New South Wales Court of Criminal Appeal CITATION: Reubin Gary YOUNG v R [2009] NSWCCA 298 HEARING DATE(S): 2 July 2009 JUDGMENT DATE: 18 December 2009 JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 2; McCallum J at 32 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - manslaughter (motor vehicle) - plea of guilty - vehicle deliberately driven towards deceased to scare him - discount for plea of guilty - assessment of objective gravity of offence - whether sentence manifestly excessive LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment R v Borkowski [2009] NSWCCA 102 R v Thompson & Houlton [2000] NSWCCA 309, 49 NSWLR 383 R v Whyte [2002] NSWCCA 343, 55 NSWLR 252 CASES CITED : R v Cameron [2005] NSWCCA 359, 157 A Crim R 70 R v Do [2000] NSWCCA 459 R v Falzon [2000] NSWCCA 530 R v Lavender [2004] NSWCCA 120 Lawler v R [2007] NSWCCA 85, 169 A Crim R 415 PARTIES: Reubin Gary YOUNG (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/1253 COUNSEL: M Thangaraj & Kenneth Averre (Applicant) L Babb SC & M Rabsch (Respondent) SOLICITORS: (pro bono through Bar Association) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2007/193 LOWER COURT JUDICIAL OFFICER: Matthews AJ LOWER COURT DATE OF DECISION: 27/07/2007 IN THE COURT OF CRIMINAL APPEAL 2007/1253 McCLELLAN CJ at CL HIDDEN J McCALLUM J Friday 18 December 2009 Reubin Gary YOUNG v R Judgment 1 McCLELLAN CJ at CL: I agree with Hidden J. 2 HIDDEN J: The applicant, Reubin Gary Young, pleaded guilty before Matthews AJ to manslaughter. He was sentenced to imprisonment for 8 years, comprising a non-parole period of 5 years and a balance of term of 3 years. He seeks leave to appeal against that sentence. Facts 3 In the evening of 16 March 2006, the deceased was drinking with friends at a hotel in Newcastle. The applicant was drinking at the same hotel, also with a group of friends. The deceased and the applicant did not know each other. The applicant had a considerable amount to drink, and at the time of the offence was heavily affected by alcohol. 4 In the hotel there were verbal altercations between the two groups, the deceased and the applicant being the main protagonists. However, the conflict escalated after they left the hotel, particularly between the applicant, on one side, and the deceased and one of his companions, on the other. There was verbal abuse and some physical aggression, although not of a major kind. By this time it was the small hours of 17 March. 5 The applicant's car, a Nissan Patrol four wheel drive vehicle, was parked on the opposite side of the same street. Suddenly, without saying anything to his companions, he went to it. He started it, accelerated out, and drove towards a building opposite at what her Honour described as "some speed". The deceased was on the footpath in front of that building. The vehicle mounted the footpath and collided with him. 6 The applicant reversed the vehicle, drove away at speed and turned into an intersecting street. Soon afterwards he was apprehended by police. The deceased suffered massive head injuries and died in hospital, having suffered a cardiac arrest. 7 There was a dispute about the movement of the applicant's vehicle immediately prior to the collision, which bore upon whether the applicant had deliberately driven towards the deceased. On that issue four eyewitnesses gave evidence. Her Honour concluded that the applicant had deliberately turned the vehicle towards the deceased, at an angle of almost ninety degrees. His intention was to frighten the deceased but, as her Honour put it, his judgment being impaired by his intoxicated state, "he was unable to extricate himself from the situation which he had caused". Her Honour also found that he must have known that the deceased was at least injured when he tried to leave the scene. Subjective case 8 The applicant was able to make out a very favourable subjective case. He was 22 years old at the time of the offence. He had no criminal convictions, and he had only one violation of a relatively minor nature on his traffic record. Her Honour accepted that the offence was out of character, that he was genuinely remorseful, and that he had good prospects of rehabilitation and was unlikely to re-offend. The application 9 Two grounds of the application were filed, one challenging her Honour's assessment of the discount for the plea of guilty and the other her assessment of the objective seriousness of the offence. At the hearing Mr Thangaraj, who appeared with Mr Averre for the applicant, was granted leave to add a ground that the sentence is manifestly excessive. Discount for plea 10 Her Honour recorded in her remarks that the applicant was initially charged with murder, with an alternative count of aggravated dangerous driving causing death (s 52A of the Crimes Act). A few days before the matter was listed for trial he offered to plead guilty to manslaughter, and the Crown accepted that plea. On the first day of the trial his plea of guilty to manslaughter was accepted by the Crown in full satisfaction of the indictment. 