Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Williams [2014] NSWCCA 200 Hearing dates: 19.09.2014 Decision date: 01 October 2014 Before: Hoeben CJ at CL at [1] Fullerton J at [50] Adamson J at [51] Decision: (1) Appeal allowed. (2) The sentence imposed by Judge Wilson SC on 14 May 2014 in quashed. (3) In lieu thereof, the respondent is sentenced to imprisonment with a non-parole period of 1 year and 9 months, commencing 14 May 2014 and expiring 13 February 2016, with a balance of term of 11 months expiring 13 January 2017. Catchwords: CRIMINAL LAW - sentence appeal - causing death by dangerous driving - Crown appeal - respondent engaged in street racing - excessive speed - innocent driver killed - applicability of guideline judgment in R v Whyte [2002] NSWCCA 343 - findings of high level of moral culpability and significant objective seriousness - importance of general deterrence - effect of respondent's subjective case - application of residual discretion - appeal allowed and sentence increased. Legislation Cited: Crimes Act 1900 - s52A(1) Crimes (Appeal and Review) Act 2001 - s68A(1) Criminal Appeal Act 1912 - s5D Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] R v Nguyen [2008] NSWCCA 13 R v O'Connor [2014] NSWCCA 53 R v Reeves [2014] NSWCCA 154 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 Regina v Paul Musumeci (Court of Criminal Appeal, unreported, 30 October 1997 Category: Principal judgment Parties: Regina - Appellant Crown Kurt Riley Williams - Respondent Representation: Counsel: Mr N Adams - Appellant Crown Mr T Gartelmann - Respondent Solicitors: S Kavanagh - Solicitor for Public Prosecutions - Appellant Crown SE O'Connor - Legal Aid NSW - Respondent File Number(s): 2012/369554 Decision under appeal Date of Decision: 2014-05-14 00:00:00 Before: Wilson DCJ File Number(s): 2012/369554 Judgment 1HOEBEN CJ at CL: Offence and sentence: On 24 March 2014 (on the morning fixed for the commencement of the trial) the respondent pleaded guilty to one count of causing death by dangerous driving contrary to s52A(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years. 2On 14 May 2014 Judge Wilson SC in the District Court at Newcastle sentenced the respondent to imprisonment with a non-parole period of 1 year and 4 months, commencing 14 May 2014 and expiring 13 September 2015, and a balance of term of 11 months expiring 13 August 2016. Her Honour also imposed a 3 year disqualification from driving which commenced on 14 May 2014. 3The Director of Public Prosecutions has appealed against that sentence pursuant to s5D of the Criminal Appeal Act 1912. The Notice of Appeal was served upon the respondent while in custody on 12 June 2014. The ground of appeal relied upon by the Crown is: "The sentence pronounced is manifestly inadequate." Factual Background 4The respondent was the driver of a motor vehicle which on 19 July 2012 was involved in a collision that caused the death of one Joanne Warburton. 5After the plea of guilty was entered, the Crown tendered a statement of facts with which the respondent substantially agreed. There was, however, an area of dispute which her Honour had to decide. The dispute related to whether or not the respondent was engaged in "competitive driving" immediately before the crash. Three witnesses gave evidence on that issue and submissions were made. Thereafter, her Honour summarised her factual findings as follows. 6During the evening of Thursday, 19 July 2012, the respondent left his home at Swansea and drove alone to Newcastle in his white coloured 2000 model Holden Commodore sedan. That vehicle has a six cylinder 3.8 litre engine. He drove to Wharf Road where he met three young men who were his friends. They were travelling in a red 2006 Holden Commodore sedan. The respondent's then girlfriend joined the group driving her own silver Holden Integra. 7At 9 pm the three cars left that location. The respondent was alone in his vehicle and his three friends were in the red Commodore. His girlfriend was driving alone in her vehicle. Her Honour was not able to find what the respondent's destination was but those in the red Commodore were travelling to Kooragang Island which is said to be a spot used for drag racing. 8At the intersection of Honeysuckle Drive with Hannell Street, which is controlled by traffic lights, the two Commodores stopped at a red light behind other traffic. There was another Commodore at that location, the driver of which is not known. When the lights turned green, a witness observed the three Commodores to speed away from the lights into Hannell Street, weaving through the traffic. 9Another witness saw the three Commodores come up quickly on his right side, travelling in the centre lane. The three Commodores closed up behind the vehicle which was blocking their path in that lane and then suddenly changed lanes in front of the witness and moved off at a fast speed. 10At 9.20pm the three Commodores were observed at another intersection at the corner of Industrial Drive and Ingall Street. The respondent's vehicle was at the front in the centre lane, the red Commodore was next to that vehicle in kerb side lane and the third Commodore was immediately behind the red vehicle. Other vehicles were stationary at the lights behind the Commodores. It was dark, the weather was fine although it had been raining and the road was damp. The area was well lit with street lighting and had a signposted speed limit of 80 kph. The road had two lanes of traffic in each direction divided by a raised concrete median strip. The road was in good condition. 