Elyard v R

[2006] NSWCCA 43

CITATION:	ELYARD v. REGINA [2006] NSWCCA 43
HEARING DATE(S):	Tuesday 17 January 2006
JUDGMENT DATE:	6 March 2006
JUDGMENT OF:	Basten JA at 1; Howie J at 38; Hall J at 46
DECISION:	Application for leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law - appeal against sentence - aggravated dangerous driving occasioning grievous bodily harm - applicant drove through a red light a collided with a pedestrian - ingestion of a combination of drugs - discount for guilty plea - guideline judgment in Jurisic - prospects of rehabilitation - sentencing judge rejected expressions of remorse without evidentiary basis of genuineness - aggravating features were elements of the offence - error in sentencing process
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Road Transport (General) Act 1999 Road Transport (General) Act 2005 Criminal Appeal Act 1912
CASES CITED:	R v Way (2004 60 NSWLR 168 R v Berg [2004] NSWCCA 300 R v Jurisic (1998) 45 NSWLR 209 R v McMillan [2005] NSWCCA 28 R v Ancuta [2005] NSWCCA 275 R v Aslan [2005] NSWCCA 121 Application by the Attorney General under s.37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSWCCA 303 R v Simpson (2001) 53 NSWLR 704 Douar v R [2005] NSWCCA 455 R v Tadrosse [2005] NSWCCA 145 R v JBD [2005] NSWCCA 102 R v Pearson [2005] NSWCCA 116 R v Youkhana [2004] NSWCCA 412 R v Solomon [2005] NSWCCA 158 R v Whyte (2002) 55 NSWLR 252 R v Thomson & Houlton (2000) 49 NSWLR 383 AB v The Queen (1999) 198 CLR 111 R v Johnson [2005] NSWCCA 186
PARTIES:	TRAVIS JAMES ELYARD v. REGINA
FILE NUMBER(S):	CCA 2005/1904
COUNSEL:	App: T.C. Watts Resp: V. Lydiard
SOLICITORS:	App: P. Murphy Resp: S. Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3035
LOWER COURT JUDICIAL OFFICER:	Maguire, DCJ.

2005/1904

BASTEN, JA.
HOWIE, J.
HALL, J.

MONDAY 6 MARCH 2006

TRAVIS JAMES ELYARD v. REGINA

Judgment

1 BASTEN JA: In this matter I have had the benefit of reading in draft the judgment of Hall J, which relieves me of the need to refer to the factual and legal background to this application for leave to appeal against sentence.

2 I agree with His Honour’s proposed orders and, subject to the following qualifications, his Honour’s reasons. The matters I would wish to address, are as follows:

(a) the approach to be taken to the “aggravating factors” identified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act ”);

(b) the assessment of prospects of rehabilitation, and

(c) criticisms of the opinions expressed by a clinical psychologist, and

(d) licence disqualification.

Aggravating circumstances

3 The form and structure of s 21A of the Sentencing Procedure Act was discussed by this Court in a number of cases including R v Way (2004) 60 NSWLR 168 at [56]-[58], and R v Berg [2004] NSWCCA 300 at [18] and [24]-[30] (Howie J) and [38]-[40] (Spigelman CJ). As has been noted, s 21A(1) is expressed in terms which do not seek to constrain reference to those matters which are required or permitted to be taken into account otherwise than under that provision: see also s 21A(4). On the other hand, care must be taken now to comply with the express requirements of s 21A (and other relevant statutory provisions) whether or not similar requirements existed under the general law.

4 Terms such as “aggravating factors” and “mitigating factors”, have a long history of use in this area of the law. Depending on context, usage may vary, but one common intention is to identify those circumstances which may tend to place a particular offence towards the upper or lower ends of a range of moral culpability. That, for example, appears to have been the intended meaning of “aggravating factor” as used in R v Jurisic (1998) 45 NSWLR 209 at 231. On the other hand, the factors identified in that case could work in either direction: they were in truth ‘relevant considerations’. For example, one factor was the “number of people put at risk”. If that figure were very low, it might be considered a mitigating factor, whereas if it were high, it might be considered an aggravating factor. The relevance of other factors was somewhat ambivalent. Thus, the length of the journey intended to be undertaken by a person under the influence of alcohol is often treated as a relevant consideration, the willingness of an intoxicated person to undertake a lengthy journey being treated as a circumstance of aggravation. On other hand, a very short journey which could have been readily undertaken on foot, may be seen as an aggravating factor because a vehicle was used when such use could easily have been avoided.

5 The clear intention of s 21A was to distinguish aggravating and mitigating factors by identifying them in terminology which was not neutral. Nevertheless, the section does not specify how they are necessarily applied. One approach, commonly adopted in sentencing practice, is to assume that, in terms of culpability of the offender, or potential severity of penalty, particular conduct falls within a high or low range, or otherwise within a mid-range. If that approach is adopted, aggravating factors may be treated as those which support an inference that the conduct involves a level of culpability falling above the mid-range. Mitigating factors have the obverse effect.

6 The one express indication as to the limits of permissible usage, found in sub-s 21A(2), is as follows:

“The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

This direction causes difficulty of application in some circumstances, being a difficulty highlighted in the present case. The elements of the offence are to be ascertained by reference to the statutory provisions set out by Hall J at [69] and [70] below. The relevant element of aggravation was that the appellant’s ability to drive was “very substantially impaired” by his consumption of drugs. As Hall J notes, the evidence established such impairment, but was insufficient to establish to the requisite degree anything above and beyond that element of impairment which constituted the circumstance of aggravation. Accordingly, it was submitted, the sentencing judge could not have had regard to “the degree of intoxication” as an aggravating factor: see [98] below; c.f. Regina v Berg [2004] NSWCCA 300 at [25].

7 Three questions arise in relation to this aspect of the matter. First, “degree of intoxication” is not one of the factors identified in s 21A(2). On the other hand, his Honour regarded it as (with two other factors) demonstrating “an abandonment of responsibility”. That consideration may, at least if it encompasses a degree of conscious or reckless disregard for other road users, fall within paragraph (2)(i), which refers to the offence being committed “without regard for public safety”. This in turn is likely to be a common, if not inevitable, attribute of the aggravated offence, but it is not an element of the offence which needs to be proved. The second question is whether the prohibition should be understood as extending to inherent characteristics of, or characteristics which appertain generally to, an element of the offence.

8 Thirdly, the prohibition contained in the last sentence of sub-s (2) is directed against having “additional regard” to an element of the offence which is an aggravating factor. This prohibition recognises, inevitably, that any element of an offence is a factor to be taken into account; the important question, left unanswered, is how it may legitimately be taken into account. In the present case, the same offence without the circumstance of aggravation is subject to a maximum penalty of 7 years imprisonment. The circumstance of aggravation thus lifts the maximum penalty by 4 years, to 11 years, and the mid-point in the scale by 2 years, from three and a half years to five and a half years. That variation may properly be relied upon by a sentencing judge to determine the significance attributed by Parliament to the presence of a circumstance of aggravation, as defined.

9 That legislative assessment may also be assumed to be based upon an assessment of the circumstances which will generally accompany an offence of that kind, including in this example, lack of regard for public safety. In this context, it is helpful to bear in mind that s 21A seeks to identify factors which may arise across the full range of criminal offences. Consistently with that purpose, the factors tend to be identified in general terms. The elements of a specific offence, by contrast, are likely to be defined in more precise terms. Nevertheless, the definition of a particular element may be based upon the policy of avoiding consequences which fall within the general terminology identifying the factors in s 21A(2).

