New South Wales Court of Criminal Appeal CITATION: Ford v Regina [2006] NSWCCA 9 HEARING DATE(S): 30/01/2006 JUDGMENT DATE: 7 February 2006 JUDGMENT OF: Giles JA at 1; Howie J at 2 DECISION: Application for leave granted, appeal allowed. The sentences imposed are quashed. In respect of the first charge the applicant is sentenced to a non-parole period of 1 year and 10 months from 22 March 2005 and to expire on 21 January 2007. There is to be a balance of the term of 8 months from 22 January 2007. Subject to the sentence next to be imposed, the applicant is to be released to parole at the expiration of the non-parole period. In respect of the second charge there is a non-parole period of 1 year and 9 months from 22 September 2005 and to expire on 21 June 2007, the date upon which the applicant is to be released to parole. There is to be a balance of term of 9 months from 22 June 2007. CATCHWORDS: Criminal Law - Sentence - two counts of dangerous driving causing gbh - concurrent sentences - double counting between guideline judgment and s 21A - no lesser sentence warranted. LEGISLATION CITED: Crimes Act 1900 - s 52A(3) Crimes (Sentencing Procedure) Act 1999 - ss 21A, 50(1) R v Tadrosse [2005] NSWCCA 145 R v Tzanis [2005] NSWCCA 274 R v Janceski [2005] NSWCCA 288 CASES CITED: R v McMillan [2005] NSWCCA 28 R v Acunta [2005] NSWCCA 275 R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Thomson and Houlton (2000) 49 NSWLR 383 PARTIES: Scott James Ford v Regina FILE NUMBER(S): CCA 2005/1955 COUNSEL: P. Power SC - Crown A. Cook - Applicant SOLICITORS: S. Kavanagh - Crown G. Pudney - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/41/0148 LOWER COURT JUDICIAL OFFICER: Garling DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1955 GILES JA HOWIE J TUESDAY 7 FEBRUARY 2006 Scott James FORD v Regina Judgment 1 GILES JA: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against the severity of a sentence imposed by Judge Garling (the Judge). The applicant pleaded guilty in the Local Court to two charges of driving in a manner dangerous occasioning grievous bodily harm pursuant to s 52A(3) of the Crimes Act. This is an offence for which a maximum penalty of seven years imprisonment is prescribed. The applicant adhered to his pleas of guilty in the District Court and as a consequence was sentenced to two concurrent terms of imprisonment made up of a non-parole period of two years and three months from 22 March 2005 and expiring on 21 June 2007 with a balance of term of nine months. The Judge noted that the applicant was eligible to be released to parole on 21 June 2007. 3 Briefly, the facts of the matter were as follows. At about 2.30 am on 22 June 2003 the applicant was driving in a southerly direction along Shellharbour Road, Shellharbour. There were three passengers in his vehicle. Having been overtaken by two vehicles at a set of traffic lights, the applicant proceeded to drive closely behind them in an effort to overtake them. He is reported to have accelerated through a roundabout "harshly" in the process. The applicant then moved to the opposite side of the road to overtake the two vehicles, crossing a double line in the process. The driver of one of the other vehicles estimated that the applicant's vehicle was travelling at 100kph while the driver of the other vehicle estimated the speed at between 100 and 120kph. The speed limit for this stretch of the road was 80kph. 4 While trying to overtake the second vehicle, the applicant reached a slight left hand bend in the road, as well as a crest. At this point the applicant's vehicle collided with the front driver's side of a vehicle travelling in the opposite direction. According to witnesses, the collision occurred as the applicant was attempting to return to the correct side of the road. As a result of the collision, the applicant's vehicle continued out of control for about 170 metres before hitting a small embankment, travelled through a barbed wire fence and came to rest in a paddock on the west side of the road. The vehicle travelling north spun a number of times before becoming stationary in the middle of the road. 5 The applicant was interviewed by police but said that he could not remember any of the circumstances of the accident. He maintained that he was travelling at 80kph. However, he told a psychologist that he was attempting to escape a "road rage situation" when he tried to overtake the two vehicles. He gave a similar explanation in evidence before the Judge who did not accept this version. 6 The applicant and two other people were injured as a result of the collision. The applicant sustained serious injuries including fractures to the right hip and femur, fractures to his right foot and ankle, and a closed head injury resulting in pressure on the right side of the head, blurry vision and occasional blackouts. Neuropsychological assessment by a clinical psychologist revealed evidence of impaired cognitive functioning commensurate with having sustained a traumatic brain injury. As a result of his injuries, the applicant experienced considerable difficulty in performing his work as a carpenter and tradesman. 