Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Greaves [2014] NSWCCA 194 Hearing dates: 30.07.2014 Decision date: 29 September 2014 Before: Hoeben CJ at CL at [1] Beech-Jones J at [66] Hamill J at [75] Decision: (1) Allow so much of the appeal as concerns the imposition of a disqualification period on the respondent for the offence under s52A(3)(c) of the Crimes Act 1900 (NSW). (2) Set aside the disqualification period of 18 months imposed on the respondent under s188(2)(d)(ii) of the Road Transport (General) Act 2005 (NSW) for the offence under s52A(3)(c) of the Crimes Act 1900 (NSW). (3) The appeal is otherwise dismissed. Catchwords: CRIMINAL LAW - sentence appeal - dangerous driving causing grievous bodily harm - Crown appeal - failure by a sentencing judge to properly determine a level of moral culpability of respondent - failure by sentencing judge to properly assess the objective seriousness of offending - sentence imposed manifestly inadequate - need for Court to exercise residual discretion - extraordinary delay in sentence proceedings not the fault of respondent - substantial level of rehabilitation achieved - strong likelihood of interference with rehabilitation if custodial penalty imposed - inadequacy of period of disqualification - automatic periods of disqualification should apply - otherwise Crown appeal dismissed. Legislation Cited: Crimes Act 1900 - s52A(3)(c) Crimes (Sentencing Procedure) Act 1999 - s7(2), s10A Criminal Appeal Act 1912 - s 5DB, s5DB, s5DB(5)(b) Criminal Procedure Act 1986 - s166 Road Transport (Driver Licensing) Act 1998 - s25A(2)(a) Road Transport (General) Act 2005 - s188(2)(d) Road Transport (Safety and Traffic Management) Act 1999 - s9(3)(a), s16, s70(1) Cases Cited: Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Gonzales v R [2006] NSWCCA 4 Green v Queen; Quinn v The Queen [2011] HCA49; 244 CLR 462 Hei Hei v R [2009] NSWCCA 87 Ngati v R [2014] NSWCCA 125 R v Jurisic [1998] NSWSC 423; 45 NSW LR 209 R v Muldrock [2011] HCA 39; 244 CLR 120 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 Stanyard v R [2013] NSWCCA 134 R v TG [2010] NSWCCA 28 R v Veatufunga [2007] NSWCCA 54 Tzanis v R [2005] NSWCCA 274 RTA v Tamara O'Sullivan & Ors [2011] NSWSC 1258 Category: Principal judgment Parties: Regina - Applicant Saeed Greaves - Respondent Representation: Counsel: Mr P Ingram SC - Applicant Mr T Gartelmann - Respondent Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Applicant SE O'Connor, Legal Aid NSW - Respondent File Number(s): 2011/97815 Decision under appeal Date of Decision: 2014-03-04 00:00:00 Before: Jeffreys DCJ File Number(s): 2011/97815 Judgment 1HOEBEN CJ at CL: Offence and sentence The respondent pleaded guilty and was convicted on one count of dangerous driving causing grievous bodily harm, contrary to s52A(3)(c) Crimes Act 1900. The maximum penalty for this offence is 7 years imprisonment. The offence also carries an automatic disqualification from holding a driver's licence for a period of 3 years and where, if the Court thinks fit, any shorter period of not less than 12 months - s188(2)(d) of the Road Transport (General) Act 2005. 2The respondent also pleaded guilty to four related summary offences referred to the court on a certificate pursuant to s166 of the Criminal Procedure Act 1986. 3The related summary offences and the applicable maximum penalties and disqualification periods were as follows: Drive with a midrange prescribed concentration of alcohol, contrary to s9(3)(a) Road Transport (Safety and Traffic Management) Act 1999 - imprisonment for 9 months with an automatic disqualification of 3 years reducible to 12 months. Fail to stop and assist after impact causing injury, contrary to s70(1) Road Transport (Safety and Traffic Management) Act 1999 - imprisonment for 18 months with an automatic disqualification period of 3 years reducible to 12 months. Drive while suspended contrary to s25A(2)(a) Road Transport (Driver Licensing Act 1998 - imprisonment for 18 months with an automatic disqualification period of 2 years. Wilfully alter concentration of alcohol contrary to s16 Road Transport (Safety and Traffic Management) Act 1999 - imprisonment for 18 months with an automatic disqualification of 3 years reducible to 12 months. 4In relation to the count of dangerous driving causing grievous bodily harm, Jeffreys DCJ imposed a sentence of 19 months and 17 days to be served in the community by way of Intensive Correction Order, pursuant to s7(2) of the Crimes (Sentencing Procedure) Act 1999, such ICO to commence on 12 March 2014. His Honour disqualified the respondent from driving for 18 months from 4 March 2014. 5In relation to the offences on the s166 certificate, the disqualification periods were as follows: Midrange prescribed concentration of alcohol - convicted pursuant to s10A with no other penalty and disqualified from driving for 12 months. Fail to stop and assist after impact causing injury - convicted pursuant to s10A with no other penalty and disqualified from driving for 18 months. Drive while suspended - convicted pursuant to s10A with no other penalty and disqualified from driving for 2 years. Wilfully alter concentration of alcohol - convicted pursuant to s10A with no other penalty and disqualified from driving for 18 months. 6The Crown has appealed pursuant to s5DB of the Criminal Appeal Act 1912 against the application of s10A of the Crimes (Sentencing Procedure) Act 1999 whereby the respondent was convicted of the four related summary offences without imposing any other penalty. The Crown also relied upon s5DB(5)(b) of the Criminal Appeal Act 1912 which gives power to the Court of Criminal Appeal to hear and determine an appeal in related summary offences. 