Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Aitken v R [2014] NSWCCA 201 Hearing dates: 29 September 2014 Decision date: 29 September 2014 Before: Hoeben CJ at CL at [1]; Adams J at [2]; R A Hulme J at [3] Decision: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - dangerous driving occasioning death - length of journey not improperly calculated - alleged miscalculation had little bearing on sentence - sentence not unreasonable or plainly unjust Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Makarian v The Queen [2005] HCA 25; 228 CLR 357 R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)) R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 WW v R [2012] NSWCCA 165 Category: Principal judgment Parties: Mathew Wayne Aitken (Applicant) Regina (Respondent) Representation: Counsel: Mr G Newton (Applicant) Ms J Girdham SC (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2012/22186 Decision under appeal Date of Decision: 2013-06-12 00:00:00 Before: Lerve DCJ File Number(s): 2012/22186 Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2ADAMS J: I agree with R A Hulme J. 3R A HULME J: Matthew Wayne Aitken (the applicant) was sentenced by his Honour Judge Lerve in the District Court at Dubbo for an offence of driving under the influence of intoxicating liquor occasioning death to imprisonment for 4 years 1 month with a non-parole period of 2 years 6 months. 4The offence is contrary to s 52A(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 10 years. Facts 5The applicant was 18 years of age and held a learner's permit to drive. At about 9.45pm on Friday 25 November 2011 he was driving a utility with two passengers in Mudgee. He failed to negotiate a left hand bend in the road, lost control and the vehicle impacted heavily with a tree before coming to rest. One of the passengers, Mr Blake Shearan who was a close friend of the applicant's, was killed. The other passenger was not seriously injured. 6Empty bottles of beer were on the ground near the car and partially consumed bottles of bourbon and rum were inside. A blood sample taken from the applicant revealed that his blood alcohol level was 0.109. 7The applicant later told police that it was pouring with rain at the time and visibility was reduced to about 20 to 50 metres ahead. It was a 50km/h speed limited area but it was an agreed fact that he had been travelling at between 76 and 93 km/h, more likely towards the upper end of that range. He told police that he was aware that as a learner driver he was subject to a zero blood alcohol limit, a speed limit of 80 km/h and was to be under the supervision of a fully licensed sober driver. 8The agreed facts included that the applicant had been drinking with friends from the middle of the afternoon through into the evening, including in the car. He had driven with his two passengers from Wellington to Gulgong where they remained for a few hours before continuing on to Mudgee. It was common ground that his driving at times had been erratic, including dangerously crossing unbroken lines in an overtaking manoeuvre and otherwise being on the incorrect side of the road for no apparent reason. The driver of a fuel tanker who had been overtaken was so struck by the manner of the applicant's driving that he attempted to contact police. 9The applicant said in his evidence at the sentence hearing that he was driving as quickly as he was because they were not aware of the lock out time of the hotel in Mudgee where they were planning to get more alcohol. 10No mechanical defect or failure was found upon investigation, although it was noted that the speedometer of the utility was not working. Causative factors in the collision were agreed to be the speed of the vehicle, the applicant's limited driving experience and his blood alcohol content. Personal circumstances of the applicant 11The learned sentencing judge noted that the applicant was almost 19 years of age at the time of the offence and had since turned 20. He had a criminal and traffic record but the judge regarded it as limited and entitled him to some favourable consideration. 12The judge regarded the subjective case as "strong". The applicant was diagnosed with ADHD as a child. A social worker's report included a history of binge drinking. Since the incident he had resorted to the use of cannabis and amphetamines. His Honour considered that the latter warranted intensive supervision in the future. 13The judge accepted that the incident "has had a very profound effect on him" and he accepted that he was genuinely remorseful. The judge noted that in the evidence given by the applicant he said that he felt worthless and deserved to go to gaol. He had experienced suicidal thoughts but said he had not been able to give effect to them. This was considered by his Honour to be another reason why the applicant needed professional assistance in the future. 14Findings were made that the applicant had good prospects of rehabilitation and was unlikely to re-offend. The judge also took into account an element of extra curial punishment on account of the applicant having sustained a fractured vertebrae and other consequences such as being unable to continue with his work as a shearer's rouseabout. 15Special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period were found on the basis of the applicant's age, first time in custody, and the need for intensive supervision upon release. Grounds of appeal 16Two grounds of appeal were relied upon: 1. The sentencing judge erred in taking into account as an aggravating factor the journey between Wellington and Gulgong. 2. The sentence was manifestly excessive. Ground 1 - length of journey as an aggravating factor 17The judge had regard to the guideline judgment in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. Of the seven features of the "typical case" there described, he found that four were present in this case. The guideline judgment also identified (at [216]) frequently recurring aggravating factors that were relevant to an offender's moral culpability; one being the "length of the journey during which others were exposed to risk". 18This ground is related to the italicised portion in the following extract from the remarks on sentence: "However there are a number of aggravating factors. The offender was driving in a dangerous manner from Gulgong to Mudgee and was drinking alcohol from Wellington to Mudgee. There were two other vehicles and there was other traffic on the road, although that traffic was described as light. The driving conditions were poor as was visibility. The offender was driving at a point immediately before he lost control of the vehicle at a speed substantially in excess of the relevant speed limit. He was a learner driver and subject to a zero blood alcohol limit. I am satisfied beyond reasonable doubt that the course of driving between Gulgong and Mudgee described in the facts can accurately be described as erratic. The length of the journey was not insignificant. There [are] approximately ninety kilometres between Wellington and Mudgee and approximately twenty or so kilometres from Gulgong to Mudgee. The offender was driving in a manner dangerous to the public as well as being under the influence of intoxicating liquor. In these circumstances I agree with the Crown's ... written submissions ...: 'The dangerous driving in the present matter involved, inter alia: (1) driving whilst judgment was impaired by alcohol, (2) a lengthy journey exposing other drivers to risk, (3) excessive speed in circumstances of poor road conditions and poor visibility. The circumstances clearly demonstrate an abandonment of responsibility by the offender well above any typical case.'" (Emphasis added) 19The judge then referred to some other matters in the list of frequently recurring aggravating factors identified in R v Whyte which were not present. He continued: "However in all of the circumstances I am satisfied beyond reasonable doubt the offending in this matter is above the mid point on the scale of seriousness. Indeed I am satisfied it is above the mid point of the scale of seriousness by some distance, although this is by no means a worst case example." 