R v Koosmen

[2004] NSWCCA 359

CITATION:	Regina v Koosmen [2004] NSWCCA 359
HEARING DATE(S):	30 September 2004
JUDGMENT DATE:	30 September 2004
JUDGMENT OF:	Wood CJ at CL at 1, 56, 57; Hislop J at 56; Smart AJ at 2
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Driving under the influence of intoxicating liquor - Combination of excessive drinking, excessive speed, violent and erratic driving and seat belt not used - Self punishment - Sentence of 5 years with a non-parole period of 2-1/2 years not excessive.
LEGISLATION CITED:	Nil
CASES CITED:	Regina v Berg [2004] NSWCCA 300 Regina v Dhanhoa [2002] NSWCCA 257 Regina v Jurisic (1998) 45 NSWLR 209 at [231] R v Whyte [2002] NSWCCA 343 at [216]
PARTIES :	Regina v Scott Robert Koosmen
FILE NUMBER(S):	CCA 2004/1871 CCAP
COUNSEL:	(A) C Davenport (C) D C Frearson
SOLICITORS:	(A) S O'Connor (C) S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0002
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

2004/1871 CCAP

WOOD CJ AT CL

HISLOP J

SMART AJ

Thursday, 30 September 2004

Scott Robert KoosmEn v Director of Public Prosecutions (NSW)

JUDGMENT

1. WOOD CJ at CL: I will ask Smart AJ to deliver the first judgment.

2. SMART AJ: Scott Robert Koosmen seeks leave to appeal against a sentence of imprisonment of 5 years with a non-parole period of 2 years and 6 months for the offence of driving under the influence of intoxicating liquor occasioning death, taking into account two lesser offences. The maximum penalty for this offence is 10 years imprisonment.

3. During the afternoon of 16 September 2002 the applicant and his very close friend Chad Roy Bailey were drinking at an hotel. Each consumed about five schooners of VB or Toohey's New Beer during the afternoon session. (There had been a shorter morning session). They were asked to leave as they were making unpleasant comments to and about the female licensee. They had had too much to drink.

4. About 4.30pm after leaving the hotel, the applicant drove a 1986 Holden VL Commodore sedan south along Gresford Road, Paterson. Mr Bailey, who was the front seat passenger was not wearing a seat belt.

5. As the vehicle approached the Dungog Road intersection it passed onto the incorrect side of the road and travelled at a speed well in excess of the 100 kph speed limit. The driver of a vehicle travelling in the opposite direction had to pull his vehicle sharply to the left and on to a grassed verge to avoid a head-on collision. The applicant's vehicle continued travelling south at a high speed.

6. Shortly afterwards, the applicant's vehicle again travelled onto the incorrect side of the road whilst negotiating a moderate left hand bend. His vehicle swerved all over the road, drove off the eastern side of the road and onto the grassed verge at a speed well in excess of the 100 kph speed limit. As it travelled along the grass verge the vehicle got faster. It continued along the verge or gully for about 100 metres and next collided with an 80 kph advisory sign. The applicant's vehicle continued south for a further 50 metres and then rolled for about 20 metres before coming to rest within the grassed verge, facing generally north.

7. As a result of the collision Mr Bailey was ejected from the vehicle and died at the scene. The vehicle sustained extensive damage. The road conditions were good and vision was good. The vehicle traversed about 7 kilometres after leaving the hotel. These facts reveal a very serious offence.

8. The applicant was born on 7 January 1969. Between late 1985 and 1991 he had a number of traffic offences, most of which were dealt with administratively. In December 1988 he was ordered to serve 70 hours community service for driving whilst disqualified. In March 1989 he was sentenced to 6 months periodic detention for driving whilst disqualified. In January 1991 he was fined for malicious damage. In April 1993 for a high range PCA he was placed on a $5000 good behaviour bond for 5 years and fined $1000. In May 2000, April 2001 and November 2001 he was dealt with for contravening an apprehended violence order. In February 2002 he was fined for maliciously destroying or damaging property. He was fined in January 2001 for exceeding the speed limit. Significantly, until the present offence he had no serious driving offence since April 1993.

