Dowling v The Queen

[2017] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Dowling v R [2017] NSWCCA 98
Hearing dates:	10 May 2017
Date of orders:	17 May 2017
Decision date:	17 May 2017
Before:	Leeming JA at [1]; Adamson J at [2]; Wilson J at [41]
Decision:	(1) Grant leave to appeal. (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against severity of sentence – whether the sentence was manifestly excessive –whether sentencing judge proceeded on incorrect factual basis – HELD – appeal dismissed – agreement to facts are part of plea of guilty – reduction of total effective sentence sought by applicant not in accordance with process of instinctive synthesis – no error in approach of sentencing judge in determining individual sentences or total effective sentence
Legislation Cited:	Criminal Appeal Act 2012 (NSW), s 5 Crimes Act 1900 (NSW), ss 51B, 95, 154C, Criminal Procedure Act 1986 (NSW), s 166 Crimes (Sentencing Procedure) Act 1999 (NSW), s10A
Cases Cited:	CL v R [2014] NSWCCA 196 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Crowley [2004] NSWCCA 256 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category:	Principal judgment
Parties:	Zachary Joel Dowling (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (Self-represented) N Williams (Regina)   Solicitors: Solicitor for Public Prosecutions (Regina)
File Number(s):	2014/149409
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 3 September 2015 Before: Ellis DCJ File Number(s): 2014/149409

Judgment

1. LEEMING JA: I agree with Adamson J.

2. ADAMSON J: By application filed on 23 March 2017 the applicant, Zachary Dowling, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 2012 (NSW) against three sentences imposed by Ellis DCJ on 3 September 2015 for offences committed on 17 May 2014.

3. The total effect of the three sentences imposed, which are set out in the table below, was a term of 8 years’ imprisonment, commencing on 17 May 2014 and expiring on 16 May 2022, with a non-parole period of 5 years, commencing on 17 May 2014 and expiring on 16 May 2019.

Offence	Section of Crimes Act 1900 (NSW)	Maximum penalty/ Standard non-parole period (SNPP)	Sentence imposed after discount for plea of guilty	Discount for plea of guilty
Aggravated robbery	95(1)	20 years’ imprisonment.	Imprisonment for 6 years commencing on 17 May 2016 and concluding on 16 May 2022, with a non-parole period of 3 years concluding on 16 May 2019.	15%
Aggravated assault with intent to take/ drive motor vehicle	154C(2)	14 years’ imprisonment/ SNPP 5 years’ imprisonment.	Imprisonment for 4 years and 6 months commencing on 17 November 2014 and concluding on 16 May 2019, with a non-parole period of 3 years concluding on 16 November 2017.	25%
Fail to stop during police pursuit and drive at dangerous speed	51B(1)	5 years’ imprisonment and disqualification for 3 years.	Imprisonment for a fixed term of 12 months which commenced on 17 May 2014 and concluded on 16 May 2015.	25%

4. The sentencing judge also imposed sentences for two related offences which were the subject of a certificate issued pursuant to s 166(1) of the Criminal Procedure Act 1986 (NSW). For the offence of drive at a speed dangerous his Honour, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), convicted the applicant and imposed no further penalty. For the offence of drive with mid-range prescribed concentration of alcohol (PCA), the applicant was convicted and sentenced to 2 months’ imprisonment from 17 May 2014 until 16 July 2014. His licence was disqualified for 18 months.

The sentence proceedings

The facts

5. The following narrative is taken from the statement of facts upon which the applicant was sentenced.

6. At 5.40am on 17 May 2014, Raphael Zaslona, who was employed by Kurri Kurri Taxis, received a radio message to collect the applicant from a location in Kurri Kurri. When Mr Zaslona arrived at the location, the applicant told him that he wanted to be driven to Newcastle, which was a distance of about 40kms. Mr Zaslona responded by saying that he needed to be paid $120 before he would drive him there. The applicant informed Mr Zaslona that if he drove him to his cabin at a nearby caravan park, he would get the $120 for him. Mr Zaslona consulted the radio despatch office and was instructed to do as the applicant had requested. Mr Zaslona accompanied the applicant to his caravan where he waited outside until the applicant invited him to enter the cabin.