7The appellant relies upon the following grounds of appeal: Ground 1: His Honour erred in failing to determine the level of moral culpability of the respondent and/or the level of objective seriousness of the offence of dangerous driving causing grievous bodily harm contrary to s52A(3)(c) Crimes Act 1900 thus leading to the imposition of a manifestly inadequate sentence. Ground 2: His Honour erred in ordering that the sentence for the s52A(3)(c) offence be served by way of intensive correction order. Ground 3: the sentence imposed for the s52A(3)(c) offence of dangerous driving occasioning grievous bodily harm is manifestly inadequate. Ground 4: His Honour erred in giving the respondent's subjective case greater weight than was warranted such that it impermissibly ameliorated the sentence imposed. Ground 5: His Honour erred in failing to take into account the fact that the respondent was on bail at the time of the offences. Ground 6: His Honour erred in the manner in which he took into account the mental illness and intellectual capacity of the respondent. Ground 7: His Honour erred in giving greater weight than was warranted to rehabilitation, thus diminishing the importance of punishment and denunciation. Ground 8: His Honour erred in disposing of the four related summary offences on the s166 certificate by convicting the respondent without imposing any other penalty pursuant to s10A Crimes (Sentencing Procedure) Act 1999. Ground 9: His Honour erred in imposing sentences that are manifestly inadequate. Factual Background 8On 26 March 2011 the respondent was helping his sister move house. During the afternoon he was at a friend's house in Cedar Crescent in Leeton with other friends, Brent Hayes (the victim), Jasper Bush and Nicholas Tiffin. The respondent was drinking alcohol. 9At about 6.30pm Brent Hayes drove a white Ford utility to the intersection of Cassia and Boronia Roads. In the vehicle at the time were the respondent and David Gordon. In the tray area of the utility were Jasper Bush and Nicholas Tiffin. The group spent about 5 - 10 minutes in this area doing burnouts. 10At approximately 6.50pm the respondent got into the driver's seat of the utility. In the front seat of the vehicle were Nicholas Tiffin and David Gordon. On the rear tray were Brent Hayes and Jasper Bush. Gordon, Hayes and Bush were unsecured. 11The respondent drove the utility in a southerly direction towards Leeton. The designated speed limit on Cassia Road was 60 kilometres per hour. The designated speed into Leeton was 50 kph. Cassia Road was a semi-rural, bitumen roadway situated on the northern outskirts of Leeton. No centre line or fog lines were marked on the road. The width of the road was 5 metres, widening to 7 metres at the relevant bend. 12While driving in the 60 kph area, the respondent reached speeds of 100 kph. He was warned by Mr Gordon that he was travelling too fast and that there were tight bends in the road ahead. Mr Gordon was holding onto the hand bar to steady himself as the respondent negotiated three bends in Cassia Road. As he approached the vicinity of a left hand bend near Farm 244, he slowed to 90 kph. It was at that time that Mr Tiffin also warned him to slow down. 13The respondent told police that he was familiar with the road and that the intersection was a "real sharp corner". The respondent told the police that during the process of negotiating the bend, his speed was 60 - 70 kph. At this sharp bend in the road near Farm 244, the respondent's vehicle travelling in a southerly direction came into collision with and sideswiped a white van, driven by Mr Bell who was travelling in a northerly direction. 14Mr Bell travelled on this roadway on an almost daily basis during the course of his employment and regarded the bend as "pretty dangerous" and as "a blind spot because you cannot see vehicles coming the other way". The collision occurred just on dusk. Mr Bell had his lights on. He saw the utility just as he was about to enter the bend. Mr Bell told police that he was travelling at 40 kph. Mr Bell straightened his van to take the corner from a wider point, as it was his perception that the utility was travelling at a speed which would result in the vehicles colliding. 15After the collision, the utility continued to travel in a southerly direction and did not stop at the scene. As a result of the collision it started to fishtail with the respondent failing to maintain control. The utility went onto the wrong side of the road, ran off the road and travelled in a table drain for approximately 100 metres. It then ran over a culvert causing the rear tray passengers to be thrown from the vehicle onto the nature strip on the road. 16The utility came to a stop some metres further on. The respondent told police that he saw that Brent Hayes was lying motionless on the ground and that he "panicked" knowing that he was not supposed to be driving due to current bail conditions restricting him from driving. The respondent left the scene of the accident and continued driving in a southerly direction to a friend's house at 73 Teatree Avenue. 17Subsequently the respondent parked the damaged utility in front of his house and walked back to the scene of the collision. He told police that during this walk back to the scene, he consumed about one quarter of a 700 millilitre bottle of Galliano Sambuca, which he had in the utility. 18As a result of being thrown out of the utility Brent Hayes sustained serious spinal injuries. These included a fracture dislocation at the T10/11 level, resulting in the loss of the use of his legs, fractures at the C6 and 7 levels, fractures of the ribs in seven places, an undisplaced fracture of the sternum, bilateral pneumothoraces and a laceration of the right lobe of the liver. He has been left a paraplegic. When the respondent arrived back at the scene, he was met by several members of the public who were assisting the victim. The respondent was picked up by his sister and after going to her residence, was taken to the Leeton Police Station where he handed himself into to police at about 8.25 pm. 19The respondent was subjected to a breath test at 8.42pm which provided a positive result. Expert analysis of the evidentiary material in relation to the respondent's consumption of alcohol established that at the time of the impact, his blood alcohol reading was no less than 0.149 grams of alcohol per 100 litres of blood. 