New South Wales Court of Criminal Appeal CITATION: R v Woodland [2007] NSWCCA 29 HEARING DATE(S): 7 February 2007 JUDGMENT DATE: 14 February 2007 JUDGMENT OF: Simpson J at 1; Howie J at 55; Buddin J at 55 DECISION: Crown appeal dismissed. CATCHWORDS: CRIMINAL LAW - Crown appeal - driving in a manner dangerous causing grievous bodily harm - plea of guilty - periodic detention - degree of moral culpability - unlicensed driver - unregistered vehicle - respondent on conditional liberty - alcohol - public road - gravity of injuries to victim - whether periodic detention appropriate - aggravating factors - youth - no previous convictions - delay between offence and sentence - established rehabilitation - discount for plea of guilty - utilitarian value of plea - additional materials - discretion not to intervene Crimes Act 1900, s52A(3)(c) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s44 Criminal Appeal Act 1912, s5D Criminal Procedure Act 1986, s166 R v Gardiner [2004] NSWCCA 365 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 PARTIES: Crown - Appellant Jarrod Bernard Woodland - Respondent FILE NUMBER(S): CCA 2006/2593 COUNSEL: V Lydiard - Crown I McClintock SC - Respondent SOLICITORS: S Kavanagh - Crown Smail, Rhodes & Co - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/2054 LOWER COURT JUDICIAL OFFICER: Viney ADCJ LOWER COURT DATE OF DECISION: 6 November 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2593 SIMPSON J HOWIE J BUDDIN J Wednesday 14 February 2007 REGINA v Jarrod WOODLAND Judgment 1 SIMPSON J: Pursuant to s5D of the Criminal Appeal Act 1912 the Crown appeals against a sentence imposed upon the respondent in the District Court on 6 November 2006, following his plea of guilty to a single count of driving in a manner dangerous and causing grievous bodily harm. The charge was brought under s52A(3)(c) of the Crimes Act 1900, and carries a maximum penalty of imprisonment for seven years. The sentence imposed was of a non-parole period of nine months and an additional term of nine months, dating from 6 November 2006, to be served by way of periodic detention. Pursuant to s166 of the Criminal Procedure Act 1986, three additional offences (one count of driving under the influence of alcohol, one count of driving whilst unlicensed, and one count of driving an unregistered vehicle) were transferred to, and dealt with in, the District Court. In respect of each of these offences a fine of $200 was imposed. 2 The offence occurred in the early hours of 9 January 2005, a Sunday. On the previous evening the respondent and two friends (Andrew McGlone and Aiden Mason) attended a party in Wilberforce. They had previously purchased two cartons of small bottles of beer. Aiden Mason drove Mr McGlone and the respondent to the party. At the party, the three men between them drank one carton of beer. The respondent and Mr McGlone then drank some more from the second carton. 3 Between 1.30 a.m. and 2.00 a.m. another (female) friend drove the respondent and Mr McGlone to the respondent's home in Windsor. The respondent was then considering returning to the party, riding his motorcycle. The female friend urged him not to do so. 4 The respondent then obtained the keys to his mother's car, a Holden Kingswood. This vehicle was not registered. The respondent did not hold a driver's licence. With Mr McGlone as passenger, he drove the Kingswood towards Ebenezer, on the Sackville Road. There, on a straight stretch of road, he lost control of the vehicle, which collided with a tree. 5 Mr McGlone sustained significant facial fractures, including a right orbital complex fracture. He underwent reconstructive surgery. There were also indications that he may have suffered some mild traumatic brain injury, but this assessment was guarded, being complicated by his alcohol consumption on the night of these events, and an apparently heavy alcohol consumption in previous times, as well as a history as a boxer: this left open the possibility of a cumulative effect causing the apparent brain injury. In any event, when assessed, in July and October 2006, he displayed severe levels of stress, and low levels of complex verbal memory, complex visual memory, and executive function. Not all of these symptoms could confidently be attributed to the consequences of the collision. 6 Shortly after the collision Mr McGlone was observed, wandering on the roadway with blood on his face, by a passing motorist who called police. This witness also saw another man, no doubt the respondent. The respondent was no longer present when police arrived. The next morning (Monday) he was not at home. He gave evidence in the sentencing proceedings to the effect that he had assisted Mr McGlone by carrying him, intending to take him to the nearest house, but gave up this attempt when he heard sirens, which signified the arrival of police. 