11 Her Honour found that he was entitled to a reduction of sentence for the utilitarian value of his plea, but agreed with the Crown prosecutor that it should be towards the lower end of the scale of discounts because the plea was late. Her Honour added, "Moreover in this case, despite the plea of guilty, there has been a significant factual issue on sentence which has required the calling of several of the witnesses who would have given evidence on trial." In those circumstances, she allowed a discount of approximately 12 ½% for the plea. 12 Mr Thangaraj submitted that her Honour fell into error in the passage I have quoted by taking into account on the utilitarian value of the plea of guilty the fact that there remained a factual dispute, the resolution of which required the calling of witnesses. The principles relating to the assessment of a discount for the utilitarian value of a plea to be derived from the authorities were usefully summarised by Howie J in R v Borkowski [2009] NSWCCA 102 at [32]. Mr Thangaraj relied upon the following passage from that paragraph: "3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thompson at [119] to [123] …" 13 The reference to Thompson, of course, was to R v Thompson and Houlton [2000] NSWCCA 309, 49 NSWLR 383. The focus of the observations of the Chief Justice at [119] – [123] of that case was the advantage to witnesses, particularly victims, of being spared what for them might be the ordeal of giving evidence. It is for that reason that relieving witnesses of the obligation to give evidence was seen as bearing upon the offender's remorse, rather than the utilitarian value of the plea. 14 What I understand her Honour to have conveyed in the present case is that the need to resolve a factual dispute by calling evidence bore upon the extent to which the plea was "of advantage to the administration of criminal justice": Thompson at [122], because it involved an additional expenditure of court time and resources. I can see that that consideration might be relevant to the utilitarian value of a plea but, in the event, I find it unnecessary to express a concluded view about it. It was not decided in Borkowski, in which the respondent offender conducted a defended committal proceeding to test an issue of fact which did not need to be resolved before he entered a plea of guilty to manslaughter: see the judgment of Howie J at [21]. 15 The fact remains that the assessment of a discount for the utilitarian value of a plea is a matter very much within the discretion of a sentencing judge, depending upon the circumstances of the case at hand. The discount her Honour allowed was well within the available range for a late plea of guilty, as Mr Thangaraj acknowledged in oral argument. Putting aside the need to resolve the factual dispute, I cannot see that a discount of more than 15% could have been justified. Mr Thangaraj did not suggest otherwise. The difference between that figure and 12 ½% is hardly significant. This ground is not made out. Objective seriousness of the offence 16 In her remarks her Honour referred to R v Whyte [2002] NSWCCA 343, 55 NSWLR 252, the guideline judgment dealing with dangerous driving causing death or grievous bodily harm under s 52A of the Crimes Act. At [216] – [217] of that decision Spigelman CJ set out a number of aggravating factors established by authorities dealing with offences of that kind. Her Honour saw three of those factors as relevant to the present case: the extent and nature of the injuries inflicted upon the deceased, the degree of the applicant's intoxication, and his failing to stop after the collision. Her Honour continued: "To these aggravating features must be added the fact that, as I have already found, the offence occurred after the offender had deliberately turned his large, heavy vehicle so as to drive it in the direction of the deceased. This, in my view, must put the case amongst the more serious of its kind." 17 Mr Thangaraj submitted that it was not appropriate in the present case to have regard to those three features as matters of aggravation. He argued, firstly, that the nature and extent of the deceased's injuries were not relevant, as he died shortly afterwards. That feature would be relevant only in relation to a victim who survived. So much was conceded by the Crown Advocate, Mr Babb SC, who appeared with Ms Rabsch for the respondent. Of itself, however, this is a matter of little or no significance. 18 As to the degree of the applicant's intoxication, Mr Thangaraj noted that the present case is different from an offence of dangerous driving causing death. Her Honour found that the applicant had deliberately driven towards the deceased. That being so, he argued, his degree of intoxication was not an aggravating feature. Rather, it mitigated his criminality because it contributed to an act done on the spur of the moment and the product of impaired judgment. 19 However, as the Crown Advocate pointed out in written submissions, no doubt the applicant's intoxication reduced his inhibitions and made him more aggressive, "a common feature of most instances of alcohol-fuelled aggression by young men". There is force in his submission that the culpability of the offence was increased by the fact that the applicant "got behind the wheel after consuming so much alcohol, thereby putting others within his vicinity at serious risk …" Her Honour observed that he should never have been driving his vehicle in that state. 20 Her Honour took into account in the applicant's favour that the offence was not planned or premeditated but, rather, "was very much a spur of the moment one in which he clearly gave no thought to the possible consequences". Nevertheless, his intoxication was an important factor in the commission of the offence and, no doubt, was the reason why he failed to stop the vehicle before it struck the deceased. In my view, her Honour's assessment of the significance of his intoxication was entirely appropriate and demonstrates no error. 21 The same is true of the manner in which her Honour had regard to his failing to stop after the collision. Mr Thangaraj argued that his decision to leave the scene must itself have been the result of impaired judgment due to intoxication, and that any aggravation of his criminality by his doing so was minimal. Nevertheless, her Honour found that he "clearly knew at that stage" that someone had been injured in the collision, and noted that it was "a matter of pure chance" that police were in the near vicinity and that he was arrested very shortly thereafter. 