20The respondent took part in an electronically recorded interview, during which he made admissions to police that he was the driver of the vehicle involved in the collision on Cassia Road which ultimately caused the injuries to the victim. Subjective features 21The following subjective features were not in dispute. The respondent was aged 21 at the time of the offence and 24 at the time of sentence. He had prior convictions for relatively minor offences, dealt with in the Local Court, but had been convicted of drive while suspended and drive with a high range prescribed concentration of alcohol on 6 May 2011. These offences were committed on 5 March 2011, only a few weeks prior to the offences presently under consideration. He was disqualified from driving for 2 years from 5 March 2011. His licence was suspended on 16 February 2011, following a speeding offence. 22The respondent relied upon a report of a psychologist, Dr Susette Sowden, dated 26 October 2012. Ms Sowden administered a number of tests. As of that date, she expressed the following opinion: "In the case of Mr Greaves, it appears from his account of his difficulties during adolescence that he manifested tendencies towards a Conduct Disorder with him commencing drinking alcohol when he was in his mid teens and using illicit substances when he was 18 years of age. A protective factor for Mr Greaves appears to have been the support and structure offered to him by his mother, stepfather and his maternal grandfather, along with his employer. It appears that while he enjoyed the structure offered to him by his family while resident in Glen Innes, he was able to have more focus in his life. He was able to complete an apprenticeship in welding in Glen Innes prior to returning to Leeton to be with his sister. In the light of Mr Greaves' impaired planning and non-verbal problem solving abilities, (as evidenced by his responses to the SB5 AIQ test battery), it is considered that without a strong support network that Mr Greaves would be more prone to behavioural dysregulation and difficulties in organising himself and creating structure in his life. In addition Mr Greaves appears to have anti-social personality tendencies with these tendencies being consistent with his engagement in polysubstance abuse within the context of him working and partying upon return to Leeton. Mr Greaves appears to have experienced more behavioural dysregulation away from the immediate support offered to him by his mother while he was resident in Glen Innes. His grief arising from his grandfather's death in 2010 and loss of support offered to him by his grandfather also appear to have been factors giving rise to his behavioural dysregulation upon his return to Leeton. His anti-social and nacissistic personality tendencies within the context of him having less family support help explain his willingness to breach his bail arising from being charged on 5 March 2011 and engage in reckless and impulsive alcohol fuelled behaviour giving rise to the accident on 26 March 2011. ... While Mr Greaves appears to have responded constructively to counselling and the drug rehabilitation program, of concern is his ongoing reported use of cannabis which facilitates his general avoidant approach to life. It is considered important for Mr Greaves to have the structure and support offered by counselling for him to minimise the probability of a relapse in relation to his former polysubstance abuse. Mr Greaves appears to have experienced significant remorse for his role in the motor vehicle accident on 26 March 2011, both in terms of the impact of his behaviours on his former brother-in-law and in terms of the impact on him. Mr Greaves appears to have experienced guilt about his role in the accident. His guilt and avoidance have made it difficult for him to continue a relationship with his former brother-in-law." 23A pre-sentence report, dated 27 August 2012, referred to the respondent's remorse and his participation in substance abuse counselling. The author noted that the respondent continued to use illicit substances on occasions. An updated report of 25 November 2013 made reference to his participation in GROW (a rehabilitation program) but noted that he was "asked to leave the program a few days before his required departure date as he had consumed alcohol". The report said that his progress had been positive overall. 24In the ICO assessment report of 27 February 2014, it was noted: The respondent had casual employment with a local construction business since January 2014. He had a history of alcohol abuse and ceased consumption following the offence but then commenced using cannabis developing very heavy daily use by early 2013; he was using other illicit drugs at this time. He attended the Peppers Residential Drug Rehabilitation Program in January 2012 but left after six weeks. He completed almost 6 months of the GROW program but was asked to leave a few days early due to alcohol consumption. Since leaving the GROW program, he reported he had not returned to substance abuse. The proceedings on sentence 25The proceedings in the District Court occupied 21 months. The applicant was committed for trial on 1 February 2012. The plea of guilty was entered on 12 June 2012. Thereafter, the matter was adjourned on 3 September 2012 for further evidence regarding the injuries to the victims. It was not reached on 14 October 2012 and adjourned to the next sittings on 29 October 2012. The sentence proceedings commenced before Jeffreys DCJ on 3 December 2012 and continued to 12 December 2012 when they were adjourned for an ICO assessment. The proceedings were adjourned on 13 March 2013, 14 April 2013, 29 April 2013 and 3 May 2013. On each occasion the basis for the adjournment was to enable the respondent to enter a rehabilitation program. On 24 May 2013 and 19 August 2013 the sentence proceedings were again adjourned to enable the respondent to complete a rehabilitation program. On 26 November 2013 the proceedings were adjourned for a further ICO assessment. The sentence proceedings concluded on 28 February 2014 and his Honour sentenced the respondent on 14 March 2014. 