Michael Forsyth v Regina

[2002] NSWCCA 393

CITATION:	Michael FORSYTH v Regina [2002] NSWCCA 393
FILE NUMBER(S):	CCA 60645/01
HEARING DATE(S):	23 September 2002
JUDGMENT DATE:	23 September 2002
PARTIES :	Michael Forsyth - Applicant Regina
JUDGMENT OF:	Buddin J at 29; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0117
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

COUNSEL :	C.B. Craigie SC - Applicant P. Barrett - Crown
SOLICITORS:	D.J. Humphreys - Applicant S.E. O'Connor - Crown
CATCHWORDS:	Sentencing - substantial special circumstances found but only nominal allowance made - non-parole period reduced to accord with finding
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209
DECISION:	see paras 28 and 29

60645/01

BUDDIN J
SMART AJ

Monday 23 September 2002

MICHAEL FORSYTH v REGINA

Judgment

1. SMART AJ: Michael Forsyth seeks leave to appeal against a sentence of imprisonment for three years six months with a non-parole period of two years six months for the offence of driving in a manner dangerous occasioning the death of Heidi Cartwright.

2. In his detailed sentencing remarks, the judge has set out the facts and made a number of findings.

3. About 6.30pm on 26 October 2000, about six hours before the fatal accident, the offender drove his car, a Ford XR8 sedan, to the Wangi Hotel on a wet road. It was raining lightly. His passenger, Colin O’Toole, said that the offender was driving too fast and taking the corners at speed. On a number of occasions O’Toole told the offender to slow down. Between about 8pm an 8.30pm, the offender drove from the Wangi Hotel to the Bay Hotel, Bonnells Bay.

4. About midnight the offender, Luke Bruce, Linda Brown and the deceased left the hotel and got into the offender’s car, the two ladies being in the back seat. After revving his car, the offender did a little screeching on his wheels in the car park. While still in the car park, the offender accelerated away quickly for a short distance and then the wheels spun. There was smoke coming from the wheels and screeching.

5. On leaving the car park and on the road the offender spun the back wheels and the car spun around in a 360-degree circle. The appellant next drove up the road. The ladies wanted to go to Shingles Splitters Point, so the offender did a U-turn and headed back along Fishery Point Road. The offender accelerated away quickly from the U-turn at an estimated speed of about 100 kilometres per hour. As they came around the corner, the car went sideways. The car headed for the trees and left the road. There was a big bump as the car left the road and landed down the lower side. The car seemed to land nose first. It bounced back into the air and landed back on both wheels in a paddock on the wrong side of the road. It crossed the unbroken double centre line. Those nearby heard a car travelling fast along the road and a big bang.

6. At the scene of the accident, the offender denied to the police that he was the driver of the vehicle. The offender said that he panicked. He was worried about the insurance on the car as he had been drinking. In his record of interview, the offender said that he steered sharply to the left and the vehicle veered across the road onto the shoulder before leaving the carriageway, landing heavily down an embankment and coming to rest in a vegetated area opposite Bonnells Bay shopping centre.

7. The deceased was injured when the vehicle left the road and was taken to hospital. Initially her injuries were considered to be moderate but her condition deteriorated, resulting in her death.

8. On hearing of the deceased’s death, the offender, after taking advice, ultimately voluntarily attended at Toronto police station and entered into a recorded interview, admitting that he was the driver at the time of the accident.

9. The judge found that the cause of the accident was excessive speed on taking the bend, that this excessive speed was due to the offender showing off his Ford XR8 sedan and that he ignored warnings to moderate his driving. The judge concluded that this was not a case of momentary lapse of attention but one of abandonment of responsibility. Those findings were amply justified on the evidence.

10. The offender left the scene before he was breath tested. The judge was satisfied beyond reasonable doubt that the offender had consumed some alcohol in the hours before the accident and that he strongly suspected that he had more than the prescribed concentration of alcohol in his blood. There was evidence from people who saw the offender after the accident expressing the opinion that he was affected by alcohol. The judge thought that the offender’s conduct could well be due to shock and other matters. The judge held that the evidence did not satisfy him beyond reasonable doubt that the offender did have the prescribed concentration of alcohol in his blood.

11. The offender was born on 9 November 1974. He has no record of what are traditionally regarded as criminal offences. On 16 February 1999 he was fined for negligent driving and placed on a bond for two years. The offender’s traffic history is not particularly good. In each of June and August 1999 he was dealt with by traffic infringement notice for exceeding the limit by more than fifteen kilometres per hour. Between 1993 and June 1996 he was dealt with by traffic infringement notices on eleven occasions for a variety of infringements, including exceeding the speed limit and disobeying traffic lights. On 16 April 1997 he was dealt with by the Castlereagh Street Court for exceeding the speed limit by more than fifteen kilometres per hour. In May 1996 there was a demerit point cancellation of unrestricted (class 5B) licence. He was able to apply for a further unrestricted licence after 4 September 1996.

12. In evaluating this record, it must be remembered that the applicant was driving a truck for a living and was travelling a great many miles each year.

13. There is one further matter, namely on 18 June 2001 he was fined for driving with mid range prescribed concentration of alcohol and disqualified from driving for six months from 20 May 2001. As this was after the accident, the judge did not take it into account. Further, there were reasons suggesting that his mental condition may have contributed to the driving.