11As one travels west from those lights (as the respondent did), vehicles travel on a flat road surface, first encountering a right hand bend, followed by a sweeping left hand bend, which leads to a straight, flat section of road. At that time Ms Warburton was also driving in a westerly direction along Industrial Drive. She was travelling in the kerb side lane at a speed of about 70-80 kph. She was driving a red Mitsubishi Lancer. It was soon after she entered Industrial Drive that her car was struck by the respondent's Commodore causing fatal injuries to her. 12The evidence of what happened immediately before the collision was that the engines of all three Commodores were revving while stationary at the traffic lights. When the lights changed, all three vehicles drove off at a speed of over 100 kph. It was when trying to negotiate the sweeping left hand bend that the respondent lost control of his car and collided with Ms Warburton's red Lancer. 13Apart from the three witnesses who gave evidence for the Crown, the respondent gave evidence. He said that his memory of the collision was vague. He ordinarily observed speed limits but accepted that he was speeding on this night. He could offer no reason for his departure from his usual practice, other than a possible lack of concentration. When asked about revving his engine, the respondent said that it might have happened, but he could not recall it. He did not recall the wheels of his Commodore losing traction. He denied that he was racing one of the other Commodores. 14Contrary to his assertion, her Honour found as a fact that he had engaged in a course of driving that "may best be characterised as irresponsible and competitive in the short interval before he struck Ms Warburton's Lancer" (ROS 11.5). Her Honour found that the respondent had been revving the engine of his car in readiness for a fast acceleration from the traffic lights. Her Honour found that he was travelling at a speed of between 105 and 110 kph at the time of the collision. 15Following the accident, the respondent told investigating police that he was the driver of the Commodore involved in the accident, but said "It wasn't my fault, another car hit me first. It took off, it was a white Commodore. I don't know who it was". He gave a similar but more detailed history to the police officer who interviewed him at the hospital where he was providing blood samples. Her Honour noted that the account of the accident given at the hospital was a very detailed one. Her Honour characterised that conduct as "at best an impulsive fiction, born of panic and at worst, an attempt to cast blame elsewhere". That version of events was inconsistent with CCTV footage which covered the collision. 16As a result of the collision, the victim suffered extensive head injuries being skull fractures, subarachnoid injuries, cerebral contusions and cerebral oedema. She also suffered chest trauma that included rib fractures, lung contusion and focal laceration of the right ventricle. She died at the scene. Her son, who was driving another vehicle behind her, witnessed the accident. 17In accordance with the guideline judgment in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 her Honour assessed the objective gravity of the offence and the degree of moral culpability of the offender. Her Honour said: "In view of the factual findings the court has made concerning the irresponsible course of driving in which the offender engaged on this night, involving competitive driving, at speed, on a well populated road in wet conditions, I regard the offender's moral culpability to be towards the higher end of the continuum of criminality. Although not of the very highest level, it is not far below that level in my judgment." (ROS 16.1) 18Her Honour found that the following seven features (which were said in Whyte to demonstrate a frequently recurring case in offences contrary to s52A of the Crimes Act 1900) were present here: (i) A young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury occasioned to a single person. (iv) The victim is a stranger to the offender. (v) No injury or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. In relation to additional aggravating features, her Honour noted that the respondent was driving at speed, albeit for a relatively short distance, and that his driving was competitive. 19Her Honour summarised the respondent's subjective case. He was 22 at the time of sentencing and 20 at the time of the collision. Although the respondent's parents had separated, his home life was relatively stable He grew up with his mother and sisters until he left school, after which he moved in with his father. In evidence his father described the respondent as a "nervous, shy and cautious person". The respondent had the support of both parents in the proceedings. 20The respondent completed his schooling and had been continuously employed since that time. He worked as a labourer before completing a pre-apprenticeship as an electrician. He was working as an electrical fitter at the time of the offence. This was an employment which he had held for over two years. He was involved in a steady relationship and had the support of his partner. 