New South Wales Court of Criminal Appeal CITATION: Thompson v R [2007] NSWCCA 299 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 2 October 2007 JUDGMENT DATE: 24 October 2007 JUDGMENT OF: Hodgson JA at 1; Hislop J at 2; Latham J at 45 DECISION: Leave to appeal granted; appeal dismissed. Crimes Act, 1900 LEGISLATION CITED: Criminal Procedure Act, 1986 Crimes (Sentencing Procedure) Act, 1999 Criminal Appeal Act, 1912 R v Thomson & Houlton (1999-2000) 49 NSWLR 383 R v Cameron (2005) 157 A Crim R 70 R v Vukic [2003] NSWCCA 13 CASES CITED: R v Jaworowski (1999) 108 A Crim R 489 R v Woodward [2001] NSWCCA 90 Markarian v The Queen (2005) 215 ALR 213 R v Simpson (2001) 53 NSWLR 704 PARTIES: Robert Thompson v Regina FILE NUMBER(S): CCA 2006/00004949 COUNSEL: P. Byrne SC/P. Johnson (Applicant) N. Adams (Crown) SOLICITORS: The Law Practice (Applicant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/3360 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 27 June 2006 IN THE COURT OF CRIMINAL APPEAL 2006/00004949 HODGSON JA HISLOP J LATHAM J Wednesday 24 October 2007 Robert THOMPSON v REGINA Judgment 1 HODGSON JA: I agree with Hislop J. HISLOP J : Introduction 2 On 20 March 2006 the applicant pleaded guilty to a charge that on 15 August 2003 at Couridjah in the State of New South Wales he did drive a motor vehicle in a manner dangerous to other persons, whereby the vehicle was involved in an impact, as a result of which the death of Andrea Carson was occasioned, and in circumstances of aggravation, namely that he was driving the vehicle at a speed that exceeded, by more than 45 kph, the speed limit applicable to that length of road. He also pleaded guilty to a similar charge in respect of the death of Carmel Perkins. The maximum penalty for each offence was 14 years imprisonment - Crimes Act, 1900, s 52A(2). 3 The pleas of guilty were accepted by the Crown in full satisfaction of the indictment presented against the applicant which included counts of manslaughter in respect of the deaths. 4 On 27 June 2006 the applicant was sentenced in the District Court to a non parole period of five years imprisonment with a total sentence of eight years imprisonment in respect of each offence. The sentence in respect of the first offence commenced on 27 June 2006, the second on 27 December 2008. The total effective sentence imposed upon the applicant was thus a non parole period of seven and a half years with an additional term of three years. 5 The applicant has sought leave to appeal against those sentences. 6 In addition to the above charges, there were related and back-up charges which were dealt with pursuant to s 166 of the Criminal Procedure Act 1986. 7 The facts, which were either agreed or were the subject of findings by the sentencing judge which were not disputed before this Court, were essentially as follows: On 15 August 2003, between 1.00 am and 1.30 am, Andrea Carson, aged 18, and Carmel Perkins, aged 19, were both killed when the car in which they were passengers struck a tree at the intersection of Bargo River Road and West Parade, Couridjah, a village near Thirlmere. The car, a Ford Falcon XR8 utility, was being driven by the applicant, who was then 31 years of age. The car was a V8 high performance motor vehicle. It was designed to carry the driver and one passenger, the seats being bucket designed, and there was a console between the two seats. Ms Perkins sat either on the console between the two bucket seats or on the lap of Ms Carson. She was not restrained by a seatbelt. The applicant would have known she was not so restrained. Both seatbelts in the crashed vehicle appeared to be in their retracted position after the collision, indicating they were probably not being worn at the time. A railway line runs parallel to West Parade and crosses Bargo River Road at a distance of approximately 100 metres from the intersection. At the railway crossing is a stop sign. Immediately before the collision, the applicant failed to stop at the stop sign, from where his vehicle became airborne and struck the tree. The applicant knew the road and had travelled it many times and knew there was a stop sign at the railway crossing. The applicant's vehicle travelled through the stop sign at 120 kph. It appears the car became airborne as a result of its speed, the incline of the road having the effect of launching it into the air. The car crashed through reflective signposts before hitting the tree. The applicable speed limit was 60 kph. At the time of the collision, the applicant was well affected by alcohol. Andrea Carson and Carmel Perkins were probably killed instantly, or died soon after the collision. The applicant left the scene of the accident. Because of the damage to the driver's door, he would have had to have crawled across the bodies of the two girls in order to get out of the passenger door of the vehicle. He did not call 000 or raise the alarm on his mobile phone which he had in his possession. He did not contact police until some seven hours after the collision. 