Moule v The The Queen

[2022] NSWDC 410

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moule v R [2022] NSWDC 410

Hearing dates:

3-4 August 2022

Date of orders:

4 August 2022

Decision date:

04 August 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [38]-[40].

Catchwords:

CRIME – APPEAL – AGGREGATE SENTENCE – 5 OFFENCES – Negligent driving causing death – Breach of Public Health Regulation – Possession of a false document – Possession of prohibited drugs (2 counts).

CRIME – APPEAL – SIGNIFICANCE OF MAXIMUM PENALTY – Indicative sentences for drug offences too great – new indicative sentences fixed for drug offences – Sentence fixed using same ration as used in Local Court – Significance of rounding down of periods and special circumstances.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Public Health Act 2010 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

Ibbs v The Queen (1987) 163 CLR 447; 74 ALR 1

Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; 77 ALR 835

Texts Cited:

Nil.

Category:

Sentence

Parties:

Appellant – Adam Moule
R - Crown

Representation:

Appellant – Mr Maxton of LegalAid NSW
R - Ms O’Sullivan of the Office of the Director of Public Prosecutions (NSW)

File Number(s):

2021/00100153; 2021/0039496; 2022/00091341

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Crime

Citation:

Nil.

Date of Decision:

19 May 2022

Before:

Christofi LCM

File Number(s):

2021/00100153

Judgment

1. HIS HONOUR: This is an appeal against a sentence passed by Magistrate Christofi sitting in the Central Local Court on 19 May 2022. The Appellant stood for sentence before his Honour for five separate offences. His Honour imposed an aggregate sentence of imprisonment for two years and fixed a non-parole period of 18 months.

2. The sentence commenced on 17 November 2021 despite the fact that it was imposed on 17 February 2022, the backdating being due to periods of pre-sentence custody. It is conceded by the Crown that the backdating was to the appropriate date.

3. The imposition of an aggregate sentence is to be contrasted with the imposition of five separate sentences of imprisonment. Aggregate sentences of imprisonment are provided by s 53A of the Crimes (Sentencing Procedure) Act 1999, which is in the following terms:

“(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following—

(a)  the fact that an aggregate sentence is being imposed,

(b)  the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3)  Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)  The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5)  An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.”

4. One will note from s 53A(2)(b) that the indicative sentence for each separate offence would have been the head sentence that the Court would have imposed for each separate offence had each separate offence been dealt with separately.

5. Relevantly for the current case, it would be the appropriate head sentence for the offence after any appropriate discount. The discounts in the current case were allowed for the Appellant’s early pleas of guilty.

Negligent driving causing death

6. The first offence for which the Appellant stood for sentence occurred on 11 April 2021. At the time the Appellant was 30 years old. The offence is one contrary to s 117(1)(a) of the Road Transport Act 2013. The allegation contained in the Court Attendance Notice was that between 8am and 9am on 11 April 2021 at Palm Beach the appellant negligently drove a motor vehicle upon a road, namely Barrenjoey Road, Palm Beach, resulting in the death of Matthew Butcher. The maximum penalty for that offence is imprisonment for 18 months and/or a fine of 30 penalty units. The maximum penalty is that set by Parliament.

7. I understand that the sentence passed upon the Appellant for this and the other crimes he committed has been the cause of major concern to the dependents and relatives of the late Mr Butcher. The Court understands their concern and anxiety. The Court extends to those members of the deceased’s family its sincere sympathy. However, the fact remains that the maximum penalty is fixed by Parliament. It is merely imprisonment for 18 months.

8. If a death were occasioned by gross or criminal negligence, a person committing the offence could be charged with manslaughter. The maximum penalty for manslaughter is imprisonment for 25 years. When motor vehicle first started to cause death, it was usual for the driver to be charged with manslaughter. However, juries were extremely reluctant to find a negligent motorist guilty of manslaughter, the extent of their negligence being not sufficient in law to be categorised as gross. There was also a natural reluctance of jurors to find a motorist guilty of manslaughter, when invariably the defence would raise an argument along the lines of “there, but for the grace of God, go I”. That led to Parliament’s creating the offence of dangerous driving causing death.

9. The relevant provisions in the Crimes Act 1900 commence at s 52A. The maximum penalty for dangerous driving causing death is imprisonment for ten years. If the death results from the aggravated dangerous driving of an offender, the maximum penalty is imprisonment for fourteen years. However, to be guilty of dangerous driving causing death the prosecution must prove beyond reasonable doubt that the offender was driving under the influence of intoxicating liquor or a drug or at a speed dangerous to another person or persons or in a manner dangerous to another person or persons. It is clear from the facts available that the prosecution could not prove that the Appellant had been guilty of dangerous driving.

