Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Woodward v R [2014] NSWCCA 205 Hearing dates: 12 September 2014 Decision date: 03 October 2014 Before: Hoeben CJ at CL at [1]; Fullerton J at [2]; Hamill J at [3]. Decision: (1) Application for leave to appeal granted. (2) Appeal upheld. (3) The sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to a non-parole period of two years and nine months commencing on 25 November 2013 and expiring on 24 August 2016. There will be a balance of term of one year commencing on 25 August 2016 and expiring on 24 August 2017. (4) The applicant will be eligible for release on parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW - SENTENCE APPEAL - plea of guilty - plea not referred to by sentencing judge - whether plea disregarded - guideline judgment on pleas of guilty - whether discount can be inferred - dangerous driving causing death - guideline judgments - sentence manifestly excessive - applicant resentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Akkawi v R; Akkawi v R [2012] NSWCCA 11 Convery v R [2014] NSWCCA 93 Dinsdale v The Queen [2000] HCA 54 R v Jurisic (1998) 45 NSWLR 209 R v Thompson [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104 R v Whyte [2002] NSW CCA 343; 55 NSW LR 252 Rios v R [2012] NSWCCA 8 Stanyard v R [2013] NSWCCA 134 Versluys v R [2014] NSWCCA 98 WW v R [2012] NSWCCA 165 Category: Principal judgment Parties: Tony William Woodward (Applicant) Crown (Respondent) Representation: Counsel: P Coady (Applicant) T Smith (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/61907 Publication restriction: Nil Decision under appeal Date of Decision: 2013-11-25 00:00:00 Before: Berman SC DCJ File Number(s): 2013/61907 Judgment 1HOEBEN CJ at CL: I agree with Hamill J. 2FULLERTON J: I agree with Hamill J. 3HAMILL J: Tony William Woodward (the applicant) seeks leave to appeal against a sentence imposed on him in the District Court at Newcastle by his Honour Judge Berman SC on Monday 25 November 2013. He was sentenced on his plea of guilty in relation to one count of dangerous driving occasioning death, an offence contrary to s 52A (1)(c) of the Crimes Act 1900 (NSW) carrying a maximum penalty of 10 years imprisonment. Following very brief sentencing proceedings and even briefer remarks on sentence, his Honour imposed a sentence comprising a non-parole period of four and half years from 25 November 2013 expiring 24 May 2018 with a balance of term of one of a half years. The total sentence is one of six years. 4The applicant relies on three grounds of appeal: (1)The learned sentencing Judge failed to take account of the early plea of guilty. (2)The learned sentencing Judge erred in failing to find special circumstances. (3)In the circumstances of this case, the sentence imposed is manifestly excessive. 5In relation to ground one, the applicant points to the fact that the sentencing Judge said nothing in his judgment to indicate that the plea of guilty had been taken into account. Unusually, his Honour did not even refer to the fact that the applicant had pleaded guilty. 6The offence occurred on 5 September 2012. The applicant was charged by court attendance notice on 17 February 2013. A plea of guilty was entered on 21 August 2013 in the Newcastle Local Court. There is no dispute that the plea of guilty was entered at the first available opportunity and that it entitled the applicant to a significant discount from his sentence to reflect the utilitarian value of the plea. In R v Thompson [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104, a bench of five members of this Court emphatically determined that where an offender enters a plea of guilty the record should reflect clearly and transparently that the plea of guilty has been taken into account and the extent to which it has ameliorated the sentence imposed. Subsequent cases have made it clear that reference to the plea of guilty and a clear statement of the fact that it has resulted in a reduction in the sentence is usually an important part of a judgment, however brief, delivered in imposing a sentence upon an offender. It is possible to point to cases where a failure to do so has not resulted in interference by this Court, but such cases do not in any way diminish the force of the guideline judgment to which I have made reference. In most of those cases where this Court has not intervened, the sentencing Judge has at least made passing reference to the fact that the plea was entered. 7As I have said, the present case is unusual in that the experienced sentencing Judge failed to make any reference to the applicant's plea of guilty at all. 8It is worth repeating the guideline adopted by the Court of Criminal Appeal in R v Thompson at [160]: "(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount." 9The applicant was entitled to expect a reduction of his sentence of about 25%, that being the top of the range contemplated in the guideline judgment. 10Counsel for the respondent appropriately and properly conceded that "this is a matter where the applicant's plea of guilty would have been likely to attract a discount of 25%". She also observed that in Convery v R [2014] NSWCCA 93 the same sentencing Judge was found to have failed to apply a discount for a plea of guilty. However, she pointed to the fact that in Convery v R, the mathematics involved suggested that no such discount had been applied whereas in the present case a 25% discount might be inferred on the basis that his Honour had commenced with a starting point of 8 years and applied the 25% discount to arrive at the total sentence of 6 years. 