New South Wales Court of Criminal Appeal CITATION: Rosenthal v R [2008] NSWCCA 149 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 16/06/2008 JUDGMENT DATE: 2 July 2008 JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Latham J at 24 DECISION: Leave to appeal granted, appeal allowed. Sentence in District Court quashed. In lieu, applicant sentenced to non-parole period of 1 year and 9 months, commencing on 18 December 2006 and expiring on 17 September 2008, and a balance of term of 1 year and 3 months, commencing on 18 September 2008 and expiring on 17 December 2009. Direct applicant's release on parole on 17 September 2008. CATCHWORDS: CRIMINAL LAW: - application for leave to appeal against sentence - driving under the influence of a drug occasioning grievous bodily harm - victim the applicant's partner - loss of unborn child - applicant disqualified driver and on bail for other offences - those factors not relevant to abandonment of responsibility LEGISLATION CITED: Crimes Act s52A(3), s52A(8) CASES CITED : R v Whyte (2002) 55 NSWLR 252 R v Jurisic (1998) 45 NSWLR 209 PARTIES: Danny Alon Rosenthal FILE NUMBER(S): CCA 2007/2975 COUNSEL: G P Segal and B Brassil (applicant) J Dwyer (Crown) SOLICITORS: Segal & Associates (applicant) Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/1073; 06/11/0643 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 13 April 2007 IN THE COURT OF CRIMINAL APPEAL CCA 2007/2975 SPIGELMAN CJ HIDDEN J LATHAM J Wednesday 2nd July 2008 Danny Alon Rosenthal v Regina Judgment 1 SPIGELMAN CJ: I agree with Hidden J. 2 HIDDEN J: The applicant, Danny Rosenthal was found guilty at a trial by judge alone of driving under the influence of a drug, occasioning grievous bodily harm. That is an offence under s 52A(3) of the Crimes Act, carrying a maximum sentence of seven years imprisonment. He was sentenced to imprisonment for 3½ years, comprising a non-parole period of 2½ years and a balance of term of 1 year, commencing on the day of the verdict, 18 December 2006. He seeks leave to appeal against that sentence. He was also sentenced to a short concurrent term of imprisonment for driving whilst disqualified and suffered a further period of disqualification, but those matters were not raised in the application. Facts 3 Put shortly, the facts as the trial judge found them for the purpose of sentence were these. In the small hours of the morning of 6 March 2005, the applicant and his partner, Ms Kelly Porter, drove from the eastern suburbs of Sydney, where they lived, to the Blue Mountains. Why they did so is unclear. The applicant was driving and Ms Porter, who was thirty-three weeks pregnant, was in the front passenger seat. Some time before they left, the applicant had used the drug commonly known as ecstasy. 4 Having reached the vicinity of Katoomba, they travelled back towards Sydney on the Great Western highway. They reached Glenbrook a little before 3am. There the car left the highway and collided with concrete safety barriers at the intersection with Knapsack Street. Ms Porter was seriously injured, as was the applicant himself. Sadly, their unborn child was killed. It was the injuries to Ms Porter, together with the death of the baby, which constituted the grievous bodily harm charged. 5 The principal issue at the trial was whether the applicant was under the influence of the ecstasy at the time of the collision. The statutory defence provided by s52A(8) of the Crimes Act was also raised. It was put for the applicant that the accident was the result of inefficiency in the car's braking system, the lighting at the intersection and certain features of the roadway, so as to be in no way attributable to the effect of the drug upon him. His Honour resolved those issues adversely to him. 6 A blood sample taken from the applicant after the accident revealed a reading of 0.45 milligrams of ecstasy per litre and, in the light of pharmacological evidence, his Honour concluded that his driving ability would have been slightly to moderately impaired at the time. There was expert evidence about the braking system of the car, from which his Honour concluded that there was "some inefficiency" in the system but not such as to be significant. He rejected an argument that the condition of the brakes, the lighting and the features of the roadway combined to provide a possible explanation for the car leaving the highway, and expressed himself satisfied that there was no reasonable explanation for the accident other than error on the part of the applicant. 7 His Honour made these findings in the course of arriving at his verdict, and he adhered to them for the purpose of sentence. Subjective case 8 The applicant was twenty-two years old at the time of the offence, and is now twenty-five. His Honour saw nothing of relevance in his family background. His education did not progress beyond mid-secondary school and he had had no more than intermittent employment. However, his relationship with Ms Porter had endured after the accident, and was stable. 