7 The driver of the vehicle travelling in the opposite direction sustained a small cut over one of his eyes and both of his legs were broken. He needed to have fifteen screws and two pins inserted into his right leg, and one pin in his left leg. His right leg also required plating. A rear passenger in the applicant's vehicle also sustained a broken leg. She was hospitalised for a week and at the time of her statement walked with a limp and was unable to run properly. She was receiving physiotherapy at the time of sentencing. 8 The applicant was twenty years of age at the date of the accident. He has an extensive criminal history involving violence and property offences dating from 1997. As a result he has at various times been ordered to serve community service, received suspended sentences and sentences of imprisonment by way of periodic detention. At the date of the offence he was suppose to be serving a sentence of periodic detention but had failed to attend. The order was revoked and the applicant was imprisoned for 9 months with a non-parole period of 6 months and 24 days. That sentence commenced on 22 March 2005 and the non-parole period expired on 15 October 2005. It was, therefore, served concurrently with the sentences imposed by the Judge. The applicant was on bail for other matters when he committed the present offences. 9 The applicant also had a traffic record that did not assist him. He received his learner's permit in 2001 but had offences in respect of speeding and not being accompanied by a driver while subject to that permit. He received his provisional licence in May 2002 but in June 2002 he was fined for negligent driving and in July 2002 fined for exceeding the speed limit by more than 30kph. His licence was suspended from September 2002 until January 2003. Thereafter he had two offences for failing to display a P plate and an offence of negligent driving. His provisional licence was issued on 23 March 2004. It was suspended again from April until July 2004. At the time of the accident he had a provisional licence. 10 The applicant was raised by his mother in Sanctuary Point. She was only 16 years of age when she gave birth to him. He has never known his father. He left school at the beginning of year 10. He was apparently diagnosed with Attention Deficit Hyperactivity Disorder as a child but could provide no other information to the psychologist who interviewed him for a forensic report. Since the age of 14 he has worked mainly with a local carpenter but also secured other work at times with tradespersons in the area. Since the accident he has not been able to work because of his injuries. He lived with his partner of 6 years and their fourteen-month old child. He maintained that since meeting his partner he had ceased using cannabis and was no longer committing drug-related offences. Psychological testing found him to be immature and impulsive. The psychologist believed he was trying to "correct and improve his behaviour". 11 The applicant gave evidence before the sentencing judge and expressed his remorse for the impact of the accident on other persons. He accepted that he had driven on the wrong side of the road, having intentionally crossed double broken lines. He also accepted that he was exceeding the speed limit and may have been travelling at 100kph. He still maintained that he was trying to avoid an irate driver when the accident occurred. He said that his injury had affected his capacity for employment and sport. He gave evidence of having rescued a friend from a burning vehicle. The applicant's partner also gave evidence that she intended to support the applicant even if he were sent to prison. 12 The first ground of appeal asserts that the Judge was in error in taking into account that it was an aggravating feature of the offence under s 21A(2) of the Crimes (Sentencing Procedure) Act (the "Sentencing Procedure Act") that there were multiple victims. It was made clear in R v Tadrosse [2005] NSWCCA 145 that this section had no application where there were before the court multiple offences for which the offender was to be sentenced. With the concurrence of Grove and Hall JJ, I wrote: [28] His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) "the offence involved multiple victims or a series of criminal acts". Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court. 13 Tadrosse was applied to offences of dangerous driving in R v Tzanis [2005] NSWCCA 274 and in R v Janceski [2005] NSWCCA 288. In the latter case Hunt AJA, with whom the Chief Justice and I agreed, held at [22] that, where the one action by the offender causes a number of people to be injured and where separate charges are laid in respect of each one: ……………it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: R v Tadrosse [2005] NSWCCA 145 at [28] — [29]. Hunt AJA stated further at [23] that in a case where there are multiple victims arising from a single act of driving: …………….separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender……………. 14 In the present case the Judge imposed wholly concurrent sentences for the two offences. In my view that was an erroneous approach having regard to the seriousness of the injuries inflicted upon each of the victims. An appropriate sentence for one of the offences could not encompass the total criminality of both. It would have been an error for the Judge to increase the sentence for one of the offences so that it reflected the seriousness of both. Although the Judge was in error in treating the fact that there were multiple victims as a matter of aggravation for each offence, he also erred in making the sentences concurrent. The latter error was likely to have been to the benefit of the applicant overall. However, if the sentence imposed for either one of the offences is excessive, having regard to the fact that it relates to only one victim, this Court would have to intervene to reduce that sentence and then consider what order should be made to address the totality of criminality reflected in both offences. 