New South Wales Court of Criminal Appeal R v Anthony Norman Hicks [2005] NSWCCA 90 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 15 March 2005 JUDGMENT DATE: 15 March 2005 JUDGMENT OF: Tobias JA at 31; Wood CJ at CL at 32; Buddin J at 1 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Sentencing - severity appeal - culpable driving offences - relevance of general deterrence where offender has a mental disorder - no finding of "special circumstances" R v Engert (1996) 84 A Crim R 67 R v Fidow [2004] NSWCCA 172 R v Hemsley [2004] NSWCCA 228 R v Hookey [2004] NSWCCA 223 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Plumb [2003] NSWCCA 359 R v Price [2004] NSWCCA 186 R v Simpson (2001) 53 NSWLR 704 R v Skrill [2002] NSWCCA 484 R v Whyte (2002) 55 NSWLR 252 Regina PARTIES: Anthony Norman Hicks FILE NUMBER(S): CCA 2005/96 J Bennett SC (Crown) COUNSEL: H Dhanji (Applicant) S Kavanagh (Crown) SOLICITORS: SE O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/71/0081 LOWER COURT JUDICIAL OFFICER: Woods ADCJ IN THE COURT OF CRIMINAL APPEAL 2005/96 TOBIAS JA WOOD CJ at CL BUDDIN J TUESDAY 15 MARCH 2005 REGINA v ANTHONY NORMAN HICKS Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two counts of driving a motor vehicle in a manner dangerous to other persons. The result of his driving was that the two passengers in the vehicle sustained injuries amounting to grievous bodily harm. Each offence attracted a maximum penalty of 7 years imprisonment. The applicant asked that two other offences, namely matters of driving whilst his licence was cancelled and driving with a low range of PCA, be taken into account on sentence. The former offence attracted a maximum penalty of 2 years imprisonment as the applicant had a prior conviction for a similar offence in 1999. 2 The applicant was sentenced on 24 September 2004 to concurrent terms of 16 months imprisonment with a non-parole period of 12 months in respect of each offence. Both terms were ordered to commence on 24 June 2004 to account for a period of approximately three months which the applicant had spent in custody prior to sentence. His Honour also disqualified the applicant from holding a driver's licence for a period of 3 years. 3 The facts in the matter are not in dispute and may be briefly stated. Shortly before 6 pm on the evening in question, the applicant was driving a Holden Commodore towards the township of Jugiong. He was driving in excess of the speed limit which was 100 kph for that section of the road. The vehicle left the road and collided with road signs before rolling onto its side. It finally came to rest against a chain mesh fence. As I have already observed, there were two passengers in the vehicle. Steven Kelleher, who was in the front passenger seat, was partially thrown out of the front nearside window but was restrained by his seat belt. Daniel Goodwin was trapped in the rear of the vehicle where he had been sitting. He was freed by ambulance officers and rescue personnel who had to cut a hole in the roof in order to extricate him. 4 Both passengers were assessed as being in a critical condition and were airlifted to Canberra Hospital. Mr Kelleher suffered a closed fracture of his left femur, an extensive pelvic fracture and a fractured left radius, all of which required surgical intervention. Mr Goodwin suffered a severe head injury and a spinal injury. A neurosurgeon described his injuries in the following terms: CT of the brain demonstrated intraventricular and subarachnoid haemorrhage with dilatation of the frontal horns of the lateral ventricles. Cervical spine x-rays and CT scan demonstrated a fracture of the C6 pedicle and transverse process. 5 The applicant was able to free himself from the vehicle. Witnesses at the scene observed that he smelt of intoxicating liquor. He was taken to hospital and returned a blood alcohol reading of 0.064. Dr Perl was of the opinion that the applicant was "most likely" to have been "under the influence of alcohol to the extent that there would have been some impairment of driving skills" but was unable to assess his blood alcohol concentration at the time of the offence. 6 An examination of the accident scene did not reveal any obvious reason for the vehicle having lost control. The weather at the time was fine and the road surface was sealed and dry. No defects of a kind which may have explained the collision were found when the vehicle itself was examined. 7 A witness observed the applicant's vehicle apparently being "tailgated" by another vehicle. Both vehicles were said by the witness to have been travelling at high speed. Mr Goodwin had no recollection of the incident. Mr Kelleher however recalled that the applicant was driving "like a maniac" before the accident. He said that the vehicle was travelling so fast that it was skipping the corners of the road. He said that the last thing that he recalled was telling the applicant to stop the vehicle because he wanted to get out. 8 The applicant, when interviewed by police, provided a brief version of events. He said that he could not remember much other than that he thought he had been slowing down for the 60 kph zone and that he felt that he may have swerved to miss something on the road. 9 In the circumstances, it was the Crown's case that the applicant had driven in a manner that was dangerous to other persons through a combination of excessive speed and some impairment to his driving skills due to the presence of alcohol. 