R v Hanlon - [2000] NSWCCA 55

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Bradley James HANLON [2000] NSWCCA 55

FILE NUMBER(S):
60299/99

HEARING DATE(S): 16/2/2000

JUDGMENT DATE: 16/02/2000

PARTIES:
Regina
Bradley James Hanlon

JUDGMENT OF: Sully J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/31/0089

LOWER COURT JUDICIAL OFFICER: Job DCJ

COUNSEL:
C. K. Maxwell QC - Crown
A. Webb - Appellant

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Sentencing Act 1989
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted
Appeal allowed and sentence in Court below quashed
Re-sentenced to imprisonment for 5 years, divided between minimum term of 3 years and additional term of 2 years
The minimum term is to commence on 21 May 1999 and expire on 20 May 2002
The additional term is to commence on 21 May 2002

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60299/99

SULLY J
CARRUTHERS AJ

16 February 2000

REGINA v Bradley James HANLON

JUDGMENT

SULLY J: Mr Bradley James Hanlon applies for leave to appeal against a sentence passed on him by his Honour Judge Job QC in the Newcastle District Court on 24 May 1999.
The applicant pleaded guilty before his Honour to a charge of aggravated dangerous driving occasioning death. The particular circumstance of aggravation was the presence in the applicant's blood of a concentration of alcohol greater than that permitted by the relevant provisions of the law. Such an offence attracts, upon conviction, a maximum penalty of imprisonment for fourteen years as provided by s.52A of the Crimes Act 1900.
His Honour sentenced the applicant to imprisonment for five years apportioned between a minimum term of three years and nine months to commence on 21 May 1999 and to expire on 20 February 2003, and an accompanying additional term of one year and three months commencing on 21 February 2003.
So far as concerns the objective facts they can be stated as follows: at about 5.20pm on 3 November 1998 the prisoner was driving a particular stationwaggon along Wollombi Road towards a bridge known as Bishops Bridge. Seated beside him in the front passenger seat was his brother David Hanlon.
As the vehicle approached the bridge it was necessary to negotiate a downhill right-hand bend. In the course of negotiating that bend, as it would seem from the available material, the applicant lost control of the vehicle that he was driving. He crossed a double unbroken centre line into the lane of traffic travelling in the opposite direction. There his vehicle collided with an oncoming vehicle driven by a Mrs Neville.
Following that impact the vehicle driven by the prisoner appears to have left the road surface to have travelled down a gully, and to have come finally to rest at the bottom of the bridge. The applicant's brother, and passenger, was killed as a result of that impact. The applicant himself suffered some injuries, but they were, fortunately from his point of view, not significantly serious.
Mrs Neville did suffer injury. She suffered severe bruising and soft tissue damage across her chest and stomach and on her hips, knees, back, hands and right ankle. There were, fortunately from her point of view, no fractures and no more serious or permanent injuries.
In due course a sample of blood was taken from the applicant. There was before the learned sentencing Judge the customary expert opinion evidence as to the implications of the particular reading. The opinion expressed by the relevant expert reads relevantly as follows:
"Based on the above information I am of the opinion that at the time of driving (the applicant) was under the influence of alcohol to the extent that his driving ability would have been very significantly impaired. His blood alcohol concentration at the time of the collision would have been within a range, the lower limit being not less than 0.180 grams per 100 millilitres and the upper limit being 0.202 grams per 100 millilitres. At a blood alcohol concentration of 0.180 grams per 100 millilitres or above, all people would be under the influence of alcohol to the extent that driving ability would be very seriously impaired.
Driving ability includes cognitive, motor and visual functions such as reaction skills, tracking ability, motor co-ordination, perception, judgment and decision-making, glare resistance and peripheral vision which would all be impaired."
Testing of the blood sample had disclosed the presence of indications of prior cannabis use, but the relevant expert evidence was that any amount of cannabis in the blood would have been insignificant, and could not fairly be regarded as having been in any sense a major contributing factor to the tragic events that I have been describing.
The applicant was born on 14 June 1993. He was aged, therefore, twenty-five years and some five months at the date of the offence; almost twenty-six when he stood for sentence; and he is now aged twenty-six years and some eight months. He has entries on his record, but the primary sentencing Judge took the view, correctly in my respectful opinion, that they were of no particular practical significance in his Honour's sentencing exercise. They are, in my opinion, of no practical significance in the different sentencing exercise upon which this Court is now embarked.
The applicant is the youngest of three sons. The family history concerning all three brothers is, as matters now stand, a very sad and dispiriting one. The middle brother died of cancer after, it would seem, a long and painful struggle with that terrible illness. The eldest of the three brothers was the passenger who died in the accident previously described. The present applicant, the sole surviving brother, carries, as must be obvious, a terrible burden in connection with the death of his oldest brother; and, being the sole survivor of the three, carries, and will carry, a heavy burden in giving what familial comfort and support he can to his parents while they remain alive.