26The respondent was originally found unsuitable for an ICO because of his ongoing substance abuse problems. The outcome of his attendances at various rehabilitation programs has already been referred to. The second ICO assessment identified the respondent as suitable for such an order. The relevant findings in that assessment have already been set out. 27In the course of his remarks, the sentencing judge referred to the guideline decisions in R v Jurisic [1998] NSWSC 423; 45 NSW LR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. By reference to those cases, his Honour identified the "typical case" as follows: "Young offender of good character or 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, a plea of guilty of limited utilitarian value." 28By reference to other cases in which those guideline judgments had been considered, his Honour noted that the seriousness of the injury was relevant to the objective gravity of the offence (Tzanis v R [2005] NSWCCA 274 at [13]). The number of persons put at risk was relevant to culpability (R v TG [2010] NSWCCA 28 at [28]). His Honour noted that the factors listed in the guideline judgments as impacting upon culpability and objective seriousness were not exhaustive (Gonzales v R [2006] NSWCCA 4 at [13]). 29His Honour had regard to the respondent's previous criminal record, noting that in 2009 and 2012 he received fines and a bond to be of good behaviour in relation to behaving in an offensive manner. The most recent offence occurred on 5 March 2011 involving driving whilst suspended and driving with a high range prescribed concentration of alcohol in relation to which the respondent was fined and disqualified from driving for a period of 2 years. His Honour concluded that the only effect of this criminal record was that it disentitled him to the degree of leniency which he would have had, had he been a first time offender. His Honour declined to take the previous driving record into account as an aggravating factor. 30In relation to the objective seriousness of the offending, his Honour concluded as follows: "When I consider the aggravating factors in this matter in accordance with the Whyte guideline, so far as [i] is concerned the extent and nature of injuries inflicted, they are, in my view, catastrophic. In relation to (ii), the number of people put at risk, there were four people in the vehicle at the time, two were on the back tray including the victim and they were unrestrained and there was another passenger in the cab who was also unrestrained. So far as any degree of speed is concerned, I am not able to be satisfied beyond reasonable doubt as to the actual speed at the time of negotiating the corner. All I am able to say is that the speed was significantly more than driving round that particular bend warranted but I am not able to say to what degree. So far as the degree of intoxication or of a substance is concerned I note that at the time of driving the expert material establishes that he was driving with a blood alcohol content of 0.149." (ROS 15.4) 31His Honour declined to find that the applicant was showing off at the time. He said: "It is true that the offender received warnings but I am not convinced that he ignored those warnings. It seems that he was told to slow down when he was travelling in excess of 100 or around 100 but he did in fact slow down and he was told to slow down as he approached the corner and it appears that he slowed down from 90 to what he told the police between 60 and 70." (ROS 16.1) 32Although the respondent did not give evidence, his Honour found that he had shown deep contrition. His Honour reached this conclusion by reference to what was said in the pre-sentence report and in that of the psychologist, Ms Sowden. His Honour said: "In this matter it is my view that the offender and his relationship with his ex-brother-in-law indicate deep remorse and contrition on behalf of the offender and I propose to take that into account." (ROS 18.1) 33His Honour had regard to the psychologist's test results which showed: "Overall Mr Greaves' ABIQ is in the borderline impaired to low average range and greater than 8% of people in his age range. The non-verbal fluid reasoning sub-test provides a measure of non-verbal problem solving ability." (ROS 18.5) 34His Honour set out the findings of the psychologist in considerable detail. The particular matters noted by his Honour were that the applicant required a strong support network, otherwise his behaviour would deteriorate. The death of his grandfather in 2010 was a significant event which had a detrimental effect on his psychological welfare and behaviour. His Honour gave particular weight to the psychologist's finding that when the applicant moved to Leeton in circumstances where he did not have the same support network, his behaviour deteriorated significantly. According to the psychologist this was due to him experiencing depressive episodes and "an anti-social and narcissistic personality disorder and a schizo-typal personality disorder". 35His Honour set out in detail the conclusions of the psychologist: "It's considered important in understanding what happened to have insight into Mr Greaves' planning impairment and his very low nonverbal problem solving abilities. While he had strong scaffolding around him as he appeared to have at Glen Innes he appeared to more able to engage in more regulated and focussed behaviour. In the light of his developmental difficulties and disturbed emerging personality development in his early 20s and in the context of him having minimal scaffolding in Leeton it's not surprising Mr Greaves became engaged in a reckless lifestyle consisting to alcohol abuse and polysubstance abuse. With this in turn attracting criminal charges followed by a breach of bail and then eventually a serious incident involving a motor accident in which one of the passengers suffered serious injury." (ROS 20.5) 36By reference to what was said in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 and what was said by the High Court in R v Muldrock [2011] HCA 39; 244 CLR 120, his Honour concluded that because of his psychological difficulties, the significance of general deterrence and specific deterrence were substantially reduced. His Honour found that the respondent had good prospects of rehabilitation in that he had successfully completed a drug rehabilitation program. In formulating the length of the ICO, his Honour had regard to the fact that the applicant had experienced 4 months and 13 days of quasi custody, given the onerous bail conditions to which he had been subject. THE APPEAL 37The Notices of Appeal were served upon the respondent on 5 April 2014. 