Ian Gobbett v Regina

[2006] NSWCCA 46

CITATION:	Ian Gobbett v Regina [2006] NSWCCA 46
HEARING DATE(S):	24 February 2006
JUDGMENT DATE:	8 March 2006
JUDGMENT OF:	Mason P at 1; Barr J at 2; Howie J at 22
DECISION:	Grant leave to appeal and allow the appeal. Quash the sentences imposed and substitute the following - On the first count: a non-parole period of three years commencing on 28 January 2005 and expiring on 27 January 2008 and a balance of term of two years; On the second count: a non-parole period of three years commencing on 28 January 2006 and expiring on 27 January 2009 and a balance of term of two years; and On the third count: a fixed term of three years commencing on 28 January 2005 and expiring on 27 January 2008.
PARTIES:	Ian Gobbett, Regina
FILE NUMBER(S):	CCA 2005/2011
COUNSEL:	P Power SC H Dhanji
SOLICITORS:	S Kavanagh Steve O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1310
LOWER COURT JUDICIAL OFFICER:	Kinchington QC DCJ

2005/2011

MASON P
BARR J
HOWIE J

8 MARCH 2006

IAN GOBBETT v REGINA

Judgment

1 MASON P: I agree with Barr J.

2 BARR J: The applicant, Ian Gobbett seeks leave to appeal against sentences imposed in the District Court.

3 The applicant pleaded guilty in the Local Court to two counts of dangerous driving causing death and one count of dangerous driving causing grievous bodily harm. He was committed to the District Court for sentence. On 18 March 2005 Kinchington QC DCJ sentenced him on each of the counts of dangerous driving causing death to a head sentence of six years, commencing on 28 January 2005 and expiring on 27 January 2011. For each sentence his Honour fixed a non-parole period of four years, expiring on 27 January 2009. For the offence of dangerous driving causing grievous bodily harm his Honour imposed a fixed term of four years wholly concurrent with the non-parole periods. The effective sentence was therefore one of six years with a non-parole period of four years.

4 The facts were summarised by his Honour as follows -

At about 9:10pm on Friday 11 July 2003 the offender was driving his motor vehicle, a Victorian registered vehicle, DEJ 455, south on the Pacific Highway, north of Yelgun. Within the vehicle at that time was his partner and intended wife Karen Mann and three of her children, Megan, Justin and Amber Cavanagh. The vehicle had approached the rear of a number of vehicles travelling south bound at a position where the highway was divided. There were two lanes proceeding in both the northerly and southerly direction at that time. This was approximately 10 to 15 minutes prior to the collision which gave rise to these proceedings.
At that time the offender, coming up behind one of those vehicles, verged into the breakdown lane adjacent to the nearside lane of that dual carriageway and passed a vehicle driven by a man by the name of Harris on his left-hand side while proceeding along that breakdown lane. The offender’s vehicle then verged back into the nearside lane of that dual carriageway, came up behind another vehicle in that lane and ultimately moved into lane one and passed that vehicle. According to Mr Harris, the offender was driving at a speed well in excess of 110 kilometres per hour which was the speed limit applicable to that area. Mr Harris estimated that the offender’s speed was in the vicinity of 130 kilometres per hour. Mr Harris lost sight of that vehicle, but noticed that when the offender’s vehicle proceeded to pass the other vehicles in front of him he gave no indication by his traffic indicator that he was about to make that passing movement.
Some 600 meters south of this position the 110 kilometres speed limit area ceased and the roadway became a single lane highway. At about 9:19pm the offender’s vehicle came up behind an articulated vehicle pulling a trailer and the offender in order to pass this vehicle, verged onto the left-hand or the breakdown lane and travelled along that lane on the left-hand side of the articulated vehicle in an attempt to get past that vehicle. The speed limit applicable to this area was 80 kilometres per hour and it is clear that in performing this movement the offender was travelling well in excess of that speed as the articulated vehicle was doing approximately that speed at that time.
As the offender’s vehicle reached the driving cab of the articulated vehicle, it came into collision or side-swiped the external fuel tank of that vehicle and thereafter passed the vehicle but apparently out of control, whereupon it travelled in front of the articulated vehicle and rotated in a clockwise direction so that the left-hand side of the offender’s vehicle was leading across the roadway in a generally southerly direction and the vehicle crossed the double unbroken centre line into the path of a north-bound vehicle being driven by a Miss K Langley. Miss Langley’s vehicle was at all times travelling on its correct side of the road and the two vehicles came into collision, Miss Langley’s vehicle hitting the offender’s vehicle on the passenger’s side of that vehicle. As a result of that impact the front seat passenger in the offender’s vehicle, namely Karen Mann, received fatal injuries, as did her daughter Megan Cavanagh who was seated on the passenger’s side in the rear of that vehicle. The other two passengers in the vehicle, although injured were not seriously injured it would seem. The offender also was not seriously injured as a result of the collision. The driver of the northbound vehicle, Miss K Langley received serious injuries which I am satisfied from the material before me constitutes grievous bodily harm.

