New South Wales Court of Criminal Appeal CITATION: R v NILSSON [2005] NSWCCA 34 HEARING DATE(S): 30 June 2004 JUDGMENT DATE: 18 February 2005 JUDGMENT OF: Ipp JA at 1; Hulme J at 2; Hislop J at 29 DECISION: See paragraph 28 Regina PARTIES: Lief Lars NILSSON FILE NUMBER(S): CCA 60487/03 Crown: E Wilkins COUNSEL: Applicant: G Butler Crown: S Kavanagh SOLICITORS: Applicant: G Angelinas LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0059 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ - 9 - IN THE COURT OF CRIMINAL APPEAL 60487/03 IPP JA HULME J HISLOP J Friday 18 February 2005 R v Leif Lars NILSSON Judgment 1 IPP JA: Save that I make no comment as to the utility of the order disqualifying the Applicant from driving, I agree with Hulme J. 2 HULME J: The abovenamed Applicant for leave to appeal was sentenced by Judge Blackmore in respect of two offences of driving in a manner dangerous to the public causing grievous bodily harm – in one case to a passenger in his vehicle, one Jennifer Thompson, and in the other to a driver of another vehicle, one Donna Maxfield. The offences arose under s52A(3) of the Crimes Act and each rendered the offender liable to imprisonment for 7 years. 3 In respect of each offence Judge Blackmore sentenced the Applicant to imprisonment for 5 years from 19 May 2003 such term to include a non-parole period of 3 years and 9 months. 4 During the course of the appeal there was no suggestion that his Honour's description of the objective circumstances was in any respect inaccurate and it is accordingly convenient to quote from it. "On Tuesday 10 July 2001 at about 5pm the offender was travelling in a lane in a westerly direction along Victoria Road at West Ryde. At the time of the incident there was heavy traffic travelling in both directions. Victoria Road, West Ryde, in the vicinity of the collision has three lanes of traffic to travel in each direction. The offender was driving a 1993 Grey Corolla Hatchback. Seated in the front passenger seat was Jennifer Thompson. Upon reaching a slight right bend in the road the offender failed to negotiate the bend and travelled over a raised cement median strip for no apparent reason where the front of the offender's vehicle then collided with the front portion of a 1997 green Daewoo Sedan, then being driven in an easterly direction by Donna Maxfield. … Ms Maxfield was trapped in her vehicle and assisted by Rescue Services before being conveyed to hospital by ambulance. The offender's vehicle continued to travel a short distance and collided with a third vehicle… The offender's vehicle came to rest in lane number 3 for east bound traffic facing in a westerly direction. The front passenger in the offender's vehicle, Jennifer Thompson, was conveyed to the Royal North Shore Hospital suffering from a fractured collar bone, which required a metal rod to be inserted, and a fracture to her lower ribs. The offender also suffered some injuries, a broken wrist being the most serious of them. Upon arrival of police it became apparent that the driver of the vehicle, that is the offender, was well affected by some drug. Ultimately he was conveyed to Royal North Shore Hospital and a blood and urine sample was obtained at that time. Those samples have since been analysed for drugs and were found to contain cannabis, fluenitrazepam, diazepam methadone and morphine. Dr Judith Perl of the Clinical Forensic Medical Unit has provided a statement, stating that at the time of the incident the offender was under the influence of cannabis and fluenitrazepam to the extent that his driving ability would have been impaired. The fluenitrazepam is better known as rohypnol. Ms Maxfield was also conveyed to hospital but on this occasion the Westfield Hospital suffering the fracture of her seventh rib and also a fracture of her right ankle. Ms Maxfield went to theatre for an irrigation and debridgement and repair of the right talo acicular, open dislocation, an open reduction and internal fixation of the right foot lateral column and irrigation and closure of a left knee wound. At the time of the incident the offender's licence had been cancelled after he had been disqualified by a Court and his licence had not been renewed." 5 There was some dispute during the sentencing proceedings as to when the Applicant had ingested drugs but his Honour found "that he had consumed methadone, a joint of cannabis and half a tablet of rohypnol prior to driving on the journey where the accident took place." 6 In the course of his remarks on sentence his Honour referred to the decision of this court in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 and the reference therein to aggravating features liable to arise as an incident of an offence under s52A(3), viz. 1. The extent and nature of the injuries inflicted. 2. The number of people put at risk. 3. The degree of speed involved. 4. The degree of intoxication or substance abuse involved. 5. Erratic or aggressive driving. 6. Competitive driving or showing off. 7. The length of the journey during which others were exposed to risk. 8. Ignoring a warning. 9. Escaping police pursuit. 10. Degree of sleep deprivation. 11. Failing to stop. 7 His Honour observed that there were a number of those matters present in the particular case and that "There are a number of reasons why in my view, this case falls right at the top of the possible range of seriousness". 8 His Honour then went on to refer to:- 1. The degree of abandonment of responsibility involved in his driving when intoxicated by a cocktail of drugs. 2. There was no occasion for the Applicant to be driving given that his licence had been cancelled and he knew that. 3. The seriousness of the injuries caused by the accident. His Honour regarded one of the victims Ms Thompson as seriously injured and the injuries to the second victim Ms Maxwell as having had a significant effect on her life. Previously she had regularly played sport and enjoyed a normal and active lifestyle whereas since the accident she has undergone a number of serious operations for her ankle and her back, is now in constant pain, needs constant medication and has also suffered significant psychological affects. 