9. The applicant's record and the material before this court indicate that the applicant is a man who is somewhat headstrong, determined to go his own way.

10. The applicant is divorced. The three boys of the marriage, now aged 11, 9 and 7, lived with the applicant and his mother from about late 2002/early 2003. He and his mother have the sole care of the boys. He was unemployed at the time of the offence. There is a close bond between the applicant and his mother. She is caring the boys while he is in gaol.

11. The judge found that before the applicant took over the care and control of his sons they had little stability in their life and that over the ten months prior to sentencing they had led a reasonably stable life in a loving atmosphere. The sons were thriving. This is to the applicant's credit.

12. About a year before the subject incident, the applicant's younger brother died in a motor vehicle accident. The judge accepted that this had impacted severely upon the applicant, as had the death of Mr Bailey.

13. The applicant's father left home when the applicant was aged seven and thereafter had nothing to do with the applicant or his brother. His mother brought them up.

14. The applicant left school when aged 14 or 15 because of his love of horses and became an expert horse handler. He has worked in that industry ever since. He suffered a number of injuries. He has an alcohol problem which manifests itself from time to time in binge drinking. He had also consumed cannabis and amphetamines over the years. The applicant was assessed as suffering from a major depressive disorder and post traumatic syndrome and the judge accepted these diagnoses.

15. The judge accepted the evidence of the applicant's mother that he had on occasions, and more frequently following his brother's death, broken into violent rages but that most of the time he was kind, caring and generous and had since the beginning of 2003 devoted himself to caring for his three sons.

16. The judge recorded that a number of people who had known the applicant over a number of years spoke highly of him and were confident that he could overcome his present problems and once again become a useful and productive member of society.

17. The judge made these findings:

"From all the subjective material herein and your presence during the sentencing hearing together with your early plea of guilty, I am satisfied that you are genuinely remorseful and sorry for your irresponsible driving which has led to this charge and to the death of your very close friend. I have no doubt that his death will impact on you for many years to come. To my mind your plea of guilty and the other subjective material herein entitles you to a discount on sentence approximating to 25 per cent on the sentence which would otherwise be appropriate in your case."

18. The judge correctly regarded the applicant's case as an extremely difficult one but not one falling within the category of being an exceptional one. The judge commented further:

"Not only does it involve the consumption of an excessive quantity of alcohol immediately before the incident but it involves a manner of driving which caused at least two other motorists to become concerned for their own safety and obviously the safety of you and your passenger in the vehicle … But driving on this occasion and at a time after you had consumed some five schooners of beer and at a time when your friend failed to be wearing a seat belt, you displayed a gross lack of appreciation … to the responsibilities which go with driving a motor vehicle."

19. The judge also emphasised the erratic and violent way the vehicle was driven and the excessive speed.

20. The judge specifically took into account the observations of this Court in Regina v Dhanhoa [2000] NSWCCA 257 and the impact of Mr Bailey's death upon the applicant.

21. The judge found special circumstances being the applicant's need for special help and counselling to advance his good prospects of rehabilitation.

22. The offences on Form 1 involved one charge of assault police on 16 September 2002. After the incident the applicant, on that day, became aggressive and hindered efforts at Maitland Hospital to treat him. He spat in the face of a police officer. He had to be handcuffed. He also used offensive language towards the hospital staff and the police. The offensive language was strong. The applicant was very worried about going to gaol himself. He was very agitated and very concerned about his own position.

23. Appeal Ground 1 reads:

His Honour failed to properly take into account the effect upon the applicant of the death of his closest friend.

24. Dr Huw Raggatt, Staff Specialist in Psychiatry, Court Liaison Service, Hunter Mental Health Service, was hampered by the applicant's refusal to meet with him for review on 10 June 2003 and to continue treatment with a clinical psychologist after one session. Dr Raggatt saw the applicant on 14 May 2003 and reviewed the reports of doctors and the notes in the records of James Fletcher Hospital to which the applicant had been admitted.

