New South Wales Court of Criminal Appeal CITATION: Whybrow v R [2008] NSWCCA 270 HEARING DATE(S): 10 October 2008 JUDGMENT DATE: 19 November 2008 JUDGMENT OF: Hodgson JA at 1; Kirby J at 2; Hislop J at 3 DECISION: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash each sentence and in lieu thereof sentence the applicant as follows: Count 3: a non parole period of one year six months commencing on 24 October 2007 and expiring on 23 April 2009 with a balance of term of one year commencing on 24 April 2009 and expiring on 23 April 2010; Count 1: a non parole period of three years three months commencing on 24 April 2008 and expiring on 23 July 2011 with a balance of term of two years three months commencing on 24 July 2011 and expiring on 23 October 2013; Count 2: a non parole period of two years eight months commencing on 24 April 2009 and expiring on 23 December 2011 with a balance of term of two years ten months commencing on 24 December 2011 and expiring on 23 October 2014. The earliest date on which the applicant will be eligible for release to parole is 23 December 2011. LEGISLATION CITED: Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 R v Tzanis [2005] NSWCCA 274 R v Solomon [2005] SASC 265; (2005) 153 A Crim R 32 R v Chisari [2006] NSWCCA 19 R v Previtera (1997) 94 A Crim R 76 R v Daetz [2003] NSWCCA 216; (2003) 137 A Crim R 398 CASES CITED : Alameddine v R [2006] NSWCCA 317 Christodoulou v R [2008] NSWCCA 102 R v Bragias (1997) 92 A Crim R 330 R v Price [2004] NSWCCA 186 R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 PARTIES: Jamie Samuel Whybrow v R FILE NUMBER(S): CCA 2007/5172 COUNSEL: H Cox (Applicant) P M Miller (Crown) SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/31/1002 LOWER COURT JUDICIAL OFFICER: Nield DCJ LOWER COURT DATE OF DECISION: 2 November 2007 IN THE COURT OF CRIMINAL APPEAL 2007/5172 HODGSON JA KIRBY J HISLOP J Wednesday 19 November 2008 JAMIE SAMUEL WHYBROW v R Judgment 1 HODGSON JA: I agree with Hislop J. 2 KIRBY J: I agree with Hislop J 3 HISLOP J: The applicant pleaded guilty to the following counts: Count 1 On 23 April 2006 at Warnervale he did drive a motor vehicle, whilst under the influence of intoxicating liquor, when it was involved in an impact as a result of which the death of Ann Thomas was occasioned and where the prescribed concentration of alcohol was present in his blood, contrary to the Crimes Act , 1900, s 52A(2). The maximum penalty for this offence is imprisonment for 14 years. Count 2 On 23 April 2006 at Warnervale he did drive a motor vehicle, whilst under the influence of intoxicating liquor, when it was involved in an impact as a result of which the death of Patrick Thomas was occasioned and where the prescribed concentration of alcohol was present in his blood, contrary to the Crimes Act , 1900, s 52A(2). The maximum penalty for this offence is imprisonment for 14 years. Count 3 On 23 April 2006 at Warnervale he did drive a motor vehicle, whilst under the influence of intoxicating liquor, when it was involved in an impact as a result of which grievous bodily harm was occasioned to Kate Thomas and where the prescribed concentration of alcohol was present in his blood, contrary to the Crimes Act ,1900 s 52A(4). The maximum penalty for this offence is 11 years imprisonment. 4 On 2 November 2007 the applicant was sentenced as follows: Count 1 Imprisonment for a non parole period of two years three months commencing 24 November 2010 and expiring 23 February 2013 with a parole period of three years eight months commencing 24 February 2013 and expiring 23 October 2016. Count 2 Imprisonment for a non parole period of three years eight months commencing 24 June 2009 and expiring 23 February 2013 with a parole period of two years three months commencing 24 February 2013 and expiring 23 May 2015. Count 3 Imprisonment for a non parole period of two years commencing on 24 October 2007 and expiring on 23 October 2009 with a parole period of one year four months commencing 24 October 2009 and expiring 23 February 2011. The aggregate effective sentence was thus a non parole period of five years four months and a total sentence of nine years imprisonment. The sentencing judge also dismissed a back up charge of negligent driving causing death. He convicted the applicant of the related charge of driving with the high range prescribed concentration of alcohol in his blood and sentenced him to imprisonment for a fixed period of nine months from 24 October 2007 to 23 July 2008 for that offence. He also imposed a period of disqualification from holding or obtaining a driver's licence. 5 The applicant has sought leave to appeal against sentence. 