14. The offender left school with the Higher School Certificate and began work as a truck driver at about eighteen or nineteen years of age. He was a full time employed truck driver until about 24 April 2001 when he left that employment of his own accord. Of his own volition he consulted a psychologist, Miss Megan Davies. The offender said that he was depressed and emotional and very upset at having killed someone. He was not in the frame of mind for truck driving.

15. On the night of his arrest for driving with mid range PCA he was taken to a psychiatric hospital and admitted as an involuntary patient because of his depression. Later he became a voluntary patient. The depression was due to the accident, the pending court proceedings and their likely outcome. When arrested by the police, he had a hose with a can on the end of it in his car. He had used this equipment to try and commit suicide. He had stopped his attempt because of the overwhelming effect of the pain on his body. He received treatment from Dr Brash at the hospital for five days and medication was prescribed and taken. The treatment took away his thoughts of killing himself. The offender said that although the relationship with his former partner had ended, they were still on good terms. His four year-old daughter had become his main drive in life. He also wanted to better himself.

16. Dr L Brash said that the offender gave a history of being involved in a motor accident resulting in the death of a passenger and becoming increasingly depressed over this. He was also very anxious about the upcoming court case, fearing that he would be gaoled. He had poor sleep, reduced appetite, feelings of hopelessness and difficulty with concentration. He has given up his job as a truck driver. There was a rapid improvement in mood in hospital due to his coming into hospital and receiving support. Dr Brash said that the offender indicated quite a degree of remorse about the death of the deceased and that this was a major cause of his depression.

17. In his testimonial Mr J Hackett, who had known the offender for five years and spoke well of him, described the offender’s actions as being completely out of his usual character.

18. Mr C Byrnes, the managing director of the offender’s employer, has written that the offender was probably the most valuable of the company’s employees and was often chosen to complete more difficult tasks as he was always a safe, reliable and honest driver. Mr Byrnes said that the criminal offence was totally out of the offender’s usual character. Mr Byrnes believed that the offender was a person of good character.

19. The judge did not wholly accept the submission that the offender had a high degree of remorse and contrition. The judge made these findings:

“Indeed, I am satisfied beyond reasonable doubt that his entire course of conduct, commencing with seeking to get others to lie as to the identity of the driver, his lying to police about the identity of the driver, his leaving the scene before he could be breath tested and his meeting the police once it was too late for breath test, indicate on his part a cold, calculated and cynical cunning. I mention it to indicate reasons for not giving a greater discount on sentence for remorse and contrition as was contended for by counsel for the prisoner. I have no doubt that by March, April and May of this year the prisoner was depressed but I am also satisfied that the major part of that depression arose out of the realisation that he faced a substantial custodial sentence.”

20. The judge applied the statements of principle and the guidelines in Jurisic (1998) 45 NSWLR 209. The judge in holding that the offender had abandoned responsibility for his conduct relied on the offender’s excessive speed, four people including himself being put at risk, moving the car to the wrong side of the road across double unbroken lines, giving rise to potential danger to other users of the road, the offender showing off and ignoring the warnings he was previously given. The judge noted that the guidelines took into account a plea of guilty.

21. The judge had regard to a moving letter from the deceased’s mother and the severe and devastating effect of her daughter’s death.

22. The judge found special circumstances, namely the offender’s age, the absence of any criminal convictions, this was his first time in prison and his exhibiting a considerable degree of regret at having been responsible for the death of a young woman and this hanging heavily upon him.

23. I agree that there were special circumstances for the reasons given by the judge.

24. The offender, in his submissions, contended that the judge’s characterisation of the circumstances overall as indicating that the offender had abandoned responsibility for his conduct was open to question. However, counsel appearing on the hearing did not take that approach but correctly submitted that there was one issue of consequence, namely that the judge had not made sufficient allowance for special circumstances. It was pointed out that while the usual ratio between the non-parole period and the full sentence is seventy five per cent, the judge had, notwithstanding the finding of special circumstances, only allowed for a non-parole period of an extra six weeks or seventy one per cent of the sentence. The crux of the offender’s submission was that the judge had made but a nominal allowance for special circumstances.

25. The Crown submitted that, when regard was had to the seriousness of the offence, it was simply not open to the judge to fix a lesser non-parole period.

26. The Crown’s submissions are persuasive and have great substance. However, this is a case in which the judge found significant special circumstances, as earlier enumerated.

27. This Court is presented with an issue of difficulty. Nevertheless, I have come to the conclusion that having regard to the strength of the special circumstances a nominal allowance for these was incorrect and that the judge made insufficient allowance for these. An appropriate non-parole period in all of the circumstances was one of two years and three months. As earlier mentioned the attack against the head sentence was not pressed and that was wise.

28. Accordingly, I propose the following orders:

1. Leave to appeal against sentence granted;

2. Appeal against sentence allowed in part; dismiss the appeal against the sentence of three years and six months; allow the appeal to the extent of reducing the non-parole period to one of two years three months. The non-parole period will commence on 3 August 2001 and expire on 2 November 2003.

29. BUDDIN J: I agree. Accordingly, the orders will be as proposed by Smart AJ.

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