9 A psychologist, who provided a report, found him to be in the borderline range of intellectual capability. He had long suffered from Attention Deficit Hyperactivity Disorder and Tourette's disorder. Tourette's disorder is a distressing condition, manifesting itself in vocal and motor tics which were described by the psychologist as "coughing and grunting and distortions of the mouth". His Honour found that the two conditions caused him frustration and considerable social difficulties, particularly in his formative years. He had been prescribed medication for both these conditions for some years but, as his Honour put it, it had not been easy "to determine a suitable regime of treatment". 10 He began using ecstasy in his late teens, and was a regular user of the drug at the time of the offence. He had found that it helped control the symptoms of the Tourette's disorder and he persisted in using it partly for that reason. He had developed a considerable tolerance for the drug. The pharmacologist who expressed the opinion that his driving would have been slightly to moderately impaired at the time of the accident took that tolerance into account in arriving at that view. 11 His criminal history did not assist him. Since the accident he had been sentenced to a relatively short term of imprisonment for offences of dishonesty and driving whilst disqualified. He had been charged with some of those dishonesty offences before the accident, and was on bail in respect of them at the time. More importantly, in January 2005 he had been fined for some traffic offences and his licence was disqualified for twelve months. He was subject to that disqualification, which had been in force for less than two months, at the time of the accident. Otherwise, his traffic record disclosed that he had been licensed since 1999 and had committed seven speeding offences in the period from June 2000 to November 2004. Remarks on sentence 12 His Honour referred to the guideline judgment in respect of sentencing for offences of this kind in R v Whyte (2002) 55 NSWLR 252, in which this Court reviewed the earlier guideline in R v Jurisic (1998) 45NSWLR 209. In Whyte at [204], Spigelman CJ noted that the "frequently recurring case" of an offence under the relevant provision with which the guideline is concerned involves, among other things, an offender of good character "with no or limited prior convictions", who has pleaded guilty and shown genuine remorse. In the present case, his Honour observed that none of those three features was to be found. He found that, although the applicant was "distraught" about the consequences of the accident, he had not shown that he was remorseful about his offending conduct. His Honour also considered that general deterrence should be a "prominent consideration", and found nothing in the applicant's subjective case to "warrant any amelioration of this". 13 Whyte confirmed the Jurisic guideline sentence of two years full-time imprisonment for offences involving grievous bodily harm where the offender's moral culpability is high or, as the Chief Justice put it at [228], where the offender "has abandoned responsibility for his or her own conduct". In sentencing the applicant, his Honour accepted that his practice of using ecstasy "at a relatively high dosage level" was "at least partially" to control the symptoms of his Tourette's disorder, and that he had developed a tolerance for the drug which led him to believe that he was not "as impaired in driving ability as he actually was". For that reason, his Honour considered the offence less serious than if the applicant had consumed the drug "solely for its pleasurable effects". However, his Honour continued: Nevertheless, to consume a significant quantity of a drug and then to embark upon a long journey as a driver, with an eight month pregnant woman in the car with him, when he should not have been driving at all and was on bail for serious criminal offences, is indicative of a serious abandonment of responsibility. 14 Otherwise, the subjective material persuaded his Honour that the applicant's rehabilitation would require involvement in community based programs for drug treatment and personal development. To that end, he found special circumstances so as to justify a modest departure from the statutory proportion between sentence and non-parole period. This, he concluded, would leave the applicant with a period of parole eligibility sufficient to foster his rehabilitation, while imposing a non-parole period which properly reflected the objective gravity of his offence. He also had regard to the fact that it might be difficult to monitor the treatment of the applicant's Tourette's disorder in prison, and that the disorder might lead to his being socially isolated and vulnerable to mistreatment by other prisoners. The Application 15 Counsel for the applicant, Mr Segal, challenged his Honour's findings of fact for the purpose of sentence and aspects of his Honour's approach to sentence. For the most part, I find those arguments unpersuasive. His Honour's remarks demonstrate a careful review of the evidence at the trial and the subjective material, and address all relevant sentencing considerations. However, there is one matter raised by Mr Segal which, in my view, has substance. 