6 The facts, which were not in dispute, were essentially as follows: During the day and night of Saturday 22 April 2006 the applicant had consumed a considerable quantity of intoxicating liquor. At about 12.45 am on Sunday 23 April 2006 he was driving his motor vehicle west in Sparks Road, Warnervale. The road surface was sealed bitumen in good condition and dry. The road was divided by painted centre lines into two traffic lanes, one in each direction. The speed limit was 90 km/h. The applicant was alone in his vehicle. He was travelling at an unknown speed. At the same time Mr Thomas was driving his vehicle east in Sparks Road. He was accompanied by his wife in the front passenger seat and his 18 year old daughter in the back seat. The vehicles collided on a sweeping right hand curve of Sparks Road. The collision was the result of the applicant causing or allowing his vehicle to leave the westbound side of Sparks Road and cross over the double unbroken centre lines onto the eastbound side of Sparks Road and into the path of the vehicle being driven by Mr Thomas. Tyre marks, commencing about 58 metres from the rear of the applicant's vehicle, and travelling from the westbound side onto the eastbound side of Sparks Road, suggest that the applicant had applied the brakes of his vehicle at some place greater than 58 metres from the place of the collision and that the brakes had locked the wheels. Mrs Thomas died at the scene of the collision. Mr Thomas was trapped in his vehicle. He was later airlifted to hospital where he died a short time later. Ms Kate Thomas was conveyed to hospital. She had suffered a fracture of her left clavicle and the head of the fifth metatarsal on her left foot, as well as multiple abrasions and lacerations to her left pelvic area and emotional harm. The applicant had a concentration of 0.15g of alcohol in 100ml of blood, being "the prescribed concentration of alcohol" (s 52A(7),(9)) for the purposes of enlivening sub-ss 52A(2) and (4). 7 The applicant was born in October 1985. His upbringing was relatively uneventful. He completed year 10 and obtained the School Certificate. After leaving school he commenced an apprenticeship and obtained a certificate as a motor mechanic. He joined the Army, completed his basic training and became a rifleman. His career with the Army would be terminated once he commenced his term of imprisonment. It is unclear if he will be able to re-enlist on completion of the term of his imprisonment. 8 The applicant is married. He is the stepfather of his wife's two children, aged 10 and 6, and he and his wife have a young child. He had no prior criminal record. He had four minor traffic infringements in Queensland. 9 His Honour accepted that the applicant was remorseful for what he had done and that his remorse was real and genuine. He considered the applicant had excellent prospects for rehabilitation because he was beforehand a man of good character with a relatively good driving record and because he had the ongoing support of his wife and family. His Honour found the applicant was well liked by people who knew him and well regarded by his supervisors. His Honour considered he was unlikely to reoffend. 10 His Honour allowed a discount on sentence of 15 percent on account of the applicant's guilty pleas which were entered after the date fixed for trial. 11 His Honour found special circumstances due to "the offender's age, his previous character, his relatively good driving record, the excellent prospects for his rehabilitation and the likelihood that he will not reoffend." This, his Honour said, allowed him to apportion the sentence into a non parole period of 60 percent of the period and a parole period of 40 percent of the period. 12 His Honour considered that the sentences for each of the offences should be served partly concurrently and partly consecutively. 13 The applicant's grounds of appeal are considered separately hereunder. Ground 1: His Honour erred by having regard to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 as an aggravating factor 14 The Crimes (Sentencing Procedure) Act, 1999 provides: "21A. (1) In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court… (2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows… (g) the injury, emotional harm, loss or damage caused by the offence was substantial… The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." 15 In his remarks on sentence, his Honour said: "As to s 21A, I consider that the only aggravating factor is that lettered (g) in subs 2…" He did not expand on this comment. 16 There is some difficulty in understanding this reference by his Honour. The Crown, at the sentencing hearing, submitted there were no aggravating factors pursuant to s 21A. His Honour did not state whether his comment applied to all or some only of the offences nor did he differentiate between the different injuries, harm, loss and damage suffered. 17 There was little scope for a finding of aggravation pursuant to s 21A(2)(g) as: (a) The death of Mr and Mrs Thomas could not be taken into account as an aggravating factor as death was an element of the offence - R v Tzanis [2005] NSWCCA 274. The grievous bodily harm suffered by Ms Thomas arising from impact was not of such a high order as to warrant a finding that it amounted to an aggravating factor of which additional account was to be taken - R v Solomon [2005] SASC 265; (2005) 153 A Crim R 32 at [32], R v Chisari [2006] NSWCCA 19 at [22]. (b) The effect and impact of the death of the deceased upon friends and relatives is not a matter which is relevant to sentencing - R v Previtera (1997) 94 A Crim R 76. His Honour acknowledged his familiarity with the principle in Previtera during the course of the sentencing hearing. (c) Mr Thomas was conscious for a period of time following the collision. There was evidence from which it could be inferred that he was in great pain during this period. Ms Thomas was present at the scene and was confronted by the sight of her mother injured and unconscious or dead and her father seriously injured and in great pain. It could be inferred this would have caused emotional harm to Ms Thomas. It is possible his Honour regarded these matters as "aggravating factors". However, the period of consciousness on the part of Mr Thomas following the collision was very short and there was no medical evidence to differentiate between the effects of the various events upon Ms Thomas. It is improbable his Honour would have taken these matters into account as "aggravating factors" without some discussion or explanation. 