Hoskins v R

Case •

[2020] NSWCCA 18

•

21 February 2020

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Hoskins v R [2020] NSWCCA 18
Hearing dates: 10 February 2020
Date of orders: 10 February 2020
Decision date: 21 February 2020
Before: Basten JA at [1];
R A Hulme at [25];
N Adams J at [82]
Decision:

1. Grant leave to appeal from the sentence imposed in the District Court at Wollongong on 14 June 2019.

 

2. Allow the appeal in part and set aside order (1) being a sentence of imprisonment for 3 years with a non-parole period of 1 year, 6 months, commencing on 7 September 2018 for the offence contrary to s 52AB(1) of the Crimes Act 1900 (NSW).

 

3. Resentence the offender to a term of imprisonment comprising a non-parole period of 1 year and 3 months to date from 7 September 2018, and taken to have expired on 6 December 2019, with a balance of term of 1 year expiring on 6 December 2020.

 

4. Note that the offender is entitled to be released forthwith subject to a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

 

5. Pursuant to s 206A(5) of the Road Transport Act 2013 (NSW), order that the 12 months period of disqualification be directed to commence at the expiration of the non-parole period, namely on 6 December 2019, and expire on 5 December 2020.

 6. All other aspects of the sentencing orders of the District Court of 14 June 2019 are confirmed.
Catchwords:

CRIME – Appeals – Appeal against sentence – application of Bugmy principles where offender now living prosocial life – impact of disadvantaged and dysfunctional background long-lasting and continuing – link between background and poor decision-making consistent with offending

 

CRIME – Appeals – Appeal against sentence – failure to take into account a relevant consideration – remorse – no explicit submission but concession by prosecutor and strong basis for finding – error established

  TRAFFIC LAW AND TRANSPORT – Traffic Law – licensing of drivers – disqualification – effect of imprisonment on licence disqualification
Legislation Cited: Crimes Act 1900 (NSW), ss 52A, 52AB
Crimes (Administration of Sentences) Act 1999 (NSW), s 158
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(3)(k), 22, 25D(2)(a), Pt 3 Div 1A
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Procedure Act 1986 (NSW), s 166
Road Rules 2014 (NSW), r 59(1)
Road Transport Act 2013 (NSW), ss 54(3)(a), 205(2)(d), 206A, 207A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
House v The King (1936) 55 CLR 499; [1936] HCA 40
Imbornone v R [2017] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152
R v Jurisic (1998) 45 NSWLR 209
R v Pullen [2018] NSWCCA 264
R v Shashati [2018] NSWCCA 167
R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Category:Principal judgment
Parties: Scott Hoskins (Applicant)
Regina (Respondent)
Representation:

Counsel:
S Fraser (Applicant)
M Kumar (Respondent)

  Solicitors:
Morrisons Law (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/275416
 Decision under appeal 
Court or tribunal:
District court
Citation:
[2019] NSWDC 278
Date of Decision:
14 June 2019
Before:
Weber SC DCJ
File Number(s):
2018/275416

Judgment

  1. BASTEN JA: For a number of reasons, this is a troubling case. In circumstances described by R A Hulme J, the applicant was sentenced to a term of imprisonment for three years, with a non-parole period of 1 year 6 months, for an offence under s 52AB(1) of the Crimes Act 1900 (NSW). The offence involved failing to stop and assist after the vehicle he was driving was involved in a collision with a pedestrian, causing her death. Although the applicant did not stop following the accident, of which he was aware, he handed himself in to police the following day and was arrested.

  2. Aspects of the procedural history thereafter are puzzling. First, in circumstances which are not known to this Court, he was remanded in custody for the period from the date of his arrest (7 September 2018) until the date on which he was sentenced (14 June 2019). As a result of the back-dating of the sentence to the date of arrest, the non-parole period was to expire in nine months (on 6 March 2020). The applicant had no prior history of imprisonment and an arguable case for a non-custodial sentence.

  3. Secondly, as explained by R A Hulme J, the sentencing judge was not expressly invited by his solicitor to find that he was remorseful, a significant potential mitigating factor for which there was clear evidence. However, it also seems, as noted below, that a positive finding in that respect was uncontentious.