10 The applicant had a number of prior convictions dating back to 1982. They included numerous convictions for offences of break, enter and steal and other matters of dishonesty. He had served a number of sentences of imprisonment, albeit most were of fairly short duration. Of particular relevance in the present context is the fact that he had served a term of 18 months periodic detention in 1989 for an offence of culpable driving. He also had prior convictions for driving whilst unlicensed and a PCA offence, in addition to the previous conviction for driving whilst his licence was cancelled to which reference has already been made. 11 The applicant was aged 33 when he stood for sentence. As a child he had grown up in a chaotic and abusive family environment. As a result, his grandparents had assumed guardianship of him when he was 11 or 12. He had become heavily dependent upon drugs and alcohol at about the age of 14. He had left school in Year 10 and although he had had about 50 different jobs, it seems that he had had considerable difficulty in maintaining any form of permanent employment. The applicant's problems in that regard are undoubtedly attributable to the fact that he has for many years suffered from significant mental health problems. 12 A report from Dr Stevens, a forensic psychologist, was tendered on the applicant's behalf at the sentencing hearing. Dr Stevens carried out an assessment of the applicant and diagnosed him as having a "schizoaffective disorder, depressive type [which was] in partial remission" and "alcohol dependence and drug abuse". The applicant reported to Dr Stevens that he had suffered from depression for many years. Dr Stevens noted "clear indications of psychotic processes and delusions". 13 A report from Dr Lucire, a forensic psychiatrist, was also placed before the sentencing judge. In it she referred to the fact that the applicant had had a long history of psychotic episodes with frequent admissions to psychiatric facilities in various parts of the country. Her opinion was consistent with that offered by Dr Stevens. 14 There was evidence before the sentencing judge that at the time of sentence the applicant was performing creditably in his position working in a sheltered workshop. Other evidence revealed that he was being treated with an antipsychotic drug and that he had been compliant with his medication. He had also ceased using cannabis and alcohol. There was also evidence that he had become very involved in the activities of a local church which he was attending on a regular basis. There was further evidence that he had been in a stable relationship for sometime with a woman, who also suffered from schizophrenia, whom he intended to marry. These developments all augured well for his prospects of ultimately being rehabilitated. 15 The sentencing judge was mindful of the guidelines promulgated by this Court for offences of the present kind in both R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. The Court there said that in a typical case where the offender's moral culpability is high, a full-time custodial sentence of not less than 3 years (in the case of death), and 2 years in the case of grievous bodily harm would not generally be appropriate. Various enumerated factors were referred to by the Court as constituting aggravating features such as would require an appropriate increment in the sentence to be imposed. 16 The first ground of appeal asserts that the sentencing judge "erred in determining that general deterrence was a factor in determining sentence". In considering this ground, it is necessary to have regard to the following passages which appear in his Honour's Remarks on Sentence: I find that the offender, through his history of involvement with the law, and his casual attitude for the requirements of being licensed before driving a car, has shown a blatant disregard to the rights and safety of others. I find that his driving in the manner he did and such that on that road, at that time he lost control of his vehicle and caused such an impact to cause the injuries to his two passengers he had abandoned responsibility and there is thus a high level of moral culpability. The law and the community demands an appropriate penalty as a lesson to him and deterrent to him and others, and as a protection to themselves. … With respect to mitigating factors, I note that there has been pleas of guilty and I do note from reports that the offender does have a history of mental health problems, and it is suggested that he has been trying to address his drug and alcohol problems. Courts have sometimes suggested that general deterrence has limited weight in the case of an offender suffering from a mental disorder, however, there is nothing before me to suggest that at the time of this incident the offender did not fully appreciate what he was doing. In fact, on his evidence, he had made arrangements that day to purchase a motor vehicle from a dealer and because of some problem with the vehicle being acquired, he had been given a loan of another vehicle, this when at all times he had no current licence to drive. This shows that in spite of whatever health problems he has, he was showing a blatant disregard for the rules laid down for the safety or good order in society. The law clearly demands a period of custody for a person who shows such disregard and causes such injury and damage. 17 Two interrelated criticisms were advanced in respect of those observations. The first was a challenge to his Honour's finding of fact that "there is nothing before me to suggest that at the time of this incident the offender did not fully appreciate what he was doing". It was submitted that this finding was "in conflict" with the conclusions of Dr Stevens. In his report Dr Stevens expressed the view that the applicant's "ability to think and reason has been impaired. His judgment appears very poor. I think that his criminal action in regard to the charges would have been affected by his psychological conditions". That is however as far as the evidence went upon this issue. There was no particularisation whatsoever as to the manner in which, and the extent to which, the applicant's "psychological conditions" had affected his driving on the day in question. Moreover, although he did admit to having drunk 4 stubbies of beer in the morning as well as having had "a couple of pipes with my mates", the applicant nevertheless informed Dr Stevens that he felt "completely in control" at the time of the incident. 