New South Wales Court of Criminal Appeal CITATION: Regina v Wayne Mark Kopacka [2005] NSWCCA 83 HEARING DATE(S): 10 March 2005 JUDGMENT DATE: 10 March 2005 JUDGMENT OF: Wood CJ at CL at 1, 34, 36; Hislop J at 35; Johnson J at 2 DECISION: 1. Time for filing notice of application for leave to appeal extended to 5 November 2004; 2. leave to appeal granted; 3. appeal dismissed. CATCHWORDS: CRIMINAL LAW - SENTENCING - Culpable driving causing grievous bodily harm in circumstances of aggravation - Bad record of drink driving offences - Extent of discount for utilitarian value of plea of guilty LEGISLATION CITED: Crimes Act 1900: s.52A R v F (1957) 57 SR 543 CASES CITED: R v Thomson and Houlton (2000) 49 NSWLR 383 R v Scott [2003] NSWCCA 286 Wayne Mark Kopacka (Applicant) PARTIES: Regina (Respondent) FILE NUMBER(S): CCA 2004/2854 Applicant in person COUNSEL: D Woodburne (Respondent) Applicant in person SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/0302 LOWER COURT JUDICIAL OFFICER: Ellis DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2854 WOOD CJ at CL HISLOP J JOHNSON J 10 March 2005 REGINA v WAYNE MARK KOPACKA Judgment 1 WOOD CJ at CL: I will ask Justice Johnson to give the first judgment. 2 JOHNSON J: The applicant, Wayne Mark Kopacka, seeks leave to appeal, out of time, against a sentence imposed by his Honour Judge Ellis on 5 February 2004 at the Parramatta District Court, following a plea of guilty to one count of aggravated dangerous driving occasioning grievous bodily harm, the aggravating factor being that the applicant had the prescribed concentration of alcohol present in his blood. The maximum penalty for such an offence under section 52A(4) of the Crimes Act 1900 is imprisonment for eleven years. 3 The applicant was sentenced to a term of imprisonment of four years and six months to date from 5 February 2004 and to expire on 4 August 2008. His Honour fixed a non-parole period of two years and six months to date from 5 February 2004 and to expire on 4 August 2006. In addition, the applicant was disqualified from holding a licence for a period of seven years from 5 February 2004. His Honour recommended to the Roads and Traffic Authority that a licence not be issued to the applicant until evidence is provided that he has rehabilitated himself in terms of his consumption of alcohol. 4 A Notice of Intention to Appeal was filed on 17 February 2004, but a Notice of Application for Leave to Appeal was not filed until 5 November 2004. 5 On 5 February 2004, his Honour Judge Ellis made orders pursuant to s 168 of the Criminal Procedure Act 1986 with respect to certain summary traffic offences which were related to the indictable offence under s 52A(4). Upon application made thereafter, his Honour, on 3 March 2004, set aside the orders made with respect to the summary matters and remitted them to the Local Court for mention on 11 March 2004. It is not necessary to make further reference to these matters for the purposes of determining the present application. The Offence 6 In the early hours of the morning of 23 November 2001, the applicant drove an unregistered and uninsured Ford Falcon vehicle bearing cancelled New South Wales registration plates along Wellington Road, South Granville. The vehicle's registration had expired on 1 October 2001. The applicant did not hold a motor driver's licence, his licence having been cancelled on 19 September 1998. 7 The applicant drove up behind another car, causing the other driver to move into the left part of the lane. The applicant then overtook that other car by driving over double unbroken separation lines onto the incorrect side of the road. The applicant then swerved back onto the correct side of the road at high speed, his car fishtailed, he lost control and swerved back onto the incorrect side of the road, then off the road and into a tree. 8 There were two passengers in the applicant's car. The applicant and his passengers were trapped in the car until released by rescue service. The front nearside passenger, Mr Tiu Kalolo, aged 37 years, required surgical intervention for fractures occasioned to his left forearm and left leg. 9 The applicant was conveyed to Westmead Hospital where a blood alcohol sample was obtained. That sample was analysed and returned a blood alcohol concentration of 0.281 grammes of alcohol in 100 millilitres of blood. To constitute a circumstance of aggravation for the purposes of s 52A of the Crimes Act 1900, the prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood: section 52A(9). Accordingly, the applicant's blood alcohol concentration was approaching double the level required to constitute a circumstance of aggravation. 