10 To give effect to the underlying purpose of the prohibition, differences in language between the definition of elements of an offence and the statement of aggravating factors, must be borne in mind, as must the purpose underlying the inclusion of a particular element in a particular offence. Such a purposive approach should be applied to the constraint contained in the last sentence of sub-s (2), as a more semantic approach to the language of the various paragraphs may otherwise fail to avoid the risk of “double-counting”, being the result which is clearly intended. As a matter of principle, it follows that characteristics of an element of an offence should also not be treated as aggravating factors if they merely reflect the policy underlying the offence. There can be no doubt that the inclusion of the circumstances of aggravation identified in s 52A(7) of the Crimes Act are intended to prohibit conduct which may well occur in disregard of public safety, because the conscious creation of a drug-affected state, combined with the act of driving a motor vehicle, will usually satisfy that description. Accordingly, acting without regard for public safety should not, in such a case, be given additional effect as an aggravating factor in its own right, unless the circumstances of the case involve some unusually heinous behaviour, or inebriation above the statutory precondition.

11 Because, as noted above, elements of an offence are not irrelevant considerations in identifying an appropriate sentence, it will often be important for sentencing judges to identify with some clarity the way in which they have regard to particular factors. Use of the expression “aggravating factors”, without qualification, is likely to suggest that the matter has been relied upon as falling within the positive mandate of s 21A(2). Nor is the use suggested above the only legitimate use for such considerations. By parity of reasoning, the use of an aggravating factor as defined, which may constitute an element of, or characteristic inherent in or generally appertaining to, a particular offence, may assist in a comparative exercise. For example, it may allow a logical extension to be made from guidelines specified with respect to the ordinary offence, so as to give guidance with respect to sentencing for the aggravated offence.

12 It appears from the cases that the factor which has given rise to significant difficulty is par (i) dealing with offences committed “without regard for public safety”. There has been limited consideration as to whether this factor involves an objective, or subjective test, and if subjective, what level of conscious or reckless disregard is required on the part of the offender. It may well be that this factor should be understood as encompassing both objective and subjective circumstances. However, the distinction can be helpful in order to avoid the danger of double-counting. Where the offence is of a kind which, objectively or abstractly, reflects a policy of prohibiting conduct which disregards public safety, it will be necessary, in order to engage the aggravating factor, to find some aspect of the specific conduct in question which goes beyond the objective element or underlying policy.

13 This approach is consistent with that adopted by this Court in Regina v McMillan [2005] NSWCCA 28, particularly at [38] (Howie J, Santow JA and Bell J agreeing). It is also consistent with a frequently quoted passage from R v Way (2004) 60 NSWLR 168 at [172] in which the Court (comprised by Spigelman CJ, Wood CJ at CL and Simpson J) noted:

“What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be resold, heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake.”

But it should be emphasised that the Court’s finding was that this constituted a relevant aggravating factor, even though the sale was to an undercover operative and the potential adverse consequences for public safety did not eventuate. The distinction between treating an element of the offence as an aggravating factor, having an additional or cumulative effect, and treating specific aspects of the offence and the manner in which it was committed as having such an effect were expressly discussed at [106] and [107].

14 Subject to one possible qualification, that approach is also consistent with what was said by this Court about aggravating factors in Regina v Ancuta [2005] NSWCCA 275 at [11]-[13] (Brownie AJA, Buddin and Latham JJ agreeing). This case involved a deemed supply of a commercial quantity of heroin. The question raised was whether the sentencing judge was correct in taking into account as aggravating factors the fact that the offence was committed “without the regard for public safety” and that the victims were “vulnerable persons”, matters contained in pars (2)(i) and (l) respectively. There being no victim of the particular offence, the Court understandably held that the primary judge erred in taking par (l) into account: at [13]. In relation to par (i), the Court stated at [11]:

“It might be said that every supplier or deemed supplier of heroin has failed to have regard for public safety, but it cannot be right to say that everyone convicted of such an offence is to be punished on the basis that there is an aggravating factor, as described in s 21A(2)(i).”

15 So much may be accepted, to the extent that failure to have regard for public safety is an inherent characteristic of the offence of deemed supply of heroin and is reflected in the maximum penalty. As a characteristic of all such offences, it should not be taken into account as an aggravating factor with respect to a particular offence. (If, as might be arguable, a deemed supply did not involve conduct “without regard for public safety” at all, the aggravating factor would simply be irrelevant.) However, Brownie AJA continued, by way of obiter dicta, to make a distinction which has the potential to confuse the issue when applied to cases such as the present. At [12] his Honour stated:

“The applicant drew a distinction, which I accept as correct, between the supply (or deemed supply) of heroin and offences of a like kind on the one hand, and other offences about which one can properly say that there was a disregard for public safety such as to constitute an aggravating factor – for example, offences relating to the driving of a motor vehicle whilst inebriated, or involving the use of a firearm.”

16 In Regina v Aslan [2005] NSWCCA 121, the Court (Grove J, Hunt AJA and Hall J agreeing) were addressing an exercise in sentencing on three counts, being supply of a prohibited drug, selling firearms and supplying a large commercial quantity of a prohibited drug. The judgment noted:

“[15] As the Crown prosecutor has pointed out, the concept of an offence being committed without regard for public safety is distinguishable from the concept of specifically placing the public at risk. It seems to me it is beyond argument that the supply of a lethal weapon fits the category of aggravation as mentioned in the statute. [Reference was then made to the passage set out above from R v Way .]
[16] Thus, from that citation, it can be seen that his Honour was correct in taking into account the lack of regard for public safety in relation to all the counts with which he was dealing, the supply of drugs as well as the supply of what I have described as lethal weapons.”

With respect, although the danger may not have eventuated in that case, there was a real risk of ‘double-counting’, if concentration were to be placed on par (i) as a relevant aggravating factor, both in relation to the offence of which it appears to have been an element, and in relation to the other offences, unless there were specific aspects of the conduct of the offender which could be relied on as an additional consideration.

17 As discussed above, it is necessary to distinguish cases where a factor identified in sub-s 21A(2) as an aggravating factor is an element of an offence or, in the sense described above, an inherent characteristic or a characteristic that appertains generally to conduct covered by that offence, on the one hand, and other conduct which cannot properly be so described. Driving a motor vehicle whilst inebriated describes a range of conduct and a range of potential offences; in the case of some offences, including the present one, the conduct which includes the circumstance of aggravation in question, might be said to demonstrate an absence of regard for public safety in a more direct and obvious manner than a deemed supply of heroin. In any event it is sufficient to say that the distinction does not operate in the way suggested by Brownie AJA in Ancuta in relation to circumstances of the present case.

Prospects of rehabilitation

18 Both general law sentencing principles, picked up by the concluding sentence in s 21A(1), and the express reference in s 21A(3)(g), to the likelihood of re-offending and in (h) to the prospects of rehabilitation, require that the Court give consideration to those prospects. Any view formed by the Court in those regards, will inevitably be speculative to an extent.

19 In assessing prospects of rehabilitation, the Court will generally have access to material falling within one or more of the following categories:

(a) evidence of past conduct and behaviour of the offender;

(b) professional opinions, taking into account past conduct and behaviour and expressing views as to future prospects, and

(c) at least in some cases, the opinions and expressions of intention of the offender himself or herself.