  4. Thirdly, despite the fact that half a reasonably short non-parole period had been served by the time he was sentenced, a notice seeking leave to appeal was not filed until 22 November 2019, more than five months after the judgment on sentence. By the time the matter came on for hearing in this Court, following the end of year break, only 25 days remained to be served of the non-parole period.

  5. Finally, the grounds of appeal did not allege that the sentence was manifestly excessive, a ground which was reasonably open and would, in my view, have succeeded.

  6. As explained by R A Hulme J, the Court, being of the view that the appeal should be allowed and the sentence reduced, made orders at the hearing allowing the appeal and imposing a lesser sentence, and directing that the applicant be released forthwith on statutory parole. In a judgment on sentence which was admirably clear and precise, the judge nevertheless fell into error in the particular aspect identified by R A Hulme J; ground 3 must be upheld. However, in my view the other grounds should also be upheld.

  7. Ground 1 alleged that the sentencing judge had erred “in his approach to the applicant’s plea of guilty”; ground 2 alleged that he had erred by failing to consider the applicant’s remorse and contrition as mitigating factors. These grounds were related; the error in ground 1 was that the sentencing judge, after allowing for the standard 25% reduction for the utilitarian value of the early plea of guilty said, “I will not otherwise take his plea of guilty into account as a mitigating factor (section 21A(3)(k)), as to do so would be to double count.”[1]

    1. R v Hoskins [2019] NSWDC 278 at [33].

  8. The reference to s 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) indicated that the judge had in mind the discount for the utilitarian value of the plea. Although the legislation has been amended since the decision of this Court in R v Thomson; R v Houlton [2] the principle that the discount under Pt 3 Div 1A of the Sentencing Procedure Act reflects only the utilitarian value of the plea has not been affected. [3] It is not in doubt that a plea may provide evidence of remorse and contrition and that, to take account of that factor, does not involve any element of double counting. [4]

    2. (2000) 49 NSWLR 383; [2000] NSWCCA 309.

    3. See note to s 22 and the reference to “the utilitarian value of a guilty plea”.

    4. R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152 at [32] (Howie J).

  9. It is true that, if the judge were not asked to consider remorse, that error might be immaterial. However, it would be a startling proposition that remorse could be disregarded in the light of the applicant surrendering himself promptly to the police, making a full statement as to the circumstances of the offence, entering an early plea, and tendering at the trial a psychological report of Ms North stating that he had “expressed genuine remorse over what had happened”, and noting that he had “fully accepted responsibility for his actions.” [5]

    5.    Report of Ms K North, Forensic Psychologist, 28 May 2019 at pars 27 and 28.

  10. The defendant’s solicitor’s written submissions relied upon as mitigating factors, that it was unlikely he would reoffend, that he had good prospects of rehabilitation and that he had pleaded guilty. In oral submissions his solicitor said that he relied “very heavily on Ms North’s report” saying that it was “a detailed report, it details my client’s background and past, and his future.”

  11. The prosecutor’s written submissions did not take issue with much of the material provided for the applicant. However, after noting that “the court should have caution relying on untested statements in psychological reports”, the prosecutor stated: [6]

“Now perhaps this is not a case where I would suggest that your Honour shouldn’t find that he’s got remorse. As I have said this is a very sad case, it’s a very tragic case that impacts both the family of the deceased and no doubt this offender.”

6.    Tcpt, 31/05/19, p 6(43).

  1. In reply, the offender’s solicitor said the prosecutor had referred to “my client’s comments with regard to the results of his actions” and drew the judge’s attention to the Departmental Sentencing Assessment Report where, under the heading “Responsivity”, the following appeared:

“Insight into impact of offending

•   Mr Hoskins was able to identify the impact his offending has had on the victim and her family. He described that as a result of his actions, a family has lost their child and can no longer celebrate milestones with the victim

•   during further discussion, Mr Hoskins identified that his actions may have also impacted on the lives of witnesses and emergency services who attended the scene and who may have sustained psychological injuries.”