22 Mr Thangaraj also challenged her Honour's assessment of the case as "amongst the more serious of its kind". Indeed, a little later in her remarks her Honour observed that "we have a very serious offence of its kind …" Mr Thangaraj noted that, in oral submissions to her Honour, the Crown prosecutor then appearing had placed the offence in the mid-range of objective gravity. Of course, in a manslaughter case as much as in other cases, it is necessary for a sentencing judge to assess the objective gravity of the offence. However, given the wide variety of criminality embraced by the crime of manslaughter, it is not easy to assign any particular case to a position within a notional range and I would question whether it is helpful to do so. This remains true even if consideration is limited to motor car manslaughter. 23 Mr Thangaraj sought to contrast this case with Borkowski (supra) and R v Cameron [2005] NSWCCA 359, 157 A Crim R 70, arguing that both those cases would fall in the category of "more serious" motor car manslaughter. Each was a Crown appeal, and in each case there had been a sustained and very dangerous course of driving which terminated in a fatal accident. In Borkowski, the respondent's car collided with a vehicle containing an elderly couple, both of whom were killed. In Cameron, the respondent's car collided with a telegraph pole, killing three passengers in the vehicle (and seriously injuring a fourth). 24 In Borkowski, for two counts of manslaughter the respondent had been sentenced to partly cumulative terms aggregating imprisonment for 9 years with an effective non-parole period of 6 years. The Crown appeal was dismissed but, as I shall explain, only in the exercise of the Court's residual discretion. In Cameron, the Crown appeal was allowed and an overall sentence of 8 years with an effective non-parole period of 4 years was increased to an aggregate term of 9 years with a non-parole period of 6 years. 25 There is no need to examine the facts of these cases in any detail. Undoubtedly, they were both very serious cases of manslaughter. It is to be noted, however, that in Borkowski Howie J, with whom McClellan CJ at CL and Simpson J agreed, said that the "very least sentence" that could have been imposed at first instance was an aggregate term of 12 years with a non-parole period of 9 years: [66]. The reason the Court did not intervene and impose such a sentence was that there was a co-offender upon whom a moderate sentence had been imposed which had not been the subject of a Crown appeal. The course of driving in that case was street racing between the respondent and two other vehicles. The driver of one of those vehicles died some time after the incident. However, the driver of the other vehicle was also dealt with for two counts of manslaughter and sentenced to an aggregate term of 8 years with a non-parole period of 5 years. Howie J considered that that co-offender could be seen as equally culpable for the deaths of the victims, and concluded that to increase the respondent's sentence would create a disparity such as to leave him with a justifiable sense of grievance: [67] ff. 26 In Cameron, in delivering the leading judgment, Grove J noted that the Court's intervention was subject to "the well established restraint when proceeding to re-sentence after a successful Crown appeal …": [41]. McClellan CJ at CL, agreeing with the orders proposed by his Honour, observed that "the accepted principles require the respondent to be sentenced at the lowest end of the available range", adding that "a significantly greater sentence may have been appropriate": [3]. 27 Serious as the facts of those two cases were, they did not involve deliberate conduct such as that exhibited by the present applicant. As her Honour made clear in the passage from her remarks quoted above, it was that feature of his conduct which led her to the conclusion that the case was among the more serious of its kind. That was a conclusion well open to her Honour. This ground also is not made out. Manifestly excessive? 28 Finally, Mr Thangaraj submitted that the sentence of 8 years with a non-parole period of 5 years is manifestly excessive. He relied on the matters argued in respect of the previous ground, and suggested that the appropriate sentence was in the order of 6 years with a non-parole period of roughly 4 years. 29 Such a sentence, in my view, would be inadequate to reflect the applicant's criminality, making all due allowance for his favourable subjective case. Mr Thangaraj can draw no comfort from Borkowski or Cameron for the reasons which I have explained. Those two cases are included in a schedule of decisions of this Court in motor vehicle manslaughter cases from the database of the Public Defenders' chambers, which Mr Babb supplied to us. 30 It is sufficient to refer to some other relatively recent cases on that schedule: R v Do [2000] NSWCCA 459, R v Falzon [2000] NSWCCA 530, R v Lavender [2004] NSWCCA 120 and Lawler v R [2007] NSWCCA 85, 169 A Crim R 415. As one would expect, those cases disclosed a wide range of criminality and the sentences imposed varied considerably. Viewed together, they do not demonstrate that the sentence which her Honour imposed was beyond the bounds of the proper exercise of discretion. It is not manifestly excessive. 31 Accordingly, I find none of the grounds of the application established. I would grant leave to appeal but dismiss the appeal. 32 McCALLUM J: I agree with Hidden J ********** 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.