18 Furthermore, Dr Lucire did not provide any support for Dr Stevens' opinion, even though she was specifically asked for her opinion as to whether any condition from which the applicant was suffering could have contributed to his conduct at the time of the offence. Her response was that she did not know "if the psychosis was active at the time or what medication he was on". 19 In those circumstances, and given the other evidence in the case, I am not persuaded that it has been demonstrated that it was not open to the sentencing judge to arrive at the conclusion which is the subject of the present complaint. 20 It was then submitted that the sentencing judge erred, in light of the evidence concerning the applicant's mental condition, in placing the emphasis which his Honour apparently did, upon the principle of general deterrence. The principles concerning the sentencing of offenders with a mental illness or disorder are well established and do not require repetition in the present case. They are conveniently summarised in R v Hemsley [2004] NSWCCA 228 per Sperling J. 21 Nevertheless it is important to recall that the sentencing of persons suffering from such an illness or disorder remains a discretionary exercise and that the various considerations to be taken into account may, and often do, point in different directions: See R v Engert (1996) 84 A Crim R 67. 22 The extent to which in such cases a sentencing judge may moderate the operation of the principle of general deterrence will depend in large measure upon the degree to which there is a causal connection between the offender's mental condition and his conduct in committing the offence in question. As I have said, such a causal connection has not been demonstrated by the applicant. 23 Moreover, there were a number of aggravating features of the present case which suggested that custodial sentences of some severity were called for. They included: (a) the fact that two victims had been seriously injured (See R v Skrill [2002] NSWCCA 484; R v Plumb [2003] NSWCCA 359; and R v Price [2004] NSWCCA 186); (b) the fact that some increment in sentence, albeit of a modest kind, was required to reflect the matters on the Form 1; (c) the fact that the applicant's prior record for driving offences indicated a strong need for specific deterrence; (d) the fact that the offences took place over an extended distance and period of time; and (e) the fact that the offences were committed against a background of excessive speed and at least some degree of intoxication (albeit the intoxication was not of a kind that would establish a more serious offence). 24 Those features of the case and the fact that the sentences imposed were considerably more lenient than the guidelines indicated in Jurisic and Whyte strongly suggests, in my view, that the sentencing judge must, in any event, have ameliorated the sentences which were imposed to take account of the applicant's history of mental illness and the satisfactory progress which he had made in addressing the problems associated therewith. In those circumstances, I am of the view that this ground of appeal must inevitably fail. 25 The second ground is that the sentencing judge erred in failing to find special circumstances. It was first submitted that his Honour gave inadequate reasons for declining to find special circumstances. In support of that submission reliance was placed upon the remarks of Howie J, with whom Studdent and Dunford JJ agreed, in R v Hookey [2004] NSWCCA 223 at paras 20–1. 26 The sentencing judge said that "after considering where in the range of tariffs this case falls for the objective and subjective features in the case, I cannot find any special circumstances to warrant any reduction in the non-parole period". Whilst his Honour's reasons may have been expressed a little more elegantly, I am not persuaded that what his Honour said suffered from the defect which Howie J identified in Hookey. His Honour described the argument in that case as having "technical merit". 27 It was then submitted that his Honour should have found "special circumstances" because the applicant will require supervision, upon his release from custody, to address his drug and alcohol problems as well as issues affecting his mental health. Considerable emphasis was placed by counsel upon the fact that the applicant had made considerable progress in relation to those issues at the time he appeared for sentence. That being so, it is submitted that the sentencing judge should have "reduced the non-parole period to allow for a longer period of supervision to ensure that the applicant's rehabilitation progresses". 28 In R v Fidow [2004] NSWCCA 172, Spigelman CJ, with whom Hulme and Adams JJ agreed, said: Simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation. 29 Whilst there was undoubtedly material available which would have entitled the sentencing judge to make a finding of "special circumstances", I am not persuaded that they were "sufficiently special" as to require such a finding. As this Court said in R v Simpson (2001) 53 NSWLR 704, "as a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive" (at para 73). This is not one of those cases. I would reject this ground of appeal. 30 I propose that leave to appeal be granted but that the appeal should be dismissed. 31 TOBIAS JA: I agree with Buddin J. 32 WOOD CJ at CL: I also agree. 33 TOBIAS JA: The orders of the Court will be as proposed by Buddin J. ********** 22/03/2005 - Norrish DCJ was recorded - correct Judge Woods ADCJ - Paragraph(s) no paragraph number - corrected on coversheet under heading Lower Court Judicial Officer 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.