38Except for Ground 8, all of the grounds relied upon by the Crown are related. The essential complaint by the Crown is set out in Ground 9 and in that regard, Grounds 1 - 7 can be treated in effect as particulars of that ground. 39The complaint in Ground 1 that his Honour failed to determine the level of objective seriousness of the offending is made out. As was made clear in Muldrock at [27] the objective seriousness of an offence is to be distinguished from an assessment of an offender's "moral culpability" as referred to in [54]. It is in relation to that latter consideration that an offender's mental state, including any impaired intellectual functioning, is relevant. In his remarks on sentence, the sentencing judge made no attempt to differentiate the two concepts. 40Had his Honour properly approached his sentencing task, it was important that he make an assessment of the level of objective seriousness of the offending. It was not sufficient that he simply refer to considerations raised in Whyte but otherwise reach no conclusion. A proper assessment of the objective seriousness of the offending would inevitably have led to a conclusion that this was objectively a very serious offence and absent other considerations, required a significant custodial penalty. This was implicitly and appropriately conceded by counsel for the respondent in the appeal. 41A brief reference to the factors identified in Whyte make such a conclusion as to the objective seriousness of the offending clear. The nature and extent of the injuries suffered by the young victim were catastrophic. All four people in the vehicle were placed at great risk by the mode of driving, particularly the three who were unsecured. The degree of speed was clearly excessive in the circumstances and the only evidence that it was in the order of 60-70 kph at the time of the collision came from what the respondent said to the police at the time. His speed was such that at least two of his companions called on him to reduce it. 42The respondent's degree of intoxication was high, i.e. 0.149. His driving could only be described as erratic and aggressive. While there is some evidence (again from the respondent) that he did reduce his speed somewhat in response to the complaints by his passengers, that is hardly a matter which can be taken into account as reducing the objective seriousness of the offending. 43Finally, the respondent failed to stop, both after the collision with another vehicle and after the victim was ejected from the vehicle. There was, of course, the additional aggravating factor not considered in Whyte that at the time of this offending the applicant was on bail for a serious driving offence and should not have been driving. 44It should be understood that the factors set out in Whyte as indicative of a typical case do not operate as a checklist the presence or absence of which have some mathematical relationship with the sentence to be imposed. They merely describe the typical case. His Honour, however, appears to have used them in that way hence his focus upon a sentence of 2 years which was the recommendation for a "typical case" in Whyte where serious injury but not death was caused and which also had significance if the respondent were going to be subject to an ICO rather than an actual custodial sentence. 45Because his Honour did not properly consider the objective seriousness of the offending, he failed to appreciate that the respondent fell outside the typical case envisaged by Whyte in that the offending was more serious. The respondent was not of good character with no, or limited, prior convictions. On the contrary, he had committed a number of serious driving offences, was regularly abusing illicit substances and was in breach of his bail conditions. The finding of remorse was based on second hand reports and did not come directly from the respondent. In that regard, it should be noted that the court in Whyte was careful not to be unduly prescriptive in setting out a range of sentences for a "typical case". The court made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case below which a sentence would not generally be appropriate. Furthermore, the court in Whyte had in mind a fulltime custodial sentence, not an ICO. 46In Stanyard v R [2013] NSWCCA 134 Fullerton J (Bathurst CJ and Campbell J agreeing) noted at [40]: "40 The guideline judgment in Jurisic, and the further consideration given to it in Whyte, is not designed to operate in the way contended for by counsel. In so far as the guideline judgment refers to a numerical guideline it is directly referable to a typical case (which this case was not). Guideline judgments are not absolute directions for sentencing judges and not to be applied as if they operate as a minimum sentencing or standard sentencing regime. In accordance with the procedure provided for in s 37A of the Crimes (Sentencing Procedure) Act 1999, guideline judgments are attempts to achieve consistency in sentence with the ultimate goal of achieving equality and justice and to provide an opportunity for this Court to analyse sentencing principles for those offences where some unevenness or uncertainty of sentencing practice has emerged. Whilst guideline judgments are to be regarded as persuasive, they are not prescriptive (see R v Read [2010] NSWCCA 78 at [49])." 47As indicated, the evidence as to the serious nature of the offending was virtually all one way and made it clear that the offending here was more serious than that envisaged for the "typical case" in Whyte. Here there was a clear abandonment of responsibility of a significant kind by the respondent. 48Not only did his Honour not make an assessment of the objective seriousness of the offending, he gave no proper consideration to the "moral culpability" of the respondent. Rather, his Honour identified aspects of the respondent's subjective case without indicating how and to what extent they impacted upon his moral culpability. His Honour concluded that these were of such importance as to substantially offset the serious nature of the offending. 