New South Wales Court of Criminal Appeal CITATION: Mina Nashed v Regina [2010] NSWCCA 282 HEARING DATE(S): 19 November 2010 JUDGMENT DATE: 3 December 2010 JUDGMENT OF: Simpson J at 1; Price J at 2; Garling J at 50 Leave to appeal is granted. DECISION: In respect of the offence against s 11B(1)(a) of the Road Transport (Safety & Traffic Management) Act 1999, quash the sentence of 1 day imprisonment, but confirm the conviction and penalty of 6 months disqualification. Appeal otherwise dismissed. CATCHWORDS: CRIMINAL LAW – Sentencing – Dangerous driving causing death – Where applicant was sleep deprived – Guidelines for sentencing – Whether this should be considered a typical case within the meaning in Whyte – Whether error in failing to determine the moral culpability of the applicant's conduct – Factors pointing towards the assessment of moral culpability – Whether the applicant had abandoned the responsibility which comes when driving a vehicle on the highway. - CRIMINAL LAW – Sentencing – Offence of driving with an illicit drug present in the applicant's blood – Where sentencing judge imposed a sentence of imprisonment for 1 day – Where the maximum penalty for the offence was to impose a fine. Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Road Transport (Safety & Traffic Management) Act 1999 R v Besant [2003] NSWCCA 388 R v Errington [2005] NSWCCA 348 CASES CITED : R v Gonzales [2006] NSWCCA 4 R v Jurisic (1998) 45 NSWLR 209 R v Takai [2004] NSWCCA 392 R v Whyte (2002) 55 NSWLR 252 PARTIES: Mina Nashed Regina FILE NUMBER(S): CCA 2009/72980 COUNSEL: P. Boulten SC (Appellant) D. Arnott SC (Crown) SOLICITORS: J. Nashed (Appellant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/7298 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 3 March 2010 LOWER COURT MEDIUM NEUTRAL CITATION: R v Mina Nashed IN THE COURT OF CRIMINAL APPEAL 2009/72980 SIMPSON J PRICE J GARLING J FRIDAY, 3 DECEMBER 2010 MINA NASHED v REGINA Judgment 1 SIMPSON J: I agree with Garling J. 2 PRICE J: I agree with Garling J. 3 GARLING J: On 10 May 2009, Mina Nashed, the applicant, was driving a rented Mitsubishi Canter van, south along the Pacific Highway at Tyagarah in the northern part of New South Wales. His vehicle struck and killed Ms Milli O'Nair who was cycling south along the very left hand edge of the highway. 4 The applicant pleaded guilty to a number of offences before the District Court of NSW at Lismore. On 3 March 2010, Black DCJ passed sentence upon him. 5 He now seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the sentence. He submits that the sentence was attended by error in two respects, and that a reduced sentence ought be imposed by this Court. 6 For the reasons which follow, I am of the opinion that whilst leave to appeal ought be granted, the applicant's sentence ought not be reduced. The appeal will, with one exception, be dismissed. Charges 7 The applicant faced an indictment which contained one count, and two related offences which were referred to the District Court under s 166 of the Criminal Procedure Act 1986 for sentence. The three matters were: (a) An offence against s 52A(1)(c) of the Crimes Act 1900, namely: "On the 10th day of May 2009, at Tyagarah, in the State of New South Wales, [he] did drive a vehicle, to wit, Mitsubishi Canter New South Wales registered number AF79SO, when it was involved in an impact occasioning the death of Milli O'Nair, and at the time of impact the [applicant] was driving the vehicle in a manner dangerous to other persons." (b) An offence against s 9(2)(a) of the Road Transport (Safety & Traffic Management) Act 1999, namely that the applicant drove on the Pacific Highway with a concentration of alcohol in his blood of 0.055, which amounted to a low range PCA; and (c) An offence against s 11B(1)(a) of the Road Transport (Safety & Traffic Management) Act , namely that at the time of driving on the Pacific Highway, there was in the applicant's blood an illicit drug, Delta-THC (cannabis). The reading was 0.10mg/L. Plea of Guilty 8 The applicant first entered a plea of guilty before the Lismore Local Court on 3 November 2009, to the indictable offence. He also indicated at that time that he would plead guilty to the two related charges. 9 Having been committed for sentence, the applicant adhered to his guilty pleas before Black DCJ. 10 The Crown accepted before Black DCJ, and his Honour found, that the applicant had pleaded guilty to the offences at the earliest available opportunity. Sentences Imposed 11 Black DCJ imposed the following sentence: (a) On the dangerous driving causing death offence for which a maximum penalty of 10 years imprisonment is fixed by the legislation – imprisonment for 3 years to commence on 3 March 2010, with a non-parole period of 2 years. The applicant was also disqualified from driving for a period of 5 years. (b) On the low range PCA offence – imprisonment for 1 day and a 6 month licence disqualification period commencing 3 March 2010. (c) On the illicit drug offence – imprisonment for 1 day and a 6 month licence disqualification period commencing on 3 March 2010. Facts and Circumstances 12 The Crown and the applicant agreed on a statement of facts which was tendered to Black DCJ. 13 Relevantly, the agreed facts included the following: (a) On the evening of Thursday, 7 May 2009, whilst in Sydney, the applicant slept for only a couple of