18 Although I accept his Honour took some matter or matters into account as an aggravating factor or factors under s 21A(2)(g), I am unable to determine which matters were taken into account and with what impact upon the sentences imposed and thus whether there was an error of substance. His Honour ought to have identified the particular matter he regarded as a matter of aggravation. However, as the appeal will be upheld on other grounds, it is unnecessary to pursue this issue. Ground 2: His Honour failed to reflect the extra curial punishment suffered by the applicant as a mitigating feature in the sentencing exercise 19 The applicant sustained multiple serious injuries in the collision. In a report dated 30 August 2007 Dr Pollock listed those injuries as closed head injury, fracture of right occipital condyle (skull), fractures of lumbar 5th vertebra and 1st sacral segment (backbone), fracture of left sacrum (pelvis), fractures of right and left superior and inferior pubic rami (pelvis), compound fracture of left fibula (leg), fractures of left 2nd to 4th ribs posteriorly, rupture of left hemi-diaphragm, collapse/consolidation of left lung lower lobe, rupture of left knee ACL ligament, and lacerations of right wrist and left knee. The applicant underwent surgical repair of the ruptured diaphragm and left knee. Dr Pollock summarised the situation as at the date of the report as follows: "Jamie sustained multiple serious injuries in the MVA but has made a good recovery. He has permanent impairment of his left diaphragm and left lower lung function that impairs his ability to perform aerobic activities such as running, but causes no other significant disability. His left knee causes no significant disability. His brain function is not impaired, although I believe he is still amnesic for the period surrounding the accident." 20 In the course of his remarks on sentence his Honour said: "The offender was in good physical and mental health until the subject motor vehicle collision. However, as a result of the collision, he suffered numerous significant injuries, as detailed in the report of Dr Pollock, Exhibit 2, for some of which he underwent surgical repair. He has made a good but not complete recovery from his injuries." His Honour made no other reference to the applicant's injuries in his remarks on sentence. 21 The applicant submitted that the injuries and their sequelae constituted extra curial punishment suffered by the applicant which should have been taken into account by his Honour as a mitigating feature in the sentencing exercise and that this had not occurred. 22 In R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 this court held: "....while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence…In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case." 23 In Alameddine v R [2006] NSWCCA 317, Grove J, with whom the other members of the court agreed, said: "[23] …there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender… [27] To the extent that the Crown submitted that there was a boundary created by injury sustained by self inflicted illegal activity beyond which no mitigation could be granted, I would reject it. That is not to say that the circumstances of infliction are irrelevant but to deny that, once injury is sustained by the action of the offender in the course of committing the crime, the consequences are incapable of giving rise to a factor of mitigation." 24 In Christodoulou v R [2008] NSWCCA 102 Grove J (with whom Johnson J agreed) held: "[41] It is a step beyond Alameddine …to seek to extend the availability of a mitigatory element to a deliberately self inflicted injury as distinguished from occasions where the injury was, although self inflicted and in the course of crime commission, unintentional. [42] Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognized." The other member of the bench, Campbell JA, stated: "[2] I would prefer to leave undecided whether there are no circumstances at all in which injury or detriment that a criminal causes to himself or herself can operate as a mitigating factor." 25 In my opinion, the applicant's injuries and resultant ongoing disability could have, and should have, been taken into account as extra curial punishment in mitigation of the sentence. The respondent accepted this was so but submitted that his Honour had taken such matters into account. 26 The applicant contended that his Honour's reference to the injuries to the applicant was merely part of the background circumstances to which his Honour was referring in that part of his remarks on sentence and did not indicate that his Honour was taking it into account as a factor mitigating the sentence. 27 The Crown contended that when regard was had to the structure of the remarks on sentence his Honour was not referring to the injuries as merely part of the background circumstances. His reference to them was part of a recitation of the subjective factors relevant to the sentencing process. The injuries could only have been taken into account in a manner favourable to the applicant. The weight to be given to them was a matter for the sentencing judge in the exercise of his discretion. It was not necessary for the judge to give a discrete discount in respect of the injuries. 