49The matters to which his Honour adverted were the respondent's remorse; his prospects of rehabilitation and the findings of the psychologist as to the respondent's level of mental functioning and personality disorders. While questions of remorse and rehabilitation were important, they are not relevant to moral culpability. The question of the respondent's mental health was relevant but apart from setting out extracts from the psychologist's report, his Honour made no attempt to indicate the extent of that relevance. Had he done so, it would have been clear to him that insofar as moral culpability was concerned, the psychological findings did not have the force which he gave them. 50While it is true that the respondent had a relatively low IQ, had personality defects and substance abuse problems, there was no evidence that the respondent acted without an appreciation of the seriousness and wrongness of his actions. On the contrary, the psychologist made it clear that the respondent well understood the seriousness of what he had done and its consequences. Although his Honour referred to De La Rosa and Muldrock, the factual circumstances of the respondent's mental health were far different and did not significantly reduce the respondent's moral culpability. 51On this issue, the observations of Beech-Jones J (with whom Rothman J and I agreed) in Ngati v R [2014] NSWCCA 125 are relevant. 52There Beech-Jones J said: "41 At the heart of the applicant's challenge to his Honour's sentence was his reliance on the following passage from the High Court's judgment in Muldrock v R [2011] HCA 39; 244 CLR 120 at [54] ("Muldrock"): "[54] The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." (emphasis added) ... 42 It was submitted that his Honour failed to recognise that, with persons who have an impaired intellectual capacity, an inquiry into their "moral culpability" must conform with the approach stated in the emphasised passage from Muldrock just noted. 43 Earlier in Muldrock, at [27], the High Court had noted that: "...objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 44 Paragraphs [27] and [54] of Muldrock have been considered on a number of occasions by this Court. It suffices to state that the reference to the "objective seriousness" of the offence as referred to in [27] of Muldrock is to be distinguished from an assessment of the relevant offender's "moral culpability" as referred to in [54]. An offender's mental state, including their impaired intellectual functioning, is clearly relevant to any assessment of the latter (McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing ("McLaren"); Elturk v R [2014] NSWCCA 61 at [34] per Beazley P). It is unnecessary to consider this further as it is clear that in the passage from the sentencing judgment set out above (at [40]) his Honour (correctly) used the phrase "offender's criminal culpability" in the sense of "moral culpability" as referred to in Muldrock at [54] and discussed by McCallum J in McLaren. 45 In this case it is not contended that the applicant was suffering from a "mental illness". However, it can be accepted that the intelligence testing revealed a deficit in the applicant's intellectual functioning that could answer the description "intellectual handicap". In Muldrock at [54] the High Court stated that questions as to a causal relation are less likely to arise in sentencing such offenders because they "lack ... capacity to reason, as an ordinary person might, as to the wrongfulness of [their] conduct" and this will, "in most cases", substantially lessen their moral culpability for the offence. This is illustrated by the facts in Muldrock. In Muldrock there was "unchallenged evidence of a causal relationship between the appellant's retardation" and his commission of sexual offences towards children (Muldrock at [55]). In particular, a psychiatrist had assessed the appellant in that case as being aware of the wrongfulness of his own conduct but had observed that it was "only a superficial awareness" (Muldrock at [52]), and a psychologist had concluded that he had little control over his "acting out behaviour" (Muldrock at [41]). 46 Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the applicant was "fully aware" that his conduct was "seriously wrong". Considered in this context, the finding that he was "fully aware" was clearly a reference to the applicant having a sufficiently deep understanding of its wrongful nature and consequences. 47 Thus, in terms of Muldrock, his Honour's findings reveal that, notwithstanding his low IQ, at least in relation to these offences the applicant did not "lack the capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct". This is not surprising for three reasons. First, because counsel for the applicant had, during the course of submissions, expressly disclaimed any suggestion to that effect. Second, because the degree of planning and the circumstances surrounding the commission of these particular offences suggested to the contrary. The applicant was clearly not acting out an impulse or tendency. His actions were not only cruel, they were also deliberate and methodical. Third, properly considered, the evidence given by Mr Howard and Dr Adams did not suggest to the contrary." 53Observations to similar effect were made by Simpson J (with whom Adams and McCallum JJ agreed) in Aslan v R [2014] NSWCCA 114 when commenting on the well-known principles relating to the sentencing of offenders suffering from an intellectual handicap or other mental problems which were summarised by McClellan CJ at CL in De La Rosa: "34 It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. 35 A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." 54Taking the evidence of the psychologist at its highest, the real problems identified by her in relation to the respondent at the time of offending were his personality defects in the context that he was away from his support mechanisms, i.e. his family, and the fact of his polysubstance abuse. What the psychologist did not assert in her report was that his relatively low IQ rendered him unable to understand the wrongness or potential consequences of his actions. 