10. The offence occurred on Sunday 11 April 2021. Mr Matthew Butcher, a father of four, held a learner’s class rider’s licence. He had been riding motorcycles for approximately two months before the collision which caused his death.

11. On the morning of 11 April 2021, he had driven to Palm Beach for a motorcycle ride. He was wearing a black leather jacket, black pants, a black helmet and drove a black and silver motorcycle. At the relevant time he had left Palm Beach and was riding south on Barrenjoey Road. He was approaching the intersection of Barrenjoey Road and Surf Road. The Appellant was driving north on Barrenjoey Road. He was driving an Isuzu white, medium, rigid truck, which was approximately 10 metres long and weighed 14 tonnes GMV. He was going to make a delivery in Surf Road. The intersection of Barrenjoey Road and Surf Road is a T-intersection. The speed limit on Barrenjoey Road is 60 kph. At the relevant point there is one lane northbound and one lane southbound with double unbroken lines painted on the middle of the road. There is a break in the unbroken lines for northbound traffic to enable northbound traffic to turn right into, and head east, on Surf Road.

12. As the deceased was riding south along Barrenjoey Road, the road was flat and sealed. There was no glare and no wind. However, both lanes of Barrenjoey Road were in shade. A photograph contained in the agreed facts shows that shade. The traffic was free-flowing and there were no parked vehicles on the southbound lane which might have obstructed vision nor was there any debris on the road. As the Appellant approached the intersection of Barrenjoey Road and Surf Road there was a sign on the northeastern side of the intersection prohibiting trucks 6 metres or longer from entering Surf Road. To do so they would have to go further north and make a u-turn and travel south along Barrenjoey Road in order to make a left hand turn into Surf Road. Despite the fact that his truck was about 10 metres long, the Appellant clearly saw the sign and ignored it. He made a right hand turn into Surf Road in front of Mr Butcher as he was riding south. Other motorcyclists behind Mr Butcher observed him brake and his rear tyre was seen to wobble, indicating that his brakes had locked.

13. Mr Butcher’s motorcycle collapsed onto the left-hand side of the roadway, but kept going forward and passed underneath the left hand side of the Appellant’s truck as he was making the turn into Surf Road leading, unfortunately, to Mr Butcher’s death.

14. The failure by the Appellant to observe the regulatory sign was not the causal reason for this collision. The causal reason for the collision was the failure of the Appellant to keep any proper lookout, to fail to observe Mr Butcher as he was riding south on Barrenjoey Road. A failure by motorists to make a right hand turn with safety, a failure of motorists to observe oncoming traffic is unfortunately, in the Court’s experience, common and leads to many motor vehicle accidents. This was an accident due to negligence which caused Mr Butcher’s death.

15. The learned Magistrate was required to consider the seriousness of the offence in order to sentence the offender for this offence. As I said, the maximum penalty is imprisonment for 18 months. The maximum penalty prescribed for an offence “is intended for cases falling within the worst category of cases for which the penalty is prescribed”: Ibbs v The Queen (1987) 163 CLR 447; 74 ALR 1. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case. Ingenuity can always conjure up a case of greater seriousness: see Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; 77 ALR 835.

16. I could not put this case in the “worst category.” The fact is that it is often difficult for motorists to observe motorcyclists riding black coloured motorcycles wearing black clothing driving on black bitumen roads when they are in shadow. A worse case of course would be where the Appellant made a right hand turn in front of a very large vehicle such as a bus or even a large SUV which was brightly coloured and obvious. To ignore such a large and obvious vehicle would indicate a failure to keep any form of lookout, let alone any proper lookout. In other words, the seriousness of the failure to observe what is struck is proportionate to the visibility of the thing that is struck.

17. In the circumstances, it appears to me that the approach taken by the learned Magistrate was correct. After all, he imposed for this offence an indicative term of 12 months. It was accepted by the Crown that the Appellant pleaded guilty at the earliest available opportunity to that offence. That entitled him to a 25% discount. A head sentence of 12 months imprisonment means that the learned Magistrate commenced his deliberation with a head sentence of 16 months out of a possible head sentence of 18 months. He did not place this offending behaviour in the worst category, but he placed it highly.

18. I cannot disagree with what the learned Magistrate did, given the statutory starting point, a head sentence of 18 months’ imprisonment. Indeed the Appellant makes no complaint about the indicative sentence made by the learned Magistrate for this offence. I should point out that if the only offence for which the Appellant stood for sentence was this offence, his Honour would then have been required to impose a non-parole period. Applying the statutory ratio between the head sentence and the non-parole period, and ignoring any entitlement by the Appellant to have special circumstances, the maximum non-parole period would have been nine months’ imprisonment.