7. Once Mr Zaslona was inside the kitchen area of the cabin, the applicant came out of the bedroom carrying a knife. When Mr Zaslona tried to escape from the cabin, the applicant wrestled him to the ground, held the knife to his throat and said: “Where are the keys to the car? Where is the money?” He also said, “[w]e are going to get my son and we are going to sort some people out”. He warned Mr Zaslona that if he ran, the applicant would put a knife through his throat. The applicant grabbed Mr Zaslona’s foot and tried to drag him across the floor. When Mr Zaslona tried to stand, the applicant kicked him twice in the head, which fractured his nose. When the applicant demanded Mr Zaslona’s wallet, his personal identification number (PIN) and the keys to the taxi, he complied, as he feared for his life. The applicant instructed Mr Zaslona to clean up his own blood from the areas where it had been shed in the applicant’s caravan.

8. The applicant told Mr Zaslona that he had to get to Queensland to see his son and that he was going to bash his son’s mother. The applicant held the knife at Mr Zaslona’s neck, walked him to the taxi, which was parked outside his cabin, and directed him to sit in the front passenger seat. Once they were both inside, the applicant demanded the money, which Mr Zaslona handed over to him. The applicant then cut the wires to the taxi’s meter, the in-car CCTV surveillance and the two-way radio. He repeated his earlier warning that if Mr Zaslona tried to run away, “you know what I will do with this knife”.

9. The applicant drove to a service station at Mayfield and directed Mr Zaslona to go in and buy a pouch of tobacco and cigarette papers. When Mr Zaslona was inside the service station store, he asked the console operator whether she could lock him in the store with her as the man in the taxi was robbing him. She told him to stay in the store, on camera, while she called the police. However, Mr Zaslona returned to the taxi.

10. The applicant drove north along the Pacific Highway at high speed. He again told Mr Zaslona:

“I have to get to my son. It will take a couple of days. I need to sort some people out and then we will come back. You will watch me punch my mum.”

11. At about 7.23am, the manager of Kurri Kurri taxis reported to Newcastle police that Mr Zaslona and his taxi were missing. As a result, police in the area were on alert. Police also received several reports from the community about the way a taxi was being driven along the Pacific Highway.

12. At 8.27am, Senior Constable Gale recorded the speed of the taxi (which was being driven by the applicant in a 100kms/hour zone) to be more than 180kms/hour. Police pursued the taxi with lights flashing and sirens sounding. Eventually, tyre deflation devices placed on the road ahead of the applicant brought his journey to an end. The applicant was arrested, breath-tested and taken to Taree Police Station, where he was searched. The $145 found on him belonged to Mr Zaslona. A breath analysis test showed an alcohol concentration in his blood of .106%. As a result he was charged with mid-range PCA.

13. The applicant agreed to participate in an electronically recorded interview. He admitted that Mr Zaslona had taken him to his caravan in Maitland. He told police that he wanted to get to Brisbane to see his son because his son was not being treated properly. He told police that he intended to pick up his son from Brisbane and drive him back in the taxi to Maitland. He admitted that he was highly intoxicated as a result of drinking since midday on the previous day. He admitted that he was addicted to alcohol and drinks about 20 drinks a day. He told police that he only had about $10 cash on him when he rang the taxi service.

Evidence tendered at the sentence hearing

Evidence tendered by the Crown

14. The Crown bundle tendered at the sentence hearing included the statement of facts from which the narrative set out above is taken. It also included the applicant’s criminal history in New South Wales and Queensland, his traffic history and a pre-sentence report dated 6 June 2015. Procedural material was included that established that the applicant had pleaded guilty to the offence of aggravated robbery after it had been listed for trial in the District Court. The applicant had pleaded guilty in the Local Court to the other two offences which were, accordingly, committed to the District Court for sentence.

