New South Wales Court of Criminal Appeal CITATION: BROOKS v REGINA [2009] NSWCCA 265 HEARING DATE(S): Tuesday 22 September 2009 JUDGMENT DATE: 3 November 2009 JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 2; Hall J at 3 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - applicant pleaded guilty to 2 counts of aggravated dangerous driving causing grievous bodily harm - applicant suffered injuries - whether sentencing judge failed to take into account extra curial punishment of applicant into mitigation - sentencing judge adequately took into account the applicant's injuries and the effect upon his health and experience in gaol - appeal dismissed LEGISLATION CITED: Crimes Act 1900 Regina v Allpass (1993) 72 A Crim R 561 Regina v Azar [2000] NSWCCA 26 Regina v Badanjak [2004] NSWCCA 395 CASES CITED : Regina v Burrell (2004) 114 A Crim R 207 Regina v Daetz; Regina v Wilson (2003) 139 A Crim R 398 Regina v Clampitt-Wotten (2002) 37 MVR 340 Regina v Smith (1987) 44 SASR 587 at 589 Whybrow v Regina [2008] NSWCCA 270 PARTIES: Kevin BROOKS v REGINA FILE NUMBER(S): CCA No 2007/14767 COUNSEL: C: M Grogan A: M Dennis SOLICITORS: C: S Kavanagh A: S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/1234 LOWER COURT JUDICIAL OFFICER: Graham ADCJ LOWER COURT DATE OF DECISION: 8 August 2008 IN THE COURT OF CRIMINAL APPEAL 2007/14767 MCCLELLAN CJ at CL BUDDIN J HALL J TUESDAY 3 NOVEMBER 2009 KEVIN GEORGE BROOKS v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hall J. 2 BUDDIN J: I agree with Hall J. 3 HALL J: This is an application for leave to appeal against sentences imposed by Graham ADCJ in the District Court on 8 August 2008. The applicant pleaded guilty in the Local Court to two counts of aggravated dangerous driving occasioning grievous bodily harm contrary to s.54A(4) of the Crimes Act 1900. Both offences arise from an incident on 5 September 2006. 4 The offence carries a prescribed maximum penalty of imprisonment for 11 years. After allowing a 25% discount for the applicant's early plea, his Honour sentenced the applicant to a total term of three years and six months, comprised of a non-parole period of two years and a balance of term of 18 months. That ratio of the total effective non-parole period to total effective parole period was 57%. The individual sentences were:- (1) On the charge relating to Andrew Coppin, a non-parole period of 18 months commencing on 8 August 2008 to expire on 7 February 2010 with a balance of term of 18 months to expire on 7 August 2011. (2) On the charge relating to Alan Brennan, a non-parole period of 18 months commencing on 8 February 2009 to expire on 7 August 2010 with a balance of term of 18 months to expire on 7 February 2012. 5 Additional matters of drive unregistered and drive uninsured were taken into account on a Form 1 in relation to Andrew Coppin. Charges concerning such matters attract maximum penalties by way of a fine only. 6 An agreed statement of facts had been put before the court. On 5 September 2006, the applicant had been drinking at the Brew House Hotel, Blacktown with two friends who were the two victims in these proceedings, Andrew Coppin and Alan Brennan. At about 2.30 pm, the applicant and his two friends got into the applicant's vehicle, an unregistered custom built hot rod, with the applicant driving. The applicant was travelling at a speed of 60 kilometres per hour in a 50 kilometre per hour zone. The applicant lost control of the vehicle and mounted the curb. The vehicle continued to roll a number of times with all occupants of the vehicle ejected as no seat belts were fitted. The vehicle collided with a tree, a steel power pole and then a front boundary fence of a house. 7 The occupants were admitted to Westmead hospital with serious injuries. The applicant's blood alcohol content was 0.162 g/100 ML. The applicant suffered serious leg and vertebrae fractures. 8 In the written submissions for the applicant, reference was made to the submissions on sentence concerning the applicant's injuries and physical ailments. Those submissions referred to a range of medical problems afflicting the applicant. The submissions were expressed in the following terms:- "… The glass eye, the hearing aids, the body brace, the walking stick, the hip replacement. You've heard that when he needs to clean his feet or bend down he has to get his wife to help him to reach those extremities of his body. So clearly we have a man who, because of his large number of problems, will find life in gaol very difficult. He'll find it difficult because he won't have anyone to help him. He will find it difficult because he can't defend himself if he needs to. He will find it difficult because he can't, if he's having a shower, he doesn't have his hearing aids in, he can't hear anyone approaching him, if he's got his glass eye out he's only got the vision of his left eye. And that would mean that, it's not only harder in gaol but it's much more dangerous for Mr Brooks in gaol, so in my submission your Honour could mitigate the sentence because of the very difficult time that Mr Brooks is going to experience in gaol." (Transcript, 25 July 2008 at pp.27.3 to 27.20) The ground of appeal 9 The single ground of appeal relied upon by the applicant is that his Honour failed to take into account the extra curial punishment suffered by the applicant as a matter in mitigation. 