9 His Honour quoted from her victim impact statement and it is not inappropriate to do so again. The detail provided does help to illustrate the seriousness of the Applicant's offending. "In October 2002 I was terminated from IBM because I was unable to return to work on a full time basis. Needless to say I have suffered and am still suffering emotionally and financially. I am unable to enjoy any of the hobbies that I previously took for granted, eg dancing, sailing, diving, gardening, squash, skiing, travelling, shopping, walking my dogs, just to name a few. Most of my time is currently spent in the home as I am unable to walk very far. I am required to wear an orthopaedic boot from the time I wake up in the morning until I go to bed at night. This accident has totally devastated my life and has had a huge impact on my family." 10 The next matter of aggravation to which his Honour had regard was the large potential for damage caused by the Applicant's driving on a busy public highway at 5.00pm in the afternoon with heavy traffic around. 11 His Honour then referred to a number of matters going beyond the offence itself which aggravated the Applicant's criminality. The first in this group mentioned by his Honour was that the Applicant was driving whilst his licence was cancelled. The second and third in this group were that the Applicant was on a good behaviour bond at the time and was also on bail for an offence of stealing as a servant. 12 His Honour also regarded as significant the Applicant's other antecedents. These included a number of offences including offences of dishonesty apparently arising in consequence of the Applicant's drug addiction and, which his Honour seems to have regarded as more serious, the Applicant's driving record. This included an offence in 1997 of driving with a mid-range excess of alcohol in his blood, on two occasions in that year driving an unregistered and uninsured motor vehicle and also in 1997 driving whilst disqualified. His Honour regarded these matters as demonstrating willingness to ignore the legal requirements as a road user. 13 His Honour accepted that the Applicant who was then nearly 30, had been raised in a dysfunctional family environment, leaving school in year 11. He had been employed for a number of years progressing to the role of assistant manager of a supermarket chain. There were a number of other matters to which it is unnecessary to refer. 14 His Honour took the view that general deterrence was important, remarked that because of the accumulation of sentences which would have occurred had the matter gone to trial, a total sentence of 7 years imprisonment for both matters would have resulted, that the Applicant was entitled to a discount of 25% for his plea together with a little more for some delays on the part of the prosecution. His Honour regarded the Applicant as contrite. When his Honour came to sentence the Applicant he said this:- "You are convicted of the two offences of dangerous driving causing grievous bodily harm. I sentence you to imprisonment for five years to date from today, 19 May 2003 and to expire on 18 May 2008, comprising a head sentence of five years imprisonment, a non-parole period of three years and nine months. I find that there are no special circumstances in this case requiring a longer period on parole. Accordingly you will be eligible for release to parole on 18 February 2007 and I direct your release on that day. On parole you are to accept the supervision and obey all reasonable direction of the Probation and Parole Service with particular regard to drug and alcohol counselling." 15 A number of the matters to which I have referred lead to the conclusion that his Honour's sentencing of the Applicant miscarried to an extent which makes it necessary for this Court to embark on the task afresh. In the first place it is clear that in arriving at his conclusion that the circumstances fell into a "worst case" category, his Honour took account of the injuries to both of the victims, notwithstanding that each offence was concerned with only the injuries to one. His Honour's assessment of the seriousness of each offence was thus affected by error. 16 It was also argued on behalf of the Applicant that his Honour's finding that "this case falls right at the top of the possible range of seriousness" was wrong. The Crown contested this and because the seriousness of the Applicant's offending is relevant to the penalty which should be imposed, the topic is one which I must address. 17 For my part, I think the finding was wrong. Not because the Applicant's offending was not bad: Indeed it clearly was high on the scale of offences of the type. The Applicant, who must have been obviously unfit to drive, was foolhardy in the extreme. Embarking on a road journey at a time when the roads were bound to be crammed with cars and when his driving ability was impaired made at least injury to others, very likely. Furthermore, done in breach of a bond and on bail and while the Applicant was not entitled to drive at all, it displayed the attitude of not caring about the rules/rights of others which has characterised much of the Applicant's life. 18 However, the Applicant's conduct could have been worse in a number of respects. As Smart AJ pointed out in Vukic [2003] NSWCCA 13, offences under the section may involve a combination of a high concentration of alcohol (or drugs), speeding, avoidance of police and disregard of traffic lights. Clearly the objective character of the Applicant's actions in this case was appreciably less than the circumstances envisaged by Smart AJ. Furthermore, although the injury to each of the victims in this case was bad, the injury also could have been very much worse. 