21The respondent had some health issues in that he suffered from scoliosis and Scheuermann's disease, which led to occasional back pain and fatigue. As a result of the accident, he was suffering from anxiety and post-traumatic stress disorder. This produced frequent thoughts about the crash, concern for his future and erratic sleep. 22There was a report from Dr Bench, a forensic psychiatrist, before the court. Dr Bench opined that the respondent had suffered from social phobias since childhood and that the 2012 accident was likely to have exacerbated that condition as well as his anxiety. Dr Bench accepted that the respondent understood the terrible impact his actions had upon Ms Warburton and her family and friends and that he felt great remorse for his actions. Her Honour accepted that assessment. 23Despite the false account which he initially gave to the police, her Honour accepted that the respondent was genuinely remorseful and that he did understand the enormity of his conduct and accepted responsibility for it. In relation to the late plea of guilty, her Honour allowed a discount of 10 percent on sentence. Her Honour noted that he had little by way of a criminal history, with only one minor traffic offence. 24Her Honour made the following observation in relation to the respondent's subjective case: "Whilst I have had regard to the offender's youth and good character, those features of his subjective case carry less weight than would ordinarily be the case given the frequency with which young people of otherwise good character commit offences such as this. Those are, as already noted, also features referred to and taken into account in the guideline judgment." (ROS 19.9) 25Her Honour found that specific deterrence had a limited role to play and that the respondent was unlikely to re-offend. Given his family support and regular employment, her Honour found that the prospects of rehabilitation were very good. 26In relation to general deterrence, her Honour said: "There remains, however, a need for a sentence that will have a deterrent effect on others. That is an important feature of sentencing in cases such as this and cannot be overlooked or ignored. Irresponsibly used, cars become weapons on our roads and the tragedy and trauma that that causes to the community is profound. The Court has seen an example of that in Mr Warburton's deeply-felt victim impact statement which was read to the Court and which I have considered in the way that the law allows. The loss of Ms Warburton's life has had a terrible impact upon her family and her community and that loss constitutes the gravity of this offence. ... The courts must reinforce the message to all road-users that driving is a privilege that should be available only to those who observe the road rules. Here irresponsible behaviour in a car has led to the unlawful taking of a human life and the sentence that is imposed upon Mr Williams today must play a role in deterring others from engaging in the same sort of behaviour." (ROS 20.5) 27Her Honour found special circumstances: " ... given the psychological disorders from which the offender suffers and his need for treatment for those conditions. ... It is thus in the offender's interests and in the interests of the community that he receive support and supervision for a longer than usual period of parole to assist him to achieve those aims." (ROS 21.2 Crown submissions 28The Crown acknowledged the purpose of Crown appeals as most recently stated by the plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]. It also acknowledged the difficulties to be overcome for an appeal based on manifest inadequacy to succeed. The Crown had to clearly show that according to the relevant circumstances of the case, the sentence was so plainly unreasonable or unjust that this Court should infer that in some way, there had been a failure by the sentencing judge to properly exercise her discretion. That having been said, the Crown also noted the effect of s68A(1) of the Crimes (Appeal and Review) Act 2001 which removed double jeopardy considerations and in particular, prevented a lesser sentence than that which would otherwise be appropriate being imposed. 29The Crown submitted that latent error was evident and that the sentencing discretion must have miscarried because the sentence ultimately imposed: (1)Failed to adequately reflect the objective criminality of the offence. (2)Failed to adequately reflect the principle of general deterrence for offences of this kind; and (3)Reflected a failure on the part of the sentencing judge, having identified the correct sentencing principles, to apply them to the facts found by her. 30The Crown submitted that her Honour, having found that all of the features numbered (i) - (vii) outlined in Whyte and having found that the respondent's moral culpability to be towards the higher end of the continuum of criminality, did not give effect to those findings in the sentence. In that regard, the Crown relied upon the guideline enunciated in Whyte by Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed): "229 The guideline for offences against s52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate." 31The Crown submitted that despite the qualification acknowledged by Spigelman CJ in Whyte at [232] which acknowledged the broad sentencing discretion of a first instance judge, her Honour's imposition of a 2 year head sentence was not consistent with her findings. These included a high level of moral culpability. The sentence was well outside the range for an offence of this type occasioning death. The Crown submitted that there was nothing in the objective features of the offending capable of lowering the respondent's moral culpability to a point where a 2 year head sentence was appropriate. Similarly, although the respondent's psychological disorders entitled him to a finding of special circumstances, his subjective features were otherwise unremarkable and did not justify such a degree of leniency. 