11While there is considerable force in this submission, it brings into very sharp focus the applicant's more general complaint that the sentence was manifestly excessive (ground three). It also provides no answer to the fundamental rationale behind the guideline judgement, which is that there is a policy benefit in acknowledging a plea of guilty in a clear and transparent way. Spigelman CJ in R v Thompson discussed (at [21]-[22], [38], [53] and [162]) the perception in the profession that pleas of guilty were not resulting in significant reductions in sentence, thus discouraging offenders from entering a plea of guilty at an early stage. 12In any event, ground one must be considered along with ground three and I now turn to that ground. 13Assuming that the respondent's submission in relation to ground one is correct, the sentencing Judge imposed a sentence encompassing a starting point of 8 years. That is a very high sentence given both the maximum penalty (10 years) and relevant guideline judgments on sentencing in relation to offences under s 52A: R v Jurisic (1998) 45 NSWLR 209, R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. 14In R v Jurisic, Spigelman CJ established the following guideline sentence in relation to this offence (at 231): "In my opinion this Court should promulgate the following guidelines: 1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional. I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn. The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence. This is also the approach in the English guideline judgment on rape: R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985." 15Nine circumstances were identified and it was held that "[t]he presence or absence of these factors -and their degree- will determine the appropriate penalty." These factors were set out (at 231): "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit." 16In R v Thompson the Court clarified at [161] that the guideline judgement in R v Jurisic "should be understood to involve a late plea of guilty". 17In R v Whyte this Court (again constituted by a bench of five) confirmed the guideline judgment but added certain comments in relation to it. Spigelman CJ (with whom the rest of the bench relevantly agreed) outlined the characteristics of a "frequently recurring case of an offence under s 52A": "(i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value." 18The present case involved a significant abandonment of responsibility by the applicant and there is no doubt that the moral culpability involved in his behaviour was very high. The facts were not contested and were set out in an agreed statement of facts tendered on sentence. They were in the following terms: "About 8.05pm on Wednesday the 5th September 2012, Tony William WOODWARD (the offender), was the driver of a red Holden Commodore sedan. Samual Wayne GUNN (deceased) was a passenger in the front seat. The offender was the holder of a P1 Provisional license and was therefore subject to zero blood alcohol and a maximum speed requirement of 90 km/h. The offender drove East on George Booth Drive, Cameron Park. It was dark and fine. The road was dry. George Booth Drive had one eastbound and one westbound traffic lane. The lanes were divided by a double unbroken line. The road was of bitumen construction and is an undulating road surrounded by bushland. The posted speed limit is 90 km/h. The road was in good condition. A short distance east of the Withers Street intersection, on George Booth Drive, the offender crossed the double unbroken lines and entered the westbound lane, to overtake a Mazda 3 sedan. The Mazda 3 sedan was travelling at approximately 90 km/h. After the offender passed the Mazda 3 sedan, he returned to the eastbound lane, just before a hill crest. Approximately 600 metres east of Withers Street intersection, at the hill crest on a slight left hand bend, the offender lost control of his vehicle. The vehicle began to rotate clockwise, crossing the double unbroken lines into the westbound lane. The vehicle slid sideways for approximately 50 metres, before the passenger side of the vehicle collided heavily with a tree. The tree was uprooted as the vehicle continued, rotating post-impact and coming to rest facing in an easterly direction, approximately 8 metres east of the tree. The tree was located approximately 10 metres south of the western lane fog line of George Booth Drive. The offender's vehicle sustained extensive damage to the left (passenger) side, partially tearing the vehicle cabin in half. During the collision, the offender was ejected from the vehicle. Samual Wayne GUNN remained within the vehicle and sustained critical injuries, resulting in his death. Gregory ASQUITH was the driver of the Mazda which was overtaken by the offender. ASQUITH was returning home from the central coast. ASQUITH told police that he was overtaken by a vehicle travelling quickly which made him look at his speedo and he saw that he was travelling at about 90 km/h. He told police the vehicle was overtaking over double lines and near the crest of a hill. ASQUITH told police the offending vehicle returned to [its] correct side of the road before the crest and was