7 Later on the same day the respondent told another friend that his father had reported the Kingswood stolen and that he was going to deny everything. He said: "I was just thrashing it and I lost it." 8 The respondent was arrested on 19 May 2005. He denied having been the driver of the car at the time of the collision. He said that, having been driven home earlier in the morning, he had remained at home. He concocted a false account of his movements after having been driven home on the evening of the crash. On 16 March 2006 the respondent entered a plea of not guilty to a charge of dangerous driving under the influence of intoxicating liquor. On 4 September 2006 he entered a plea of guilty to the present charge. Subjective circumstances 9 Before the sentencing judge was a pre-sentence report, dated 6 November 2006. From this, together with other material, the following emerged. The respondent was born on 14 December 1982. He was therefore just 22 years of age at the time of the offence. He had no prior convictions. He was, however, at the time, facing a charge of assault occasioning actual bodily harm (of which the victim was his father) and was on bail in respect of that charge. 10 According to the pre-sentence report the respondent had a conventional childhood in a close family of three children, of whom he is the eldest. During adolescence his behaviour deteriorated and he became associated with a peer group who exerted a negative influence upon him. This was current at the time of the offence. He abused alcohol. Relations with his parents were poor. His behaviour changed after the offence and by the time the pre-sentence report was written, harmonious relations had been restored. 11 He has had unskilled employment, at the time of the report working as a labourer in a printing works. He was well regarded, as reliable and hardworking, in his employment. 12 He is in a de facto partnership, with a four-month old (at the time of sentencing) son, to whom he is said to be a caring and responsible father. 13 The author of the pre-sentence report considered him to be unsuitable to serve a sentence by way of periodic detention, but only because of perceived conflict between his hours of employment and the hours required for attendance at a periodic detention centre. 14 The respondent gave evidence in the sentencing proceedings. He said that if it were only his work commitments that stood in the way of an order that any sentence be served by way of periodic detention, he would give up that employment. He was confident that he could obtain alternative employment. 15 He said that he had ceased alcohol consumption. As a result he had been abandoned and ostracised by his former friends. Victim Impact Statement 16 I have already referred to the medical evidence concerning the physical consequences of the collision for Mr McGlone. Mr McGlone also provided a Primary Victim Impact Statement. He said that his life had been "on hold" since the accident, that he continued to have double vision, and that, as a result, he had not been able to obtain a driver's licence. He said he suffered severe headaches and tired very easily. The headaches occurred about three times a week, lasted for hours and made him feel sick. He was unable to concentrate, was unable to hold a job; he suffered from nightmares and, initially, from insomnia. He had tried alcohol as sleep medication but found that his tolerance was reduced and alcohol consumption caused him to become aggressive. The remarks on sentence 17 The sentencing judge noted the facts and circumstances of the offence, and the subjective circumstances to which I have referred. He noted that the respondent was an unlicensed driver and driving an unregistered vehicle and that he was on conditional liberty at the time. He did not explicitly treat these as aggravating features (which they are, both individually and in combination). Immediately after this reference, he expressly noted a submission made on behalf of the Crown that, as a consequence of the combination of these circumstances, the level of moral culpability in the respondent was high. He said that he was not convinced that that was so. 18 He then proceeded to refer to the decisions of this Court in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. He made express reference to the features, itemised in Whyte as "frequently recurring" features of offences against s52A. 19 In this context, his Honour then made a number of findings of fact, or reached relevant conclusions. The following findings, conclusions and observations may be extracted from this part of the remarks on sentence: · that the injuries sustained by Mr McGlone were "not the worst case of grievous bodily harm"; · that Mr McGlone was the only person put at risk by the respondent's conduct in driving the vehicle; · that there was no evidence of the extent to which the respondent was affected by liquor; · that there was no evidence that the respondent was driving aggressively, competitively, or showing off; · that the respondent had driven about two kilometres before the collision. 