8 The applicant was born on 3 January 1972. He left school at 15 years of age and is illiterate. Notwithstanding this handicap he worked his way up to a position of assistant manager at the abattoirs. He also had a successful career playing football as a junior. He invested part of his income in property, which investments proved successful. 9 The applicant had no prior criminal convictions. He did have a number of speeding matters on his traffic record between 1991 and 2005 but apart from those matters his Honour accepted he was a man of prior good character and entitled to some moderation in sentence as a consequence. 10 His Honour accepted the applicant's expressions of remorse and contrition as genuine, both from what he said in his evidence and by way of his pleas of guilty. 11 The pleas of guilty were entered effectively at trial. Prior to the trial commencing a voir dire had been conducted following which the applicant entered the pleas of guilty. His Honour stated that the discount for the utilitarian value of the pleas must be at the lower end of the range identified by this court in R v Thomson & Houlton (1999-2000) 49 NSWLR 383. 12 The applicant advanced four grounds of appeal in support of his application for leave to appeal against sentence. The proposed grounds of appeal are considered separately hereunder. Ground 1 The individual sentences imposed on the applicant, and the overall sentence, were manifestly excessive having regard to the relevant facts and circumstances of the applicant's case. 13 The applicant submitted the sentences for the individual offences were excessive in the circumstances of the case and that: (a) the statistics available from the Judicial Commission of NSW as at April 2007 established that the penalty imposed on the applicant was "by a significant margin, higher than that imposed on any other offender who had been sentenced after the decision of this court in Jurisic in 1998. Equally, the non parole period of seven and a half years appeared to be the longest imposed upon a person sentenced for offences under s 52A(2)"; (b) the sentence was one which was more appropriate to a charge of manslaughter; (c) the sentence imposed by this court in R v Cameron (2005) 157 A Crim R 70 was of valuable guidance in the assessment of the correctness of the sentences imposed upon the applicant. 14 The statistics relied upon by the applicant established that the non parole period fixed in respect of the individual sentences was in the top seven percent of sentences for the relevant offence and that the term of sentence was in the top six percent of sentences. The statistics indicated that the aggregate term of sentence was higher than that in previous cases, however the latter statistics were of little assistance as the database from which they were drawn consisted of only four cases. 15 Whilst there is a real distinction between the extent of culpability reflected in the offence of manslaughter as distinct from the offence of dangerous driving causing death, in some cases the distinction may be a fine one - R v Vukic [2003] NSWCCA 13 at [10], the more so in respect of the aggravated forms of offence under s 52A. 16 In R v Cameron the offender was convicted on three counts of manslaughter and one count of aggravated driving causing grievous bodily harm when the vehicle he was driving collided with a telegraph pole. The facts were somewhat similar to those in the present case in that both speed and alcohol were involved though the discount for the plea of guilty was in the order of 20 percent. The offender initially was sentenced on each of the manslaughter charges to non parole periods of two years imprisonment with a balance of term of four years. The Crown successfully appealed against those sentences which were increased, resulting in a total non parole period of six years with a balance of term of three years. The decision is not of particular assistance as, because the appeal was a Crown appeal, the sentence imposed was the minimum available. As McClellan CJ at CL (at [3]) observed: "But for the fact that this is a Crown appeal in respect of which the accepted principles require the respondent to be sentenced at the lowest end of the available range, to my mind a significantly greater sentence may have been appropriate." 17 Greater guidance is afforded by the decisions of this court in R v Jaworowski (1999) 108 A Crim R 489 and R v Woodward [2001] NSWCCA 90. 