15. The material also established that, on 3 September 2012, the applicant was given suspended sentences with good behaviour bonds of 12 and 6 months respectively for the offences of assault occasioning actual bodily harm and destroy or damage property. On 20 August 2013 the applicant was called up for breaching those bonds and was sentenced to full-time custody for a period of 12 months with a non-parole period of 6 months. The parole period for the offence of assault occasioning actual bodily harm was to expire on 18 August 2014. The pre-sentence report indicated that, in early April 2014, the Parole Authority had requested that the parole order be revoked on the basis that the applicant had ceased contact with his supervising parole officer.

16. The Crown tendered a report from Kerry Lane, psychologist to whom Mr Zaslona had been referred for the purposes of the statement. It relied on the document as a victim impact statement. Mr Zaslona signed the cover sheet of the report on 3 September 2015 and endorsed it with the words: “I do not object to this statement being given to the court”. Mr Hammond, who appeared for the applicant at the sentence hearing, did not object to the statement.

17. In the report Ms Lane said:

“Mr Zaslona stated that he believed he would be killed by the accused on the night of 17 May 2014. In fear for his life he made a decision to comply with requests made by the accused in an attempt to appease him. He described having a distorted sense of reality, perception and time throughout the course of the events and being completely overwhelmed by terror and the fear of death. In addition to the fear of being murdered by his attacker, Mr Zaslona feared the possibility of death in a motor vehicle accident due to Mr Dowling’s reckless and dangerous driving at excessive speeds. Mr Zaslona’s altered state of consciousness during the event is a defence mechanism of the body when experiencing complete powerlessness in a terrifying situation.

From my discussions with Mr Zaslona I became aware of the significant impact and the resultant ongoing symptoms experienced by him as a result of the physical assault and abduction of him by Mr Dowling . . .”

18. Ms Lane summarised the effect of the incident on Mr Zaslona as follows:

“Mr Zaslona is unable to resume the normal course of his life due to the repetitive intrusions of the trauma he has experienced. He continues to relive the event as ‘flashbacks’ during his waking state and as traumatic nightmares during sleep. Mr Zaslona is in a constant state of arousal. He is hypervigilant to his surroundings and has ongoing concerns about his physical safety. This prevents him from engaging with others at work and home in the comfortable and easy going way he once enjoyed. His sense of alienation and detachment resulting from his trauma experience pervades all of his intimate, familial and social relationships. In addition his connection to community is fractured.

His ongoing distress causes impairment in familial, social, occupational and other important areas of functioning. This is in sharp contrast to the gregarious, extroverted person who actively and wholeheartedly engaged with his family, friends and community, had an active work and social life and a clear vision of his future. As a result of the events of 17 May 2014 Mr Zaslona has experienced significant losses in all areas of his life. Ongoing trauma counselling is recommended.”

Evidence tendered by the applicant

19. Mr Hammond, tendered a report from Ms Talmacs, psychologist, dated 11 March 2015. The report set out details of the applicant’s troubled childhood and the applicant’s rationale for his offending conduct.

20. The applicant gave evidence at the sentence hearing. He adopted the statements he had made to Ms Talmacs. He gave evidence that he was diagnosed with attention deficit hyperactivity disorder, also known as ADHD, when he was five years old. He also gave evidence that he had started drinking alcohol from a young age. He said that he had not drunk alcohol since being arrested. He had been diagnosed with depression in 2011 and had been prescribed medication, Lexapro, which he was not taking at the time of the offending because he did not have enough money to get the script filled.

21. The applicant gave evidence of remorse and said that he had written a letter of apology to Mr Zaslona, which was tendered and a copy given to Mr Zaslona, who was present in court for the sentence hearing. The applicant agreed in his evidence that he was on parole for an assault against his father, when he committed the present offences. He explained that he assaulted his father because he was absent when the applicant was being sexually molested by his uncle and “never did anything about it or never tried to help in any way, he just let me down”. The applicant said that he would not re-offend because he has been sober for so long. He said that if he ever thought that his son was in danger again he would call his own mother and “let her take care of it and then let me know”.