19 In Vukic Smart AJ conveniently referred to a substantial number of cases under s52A. The vast majority of charges considered were of grievous bodily harm causing death and it is fair to say that the general pattern of sentencing revealed in the cases there considered also suggests that the sentences imposed in this case were, considered individually, manifestly excessive. 20 I do not ignore the fact that both the simple fact of driving and also the conduct leading to the offences were in breach of a bond and what must have been the Applicant's bail conditions and that these are seriously aggravating circumstances. However, this does not cause me to depart from the conclusions which I have expressed. 21 But that is not the end of the matter. An appropriate starting point in the determination of each of the sentences to be imposed on the Applicant could not have been less than 5 years. In the circumstances of this appeal, I would not regard the difference in injuries to the 2 victims as a ground for differentiating between the sentences. If the figure of 5 years is then reduced by 25% for the Applicant's plea, the result is a head sentence on each count of 3¾ years. If the non-parole period is determined at 75% thereof – the proportion his Honour used and one which is appropriate - the non-parole period for each offence becomes 2.8 years. The fact that there were 2 offences requires that there be some accumulation of penalty even though the principle of totality would require that there not be simple addition of the 2 periods of 2.8 years. Subject to constraints arising from the nature of the appeal, the accumulation of the non-parole periods could not be of less than 12 months, a term which, when added to the 2.8 years determined as I have indicated would lead to a sentence of 3.8 years. This is marginally higher than the effective non-parole period to which the Applicant is presently subject. 22 Simply delaying the commencement of one of the sentences will readily effect a 12 months accumulation but will lead to a minor change in the parole period specified by Judge Blackmore, viz. to reduce it by 3 months and thereby to make it but about one-fifth rather than one quarter of the total sentence. This argues in favour of some more complicated accumulation occurring but as I take the view that the total non-parole period should not be less than 3 years and 9 months, I am unwilling to extend the parole period at the expense of the non-parole period. 23 Of course, in an appeal by the Applicant, an increase in his sentence cannot occur without affording him an opportunity to withdraw his appeal and the smallness of the increase envisaged would not justify this. Nor is it appropriate for the Court to simply dismiss that Applicant's appeal under s6(3) of the Criminal Appeal Act. The appeal is against each sentence and because I am of the view that "some other sentence … is warranted in law and should have been passed" there is no justification for the course of dismissal. Accordingly, even though there may be little practical benefit to the Applicant in the Court so doing, the Court should allow the appeal and pass a sentence along the lines I have indicated. 24 The principle referred to at the beginning of the immediately preceding paragraph also leads me to the view that the Court should not depart from Judge Blackmore's intimation that the Applicant will be eligible for release on parole on 18 February 2007. His Honour's approach accords with examples given in notes to s48 of the Crimes (Sentencing Procedure) Act although, as I pointed out in R v Kay [2000] NSWSC 716 at [128], not with the terms of the statute. 25 However there are some other matters which should be mentioned. As the Applicant's sentence was for more than 3 years, s50 of the Crimes (Sentencing Procedure) Act did not apply and his Honour had no power to direct the Applicant's release at the end of the non-parole period or to impose conditions on any parole. Those were decisions for the Parole Board under Part 6 of the Crimes (Administration of Sentences) Act. 26 His Honour also disqualified the Applicant from driving for 10 years from the date upon which the Applicant was sentenced. His Honour gave no reasons for doing so and I confess that none appear to me. The conviction of the Applicant for 2 major offences mean, as I read the Road Transport (General) Act that, subject of any order of the Court, he is automatically disqualified from holding a driver's licence for 5 years. Hopefully, the Applicant's custodial sentence will have the effect of rehabilitating him but if it does not, his record leads to the view that it is unlikely that he will take much notice of the order for disqualification and it is calculated to impede his prospects of getting a job and his life in order. 27 However, no point was made on behalf of the Applicant that the period was excessive and no argument was addressed to it. In these circumstances, it is probably not appropriate for the Court to interfere with that aspect of the sentence. 28 The orders I propose are:- 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences of imprisonment imposed on the Applicant on 19 May 2003 by Judge Blackmore. 4. In respect of the offence involving the occasioning of grievous bodily harm to Donna Maxfield, sentence the Applicant to imprisonment for 3 years and 9 months including a non-parole period of 2 years and 9 months, both such periods to commence on 19 May 2003. 5. In respect of the offence involving the occasioning of grievous bodily harm to Jennifer Thompson, sentence the Applicant to imprisonment for 3 years and 9 months including a non-parole period of 2 years and 9 months, both such periods to commence on 19 May 2004. 6. Record as the date upon which the Applicant will be eligible for parole, 18 February 2007. 29 HISLOP J: I agree with Hulme J, subject to the reservation contained in the Judgment of Ipp JA. ********** 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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