R v Falzon

[2000] NSWCCA 530

Reported Decision: [2000] 33 MVR 128

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Falzon [2000] NSWCCA 530 revised - 14/12/2000
FILE NUMBER(S):	CCA 60032/99`
HEARING DATE(S):	25 August 2000
JUDGMENT DATE:	14 December 2000
PARTIES :	Regina v Saviour Joseph Junior Falzon
JUDGMENT OF:	Beazley JA at 1; Smart AJ at 2; Ireland AJ at 51

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/3060
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	(A) G Nicholson QC (R) W G Dawe QC
SOLICITORS:	(A) S N Goodsell (R) S E O'Connor
CATCHWORDS:	Sentencing - Effect of incompetent advice when accused prepared to plead guilty - basis on which Court should proceed
CASES CITED:	R v Stevens, CCA unrep., 15 August 1993 R v Ryan (2000) NSWSC 724 R v Cramp (1999) NSWCCA 324
DECISION:	Appeal against conviction for manslaughter dismissed. Leave to appeal against sentence on manslaughter granted. Appeal allowed; Sentence quashed. In lieu of the sentence imposed Saviour Joseph Junior Falzon is sentenced to ten years imprisonment to commence on 31 August 1998 with a non-parole period of 7 years 6 monrths commencing on that day and ending on 28 February 2006.

IN THE COURT OF
CRIMINAL APPEAL

No 60032/99

BEAZLEY JA
SMART AJ
IRELAND AJ

Thursday, 14 December 2000

REGINA v SAVIOUR JOSEPH JUNIOR FALZON


JUDGMENT

1   BEAZLEY JA: I agree with Smart AJ.

2   SMART AJ: Mr Falzon appeals against his conviction for manslaughter and seeks leave to appeal against the severity of a sentence comprising a minimum term of 9 years and an additional term of 3 years. In his grounds of appeal the appellant contended that the judge misdirected the jury as to the elements of manslaughter relevant to the instant case and that he was inadequately and incompetently represented during his trial. The latter ground has been made good, the Crown correctly taking the view that that point could not be disputed. The incompetence was gross. However, the Crown case on manslaughter was a very strong one. In Mr Falzon's affidavit of 22 August 2000 he has stated "Should any appeal against conviction be successful it is my intention to plead guilty to the charge of manslaughter".

3   In these circumstances after discussion with members of the Court, counsel for the appellant stated that he was happy to have the appeal treated as one against sentence. This was upon the basis that, if the Court was satisfied that there had been incompetence on the part of the appellant's trial counsel and that the appellant was from an early date prepared to plead guilty and would have done so, but for the erroneous legal advice he was given, it would take these matters into account. In effect, the Court would proceed as if a plea of guilty had been entered. The Crown was content with this course but emphasised that the offence was so grave that, in any event, the sentence imposed should not be disturbed.

4   The Charge

The appellant was indicted on three counts, namely, manslaughter of Manase Paea on 11 November 1997 at Fairfield, driving a motor vehicle in a manner dangerous to another person or persons and trying to escape pursuit by a police officer whereby the vehicle was involved in an impact as a result of which the death of Manase Paea was occasioned, and dangerous driving to escape pursuit by a police officer whereby the vehicle was involved in an impact as a result of which grievous bodily harm was occasioned to Semesi Paea. The appellant pleaded not guilty to count 1 but guilty to counts 2 and 3. Count 2 was subsumed in count 1. On count 3 the appellant was sentenced to a concurrent fixed term of 4 years,

5   The Facts On 11 November 1997 the appellant was driving a stolen Commodore vehicle in the roof top car park of the Neeta City Shopping Centre, Fairfield. Dean Potts was in the passenger seat. Police were patrolling the roof top car park in a marked vehicle when they saw the Commodore and its passengers. Const J Dickson said the Commodore accelerated quickly away from the police vehicle and subsequently "came driving back directly towards the police vehicle ... (and) drove straight at us and then swerved to my left" (T58 of 22/9/98). The Commodore accelerated away again and drove along a ramp and left the car park, disobeying a no right hand turn sign at the exit.. Other police had been notified. A police vehicle with lights flashing and siren sounding pursued the appellant. The vehicle driven by the appellant sped along Smart Street at a high speed towards a roundabout. There the vehicle nudged a white van which was towing a trailer. The trailer came off the tow bar of the van. The appellant's vehicle reversed back and went onto the footpath before speeding off. A couple of children had to jump back to escape injury. The appellant did not stop. He turned left into Cunningham Street and then right into Ware Street again at high speeds. Estimates ranging from 90 to 160 kph were given but the lower estimates are probably close to the mark. The appellant drove towards the Sackville Street intersection where there were stop signs. One of the stop signs was visible but the other was partly obscured by a bush, but would be visible when you got close to it. Potts told the appellant to stop, but he neither replied nor slowed down. Potts remembered the sun glaring in his eyes.