hours. (b) Early in the morning of Saturday, 9 May 2009, the applicant left Sydney at about 3am to drive to Brisbane in the Mitsubishi Canter "Thrifty" Pantec vehicle. He was accompanied by his father and a friend Mushari Faris. The van was loaded with furniture because the applicant was moving from Sydney to Brisbane. (c) The applicant arrived in Brisbane and completed unloading the van at about 4pm. He then had a meal. (d) At about 8pm, the applicant and Faris drove the van down to the Gold Coast, arriving there at about 10pm. The applicant consumed rum, which he mixed with a number of Red Bull drinks. Together with Faris, he then visited two night clubs. He returned to the van at about 3.30am to sleep. (e) The applicant slept until about 5.30am and then walked around a bit to try and sober up. (I note that in his evidence on the plea, the applicant said that he woke at about 5am and walked on the beach for about ½ hour). (f) The applicant, with Faris as his passenger, left the Gold Coast to drive to Sydney. It was his intention to return the vehicle by 4pm to the depot in Parramatta. (g) At sometime after starting to drive, the applicant had trouble staying awake, and he had trouble concentrating. After he left Surfers Paradise, he stopped to purchase a bottle of water. He continued on with his window down, drinking the water but still had trouble concentrating. (h) Between leaving Surfers Paradise, and the area of the collision, the applicant said that his attention would "… skip moments …" and that during these periods, which were agreed to be micro sleeps, the van would drift from one lane, halfway into the adjoining lane before the applicant realised what had happened. (i) About 10 minutes before the impact, the applicant admitted that he was sleepy, but decided to continue to Ballina where he would take a break. Other than making that decision, the applicant did nothing more to alleviate his drowsiness. He did not pull over and stop. (j) In the area of the impact, the Pacific Highway was a 100kmh zone. Ms Millie O'Nair was cycling south along the highway. She was on the left side of the road riding between the railing of a bridge, which was the overpass across the old railway line, and the solid white painted fog line. (k) The van, with the applicant at the steering wheel, drifted to the left side of the road and came into contact with the armed steel guard rail. It slid along the rail until the front of the van struck the rear tyre of Ms O'Nair's bicycle. (l) Ms O'Nair was thrown from her bicycle into the front of the van. She collided heavily, causing a large dent in the front of the van and shattering the windscreen. Ms O'Nair's body was thrown into, and then over, the bridge railings falling seven metres into the bushes below. It is likely that Ms O'Nair's death happened when her body collided with the windscreen. (m) The applicant was asleep at the time of the impact. He told police that he did not know what had happened. He stopped his vehicle about 400m south of the impact site in the first available space. (n) The van was extensively damaged. There were many marks on the van of the impact with Ms O'Nair. 14 In addition to the agreed facts, the applicant, in his sworn evidence on the sentence hearing, gave evidence of the following facts: (a) At the time of the offence, the applicant was 18 years' old; (b) He agreed that he had not slept much for several days before the collision; (c) He agreed that, prior to the collision, he had received a number of warnings about the fact that he was nodding off, and falling asleep. He agreed that he should have pulled over and stopped rather than continuing to drive; and (d) He said that he had not seen anywhere which was safe to pull off from the Highway in the 10 minutes before the collision. 15 Black DCJ, whilst the applicant was giving evidence, indicated that he intended to take judicial notice of the fact that there were many places where it was safe to pull off and stop in the 10 minute period prior to the location of the collision. Counsel then appearing for the applicant, took no objection to this course. The applicant, when asked in evidence was not in a position to contradict these features of which judicial notice was taken. 16 The essential features of the factual position can be expressed in this way: (a) The applicant was a P-plate driver who set out to drive from the Gold Coast to Sydney which was a lengthy journey. (b) He was seriously sleep deprived, having had only two hours sleep in 28 hours prior to the collision during which time he had driven from Sydney to Brisbane, and two hours sleep in the 24 hour period prior to that time. (c) Drowsiness, and falling asleep commenced at least ten minutes before the collision. Although he realised from warnings that he was falling asleep, and that the truck was drifting out of its lane, the applicant decided to continue driving to Ballina. (d) There were a number of places where the applicant could have pulled up and stopped driving but he did not do so. (e) The applicant's driving caused the death of Ms O'Nair. Grounds of Appeal 17 The first ground of appeal is the only one dealing with the indictable offence. It alleged error on the part of Black DCJ: "… by failing to determine the moral culpability of the Applicant's conduct …". 