28 The remarks on sentence commenced with the applicant's subjective features. It was in the course of recounting the applicant's subjective features that his Honour referred to his injuries. That reference came immediately after a paragraph dealing with the applicant's domestic situation and immediately before a reference to evidence of his character. His Honour then discussed the circumstance of the collision, the court history of the matter, sentencing principles (in which his Honour said the subjective features of the offender must be determined and taken into account). His Honour then referred to particular matters impacting on the sentencing exercise. His Honour referred to the need to take into account such of "the mitigating factors referred to in sub section 3 of that section [s 21A] as are present and any other relevant factor". 29 It is unclear if his Honour took into account extra curial punishment. He was not asked to do so by the applicant's counsel at the sentencing hearing and he made no reference to that matter in his remarks on sentence. On balance, I infer this matter was not taken into account by him in sentencing the applicant. 30 The applicant also asserted that his Honour should have taken into account, as extra curial punishment, the loss of his career in the Army. Again, no such submission was made to his Honour at the sentencing hearing. It was common ground that the applicant's career with the Army would be terminated once he was imprisoned but it was unclear if he would be entitled to re-enlist upon the completion of his period of imprisonment. 31 In my opinion no allowance should be made by reason of alleged extra curial punishment flowing from the loss of the applicant's employment in the Army. The deprivation of liberty resulting from a prison term necessarily precludes participation in many activities including participation in one's usual form of employment. There was nothing exceptional about the plaintiff's loss of his employment and it was not known if he would resume that employment on the completion of his sentence. Further, as Grove J said in R v Bragias (1997) 92 A Crim R 330 at 333.2: "The loss of income from personal exertions is common to all convicts placed in custody. Suffering that handicap is a consequence of the respondent's guilt of his crime and it is difficult to see how it is a particular subjective factor provoking special lenience. I do not suggest, of course, that the means of a convicted person cannot be relevant to the question of sentence but the approach adopted by her Honour invites the odd, and in my view incorrect, result that a high income earner could claim a lesser sentence for an identical offence, than someone of more modest earnings because the former would suffer a greater loss." Ground 3: The sentences imposed upon the applicant were manifestly excessive 32 As Howie J observed in R v Price [2004] NSWCCA 186 at [38]: "It is trite that an offence under s 52A is a crime that has two distinct elements: a culpable act of driving and the consequence of that act. It is the consequence of the act of driving that gives rise to the particular offence committed and that makes the offender liable to a maximum penalty far in excess of that prescribed for the corresponding traffic offence. The fact that more than one person was killed as a result of the driving is such a significant attribute of the criminality arising from the offences charged against the respondent, that it had to result in a significant increase in the sentence that would have been appropriate in the typical case where only one person had been killed." 33 This court issued a guideline judgment in R v Jurisic (1998) 45 NSWLR 209 in respect of cases of this nature. That decision was reviewed in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. 34 The guideline provided in those cases relates to a typical case under the Crimes Act, s 52A(1) or (3). The guideline indicates that 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. In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. 35 A typical case was identified as: young offender, of good character with no or limited prior convictions, death or permanent injury to a single person, the victim is a stranger, no or limited injury to the driver or the driver's intimates, genuine remorse, plea of guilty of limited utilitarian value. 36 The court identified various aggravating factors, namely extent and nature of the injuries inflicted, number of people put at risk, degree of speed, degree of intoxication or of substance abuse, erratic driving, competitive driving or showing off, length of the journey during which the others were exposed to risk, ignoring warnings, and escaping police pursuit. 37 The court also observed [231] that "In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability is required. Other factors such as the number of victims will also require an appropriate increment." 