  1. It is impossible to think that the sentencing judge was not required to consider remorse and contrition in circumstances where the basis for a favourable finding was clearly placed before him and where the prosecutor conceded that the judge could find remorse. Accordingly, grounds 1 and 2 should be upheld.

  2. There is a further troubling feature of this case which made the sentencing exercise more than usually difficult. Motor vehicle accidents may reveal a range of levels of culpability; some occur in circumstances where a driver is reckless or grossly negligent and bears a high level of moral culpability; at the other end of the range, the driver may be blameless. No doubt a driver who collides with a pedestrian, a circumstance highly likely to cause grievous bodily harm or death, and who fails to stop after the accident, commits a serious offence. On the other hand, that offence will rarely bear the same degree of moral culpability as dangerous driving occasioning death. Yet the maximum penalties for offences of dangerous driving occasioning death (Crimes Act, s 52A(1)) and failing to stop after an impact causing death (s 52AB(1)) are the same, namely 10 years imprisonment. Similarly, the maximum penalties for the respective offences where grievous bodily harm results are in each case 7 years.

  3. In determining an appropriate sentence for the offence of failing to stop, care must be taken to ensure that the sentence is not of the same order as the sentence which would have been imposed for causing the death, despite the identical maximum penalties. A maximum penalty is only one indicator of the seriousness with which the legislature views particular offending; too heavy a focus on that factor, without reference to broader considerations of equal treatment according to a scale of departures from moral responsibility, is apt to lead to anomalous results.

  4. The history of sentencing for offences under s 52A of the Crimes Act is rife with examples of inadequate sentences and inconsistency of sentencing. Nevertheless, a review of the cases dealing with that offence suggest that the sentence in the present case was within the range for an offence of causing death by dangerous driving, which is inappropriate for the lesser offence of failing to stop. The history with respect to sentencing for offences under s 52A may be found in the judgments in R v Jurisic [7] and R v Whyte. [8] A review of more recent decisions, in a case involving a charge of aggravated dangerous driving occasioning death (s 52A(2)), is to be found in R v Shashati. [9] In R v Whyte, Spigelman CJ noted:

    7. (1998) 45 NSWLR 209.

    8. (2002) 55 NSWLR 252; [2002] NSWCCA 343.

    9. [2018] NSWCCA 167.

“[204] A frequently recurring case of an offence under s 52A has the following characteristics.

(i)   Young offender.

(ii)   Of good character with no or limited prior convictions.

(iii)   Death or permanent injury to a single person.

(iv)   The victim is a stranger.

(v)   No or limited injury to the driver or the driver's intimates.

(vi)   Genuine remorse.

(vii)   Plea of guilty of limited utilitarian value.

[205]    As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.”

  1. A guideline for sentencing was expressed in the following terms:

“[229] The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act  1900 for the typical case identified above should be:

‘Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.’”

  1. The Chief Justice also identified a number of aggravating factors which might result in a finding of high moral culpability. [10] These were not present in this case. The agreed facts provided no basis for a finding of moral culpability at a higher level than momentary inattention in driving, followed by a panicked response. As the judge found, “there is no suggestion that the manner of the offender’s driving played any part in causing the fatality”. [11] That, together with the evidence that his disadvantaged background may have affected his judgment at the moment after the accident, should have led to careful consideration as to whether a custodial sentence was required. Such a sentence may have been justified by reference to his poor driving record. In any event, there was no challenge to that aspect of the sentencing.

    10.    Whyte at [216] and [228].

    11. R v Hoskins [2019] NSWDC 278 at [13].

  2. However, in my view, to sentence the applicant on the basis of a starting point of 4 years imprisonment resulted in a manifestly excessive sentence. That was so without regard to the judge’s misapprehension of the approach required by Bugmy v The Queen. [12] I believe the sentence which this Court imposed was itself at the very top of the appropriate range in the circumstances of the case. (As the applicant was in the Court’s view entitled to immediate release, the Court was not addressed as to the appropriate range.)

    12. (2013) 249 CLR 571; [2013] HCA 37.