55It follows that his Honour's failure to properly assess the respondent's level of moral culpability, together with his failure to assess the objective seriousness of the offending, led to him imposing a sentence which was manifestly inadequate. 56In view of that conclusion and because of the way in which the appeal proceeded, it is not necessary to consider in further detail the individual grounds of appeal which I have treated as particulars of the essential complaint of manifest inadequacy which is raised by Ground 9. 57In relation to Ground 8, it is clear that the four summary offences were properly placed on the s166 certificate as they all arose from substantially the same set of circumstances as those of the offence on the indictment. However, the elements in each of the summary offences were not the same as the offence on the indictment. In particular, the criminality in each of the offences was not encompassed in the count on the indictment and was of a high order. Accordingly, it was not appropriate for his Honour to say he took those summary offences into account in the sentence imposed for the offence on the indictment and that it was not appropriate to impose a further penalty. 58Without repeating the facts, it is clear that each of the offences was an objectively serious example of the offending to which each related and warranted more than just a recording of the conviction without penalty. The respondent's traffic record was not a matter that justified leniency and in particular, the reduction of the automatic periods of disqualification to just 18 months. This was the second PCA offence committed by the respondent within a matter of months. This was his second offence of driving whilst suspended. It is significant that Mr Tiffen rendered assistance to the victim after he had been ejected from the vehicle but the respondent did not. Finally, the respondent only presented himself to the police after he had impeded their investigation by both removing the vehicle from the scene and disguising his alcohol consumption by consuming the Galliano Zambucca. 59Even though error has been identified in that the sentence imposed on the respondent was manifestly inadequate, there are difficulties in the Court re-sentencing the respondent so as to impose a custodial penalty. The offence occurred over 3 years ago. The plea of guilty was entered over 2 years ago. From the time of the entry of the plea of guilty, none of the delay has been due to any fault on the part of the respondent. 60From the time of the plea of guilty, the delay has been due to the way in which the sentence proceedings were conducted. In that regard, the sentencing Court invited and encouraged the respondent to attend rehabilitation courses and twice referred him for assessment for the suitability of an ICO. Although some vicissitudes have been experienced by the respondent in relation to the GROW program, he was generally successful in completing it. It would be fair to say that the sentencing court has given rise to a reasonable expectation on the part of the respondent that if he used his best efforts to rehabilitate himself by attending these courses and was otherwise suitable, he could expect to be sentenced to an ICO rather than fulltime imprisonment. The respondent has by now completed one-third of his ICO requirement in accordance with its conditions. 61This Court also needs to be mindful of the purpose of Crown appeals and the application where appropriate of the residual discretion as to whether or not it should proceed to re-sentence an offender in the case of a successful Crown appeal. Recent statements by the High Court have emphasised the importance of these considerations. 62In Green v Queen; Quinn v The Queen [2011] HCA49; 244 CLR 462 the plurality (French CJ, Heydon Crennan and Kiefel JJ) said: "1 The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion". 2 In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal." 63In this case some level of success in rehabilitation has been achieved and that progress may well be adversely affected if the respondent were given a fulltime custodial sentence. Moreover, there is actual evidence in affidavits filed by the respondent and his mother of real anxiety and distress being experienced by the respondent when he became aware of the Crown appeal. Taking those matters into consideration, and in particular the delay which has occurred in this matter, I am of the opinion that this is an appropriate case for the exercise of the Court's residual discretion not to re-sentence the respondent to a period of fulltime custody which otherwise would have been the appropriate sentence. 64That having been said, the period of disqualification from driving imposed on the applicant should be altered to provide an appropriate punishment and to provide some protection for the road users of New South Wales. Re-sentencing in relation to that issue will not in the circumstances of this case impose undue hardship on the respondent. Beech-Jones J has discussed this issue in more detail and I respectfully agree with his Honour's reasoning. 65Accordingly the orders which I propose are as follows: (1) Allow so much of the appeal as concerns the imposition of a disqualification period on the respondent for the offence under s52A(3)(c) of the Crimes Act 1900 (NSW). (2) Set aside the disqualification period of 18 months imposed on the respondent under s188(2)(d)(ii) of the Road Transport (General) Act 2005 (NSW) for the offence under s52A(3)(c) of the Crimes Act 1900 (NSW). (3) The appeal is otherwise dismissed. 66For the avoidance of doubt it should be noted that the effect of the above orders is that by operation of s188(2)(d)(i) Road Transport (General) Act 2005 (NSW) the respondent is disqualified from driving in accordance with the automatic disqualification period of 3 years from 4 March 2014 to 3 March 2017. 