15 The second ground of appeal asserts that his Honour was in error in taking into account as an aggravating factor under s 21A(2)(i) of the Sentencing Procedure Act a finding that the offence was committed "in disregard of public safety". This is a somewhat controversial issue. There appears to be a difference of opinion expressed by differently constituted benches of this Court. Strictly speaking in both cases the view expressed was obiter insofar as an offence alleging driving in a manner dangerous is concerned. The view was expressed in R v McMillan [2005] NSWCCA 28, that it was an invariable characteristic of an offence under s 52A, at least in relation to an aggravated offence of driving under the influence, that the offending conduct was committed in disregard of public safety. Therefore, the Court thought that it would be wrong to aggravate such an offence on that basis alone. On the other hand, there is a statement in R v Acunta [2005] NSWCCA 275 to the effect that it was a relevant matter to be taken into account as a circumstances of aggravation for offences relating to driving a motor vehicle while inebriated. I note that the Court in Acunta does not appear to have been referred to McMillan. 16 It is unnecessary to attempt to resolve this issue in order to determine the present case. In any event it is not appropriate for this Court when constituted by two judges to determine a matter of principle. 17 However, the prohibition on taking into account as an aggravating factor a matter that is an element or an essential characteristic of an offence, does not prevent the court from taking into account the particular nature and seriousness of the facts giving rise to the offence before the court. The nature and seriousness of the injury that results in the commission of an offence under s 52A(3) is obviously a matter that can be taken into account in a case of dangerous driving causing grievous bodily harm even though the fact that grievous bodily harm was inflicted on the victim is an element of the offence. Similarly the fact that the driving in the case before the court was of a particularly dangerous nature so that the disregard for public safety was peculiarly grave is a matter to which the Court can have regard: Janceski at [17]. 18 In the present case, although the driving occurred over a very brief period of time, it was particularly dangerous involving, as it did, an attempt to overtake two cars at speed, across double yellow lines, while approaching both a bend and a crest in the road. The applicant told police that he was familiar with the stretch of road, he was aware that there were double yellow lines and that the speed limit was 80 kph. It is quite clear that the applicant simply thought himself aggrieved by the fact that the two vehicles passed him when he had been stopped at lights shortly before he attempted to overtake them. In my opinion the Judge would have been entitled to take into account, as an aggravating factor, the applicant's egregious disregard for public safety. 19 But that does not appear to be the finding that the Judge made. On the face of it the Judge simply applied s 21A(2)(i) without any analysis of whether it was appropriate to do so or not. In any event, as I shall explain when considering the fourth ground of appeal, there is an appearance of double counting in finding both that the offender had abandoned responsibility and that his disregard for public safety was particularly serious. The fact that the offender has abandoned responsibility for his driving means that his disregard for public safety was acute. In my opinion this ground is made out. 20 The third ground of appeal relates to a purely technical matter. The Judge did not order the release of the applicant to parole at the conclusion of the non-parole period as he should have done because this was a sentence of not more than 3 years; see s 50(1) of the Sentencing Procedure Act. The error did not affect the exercise of his discretion and would not warrant the court substituting some other sentence. The failure did not invalidate the sentence: s 50(3). 21 The fourth ground of appeal asserts that the Judge erred in his consideration of the guideline in R v Jurisic (1998) 45 NSWLR 209. It is submitted that the Judge overlooked the fact that the guideline was in respect of a late plea of guilty of limited utilitarian value. The Judge referred to R v Whyte (2002) 55 NSWLR 252 and the typical case described in the judgment of the Chief Justice. He noted that the applicant did not fall within the typical case for a number of reasons being: the applicant was not a young man of good character with no or limited prior convictions; there was injury to more than a single person; and the applicant, the driver, was seriously injured. Of course the first two of those three matters would indicate that the applicant's position was outside the typical case to his detriment. The third matter would suggest that the applicant's case was atypical in a way that was going to mitigate the sentence because the applicant had already been punished by the injuries he himself suffered. 