Dunn v The Queen

[2009] NSWCCA 10

New South Wales
Court of Criminal Appeal

CITATION:	Dunn v R [2009] NSWCCA 10
HEARING DATE(S):	6 February 2009
JUDGMENT DATE:	25 February 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Adams J at 43
DECISION:	1.Leave to appeal against the sentences imposed by her Honour Judge English on 19 November 2007 granted. 2.Appeal against sentence allowed in the following respects:- (a) Quash the sentence for the offence under s 33B of the Crimes Act and in lieu thereof impose a sentence of a non-parole period of three years commencing on 27 July 2007 and expiring on 26 July 2010 and a balance of the term of two years three months. (b) Quash the sentence for the offence under s 25(2) of the Road Transport (Driver Licensing) Act 1998. (c) The earliest date on which the applicant will be eligible for release on parole is 26 July 2010. 3.In all other respects confirm the sentences imposed by Judge English.
CATCHWORDS:	CRIMINAL LAW — Sentencing — no question of principle
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act Crimes Act Criminal Procedure Act Road Transport (Driver Licensing) Act 1998 Road Transport (Safety and Traffic Management) Act 1999 Summary Offences Act
PARTIES:	DUNN, Michael Anthony Regina
FILE NUMBER(S):	CCA 2007/5742
COUNSEL:	T S Corish - Appellant P A Leask - Respondent
SOLICITORS:	S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/1134
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	19 November 2007

2007/5742

McCLELLAN CJ at CL
JAMES J
ADAMS J

WEDNESDAY 25 FEBRUARY 2009

DUNN, Michael Anthony v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Michael Anthony Dunn applied for leave to appeal against sentences imposed on him in the District Court by her Honour Judge English on 19 November 2007 for offences to which the applicant had pleaded guilty.

3 The offences for which the applicant was sentenced were:-

1. Using an offensive weapon, a motor vehicle, to prevent lawful apprehension, an offence under s 33B of the Crimes Act, for which the maximum penalty is imprisonment for 12 years.

In sentencing the applicant for this offence her Honour took into account the additional offences of:-
(1) Having in his custody without reasonable excuse an offensive implement, namely a kitchen knife, in a public place, an offence under s 11B(1) of the Summary Offences Act .
(2) Failing to give particulars to another driver involved in a collision with a vehicle driven by the applicant, an offence under the Australian Road Rules made under the Road Transport (Safety and Traffic Management) (Road Rules) Regulations .

2. Driving a motor vehicle knowing that it had been taken without the consent of the owner, an offence under s 154A(1)(b) of the Crimes Act.

4 The sentences imposed by her Honour were, for the offence under s 33B of the Crimes Act a sentence of imprisonment consisting of a non-parole period of three years six months commencing on 27 July 2007 and a balance of the term of two years six months, making a total sentence of six years, and for the offence under s 154A of the Crimes Act a fixed term of imprisonment of two years three months also commencing on 27 July 2007.

5 On 19 November 2007 Judge English also dealt with, under Div 7 of Pt 3 of Ch 3 of the Criminal Procedure Act, two “back-up” offences, which were really “related offences” and not “back-up offences”, to which the applicant had pleaded guilty. For an offence of driving in a manner dangerous to the public, an offence under s 42(2) of the Road Transport (Safety and Traffic Management) Act 1999, her Honour imposed a sentence of imprisonment for six months, also to commence on 27 July 2007. For an offence of driving a motor vehicle never having been licensed, an offence under s 25(2) of the Road Transport (Driver Licensing) Act 1998, her Honour imposed a sentence of nine months imprisonment, also to commence on 27 July 2007.

6 The facts of the offences was stated by her Honour in her remarks on sentence in a way which was not the subject of any criticism on this application.

7 On the morning of 17 October 2006 a motor vehicle (which it is convenient to refer to as “the Toyota”) was stolen from the garage of the house of its owner.

8 On the afternoon of 21 October 2006 the Toyota was being driven by the applicant, who was unknown to the owner of the Toyota and did not have any consent from the owner of the Toyota to drive it.