  3. It remains to note that the judge extended a significant degree of leniency with respect to the period of disqualification. The applicant was disqualified at the time of the accident, a factor which contributed to the commission of the offence when he realised what he had done. As the judge noted, the applicant was a qualified plumber and disqualification from driving would have a deleterious effect on him returning to his trade after release from custody. That consideration took into account an important consideration favouring leniency in the interests of rehabilitation. It is highly desirable that the applicant be able to return to the work for which he has obtained qualifications, despite his childhood setbacks, as soon as possible; the ability to drive (lawfully) may be necessary to achieve that goal. It is to be hoped that his record of irresponsible driving may cease as a result of the current offending and being the cause of the death of a young woman, however blamelessly.

  4. Having determined that the appropriate non-parole period should have resulted in his release last December, there was a question as to the period of the licence disqualification. Where a period of disqualification results from conviction for an offence, the disqualification begins, under the Road Transport Act 2013 (NSW), on the day the court convicts the person, unless it is directed to begin on a later date. [13] However, in the case of a sentence of imprisonment, the Act assumes that the disqualification will run from the date of conviction and provides that the period of disqualification “is extended (by operation of this section) by any period of imprisonment under that sentence that is served after the commencement of the disqualification.”[14] The period of imprisonment does not include a period during which the person is released on parole. [15] Finally, s 206A(5) provides:

(5)   The extension of a period of disqualification by the operation of this section is subject to any order of the court that convicts the person relating to the operation of this section.

13. Road Transport Act, s 207A(1).

14. Road Transport Act, s 206A(3).

15. Road Transport Act, s 206A(4).

  1. As a result of the order of this Court providing that the applicant was entitled to release pursuant to a statutory parole order on 6 December 2019, the period of disqualification should have run from that date. However, s 206A(4) did not have that effect because the applicant had not in fact been released on parole at that time. Accordingly, this Court sought to vary that effect by making an order under s 206A(5), dating the commencement of the period of disqualification from that date.

  2. The power of the Court to take that step was not challenged, but requires some brief explanation. If the term “convicts” in s 206A(5) refers to the court entering a conviction for the offence, that step was not taken by this Court. However, the term “conviction” is not always used in such a limited sense; it may refer to both the step of entering a conviction and the further step of sentencing for the offence. It should be so understood in the context of s 206A(5). That is because, if sentencing occurs later, or by a different court from that which convicted the person, the section could not operate according to its purpose. Generally it is the court which sentences the person which must consider the effect of the sentence and the period of disqualification and, if thought appropriate, vary the operation of s 206A. Accordingly the relevant power under s 206A(5) extends to a court which sentences the person, in this case this Court.

  3. In other respects, I join in the reasons given by R A Hulme J for the orders made.

  4. R A HULME J: Mr Scott Hoskins (the applicant) was sentenced by his Honour Judge Weber SC in the District Court on 14 June 2019 to a term of imprisonment for 3 years with a non-parole period of 18 months.

  5. On 10 February 2020, this Court granted leave to appeal, allowed the appeal, quashed the sentence and substituted one of imprisonment for 2 years and 3 months with a non-parole period of 1 year and 3 months. (The full details of the orders appear below (at [80]).) The following are my reasons for agreeing with the making of those orders.

Offence details

  1. The applicant was committed for sentence to the District Court following his plea of guilty to an offence of failing to stop and assist after a vehicle impact causing death. The offence is contrary to s 52AB(1) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 10 years. Under the Road Transport Act 2013 (NSW), s 205(2)(d)(i), there is automatic disqualification from holding a driver licence for a period of 3 years. Pursuant to s 205(2)(d)(ii), a court may order a shorter (but not less than 12 months) or a longer period of disqualification.

  1. The sentencing judge imposed the 3 year sentence mentioned above and specified that it commence on the day the applicant was first taken into custody, 7 September 2018. (The applicant was refused bail from that point and remained in custody until the day he was sentenced.) This had the effect that the applicant would become entitled to release on a statutory parole order under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) on 6 March 2020. The judge also ordered that the disqualification period be one of 12 months.