25. As at 14 May 2003 Dr Raggatt thought that the applicant was suffering from major depression and post traumatic stress disorder. The applicant's attitude to treatment made it difficult to assess his prognosis. Much will depend on what if any treatment he decides to accept. Dr Raggatt thought that the gaol authorities would need to be mindful of a suicide risk.

26. The applicant's mother gave evidence of the severe effects of the accident upon him, including his attempts at suicide.

27. The applicant relied upon Dhanhoa [2000] NSWCCA 257 where the offender was suffering from post traumatic stress disorder and ongoing depression and the sentencing judge accepted that the offender

"has been enduring punishment for this incident for the last two and a half years."

28. Priestley JA accepted that the judge had been principally concerned with the deep feelings of guilt and sadness that the offender felt by reason of his actions and their pathological manifestation in post traumatic stress disorder and that this kind of "self" punishment (namely, the self inflicted sense of guilt and shame) was highly significant in any sentencing process, and particularly in that case.

29. Priestley JA thought that weight could legitimately be attached to the effects of the incidents which had occurred upon the offender. It was a relevant factor. His Honour added:

"…different judges may well have given different weight from that apparently given by the sentencing judge to some of the relevant sentencing factors and may have arrived at a different result. In my view however nothing said by the sentencing judge in his reasons shows that in respect of any matter he attached importance to it outside the range of what he might reasonably do."

30. Foster AJA agreed with Priestley JA. Sperling J dissented. He thought that the serious objective circumstances of the offence were such that the Crown appeal should be allowed.

31. Dhanhoa is of limited use. Priestley JA thought that the sentence in that case was close to the bottom of the reasonably available range and may even be below it, but, even so, the double jeopardy consideration would lead to his dismissing the Crown appeal.

32. Dhanhoa is authority for the proposition that the effect of the death in the accident on the offender and self punishment (the self inflicted sense of shame and guilt) were often highly relevant factors, that the weight to be given to these depended on the circumstances and that different judges may give different weight to those factors. Where the facts reveal gross moral culpability judges should be wary of attaching too much weight to considerations of self punishment. Genuine remorse and self punishment do not compensate for or balance out gross moral culpability.

33. In the present case the judge took the self punishment into account, including the major depression and the post traumatic stress disorder. His reasons indicate some real understanding of the applicant's position. However, he attached great weight to the serious objective factors, namely, the excessive amount of alcohol consumed, the excessive speed and the violent and erratic way in which the applicant's vehicle was driven.

34. There is nothing in the judge's reasons to show that he did not give adequate weight to the applicant's major depression and post traumatic stress disorder and the effect upon him of the accident and his close friend's death. He took these matters fully into account and confirmed the validity of these considerations from his own observations and his warning to the Corrective Service officers to look after and watch the applicant as they were dealing with a man who was not well.

35. Appeal Ground 1 should be rejected.

36. Appeal Ground 2 reads:

The sentence was manifestly excessive

37. The applicant relied on R v Jurisic (1998) 45 NSWLR 209 at 231 where this guideline was promulgated:

"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) should be exceptional.
…

The period of three years … once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence."

38. In R v Whyte [2002] NSWCCA 343 at [216] the Chief Justice included in his list of aggravating factors, the number of people put at risk, degree of speed, degree of intoxication, and erratic driving. At [223] the Chief Justice said:

"The reference to 'abandonment of responsibility' was one formulation for describing a high degree of moral culpability."

39. At [229] the Chief Justice continued:

"The guideline for offences against s 52A(1) and (3) for the typical case identified above should be

'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) would not generally be appropriate'."

40. The Chief Justice added at [230]

"in the case of a low level of moral culpability a lower sentence will, of course, be appropriate."