There were before his Honour the usual pre-sentence reports. It is not necessary, I think, to canvass their fine detail. It is sufficient to understand that they paint of the present applicant a picture of a kind with which the Court is not unfamiliar in the case of young men of this age and background. There is I think nothing to suggest that, this one very bad criminal offence apart, the applicant is to be regarded as a person set, as it were, in the ways of crime, or set in any other sense into a pattern of breaches of the criminal law.
There were, in the overall picture, significant subjective and personal matters to be brought to account and, subject to one matter to which I shall come presently, it seems to me that the learned sentencing Judge was seized of them and correctly brought them to account. The one qualification to what I have just said stems from his Honour's approach to the question of "special circumstances" of the kind contemplated by s.5 of the Sentencing Act 1989.
Undoubtedly, as it seems to me, there were present in the applicant's case matters capable of being regarded correctly according to law as "special circumstances". His age; his comparative lack of criminal antecedents; his prompt plea of guilty; his obvious and understandable remorse; his need for careful supervision after release from any full-time custody; are what I would see as the most salient of such "special circumstances".
If it be the case that there are such special circumstances properly available to be found, then the relevant law as I understand it entails that a sentencing Judge has to ask, in a considered way, whether those "special circumstances" might be thought to warrant reasonably the view that the proper supervision and assistance of the particular offender upon release from full-time custody requires a longer additional term than an additional term that is a bare one-third of the proposed minimum term.
The answer to that question requires at least some reasoned application on the part of whoever it is who is considering the particular sentence.
In the present case the learned primary Judge approached the matter in a way which his Honour states succinctly as follows:
"I have considered whether there should be any special circumstances and I have decided that in the course of what has been said in Jurisic there really are no special circumstances to be taken into account."
I have noted that passage in the form in which appears at p.8 in his Honour's published remarks on sentence. I apprehend that the words "in the course of" are really intended to read "because of". It seems to me that that statement, as it stands, suggests error on the part of the learned primary Judge. It is true that Jurisic establishes clearly guideline principles by which primary sentencing Judges are bound, and which they must take properly into account in the particular cases coming before them.
It is true that the emphasis in the decision in Jurisic is upon the imperative need, in the interest of the proper and relevant protection of the public, to prevent incidents of drunken driving on public streets; and that means any incident of drunken driving on any public street.
For myself, I do not understand, however, that the decision in Jurisic simply blots out, as it were, the availability in a proper case, of a finding that "special circumstances" in the statutory sense exist. Nor do I understand the decision to blot out, as it were, the giving of any proper effect, according to clear and well established principle correctly applied, to the setting, by reason of "special circumstances" properly so found, of an additional term exceeding a term that isa bare one-third of the minimum term.
In other words, I think that upon that one point only there has been demonstrated an error in the primary sentencing process. The question then is whether this Court should interfere upon the basis that some other sentence is, in the words of s.6(3) of the Criminal Appeal Act 1912 "warranted in law".
I have come to the view that, albeit it within narrow limits, a different sentence is "warranted in law".
I would say at once that for my own part I would not interfere with the total sentence of imprisonment for five years. This particular case was, on any reasoned and sensible view of the available facts, a very serious offence. To interfere with the total sentence would, in my view, cut across those basic sentencing principles which are now part of the sentencing law of this State in the wake of the decision in Jurisic.
Where I think that there is proper room for some intervention by this Court is on the question of how that sentence is properly to be apportioned as between minimum and additional terms. If it were accepted, as I think must be done on any sensible view of the available material, that this applicant will need a longer, rather than a shorter, time of careful and sensitive supervision after his release from full-time custody, then a case has been made for some adjustment of the minimum and additional terms as set by the primary sentencing Judge.
That exercise must be carried out, of course, with care to ensure that the resulting re-apportionment does not yield a minimum term that is itself disproportionately lenient in the circumstances of the particular case. That consideration entails, in my view, that there is simply no room within a sentence of five years for any massive re-apportionment of the minimum and additional terms; but, as I have said, I think that there is some room for proper movement.
I am of the view that justice would be done in this case if the sentence of five years were to be re-apportioned between a minimum term of three years and an additional term of two years. To that end I would propose the following orders:
1. That the application for leave to appeal be granted.
2.That the appeal be allowed and the sentence in the form passed in the Court below be quashed.
3. That the applicant be re-sentenced to imprisonment for five years, divided between a minimum term of three years and an additional term of two years. The minimum term is to commence on 21 May 1999 and is to expire on 20 May 2002; the additional term is to commence on 21 May 2002.
I will propose orders accordingly.
CARRUTHERS AJ: I agree.
SULLY J: The orders of the Court will be as I have proposed.
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LAST UPDATED: 17/03/2000