R v Kilborn - [2001] NSWCCA 116

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Kilborn [2001] NSWCCA 116

FILE NUMBER(S):
60329/00

HEARING DATE(S): 30 March 2001

JUDGMENT DATE: 30/03/2001

PARTIES:
Regina
Jonathon David Kilborn

JUDGMENT OF: Wood CJatCL Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/1028

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
Crown: Mr. M. Marien
Appellant Mr. P.D.J. Hamill

SOLICITORS:
S.E. O'Connor
D.J. Humphreys

CATCHWORDS:
CRIMINAL LAW - appeal - appeal against sentence - material taken into account which was not in evidence - sentence imposed manifestly excessive - subjective factors to be taken into account

LEGISLATION CITED:
Crimes Act 1900 s 52A(3)(a)
Crimes (Sentencing Procedure Act) 1999 s 50

DECISION:
(1) Appeal allowed.
(2) Sentence quashed and new sentence imposed of two and a half years imprisonment with a non-parole period of 15 months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60329 of 2000

WOOD CJ at CL
Greg James J

30 March 2001

Regina v Kilborn

JUDGMENT

The applicant pleaded guilty to the offence of dangerous driving occasioning grievous bodily harm under s 52A(3)(a) Crimes Act on the basis of intoxication. He was sentenced to three years imprisonment with a non-parole period of two years. The applicant seeks leave to appeal against the sentence on the grounds that (1) his Honour took into account material which was not in evidence; (2) the sentence was manifestly excessive.

Held: (Allowing the appeal):

Ground 1: Material not in evidence
The statement of facts recorded that the applicant was traveling at 70km per hour in a 60km per hour zone. A statement given by a witness indicated that the applicant’s vehicle was traveling at 100km per hour. This statement was not in evidence before the sentencing Judge. The sentencing Judge’s reference to the speed of the vehicle was in error. His Honour should not have taken this statement into account. This aspect of the case was left in an unsatisfactory position.

Ground 2: Sentence Excessive
The considerations relevant to sentencing the applicant were those outlined in the guideline judgment of Jurisic. It would have been preferable for his Honour to have given more precise attention to the existence or non-existence of factors identified in Jurisic. In the present case special circumstances were shown, such as the high degree of remorse displayed; age and complex personal history of the applicant; the justifiable concern the applicant had in relation to his safety in custody; the interest of encouraging rehabilitation and the applicant’s need for psychological treatment. The sentence was manifestly excessive.

Jurisic (1998) 45 NSWLR 209 applied.

ORDERS PROPOSED

(1) Appeal allowed.

(2) Sentence quashed and new sentence imposed of two and a half years imprisonment with a non-parole period of 15 months.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
60329/00