6   The vehicle driven by the appellant entered Sackville Street and ended up in the front yard of a house in that street, resting on its roof. It was 9 metres from the kerb and the wooden fence of the home was damaged. Three metres to the north of the appellant's vehicle was a Ford Telstar with extensive damage to the offside section. Manase Paea was killed and Semesi Paea was seriously injured.

7   The ambulance officer who attended at the scene noted that there was a syringe by the side of the appellant who was then lying on the front lawn of the house. The appellant was asked if he had consumed any drugs and his reply was that he had taken some heroin and was normally on a methadone programme. He was given some fluids but no analgesics or morphine.

8   The police interviewed the appellant at Liverpool Hospital on 12 November 1997 using an audio recording. Acting Sgt West said that the appellant appeared to be fully conscious and coherent. The appellant stated that he had been a disqualified driver and that he could only remember being told by a paramedic that he had been in an accident. He could not remember if he had been driving the Commodore.

9   Dr J Perl said that prior to being given 5 mg of morphine at 7.45 pm on 11 November 1997 there was a significant morphine concentration present in the appellant and that he would have taken heroin within a couple of hours of the blood sample taken at 7.55pm. She concluded that, at the time of driving, the appellant had been under the influence of morphine to the extent that his driving ability would have been impaired. The records disclosed that the appellant had recommenced a methadone programme two weeks prior to the collision. He had told the hospital staff of withdrawal symptoms and that he had been using half a weight of heroin per day.

10   Dr Perl said that the appellant's high level of tolerance to morphine and his complaints of withdrawal symptoms reflected his addiction to frequent high doses of heroin. Heroin would cloud a person's memory and perception.

11   The following agreed facts were recorded:

(a) The deceased died at 7.00 pm on 11 November 1997 near the intersection of Sackville and Ware Streets.

(b) The fatal injuries were caused by the collision between the Commodore driven by the appellant and the Telstar driven by the deceased.

(c) The Commodore driven by the appellant had been stolen.

(d) The appellant, at the time of the collision, was attempting to evade police who were in pursuit of him.

12   The Appellant's case He said that during the morning of 11 November 1997 he had taken a dose of methadone. He had also taken some heroin before lunch. He used about a quarter of a gram each day and he had lied to the hospital staff when he said that he used half a weight/gram each day because he had wanted them to give him more.

13   As to the pursuit by the police, he saw the flashing lights, he heard the siren and he was constantly looking in his mirror and over his left shoulder to see if he was still being followed. There was no one on the footpath when he drove on to it near the roundabout to get round the van and trailer. The appellant said that when he drove into Ware Street "the sun was low. It was straight into my eyes". In cross-examination he said that the sun had been glaring into his eyes as soon as he turned into that street and he was unable to see far ahead of him at all. At the time he was constantly looking over his shoulder and panicking.

14   The appellant said that he had not seen any stop signs, and that the last thing he remembered was looking back to see if the police were still behind him. He had not relied on the mirrors to look behind him because they had not been properly adjusted and he could not judge distances from them. He could not remember hitting any car. He only remembered waking up on the grass. He said that he had no knowledge of the syringe allegedly lying next to him.

15   The appellant said he was going pretty fast. He estimated his speed as having been about 90 kmh. He had not slowed down because he had not seen the intersection. Heroin had not affected his driving. Heroin used to make him "feel normal". It did not put him in a state of panic. When he was interviewed by the police he had not been able to remember that he had been driving.

16   These passages appear in the appellant's evidence:

"A. No I didn't know I was coming to an intersection (with Sackville Street). I was accelerating the whole time as I was getting chased … I looked behind me to see if the police were there. I looked back and that's all I remember. I don't remember coming to an intersection. I don't remember seeing any car. I don't remember seeing any stop signs". (T104)


and
"I kept going faster and faster because the police kept going faster and faster so I kept going and trying to get away from them". (T113)"

17   During the appellant's examination in chief this passage appears:

"Q. Have you pleaded guilty to any charges?
A. Yeah I've pleaded guilty to causing the death of the driver of the other car. I've pleaded guilty to causing the injury to the passengers in the other car but I'm not guilty of manslaughter because I was only driving to escape the police. I didn't mean to kill anybody."

18   That passage indicates what the appellant understood. The statements in the last two sentences of that passage constitute no defence to a charge of manslaughter. There is evidence that this was the advice given to the appellant by his counsel and that evidence is probably correct.