20 Having considered all of these matters, his Honour repeated that he was not satisfied that there was a high degree of moral culpability on the part of the respondent. 21 He apparently rejected a submission put on behalf of the respondent to the effect that Mr McGlone carried some degree of responsibility, having voluntarily entered the car with knowledge of the respondent's alcohol consumption. 22 He then turned to the subjective features. It is unnecessary to repeat these. He noted a concession made on the part of the Crown that the plea of guilty, although entered at a relatively late stage, had a high degree of utilitarian value. 23 He concluded that the respondent had commenced his own rehabilitation; he noted he had given up alcohol and ceased association with his former peer group, was a good worker and displayed an attitude of responsibility. 24 He therefore proceeded to determine that special circumstances pursuant to s44 of the Crimes (Sentencing Procedure) Act 1999 existed, justifying departure from the ratio between the non-parole period and the total term there specified. He then imposed the sentence to which I have already referred, specifying that it be served by way of periodic detention. The Crown appeal 25 The ground of appeal specified is that the sentence is manifestly inadequate. 26 Three specific matters were advanced in support of the ground. These were expressed as follows: "1. The sentencing judge erred in finding that the respondent's moral culpability was not high; 2. full-time imprisonment was the appropriate sentence, not periodic detention; 3. his Honour did not specify any discount for the utilitarian value of the plea." 1. Moral culpability: 27 Reference was made to the decision of this Court in R v Gardiner [2004] NSWCCA 365 in which it was said that all the circumstances are relevant to the assessment of the degree of moral culpability; and that a combination of circumstances might lead to a conclusion of a high (or, presumably, low) level of moral culpability. 28 On behalf of the Crown three relevant circumstances were identified: · that the respondent was an unlicensed driver; · that he was driving an unregistered vehicle; and · that he was on conditional liberty at the time. Reference was also made to the fact that he fled the scene of the accident leaving his injured friend. 29 These circumstances in combination, the Crown argued, pointed to a finding that the respondent's level of moral culpability was high. The Crown also challenged the view expressed by his Honour that only Mr McGlone was put at risk by the respondent's driving; it pointed out that the respondent was driving on a public road; that the immediate cause of the collision was the crossing of the vehicle to the oncoming side of the road; and that while the collision might have occurred a relatively short distance from the beginning of the journey at the respondent's home, the respondent was in fact intending to drive approximately 10 – 15 kilometres. 30 The Crown next challenged his Honour's finding concerning the extent to which the respondent was affected by alcohol, pointing out that, on the agreed facts, it was obvious that a considerable quantity had been consumed and that the respondent later admitted "thrashing the vehicle". 31 Next, the Crown challenged the finding that the injuries suffered by Mr McGlone were not in the worst case of grievous bodily harm. 32 Accordingly, the Crown argued that the respondent's offence may be worse than that committed by the "typical" Whyte offender. 33 There is considerable substance in a great deal of what the Crown has put. I find it difficult to accept that the respondent's degree of moral culpability was anything other than high; in addition to the matters cited by the Crown, it is of some significance that he had been urged, by his female friend, not to ride his motorcycle, but drove the car nevertheless. 34 I have concluded that the Crown is correct in challenging that ultimate conclusion. I am also satisfied that it was wrong to find that the number of persons put at risk was limited to the passenger in the respondent's vehicle: on a public road, any number of people are potential victims. It is also difficult to sustain the view concerning the effect of the consumption of alcohol on the respondent's driving. In this respect his own assessment – that he had been "thrashing" the vehicle – must be given some weight. The urging of his friend that he not ride his motorcycle can only reasonably be attributed to her perception of his state of intoxication. 35 It is correct, but perhaps unhelpful, to find that Mr McGlone's injuries were not the worst case of grievous bodily harm; in the scale of cases seen in these courts, so much is obviously true. However, the injuries are far from minor, far from at the low end of the range of injuries amounting to grievous bodily harm and are, no doubt, of considerable significance to Mr McGlone. 