22 The Judge noted that two of the factors in the typical case present in the applicant's case were remorse and "a plea of guilty of limited utilitarian value". However, it was pointed out in R v Thomson and Houlton (2000) 49 NSWLR 383 that the plea of guilty in the typical case referred to in the guideline for dangerous driving offences is a late plea of guilty. In the present case there was an early plea and a discount of about 25 per cent would have been justified. 23 The judge then went on to find that there were present aggravating features set out in Whyte including: the seriousness of the injuries; the number of people actually put at risk by the applicant's driving; the degree of speed; and some erratic driving. The Judge concluded that the presence of these aggravating factors "takes him well above the normal case set out in that guideline judgment". 24 The Judge then turned to consider the factors in s 21A of the Sentencing Procedure Act. As was pointed out in McMillan, approaching sentencing in dangerous driving cases in this way, that is by first considering the guideline judgment and then additionally considering the factors in s 21A, is likely to result in double counting either in favour of the offender or to his or her detriment. Judges must understand that many of the factors taken into account in applying the guideline in Whyte are factors also found in s 21A(2) and (3). For example, in the present case the Judge had already taken into account, as an aggravating factor when applying the guideline, that the injuries were serious. To take that fact again into account as an aggravating factor under s 21A(2)(g) was to aggravate the offence twice by reason of the seriousness of the injuries. On the other hand the fact that under the guideline the typical case involves remorse and a plea of guilty of limited utilitarian value, means that those factors have already been taken into account in applying the guideline and the sentence is not mitigated by taking those matters into account again under s 21A(3). 25 It is of concern that the Judge apparently double counted matters, generally to the detriment of the applicant, by considering both the factors set out in the guideline and under s 21A. But at the end of the day, he seems to have attempted to apply the guideline even though he states it in mandatory terms. The Judge having referred to the aggravating factors and found that the applicant had "completely abandoned responsibility", then said (my underlining): When I looked at that guideline judgment, the next part of the judgment, of course, says that if you take a normal or typical case, that is after a plea of guilty, then you must at least sentence someone commencing at a term of imprisonment of two years . However, in this case the prisoner goes beyond that. He is not a typical case, he is not a person of good character. There was more than one person injured and, in addition to that, there were those other aggravating factors which I pointed out, and that therefore requires me to sentence him to a term of imprisonment in excess of that. There have been a number of those facts which I have set out which take it to a much higher level than the typical case set out in that judgment…………" 26 The applicant complains that the Judge treated the guideline as if it were an inflexible rule. The relevant part of the guideline in Whyte is: For offences against s52A(1) and s52A(3) for the typical case: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. 27 If it were only the fact that the underlined words appear in the sentencing remarks, I would not have upheld that complaint. Like the Judge, I believe that the present is more serious than a typical case where the offender's moral culpability is high. I cannot see anything in the objective facts or the subjective circumstances of the applicant that would have made it appropriate to impose a sentence of less than two years for either of the offences. Of more concern is the fact that in the passage quoted the Judge refers to two of the untypical matters that were to the detriment of the applicant but not the untypical factor that might mitigate the sentence, the serious injuries he suffered. I do not understand to what the Judge was referring by the words, "those other aggravating factors which I pointed out". If the reference were to the aggravating features that led to a finding that the applicant had abandoned responsibility, it was those factors that meant that it would not be appropriate to sentence the applicant to a period of imprisonment of less than two years. 28 It seems to me with respect that the sentencing discretion has miscarried by the manner in which the Judge approached the task of assessing the seriousness of the offences by apparently double counting aggravating factors to a very significant degree in applying the guideline and then taking additional account of aggravating factors in s 21A(2). Further, in my opinion it was not open to the Judge to impose concurrent sentences for the two offences. This Court must re-sentence the applicant. The question is whether any lesser overall sentence is warranted than that imposed by the Judge. 