10 It was not until 15 May 2002 that the applicant was arrested and conveyed to the Merrylands Police Station, where he participated in an electronically recorded interview. Given the issues raised in the present application, it is appropriate to refer to some of the responses provided by the applicant to police during that interview. He said that he had just had a couple of glasses of beer to drink prior to the accident (Q&A 29, 29, 64, 100). He considered that he was in a fit state to drive (Q&A 105). He said that he had owned the car for a few months (Q&A 140) and that he had paid $50 for it (Q&A 127). He said that he called his car "The Devil Car" because it had a "mind of its own", "for some reason it would want to spin out", it would "decide to turn right or the back-end would decide to slide" (Q&A 165-171). He said that he did not have the car checked out but had a look all around it himself, because he was a mechanic, although not a qualified one (Q&A 172-175). He was aware that he did not have a current driver's licence at the time of the accident (Q&A 109-113). He said that he thought that the car was registered at the time (Q&A 116). He said that he was aware that he had incorrect number plates on the car (Q&A 117). He said that he had been driving slowly on or under the speed limit prior to the accident (Q&A 78-80, 85, 89). He said that there were no other cars on the road and he did not overtake any other car (Q&A 147-149). He stated that he thought the accident was caused by the ball joint on the front of the car breaking (Q&A 16, 151-154, 160-162, 178). History of Proceedings Before the District Court 11 The applicant was charged on 15 May 2002. He was committed for trial on 26 September 2002. On 24 October 2002 he pleaded guilty before her Honour Judge Tupman at the Parramatta District Court and the matter was adjourned with bail being continued. On 9 December 2002, the applicant failed to appear and it was not until 28 April 2003 that he was brought before the District Court again and was granted conditional bail. 12 On 13 June 2003, the applicant appeared before the Parramatta District Court and indicated a desire to seek leave to withdraw his plea of guilty to the s 52A(4) offence. There were a number of appearances before the District Court until, on 30 October 2003, the applicant abandoned his application to withdraw his plea of guilty and confirmed the plea of guilty. The matter was stood over to 5 February 2004 when proceedings on sentence took place before his Honour Judge Ellis with sentence being passed later that day. Reasons for Sentence in the District Court 13 In his reasons on sentence, his Honour Judge Ellis characterised the injuries to the victim as being "at the low end of the scale so far as potential grievous bodily harm is concerned", and observed that "that fact seems to me to bring this matter below the worst category of offence of this type". 14 His Honour included as aggravating factors the extremely high blood alcohol reading and what his Honour described (correctly) as the applicant's "absolutely appalling traffic record". The applicant had been convicted on eight occasions for drink driving offences, between 1980 and 2001. His record included driving with the prescribed concentration of alcohol in 1980; driving with the lower prescribed concentration of alcohol and driving whilst disqualified in 1983; driving with the high range prescribed concentration of alcohol and driving whilst disqualified in 1984; driving with the high range prescribed concentration of alcohol in 1986; driving with the mid range prescribed concentration of alcohol and driving whilst disqualified in 1990; and two counts of driving with the mid range prescribed concentration of alcohol in 1995, and, in the same year, one count of refusing a breath test. 15 His Honour found that the moral culpability of the applicant was extremely high, bearing in mind his history of drink driving, his reason for driving, the level of his blood alcohol reading and the manner in which he drove. His Honour noted that the victim in this matter was also intoxicated and he and the other passenger, in that sense, could not be described as innocent members of the community. Accordingly, his Honour concluded that the offence was not aggravated by significant harm being caused to innocent members of the community, although grievous bodily harm was occasioned to a member of the public. 16 His Honour concluded, correctly in my view, that "the community would be outraged that for the ninth time since 1979 .... this man drove a motor vehicle on a public road whilst under the influence of alcohol". 