19   This brief review of the evidence reveals that the appellant had no chance of being acquitted of manslaughter.

20   The Advice given to the Appellant The following material comes from the appellant's affidavit of 18 June 2000. The appellant's father retained a firm of solicitors Messrs B J Macree & Co, Burwood to act for the appellant. They briefed Mr Don Thomas, a barrister. The appellant has stated that he never saw his solicitor on any occasion and received no advice concerning the merits or otherwise of running his trial and/or sentence proceedings. It appears that the solicitors held no conference with the appellant, attended no conference with counsel and the appellant and did not instruct at any court hearing.

21   The appellant said that he attended one conference at counsel's chambers and that this lasted for about an hour. This was after the Crown brief had been served and prior to the start of the committal proceedings. All other conferences with counsel occurred on the morning of the mentions, the arraignment and the trial.

22   Upon learning at the arraignment that the Crown would not accept a plea of guilty to the charge of dangerous driving occasioning death in satisfaction of the indictment and wished to proceed with the charge of manslaughter, the appellant sought the advice of his counsel, Mr D Thomas, who said:

"I think if you plead not guilty to manslaughter you have a very good chance of beating it".

23   The appellant replied: "Are you sure I should go to trial?" Mr Thomas responded "You have more of a chance of winning than losing the trial". The appellant accepted this advice.
24   The appellant recalled that during one of the conferences he asked Mr Thomas if he should not plead guilty to manslaughter and that Mr Thomas replied that he (the appellant) would not be convicted of manslaughter but he must plead guilty to driving in a manner dangerous causing death. This was because what he did did not amount to manslaughter because of the contributory negligence of the police in chasing the motor vehicle and he could not see the two stop signs at the intersection until he was 30 metres away for the first one and between 15 to 20 metres away for the second one.

25   In his further affidavit of 22 August 2000 the appellant said:

"My only basis for pleading not guilty was the advice of Mr Thomas. Had I realised that it was not necessary for the Prosecution to show an intention to kill I would certainly have pleaded guilty. I have never denied the responsibility for my actions on the day in question, but certainly did not intend to kill anybody. …
Prior to my trial I had told my barrister, Mr Thomas, of my deep remorse for causing the death and suffering involved in my collision and advised him that I wished to send a letter expressing my sorrow and accepting responsibility to the family of the victims. This occurred soon after committal and well before my trial. Mr Thomas advised me not to do so and used words to the effect that it was not a good idea and that it would make them angrier and that I should have no contact with them at all. I recall my father was present during this conversation. I did as advised by my barrister, Mr Thomas."

26   In his affidavit of 8 August 2000 Joseph Falzon, the appellant's father, stated:

"4. I recall that at my first meeting with Mr Thomas at Fairfield Local Court with the Appellant Mr Thomas said words to the effect:
'Because Saviour had no intent to kill someone, he has a defence to Manslaughter and he should plead not guilty to Manslaughter and guilty to Drive Manner Dangerous causing death'.

5. I recall that at Campbelltown District Court on the morning of the trial,
Mr Thomas restated his previous advice with words to the effect:

'Because Saviour had not intended to kill the person he is not guilty of manslaughter. Manslaughter will not hold up in the Court of Law due to the circumstances of the case.'
6. I recall that on one occasion that the Appellant was appearing in the Local Court the Appellant during a conference with Mr Thomas said words to the effect:
'Can I write a letter of apology and condolence to the family of the boy who died in the accident?'
I recall that Mr Thomas replied with words to the effect:
No. That is the last thing you want to do write (sic) now.' "

27   The Crown did not seek to cross-examine the appellant or his father and for good reasons. Other materials supported what they say. The advice given to the appellant was wrong and plainly so.

28   Other Incompetence

It is not necessary to rehearse in detail all the other complaints of incompetence. Complaints which have been made good include:

(a) the application under the proviso to s24 of the Crimes Act 1900 to discharge the jury on the basis that the offence proved only warranted a nominal punishment

(b) asking questions in cross-examination which were contrary to the appellant's interests - they were quite damaging and not odd isolated instances

(c) failing to ask questions in cross-examination which would have dvanced the appellant's case

(d) failing to advise the appellant to have damaging expert evidence assessed by an independent expert to ascertain whether it was correct

(e) failing to prepare properly the appellant's case at trial and on sentence.

29   While the incompetence mentioned did not result in the appellant being wrongly convicted of manslaughter, it confirms that the appellant's case was mishandled. I accept that if the appellant had been correctly advised he would have pleaded guilty to manslaughter and a three day trial would have been avoided. Further he would have received a discount for pleading guilty. He would also have demonstrated his remorse and expressed his sorrow for what he had done to the parents of the deceased.

