Director of Public Prosecutions v Rebic

[2009] NSWDC 302

CITATION:	DPP v Rebic [2009] NSWDC 302
HEARING DATE(S):	12 September 2008
JUDGMENT OF:	Conlon SC DCJ
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Whyte [2002] 55 NSWLR 252 R v Errington [2005] 157 ACrimR 553
PARTIES:	DPP Zarko Rebic

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JUDGMENT

1 HIS HONOUR: This is an appeal against the severity of the penalty imposed by the magistrate in the Wollongong Local Court on 30 July 2008. The magistrate, following a conviction for an offence of drive manner dangerous occasioning grievous bodily harm, imposed a sentence of twelve months imprisonment with a non parole period of six months. The appellant appealed immediately and as I understand it was granted bail.

2 The facts are as follows. On 9 January 2008, the appellant drove his Holden Commodore sedan from an address in Brownsville towards Wollongong. In the front passenger seat was Nemanja Lalusic. In the rear passenger side was a Ms Ashley Grant and on the rear driver’s side was a Ms Kiana Smithers. At about 12.10am, the appellant was driving north along the F6 freeway. Along that section the speed limit was 100 kilometres per hour. Approximately 200 metres north of the Nolan Street bridge at Berkley, the appellant lost control of his vehicle. It careered sideways with the passenger side leading for about 80 metres. It then impacted heavily with a large shrubbed embankment which divided the north and southbound lanes of the freeway. It has then rotated in a clockwise direction so that the vehicle was travelling backwards. At this time the front portion of the vehicle has impacted with the edge of the bitumen and as a result the front driver’s side wheel assembly has been partially torn from the vehicle. It continued on a further twenty metres into shrubbery and the rear section of the car collided with a tree. It then rotated clockwise before colliding with another tree and then continued back onto the roadway before coming to rest facing west, half in the breakdown lane and half in lane 2.

3 The vehicle suffered extensive damage to all panels. Its front bumper bar was located three metres up a tree. Immediately after the vehicle came to rest, all four occupants climbed out onto the roadway. Passenger Grant called for an ambulance. They were all taken to hospital. Miraculously, the appellant, Lalusic and Grant all suffered only minor injuries. Ms Smithers was less fortunate as she sustained lacerations to her right hand and was transported to Sydney for surgery. A plate, two pins and a skin graft were required. She has apparently been informed that she will never regain full use of her middle and ring finger.

4 Crash investigators attended the scene. Measurements taken of the tyre marks indicated the appellant was driving in excess of 140 kilometres per hour. The two front tyres were bald. Further inquiries revealed that the appellant was issued with a defective notice in respect of his two front tyres on 1 January 2008. He then borrowed four new wheels with tyres from a Warilla service station. On 4 January 2008, he took the vehicle to an inspection station and had the vehicle defect notice lifted. He then immediately returned to the service station and placed the old wheels and defective tyres back onto his vehicle.

5 The victim, Smithers, eventually provided a statement indicating the appellant was travelling very fast “doing way more than 100 kilometres per hour”. She also stated that she had asked the appellant to slow down but he did not respond.

6 Ashley Grant stated that she observed the speedometer and the needle was pointing to 180. Lalusic said that before losing control the speedo was between 150 to 160 kilometres per hour. He also said it looked like it had been sprinkling, as the road was a bit wet.

7 On 30 January 2008, the appellant took part in a recorded interview. He said he could not remember any details of the collision. This was at odds with what he told the probation officer (see presentence reported dated 11 July 2008).

8 Ms Stuart, Probation Officer, stated:

“Whilst acknowledging that he succumbed to peer pressure and that he was stupid, he minimised his responsibility by claiming that he was trying to impress the passengers by driving faster and that the passenger in the front seat was encouraging him to do so”.

9 In the guideline judgment of R v Whyte [2002] 55 NSWLR 252, it was stated that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.

10 Concerning the correct approach to making an assessment of the offender’s moral culpability, I have regard to the case of R v Errington [2005] 157 ACrimR 553 where Mason P, (with whom Grove and Buddin J agreed), said at paras 26 and 27:

“The central inquiry with regard to the objective seriousness of the particular offences is identification of the degree of moral culpability involved, this being a critical component of the objective circumstance of the offence”.