17 The applicant was aged 40 years at the time of the offence and 42 years at the time of sentence in February 2004. He had been in a de facto relationship for some 15 years at the time of sentence. The evidence before the District Court indicated that the appellant's partner was employed on a full time basis and that she felt she was required to support him emotionally and financially. According to his partner, the applicant had not held employment for two years at the time of sentence. According to the applicant, this was not correct, and he had worked casually as an assistant carpet layer. There was evidence before the District Court that the applicant had a significant liver problem. 18 His Honour concluded that the applicant "had a problem with alcohol abuse for many years and that he has very little, if any, insight into that problem". His Honour found that the applicant had done nothing since the accident in relation to his substance abuse and appeared still to have very little insight into his criminality. His Honour concluded that the subjective material provided to the Court failed to inspire any confidence in relation to the applicant's prospects of rehabilitation. Despite the applicant's lack of motivation for rehabilitation, and lack of action in that respect, his Honour concluded that it was important when he was released from custody that there be some ongoing treatment, and counselling in relation to his substance abuse. 19 If that did not happen, his Honour observed that "it is likely that this merry-go-round of drinking and driving is likely to continue". A finding of "special circumstances" was made by reason of the fact that the applicant would require long term treatment and counselling and that the present sentence would be the first substantial sentence of imprisonment that he had faced, and that it may provide an incentive towards rehabilitation upon his release. Grounds in Support of Application 20 Against this background, it is appropriate to turn to the grounds filed by the applicant. The applicant has represented himself, both in the filing of the grounds in support of his application and at the hearing of the application for leave to appeal against sentence. He raises two matters in his grounds and has developed these matters in his written and oral submissions to the Court. Ground 1 - "Change of plea because of evidence disappearing" 21 The present application is for leave to appeal against sentence only. The applicant has not sought leave to appeal against conviction. 22 This ground has its origin in the events following the accident on 23 November 2001 when the Ford Falcon vehicle, which the applicant had been driving, "disappeared". The brief of evidence which was tendered in the sentence proceedings before the District Court indicated that the vehicle was removed from the roadway by a rostered tow truck. During his electronically recorded interview on 15 May 2002, the applicant told police that he did not pick the vehicle up after the accident and that he thought that maybe the council took it away. The statement of facts records that an investigation by police revealed that the car was left on the side of the road by the towing contractors and that there was no record of it being towed away by the council. In any event, the vehicle has not been located since and has not been subjected to any mechanical examination. 23 The applicant points to the absence of his vehicle as being crucial to his plea of guilty in the matter. He contends that the absence of the vehicle has deprived him of the opportunity of demonstrating that the vehicle contained a mechanical defect which, so he argues, brought about the accident. 24 The issue of the alleged mechanical fault was ventilated before his Honour Judge Ellis. The applicant gave evidence before his Honour. His Honour's conclusions with respect to this issue were as follows: "So far as the mechanical fault is claimed, there is no evidence before me of any actual damage to the ball joint as the vehicle was not seized by police and police have not subsequently been able to locate the vehicle. There is no record of it being towed away by the local council and it was not seized by police and it was left on the side of the road by the towing contractors. The offender indicated that the Ford Falcon had been given to him by a man he did not name, and he indicated in evidence that he did not know where the vehicle was, or indeed, what had happened to it. It is his opinion that the ball joint or tie rod broke and he adhered to that opinion in this Court. I found him to be an unreliable witness, either because he is deliberately lying or more likely, because of his own self delusion. I do not accept his claim that he was driving within the speed limit. It seems to me that his driving at the speed which he was driving, the manner of swerving back onto his correct side of the road, and the fact that the vehicle then commenced to fishtail, may provide an explanation for the ball joint being placed under such stress failing. Nevertheless I accept the evidence of Ms Shaw, and it seems to me that it was likely the vehicle was out of control by the time any mechanical defect manifested, if in fact it manifested at all. Even were I to accept that it had manifested, it does not seem to me to ameliorate the criminality to any extent. This man must have known at .281 that he was under the influence of alcohol. For no reason, certainly no valid reason or excuse, he drove this vehicle and drove it at a high speed in a dangerous manner." 