9 While the Toyota was being driven by the applicant, it collided with another vehicle. The applicant failed to stop and exchange particulars with the driver of the vehicle with which the Toyota had collided. The applicant’s failure to give particulars constituted the second offence to be taken into account in the sentencing of the applicant for the s 33B offence.

10 The driver of the other vehicle reported the collision to police. The Toyota was observed by police in a police highway patrol vehicle. A chase ensued in which the Toyota being driven by the applicant was pursued by the police vehicle.

11 Part of the chase was described as follows by the sentencing judge:-

“The offender accelerated to a speed of no less than ninety kilometres per hour in a fifty kilometre per hour zone. He travelled through a speed-calming chicane and then over a speed bump and across a raised pedestrian crossing, all at speed, only slowing slightly. Whilst turning left on to Bougainville Road the offender crossed to the incorrect side of the road. He then turned left into Apia Place and accelerated harshly. As the offender neared the end of the street the vehicle’s brake lights were seen to illuminate. The offender then put the vehicle into reverse and reversed back into the police vehicle. The offender caused the rear of the Toyota Camry to collide with the front off-side of the police vehicle. The offender has then driven in a westerly direction across Luxford Road and into Hawaii Avenue and turned into Waitaki Street. The offender drove approximately twenty metres and then stopped the vehicle. The reversing lights were seen to illuminate, the offender commenced to reverse the vehicle, however stopped momentarily before reversing at speed towards the police vehicle which was in the process of turning right into Waitaki Street.
Senior Constable Pilgrim engaged the police vehicle in reverse and began to reverse back into Hawaii Avenue. The offender continued to reverse at the police vehicle cutting the apex of Hawaii Avenue and reversing directly into the driver’s side of the police vehicle. Both police officers feared for their safety and thought they would be seriously injured by the offender’s actions. The Toyota Camry driven by the offender impacted heavily with the driver’s side of the police vehicle causing the police vehicle to spin to the left. The offender continued to reverse the Toyota Camry, stopping in front of the police vehicle. The police officers turned the police vehicle towards the Camry and accelerated, pushing it into the western kerb of Waitaki Street and stopping it from going any further. The offender refused to get out of the Toyota Camry. He was saying “You’ve got me, you’ve got me”. He then winked and smiled at the police.”

12 The applicant was removed by police from the Toyota and was arrested. When the applicant was searched a kitchen knife was found in one of his pockets. The applicant’s possession of the kitchen knife gave rise to the first of the offences to be taken into account in the sentencing of the applicant for the s 33B offence.

13 Inquiries revealed that the applicant had never been licensed to drive a motor vehicle in New South Wales and, accordingly, he was charged with the second related offence.

14 In her remarks on sentence the sentencing judge found that the second s 33B offence was an objectively serious one. Apart from the applicant’s conduct in driving the Toyota, including deliberately reversing into the police vehicle which was pursuing the Toyota, the offence was aggravated by the fear for their safety the police officers had experienced and the actual physical injuries they had suffered and by the damage to both vehicles and by the applicant’s disregard for public safety. The applicant had been on conditional liberty at the time of committing the offence. Her Honour recognised, correctly, that there was a strong need for general deterrence in sentencing the applicant.

15 In her remarks on sentence the sentencing judge referred to some of the subjective circumstances of the applicant. The applicant was 30 years old at the time of being sentenced. He had a very extensive criminal history, including a number of sentences of imprisonment, such that her Honour found that “this offender is institutionalised, he has spent a greater part of his life in custody”. In her remarks her Honour referred to the applicant’s pleas of guilty, made in the applicant’s favour a finding of contrition and assessed the applicant’s prospects of rehabilitation as “only fair”.