36 I am therefore satisfied that there was error in the assessment of the respondent's level of moral culpability, in the finding concerning the number of persons put at risk, in the undervalue ascribed to the respondent's level of intoxication, and in the downplaying of the gravity of Mr McGlone's injuries. 2. Full-time imprisonment? 37 It is well recognised that the imposition of a sentence to be served by way of periodic detention carries with it a significant element of leniency: 38 In R v Jurisic this Court promulgated as a guideline the following: "(a) with a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of … less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional; (b) a non-custodial sentence should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. (8) Once the threshold of abandoning responsibility has been reached the period of two … years imprisonment is a starting point. The presence of additional aggravating factors or their increased intensity will determine the actual sentence." 39 It is not necessary to repeat the aggravating factors; they are set out above. They bring the respondent squarely within paragraph (a) of the guideline. It is also difficult to escape the conclusion that, in all of the circumstances, the respondent did abandon responsibility for his conduct –driving whilst unlicensed, driving an unregistered vehicle, doing so whilst on bail for another offence, together with the consumption of alcohol, are all indicators to that effect. In this respect his subsequent conduct (leaving the scene) is also relevant, indicating, even some time after the event, a failure or refusal to accept responsibility for his conduct. 40 There were, of course, features of the respondent's case pointing in favour of some leniency. He was relatively young – just 22 years of age – at the time of the offence; although he faced a charge of assault, he had never previously been convicted; he had achieved significant rehabilitation of his own volition, having given up alcohol and his unsavoury associates; he was in steady employment and in a supportive and stabilising relationship with responsibility for a young child. 41 Guideline judgments were never intended as a straitjacket for sentencing judges; the sentencing discretion remains important, to enable judges to take account of the specific features of an individual case, and to ensure that a fitting sentence, in all the circumstances, is imposed: see Jurisic pp. 220 D – 221 E; Whyte, paragraph [78] – paragraph [116]. 42 In my opinion, it was certainly open to the judge to take a view of the respondent's rehabilitation that justified the grant of leniency. The question is whether, in taking the course he did, he went too far. In almost two years between the date of the offence and the date of sentencing, the respondent transformed his life. It was appropriate and necessary to recognise this in the sentencing decision. 43 A lengthy period between offence and sentence can be relevant in a number of ways. In this case, as it sometimes does in others, it has worked to the respondent's benefit. That is because he has taken full advantage of it to achieve reformation. For a sentencing judge, however, that combination of circumstances is apt to complicate the sentence exercise: it creates an almost irreconcilable conflict between, on the one hand, the demands of adequate retribution and denunciation, and, on the other, recognition of successful efforts towards rehabilitation. Particularly given the respondent's youth and prior good character, I do not think it was wrong for the sentencing judge to place considerable emphasis upon his established rehabilitation. 3. The plea of guilty: 44 The final matter raised on behalf of the Crown concerned the discount allowed to the respondent by reason of his plea of guilty. It is not clear to me how Crown asserts that failure to specify the extent of the discount is somehow indicative of error. The discount was never precisely quantified, but it may be accepted that his Honour allowed the maximum available under the decision in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. On that assumption it may be taken that the starting point for the total term of the sentence was imprisonment for two years. (I recognise that the Jurisic guideline is expressly stated to be applicable to cases where there has been a plea of guilty.) The sentence imposed was therefore well below – by 25% - what Jurisic contemplates. The Crown having conceded that the plea had significant utilitarian value, despite its timing, there cannot be (and was not) any real complaint that the discount allowed was too great. If the Crown is entitled to any complaint her, it is that the discount was applied to a sentence that was impermissibly low. 45 On the hearing of the appeal this Court was presented with some additional material, tendered on the conventional basis that it was available to be used either if the court proposed to proceed to re-sentence, or in the event that the court were to consider the exercise of the residual discretion to decline to intervene in a Crown appeal which would otherwise have been made good. 46 There were two documents. One was a handwritten note, agreed to be from the respondent's periodic detention supervisor. This gentleman spoke extremely highly of the respondent's work during his periodic detention – he said that the respondent had worked "exceptionally well" and that: "His ethics and work ability have been proven over and over in very difficult conditions." 