WOOD CJ at CL
GREG JAMES J
FRIDAY, 30 MARCH 2001

REGINA v JONATHON DAVID KILBORN
JUDGMENT

WOOD CJ at CL: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Shadbolt in the District Court on 22 May 2000. The sentence was one of three years imprisonment, with a non-parole period of two years, for an offence of dangerous driving occasioning grievous bodily harm under S 52A(3)(a) of the Crimes Act, to which the applicant pleaded guilty on 9 August 1999.
In sentencing the applicant, his Honour found that he was the driver of a Suzuki Hatchback which, at the time of the accident giving rise to the offence, was travelling west in the kerbside lane of the Broadway, Sydney at about 6.25am. He had begun his journey into the city some time earlier from Kensington, and upon his own admission he was affected by liquor.
While in the kerbside lane the applicant came upon a taxi parked in lane 2. The victim, Lin Zang Zen, was standing near its front nearside door, remonstrating with a female who had been a passenger in his taxi and who, having abandoned it, had hailed and stopped the second taxi. Her purpose had apparently been to evade the fare due to Mr Lin.
The applicant's vehicle struck Mr Lin while he was standing in this position talking to her. The impact bent the door of the taxi backwards against the wing of that vehicle.
The applicant's vehicle was, at this point, out of control and sliding on the wet roadway. He managed, however, to turn left into City Road after travelling a further 50 metres or so along the Broadway. After doing so he struck the rear of a vehicle driven by Amanda McGuire, who had just made a lawful right hand turn into City Road from the Broadway. Thereafter, his vehicle mounted the kerb, drove along it for some eight metres before crashing into, and demolishing a "no standing" sign. He then crossed over the three southbound lanes of City Road and mounted the median strip before colliding with a Toyota Camry sedan driven by Mr Yu, who, as a result of that further collision, also suffered some injuries.
Upon coming to rest, the applicant fled the scene, on his account, because he was fearful and panicked. However, he made contact with his partner within a short time and later turned himself into police.
The effects of the accident upon Mr Lin were appropriately described by his Honour as having been “catastrophic” in that he suffered traumatic brain damage requiring emergency surgery, as well as a fracture to his shoulder, and soft tissue injuries to a knee. He has been left with permanent cognitive impairment and abnormalities of behavioural control, as well as depression, which have taken him out of the work force.
The sentence is challenged upon the basis that:
1) His Honour took into account material that was not in evidence, and
2) The sentence was manifestly excessive.
I shall deal with each submission in turn.
1. Material Not in Evidence
The material in question concerns a statement that had been provided by a witness to the accident, Mr Beck, in which he had assessed the speed of the applicant at the time of the accident at about 100 kilometres per hour. This statement was not in evidence, and the statement of facts that was tendered had been edited to remove the relevant passage.
In those circumstances, it should not have been taken into account by his Honour, particularly as his attention had been drawn to that fact by counsel for the applicant and also by the Crown Prosecutor. The applicant had admitted, in an ERISP, to have been driving at about 70 kilometres per hour at the time of the collision, a speed which he acknowledged was in excess of the 60 kilometres per hour limit in force. It was at that speed that the statement of facts recorded him to have been driving. It was at that speed that he was entitled to be sentenced.
The competing versions were noted by his Honour in the reasons for sentence, although without any specific finding as to the applicant's speed. That was regrettable, having regard to the earlier observation made by his Honour, during the sentencing proceedings, when this point had been drawn to his attention:
"I don't think it makes much difference any way. I certainly wouldn't accept from him, either on his oath or to the police, that he was going at 70 kilometres an hour."
Whether his Honour maintained that view when pronouncing sentence, is not known. It should have been made known.
If he did in fact sentence the applicant on the basis that he was travelling at 100 kilometres per hour, then he was, in my view, in error, since that was not a finding that could have been made upon the evidence before him.
It also should not be overlooked that the case was prosecuted upon the basis that the dangerous driving was attributable to the fact that the applicant was under the influence of intoxicating liquor rather than to the fact that he was driving at a speed dangerous to another person or persons.
Having regard to the distinctly unsatisfactory position in which this aspect of the case was left, I would grant leave to appeal and consider the matter afresh.
2. Sentence Excessive
To some degree this ground overlaps the first, since it needs to be considered in the light of all of the considerations which are relevant for sentencing in a case such as the present, being those identified in the guideline judgment of Jurisic (1998) 45 NSWLR 209. There Spigelman CJ said at 231:
"The list of mitigating and aggravating factors, conveniently collected by Lord Lane CJ in R v Boswell and quoted above, are reflected in the judgments of this Court to which I have made reference. The presence or absence of these factors - and their degree - will determine the appropriate penalty. A survey of the authorities indicates that the following factors arise:
(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.
A number of these factors are reflected in the definition of "circumstances of aggravation" in s 52A(7), for purposes of the two higher offences.
Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct.   When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.
In my opinion this Court should promulgate the following guidelines:
1.   A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment.
2.   With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.
I realise that the formulation I propose - does the relevant aggravating factor manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn."