16 From the passage in the remarks on sentence quoted above, it appears that, in determining that the offence amounted to a "serious abandonment of responsibility", his Honour had regard to the fact that the applicant was a disqualified driver and was on bail for other offences. Clearly, his Honour used the expression "abandonment of responsibility" in the context of the guideline promulgated in Whyte (supra). However, the notion of abandonment of responsibility or high moral culpability in the guideline is directed to the objective gravity of the offence. It is concerned, where relevant, with the extent to which the driver was affected by alcohol or a drug and, generally, with the course of driving and the danger posed by it in its attendant circumstances. So much is apparent from the aggravating factors, on which a finding of abandonment of responsibility might be based, referred to by the Chief Justice in Whyte at [216] - [217]. 17 It does not appear to me that the fact that a driver was disqualified, let alone the fact that he or she was on bail for other offences, is relevant to that assessment. Of course, they are matters relevant to sentence generally as they bear on the issue of deterrence, both personal and general. However, I am satisfied that his Honour fell into error in taking them into account on the question of abandonment of responsibility. Accordingly, this Court's discretion to re-sentence the applicant is enlivened. Re-sentence 18 In all the circumstances, I am satisfied that a lesser sentence than that which his Honour passed is warranted. True it is that this was a serious offence, with dreadful consequences. Appropriate weight must be afforded to considerations of retribution and deterrence, the latter heightened by the fact that the applicant was a disqualified driver and subject to conditioned liberty at the time of the accident. However, this was also a sad and unusual case. 19 I have referred earlier to his Honour's observation that three of the features of a typical case referred to by the Chief Justice in Whyte at [204] were absent, warranting a sentence above the two year guideline. I accept that a sentence above the guideline is called for, given the circumstances of the offence and the unfavourable aspects of the applicant's antecedents. However, there are two other features of a typical case to which the Chief Justice referred which are absent, and their absence favours the applicant. They are that the victim of the offence is a stranger, and that the driver or the driver's intimates suffered "no or limited injury". 20 Here, of course, the victim was the applicant's partner. Moreover, there was before his Honour a handwritten statement of Ms Porter in which she spoke highly of the applicant's conduct in his relationship with her, and made it clear that she forgave him for what had occurred and saw their relationship as enduring for life. Moreover, the applicant himself was badly injured, and he also suffers the loss of their unborn child. 21 The applicant is a young man who has had a difficult background because of his medical problems. Of particular concern is his Tourette's disorder which, as his Honour said, is likely to make prison life very difficult for him. 22 I would maintain his Honour's finding of special circumstances, which was well founded in the subjective material. That said, I am mindful of the need for the non-parole period to be adequate to reflect the applicant's criminality. The appropriate sentence, in, my view, is imprisonment for 3 years with a non-parole period of 1 year and 9 months. 23 I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court. In lieu, I would sentence the applicant to a non-parole period of 1 year and 9 months, commencing on 18 December 2006 and expiring on 17 September 2008, and a balance of term of 1 year and 3 months, commencing on 18 September 2008 and expiring on 17 December 2009. I would direct that the applicant be released on parole on 17 September 2008. 24 LATHAM J: I agree with Hidden J. ********** 10/07/2008 - typing error - name of counsel - Paragraph(s) cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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