38 The applicant submitted that: (a) this was essentially a "typical case" save that the death or injury was caused to more than a single person and the applicant received significant injury; (b) the applicant had been charged with the aggravated offences under ss 52A(2) (death) and 52A(4) (grievous bodily harm). An appropriate increment to reflect the higher maximum penalties involved in those offences (14 years rather than 10 (death), 11 years rather than 7 (grievous bodily harm)) was to be obtained by applying the relevant ratios. This would produce figures of 4.2 years and 3 years respectively. These represented the top of the range for those offences with which the applicant was charged; (c) the head sentences should however be less than 4.2 (death) and 3 (grievous bodily harm) as (i) no aggravating features of the offence had been established apart from the alcohol concentration. The applicant asserted he had no memory of the collision or events preceding it. This was not disputed. There was no evidence to establish any of the "aggravating factors" impinging on moral culpability save as to the degree of intoxication; (ii) his Honour had found the case did not involve high moral culpability; (iii) the discount for the plea of guilty in Jurisic was 10 percent whereas his Honour had allowed a discount of 15 percent in this case; (iv) his Honour had found the applicant was unlikely to reoffend and had good prospects of rehabilitation; (v) his Honour had failed to take into account the extra curial punishment referred to in Ground 2; (vi) his Honour had erroneously taken into account an aggravating factor pursuant to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act , 1999; (d) his Honour's starting point for the head sentence had been 7 years (death) and 4 years (grievous bodily harm). These starting points were manifestly excessive by reference to the guideline judgments. 39 I do not agree that the upper range for sentence for an aggravated offence under s 52A(2) or 52A(4) can be established by the application of a mathematical ratio to a non prescriptive judicial guideline. 40 His Honour, correctly in my opinion, did not adopt the mathematical approach advocated by the applicant. Instead he approached the sentencing task by reference to relevant objective and subjective factors, guideline judgment, sentences in other similar cases and by drawing upon his own accumulated knowledge and experience. 41 As his Honour observed, these were very serious offences. He concluded the moral culpability of the applicant was in the mid range. The applicant had abandoned responsibility for his driving when he had decided to drive after consuming sufficient intoxicating liquor to give him a blood alcohol reading of 0.15g of alcohol in 100ml of blood. Although there was no evidence of additional aggravating features, his Honour's assessment of the moral culpability being in the mid range was well open to him. The fact that the event involved the death of two persons and grievous bodily harm to a third person required appropriate increments to the sentence (Whyte at [231], Price at [38]). 42 It must be acknowledged that the judicial sentencing discretion is a wide one. However, having regard to the error referred to in the discussion of ground 2, in my opinion appellate intervention is required. This is a case where a less severe sentence is warranted in law. 43 In the circumstances it is appropriate to resentence. In resentencing I have had regard to all relevant factors. In particular I have had regard to the applicant's affidavit sworn 24 September 2008 in which he confirms he has some ongoing pain and disability, that he is pursuing a traineeship in engineering production and will commence a part time university course for the degree of Bachelor of Mechanical Engineering next year. I have made no allowance for an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, 1999, I have taken account of the extra curial punishment by reason of the injuries and ongoing disabilities, the discount of 15 percent for the plea of guilty, and I have found special circumstances, it being the applicant's first time in custody, the circumstances of the offence and the need for an adequate period of rehabilitation. 44 In my opinion, the appropriate sentences are: Count 3: a non parole period of one year six months commencing on 24 October 2007 and expiring on 23 April 2009 with a balance of term of one year commencing on 24 April 2009 and expiring on 23 April 2010. Count 1: a non parole period of three years three months commencing on 24 April 2008 and expiring on 23 July 2011 with a balance of term of two years three months commencing on 24 July 2011 and expiring on 23 October 2013. Count 2: a non parole period of two years eight months commencing on 24 April 2009 and expiring on 23 December 2011 with a balance of term of two years ten months commencing on 24 December 2011 and expiring on 23 October 2014. 45 I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash each sentence and in lieu thereof sentence the applicant as follows: Count 3: a non parole period of one year six months commencing on 24 October 2007 and expiring on 23 April 2009 with a balance of term of one year commencing on 24 April 2009 and expiring on 23 April 2010. Count 1: a non parole period of three years three months commencing on 24 April 2008 and expiring on 23 July 2011 with a balance of term of two years three months commencing on 24 July 2011 and expiring on 23 October 2013. Count 2: a non parole period of two years eight months commencing on 24 April 2009 and expiring on 23 December 2011 with a balance of term of two years ten months commencing on 24 December 2011 and expiring on 23 October 2014. The earliest date on which the applicant will be eligible for release to parole is 23 December 2011. ********** 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.