Reference to that decision was made in the reasons for sentence, so far as his Honour noted that this case did not qualify as a "rare exception" justifying a non-custodial sentence, and in so far as he stated:
"This is certainly not a matter of momentary inattention. It is a combination of over-indulgence and speed."
It is that reference to “speed” which gives rise to concern, having regard to the matters previously mentioned.
His Honour expressly took into account first, the applicant's plea of guilty, although noting that it had to be viewed in the light of "the circumstances of the collision, his subsequent record of interview, and the very detailed eyewitness accounts on what had happened"; secondly, the fact that he was young, (aged 28 years at the time of the accident); thirdly, that he had been employed for most of his adult life and had work to go to when released; fourthly, that was he was capable of reformation; and fifthly, that his driving record, while not good, had not been so bad over the last ten years "as to preclude any leniency whatsoever".
His Honour also noted that he had a history of having had a troubled childhood and adolescence, having been sexually assaulted by a member of the congregation of which his father had been a minister, and of having suffered anxiety and depression consequent upon that experience. His Honour regarded that experience as of marginal relevance as it had no causal connection with the offence. It would also appear that, while his Honour noted the various difficulties identified in the presentence and psychiatric reports, which dealt with the applicant's upbringing by parents who were profoundly deaf as well as very conservative and very strict; his relationship, which had not been accepted by them; and the fears he held about the risk of exposure to sexual abuse if held in open custody, little if any weight was given to them, save so far as they assisted in the finding of special circumstances.
Returning to the objective circumstances, I consider that it would have been preferable for his Honour to have given more precise attention to the existence, or non existence, of the factors that were identified in Jurisic as being of relevance for the determination of penalty, than occurred in this case.
The material available does show that there were a number of the circumstances identified in Jurisic present, in that:
a)   The injuries of the victim were extensive and permanent;
b)   A number of people were placed at risk, having regard to the applicant's own assessment that there was traffic around, and the fact that he struck two other motor vehicles, apart from that occupied by the second taxi driver and by Mr Lin's former passenger;
c)   The applicant was driving in excess of the speed limit by about 10 kilometres per hour on a road that was wet, in conditions where he acknowledged that his vision ahead was blurred to a degree by rain, and where he acknowledged that had he been driving slower, he could have maintained greater control of his vehicle.
d)   He was, on his own admission, affected by intoxicating liquor, having consumed four schooners of beer and two or three black Sambucas from about 11.45 pm, acknowledging that he had felt that he was drunk, and had known it was "wrong to hop in the car".
e) He had driven a considerable distance, while in this state, and on his own admission had been feeling “tired”.
f) He had seen the taxi and victim on the roadway at least 35 metres away, but he had carried on before braking hard, at the last moment on a wet road, in circumstances guaranteed to cause a loss of control of the vehicle.
Having regard to these matters and assuming, in the applicant's favour, that he was travelling at 70 kilometres per hour at the time of the accident, the case remains properly one involving more than momentary inattention. It was one, in my view, justifying the description of an “abandonment of responsibility” which, although not of a gross kind, was appreciable.
I am of the view that the head sentence was excessive and that error occurred in the way in which the matter of speed was taken into account. I am also satisfied that special circumstances were shown. They are attributable to:
i) the very high degree of remorse displayed;
(ii) the age and complex personal history of the applicant, including the alienation from his family, and the exposure to sexual abuse which has led him to be particularly susceptible to the form of reactive depression diagnosed by Doctor Roberts, and to have been, for at least a period of his life, at risk of self harm;
(iii) the justifiable cause for concern which he had in relation to his safety while in custody;
(iv) the interest of encouraging his rehabilitation and return to the workforce;
(v) and the need for him to receive treatment for his somewhat fragile psychological state, with which he has been attempting to come to grips.
The existence of these favourable objective circumstances has been confirmed by the additional material placed before us today and which was received on the usual condition that it would be taken into account if the court thought it appropriate otherwise to intervene.
I observe that, in the explanation given to the applicant as to the effect of the sentence, and in the framing of the sentencing order, his Honour overlooked S 50 of the Crimes (Sentencing Procedure Act) 1999 which requires, in the case of a sentence not exceeding three years, that an order be made directing the release of the applicant at the end of the non-parole period. It is necessary this error be remedied, however, I am also of the view that independently, when the full circumstances are properly taken into account, the sentence was shown to be manifestly excessive.
I would accordingly grant leave to appeal and allow the appeal and quash the sentence below. I propose substituting in its place a sentence of imprisonment for two and a half years to commence on 22 May 2000. I would fix a non-parole period of fifteen months, to date from 22 May 2000, and to expire on 21 August 2001. I would direct the release of the applicant at the end of that non-parole period.
GREG JAMES J: I agree.
WOOD CJ at CL: The order of the court will be therefore as I have proposed. Do you understand Mr. Kilborn that the Court has allowed your appeal? A non parole period of fifteenth months has been set. You will be released at the end of that period.
APPELLANT: Yes your Honour.

**********

LAST UPDATED: 10/04/2001