18 The second ground of appeal alleged that Black DCJ erred in sentencing the applicant to a term of imprisonment in respect of the illicit drug offence because the maximum available sentence was a fine. 19 The first of these grounds was contentious. The Crown agreed that an error had been made as outlined in the second ground. It will be convenient to deal with the consequence of that error at the conclusion of this judgment. Moral Culpability 20 The need for a determination by any sentencing judge of the extent of an offender's "moral culpability" is seen to arise from the guideline provided by this Court in R v Whyte (2002) 55 NSWLR 252 at 287, [229]-[230] where Spigelman CJ said: "The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case … should be: 'Where the offender's moral culpability is high, a full time custodial ….. sentence of less than three years (in the case of death) … would not generally be appropriate.' In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate." 21 The degree of moral culpability is "a critical component of the objective circumstances of the offence": Whyte at [205]. There are differing degrees of moral culpability arising from the particular facts of an offence, which range from low moral culpability, such as momentary inattention, to high moral culpability, described as an abandonment of responsibility: R v Errington [2005] NSWCCA 348 at [27]; R v Gonzales [2006] NSWCCA 4 at [12]. 22 There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (xi) set out in Whyte at [216] and [217]: see Gonzales at [13]. 23 One of the aggravating factors referred to in Whyte: "(vii) length of the journey during which others were exposed to risk", is relevant in this case. I agree with the judgment of Simpson J in R v Takai [2004] NSWCCA 392 at [39] where her Honour held that the journey contemplated by this factor "… was the intended journey and not the journey attenuated by the collision …". Sentencing Remarks 24 Black DCJ's remarks on sentence were perhaps somewhat discursive, but I bear in mind that they were delivered ex tempore whilst his Honour was no doubt, in the course of dealing with the usual list. 25 He referred to the agreed facts and noted those which would constitute aggravating factors within Whyte. He also found some facts in addition to those which were agreed, in particular that there were a number of places where the applicant could have pulled off safely and stopped in the 10 minutes preceding the collision with Ms O'Nair. He also found that he was not satisfied that the micro sleeps felt by the applicant only existed for 10 minutes. He found that it was likely that they had been occurring for a longer period. 26 He specifically referred to the necessity for him to assess the degree of moral culpability. He expressed the degree of the applicant's moral culpability, rather elliptically, by reference to his conclusion that the guidelines in Whyte mandated " … an immediate effective custodial sentence …", and further that no other available alternatives were appropriate. 27 I would understand his Honour to have expressed the opinion that the degree of the applicant's moral culpability was high within the meaning of that expression in Whyte at [229]. His Honour should have expressed the assessment at which he arrived more clearly. 28 In the course of the sentencing remarks, his Honour drew specific attention to the relevant factors which pointed towards the assessment of the applicant's moral culpability, which included: the sleep deprivation of the applicant, the length of his journey both from the Gold Coast to the collision site and the intended balance of the journey to Sydney, and the failure of the applicant to pull off the Highway and stop particularly in light of his recognition that he was falling asleep. His Honour concluded that the applicant's driving, in the state in which he was, presented "… a considerable risk …" to other motorists and to his passenger. 29 His Honour expressed on two occasions the firm conclusion that the applicant should never have left the Gold Coast at all to embark on the journey which he did. 30 Black DCJ also dealt with and had regard to the applicant's subjective circumstances. He noted that the applicant had " … had disadvantages in losses in his own family, he is young, he has a job, he has a fiancée, he has a future …". His Honour noted that the applicant's remorse, which he had expressed whilst giving evidence, was genuine. 31 He then noted that there were no aggravating factors of the kind referred to in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 32 His Honour then fixed a period of 4 years imprisonment, which he reduced by 25% to 3 years because of the applicant's early plea of guilty. His Honour then found special circumstances, upon which he relied to fix a non-parole period of 2 years. Discernment 33 As can be seen from the review of the sentencing remarks of Black DCJ, notwithstanding some infelicity of expression, his Honour was satisfied that there was a high degree of moral culpability in the applicant's conduct. His Honour was well justified in coming to that conclusion. 34 The factual position which I have encapsulated in paras 13, 14 and 16 above, demonstrates that there was clear evidence of aggravating conduct by the applicant and in a number of the respects enumerated in Whyte at [216]-[217]. 