19. I can understand the concern of the members of the deceased’s family. However, the problem lies not with what the Courts have done, but with the maximum penalty prescribed by Parliament.

Breach of Public Health Regulation

20. The second offence for which the Appellant stood for sentence was an offence of breaching a regulation made pursuant to s 10 of the Public Health Act 2010. The maximum penalty for the offence was imprisonment for six months and/or a fine of 100 penalty units.

21. The Court Attendance Notice is completely meaningless. It said that the offence occurred between 5.45pm and 7pm on 24 October 2021 at Rozelle, but it is quite impossible to ascertain from the Court Attendance Notice what the offence was. However, the Appellant pleaded guilty to it and does not seek to withdraw that plea. The facts indicate to me that the Appellant broke the COVID-19 regulations in a truly calculated fashion.

22. On Sunday 24 October 2021, the Appellant attended the Sackville Hotel in Rozelle. CCTV footage obtained from the Hotel showed the Appellant entering those licensed premises at 5.45pm. He checked into the venue showing staff proof of check-in before being asked to show his vaccination status. He then presented to staff members what appeared to look like a COVID-19 vaccine certificate on his phone, but which was not in fact what it was thought to be. The Appellant then consumed a number of alcoholic beverages within that venue.

23. On Wednesday 23 November 2021, police attended the Appellant’s home address in Balmain and the Appellant admitted to them that he attended the Sackville Hotel in Rozelle on 23 October 2021, and he admitted that he was unvaccinated. When he was asked if he knew that he needed to be vaccinated to attend the licenced premises he said that he did. He said, however, that when he entered the premises, he forgot about it. When asked about the vaccination certificate that he showed to the hotel staff, the Appellant admitted that he showed them his vaccination certificate, that his vaccination for other conditions such as hepatis B, poliomyelitis, diphtheria, tetanus, and pertussis, for which he had been vaccinated in 1996 and he did not have any COVID-19 vaccination. He went on to admit that he had used his earlier vaccinations to obtain admission to similar places during the COVID-19 pandemic.

24. This is a gross breach of the regulations. His Honour fixed an indicative term of three months’ imprisonment. I cannot disagree with that, nor was it pressed with any force by the solicitor appearing for the Appellant, Mr Maxton, and very properly so.

Possession of a false document

25. The third offence for which the Appellant stood for sentence was for possessing a false document which could be used to influence the exercise of a public duty. This is an offence contrary to s 255 Crimes Act 1900. The section is this:

“A person who has in his or her possession a false document, knowing that it is false, with the intention that the person or another will use it--

(a) to induce some person to accept it as genuine, and

(b) because of its being accepted as genuine--

(i) to obtain any property belonging to another, or

(ii) to obtain any financial advantage or cause any financial disadvantage, or

(iii) to influence the exercise of a public duty,

is guilty of an offence.”

The maximum penalty for the offence is ten years imprisonment. If dealt with in the Local Court, that must be understood to be a sentence with a maximum penalty of two years imprisonment.

26. There are a number of elements to the offence: (1) the Appellant had in his possession a false document; (2) he knew it was false; (3) he had it with the intention that he or another would use the document; (4) to induce some other person to accept it as genuine; and (5) in this instance, to influence the exercise of a public duty.

27. The facts relating to this offence are these. On 29 November 2021, the Downing Centre Local Court issued a warrant permitting the police to search the premises occupied by the appellant in Lockhart Avenue, Balmain. At the commencement of the search warrant, police located a COVID-19 letter of exemption in the name of Nicholas Boian, and several photocopies of it with the particulars removed. The Appellant was cautioned and claimed that he had produced those documents “as a joke”.

28. By his plea, the Appellant admitted that he was guilty of the offence alleged under s 255. Clearly, he had documents which he was using to make false certificates, no doubt designed to induce people who were called upon to enforce the COVID-19 restrictions to do what they would not otherwise do, give somebody an exemption when that person was not entitled to the exemption. That, again, is a serious offence. The learned Magistrate gave an indicative term of six months imprisonment, and I cannot disagree with that, even allowing for the early plea of guilty.

Possession of prohibited drugs

29. The fourth and fifth crimes for which the Appellant stood for sentence were each an allegation of a breach of s 10(1) of the Drug Misuse and Trafficking Act 1985 having in his possession a prohibited drug. The fourth offence was having in his possession 0.92 grams of the drug Alprazolam, usually known by its commercial name of “Xanax”. The fifth offence was possession of the prohibited drug methylamphetamine, but the amount of that was 0.28 grams. These were very small amounts of each of those drugs. The maximum penalty for each of those offences is imprisonment for two years and or a fine of 20 penalty units.