10 At the sentencing hearing, the applicant presented medical evidence concerning his injuries in the form of a report from Dr S P Ng. The applicant also gave oral evidence as to the difficulties he had been experiencing as a result of his injuries. The Crown does not contest that the applicant suffered a number of injuries as a result of his conduct. 11 It was submitted on behalf of the applicant that the sentencing judge did not take into account the extra curial punishment suffered by the applicant, and that patent error has been established. Mr Dennis of counsel for the applicant recognised that the sentencing judge did make some allowance for the injuries sustained by way of special circumstances, in particular, for the hardship that the applicant would experience in custody. However, it was submitted that the sentencing judge did not categorise the applicant's injuries which arose from the commission of the offences as "extra curial punishment" and, therefore, failed to take them into account in mitigation. 12 The Crown, on the other hand, submitted that his Honour did have regard to the injuries suffered by the applicant in the course of committing the offences. Remarks on sentence – references to the applicant's ill health 13 At pages 7 to 8 of his Remarks on Sentence, the sentencing judge referred to the applicant's injuries, including the fact that as a result of lumbar fractures, he continued to suffer from persistent back pain and was required to wear a back brace for support. The evidence indicates he already had chronic lower back pain due to an L5/S1 disc protrusion apparently related to a work injury in 1996. 14 In the Remarks on Sentence (at p.8), his Honour stated:- "His treating general practitioner reported that he sustained a closed head injury, L1 and L2 wedge fracture and a laceration of the left arm. The lumbar fractures were managed conservatively with a back brace, the wound on his left arm recovered with no complications and there were no further problems with the head injury. He was an in-patient at Westmead for 17 days. He continued to suffer from persistent back pain and continued to wear the back brace for support. He was still complaining of the back pain twelve months after the incident and complained of difficulty with prolonged sitting and standing a difficulty in getting around. He was referred to an orthopaedic surgeon for further opinion, but treatment remained conservative. The GP indicates that there are no active treatments for crush fractures." 15 Later in the Remarks on Sentence (at p.17), his Honour stated:- "By way of reminder of what happened on this occasion, he continues to wear a back brace as a result of the injuries which he sustained in this collision." 16 Finally, at p.20 of his Remarks on Sentence, his Honour referred to the back pain which the applicant continued to suffered from due to the crash incident on 5 September 2006. 17 I note at this point that no criticism has been made as to the accuracy or adequacy of the sentencing judge's references to the nature of the injuries and disabilities resulting from the offence. 18 His Honour referred to the view of the applicant's general practitioner that he would have "difficulty coping in a gaol environment should he be sentenced to full time custody. He had difficulty with lifting, bending, trunk twisting, prolonged sitting, or standing" (at p.8 of Remarks on Sentence). His Honour further commented on the applicant's health in relation to sentence at page 17 of his remarks on sentence as follows:- " It is submitted that his own poor health (he has a range of major health problems and had some difficulty even in washing his feet) would mean that life in gaol would be very difficult for him. He would not be able to obtain the assistance which he needs in washing. He would also be limited in his capacity to defend himself in custody and his hearing loss means that he would not be able to hear anything while he was in the showers because he would have to remove his hearing aid during that time. Clearly, there are a number of considerations which would sound, at least, by way of special circumstances, particularly his state of health … " 19 The sentencing judge proceeded to structure the sentences to reflect the special circumstances in the case, in particular, the circumstances of the health of the applicant and the additional hardship of any term of imprisonment (at p.20 of Remarks on Sentence). 20 Whilst the phrase "extra curial punishment" was not employed as a relevant factor in assessing an appropriate sentence, the Crown contended that his Honour did take the applicant's injuries into account in a manner that adequately reflected the fact that the applicant suffered, and continues to suffer, the physical consequences of his offending. The relevant principles 21 While it is the function of the courts to punish those who have committed crimes, a sentencing court, in determining what sentence it should impose, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence: Regina v Daetz; Regina v Wilson (2003) 139 A Crim R 398 at 411; cf Regina v Allpass (1993) 72 A Crim R 561 and Regina v Clampitt-Wotten (2002) 37 MVR 340. 