  2. Although the application for leave to appeal was concerned only with the sentence for the s 52AB(1) offence, it is appropriate to mention that the applicant also pleaded guilty to two related offences listed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). These were offences of proceeding through a red traffic light, contrary to r 59(1) of the Road Rules 2014 (NSW) for which the maximum penalty is a fine of $2200, and driving a motor vehicle while licence suspended, contrary to s 54(3)(a) of the Road Transport Act for which the maximum penalty is imprisonment for 12 months and/or a fine of $5500. That offence also has an automatic disqualification period of 12 months, with a minimum of 6 months.

  3. In respect of each of the related offences the applicant was convicted but no penalty was imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge ordered that the disqualification for the drive whilst suspended offence be for the minimum period of 6 months.

  4. By virtue of s 206A(3) of the Road Transport Act, where a person is disqualified from holding a driver licence and is also sentenced to a term of imprisonment for what is termed a "major disqualification offence" (the offence against s 52AB(1) of the Crimes Act is such an offence), the period of disqualification is extended by any period of imprisonment that is served after the commencement of the disqualification. Under the terms of the sentence imposed in the District Court, this had the effect that the disqualification period of 12 months ordered by the Court was extended by 18 months, becoming a total period of 2 years and 6 months, dating from the day of conviction and expiring on 13 December 2021.

Delay in filing the notice of application for leave to appeal

  1. With the sentence being imposed on 14 June 2019 and the non-parole period due to expire on 6 March 2020, it is a concern that the notice of application for leave to appeal was not filed until 22 November 2019. It may be taken that the Registrar allocated the earliest possible hearing date to the matter. Counsel for the applicant explained that he had received a brief in October and the notice of application was filed reasonably soon after that. Counsel is to be commended for appreciating the need for expediency. However, the Court was told that the matter was previously with other lawyers and there was no explanation as to why nothing occurred at an earlier point in time.

  2. Practitioners should be aware of the need for such matters to be dealt with expeditiously and of the Court's ability to accommodate expedition in appropriate cases. The Registrar is available to assist if difficulties arise with issues such as the procurement of transcript.

Grounds of appeal

  1. Leave was sought to appeal on the following grounds:

1.   The sentencing judge erred in his approach to the applicant’s plea of guilty.

2.   The sentencing judge erred by failing to consider the applicant’s remorse and contrition as mitigating factors.

3.   The sentencing judge erred in his approach to the ‘Bugmy’ principles.

The offending

  1. The offence in s 52AB(1) is in the following terms:

52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm

(1) A person is guilty of an offence if—

(a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and

(b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and

(c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give.

Maximum penalty—imprisonment for 10 years.

  1. An agreed statement of facts disclosed that a 20-year-old woman left her apartment in Lachlan Street, Waterloo at about 2.15pm on 6 September 2018 and began to walk across Lachlan Street. As she stepped out onto the street, she was struck by a car being driven by the applicant. There was no physical evidence that he perceived or reacted to her presence on the road prior to the impact.

  2. The applicant was seen to speed away from the scene along Lachlan Street before turning into Gadigal Avenue. He drove through a red traffic light.

  3. Emergency services attended the scene and the deceased was taken to hospital. She passed away at about 4.20pm that afternoon. CCTV footage enabled police to identify the registration of the car driven by the applicant. It had been hired by the applicant's partner a week before.

  4. The applicant went to Wollongong police station during the afternoon of the following day. He admitted to police that he was the driver of the car involved in the collision. He said that he knew that he had collided with the victim and that she had died. The agreed facts include that he told police that "he thought the person was dead and decided to drive from the scene because he had no licence and knew he shouldn't be driving". He also said that the deceased ran out in front of him and he was not able to stop in time.

  5. The prosecutor in the District Court conceded: "there's no fault to be placed at the feet of the offender for the impact … there's no aspect of negligence, let alone dangerousness, to his driving".

The applicant's prior offending

  1. The applicant had a history of traffic offences but, somewhat surprisingly, the sentencing judge said it had no bearing on the assessment of sentence.

  2. The applicant was first issued with a learner licence in 2013. A year later, he was fined and disqualified for three months for not complying with the conditions of his licence (being unaccompanied and not displaying L-plates). In 2016, he received an infringement notice for not complying with the conditions of a provisional licence.

