286. The majority of these are not present in this case. The guideline in R v Jurisic (1998) 45 NSWLR 209, where it was said that 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 three years, in the case of dangerous driving causing death, should be exceptional, requires that attention be paid to it. The sentence regime whereby minimum and additional terms were specified has now, of course, been replaced. 24 There has been drawn to the attention of the Court as well as the Judicial Commission sentencing statistics, a précis of a number of cases in order to provide a basis for observation of an established pattern of sentencing. 25 That observation leads me to a conclusion that an assessment of sentence in this case, commencing at a point exceeding six years imprisonment, is manifestly excessive and the power of this Court to intervene should be invoked. That conclusion is fortified by the inability to attribute any relevance to her Honour's finding discussed in relation to the first argument which appeared to have reference to a blood alcohol concentration appropriate to the aggravated form of offence and the comparative minimisation of the "discount" allowed to the applicant for the utilitarian value of his plea at the earliest opportunity, given that the stated 18 percent is combined with reflection of the applicant's indisputably powerful subjective case. 26 In setting a non-parole period her Honour found special circumstances which caused her to vary, in the applicant's favour, the proportion between head sentence and non-parole period. For similar reasons such a finding should be implemented on resentence. 27 I propose that application for leave to appeal against sentence be granted, the sentence imposed in the District Court be quashed, and in lieu thereof the applicant be sentenced to imprisonment for four years to commence on 4 December 2002 and to expire on 3 December 2006 with a non-parole period of one year and nine months to commence on 4 December 2002 and to expire on 3 September 2004. The earliest date of eligibility for release to parole is specified as 3 September 2004. 28 HANDLEY JA: I agree. 29 ADAMS J: I also agree. 30 HANDLEY JA: The orders of the Court therefore will be as announced by Grove J. **********