20 In the present case, the sentencing judge had before him evidence falling into all three categories, the applicant having himself given evidence at the sentencing hearing. However, for the reasons identified by Hall J, I agree that his Honour’s remarks on sentence demonstrate a failure to give proper weight to the report of Ms Duffy and an apparent reliance on an irrelevant moral judgment about irresponsibility on the part of the applicant, in conceiving a child with his partner: see [86]-[89] below. The latter point, in particular, appears to have affected his Honour’s assessment of the evidence given by the applicant, a matter which would otherwise be properly left to his assessment. Thus, it would not normally be open to this Court to reject conclusions by his Honour that he had no optimism as to the applicant maintaining a drug-free lifestyle, and his conclusion that he was not “genuinely contrite”, but merely expressing “his fear of impending imprisonment”. In this case, those conclusions are attended by a level of doubt flowing from the identified errors.

21 In the circumstances, the best that this Court can do is to read the transcript of the evidence given by the applicant with caution, given the fact that the applicant evidently failed to persuade the sentencing judge in material respects. That being said, the Court may take some comfort from the fact that there is no suggestion that the sentencing judge relied for his assessment on the manner in which the applicant presented in the witness box; rather, it seems likely that his Honour’s scepticism was based upon the objectively established history of past conduct and behaviour.

22 In some cases, in similar circumstances it may be desirable for this Court to remit the matter for further consideration by the primary judge. However, that must be an option of last resort and neither party proposed it. The applicant should, in the present circumstances, obtain the benefit of the doubts.

Criticisms of psychologist

23 Before the sentencing judge, the applicant tendered two reports prepared by Ms Anita Duffy, a clinical psychologist. In the first report, Ms Duffy set out in some detail serious problems which the applicant had faced in his early life, including significant violence at the hands of a stepfather who, after the break-up of the relationship with the applicant’s mother murdered his new partner and subsequently committed suicide in goal. Ms Duffy also catalogued his history of substance abuse and his more recent attempts to change his lifestyle. She expressed an optimistic view in relation to his capacity to continue to abstain from drug use. At the conclusion of her second report, of 8 April 2005, she stated:

“It is thought that especially now given his drug-free status, it would be a retrograde step to introduce him into a goal system, which is apparently rife with drugs and the violence that this often incurs.”

24 Apparently in relation to this last statement, the sentencing judge stated:

“She also expresses a view about how I should discharge my function as the sentencing judge. I regard that as offensive and I reject her opinions.”

As Hall J has held at [87] below, that passage in his Honour’s judgment did not justify the rejection of her opinion out of hand. The Crown did not seek to challenge Ms Duffy’s evidence and, accordingly, it should have been accepted as a bona fide expression of professional opinion.

25 The legitimate purpose of the tender of the report (to which no objection was taken) was to provide a professional assessment of the applicant’s state of psychological health, and a prognosis which will, no doubt, be speculative, but which should properly take into account the circumstances in which the offender is likely to find himself. If, from the point of view of his psychological health, a prison term would be detrimental, in the opinion of the psychologist, there is no legitimate criticism which can be made of her for expressing that opinion. If, for some identifiable reason, an opinion is outside her area of expertise, it is a matter for the prosecution to object to its tender. It is always open to the sentencing judge to reject the opinion and, particularly where he has had an opportunity to assess the offender in the witness box, that may provide a proper basis for so doing. Alternatively, the judge may properly accept the opinion and still impose a sentence of imprisonment, accepting the likely adverse consequences.

26 It would, of course, be entirely inappropriate for any health professional to seek to pass judgment on the conduct, or possible conduct, of a sentencing judge. But to read the sentence quoted above from the psychologist’s report as constituting such a comment is, in my view, unjustified. It is open for a judge who believes that the conduct of a witness is offensive to the Court, to take appropriate steps to restrain such conduct (if that be necessary), but otherwise it will be necessary to take especial care that any personal response is put to one side in carrying out the relevant judicial function.

27 It follows that I agree with Hall J’s view that proper weight was not given to the opinions of Ms Duffy. Even if that conclusion were wrong, the expression of a personal response to the manner in which her report was expressed, whether justified or not, combined with the absence of a reasoned rejection of her conclusions, on legitimate grounds, gives rise to a real apprehension that her evidence has not been properly assessed.

Licence disqualification

28 The fact that the sentencing judge had “little confidence” in the applicant’s prospects of rehabilitation and, to that end, required an extended period of supervision, invites consideration in relation to his entitlement to hold a driver licence, pursuant to the Road Transport (General) Act 1999 (NSW) (“the 1999 Act”) in force when the applicant was sentenced. That legislation has now been replaced by the Road Transport (General) Act 2005 (NSW) (“the 2005 Act”).

29 Pursuant to s 25 of the 1999 Act, a person convicted of a “major offence”, a term which included any relevant offence under the Crimes Act 1900, was automatically disqualified from holding a licence for a period of three years: s 25(2)(d): see now s 188(2)(d) of the 2005 Act. However, the Court had power to impose a different period of disqualification, subject to the restriction that if reducing the period, the period might not be shorter than 12 months. The automatic period of disqualification increased to five years in the case of a person with an earlier conviction for a major offence, within the preceding five years: s 25(3)(d) under the 1999 Act, and now s 188(3)(d) under the 2005 Act.

30 In a case such as the present, the law requires that a significant period of imprisonment be imposed. That penalty is intended provide a significant deterrent against future conduct of the same kind. However, it needs to be recognised that inappropriate levels of alcohol consumption and use of other drugs may be related to social, physiological and even genetic causes. Social elements may, to an extent, be exacerbated rather than diminished by a period in custody. The fact that the commission of serious driving offences is taken to warrant a level of automatic licence disqualification indicates that the Parliament has adopted a significant protective measure, in the interests of public safety, where an offender has demonstrated a level of irresponsibility which is incompatible with the statutory privilege of holding a driver licence. However, where a sentencing judge is concerned about the prospects of rehabilitation, it will often be appropriate to give consideration to the adequacy of the automatic period of disqualification.

31 The comment made by the trial judge with respect to the need for an extended period of supervision suggests that there might be benefit in a power which would allow for continued disqualification until an offender had complied with conditions sufficient to satisfy an appropriate authority that he or she was now a person fit to hold a driver licence. There may be some doubt as to whether the statutory provisions noted above allow the imposition of such a conditional period of disqualification. Because no attention was paid to this issue on the appeal, or it would seem at the sentencing hearing, it is not possible to deal further with these considerations. (But see generally comments in relation to the relevance of licence disqualification in Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSWCCA 303 at [110]-[117].)

Conclusions

32 As Hall J notes, applying R v Simpson (2001) 53 NSWLR 704 – see [116] below - the identification of error on the part of the sentencing judge is a necessary, but not sufficient, condition for quashing the sentence and passing some other sentence in substitution therefor. To take that step, the Court must be satisfied that some other sentence “is warranted in law”. (Various of the cases in which that principle has been considered are discussed by Johnson J in Douar v Regina [2005] NSWCCA 455 at [80]-[123], in addressing whether it was open to the Court to receive evidence of post-sentence conduct.)

33 Taking into account these various factors, and the additional matters discussed by Hall J, and in particular the views expressed in Regina v McMillan [2005] NSWCCA 28, I accept that, subject to one qualification, and prior to any reduction for the plea of guilty, a sentence of between six and seven years imprisonment would have been justified.

34 The qualification flows from the difficulty of knowing what weight should properly have been given to the subjective circumstances of the case. There being material before the Court which was highly supportive of the applicant and which was not given proper weight by the sentencing judge, the proper course is to give that material significant weight, even though that course may be unduly beneficial to the applicant. Nevertheless, against that material must be weighed the history of prior conduct noted by Hall J, including the repeated use of drugs in combination with use of a motor vehicle. In the circumstances, it is appropriate to impose a sentence in the lower half of the proposed range, that is between six years and six and a half years.