22 While the health of the offender is relevant to the type and length of sentence imposed, generally speaking it will only be a mitigating factor when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health: Regina v Smith (1987) 44 SASR 587 at 589, cf Regina v Badanjak [2004] NSWCCA 395, Regina v Burrell (2004) 114 A Crim R 207 and Regina v Azar [2000] NSWCCA 26. 23 This is because the court is required to take into account all material facts and is required to ensure the punishment the offender receives is appropriate and not excessive. How much weight a sentencing judge should give extra-curial punishment depends, of course, on all the circumstances of the case: Regina v Daetz; Regina v Wilson (supra) at 411. 24 It was submitted on behalf of the applicant that the decision in Whybrow v Regina [2008] NSWCCA 270 has similar features to the present case. The applicant in that case also drove a vehicle while intoxicated, causing death and serious injury to three other road users. He sustained serious injuries in the collision. Although the sentencing judge referred to his injuries, the Court of Criminal Appeal inferred that he did not take the matter into account in sentencing the applicant. In the present case, the sentencing judge, as I have previously stated, specifically noted that the applicant's injuries were taken into account by way of special circumstances. This is not a case where the sentencing judge failed to mitigate the sentence at all by reason of the applicant's ill health. Consideration 25 There was a need for the sentencing judge to ensure that, in the evaluation of all relevant matters and in the exercise of the sentencing discretion, the sentence to be imposed was one that adequately reflected both the objective gravity of the offences and the applicant's culpability in relation to them. 26 The sentencing judge referred to a connection between the applicant's problem with alcohol and his criminal history and observed that aspects of retribution remained as strong in the case of a person who has demonstrated over many years:- "… a defiance of the law, particularly in relation to drink driving and driving whilst disqualified … There remains some need for individual deterrence. It cannot be overlooked that, in the past, the offender has been sentenced to terms of imprisonment as well as other less stringent orders, as a result of driving either while disqualified and/or driving with the prescribed concentration of alcohol. Those sentences, in the past, did not seem to act as any significant deterrent." (Remarks on Sentence, p.18) 27 In sentencing the applicant, the sentencing judge properly took into account the applicant's extensive history of driving offences. In the period 24 February 1974 to 10 May 2004, he was convicted of the offence of drive manner dangerous (two separate offences), the offence of negligent driving (three separate offences), the offence of dangerous driving, several offences of drive motor vehicle with a higher than prescribed concentration of alcohol, and on 16 June 1988, an offence of culpable driving occasioning grievous bodily harm for which he was sentenced to a total term of imprisonment of two years and six months with a non-parole period of 18 months. 28 In exercising the sentencing discretion, his Honour was entitled to give appropriate weight to the objective criminality of the offence and to ensure that the sentences imposed reflected the seriousness of the offences. The degree of accumulation in this case (six months) was not excessive. 29 The applicant's history of repeated offending associated with driving motor vehicles plainly indicated a continuing attitude of disobedience of the law. It is apparent that the sentence imposed by the sentencing judge was an appropriate one, having regard to the matters to which I have referred, including in particular, the applicant's past criminal history. 30 It is, in my opinion, plain beyond argument that his Honour specifically had full regard to the applicant's ongoing disabilities, including, in particular, his continuing back pain. In respect of his disabilities, his Honour observed "… He is, in that sense, deserving of some consideration by way of leniency and much of that consideration has flowed into the finding of special circumstances …" (Remarks on Sentence, p.20). 31 An examination of the transcript of the proceedings on sentence on 25 July 2008 indicates that counsel then appearing for the applicant did not in fact refer in the course of submissions to the concept of "extra-curial punishment". 32 The fact that the sentencing judge did not in terms refer to "extra curial punishment" does not indicate that his Honour failed to appropriately and sufficiently mitigate the sentences. His Honour took into account the effect and extent to which the applicant's injuries sustained during the offence would have upon his health, and his experience generally, in gaol. It was upon that basis that his Honour found special circumstances such as to warrant a measure of leniency. His Honour may not have used the phrase "extra-curial punishment", however, it cannot be said that he failed to take the matters which this phrase entails into account when sentencing the applicant. 33 I am of the opinion that the ground of appeal relied upon is without substance and that the appeal should be dismissed. 34 Accordingly, I propose the following orders:- (1) Leave to appeal granted. (2) Appeal dismissed. ********** 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.