momentarily lost from sight as it crested the hill. When ASQUITH achieved the crest he looked for the vehicle and saw that it had left the road to his right and collided with a tree. Thomas PULLIN was a passenger in ASQUITH's vehicle. He also checked ASQUITH's speed when they were overtaken over the double lines near the crest of a hill. He told police that ASQUITH was travelling at about 90 km/h. Upon seeing the collision ASQUITH turned his vehicle around and went to assist. At about 8 p.m. Kristal ELLIS drove with her husband Aaron ELLIS and their son west on George Booth Drive. As they approached a crest they saw a car veer suddenly across their lane in front of them. Mr ELLIS told police it appeared to be rotating clockwise. It left the carriageway, hit a tree and rotated again. Mr and Mrs ELLIS stopped to offer assistance. The offender was transported to the John Hunter Hospital with minor injuries. At about 9 p.m Blood (682382) and Urine (D26841) samples were supplied by the offender. The Blood sample returned a positive result for alcohol (0.127 gms/100mL). The analysis of the urine sample detected Delta-9-TCH acid. Police Pharmacologist Dr Perl was asked to provide an opinion on the alcohol and other drugs in the offenders system. Dr Perl advised that without a drinking history she [could] not provide any opinion about the alcohol. In relation to the cannabis Dr Perl stated that Delta-9-TCH acid in urine did not necessarily indicate recent consumption or affectation by cannabis. Delta-9-TCH acid may be present in body fats days weeks or months after the consumption of cannabis. Accordingly, there is no evidence the offender was affected by cannabis at the time of his driving. The Holden Commodore sedan was escorted to the Newcastle Holding Yard for a mechanical inspection. A later inspection concluded there was no mechanical defect in the Commodore that would have contributed to the crash. The offender declined the opportunity to be electronically interviewed. The Crown complains that the offender was driving too fast for the conditions, driving under the influence of liquor and overtaking when it was not safe to do so." 19In evidence the applicant admitted that he was walking around the streets drinking cans of bourbon and coke. He said he had consumed five to six cans each of which contained around 1½ standard drinks. He knew that he "shouldn't be behind the wheel". 20As I have said, and as Judge Berman SC found, these facts show that the applicant had abandoned responsibility to a significant degree. A number of other road users were placed at risk by his erratic and aggressive driving. He was driving while under the influence of alcohol or at least with a blood alcohol level of 0.127 gms/100mL. His provisional driver's license required him to have a blood alcohol level of zero. 21The case involved more than one of the aggravating features referred to in the guideline judgements. However that does not make this case unique and the sentence, if it involved a starting point of eight years, was substantially higher than one would have expected for a case involving one victim who was not (it appears) a stranger to the offender. Higher sentences have been imposed but usually they have involved either multiple victims, conviction after trial or the aggravated version of the offence. 22The victim's family provided moving testimony as to the devastation that the applicant's conduct has caused. The Court received victim's impact statements from Mr Gunn's parents, his grandmother, his sister and his partner. They have suffered a terrible loss and the impact on each of them has been, and no doubt continues to be, severe. Their pain and grief should again be acknowledged. 23The applicant, who was 26 years old at the time of the offence, had a criminal history including a prior offence (in 2006) of low range PCA in relation to which no conviction was recorded. The other matters on his criminal record were not particularly relevant and had resulted in the imposition of bonds and community service orders. He had never previously been sentenced to imprisonment. He had a traffic record but that record was not particularly lengthy or bad. 24The sentencing Judge was placed in a difficult position because very little evidence was tendered on behalf of the applicant to establish a subjective case. The applicant gave brief evidence describing his family circumstances and apologising to the victim's relatives and to his own family. There was a pre-sentence report and a letter from the applicant's partner confirming that the applicant had three children aged 5 years or younger at the time of sentence. There was also a letter from a general practitioner noting that the applicant was taking anti-depressant medication. There was no evidence exploring or confirming that the applicant was suffering from a depressive illness although the pre-sentence report noted that the applicant himself was "of the opinion that he is depressed at this time". The pre-sentence report also noted that he had not followed up on a referral to a psychologist and "was unsure whether he wished to proceed" with drug detoxification or rehabilitation. 25However, even in the absence of such material, the sentence imposed in the present case was "unreasonable or plainly unjust" and "manifestly wrong": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [22] (Gaudron and Gummow JJ). It was, as ground three contends, manifestly excessive. 