16 In her remarks on sentence her Honour considered the question of when the sentences she would impose should commence. At the time of committing the offences on 21 October 2006 the applicant was at liberty on parole under a sentence imposed for an earlier offence. After 21 October 2006 but on grounds independent of his having committed the offences of 21 October 2006, the applicant’s parole under the sentence for the earlier offence was revoked. The balance of that parole was one year seven months 24 days. Her Honour decided to make the sentences she would impose commence on 27 July 2007, when the applicant had “publicly admitted his guilt”, and when the applicant would have served about half of the balance of the parole under the earlier sentence. On this application no criticism was made of her Honour’s decision about when the sentences she would impose should commence.

17 I will now turn to the grounds of appeal against sentence.

1. The sentencing judge erred in imposing a sentence that failed to reflect the intended 25% discount for a guilty plea.

18 The Crown conceded that this ground of appeal should be upheld.

19 In her remarks on sentence the sentencing judge said that the applicant’s pleas of guilty were entered at the earliest opportunity and that she would allow a 25 per cent discount for the utilitarian value of the pleas of guilty. Elsewhere in her remarks on sentence her Honour stated that, if there had been a trial of the charge under s 33B, that is if there had been no plea of guilty, she would have imposed a head sentence of seven years. If there had been a trial of the s 154A offence, she would have imposed a head sentence of three years.

20 When these putative head sentences are compared with the sentences actually imposed, it can be seen that her Honour reduced the sentence for the s 154A offence from three years to two years three months, that is she did allow a discount of 25 per cent for the plea of guilty. However, the sentence for the s 33B offence was reduced only from seven years to six years. If a discount of 25 per cent had been allowed, the sentence would have been reduced to five years three months. It was conceded by the Crown that the head sentence for the s 33B offence should be reduced to five years three months.

2. The learned sentencing judge erred in imposing a sentence of imprisonment in relation to the offence under section 25(2) of the Road Transport (Driver Licensing) Act 1998 when the maximum penalty was a fine.

21 The Crown also conceded that this ground of appeal should be upheld.

22 The second related offence was an offence under s 25(2) of the Road Transport (Driver Licensing) Act 1998. Section 25(2) provides:-

“A person who has never been licensed must not, unless exempted by the regulations, drive a motor vehicle on any road or road related area without being licensed for that purpose.
Maximum penalty: 20 penalty units (in the case of a first offence) or 30 penalty units or imprisonment for a period 18 months or both (in the case of a second or subsequent offence).”

23 Section 25(5) provides, so far as is relevant:-

“An offence under this section is a second or subsequent offence for the purposes of this section if:
(a) it is the second or subsequent occasion on which the person is convicted of an offence against this section within the period of 5 years immediately before the person is convicted of the offence…”

24 Although the applicant did have a previous conviction for an offence under s 25(2), the previous conviction had been more than five years before he was convicted of the offence committed on 21 October 2006. Consequently, the offence committed on 21 October 2006 was “a first offence” and not “a second or subsequent offence” and there was no power in the sentencing judge to impose a sentence of imprisonment.

25 The sentence of imprisonment imposed by the sentencing judge for the second related offence should be quashed. In my opinion, there would be little point in this Court imposing a fine on the applicant. The maximum penalty this Court could impose would be a fine of 20 penalty units. The applicant is in custody and will remain in custody for some time. There is nothing in the material before this Court to suggest that the applicant would have any means with which to pay a fine.

3. The sentencing judge erred in imposing an overall sentence and non-parole period which was manifestly excessive.

26 This ground of appeal was not pressed by counsel for the applicant on the hearing of the application. As I have already indicated, the principal sentence, that is the sentence for the s 33B offence, is to be reduced from six years to five years three months as result of this Court allowing the first ground of appeal.

Division of the head sentence

27 The only matter which was ultimately the subject of any argument on the application was how a head sentence of five years three months for the s 33B offence should be divided into a non-parole period and a balance of the term (parole period).

28 In its written submissions the Crown submitted that, notwithstanding that it conceded that the head sentence should be reduced from six years to five years three months, the non-parole period of three years six months set by the sentencing judge should be retained. However, in oral submissions counsel for the Crown conceded, properly, that, because the head sentence was being reduced, some reduction should be made to the non-parole period.