35 When such a sentence is reduced by 20%, reflecting the trial judge’s estimate of the utilitarian value of the guilty plea, it will be seen that no significant variation is required to the sentence of five years imposed in the District Court. Had the sentencing judge maintained the statutory relationship between the minimum term and the full sentence period, a non-parole period of three years nine months would have eventuated.

36 Again, despite his concerns as to the prospects of rehabilitation, his Honour found special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act and imposed a non-parole period which constituted 50% of the sentence, or, in the statutory terms, specified a balance of the term of the sentence which was 100% of the non-parole period. That result is not easy to reconcile with his Honour’s expressed lack of confidence in the prospects of rehabilitation. Nevertheless, being favourable to the applicant, the conclusion should stand.

37 Because, as demonstrated by Hall J, the applicant established errors in approach on the part of the sentencing judge, it is appropriate to grant leave to appeal. However, not being satisfied that any lesser sentence than that imposed by the sentencing judge is warranted, the appeal should be dismissed.

38 HOWIE J: I have had the benefit of reading both the judgments of the other members of the Court in draft. I agree with the orders proposed by Hall J for the reasons given by him. I also agree with the judgment of Basten JA and wish to make a very brief comment about the matters referred to by the Presiding Judge.

39 It is unfortunate indeed that those responsible for drafting s 21A of the Crimes (Sentencing Procedure) Act have made the task of sentencing courts more difficult, or at least more prone to error (either real or apparent), by what was in my opinion a needless attempt to define relevant factors into categories of aggravation or mitigation and yet apparently without the intention of altering the common law as it was applied to sentencing before the advent of the section. One has only to look back over sentence appeals determined by this Court over the last two years to see the impact that this section has had upon the work of this Court. And yet, as I pointed out in R v Tadrosse [2005] NSWCCA 145, if sentencing judges simply take into account the relevant sentencing factors that were taken into account before the introduction of the section, they will inevitably comply with the section’s demands.

40 There is now another unnecessary complication fully identified as arising from the introduction of the section that will plague sentencing judges and this Court: not only must the sentencing court not take into account as an aggravating feature an element of the offence, it also must not take into account as an aggravating feature an inherent characteristic of the class of offence of which the offence before the court is an example. Yet this must be so in order to avoid either real or apparent double counting of aggravating features. As Basten JA points out, this matter was referred to in R v Way (2004) 60 NSWLR 168 at [172], it was identified in R v McMIllan [2005] NSWCCA 28 at [38] and it was considered in R v Ancuta [2005] NSWCCA 275 at [11]. The fact that there is an apparent inconsistency in approach between the view taken in McMillan and that taken in Ancuta in relation to dangerous driving under the influence of alcohol shows how difficult it is to determine whether it is permissible to take into account the aggravating factor that “the offence was committed without regard for public safety” in any particular case.

41 However, a similar problem arises with other factors of aggravation set out in the section. It has been identified in cases of child sexual assault in relation to the aggravating factor that the victim was vulnerable: see R v JBD [2005] NSWCCA 102 but cf R v Pearson [2005] NSWCCA 116. The vulnerability of the child may or may not be an aggravating factor under the section depending upon the age of the child and the nature of the offence. This is because it is an inherent characteristic of the class of child sexual assault offences that the child is vulnerable.

42 Another example of the same issue arose in relation to armed robbery offences and the aggravating factor that “the injury…..was substantial”: see R v Youkhana [2004] NSWCCA 412 but cf R v Solomon [2005] NSWCCA 158. Because the court always takes into account in armed robbery offences that the victim will be traumatised, there must be some harm proved that is more severe than that which is usually presumed to arise in the commission of such an offence before the aggravating factor could be applied. It is an inherent characteristic of the offence of armed robbery that the harm to the victim will be substantial.

43 So in relation to offences of aggravated dangerous driving causing grievous bodily harm or death, it will almost inevitably be the case that it is an inherent characteristic of the class of offence that it is committed without regard for public safety. And this will be so whether the lack of regard is viewed on an objective or subjective basis. Yet the prohibition against taking that aggravating factor into account is not universal because, in a particular case the lack of regard for public safety may be so egregious that it transcends that which would be regarded as an inherent characteristic of the offence.

44 In the present case there was simply no evidence upon which the sentencing judge could find that the lack of regard for public safety that is inherent in the offence of driving while under the influence of a drug was greater than that which would generally apply to that class of offence and, therefore, he was in error in finding that this instance of the offence was aggravated by that factor.

45 It should also be borne in mind that when sentencing for offences of aggravated dangerous driving it will almost inevitably be the case that the offender will have “abandoned responsibility” as that expression is used in R v Jurisic (1998) 45 NSWLR 209 or will have displayed “high moral culpability” as that expression is used in R v Whyte (2002) 55 NSWLR 252. The fact that the aggravating element of the offence is present will generally be sufficient to show that the offender’s culpability has reached at least that degree. There is in my view simply no point in seeking to apply the guideline in Whyte in order to determine that question when the offence is an aggravated one by reason of the elements of the offence charged. There is a real risk that, in trying to apply the guideline judgment to decide that question, the court will double count an aggravating factor in the guideline which is an element of the aggravated offence. The judgment in Whyte recognises that the increased sentence for the aggravated offence will generally reflect the increased moral culpability inherent in the aggravated form of the offence.

46 HALL J: This is an application for leave to appeal by Travis James Elyard in respect of a sentence imposed upon him by the District Court of New South Wales at Campbelltown (his Honour, Judge B. Maguire) on 2 May 2005.

47 On 23 February 2005, the applicant entered a plea of guilty to the charge of aggravated dangerous driving occasioning grievous bodily harm pursuant to s.52A(4) of the Crimes Act 1900.

48 On 2 May 2005, the applicant was sentenced to a term of imprisonment with a non-parole period of two years and six months and a balance of term of two years and six months.

49 The application for leave to appeal dated 27 September 2005 and filed on 29 September 2005 is brought pursuant to s.5(1)(c) of the Criminal Appeal Act 1912.

50 The applicant relies upon eight grounds of appeal which I will consider later in this judgment.

51 The relevant factual circumstances are as follows. The applicant was born on 19 November 1979 and is presently 26 years of age. On 6 February 2004 at approximately 7.40 pm, he was driving his Mitsubishi van along the Hume Highway at Liverpool. The vehicle proceeded through the intersection of the Hume Highway and Moore Street against a red light at that intersection and collided with a pedestrian, Mrs. Mirka Subotic, who was crossing a marked pedestrian crossing in accordance with a green pedestrian light. Mrs. Subotic suffered significant injuries which required hospitalisation, emergency surgery and treatment which I will refer to in due course. She has been left with ongoing disabilities in consequence of them.

52 The collision occurred on a Friday evening at the above stated time when it is reasonable to assume that there was a considerable volume of traffic using the highway. Prior to the accident, he had driven from his home in Campbelltown to a friend’s house at Mt. Pritchard. The accident occurred on the return trip, after driving for approximately 15 minutes, at the abovementioned time of 7.40 pm. In a statement provided by the applicant dated 18 April 2004, he falsely claimed that he had the green traffic light operating in his favour and inferred that the pedestrian simply stepped in front of his van causing the collision.