47 The second document presented some greater difficulties. It was a report of a medical practitioner who works exclusively in psychological medicine and counselling. What is difficult about this report is that it covers both material legitimately available for the two purposes mentioned, but also material which plainly was, or could have been, available to the sentencing judge and which is, therefore, strictly inadmissible in these proceedings. It is almost impossible to separate the properly available material from that which is unavailable. For example, the doctor said: "As a result of this incident [the collision and offence] [the respondent] has developed a major anxiety and depression disorder . It is now evident that [the respondent] suffered with both these conditions extensively prior to the charged incident ." (bold in original; italics added) 48 Further, the doctor offered an account of the respondent's childhood, adolescence and home life dramatically different from the "conventional upbringing" described in the pre-sentence report. 49 No reason was advanced to this Court why this material, which could and should have been available at sentencing, should now be taken into account. Although it is difficult to unravel, I am of the view that that material in the report which relates to matters occurring or existing up to the time of sentence should be discarded from consideration. 50 Nevertheless, there is material in the report which is properly available. For example, the doctor wrote: "During his current weekend detention programme [the respondent] experiences major emotional distress at the commencement of each detention period. This is compounded by [the respondent's] experience of the very harsh physical conditions of his weekend imprisonment." 51 What follows is, presumably, intended to support the description of "very harsh physical conditions"; senior counsel who appeared for the respondent accepted that that description was, in light of the particularisation, somewhat overstated. However, the doctor went on to write: "In speaking with [the respondent] it is evident that he experiences weekend detention as both emotionally and physically extremely punitive. On these occasions his anxiety disorder escalates to a ' panic state '. A custodial sentence would have a profoundly adverse effect on his existing anxiety and depression ." (bold in original) 52 Traditionally, this Court exercises restraint in the determination of Crown appeals against sentence. Even where it decides to intervene and increase the sentence, it imposes a sentence at the bottom of the range of sentences that ought, at first instance, to have been imposed. 53 I am not persuaded that, in all of the circumstances, the sentence imposed was outside the range legitimately available to the sentencing judge; more confidently, I am satisfied that, if this Court were to intervene, the sentence it would impose contains so slight an increase upon that imposed at first instance, that the discretion to decline to intervene ought to be exercised. 54 I, accordingly, propose that the Crown appeal be dismissed. 55 HOWIE and BUDDIN JJ: We have had the benefit of reading in draft form the judgment of Simpson J. We agree with the order which her Honour proposes. However we have done so for somewhat different reasons. We agree with Simpson J, for the reasons which her Honour expresses, that the sentencing judge fell into error in his assessment of the respondent's level of moral culpability. 56 Notwithstanding the favourable subjective features upon which the respondent was entitled to rely, this was a case which ought clearly, in our view, to have attracted a full-time custodial sentence at first instance. Accordingly, we have concluded that the Crown has made good its submission that the sentence imposed by the sentencing judge was manifestly inadequate. 57 Nonetheless, in our view this Court ought to exercise its discretion not to intervene. We have arrived at this conclusion having had regard to the additional material which has been placed before the Court, and also because of the various considerations referred to by Simpson J at pars 52-53 of her Honour's judgment. ********** 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.