29 In her remarks on sentence the sentencing judge noted that she had been asked to make a finding of special circumstances, that is a finding under s 44(2) of the Crimes (Sentencing Procedure) Act. Her Honour said “he (the applicant) is entitled to such a finding due to the partial accumulation of the sentences to be imposed but not otherwise”. At first sight the expression “the partial accumulation of the sentences to be imposed” might seem puzzling, because her Honour made all the sentences she imposed commence from the same date 27 July 2007. However, it is clear from her Honour’s remarks on sentence that the “the partial accumulation” she had in mind was the partial accumulation of the sentences she would impose on part of the balance of the parole under the earlier sentence, that is that the applicant would serve nine months in prison between 21 October 2006 and 27 July 2007, before commencing to serve the sentences her Honour would impose.

30 It was suggested, rather faintly, by counsel for the applicant that the sentencing judge had erred in declining to find special circumstances, otherwise than on the basis of “the partial accumulation”.

31 I would reject this submission. There was no subjective factor of the respondent such that it was not open to her Honour to decline to find that there was special circumstances. In fact, the combination of the nine months being part of the balance of the parole and the non-parole period of three and a half years of the principal sentence set by her Honour was less than 75 per cent of a combination of the nine months and the head sentence of six years set by her Honour.

32 It was submitted by counsel for the applicant that her Honour’s error in imposing a sentence of imprisonment for the second related offence of driving a motor vehicle never having been licensed had “infected” the whole sentencing process.

33 I would reject this submission. The sentencing of the applicant for the related offences played only a minor part in the sentencing of the applicant.

34 Early in her remarks on sentence her Honour, after referring to the offences under s 33B and s 154A, said “there are matters to be dealt with contained in a section 166 certificate at the conclusion of these sentence proceedings”. Her Honour did not return to the subject of the related offences until very late in her remarks on sentence. After having sentenced the applicant for the two principal offences, her Honour simply announced the sentences she was imposing for the two related offences.

35 References earlier in her Honour’s remarks to a period of nine months were not references to the length of the sentence her Honour would impose for the driving never having been licensed offence but references to the length of the part of the balance of parole under the earlier sentence which should be served before the sentences imposed by her Honour would commence.

36 I do not consider that the error by her Honour in sentencing the applicant for the second related offence played any part in the determination by her Honour of the sentences she would impose for the two principal offences.

37 It was submitted by counsel for the applicant that her Honour had decided that a parole period of two and a half years was required and that, even though the head sentence was being reduced, the parole period of two and a half years should be retained.

38 I would reject this submission. There is nothing in her Honour’s remarks to suggest that she considered that a parole period of two and a half years was required, regardless of the length of the head sentence.

39 As was conceded by the Crown, because of the reduction in the head sentence for the s 33B offence from six years to five years three months, some reduction should be made in the non-parole period of that sentence.

40 In my opinion, a non-parole period should be set so that a combination of (a) the nine months to be served by the applicant as part of the balance of parole under the earlier sentence and (b) the new non-parole period should bear the same proportion to the combination of (c) the nine months and (d) the new head sentence of five years three months, as the combination of nine months and the non-parole period of three and a half years set by her Honour bore to the combination of nine months and six years being the head sentence set by her Honour.

41 On this basis, with some rounding off to the nearest month, the new non-parole period should be three years.

42 In my opinion, the following orders should be made:-

1. Leave to appeal against the sentences imposed by her Honour Judge English on 19 November 2007 granted.

2. Appeal against sentence allowed in the following respects:-

(a) Quash the sentence for the offence under s 33B of the Crimes Act and in lieu thereof impose a sentence of a non-parole period of three years commencing on 27 July 2007 and expiring on 26 July 2010 and a balance of the term of two years three months.

(b) Quash the sentence for the offence under s 25(2) of the Road Transport (Driver Licensing) Act 1998.

(c) The earliest date on which the applicant will be eligible for release on parole is 26 July 2010.

3. In all other respects confirm the sentences imposed by Judge English.

43 ADAMS J: I agree with James J.

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