26In coming to this conclusion I am conscious of the fact that the guideline judgements in R v White and R v Jurisic were not "unduly prescriptive in setting out a range of sentences for a typical case" and that the court "made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case": see WW v R [2012] NSWCCA 165 per Hoeben CJ at CL at [74]-[76]; see also Stanyard v R [2013] NSWCCA 134 per Fullerton J at [40]. 27Nevertheless I am persuaded that the sentence imposed on the applicant exceeded by a significant degree the proper boundaries of an appropriate exercise of the sentencing discretion. 28The substance of ground two, the failure to find special circumstances, concerned the question of whether counsel for the applicant at first instance had conceded that special circumstances did not exist. Judge Berman SC said that counsel had, as he understood it, conceded that there were no special circumstances in the case. It was certainly true that Counsel's submissions on the subject were brief, not to say diffident and unhelpful. All that was said was: "Nothing I can put in terms of special circumstances, other than those that are set out in the presentence report but really when one looks at it he was an accident going somewhere to happen." 29The learned Crown Prosecutor said that he was "not sure I understood my friend's submission in relation to special circumstances" and referred to some matters that may have been capable of amounting to special circumstances. He said "I expected to hear that his youth, first time in custody and the matter in the report saying that he'd benefit form a period supervision ... might enliven special circumstances". Counsel for the applicant made no submission in reply. 30In the circumstances it is readily understandable how his Honour proceeded on the basis that special circumstances had not been established. Where there is to be a submission that there should be an adjustment to the non-parole period pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), counsel has an obligation to state with clarity just what those special circumstances are. In any event, it was open to the sentencing Judge to conclude that the evidence did not require an adjustment to the non-parole period under s 44 of the Crimes (Sentencing Procedure) Act. I would not uphold ground 2. 31In resentencing the applicant, I have taken into account the maximum penalty of 10 years along with the non-prescriptive guidelines to which I have referred. The present case has some of the features of the "frequently recurring" case described in R v Whyte but not all of them. The applicant was not a particularly young offender and he had some criminal history. He was injured in the collision and taken to the hospital although the nature of his injuries was not made clear in the evidence other than to say they were "minor". The victim was not a stranger. There was evidence of his remorse. He told the author of a pre-sentence report that "he should have died in the crash rather than the victim, and that he deserves to be punished for his actions". The applicant also gave evidence that he was sorry. 32I have taken into account the fact that the guideline judgments related to cases where there was a late plea (presumably encompassing a discount in the vicinity of 10%) whereas the applicant is entitled to a discount of 25%. 33But for the applicant's early plea of guilty, I would have imposed a sentence of five years because the moral culpability involved in this case and the abandonment of responsibility was very high. As the respondent pointed out, not only was the applicant well over the legal limit in terms of his blood alcohol reading but he was also speeding and, as a P-plate driver, he was in breach of the conditions upon which he was entitled to drive at all. His manoeuvre of crossing double separation lines as he approached the crest of a hill was reckless to a substantial degree. 34From the starting point of 5 years I would deduct 25% (1 year and 3 months) for the early plea of guilty. The total sentence will be three years and nine months. The circumstances set out in the presentence report and the brief evidence of the applicant on sentence do not establish special circumstances. An affidavit tendered by the respondent concerning the applicant's time in custody does not assist him. Accordingly, the non-parole period will be 75% of the total sentence: see s 44 Crimes (Sentencing Procedure) Act. This will be rounded down to keep the sentence in sensible round figures: cf Rios v Regina [2012] NSWCCA 8 at [42]-[43] (Adamson J), Akkawi v R; Akkawi v R [2012] NSWCCA 11 [101]-[102] (Simpson J) and Versluys v R [2014] NSWCCA 98 at [2] (Hidden J) and [37] (Hamill J). The non-parole period will be two years and nine months. 35I propose the following orders: (1)Application for leave to appeal granted. (2)Appeal upheld. (3)The sentence imposed in the District Court is quashed and in lieu thereof the applicant is sentenced to a non-parole period of two years and nine months commencing on 25 November 2013 and expiring on 24 August 2016. There will be a balance of term of one year commencing on 25 August 2016 and expiring on 24 August 2017. (4)The applicant will be eligible for release on parole at the expiration of the non-parole 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: 03 October 2014