67BEECH-JONES J: I have had the advantage of reading a draft of the judgment of Hoeben CJ at CL. Subject to what follows I agree with His Honour's reasons and orders. 68At the time the respondent first presented for sentence the only proper sanction that could have been imposed for the offence under s 52A(3)(c) of the Crimes Act 1900 (NSW) was a full time custodial sentence. The offence involved excessive speed, significant alcohol consumption, reckless driving including repeated failures to take heed of warnings and the occasioning of serious injury to the victim. At the time of the offence the respondent was suspended from driving. 69Nevertheless I agree that this Court should exercise the residual discretion to dismiss so much of the appeal as does not concern His Honour's decision to reduce the automatic period of disqualification from driving. One significant factor warranting that course is the prolonged history of the sentence proceedings in the District Court. In the ordinary course the respondent should have been sentenced to a term of imprisonment by no later than December 2012. Instead the proceedings were repeatedly, and in my view needlessly, adjourned while he was assessed and reassessed for his suitability for an intensive corrective order. The end result is that he was not sentenced under March 2014 and this appeal could not be determined until the third quarter of 2014. Had at the outset it been properly recognised that a custodial sentence was required then, given the respondent's age and personal circumstances, it can be expected that the minimum term of any custodial sentence he should have received would have expired or be close to expiring by this time. No doubt in many cases this type of analysis will have little bearing on whether the residual discretion should be exercised in an offender's favour. However in this case when it is combined with the other factors noted by Hoeben CJ at CL I consider that this Court should not intervene to imprison the respondent. To do so would impair the progress towards rehabilitation that he has displayed. 70However this basis for declining to interfere does not justify allowing the disqualification period that was imposed to stand. In respect of the culpable driving offence, s 188(2)(d) of the Road Transport (General) Act 2005 (NSW) had the effect that, on his conviction, the respondent was subject to an automatic three year period of disqualification unless the sentencing court determined to order a shorter disqualification period of not less than 12 months (s 188(2)(d)(ii))). In this case His Honour imposed a disqualification period of 18 months on the basis that the effect of disqualification on a person living in a "country setting" was greater than those in the metropolitan areas who had access to public transport. This maybe so but it could never justify the imposition of a disqualification period below the automatic period for this offender. The sanction of disqualification exists for the protection of the public (R v Veatufunga [2007] NSWCCA 54 at [40] per Sully J). The prospect of the respondent driving a motor vehicle represents an unacceptable danger to both metropolitan and country drivers and pedestrians. 71Three of the offences on the s 166 certificate were also governed by the disqualification regime governed by s 188(2)(d) namely the offences of driving with prescribed concentration of alcohol, failing to stop and assist after impact causing injury and wilfully alter concentration of alcohol. For these offences his Honour reduced the automatic disqualification period to twelve months, eighteen months and eighteen months respectively. For the remaining offence on the s 166 certificate, namely driving while suspended, the respondent was automatically disqualified by reason of his conviction for a period of two years it being his second such offence within 5 years (see former s 25A(7)(a), 25A(10)(c) and 25A(11) of the Road Transport (Driver Licensing) Act 1998 (NSW)). For that offence the sentencing judge was conferred with a power to impose a greater period of disqualification however its exercise was not sought before His Honour or by this Court (former s 25A(7)(b)). 72Thus, the end result of the conviction and sentences was that the respondent was automatically disqualified from driving for a period of 2 years from the date of his conviction namely 4 March 2014 and received a series of court imposed concurrent disqualifications which collectively ran for a period of eighteen months. 73As noted, the reduction in the automatic disqualification period was completely unjustified. If the matter was at large I would propose the imposition of a disqualification period of in excess of three years. However the Crown's submissions in this Court were exclusively directed to His Honour's actions in reducing the automatic disqualification period for the culpable driving offence. These submissions may have reflected an acceptance that there was no power in the sentencing court to alter the commencing dates from which the respondent was disqualified (see RTA v Tamara O'Sullivan & Ors [2011] NSWSC 1258 at [28] per James J; Hei Hei v R [2009] NSWCCA 87 at [39] to [46] per Rothman J) which would preclude the periods being accumulated. Alternatively it might merely reflect the fact that no further period of disqualification was sought by the Crown before his Honour. As no argument was directed to this in my view the Court should simply set aside the disqualification period imposed for the culpable driving offence and leave the automatic disqualification period of three years for that offence to operate from 4 March 2014. 74Accordingly I agree with the orders proposed by Hoeben CJ at CL. As stated by Hoeben CJ at CL, for the avoidance of doubt it should be noted that the making of order 2 has the result that the respondent is disqualified for driving for a period of three years from 4 March 2014 (s 188(2)(d)(i) of the Road Transport (General) Act 2005 (NSW)). 75HAMILL J: I agree with Hoeben CJ at CL including his Honour's concurrence with what Beech-Jones J has written in relation to the disqualification period. ********** 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. Decision last updated: 29 September 2014