25 The Crown submits that there was no realistic possibility that the applicant could have established, in accordance with s 52A(8) of the Crimes Act 1900 that the impact was not in any way attributable to the applicant's intoxication, or the dangerous manner of his driving: R v F (1957) 57 SR 543. The applicant's legal representative accepted on the application to withdraw the plea of guilty that the applicant would need to overcome s 52A(8) at any trial. The applicant's decision to abandon his application to withdraw his plea was understandable. It was fanciful to think that he could discharge the onus under s 52A(8) in the circumstances of the case. 26 The Crown submits further that his Honour Judge Ellis did not make any error in dealing with this issue on sentence. His Honour found the applicant to be an unreliable witness and concluded, ultimately, that even if he were to accept that a defect in the car had in fact manifested itself, it was not a matter which ameliorated the applicant's criminality to any extent. In his electronically recorded interview with police, the applicant disclosed prior awareness on his part of the defective nature of the vehicle, which affected adversely its stability, about which he had taken no remedial action. In these circumstances, even if some mechanical defect was revealed in the vehicle, it would have provided little assistance to the applicant. 27 No error has been demonstrated by the applicant with respect to this issue affecting the question of sentence. This ground should be dismissed. Ground 2 - "15 percent reduction in sentence, rather than 25 percent reduction for pleading guilty" 28 The sentencing judge said in his reasons on sentence: "He appears still to have very little insight into the criminality. He has displayed to my mind very little, if any, remorse, and he appears to be living in a world which is entirely divorced from reality when it comes to any recognition of fault on his part, or of substance abuse issues. Nevertheless, I do take into account that he did plead guilty and I propose to allow him a fifteen percent reduction for the utilitarian value of his plea, despite the fact that with the reading of .281 his conviction was, in my view, inevitable." 29 It was open to his Honour to allow a 15 percent reduction for the utilitarian value of the plea in accordance with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. The applicant had not pleaded guilty at an early time and had spent some months attempting to withdraw his plea of guilty before maintaining it before his Honour Judge Ellis. In these circumstances, no error is disclosed in his Honour's allowance of a 15 percent reduction within the range of 10 percent to 25 percent identified as a guideline in R v Thomson and Houlton. The 10 percent to 25 percent guideline creates no presumption or entitlement to a particular discount in a given situation: R v Scott [2003] NSWCCA 286 at paragraph 28. 30 Given his Honour's findings concerning contrition and remorse, there was no scope for any additional discount for the plea of guilty. No error has been demonstrated in the discretionary determination of his Honour. 31 Today the applicant has raised family difficulties since being in prison, including the deaths of several family members and friends, and other concerns he has with respect to his son. Such considerations do not assist him now on an appeal to this Court. 32 The applicant has not demonstrated error in the sentencing proceedings. Nor, in my view, could the Court conclude that some other sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. 33 I propose the following orders: (a) the time for filing a notice of application for leave to appeal be extended to 5 November 2004; (b) leave to appeal against sentence be granted; (c) the appeal be dismissed. 34 WOOD CJ at CL: I agree. 35 HISLOP J: I agree. 36 WOOD CJ at CL: The order of the Court will therefore be as Justice Johnson has proposed. The appeal is dismissed. ********** 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.