30   Although given ample opportunity to respond to the allegations made against them neither Mr Thomas nor the solicitors did so. Apparently the latter notified their insurers.

31   The Judge's Remarks on Sentence

The judge correctly described the facts as "quite horrendous" and as "very very serious". He noted that the appellant was a young man (born 5 October 1976) but that he had a record stretching back some years. There were a series of traffic infringements in 1993. From 1994 to 1997 he had a series of offences including assault police, resist arrest, a minor drug offence, dishonesty offences and traffic offences. He had been fined many times, ordered to render community service and to undergo 4 months periodic detention. 32   The judge was sceptical about the appellant's claims to be remorseful. The judge remarked:

"… having been released on bail on 4 December 1997 he apparently relapsed into his heroin addiction and within six months of this accident he was charged again at Fairfield with drive manner dangerous, drive whilst cancelled, larceny and receive stolen property, These offences were on 31 May 1998. He has entered a plea of guilty and expects to be sentenced in that respect on 18 December."

33   The judge was looking for more than expressions of remorse. He was looking for good conduct which exhibited real remorse. The judge acknowledged that it was an unwelcome task to impose a heavy sentence on a young man and the grief it would cause his parents. He referred to the increased penalties for serious driving offences. He continued:

In … Jurisic … the Court drew attention to what Justice Hunt said in Musumeci … that in these dangerous driving causing death cases, youth is not very relevant."

Hunt CJ at CL said "Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases".

34   The judge took into account that a 17 year old boy had lost his life and a 13 year old boy was at risk of severe and permanent brain damage, the number of people put at risk (the two children, the other people crossing the intersection and people on the streets), the obvious grossly excessive speed (about 100 kph), the high degree of drug intoxication and the erratic driving. While the journey was 900 metres it was long enough to bring about the results just mentioned. He also took into account the appellant ignoring the warning to stop, that there was no evidence of any braking and the appellant driving very dangerously to escape police pursuit. These features added up to very grave criminality. As the judge pithily put it, "the negatives here greatly outweigh any positives".

35   The appellant submitted that the sentence was manifestly excessive on two bases. Firstly, the Court should deal with the sentence as if there had been a plea of guilty. This would entitle him to a discount. The appellant should not be penalised by the incompetence of his counsel. Secondly, on any view the sentence was too high particularly when regard is had to other sentences imposed for manslaughter of the same category.

36   I accept that the Court should take into account the obviously incorrect advice given to the appellant by his counsel and that the appellant would have pleaded guilty at an early stage if he had been correctly advised. The plea of guilty to the charge of dangerous driving causing death and to that of dangerous driving causing grievous bodily harm exhibit remorse. The appellant wanted to express his sorrow to the parents but counsel advised him not to do so. However, the Crown case was a very strong one. The discount which would be appropriate is one of 10 to 12½ per cent. That would point to a head sentence of about 10½ years given the initial head sentence of 12 years.

37   The appellant referred to three cases where the manslaughter was very serious. In R v Stevens (CCA unreported, 15 August 1993) the prisoner had been engaged in a drinking spree. About 1.30 am he decided to go home and to steal a car. He started the car by cutting and joining the ignition wires. The owner saw his car being driven away and ran to it. The owner opened the driving door and endeavoured to stop the car. Stevens continued to drive, attempting to control it and remove the owner. The car collided with a car and two buildings. The owner suffered serious injuries and died later. The car collided with another building. Stevens abandoned the vehicle and decamped. There was a plea of guilty. At the time of the crime he was aged 18 years. There were strong subjective features. This Court held that a sentence of 9 years 4 months with a minimum term of 7 years was excessive and re-sentenced Stevens to 8 years penal servitude with a minimum term of 5 years and six months. The Court found that there were special circumstances, namely that the appellant was a young offender, with almost a clear record and real prospects of rehabilitation. Stevens is not as bad a case as the present. He also had strong subjective features and the benefit of a finding of special circumstances.

38   In R v Ryan (2000) 2000 NSW SC 724, the prisoner was driving a semi-trailer along Centenary Drive, a six lane highway. The truck was driven across the median strip and was on the wrong side of the highway for about 500 metres when it struck the two vehicles driven by the deceased persons. Ryan had not lost control of the truck, but intentionally drove it across the median strip into the path of oncoming vehicles, most of which took successful evasive action. Ryan was severely affected by methamphetamines. He had taken these to counteract his exhaustion and tiredness from driving too much without sufficient rest and breaks. He was upset about an earlier minor accident, believed he was going to lose his job and had just told his wife he was going to leave her. He was agitated. Shortly after this, the accident occurred. He was in the throes of amphetamine intoxication and behaved in an irrational and disturbed fashion after the accident. Ryan pleaded guilty to manslaughter. He was aged 27 at the time of the accident. He had a minimal record which was correctly disregarded. He was a reliable and hardworking employee and was genuinely remorseful. Concurrent sentences of 7 years 10 months imprisonment with a non-parole period of 5 years 10 months were imposed. The basic sentence was 8 years but that was reduced to allow for some early pre-sentence custody immediately after Ryan's arrest.