5 The unchallenged evidence was that the appellant and his fiancée and some members of the family were returning to Melbourne from a holiday in Queensland. They were in a hurry. They had drunk alcohol on the way and the appellant had taken over the driving from his fiancée because she appeared to him to have been affected by the alcohol she had drunk. The appellant was tested soon after the collision and his blood was found on analysis to contain 0.04 grams of alcohol per cubic centimetre. There were traces of opiates in his blood.

6 The injuries to Miss Langley were very serious. She was a fifty-year-old woman, intelligent, the principal of a primary school. As a result of the collision she sustained substantial orthopaedic injuries. Her left ankle and kneecap were broken. Her right femur was broken in two places. Two ribs were broken. There was a bursting fracture high in the cervical spine. She suffered a closed head injury with brain damage. The sixth cranial nerve was damaged on the right, resulting in an inability to move the right eye to the right. Miss Langley was in hospital for a long time. She underwent and at the time of sentence was continuing to undergo an extensive program of rehabilitation. The head injury had affected her ability to remember things. She had been unable to return to work and although prospects still seemed good for her, there was no serious suggestion that she would be able to do her old job again. She suffered permanent scarring and continuing double vision and dizziness.

7 The applicant had a strong subjective case. He was twenty-four years old at the time of the offence and had been “devastated” by the death of his fiancée and her child. He had known his fiancée for six years and had been in a personal relationship with her for three years. He had pleaded guilty at the first opportunity and had made admissions upon his arrest. His Honour was satisfied that he had made no attempt to minimise his role and was appropriately contrite and remorseful, recognising the gravity of his actions. Since the commission of the offence and following an intervening period in custody for offences of dishonesty the applicant had spent two months in residential rehabilitation. Having had the benefit of hearing the applicant’s and the applicant’s father’s evidence his Honour was satisfied that the applicant had made “giant steps” towards solving his drug problem. His Honour noted the applicant’s father’s evidence about the change that had taken place in the applicant upon his release from gaol in 2004. The applicant had the support of his family and had been brought up in a loving environment. His addiction to drugs had historically given rise to his problems with the criminal law. He had not served lengthy periods of imprisonment. His Honour found that his expressions of remorse and contrition were of the “highest nature”. The Pre-Sentence Report confirmed that the applicant demonstrated insight into his offending. There was no suggestion that the applicant had a bad driving record or any relevant convictions, although he could not be described as being of good character.

8 The first ground of appeal asserts that his Honour erred in assessing the aggravating features of the defence. It was submitted that whilst his Honour appeared to acknowledge the applicant’s strong subjective case, “in striking an appropriate balance between this consideration and the aggravating factors of the offence his Honour weighted the balance too heavily against him”.

9 It was submitted that his Honour had remarked that the applicant’s driving was the worst he had seen in his years as a judge. Even so, without minimising the gravity of the offences, it was submitted, they could not individually or collectively be regarded as in the worst category of driving in a manner dangerous occasioning death. It was submitted that his Honour’s assessment of the applicant’s culpability at “somewhere in the higher range and above the midrange of culpability” and the sentence imposed led to the conclusion that his Honour must have assessed the objective seriousness of the applicant’s culpability close to the top of the available range.

10 Complaint was made that his Honour repeated what he regarded as the aggravating features of the case, leading to a suspicion that he may have placed too much weight on those features. Particular attack was made upon a passage in his Honour’s remarks enumerating what his Honour described as aggravating features. They were that the injuries sustained by two of the victims were fatal and that the other was of an extremely serious nature, that a large number of people had been put at risk by the applicant’s driving, that the applicant’s speed was significantly excessive throughout, that his driving was erratic and dangerous, that his driving seemed to be of a competitive nature or amounted to showing off, that a number of other road users had been exposed by the applicant’s criminality to the risk of injury over a considerable period of time and that at least three of his passengers, including the woman who died, had asked him in vain to slow down.

11 It was submitted that his Honour erred, first because the deaths that resulted were elements in the offences of which the applicant pleaded guilty. So was the grievous bodily harm that occurred to Miss Langley. It was submitted that his Honour erred in finding that the applicant was speeding “at all times” over a period of fifteen to twenty minutes, there being no evidence from which that finding could be made. It was submitted that there was no evidence from which his Honour could have concluded that the applicant engaged in competitive driving, or in erratic and dangerous driving, apart from his having overtaken vehicles by moving into the breakdown lane.