22. In cross-examination, the applicant explained that he had been speaking to his former partner, Jess, who was the mother of his son, a few days before the offences were committed. The applicant said that Jess told him that he would never be able to see his son again. The applicant said that he was worried that Jess’s new partner might be “touching up” his son.

The remarks on sentence

23. The sentencing judge correctly identified, in respect of each offence, the maximum penalties and, in the case of the aggravated assault, the applicable standard non-parole period. His Honour allowed a discount of 15% for the offence of aggravated robbery and 25% for the other two offences. His Honour noted the prior record, which included, in New South Wales, assaults occasioning actual bodily harm in 2011 and 2013; and, in Queensland, an assault in 2009 and serious assaults in 2012 and 2013. The sentencing judge referred to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and said that he considered the present case to fall into a higher category than the usual case (for which the starting point was 4-5 years) and indicated a starting point of 7 years.

24. The sentencing judge was satisfied that no sentence other than imprisonment would be appropriate. His Honour noted the applicant’s intoxication with alcohol at the time of the offending and that he had taken ice within 48 hours of the offending. His Honour took into account, in the applicant’s favour, his recent period of sobriety while in custody. The sentencing judge referred to the applicant’s childhood, which had “acclimatised” him to the abuse of alcohol and drugs. On this basis his Honour said:

“[T]here is a reduction in moral culpability for young men who grow up within environments where they are essentially taught that abusing alcohol and drugs is normal meaning that they become involved before they are mature enough or old enough themselves to make an informed decision about abusing drugs and/or commencing to use illicit substances.”

25. His Honour referred to Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 and the principle of totality and noted that there was a “significant amount of overlap as between these offences in terms of the factual situation”. His Honour found special circumstances on the basis of mental health issues and the need to prevent a relapse into substance abuse when the applicant is released from custody. The sentencing judge noted Ms Lane’s report and accepted that it was a “very traumatic day” for Mr Zaslona and that the offending has had a “significant impact”. However, his Honour did not take the harm to the victim into account as an aggravating factor because he considered that the harm did not fall within a range which was “well above the normal”. The sentencing judge accepted that the applicant was “genuinely remorseful” and that he was committed to remaining drug-free.

The grounds of appeal

26. The applicant represented himself on the application. His grounds of appeal, as set out in the draft notice are:

“1.   Error Code by the Judge during the trial

2.   factual statement & Justification facts

3.   severity of Sentence

4.   contribution to W-C-C ever since I was sentenced

5.   free of charges or illegitimate Behaviour during my sentence.”

27. I regard grounds 4 and 5 as matters which the applicant proposes to raise in the event that this Court sets aside the sentences and is required to re-sentence.

Consideration

28. I regard grounds 1-2 as being, in substance, a complaint that the sentencing judge proceeded on an incorrect factual basis and ground 3 to be a complaint that the sentences and the total effective sentence were manifestly excessive. These grounds will be considered in turn.

Grounds 1-2: the sentencing judge proceeded on an incorrect factual basis

29. The applicant appears to rely on an alleged discrepancy between the facts for which he contended in this Court and the statement of facts on the basis of which he was sentenced. In his submissions to this Court, the applicant has attempted to cast a different light on his offending conduct and to attribute blame to the victim for being, in part, the author of his own misfortune. For example, he said in his written submissions:

“The main part is the cab company & Driver have to take some ownership of their part in the scenario they both knew I had no money on me to start with. Knowing that still took on the Job.

Not condoning any of my Actions, I am very remorseful for what I did. I never thought I would ever do that.”