32The Crown submitted that there was nothing in the timing of the plea or the conduct of the sentence proceedings which was capable of justifying such a lenient sentence. It submitted that on the contrary, the plea was late and of limited utilitarian value, given that a disputed facts hearing had taken place in which the respondent was unsuccessful. 33While acknowledging the respondent's youth and prior good character, the Crown submitted that such features were typical of this kind of offence and that the youth of the offender should not be allowed to dominate the sentencing exercise. On that issue, the Crown relied upon the observations of Hunt CJ at CL (with whom McInerney and RS Hulme JJ agreed) in Regina v Paul Musumeci (Court of Criminal Appeal, unreported, 30 October 1997): "This Court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving: (i)The legislature has always placed a premium upon human life and the taking of human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. (ii)The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of human life. (iii)Such is the need for public deterrence in this type of case the youth of any offender is given less weight as a subjective matter than any other types of cases. (iv)The courts must tread warily in showing leniency for good character in such cases. (v)So far as youthful offenders of good character who are guilty of dangerous driving, therefor, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances." (page 3) Respondent's submissions 34The respondent's submissions focused primarily upon his subjective circumstances. The respondent had been continuously employed since leaving school and had a "solid work history". He suffered physical health problems including intermittent back pain and fatigue as a result of scoliosis and Scheuermann's disease. He had experienced social phobia and anxiety since childhood and had suffered symptoms of nausea and vomiting, shortness of breath, sweating, tremors, poor concentration and blurred vision since school. Counsel for the respondent, whilst acknowledging that those considerations had no effect on the commission of the offence, submitted that they were relevant to the degree of hardship which the respondent was likely to experience in prison. 35In that regard, counsel for the respondent referred the Court to findings of the respondent's psychiatrist to the effect that following the accident he developed anxiety symptoms associated with a post traumatic stress disorder. The symptoms of insomnia, lethargy, poor appetite, suicidal ideation, constant rumination and intrusive thoughts, together with images of the accident were a sequence of this post traumatic stress disorder. 36Counsel for the respondent noted that there was no issue that the respondent experienced great remorse and now had insight into the magnitude of the loss he had caused the victim's family. The Court was taken to Justice Health records which showed that the notification of the Crown appeal to the respondent while in prison had led to a significant exacerbation of his anxiety which included physical symptoms such as nausea and vomiting. Counsel for the respondent stressed that these were important considerations when considering the exercise of the residual discretion. 37In relation to the guideline judgment, counsel for the respondent submitted that the Court should not lose sight of the fact that the judgment was a "guideline" and should not unduly restrict the sentencing discretion of a judge. In that regard, he relied upon the qualification of Spigelman CJ in Whyte at [232]: "232 The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act. 233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. ..." 38Counsel for the respondent submitted that the indicative sentence term in the guideline was not prescriptive: R v Nguyen [2008] NSWCCA 13 at [48] James J (with whom Hoeben and Hall JJ agreed). That the term was below the indicative term did not demonstrate that the sentence was manifestly inadequate. He submitted that her Honour expressly and correctly applied the guideline judgment consistently with its intended nature as a "check" or "indicator". Counsel for the respondent emphasised that sentencing for all offences subject to a guideline judgment was intended to involve the exercise of a broad discretion. 39Counsel for the respondent submitted that the only restraint on the exercise of the residual discretion by this Court was that related to the double jeopardy principle but that otherwise the residual discretion should be exercised. The respondent's difficult situation in prison and in particular the real and actual distress experienced by him when being notified of the Crown appeal should be taken into account on this issue (Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [175]). Consideration 40The complaint by the Crown has been made out. Despite having made findings as to the high moral culpability of the respondent and as to the objective seriousness of the offending, her Honour did not give effect to those findings when imposing the sentence. The typical features for the application of the guideline judgment had been made out, together with the aggravating features of speed and competitive driving. That being so, her Honour did not explain why it was not appropriate to apply the guideline judgment. 