39   Ryan was undoubtedly a grave case but his subjective features were markedly more favourable than those of Falzon.

40   In R v Cramp (1999) NSW CCA 324 the prisoner was a 55 year old man who caused the death of one 16 year old girl and placed the lives of three other children at risk. The appellant, the deceased and the three children were at a barbecue at the appellant's property. After the deceased's mother left the appellant gave the deceased red wine and beer to drink. The appellant suggested that they all drive to Paterson to buy ice cream. The deceased asked whether she could drive. The appellant decided that he was too drunk to drive and that the deceased would have to drive his vehicle.

41   During the afternoon he urged her to drive very fast with the car reaching speeds of 150 kph. He purchased beer and wine. On 3 occasions the car stopped and beer was taken from the boot and consumed by the appellant and the deceased. He drove for about 20 minutes with Adam, a 10 year old child, sitting on his knees and steering the vehicle. There were return visits to the appellant's property. The car left the property with the deceased driving and the appellant in the front passenger seat. The three boys were in the back seat. After about 2.5 kms someone passed the deceased a cap to stop her hair blowing about. As she put it on her head she had only one hand on the steering wheel. The vehicle was swerving. A few seconds later the car left the road and hit a telegraph pole. The deceased and the appellant were thrown out because they were not wearing seat belts. The deceased was killed and the appellant received severe head injuries.

42   Cramp pleaded not guilty. The subjective features of Cramp were stronger than those in the present case. At para 105 Barr J, after describing the objective facts in Stevens as far less serious than Cramp said:

" It is difficult to imagine a more serious course of conduct than that followed by the appellant. What took place happened over a period of about three and a half hours and over a distance of thirty-five kilometres. The appellant was the only adult having the care of four children. He was aware that he was too drunk to drive and, in order to avoid the consequences to himself of drinking and driving, encouraged the deceased to drive. It was he alone who supplied alcohol and encouraged her to drink it. Three young children as well as the deceased were put at risk. Very high speeds were reached on the direct encouragement of the appellant to drive faster. All this was done in the face of the fear of the three boys, their entreaties and efforts to bring the career to an end."

43   Barr J further said at para 109;

"this case was of such a serious nature as to be seen as falling into the worst category of cases of its kind."

44   Sully and Ireland JJ agreed. A sentence comprising a minimum term of 7 years and an additional term of 2 years 4 months was upheld.

45   The objective features of Cramp's case were as bad as those in the present case. The potential danger in the present case was high as the appellant sped through the commercial heart of Fairfield, a large and populous urban area. He was in a stolen vehicle endeavouring to escape the police pursuit. A stern sentence was warranted. The applicant had little by way of subjective features on which he could rely. He is, however, still a young man and the need for rehabilitation is pressing.

46   Neither counsel for the Crown nor counsel for the accused was able to refer the Court to any case in which there was a sentence of 12 years (or more) with a non-parole period of 9 years for the instant category of manslaughter.

47   Taking into account that the appellant would have pleaded guilty, if he had been correctly advised, the objective gravity of the offence and the subjective features I am of the opinion that the sentence imposed was manifestly excessive. While I regard the sentence imposed in Cramp as within the permissible range a somewhat higher sentence would also have been within the range.

48   The correct sentence in the present case is one of 10 years imprisonment with a non-parole period of 7 years 6 months. As the appellant spent 23 days (11 November - 4 December 1997) in custody before he was granted bail, I would date the proposed sentences from 31 August 1998. The period of 2½ years on parole is an adequate period for supervision and rehabilitation on his release from prison. A lesser non-parole period than 7½ years would be incorrect.

49  I propose the following orders:

1. Appeal against conviction dismissed.
2. Leave to appeal against sentence on manslaughter granted. Appeal allowed. Sentence quashed.
3. In lieu of the sentence imposed Saviour Joseph Junior Falzon is sentenced to ten years imprisonment to commence on 31 August 1998 with a non-parole period of 7 years 6 months commencing on that day and ending on 28 February 2006.

50   Ireland AJ: I agree with Smart AJ.

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