53 The evidence before the sentencing judge included a certificate of Judith Perl, a clinical forensic pharmacologist with the New South Wales Police Service, Clinical Forensic Medicine Unit. In her certificate dated 31 March 2004, she records observations of attending police at the accident scene about which there was no controversy. The following description appears:-

“… when spoken to by Police at the scene it was noted that ELYARD appeared to have slurred speech, he appeared pale, indifferent, relaxed, sedated, unable to follow instructions, he appeared unaware of events occurring around him, he appeared to be sleepy, his eyelids were drooping, his eyes were glazed, his pupils appeared pinpoint, his speech was slurred and slow and his movements were sluggish. He generally appeared to be well affected by some substance.
He admitted having taken some Valium and Serapax and using some cannabis earlier that day.”

54 A blood sample was taken from the applicant at 9.10 pm on the day of the accident. It was found to have present morphine (total) 0.36 milligrams per litre, codeine (total) 0.03 milligrams per litre, diazepam 0.5 milligrams per litre, nordiazepam 0.4 milligrams per litre, oxazepam 0.4 milligrams per litre, temazepam 0.1 milligram per litre, clonazepam 0.01 milligrams per litre, delta-9-THC less than 0.005 milligrams per litre and delta-9-THC acid 0.035 milligrams per litre. His urine sample also indicated the presence of acetylcodeine, monoacetylmorphine, imipramine and methadone.

55 Dr. Perl in her report stated, by way of conclusion:-

“Based on my specialised knowledge and relying on the above information, I am of the opinion that at the time of driving ELYARD was under the influence of morphine (heroin), diazepam and oxazepam to the extent that his driving ability would have been significantly impaired. In addition, it is possible that methadone may have also been a contributory factor in the impairment.”

56 It is apparent from the evidence of Dr. Perl that the abovementioned police observations as to the applicant’s condition following the accident are consistent with the combined effects of central nervous system depressants as detected in the applicant’s blood sample.

The sentencing judge’s remarks on sentence

57 His Honour Judge Maguire accurately recorded the circumstances of the accident as revealed in the statement of facts. He also had regard to:-

(a) The significant findings of Dr. Perl.

(b) The physical injuries as including cerebral haemorrhage, multiple lacerations to the spleen, multiple fractures of the ribs and fractures of the left acetabulum and sacral alar. Reference is also made to the fact that the spleen was removed.

(c) The disabilities suffered which included urinary incontinence, the contraction of Hepatitis B (attributed to the transfusion of a bottle of contaminated blood), continuing depression, cognitive impairments and physical limitations. Reference is made to the fact that the victim would have life-long impairments.

The applicant’s record

58 The sentencing judge appropriately had regard to the fact that, at the time of the collision, the applicant was on probation pursuant to a suspended sentence for the offence of take and drive conveyance without consent of owner. Additional reference is made to the fact that approximately five weeks before the offence in question, the applicant was observed by police driving in a motor vehicle in the car park of a hotel. Blood and urine analysis disclosed that the applicant had ingested a combination of drugs similar to those detected by Dr. Perl after the subject accident.

Subjective factors

59 The sentencing judge extracted into the remarks on sentence a number of paragraphs recorded in the Probation and Parole report dated 13 April 2005 (Exhibit D). In this regard, the report referred to the applicant’s dysfunctional upbringing, which included his subjection to ongoing occasions of violence, verbal intimidation and threats. The report records the fact that the applicant was evicted from the family home at 16 years of age when a largely transient and drug affected lifestyle is said to have commenced. The report also records the relationship between the applicant and his defacto partner that had existed for some three years and the reference by the applicant to the fact of the pending birth of his first child which is described “… as a significant contributor in his attempt to maintain a stable and drug free lifestyle …”.

60 The report also records:-

(a) The fact that the applicant completed Year 10 at Terrigal High School when living with his father and engaged in periodic employment due largely to his transient and drug affected lifestyle. There is reference to the applicant’s history of poly-substance abuse and dependence claiming that the applicant commenced cannabis use at 12 years of age, alcohol and amphetamine use by 14 years of age and intravenous amphetamine use from 16 to 21 years of age before the commencement of heroin.

(b) The history of drug treatment programmes (being incompleted programmes). He had undertaken, subsequent to the collision on 6 February 2004, a pharmacotherapy intervention programme at Coopers Cottage, Campbelltown Hospital (commencing 16 April 2004).

(c) The applicant’s expressions of remorse for his actions causing injury to the pedestrian victim.

(d) The opinion that the applicant had made significant effort in addressing some of the maladaptive behaviours that had contributed to his past offending. It concludes with the statement:-

“His ability to sustain such change and not relapse in relation to drug use will be an ongoing endeavour.”

Evidence rejected by the sentencing judge

61 The sentencing judge stated that whilst he accepted the facts set out in the quoted extracts from the Probation and Parole report, he rejected what he termed the “positive spin” concerning the expectation of the birth of the child and in doing so, in my opinion inappropriately, referred to what he described as the irresponsible conception of the child adding that he inferred from the facts in relation to the mother’s other children “that she is incompetent as a mother”. The sentencing judge then added the sentence “this compounds the offender’s irresponsibility”.

62 Whilst the applicant’s past criminal history and history of poly-substance abuse was relevant to the sentencing task, I consider that his Honour’s reference to the conception of the child and his observations as to the irresponsibility of the applicant and of his partner were irrelevant considerations to the task which he was required to undertake.

63 The second matter to which his Honour took exception were observations by the psychologist, Ms. Anita Duffy, in her report of 16 November 2004. His Honour referred, disapprovingly, to the psychologist’s expressions of opinion as to the need for alternatives to imprisonment being considered and this, the sentencing judge stated, he regarded as “offensive” and rejected her opinions. I have considered whether and to what extent the psychologist entered into questions that were ultimately for the sentencing judge. I am of the opinion that the psychologist did, but, having reflected on the matter, I do not consider that this was improper. A psychologist may legitimately address what he or she considers, from a professional or clinical perspective, is necessary or desirable to enhance an offender’s rehabilitation and for issues related to custodial matters to be raised in relation thereto. Such an opinion will be one amongst other matters that a sentencing judge will have regard to and give it such weight as he or she considers appropriate in the particular circumstances.

History of the proceedings – the plea of guilty

64 On 11 June 2004, a Court Attendance Notice was issued. The proceedings were delayed whilst the Director of Public Prosecutions sought a medical report concerning the injuries suffered by Mrs. Subotic. According to the written submissions on behalf of the applicant, throughout this period it was indicated by the defence that the applicant would be pleading guilty in the matter. The Director of Public Prosecutions determined that the matter should be dealt with in the District Court (following receipt of the report from Dr. Hodgkinson dated 6 January 2005). The applicant entered a guilty plea to the charge on 25 February 2005 at the Liverpool Local Court and was committed for sentence that day to the Campbelltown District Court. On this history, the applicant was entitled to the benefit of a discount on sentence for an early plea of guilty.

65 On 11 March 2005, the matter came before the Campbelltown District Court but the matter was unable to proceed as the pre-sentence report from the Probation and Parole Service was unavailable. On 22 April 2005, the matter came before Maguire, DCJ. when evidence was taken at the sentencing hearing. The sentence was, as earlier noted, handed down on 2 May 2005.

Periodic detention

66 The applicant was serving two sentences of periodic detention at the time that he was sentenced on 2 May 2005. These related to an offence of driving whilst under the influence of a drug and a re-determination of a suspended sentence which he had received on 28 August 2003 (on that date he was dealt with at the Liverpool Local Court in relation to an offence which occurred on 21 March 2005 of take and drive conveyance without the consent of the owner). He received a 12 month sentence, such sentence being suspended upon him entering bond under s.12, Crimes (Sentencing Procedure) Act 1999.