11 His Honour Mason P then went on to say:

“The jurisprudence in this field recognises abandonment of responsibility as one method of describing a high degree of moral culpability. This does not however endorse a brightline subcategory. There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment. It is not required that cases be assigned to one or other of two pigeonholes marked respectively ‘momentary inattention or misjudgment’ and ‘abandoned responsibility’”.

12 There are a number of aggravating factors referred to in the guideline judgment of Whyte that relate to moral culpability. Several of those are present in respect of the offender’s driving. The dangerous speed was a significant factor. Upon his assertion to the probation officer, it is apparent that he was showing off. He ignored Ms Smithers’ plea to slow down. His dangerous speed, in combination with his awareness he was driving on two bald tyres, was such that other road users must have been exposed to a high potential risk.

13 In my assessment, the appellant’s course of driving on this night indicates that he had abandoned responsibility and I am satisfied that his moral culpability was indeed high.

14 Subjective Circumstances

15 The appellant is now 20 years of age and lives with his parents in Mangerton. He is the youngest of four children. He informed the probation officer that he had a strict upbringing. He was born in Croatia, with his family moving to Australia in 1997, following the tragic death of his eldest brother in 1995 in the war. He left high school in 2004 at the end of year 11. He obtained employment in June 2007 in the timber floor industry where he was hoping to obtain an apprenticeship. However due to a decrease in work, this did not eventuate. Since then, he was employed on a casual basis in car detailing. A reference from Mr Hakan Ugur of the Warilla Autos and Service Centre was tendered before the magistrate and it has also been tendered before me. That reference confirmed the offender’s employment and in fact the offer of a full-time position in the future.

16 In the pre-sentence report under the heading of “attitude to the offence”, Ms Stuart stated:

“Whilst Mr Rebic acknowledged the gravity of the accident itself, he did not appear to have insight into the seriousness of his actions leading up to the offence. He stated that he borrowed the tyres for the vehicle inspection from his employer because he could not afford new ones. He did not appear to make the connection between this action and the accident itself and subsequently, the more serious impact that his choices could have had on the community as a whole … he appeared to be embarrassed about the offences and expressed guilt for the victims however mixed this with self-concern, as the victims have severed all ties with him since the accident”.

17 He was assessed as both suitable for a community service order and suitable for a periodic detention order.

18 The appellant was called to give evidence in these proceedings. He indicated that he had tried to apologise to the victim through a friend, to tell her he was really sorry about what had happened. When asked about his driving, he said that he was “trying to test the car out and impress the girls”. When asked how he now regarded that behaviour, he said “stupidity”. In cross-examination he acknowledged that he knew it was dangerous to be driving in that manner on those tyres.

19 The offender, of course, is entitled to have his plea of guilty taken into account in mitigation of penalty and indeed to a discount in respect of his plea of guilty and I have no doubt that the learned magistrate did that.

20 I have considered the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act. A strong message has to be delivered that the courts will not tolerate this type of behaviour on the roads. Can there be any doubt that the incidence of lunatic driving is on the increase? It seems that a week does not go by without some young driver wrapping his car around a pole or a tree or driving head-on into another vehicle. The sad tragic story is that innocent people get killed or suffer really serious bodily injury. So many lives are thereby affected. The message to all young drivers must be this: You may not have any significant traffic record. You may have no prior criminal record. However, if you drive your car in a manner or at a speed dangerous and you either kill or inflict serious injury, then you should expect to be punished by the imposition of a prison sentence.

21 Having considered the objective seriousness of this crime and as I have already indicated, my assessment is the appellant had a high degree of moral culpability, I am satisfied that no penalty other than imprisonment is appropriate. I can see no error in the approach taken by the magistrate. I can see no error in the sentence imposed by the magistrate. Accordingly, I cannot see that this sentence was too severe. The magistrate in imposing this sentence has obviously found that special circumstances exist, being that this will be the first time that the appellant will be serving a custodial sentence and thereby varied the statutory ratio.

22 Accordingly, my orders are that the appeal will be dismissed, the conviction confirmed. I confirm the orders of the Magistrate and I also confirm the disqualification period. So far as the sentence is concerned, I confirm sentence of twelve months imprisonment with a non parole period of six months. That non parole period will date from today, 12 September 2008 and will expire on 11 March 2009.