18 In Jaworowski, the applicant pleaded guilty to one count of dangerous driving causing death in circumstances of aggravation, namely while he was significantly affected by alcohol and while disqualified from driving. The accident occurred when the applicant drove his vehicle out of the driveway of his home onto the roadway where it collided with a motorcycle being driven by the victim. An aggravating factor was that the applicant had committed the subject offence shortly after he had been disqualified from driving on a charge of driving whilst there was present in his blood the prescribed concentration of alcohol. The sentencing judge imposed a total sentence of eight years imprisonment, which included a minimum term of six years. His Honour declined to find special circumstances. On appeal this court concluded (at [21]) that "Although the total sentence was a very heavy one it is not outside the range properly available to his Honour and it has not been demonstrated that in arriving at that sentence his Honour failed to have proper regard to the subjective material." The court however found special circumstances and restructured the total sentence of eight years to comprise a minimum term of five years and an additional term of three years. 19 In R v Woodward the applicant was convicted on a charge of aggravated dangerous driving occasioning death. The aggravating factor in this case was that the applicant was significantly affected by alcohol. The accident occurred when the vehicle left the road and collided with a power pole. The applicant's vehicle was seen to be travelling at a speed described by an eye-witness as normal as it approached the bend where control was lost. The applicant was a young man who had no criminal record of any significance though he had a poor driving record. He was in regular employment and had manifested strong remorse. His Honour the sentencing judge concluded that the degree of intoxication was: "so gross as to demonstrate a wilful abandonment by the prisoner of his responsibility to drive the vehicle safely." The sentencing judge found special circumstances and set a minimum term of five years imprisonment and an additional term of three years. Leave to appeal against sentence was granted but the appeal was dismissed. The court concluded that notwithstanding the "highly favourable" subjective features identified in the sentencing remarks, the objective gravity of the offence was such that the court was unable to conclude the sentence manifested error. 20 The Court must be careful not to be unduly influenced by comparing case with case. No one case sets an appropriate sentence for another case and no two cases are the same. Nevertheless, the cases of Jaworowski and Woodward provide some guidance in indicating the upper sentence range for individual offences in the event of serious breaches of the subject section. 21 His Honour concluded that the applicant's moral culpability in relation to both offences was extremely high. He found the objective seriousness of each of the offences to be at the upper end of the range of objective seriousness for offences of aggravated dangerous driving. Each of the offences, unquestionably in his opinion, involved on the part of the applicant his wholesale abandonment of responsibility toward the deceased and other road users. 22 His Honour found that the criminality of the offences was aggravated by the fact that the applicant was well affected by alcohol, the collision would not have occurred had the applicant simply complied with the road rules and stopped at the stop sign, that he was driving at an excessive speed and that he wilfully and deliberately left the scene of the accident and failed to summon help for the victims which he could easily have done as he had his mobile phone with him. 23 In my opinion, his Honour's categorisation of the objective seriousness of the offences was appropriate. His Honour had regard to the subjective features but correctly bore in mind that such is the need for public deterrence with these types of offences that the applicant's relative youth and prior good character must be given less weight. 24 The upper limit of the range of sentence is not provided by the statistical information provided by the Judicial Commission. The upper limit is the maximum set by Parliament. In this case fourteen years in respect of each offence. 25 Sentencing involves a discretionary judgment. There is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies - Markarian v The Queen (2005) 215 ALR 213. 26 In my opinion, the sentence imposed for each individual offence and the overall aggregate sentence were within the discretionary range open to his Honour. Error has not been established in respect of this ground of appeal. Ground 2 The sentencing judge failed to properly apply the principle of totality to the applicant's case and erred in the manner in which he ordered that there should be accumulation of the sentences imposed on the applicant 27 It was conceded on behalf of the applicant that there should be some partial accumulation of the sentences imposed for the individual offences in order to reflect the totality of the applicant's criminality. It was, however, submitted that the extent of the accumulation made was too large and had resulted in the imposition of an overall sentence which was excessive. 28 It is a discretionary matter for the sentencing judge to determine if the sentences should be concurrent or partly cumulative or totally cumulative. The offences were separate and had their own level of criminality, although they occurred at the same time. It was a matter for his Honour in his discretion to determine the degree of accumulation which reflected the overall criminality. 