30. He submitted orally to this Court that Mr Zaslona failed to take the opportunity to get help on two occasions: first, when he was in the caravan park; and, secondly, when he came out of the service station. The applicant implied that Mr Zaslona had somehow chosen to continue on the journey with him of his own free will. I regard this submission as wholly at odds with the facts, which were tendered by the Crown at the sentence hearing without objection from counsel who appeared on the applicant’s behalf and on the basis of which his Honour sentenced him.

31. The facts on the basis of which an offender is sentenced must generally be either proved to the requisite standard, admitted or agreed: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14; GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]. It is preferable that the facts be signed by the offender before sentence in order to indicate his or her agreement to the facts. However, where this course is not taken, the agreement can be indicated to the Court by the conduct of counsel for the person who stands to be sentenced.

30. In the present case, I regard the applicant as being bound by the conduct of his counsel: see also CL v R [2014] NSWCCA 196 at [43]-[44] per Adamson J (Hoeben CJ at CL and Fullerton J agreeing). An agreement as to the facts commonly forms the basis for sentencing following a plea of guilty. I do not discern any basis on which the statement of facts ought not to have been accepted by the sentencing judge, or on which their correctness ought to be revisited on this application. The applicant did not give evidence at the sentence hearing which cast any doubt on the correctness of the agreed facts. Nor is there any basis for supposing that he was not fully consulted about their content by his legal representatives: cf. R v Crowley [2004] NSWCCA 256. In the circumstances of the present case, there having been no query raised by the sentencing judge as to the facts of the offences, the sentencing judge was both entitled and obliged to sentence on the basis of the facts tendered by the Crown without objection.

31. Moreover, had the material which was relied on by the applicant before this Court (referred to above) been placed before the sentencing judge, his Honour may have been inclined not to find that the applicant’s remorse was genuine. Accordingly, to the extent to which any error could be said to have been made (and I do not consider there to have been any error), it was in the applicant’s favour.

Ground 3: allegation that sentence was manifestly excessive

34. The finding that a sentence is manifestly excessive is a conclusion which does not require the identification of a specific error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] per Gleeson CJ and Hayne J. It was not suggested by the applicant that his sentence ought not to have been a term of imprisonment. He contended that the sentence was too long and ought be reduced by this Court.

35. The applicant contended that the total effective sentence ought to be reduced from 8 years to 6 years and that the non-parole period ought be reduced from 5 years to 3 years. He reasoned that, since he had been with Mr Zaslona for just over 3 hours, the time required to be served in custody ought be no more than 3 years.

36. The applicant’s argument has a rudimentary mathematical logic to it. However it does not accord with the process of “instinctive synthesis” required when sentencing: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 384-388 per McHugh J.

37. The maximum penalty for an offence (which is set out above for each offence) is a relevant guidepost as to the seriousness with which Parliament regards the offence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The applicant’s offending conduct was very serious. It terrorised the victim and caused significant danger to members of the community who happened to be on the Pacific Highway at the time. The sentencing judge correctly allowed for some concurrence between the sentences but also an appropriate degree of accumulation. His Honour made several findings in the applicant’s favour, including that his remorse was genuine; that his moral culpability was reduced because of the circumstances of his childhood; and that he had made considerable attempts to rehabilitate himself between his arrest and the sentence hearing. Despite the evidence of the substantial, and debilitating, effects of the offences on Mr Zaslona, his Honour was not satisfied that the harm to the victim was greater than would normally be expected as a consequence of such offences and declined to take it into account as an aggravating factor. His Honour was obliged to take into account the applicant’s criminal history and that he was on parole at the time of the offences. His Honour weighed objective and subjective circumstances, together with the legislative guideposts before arriving at the sentences for the individual offences which resulted in the total effective sentence.

38. I am unable to discern any error in the approach taken by the sentencing judge either in the individual sentences or in the total effective sentence.

39. Accordingly, the matters raised by the applicant in grounds 4 and 5 do not need to be considered.

Proposed orders

40. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

41. WILSON J: I agree with Adamson J.

**********

Decision last updated: 17 May 2017