67 The driving under the influence matter occurred on 3 January 2004. On that occasion, the applicant was observed by police driving his Mitsubishi van in the car park at the Stardust Hotel at Cabramatta. He was stopped by police and a blood and urine sample was taken. A Court Attendance Notice was posted to the applicant on 25 March 2004 in relation to this matter (that is 19 days after the collision on 6 February 2004).

Relevant legal and factual matters

68 Before dealing with the discrete grounds in support of the application for leave to appeal, it is appropriate to identify the relevant legal and factual matters that provide what I consider to be the relevant framework of reference within which those grounds and the sentence imposed may be properly evaluated.

(a) The relevant legal factors

69 The provisions of s.52A are prefaced by the subheading: Dangerous driving: substantive matters. Those provisions form part of Part 3 – Offences against the Person, of the Crimes Act 1900. Section 52A(4) is in the following terms:-

“s.52A(4) Aggravated dangerous driving occasioning grievous bodily harm

A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable for imprisonment for 11 years.”

70 Section 52A(7), Circumstances of aggravation, so far as is relevant, provides:-

“In this section circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:-
(a) …
(b) …
(c) ...
(d) The accused’s ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).”

71 The relevant context and principles by which these provisions were to be applied in the present case included the following:-

(a) The imposition of a sentence with respect to s.52A offences requires the exercise of a broad discretion taking into account all of the factors specified in s.21A of the Crimes (Sentencing Procedure) Act 1999 .

(b) In cases such as the present involving the aggravated version of an offence under s.52A of the Crimes Act 1900 :-

(i) an appropriate increment to the Jurisic guideline will be appropriate ( R. v. Jurisic (1998) 45 NSWLR 209);

(ii) in a case involving grievous bodily harm, this will mean that a full-time custodial head sentence of not less than two years is to be adjusted in an upwards direction: R v. Whyte (2002) 55 NSWLR 252, 287;

(iii) an increment is also appropriate in order to reflect the higher maximum penalty for such an offence and what will generally be a higher level of moral culpability involved in such an offence;

72 The guideline in Whyte (supra) focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender, of course, also require consideration: per Spigelman, CJ. at 288.

(b) The factual context: the objective gravity of the offence

73 In exercising the court’s broad discretion, the sentencing judge was required to focus upon the relevant objective circumstances. In the present case these included:-

(i) The applicant’s moral culpability for the offence in question against the background of the events in the preceding month (3 January 2004) in which the applicant was driving his van whilst under the influence of prohibited drugs. The fact that at this time he acknowledged that it was serious and against the law to be driving under the influence of drugs, established a very high degree of moral culpability in then proceeding on 6 February 2004 to repeat such conduct by driving whilst under the influence of a combination of prohibited drugs causing serious injury to Mrs. Subotic.

(ii) The conclusion of Dr. Perl that the applicant was “well affected” and was “significant(ly) impaired” by the combination of prohibited drugs on 6 February 2004.

(iii) The extent and nature of the injuries (described in paragraph [57]) which he inflicted upon Mrs. Subotic, which underline the magnitude and seriousness of the offence committed by the applicant.

74 The legal and factual matters to which I have referred in paragraphs [68] to [73] guide the evaluation of the grounds relied upon by the applicant in determining whether or not, as is contended, the sentence was manifestly excessive and whether, as is also contended on behalf of the applicant, he should have been ordered to serve his sentence by way of periodic detention.

75 The objective circumstances of the offence and those relating to the offender’s conduct clearly place this case in a category of the more serious offences of its kind, though not a worst case. In Jurisic (supra), Spigelman, CJ. referred to the history leading to s.52A and the perceived need for an increase in the maximum penalties for offences such as that involved here. The Chief Justice at p.227 noted:-

“The Attorney-General went on to note that the increase in penalties was designed to more accurately reflect the seriousness of the offence with a view to convictions acting as a ‘strong deterrent’ …
The level of community concern about the conduct proscribed by s.52A, as reflected in this substantial increase in the maximum penalties, must be reflected in the sentences which trial courts impose. The concerns manifested by Parliament in this way, must be given effect to by the courts.”


The grounds relied upon

Ground 1: His Honour erred in not allowing any discount on sentence for the guilty plea

76 The applicant contended that no discount was allowed for the applicant’s guilty plea. Reliance was placed upon the following passage in the remarks on sentence:-

“He has, of course, pleaded guilty. That has a utilitarian value which I would reflect in a 20% discount except that the relevant guideline decision R. v. Jurasic (sic) itself must be taken to have allowed such a discount.”

77 In this passage, his Honour’s reference was to the guideline judgment in Jurisic (supra) considered in Whyte (supra).

78 In R. v. Thomson & Houlton (2000) 49 NSWLR 383, Spigelman, CJ. at 419 observed that the standard case identified in Jurisic included a plea of guilty but that the case was concerned with a guilty plea of limited value:-

“… the guidelines for the offences considered in those cases (referring to R. v. Jurisic and R. v. Henry ) should be understood to involve a late plea of guilty, for purposes of the application of a guideline promulgated in these reasons.”

79 Counsel for the applicant who appeared on this application appeared before the sentencing judge on 22 April 2005 and drew his Honour’s attention to the fact that the court in Jurisic was concerned with a plea of limited value. However, in relation to the sentencing judge’s remarks made on 2 May 2005, I accept as correct the submission made by Mr. Watts of counsel on behalf of the applicant that his Honour’s statement incorrectly proceeds upon the basis that the guideline in Jurisic made allowance for an early plea or a plea which would reflect a discount of 20%. This, I believe, is demonstrated by his Honour’s qualifying use of the words “… except that the relevant guideline decision in R. v. Jurasic (sic) itself must be taken to have allowed such a discount”.

80 Error having been disclosed, the question then arises as to whether or not it is an error which requires the intervention of this court. That is an issue to which I will return later in this judgment.

Ground 2: His Honour erred in finding that the applicant “did not apply his brakes until after the victim collided with his windscreen”

81 The written submissions on behalf of the applicant and the Crown raise the question as to whether the evidence does support his Honour’s abovementioned statement.

82 I consider it is unnecessary to examine all of the evidence that bears on this issue for the factual question is tied up with another ground for the application (Ground 7) which was concerned with the contention that his Honour impermissibly had regard to an element of the offence as an aggravating factor.

83 In the remarks on sentence, his Honour stated that he had regard to the following four circumstances:-

(a) The serious nature of the victim’s injuries and their enduring consequences.

(b) The degree of intoxication which is demonstrated by the fact that the offender did not see the red light and did not apply his brakes until after the victim collided with his windscreen.

(c) He was engaged in a journey which would have kept him on the road for at least 45 minutes and rendered him a potential source of danger to countless other users of the road.

(d) His interception by the police some weeks before these events and the tests carried out upon him must be regarded as a warning, which warning the offender chose to ignore, although the actual results were not available to him at the date of the offence for which he was sentenced.

84 The issue raised in Ground 2 is tied to the question of the degree of intoxication in (b) above. His Honour went on to state:-

“These factors were present to a material degree and must be regarded as aggravating his crime. The last three mentioned factors are present in such a degree as to demonstrate an abandonment of responsibility. In my view, his then recently detected, albeit not yet punished drug driving offence, amounts to an additional aggravating feature for the purposes of the application of the guidelines laid down in R. v. Jurasic (sic).”

85 I will return to consider his Honour’s use of these factors as, in his view, aggravating factors to the crime when considering Ground 7.