35 As well, in all respects, except one, namely, the utilitarian value of the guilty plea, the applicant fell within the typical case referred to by Spigelman CJ in Whyte at [204]. 36 In respect of the entry of the guilty plea, the learned trial judge allowed a discount of 25% from the sentence which he imposed. Senior counsel for the applicant argued that because the usual discount for a plea of limited utilitarian value was in the range of 10% to 20%, then the discount allowed by the trial judge meant that the sentencing judge should not have regarded the applicant as falling within the typical case described in Whyte at [204]. 37 The trial judge regarded this as a typical case within the meaning of that term in Whyte. He was correct to do so. The features described by Spigelman CJ in Whyte at [204] are each important, but they should not be treated as though they were essential features of a statutory pre-condition to the application of the guideline. What a sentencing judge is required to do, by reference to that list, is to make an assessment about whether the particular case has features about it which suggest that it is sufficiently within or akin to the frequently recurring case described in Whyte to mean that, for the purpose of the guidelines, it ought be regarded as a typical and not an exceptional case. This is what Black DCJ did, and correctly so, in this case. 38 The discount allowed to the applicant in this case by the trial judge was not such as would, having regard to all of the factors described in Whyte, mean that it was anything other than a typical, or frequently recurring, case for the purpose of the guideline. 39 It was argued that the commencing point of the sentence imposed was higher than that provided for by the guideline indicated in Whyte at [229]. But there are a number of matters which should be noted: (a) the terms of the guideline in Whyte at [229] make it plain that the suggested term of imprisonment is only a minimum. It does not suggest a maximum or even a median sentence; (b) the guideline is a "guide" or "check: Whyte at [232]; (c) the task of sentencing an offender is a typical case, falling within the guideline, nevertheless is to be undertaken by the exercise of a broad discretion taking into account all of the factors required by s 21A of the Crimes (Sentencing Procedure) Act : Whyte at [232]. (d) in the exercise of the sentencing task, whilst the guideline focuses on the objective circumstances of the offence, the offender's subjective circumstances also require consideration: Whyte at [233]. 40 The sentencing judge regarded, as he was entitled to do so, the moral culpability of the offence as being high. Whilst he has noted carefully the applicant's subjective circumstances, there was nothing which led him to impose any lesser sentence. He was correct to regard the subjective factors as not requiring any further discount of the penalty imposed. 41 It is clear that the legislature has always placed a premium upon human life. The real substance of this offence is not just the dangerous driving, but it being in association with the taking of a human life. This leads to a need for public deterrence and the need to ensure that adequate weight is given to the objective seriousness of the offence: R v Besant [2003] NSWCCA 388 at [33]; R v Jurisic (1998) 45 NSWLR 209 at 228. 42 In all of the circumstances, I am not satisfied that the applicant has made good his challenge to the sentence imposed upon him for the offence of dangerous driving causing death. 43 The applicant drove dangerously, and in so doing, killed Ms O'Nair. I agree with Black DCJ that the applicant was in no fit state to commence the very long intended journey from the Gold Coast to Sydney. He was very sleep deprived. He knew that he was falling asleep and on a number of occasions for a period of more than 10 minutes. He ignored those warnings and continued to drive. He could have, and should have stopped. I would be well satisfied that the applicant, notwithstanding his youth, had abandoned the responsibility which comes when driving a vehicle on the Highway. 44 Although I would grant leave to appeal, I would not be prepared to uphold this ground of appeal. Ground Two 45 This ground raised the issue of whether Black DCJ had erred in law by imposing a period of 1 day imprisonment, when the maximum penalty for the offence of driving with an illicit drug present in the applicant's blood, was a fine. 46 The Crown accepted that it was not open to Black DCJ to impose any period of imprisonment, and that accordingly he had erred. 47 There has been a clear case of error. The applicant, in his submissions, conceded that upholding of this ground would have no effect upon the ultimate sentence. 48 It is appropriate, because of the clear error, to quash the sentence of imprisonment for 1 day. There is no useful purpose to be served by imposing a fine or other penalty, in lieu of that penalty. 49 However, the conviction must stand. As well, the period of disqualification from driving of 6 months imposed by Black DCJ remains in place. Orders 50 I propose these orders: (1) Leave to appeal be granted; (2) In respect of the offence against s 11B(1)(a) of the Road Transport (Safety & Traffic Management) Act 1999: (a) quash the sentence of 1 day imprisonment; (b) confirm the conviction and penalty of 6 months disqualification. (3) Appeal otherwise 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.