20Counsel for the applicant conceded that it was open to the judge to have regard to the applicant's driving between Gulgong and Mudgee as an aggravating factor, being the length of the journey during which others were exposed to risk. But it was contended that it was wrong to take into account the journey between Wellington and Gulgong as an aggravating factor. The overall journey had been broken at Gulgong where the applicant and his companions had remained for about three hours; the trip from Wellington to Gulgong was really a journey separate from that from Gulgong to Mudgee. 21It was also submitted that it was wrong to regard as an aggravating factor the consumption of alcohol during the journey from Wellington to Gulgong; that was only relevant to the applicant's level of intoxication at the time of the collision. 22The Crown submitted that there was no error. The applicant had been drinking prior to departing Wellington and he was a driver who should have had a zero blood alcohol level. He admitted to police that he had a beer at a hotel in Wellington and then four or five more at a friend's house. This was between about 2.30pm and 6.00pm. He also admitted that he and his passengers continued drinking beer during the journey to Gulgong. They also had a bottle of cola to which the applicant had added some rum. He told police that he rated his affectation at this stage (namely by the time of arrival in Gulgong) as three to four out of ten. 23In my view it was open to the judge to regard the trip from Wellington to Mudgee as part of the one journey. Mudgee was their intended destination when they left Wellington. They only pulled in to Gulgong because they were low on fuel. The applicant was drinking throughout the entire period: at Wellington, from Wellington to Gulgong, at Gulgong, and then from Gulgong to Mudgee. The fact that they were stationery for some hours along the way seems to be immaterial. The applicant's admission that by Gulgong he was affected to the level he admitted to the police indicates that the risk to others was of a severity that increased throughout this period. 24But even if it was wrong for the judge to take into account the journey from Wellington to Gulgong, I agree with the Crown submission that this could hardly have had any bearing upon the judge's assessment of the gravity of the offence. That was the ultimate issue to which the finding was relevant. The journey from Gulgong to Mudgee was not insignificant, and the applicant would have been more intoxicated during that part of the overall journey than in the earlier part. The journey from Wellington to Gulgong was only one of a number of factors the judge took into account in the assessment of the seriousness of the offence. Removing that part of the journey would still have left the ultimate finding (which was not challenged) as one that was open to the judge to make. 25I would reject this ground. Ground 2 - manifest excess 26Counsel for the applicant identified the following matters as supporting the proposition that the sentence was manifestly excessive: Early plea of guilty. Youth and limited record. Remorse. A subjective case described by the judge as "strong". Significant injuries that the appellant suffered and the affect they had on his ability to work. The fact that the deceased was a close friend; the applicant had been living with him and his family at the time of the collision. 27These were all matters of substance and deserving of weight. There is no complaint that the sentencing judge failed to have regard to any of them. 28It was appropriate for the judge to have regard to the guideline in R v Whyte. There it was said (at [229]), that in the typical case described where the offender's moral culpability is high, a full time custodial head sentence of less than three years (where a death is involved) would not generally be appropriate. 29In WW v R [2012] NSWCCA 165, Hoeben J (as his Honour then was) observed (at [75]) that the guideline made no reference to the upper limits of a sentence but endeavoured to indicate a lower limit for a typical case below which a sentence would not generally be appropriate. 30In the present case, the judge correctly identified that not all of the features of the "typical case" and not all of the "frequently recurring elements [aggravating features] which directly impinge on the moral culpability of the offender at the time of the offence" were present. He did not make a finding in terms of "moral culpability" or "abandonment of responsibility". But he did find that the objective seriousness of the offence was above the middle of the range. 31There is no complaint about the judge's treatment of the guideline. It is not suggested that he regarded it as in any way prescriptive. As Spigelman CJ emphasised in R v Whyte (at [234]), the guideline is "a check" and was consistent with an ultimate decision that involves the exercise of a broad discretion. 32This was a case involving obvious tragedy for the family and loved ones of the deceased. It also involved tragedy for the applicant himself. But it is important not to let that impinge unduly upon the proper assessment of a sentence which, in accordance with principle, must involve a significant element of general deterrence notwithstanding the age of the offender. The judge had the unenviable task of sentencing the applicant to what had to be a significant term of imprisonment. In R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep), Hunt CJ at CL observed that: "It is never easy to send a youthful person of good character to gaol but, where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also, retribution remains an important purpose which the sentence must serve." 33To make good a claim that a sentence is manifestly excessive it must be established that it is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. On my assessment, the learned sentencing judge adopted a principled approach to his duty to impose a sentence that reflected all of the relevant objective and subjective facts and circumstances. I accept that the result represents a severe outcome for the applicant. But it is one that was within the bounds of a proper exercise of sentencing discretion. Orders 34I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2014