12 The submissions which I have summarised were made as though in the portion of the judgment to which I have referred his Honour was listing aggravating features for the purposes of s21A(2) Crimes (Sentencing Procedure) Act 1999. That does not to my mind explain his Honour’s reasoning. His Honour is a most experienced sentencing judge and would hardly have fallen into the error of believing that the fact of death was an aggravating feature in an offence constituted by elements one of which was the death of a person. His Honour nowhere referred to s21A but rather to the judgment of this Court in R v Whyte (2002) 55 NSWLR 252, a judgment intended to give guidance to courts sentencing for offences of this kind, and to the features listed therein by reference to which criminality might be assessed. I think that his Honour’s references to the deaths and the grievous bodily harm that resulted from the manner in which the applicant drove his vehicle were references to those features. My impression is strengthened by his Honour’s references to other features listed in the same judgment.

13 I do not think that the attacks on his Honour’s findings of fact have been made good. There was evidence on which his Honour was entitled to find that a substantial number of people had been put in danger by the manner in which the applicant drove and the time during which he drove in that manner. There was evidence upon which his Honour was entitled to find that the applicant was speeding throughout the whole of the period that came under notice.

14 I do not think that the length of the total effective sentence demonstrates that his Honour gave too much weight to the serious criminality which had to be reflected in the sentence and too little to the favourable subjective features. To my mind an effective sentence of six years with a non-parole period of four years was well within his Honour’s sentencing discretion. I would not interfere with the overall result achieved because in my view no lesser sentence is warranted in law.

15 The second and third grounds of appeal assert that the sentence is manifestly excessive and that his Honour erred in failing properly to take into account the applicant’s pleas of guilty. These grounds may be dealt with together. In imposing sentence his Honour said this -

To his credit the offender has never sought to hide his criminality in this matter. He has pleaded guilty from the outset and has always accepted that he is responsible for the situation that he now faces and had placed himself in and that he must be punished for his criminal actions …
…
I am satisfied that his expressions of remorse and contrition are of the highest nature. I have no doubt that the deaths of his partner and his intended wife and her daughter and the trauma that he subjected Miss Mann’s two other children to, together with the injuries that Miss Langley suffered in this collision have impacted upon him and will affect his future life.
…
In all the circumstances of this case, I am satisfied he is entitled to a discount on sentence approximating 25 per cent. In assessing that discount I have taken into account the subjective material herein together with his pleas of guilty and bearing in mind the utilitarian value of that plea, but most particularly, I have borne in mind his remorse and contrition expressed by him in this case. I must also say that his efforts of rehabilitation in his circumstances are no doubt a giant step forward by him.

16 The maximum sentence for each of the counts involving death was ten years’ imprisonment and the maximum for the third count was seven years’ imprisonment. It was submitted first that it was uncertain whether the figure “approximating 25 per cent” was attributable to the value of the pleas of guilty in all its manifestations or merely as utilitarian. It was submitted that so early were the pleas and so great was the benefit of them to the community, not least because Miss Langley was thereby spared from the ordeal of giving evidence, that they alone merited a discount of or close to twenty-five per cent. Reference was made to R v Thomson & Anor (2000) 49 NSWLR 383. If his Honour was allowing about twenty-five per cent for the whole effect of the pleas, therefore, it was insufficient. If, on the other hand, his Honour was allowing a further unspecified amount for the other effects of the plea – contrition, rehabilitation and the like – the starting point for the three individual sentences must have been at or very close to the maximum. Yet although these were very serious offences of their type, they did not fall into the worst category and his Honour stopped short of making such a finding.

17 I think that these submissions should be accepted.

18 As this Court observed in R v Janceski [2005] NSWCCA 288 where a court is sentencing for multiple offences arising out of a single criminal act, such as a bout of driving as here, it is erroneous to impose concurrent sentences, each aggravated by consideration of the multiplicity of consequences. See also R v Tadrosse [2005] NSWCCA 145. The proper approach is to fix a sentence for each offence, without regard to the discrete effects of other offences, and then decide to what extent if any there should be accumulation in order to produce an overall result that reflects the totality of criminality: Pearce v The Queen (1998) 194 CLR 610.

19 In view of his early pleas of guilty and the subjective case he was able to make, the applicant was, I think, entitled to expect an allowance for all the favourable features exceeding twenty-five per cent and to my mind the resulting head sentences of six, six and four years respectively are erroneously high. His Honour fell into error in imposing wholly concurrent sentences for the three counts.

20 Although I would not interfere with the overall effect of the sentences, I would grant leave to appeal and allow the appeal. I would quash the sentences imposed and substitute the following -

On the first count: a non-parole period of three years commencing on 28 January 2005 and expiring on 27 January 2008 and a balance of term of two years;
On the second count: a non-parole period of three years commencing on 28 January 2006 and expiring on 27 January 2009 and a balance of term of two years; and
On the third count: a fixed term of three years commencing on 28 January 2005 and expiring on 27 January 2008.

21 My reason for fixing individual and collective balances of the terms of the sentences exceeding one third of the non-parole periods is to promote the rehabilitation of the applicant, of which there was evidence before his Honour and of which there is further evidence in the applicant’s affidavit affirmed on 16 February 2006 and read on the hearing of the appeal.

22 HOWIE J: I agree with Barr J.

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