29 In my opinion, the aggregate sentence imposed by his Honour was within the broad sentencing discretion open to him. It reflected the very serious criminal conduct involved in each of the individual offences. No error by his Honour has been demonstrated in this regard. Ground 3 The sentencing judge erred in determining that the credit to which the applicant was entitled by reason of his pleas of guilty and in particular in holding that the utilitarian discount should be at the lower end of the range. Further, the magnitude of the sentences imposed suggests that the sentencing judge did not have sufficient regard to the strong expression of remorse and contrition represented by the applicant's pleas of guilty 30 The pleas of guilty were entered effectively at trial. The applicant had made no earlier offer to plead guilty to the s 52A(2) charges. His Honour stated that the discount for the utilitarian value of the pleas must be at the lower end of the range identified by the court in R v Thomson & Houlton. His Honour did not otherwise quantify the discount allowed by him for the pleas. 31 The applicant submitted his Honour erred in holding that the discount for the utilitarian value of the pleas should be at the lower end of the range. This submission must be rejected. 32 It is settled law that the utilitarian value of a plea should generally be assessed in the range of 10 to 25 percent discount. As was observed in R v Thomson & Houlton at [155]: "The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 33 There was nothing to suggest that this case was particularly lengthy or complex. 34 His Honour expressly accepted the applicant's expressions of remorse and contrition. The weight his Honour gave those factors in determining sentence was a matter for him and formed part of the instinctive synthesis of sentence determination. No error is demonstrated in this regard. Ground 4 The sentencing judge erred in structuring the sentences imposed on the applicant in a manner which required the applicant to serve 7½ years of an overall sentence of 10½ years in custody. This effectively deprived the applicant of the finding made by the sentencing judge that "clearly there are special circumstances" in the applicant's case 35 His Honour concluded there were special circumstances warranting some variation in the statutory ratio between the term of the sentence and the non parole period, in particular the fact that this was the first custodial sentence served by the applicant. 36 In respect of the individual sentences imposed by his Honour, the ratio imposed between the non parole period and the balance of term was 62.5 percent. 37 The ratio between the non parole period and the aggregate sentence imposed by his Honour was 71.4 percent, a reduction of 3.6 percent from the statutory ratio (Crimes (Sentencing Procedure) Act 1999, s 44). 38 The applicant submitted the effect of the structuring of the sentences to produce an aggregate sentence effectively deprived the applicant of his Honour's finding of special circumstances and that "because of his limited skills and because of the extent of the impact of this tragedy upon him personally, it can reasonably be expected that the applicant will require a greater degree of assistance in readjusting to life in the community." In essence, the submission was that his Honour must have intended to apply an overall ratio in the order of that applied to the individual offences and had erred in not doing so. 39 However, the aggregate parole period and the parole periods for the individual sentences were each three years. A period of three years is more than adequate for the applicant's rehabilitation. 40 His Honour expressly stated that the effect of the structuring of the sentence was to impose "an effective non parole period of 7½ years". This is consistent with an intention to impose the aggregate non parole period which his Honour did and his Honour's opinion as to the criminality involved in the offences and reflected a variation of the statutory ratio. 41 In my opinion, it cannot be inferred that his Honour intended to apply a different aggregate non parole period than that which he did. Accordingly, no error in this regard has been demonstrated. Conclusion 42 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act 1912. The court will interfere with a sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79]. 43 In my opinion, error has not been established nor has it been established that some other sentence, less severe, was warranted in law and should have been passed. 44 I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed. 45 LATHAM J: I agree with Hislop J. ********** 07/11/2007 - The original judgment published on the net was not the judgment handed down in court. - Paragraph(s) 45 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.