41While the respondent had a reasonable subjective case, it was not such as to offset those considerations, particularly when one had regard to the important guidepost constituted by the maximum penalty for this offence. Accordingly, I have concluded that the Crown has been successful in establishing that the sentence imposed by her Honour was manifestly inadequate. 42That does not end the matter. The Court has to consider whether despite error having been identified, it should intervene to re-sentence the respondent or decline to interfere, even though the sentence imposed was erroneously lenient. 43This issue was considered most recently in R v Reeves [2014] NSWCCA 154 where the Court (Bathurst CJ, Hall and R A Hulme JJ) said: "13 In exercising the residual discretion, it is for the appellate court to answer two questions: (1) Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from. (2) To what extent, if the appeal is allowed, the sentence appealed from should be varied: Green v R; Quinn v R at [35]. 14 In Green v R; Quinn v R it was noted by the plurality (French CJ, Crennan and Kiefel JJ), quoting Griffiths v The Queen [1997] HCA 44; 137 CLR 293 at 310 [53] (Barwick CJ), that the primary purpose of Crown appeals against sentence is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": at [1]. This was similarly expressed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70]: "... the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong." 15 This purpose is a "limiting purpose" that does not extend to the general correction of errors made by sentencing judges. Rather, it provides a framework within which to assess the significance of factors relevant to the exercise of the discretion: Green v R; Quinn v R at [36]. 16 Accordingly, it has been held that it may be appropriate for the appellate court, in the exercise of its discretion, to dismiss a Crown appeal where "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": Green v R; Quinn v R at [2]. " 44The Court in Reeves went on to identify factors that might favour the exercise of the residual discretion. Included in those factors was one which is relevant to the matter before the Court, i.e. the deteriorating health of the respondent since sentence. The Court noted: "19 In determining whether or not to exercise the residual discretion, it is open for the appellate court to look at material available at the time of the hearing of the appeal: R v Deng [2007] NSWCCA 216; 176 A Crim R 1 at [28]; R v Todorovic [2008] NSWCCA 49 at [32]. Accordingly, the appellate court is not required to put itself back in the position of the sentencing judge at the moment of conviction: "If a Crown appeal against sentence is successful, and the appellant court resentences the respondent, it does so in light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant." (R v Allpass (1993) 72 A Crim R 561 at 562)." 45In this case there was evidence of a deterioration in the respondent's mental health following notification of the fact of the appeal and generally. This related to his anxiety and post traumatic stress disorder. That material came from the Justice Health clinical notes of his attendances while in custody and from the respondent's affidavit and that of his mother. 46While that is an important consideration there are others of at least equal, if not greater importance. In R v O'Connor [2014] NSWCCA 53 Adamson J (with whom R A Hulme and Davies JJ agreed) said: "88 Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion. 89 Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J. ..." 47In Reeves having reviewed the relevant principles and the particular facts of that case, the Court said: "71 We have concluded that there is an insufficient basis for the Court to decline to re-sentence the respondent in the exercise of the residual discretion but the material now available is of such moment that the extent of intervention should be moderated. The combined effect of the added delay in the final disposition of the matter, the evidence of what has transpired in relation to the respondent's ill-health (both physical and mental) and the conditions under which he has been held in a form of quasi-custody since being released on parole, call for an amelioration of the Court's response." 48I propose to follow the same approach. While the factors militating against intervention in this case are substantially less than those before the Court in Reeves, the question of the deterioration in the respondent's mental health is such as would justify some moderation in the extent of the intervention by this Court and consequent re-sentencing of the respondent. 49Accordingly, the orders which I propose are as follows: (1)Appeal allowed. (2)The sentence imposed by Judge Wilson SC on 14 May 2014 in quashed. (3)In lieu thereof, the respondent is sentenced to imprisonment with a non-parole period of 1 year and 9 months, commencing 14 May 2014 and expiring 13 February 2016, with a balance of term of 11 months expiring 13 January 2017. 50FULLERTON J: I agree with Hoeben CJ at CL. 51ADAMSON J: I agree with Hoeben CJ at CL. ********** 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: 01 October 2014