  3. Between 10 February 2018 and 21 April 2018, the applicant received three infringement notices for exceeding the speed limit by not more than 10 km/h, not displaying P plates, and exceeding the speed limit by between 20 and 30 km/h. On 22 May 2018, he received a demerit points suspension of his P2 provisional licence for three months until 25 September 2018. (This suspension was operative at the time of the offence.)

  4. On 25 August 2018, the applicant received an infringement notice for not giving particulars after a crash.

  5. On 29 August 2018, the applicant committed an offence of driving whilst suspended. He was arrested and charged for that offence on 3 September 2018 and was fined and disqualified in the Local Court on 22 November 2018.

  6. It is notable that the last two offences were committed in the fortnight before the tragic incident in Waterloo on 6 September 2018.

  7. The applicant also had a criminal history. Aside from driving offences (included in the above) there were offences of aggravated break and enter with intent, taking and driving a conveyance without the owner's consent, and assaulting a police officer in the execution of the officer's duty. These offences were committed when the applicant was aged 15 and 17 and were dealt with in the Children's Court by way of a bond and probation.

The applicant's personal circumstances

  1. The applicant was aged 21 at the time of the offence.

  2. In a Sentencing Assessment Report, the applicant was described as having been "raised in a dysfunctional family environment and exposed to alcohol, drug use and physical abuse". It was reported that he said that "he panicked when he hit the victim and did not consider the victim or how the accident might have impacted her family, witnesses and emergency services". It was only upon reflection that he realised the severity of his behaviour and he surrendered himself to police. The report indicates that the applicant expressed insight into the traumatic effect his offending had upon the victim's family, witnesses and emergency services personnel.

  3. The Community Corrections Officer assessed the applicant as having a "medium-low risk of reoffending". It was considered that supervision in the community was not warranted. The applicant was suitable to undertake community service work if ordered.

  4. A report by Ms Kris North, forensic psychologist, included a detailed account of the applicant's family background. He was the youngest of his mother's six children. He had one full sister and two half siblings on his father's side. His mother was of Aboriginal background and his father was of Maori descent. His parents separated when he was young and he was cared for by his mother until the age of eight. His father then assumed care of the applicant and his sister because his mother was "unfit" because of her drug use, and because of the presence of domestic violence in the family home between his mother and his stepfather.

  5. The applicant told Ms North of having been the victim of physical and psychological abuse by his stepfather. He was physically assaulted and regularly called "black" and "stupid".

  6. The applicant only lived with his father until he was aged 11. That home was also unstable because of conflict and domestic violence between his father and stepmother. His father had a history of alcohol and drug abuse.

  7. The applicant then lived with his maternal grandmother who provided a stable home environment but he said he "didn't feel loved". He returned to live with his mother when he was 15.

  8. The applicant lost motivation and fell in with negative peers. This coincided with the commission of offences that brought him before the Children's Court in his mid-teenage years. His life improved after meeting his now fiancée when he was aged 16. He returned to education and achieved his Higher School Certificate. He pursued an apprenticeship as a plumber, which he completed in 2018. He then began working as a subcontracting plumber and he was working in this capacity at the time of the offence. He attributed these achievements to the support of his partner and her family.

  9. In recent years, the applicant has had an "on and off" relationship with his mother. He was disappointed she had returned to using methylamphetamine. His stepfather committed suicide some years ago. He has a distant relationship with his father who had told him that he would support him through his legal matters but he had not seen or heard from him since his arrest.

  10. At the time of sentencing, the applicant had been in a relationship with his fiancée for six years and they had a two-year-old son. He enjoyed a close relationship with her family.

  11. The applicant had no substance abuse issues. He told Ms North that his father's alcohol abuse and mother's drug abuse had deterred him in those respects.

  12. Ms North described the applicant's account of his upbringing, marked by physical and psychological abuse as a child and witnessing domestic violence and drug use within his family households, as "an extensive history of trauma". She said it was apparent that he had not felt secure as a child because of his dysfunctional home environment and multiple caregivers. He also spoke of experiencing symptoms of depression in the past, including suicidal ideation. Ms North considered that it was highly probable that the applicant would satisfy the criteria for a diagnosis of Post-traumatic Stress Disorder, but this was influenced by his involvement in the tragic events concerned with the offence. She recommended further psychological assessment and treatment, whether in the community or in the custodial environment.