29 The Court received into evidence without objection an affidavit of the applicant referring to matters that have occurred since he was sentenced. He still suffers from pain in his right leg and has not been able to receive physiotherapy while in custody. He also believes that he needs psychological therapy and counselling that are also unavailable to him. The judge did take into account that gaol would be more onerous for the applicant by reason of his injuries. However, the main matter relied upon in the affidavit is the fact that the applicant has been in the hospital wing of Long Bay Gaol since September last because of his need to have an operation on a mole on his face. The applicant aggravated the situation by attempting to remove it himself in frustration with the delay. He still requires surgery and is told that it will occur some time within the next three months. The result of his confinement in hospital is that he has none of the privileges that he would have enjoyed by reason of his C2 classification. In effect he is serving his sentence in maximum security and spending 20 hours of the day in his cell. I am prepared to accept that he will have served about 6 months of his sentence in more onerous circumstances than would otherwise have been the case. 30 One of the difficulties for the Court in re-sentencing the applicant is that he is serving a sentence with a non-parole period of six months concurrently with the sentences for the present offences arising from the revocation of the periodic detention order. The difficulty that confronted that Judge was that, although the order of periodic detention had been revoked, the applicant had not commenced to serve the sentence of full time custody that would have followed upon the revocation. Although there had been considerable delay in bringing the matter to finality, mostly because of failures by the applicant to attend court, in my view the appropriate course would have been to adjourn the sentencing for these offences until the applicant had commenced to serve the sentence resulting from the revocation of the order for periodic detention. The Judge would then have been in a position to determine when to commence the sentences for these offences. It is almost inevitable that there would have been a significant degree of accumulation of these sentences upon that then being served by the applicant. 31 But that did not happen and the Crown should be taken to have been content to have the applicant sentenced for these offences immediately notwithstanding that the consequence was that the sentence following upon the revocation of the periodic detention order would be served concurrently with the sentences imposed by the Judge. The Judge was aware that this would be the situation and commented upon it in his sentencing remarks. The Crown has submitted that this Court should restructure the sentences to make them partly cumulative with the sentence following the revocation of the periodic detention order. However, in my opinion the Court should not differ from the way the matter was approached in the District Court with the concurrence of the Crown. 32 In my opinion, notwithstanding the appearance of double counting of aggravating factors, the overall sentence imposed upon the applicant was a lenient one, particularly as it was to be served concurrently with the sentence following the revocation of the periodic detention order. Each of the offences was serious notwithstanding the short period of the offending driving. Although the applicant himself suffered serious and permanent injury, only limited allowance can be made for that fact in light of the seriousness of the injuries to the two victims and the gravity of the driving. It is accepted that those injuries have made imprisonment more onerous for the applicant. It was not argued that the Judge was wrong in finding that there were no special circumstances. However special circumstances should be found in respect of the second offence because of the partial accumulation and to keep the overall statutory proportion between the minimum sentence to be served and the balance of the term. 33 Although the applicant has served, and may continue to serve, a period of his custody in more onerous conditions in the prison hospital, the sentences should not be reduced on that account having regard to the overall leniency of the sentences imposed. No lesser sentence than that imposed by the Judge is warranted in law. 34 I propose that the application for leave be granted and the appeal allowed. The sentences imposed upon the applicant by Judge Garling should be quashed. In respect of the first charge there should be a non-parole period of 1 year and 10 months from 22 March 2005 and to expire on 21 January 2007. There is to be a balance of the term of 8 months from 22 January 2007. Subject to the sentence next to be imposed, the applicant is to be released to parole at the expiration of the non-parole period. In respect of the second charge there should be a non-parole period of 1 year and 9 months from 22 September 2005 and to expire on 21 June 2007, the date upon which the applicant is to be released to parole. There is to be a balance of term of 9 months from 22 June 2007. ********** 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.