Ground 3: His Honour erred in coming to the view that the applicant had poor prospects of rehabilitation

86 The sentencing judge stated:-

“… I regard this offender as having a poor prospect of rehabilitation. I do not ignore opinions expressed to the contrary by the psychologist. However, it appears to me that the offender has made poor choices about his life since he committed this crime.
His basing of so much reliance on the advent of his child demonstrates to me a very poor decision in his part. For whatever reason, the mother of this expected child has surrendered the care of her two existing children to others.
The offender’s prospect of rehabilitation appears to depend upon a ‘lived happily ever after’ dream that he has constructed for himself. I have little confidence in its success.”

87 The report of Ms. Duffy dated 8 April 2005 contained an analysis of the history and post-offence conduct by the applicant. Whilst I have already referred to his Honour’s entitlement to reject the psychologist’s opinion as to the appropriate nature of the sentence to be imposed, his Honour was not, in my opinion, entitled to reject out of hand the factual analysis otherwise contained in the report without identifying a proper basis for doing so. I make the same comment in relation to the Probation and Parole Service pre-sentence report dated 13 April 2005. The psychologist’s report refers to objective progress in terms of a significant and measurable improvement in the applicant’s attitudes and behaviour in relation to drugs and alcohol abuse and that the results were consistent with abstinence from all substances apart from his methadone maintenance. The report of 13 April 2005 refers to the significant effort that had been made by the applicant in addressing some of his maladaptive behaviour which had contributed to his past offending. It is noted in that report that his compliance on the methadone programme together with the pending birth of his first child and his fear of incarceration have all been significant contributors to his recent change in attitude and behaviour. The report states that it did appear that he had “initiated substantial change over the past six months”.

88 Not only did the sentencing judge not identify a basis upon which these opinions were not to be accepted, but he appears to have based his rejection of the opinions expressed on the question of the applicant’s rehabilitation prospects on what he termed “poor choices about his life since he committed his crime”. That appears to refer to his Honour’s earlier expressed view that the conception of the child, whilst the applicant was on bail, “was irresponsible”. Whether this statement is to be characterised as a moral judgment on the applicant’s behaviour and/or that of his partner or not does not require resolution. It is sufficient to say that that matter, as earlier indicated, was not a relevant consideration to the sentencing judgment which his Honour was required to exercise.

89 I accordingly accept that his Honour, in light of evidence to the contrary, impermissibly formed the conclusion that the applicant had poor rehabilitation prospects and failed, in particular, to identify any cogent basis or reason for doing so. I will return to consider the possible significance of this error in the overall assessment of the application.

Ground 4: His Honour erred in ignoring the reports of Anita Duffy, psychologist, and thus gave insufficient, or no weight to his subjective circumstances

90 I have already dealt with this matter in relation to the previous ground.

91 The court was required by s.21A(3) of the Crimes (Sentencing Procedure) Act 1999 to take into account in determining the appropriate sentence for the offence, as a mitigating factor:-

“(h) The offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise, …

92 There was material before the sentencing judge which established that he did have prospects of rehabilitation. Whether they could be classed as “good prospects” within the meaning of s.21A(3) is perhaps debatable. His Honour’s unsubstantiated conclusion, however, as to the applicant’s poor prospect of rehabilitation is a matter which is to be borne in mind in determining whether this court ought intervene. It is a further matter which I will refer to later in this judgment.

Ground 5: His Honour erred in refusing to hear further evidence on 2 May 2005

93 Mr. Watts of counsel indicated to this court that he did not press Ground 5.

Ground 6: His Honour failed to take into account the evidence of contrition and remorse by the applicant for his actions and discount his sentence accordingly

94 The applicant gave evidence at the sentencing hearing. He expressed his remorse for Mrs. Subotic. More importantly, there was recorded in Ms. Duffy’s report statements by the applicant which were supportive of the remorse that he had expressed. Additionally, there is recorded in the probation officer’s pre-sentence report expressions of significant remorse for his actions in having brought about injury to Mrs. Subotic.

95 The weight, if any, to be given to such evidence, of course, is one matter. The dismissal or outright rejection of such evidence, in the absence of an identified basis for doing so, is another. In dealing with this aspect, his Honour stated:-

“There are also in evidence a number of written testimonials that serve little purpose. I find that it is difficult to accept that this man is genuinely contrite. His expression of contrition seems to me to amount to little more than an expression of his fear of impending imprisonment.”

96 His Honour did not identify any factual or other material which supported the last two mentioned expressions of opinion. The relevant provision in s.21A(3)(i) is in the following terms:-

“(i) The offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other matter.”

97 Other than the applicant’s own evidence, there was no specific evidence in terms of this provision which demonstrated remorse. That said, it is not, in my opinion, appropriate for a sentencing judge to reject out of hand expressions of remorse unless there is an evidentiary basis for determining that they are either not genuine or are motivated by some extraneous or self-interested factor.

Ground 7: His Honour fell into error by having additional regard for aggravating features which were elements of the offence, or not made out by the evidence

98 There is no doubt that his Honour regarded “the degree of intoxication” of the offender as having aggravated his crime. That is precisely what his Honour stated. In R. v. McMillan [2005] NSWCCA 28, this Court gave consideration, inter alia, to the provisions of s.52A(4) of the Crimes Act. In his judgment in that case, Howie, J. (with whom Santow, JA. and Bell, J. agreed) emphasised the importance of identifying the relevant objective factor which is an element of the offence under the section. The “circumstances of aggravation” as defined in s.52A(7) include, so far as is relevant to the present case, “the accused’s ability to drive was very substantially impaired …” (by virtue of the fact that the applicant was under the influence of the drugs in question). Mr. Watts of counsel contended that the evidence of Dr. Perl could not be relied upon as identifying anything in addition to the substantial impairment (which constituted the element of the offence) and which could be regarded as further aggravating the offence under s.52A(4). I am of the opinion that in that respect the submission is correct.

99 I have earlier referred to the description of the applicant’s condition given by police as recorded in Dr. Perl’s report which does suggest significant impairment. However, the impairment and the nature of the impairment established by the evidence in this case was, as I have stated, an element of the offence itself and could not be utilised as an aggravating circumstance in the way in which his Honour in this case did consider it. (“… must be regarded as aggravating his crime”).

100 One of the factors identified by Spigelman, CJ. in Jurisic (supra) was “degree of intoxication or of substance abuse”. In McMillan (supra), Howie, J. stated (at [38]):-

“… but the offence of driving under the influence, particularly where it is alleged that the driver has a blood alcohol reading over 0.15, is premised on the fact that to drive in such condition is dangerous to other persons on the road. It seems to me that there would be an element of double counting in finding that the offence was aggravated by those factors mentioned in Jurisic and Whyte , which was generally concerned with the danger posed to members of the public by the driving, and then to find that the offence is also aggravated because the driving was without regard to public safety.”

101 I believe that the principle here referred to by Howie, J. is relevant to the point presently under consideration.

102 I do not consider that the sentencing judge erred in having regard to the other three factors ((a), (c) and (d)) in the extract which I have previously set out (see paragraph [83]). The serious nature of the injuries, in particular, and their enduring consequences were appropriately considered by his Honour in determining the level of seriousness of the offence in question.

103 Similarly, the exposure to danger of other users of the road by the applicant undertaking his journey was a factor his Honour was entitled to regard as an aggravating factor.

104 In relation to the fact that the month before the police had intervened by reason of the applicant’s drug affected state, to my mind, indicates a very high level of moral culpability in the applicant at the time of the offence. I accordingly am of the view that his Honour was not only entitled, but was bound to have regard, to that circumstance as an aggravating factor.