  13. Ms North considered that the applicant was genuine in his expressions of remorse over what had happened.

Some findings of the sentencing judge

  1. The judge assessed the offence as being in the "mid-range of the scale of objective seriousness". Included in the factors he took into account was that the applicant "not only knew that he had collided with a person, but knew that she had died". It had been submitted by the prosecutor that this indicated a more serious example of the offence which can be committed if "the person knows, or ought reasonably to know" that the impact had caused death or grievous bodily harm. The judge took into account that the applicant "did not flee the scene of the fatal accident in a blind panic. He did so on a more calculated basis; namely, that he was concerned that he was driving unlicensed." The judge also took into account that there was no suggestion that the manner of the applicant's driving played any part in causing the fatality.

  2. The judge rejected a submission that the applicant's moral culpability was reduced because of his disadvantaged upbringing. More will be said about this when discussing Ground 3.

  3. After discussing some pertinent aspects of the applicant's subjective case, the judge gave reasons for concluding that certain mitigating factors were present. They were that there was an unlikelihood of reoffending, good prospects of rehabilitation, and the applicant's early plea of guilty. He indicated that for the utilitarian value of the plea he would reduce the sentence to be imposed by 25%.

  4. The judge then discussed a submission that a sentence of imprisonment should be imposed but it should be served in the community under an intensive correction order. He accepted the prosecutor's submission that the seriousness of the offence, reflected in the maximum penalty of 10 years, together with the circumstances of the offence, made it necessary to impose a full-time custodial sentence. He provided reasons for this conclusion by referring to the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act, and the statement in R v Pullen [2018] NSWCCA 264 at [52] about giving "sufficient weight to considerations of general deterrence and denunciation" in sentencing for an offence of failing to stop and assist.

  5. Special circumstances were found to justify imposing a shorter non-parole period than would otherwise be the case; namely, the applicant's age, his prospects of rehabilitation, and his low risk of reoffending.

  6. The judge explained his decision to reduce the periods of licence disqualification to the minimum possible by referring to the applicant's good prospects of rehabilitation and unlikelihood of reoffending. Disqualification would impair the applicant's ability to resume his trade as a plumber, which would not serve to foster his rehabilitation.

Ground 1 – error in approach to the applicant's plea of guilty

Ground 2 – error in falling to consider remorse and contrition as mitigating factors

  1. I agree with Basten JA that these grounds were made good for the reasons his Honour has provided.

Ground 3 – error in approach to the "Bugmy principles"

  1. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 it was held (at [40]) that:

"the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way".

  1. The applicant referred to this in written submissions to the sentencing judge. It was submitted that the present offence "could be explained by his upbringing, where flight is the first response, as his moral culpability and community responsibility has not developed to the extent as that of a person raised in a law abiding environment". The prosecutor's written submissions took issue with this, contending that the applicant's explanation was not supported by the psychological report, nor the applicant's explanation to police that he left the scene because he knew the deceased was dead and that he did not have a licence and should not have been driving.

  2. The sentencing judge accepted that the applicant's upbringing was disadvantaged but determined that it had no part to play in the commission of the offence. Consequently, he did not consider it had any bearing upon the applicant's moral culpability. He explained that his rejection of the submissions for the applicant was based upon two reasons:

(1)   Ms North’s report demonstrates the offender has made considerable and commendable steps towards overcoming his childhood disadvantage, and thus I do not see it playing any part in the commission of this offence; and

(2) in relation to the possibility of the offender's flight from the accident scene being attributable to the offender’s upbringing, the Agreed Facts in fact demonstrate that he decided to drive from the scene because he had lost his licence and knew that he should not be driving (Agreed Facts, [12]).

  1. The judge appears to have regarded the explanation suggested by Ms North as inconsistent with what appeared in the statement of agreed facts. However, there is no inconsistency. Ms North wrote:

"28   With regard to his decision to leave the scene of the accident, it was my opinion that his emotional distress immediately following the incident likely led to his panicked state, resulting in impaired judgment and poor decision-making."