41. "The typical case identified above" or "a frequently recurring case of an offence under s 52A" has the following characteristics:

(i) young offender

(ii) of good character with no or limited prior convictions

(iii) death or permanent injury to a single person

(iv) the victim is a stranger

(v) no or limited injury to the driver or the driver's intimates

(vi) genuine remorse

(vii) plea of guilty of limited utilitarian value

See Whyte at [204]

42. The applicant does not fall within the typical or frequently recurring case. He is not a young offender. His record, while not disentitling him to all leniency, comprises slightly more than limited convictions. There is nothing major. The victim was not a stranger but a close friend. On the other hand the guideline is of use because of some important common features, namely, death to a single person, the applicant has been a reasonable citizen with a record that contains nothing major, his remorse is extensive and genuine and the early plea of guilty had appreciable utilitarian value. Any trial could have taken some time.

43. The applicant submitted that even accepting the judge's finding that the driving displayed a high degree of moral culpability, there were no circumstances of aggravation that called for a sentence that was significantly higher than that promulgated in Jurisic. I disagree.

44. In her oral submissions to this Court, counsel for the applicant relied heavily on the statistics of the Judicial Commission after Jurisic. In respect of a charge under s 52A(1)(a), dangerous driving occasioning actual death, it was pointed out that, as to all offenders, no sentence exceeded 6 years. Once allowance was made for the plea of guilty and associated factors of 25 per cent, the resultant sentencing starting point in this case would have been 6 years and 8 months which is higher than any of the sentences shown in the statistics.

45. As to the statistics relating to non-parole period/fixed term and non-consecutive terms, the non-parole period of 2 years 6 months was in the higher bracket of non-parole periods and tending towards the top of the range for non-parole periods. However, the statistics reveal that 17 per cent of offenders received a non-parole period of 2 years 6 months and there were others who received longer non-parole periods.

46. The statistics dealing with the term of sentence, non-consecutive terms only where there had been a plea of guilty revealed that in 21 per cent of sentences a term of 5 years had been imposed and in 6 per cent of sentences a 6 year term had been imposed. As to non-parole periods where there had been a plea of guilty, a non-parole period of 24 months was within the middle of the range and one of 30 months fell within the upper end of the range.

47. The statistics perform a useful function in giving a general guide to sentencing. But their applicability in the present case is limited because the judge relied on the combination of circumstances which reveal what a serious offence this was.

48. Counsel for the applicant also relied on Berg [2004] NSWCCA 300, pointing out that this Court had reduced the sentence in that case, and that the non-parole period there for an offence which had many of the characteristics that the current one had was one of 2 years and 3 months. Berg had a very creditable history of social service work and in many respects presented as a person of considerable merit.

49. The Crown relied heavily in this case upon the aggravating features, of driving under the influence of alcohol, and being seriously affected, speeding and erratic driving including driving on the incorrect side of the road and the passenger not wearing a seat belt.

50. The Crown pointed out that the sentence had to accommodate the Form 1 matters. Whilst they were regrettable, regard must be had to the stress the applicant was under, having just killed his closest friend. These Form 1 offences would not lead to a significant increase in the sentence imposed on the principal offence. The judge concentrated correctly on the acts comprising the principal offence.

51. The Victim Impact Statement reveals that the death of Mr Bailey has had a significant effect on his mother and his stepfather. Mr Bailey and his stepfather were very close and he has been shattered by his stepson's death.

52. The sentence imposed was not manifestly excessive given the high level of criminality of the applicant's acts taken in combination. They exhibited gross moral culpability. The judge was correct to concentrate on what the applicant had done. He did not lose sight of the applicant's serious objective criminality. This was not a Jurisic type case.

53. The applicant's post offence conduct revealed him, inter alia, as a man anxious to protect his own position. He declined to assist the police investigation by providing blood and urine samples. His conduct did not advance his claims to leniency.

54. Because of the Dhanhoa point I would grant leave to appeal I propose that the appeal be dismissed.

55. WOOD CJ at CL: I agree

56. HISLOP J: I also agree.

57. WOOD CJ at CL: The orders of the Court will be as proposed by Smart AJ.

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Last Modified: 10/18/2004