105 At the sentencing hearing held on 22 April 2005, the applicant conceded in cross-examination that when he was “picked up” by police on 3 January 2004, the police spoke to him about his drug affected state by reason of the fact that they considered that he was in fact “drug affected” on that occasion. He was also asked:-

“Q. If I can ask you these questions, when you were picked up – when police approached you in relation to that offence and spoke to you, before they charged you, did you consider at that stage that it was serious to be driving under the influence of drugs? A. Yes I did, but I didn’t think, yeah. I knew it was against the law, I didn’t think.
Q. You knew it was against the law but? A. I didn’t think, I kept on.”

106 This evidence confirmed that at the date of the offence, the applicant had abandoned all sense of responsibility and knew that in driving on a busy road in his drug affected state on 6 February 2004 over the distance involved (approximately 18 kilometres) he was doing so illegally and necessarily involving a risk to others. Tragically, that risk materialised with very adverse consequences to Mrs. Subotic. In this respect I adopt the description given by Howie, J. in McMillan (supra) of the circumstances in that case, namely, that the applicant in driving in such a condition “was not simply irresponsible, it was seriously criminal”.

Ground 8: The sentence imposed was manifestly excessive

107 I will consider this ground in relation to the errors in sentencing earlier identified.

108 I consider that the sentence imposed in this case effectively of five years imprisonment with a non-parole period of two years and six months, commencing 2 May 2005 was a substantial one. The question is whether taking into account all relevant factors it was manifestly excessive.

109 In McMillan (supra), Howie, J. examined the statistical information concerning sentences imposed for sentences contrary to s.58A(3) and for offences under s.52A(4).

110 The sentencing range for offences of the present kind may be determined by reference to the factors identified in McMillan by Howie, J. including, in particular, the following:-

• The maximum penalty for an offence under s.52A(4) is greater than that for a non-aggravated offence causing death, the maximum penalty for an offence under s.52A(1) being 10 years, the maximum sentence for an offence under s.52A(4) being 11 years.

• Parliament should be taken as being of the view that generally an offence under s.52A(4) is slightly more serious than an offence under s.52A(1), notwithstanding that the consequences of the driving will be less serious. Yet the statistics show that sentences for an offence under s.52A(1) are markedly more severe than those for an offence under s.52A(4): only 14% of head sentences are less than three years.

• It may well be the case that insufficient regard has been paid to the seriousness of the driving as reflected in the matters of aggravation specified in s.52A(7) and the increased penalties that the aggravated form of the offence attracts.

• In a case of an offence under s.52A(4), the sentencing judge was required to sentence the applicant for an offence of significant gravity before any other objective factor was taken into account.

• Particular factual findings relevant to the degree of moral culpability and abandonment of responsibility are required to be taken into account over and above the substantial impairment referred to in s.52A(7)(d) which, as earlier discussed, is an element of the offence.

• In particular, regard is to be had to those facts indicating the seriousness of the driving, its consequences and the applicant’s record.

111 In McMillan, the circumstance of aggravation was one involving driving with in excess of the prescribed concentration of alcohol, that is, a blood alcohol reading of more than 0.15 (a blood alcohol reading of at least .170). A discount of 20% for the plea of guilty had been allowed by the sentencing judge. Howie, J. classified that case as a very serious instance of an offence under the section aggravated by the abandonment of responsibility by the respondent (aged 56 years) in determining to drive approximately 15 kilometres on a road on which he knew there might be drivers. He had been drinking alcohol at various times throughout the day prior to driving his vehicle. The sentencing judge had found the applicant’s moral culpability in that case to have been high and that the applicant had abandoned responsibility. Those factual findings had to be taken into account over and above the fact that the applicant had had a reading of over 0.15. The applicant’s offending under the influence of alcohol in the past, both generally and specifically in relation to motor vehicles, deprived him of any leniency. The injuries occasioned to the pedestrian were serious. It was an offence, although not the worst of its kind, coming within the upper range of offences of its type.

112 I consider that the facts and circumstances of the present case similarly warrant it to be classified as a very serious instance of an offence under the section but overall a little below the culpability in McMillan. Howie, J. considered that the appropriate starting point in McMillan would have been six years but that it should be moderated because of the existing range of sentences to five years. A discount of 20% reduced the sentence to four years. However, it is important to note that that case was a Crown appeal which required the moderated approach taken.

Determination

113 On the above analysis, the sentencing judge erred in terms of Ground 1 of the application (in failing to allow a proper discount for the utilitarian value of the plea of guilty) and in respect of Ground 7 (in taking into account the degree of intoxication as an aggravating factor when, on the evidence, the substantial impairment established by the evidence constituted an element of the offence). In relation to Ground 1, the sentencing judge determined the utilitarian value of the plea at 20%. The error poses the question whether a further 10% discount on sentence over and above the implicit discount in Jurisic should be allowed. I have additionally determined that the sentencing judge erred in his finding as to the applicant’s prospects of rehabilitation and failure to have regard to the evidence of the psychologist and the Probation and Parole report, insofar as they were relevant to subjective circumstances and the failure to have regard to the evidence of contrition and remorse.

114 The ultimate question is whether, in terms of s.6(3) of the Criminal Appeal Act 1912, notwithstanding established error, this court is of the opinion that a less severe sentence is warranted in law and should have been passed.

115 In circumstances where material error has been established at a number of points in the remarks on sentence, this Court will carefully scrutinise the sentence in question in order to determine whether or not the result of the sentencing process, the sentence itself, has been so affected by such error or errors as to require the intervention of this court.

116 It is necessary for me to only briefly refer to the principles which govern the approach that this Court should take when error has been demonstrated in the sentencing process. In R. v. Simpson (2001) 53 NSWLR 704 at [79], Spigelman, CJ. observed:-

“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘if it is of the opinion that error has occurred in the sentencing process’. That is not the statutory formulation. By s.6(3), this Court must form a positive opinion that ‘some other sentence … is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefor’ is not satisfied.”

117 In AB v. The Queen (1999) 198 CLR 111, Hayne, J. observed, inter alia, at 160 (paragraph [130]) that in cases where specific error is identified by an appellate court, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. His Honour further observed that the offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.

118 In R. v. Johnson [2005] NSWCCA 186, Hunt, AJA. (Hulme and Johnson, JJ. agreeing), following reference to relevant authority (at [33]) observed that the mere existence of error in a sentence imposed does not permit this court to substitute another sentence for it unless such substituted sentence is warranted in law and should have been imposed. His Honour additionally observed (at [34]):-

“… in cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence.”

119 See also Douar v. Regina [2005] NSWCCA 455 per Johnson, J. at [80] to [123].

120 In McMillan, Howie, J., referred to the statistical information which revealed that sentences for an offence under s.52A(1) had been markedly more severe than those for an offence under s.52A(4): aggravated dangerous driving occasioning grievous bodily harm, with only 14% of head sentences being less than three years. Howie, J. observed at [51]:-

“It may well be the case that insufficient regard is being paid to the seriousness of the driving as reflected in the matters of aggravation specified in s.52A(7) and the increased penalties that the aggravated form of the offence attracts …”

121 Whilst specific error has been disclosed in the present matter, having regard to the objective seriousness of the offence and the applicant’s moral culpability, which on any assessment of the facts was high, I do not consider that this court could conclude that the ultimate sentence imposed of five years with a non-parole period of two years and six months was outside the range for a case of this level of seriousness. I accordingly do not consider that this court could conclude that a less severe sentence is warranted in law and should have been passed.

122 I propose the following orders:-

(a) That the application for leave to appeal be granted.

(b) That the appeal be dismissed.

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