  1. Testing by Ms North with a widely used measure of trauma symptomatology revealed that the applicant had what she described as "clinical elevations" on the scales of depression, intrusive experiences, and "defensive avoidance". He also had moderate elevations in relation to anxious arousal, dissociation, suicidality and rejection sensitivity. She said that these were consistent with his history, both as to the accident and the childhood trauma.

  2. It is important to bear in mind that in Bugmy v The Queen (at [43]), the plurality spoke of the enduring negative impact of a disadvantaged and dysfunctional background upon a person. They accepted the Director's submission that "the effects of profound deprivation do not diminish over time" and said, "the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life".

  3. The explanation the applicant gave to the police for leaving the scene of the collision is entirely consistent with what Ms North spoke of; emotional distress and a panicked state resulting in impaired judgment and poor decision-making. The judge should have considered the applicant's explanation in this light and not rejected Ms North's opinion because of inconsistency. The sentencing discretion miscarried in that the judge mistook the facts: House v The King (1936) 55 CLR 499; [1936] HCA 40.

Resentencing

  1. The Court was required to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 in order to determine whether some other sentence was warranted and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3).

  2. There was no submission that the Court should not proceed upon an acceptance of the various findings made by the sentencing judge. They include the mitigating factors that the applicant has good prospects of rehabilitation and is unlikely to reoffend. There is also the reduction of sentence by 25% for the utilitarian value of the plea of guilty: Crimes (Sentencing Procedure) Act, s 25D(2)(a).

  3. It was submitted that the Court should find that the applicant is "genuinely remorseful". That should be accepted for the reasons provided by Basten JA in relation to Grounds 1 and 2.

  4. The applicant's disadvantaged and dysfunctional background operated in two ways in his favour. First, it provided some explanation for his decision to flee the scene immediately after the impact. The Crown's submission that self-interest and self-preservation were key factors may be accepted. However, it was also the case that the applicant's moral culpability was reduced in comparison to a person who had not experienced the substantial trauma of his upbringing. Secondly, the applicant had achieved considerable success in leading an otherwise stable and prosocial life (aside from his traffic record) despite his background. This amply supported the primary judge's findings as to his good prospects of rehabilitation and unlikelihood of reoffending.

  1. The judge's finding of special circumstances was not challenged by the Crown and was maintained.

The sentencing orders

  1. At the conclusion of the hearing on 10 February 2020 the Court made the following orders:

1.   Grant leave to appeal from the sentence imposed in the District Court at Wollongong on 14 June 2019.

2. Allow the appeal in part and set aside order (1) being a sentence of imprisonment for 3 years with a non-parole period of 1 year, 6 months, commencing on 7 September 2018 for the offence contrary to s 52AB(1) of the Crimes Act 1900 (NSW).

3.   Resentence the offender to a term of imprisonment comprising a non-parole period of 1 year and 3 months to date from 7 September 2018, and taken to have expired on 6 December 2019, with a balance of term of 1 year expiring on 6 December 2020.

4. Note that the offender is entitled to be released forthwith subject to a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).

5. Pursuant to s 206A(5) of the Road Transport Act 2013 (NSW), order that the 12 months period of disqualification be directed to commence at the expiration of the non-parole period, namely on 6 December 2019, and expire on 5 December 2020.

6.   All other aspects of the sentencing orders of the District Court of 14 June 2019 are confirmed.

7.   Reasons are reserved.

  1. I agreed with the making of these orders for the foregoing reasons.

  2. N ADAMS J: For the reasons given by Basten JA in relation to grounds 1 and 2 at [7]-[20] and by R A Hulme J in relation to ground 3 I concurred in the making of the orders on 10 February 2020.

**********

Endnotes

Decision last updated: 21 February 2020

Most Recent Citation
Cases Citing This Decision

7

R v Haouli [2024] NSWDC 370
R v Forster [2024] NSWDC 212
R v Flentjar [2023] NSWDC 115
Cases Cited

13

Statutory Material Cited

7

R v Hoskins [2019] NSWDC 278
Morawski v State Rail Authority [2000] NSWCCA 309
R v Robert Borkowski [2009] NSWCCA 102