30. It is extremely rare, indeed uncommonly rare for any person to be sentenced to imprisonment for the possession of a small quantity of a prohibited drug. Even if an offender has a trafficable quantity of a prohibited drug, it is also unusual for that person to be sentenced to imprisonment if he or she gives evidence that the drug was merely for his or her personal possession and that he or she had a relatively large amount of drugs because he or she wished to buy it in large amounts in order to buy it cheaply.

31. I have not seen over the last 18 years any person sentenced to imprisonment for possession of either Xanax or methylamphetamine or both in such small quantities. Nevertheless, the Magistrate imposed a three-month indicative term of imprisonment for the possession of the Alprazolam and a six-month indicative sentence for the possession of the methylamphetamine.

32. Mr Maxton certainly presses strenuously the Appellant’s appeal based upon these two indicative sentences and has submitted that they should be set aside and that merely a fine should be imposed. However, it is the fact that the Appellant does not presently have any ability to pay a fine and, even when released from custody, it is highly unlikely he will have the wherewithal to pay any fine in the foreseeable future.

33. In the circumstances, I must set aside the indicative terms imposed by the Magistrate for the fourth and fifth offences. In lieu of the nine months, I would allow only one month, but its significance will be not as grave as that when one considers the imposition of an aggregate sentence. I accept the 12-month indicative sentence for the first crime, the three month indicative sentence for the second crime, the six month indicative sentence for the third crime and for the fourth and fifth crimes, I put these together with an indicative sentence of one month.

The new sentence

34. If one adds together all the indicative sentences found by the learned Magistrate, one gets to a total of thirty months. Adding together the indicative terms which I have allowed, I find a total of twenty two months. The head sentence actually imposed by the learned Magistrate was 80% of the total of the indicative sentences, that is, he reduced it from thirty months to twenty four months. Using the same ratio I end up with a head sentence of seventeen months imprisonment, rounding down as the case law requires me to do.

34. His Honour did not find special circumstances and fixed a non-parole period of eighteen months. Applying the statutory ratio to seventeen months and rounding down in the Appellant’s favour as the case law requires me to do, I come to a non-parole period of twelve months.

35. The learned Magistrate was not prepared to make any finding of special circumstances. The only substantial thing which could be advanced by Mr Maxton, for the Appellant, was that this was his first time in custody. However, special circumstances are due to the need for rehabilitation. Here the only relevant consideration is the fact that the Appellant has a diagnosed psychiatric illness. It has been diagnosed by a psychologist, Mr Mark Wright as being post-traumatic stress disorder (“PTSD”), but I fail to see how the circumstances of the event in which in fact the Appellant was the actor could lead to a diagnosis of PTSD when one applies DSM-5. I, however, readily accept a depressive illness with similar symptoms to PTSD, and the appropriate diagnosis appears to be a reactive disorder. Clearly, whilst in the community, the Appellant was being treated for that condition and appears to be entitled to payment of his expenses because he was in the course of his employment when the tragic accident occurred on 11 April 2021.

36. Rehabilitation courses would be available to him in custody, but the sort of psychological treatment recommended by Mr Wright would not, in my view, be readily available to the Appellant in custody. However, because of rounding down the non-parole period of twelve months does involve some discount or leniency. Bearing in mind the totality of the criminality involved, in particular in the dangerous driving causing death and in the offences concerning the COVID-19 pandemic. I believe that it would be improper to impose any lesser non-parole period than twelve months.

37. For those reasons, I set aside the sentence passed in the Central Local Court on 19 May 2022. In lieu thereof, I sentence the offender as follows:

1. I set a non-parole period of 12 months, commencing 17 November 2021 and expiring 16 November 2022. I impose a further period of imprisonment of 5 months, to commence upon the expiration of the non-parole period, and expiring 16 April 2023. The total sentence is therefore 1 year 5 months, comprising the non-parole period and the balance of the sentence;

2. Eligible to be considered for release on parole at the expiration of the non-parole period.

39. Indicative sentences are as follows:

1. H79706048 Sequence 1 – 12 months;

2. H86363268 Sequence 1 – 3 months;

3. H87128416 Sequence 2 - 6 months; and

4. H87128416 Sequences 3 and 4 – 1 month.

40. I disqualify you from driving for 17 months, to commence on 16 November 2022.

41. Any other orders sought?

O’SULLIVAN: No.

MAXTON: None from the Appellant, your Honour.

Amendments

13 September 2022 - Amendment: Catchwords "Dangerous" to "Negligent"; Title "Dangerous" to "Negligent"

Decision last updated: 13 September 2022