R v McMillan
[2005] NSWCCA 28
•16 February 2005
CITATION: Regina v McMillan [2005] NSWCCA 28
HEARING DATE(S): 23/11/2004
JUDGMENT DATE:
16 February 2005JUDGMENT OF: Santow JA at 1; Bell J at 2; Howie J at 3
DECISION: (1) The application for an extension of time in which to appeal is granted but the appeal is dismissed; (2) The application for leave to appeal is refused; (3) The Crown appeal is allowed and the sentence imposed by Judge Payne is quashed. In lieu the respondent is sentenced to imprisonment for 4 years to commence on 3 May 2004. There should be a non-parole period of 2 years and 6 months to commence from 3 May 2004 and the respondent is eligible to be released to parole on 2 November 2006.
CATCHWORDS: Appeal - application to go behind plea of guilty - refused - Sentencing - Crown appeal against sentence imposed for aggravated dangerous driving occasioning grievous bodily harm - sentence manifestly inadequate - Crown appeal allowed and the respondent resentenced - Consideration of statistics in relation to an offence under s 52A(3) of the Crimes Act.
LEGISLATION CITED: Crimes Act 1900 - s 52A
Crimes (Sentencing Procedure) Act 1999 - s21ACASES CITED: Van (2002) 129 A Crim R 229
R v Ganderton (NSWCCA, unreported, 17 September 1998)
Liberti (1991) 55 A Crim R 120
R v Whyte (2002) 55 NSWLR 252
R v Jurisic (1990) 45 NSWLR 209
R v Barton [2001] NSWCCA 63
R v Royal [2003] NSWCCA 275
Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303
R v Baker [2000] NSWCCA 85
R v Wall [2002] NSWCCA 42PARTIES: Regina v Andrew Ivon McMillan
FILE NUMBER(S): CCA 60196/04
COUNSEL: D. Frearson SC - Crown
H.J. Halligan - RespondentSOLICITORS: S. Kavanagh - Crown
Johnson & Sendall - Respondent
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/41/0203
LOWER COURT JUDICIAL OFFICER: Payne DCJ
60196/04
SANTOW JA
BELL J
HOWIE JWEDNESDAY 16 FEBRUARY 2005
1 SANTOW JA: I agree with Howie J.
2 BELL J: I agree with Howie J.
3 HOWIE J: This is an application for an extension of time in which to appeal against conviction, an application for leave to appeal against sentence and a Crown appeal against sentence. The Crown appeal was first in time and for convenience I will refer to Mr McMillan as the respondent. The respondent was convicted on 3 May 2004 but did not appeal against conviction until 25 August 2004.
4 On 11 March 2004 the respondent was arraigned before the District Court on an indictment containing two counts in the alternative. The first count alleged the offence of aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act. He pleaded not guilty to that count. The second count alleged the offence of aggravated dangerous driving occasioning grievous bodily harm contrary to s 52A(4) of the Act. On the respondent pleading guilty to the offence in the second count, the Crown accepted that plea in full discharge of the indictment.
5 Both charges in the indictment arose from a single course of driving by the respondent on 26 January 2002. The victim in each charge was the same, Glen Charles Powell. The difference between the two charges was that the first alleged that the death of Mr Powell was occasioned by the impact of the respondent’s motor vehicle and the second alleged that the impact occasioned grievous bodily harm to Mr Powell. There was an issue as to causation between the impact and Mr Powell’s death and this was determined in favour of the respondent by the acceptance of the plea of guilty. In both charges it was alleged that the respondent was at the time of the impact under the influence of alcohol. Each charge also alleged that the “prescribed concentration of alcohol” was present in the respondent’s blood at the time of impact and this was the matter of aggravation relied upon by the Crown.
6 There are three grounds of appeal against conviction as follows:
1. The learned sentencing judge did not have regard to the provisions of Section 52AA(3) of the Crimes Act in finding that there was present in the Appellant’s blood, the prescribed concentration of alcohol as defined by Section 52A(7)(a) of the Crimes Act.
3. The indictment presented against the Appellant should not have charged him pursuant to Section 52A(4) of the Crimes Act.2. The appellant should not have been convicted of aggravated dangerous driving.
7 The respondent was arraigned before Judge Urquhart on 11 March 2004 when the plea of guilty was entered to the second count on the indictment. The matter was then stood over to 19 April 2004 when it came before her Honour Judge Payne. On that date the police brief of evidence was tendered together with a statement of facts. Mr Halligan of counsel, who appeared for the respondent both before the sentencing judge and in this Court, indicated that apart from material in the brief relating to the death of Mr Powell there was no objection to the evidence.
8 At the outset of the proceedings and during the course of discussions between the Bench and the Crown as to the facts upon which the respondent was to be sentenced, her Honour raised the issue of the factual basis upon which the Crown was alleging a charge under s 52A(4). The following took place between her Honour and the representative of the Crown, Mr Diggins, (obvious errors corrected):
HER HONOUR:………..The first step is Mr Crown, this is 52A(4). What is the level of alcohol consumption that puts it into the aggravated category?
DIGGINS: .170. The report of Dr Anderson. The prescribed level under the Act is 0.15.
HER HONOUR: So Mr Crown, what’s the figure that places it into the aggravated category? Takes it out of the seven into the eleven (years maximum penalty). I need to know how serious because this is a reading of .205.
HALLIGAN: That’s so your Honour.
HER HONOUR: A very high reading.
DIGGINS: Yes but on the second last paragraph Stewart Anderson gives an opinion, “Assuming continues drink…less than .170”.
HER HONOUR: Again, I’ve got a Facts sheet that says. The defendant, that’s Mr McMillan, “Thus has now been analysed showing .205 grams of alcohol”.
DIGGINS: Yes, and that was the reading that was taken—
HALLIGAN: Sometime after the event your Honour.
HIS HONOUR: Sometime after the event.
DIGGINS: So an expert opinion has been sought to give us a range and it’s between—
HER HONOUR: I’m going to cross that out Mr Crown. What is the reading now?
DIGGINS: It was not less than 0.170 grams of alcohol per 100 millilitres and there’s an upper limit which was 0.265 grams which I can’t rely on. I’m relying on the 0.170 grams.
HER HONOUR: Where’s that?
DIGGINS: It’s right at the start of the brief after Detective Chaplin. I think it’s the second statement---
HALLIGAN: It’s the second statement that was read onto the record your Honour.
DIGGINS: It follows Detective Chaplin’s.
HER HONOUR: It’s the not less than .170.
DIGGINS: That’s right. And the aggravated level is 0.150.
HER HONOUR: Which is indeed the range, the beginning of the high range isn’t it?
DIGGINS: Yes.
DIGGINS: Yes, .02 over the high range.HER HONOUR: So, it’s 0.170 which is over the high range?
9 Her Honour took the matter up further with defence counsel, Mr Halligan, in the following exchange:
HER HONOUR: ………..why did you have to get the estimate and not rely on the blood sample? Was it too long after was it or what happened?
HALLIGAN: It was two hours and twenty minutes after the accident that the blood test was – the sample was taken your Honour.
DIGGINS: So the sample could’ve been going up or down. We don’t know.
HER HONOUR: What time of the day was the accident?
HALLIGAN: 6 pm. Your Honour will find reference to that in question 3 of the ERISP record of interview.
HER HONOUR: So had he been drinking what all day had he or most the day or---
HALLIGAN: The evidence is that there was a period – I’ll have to put my fingers on this your Honour but there was—
DIGGINS: If I could assist. Spoken to in the ERISP interview—
DIGGINS: Question 30 to 65 on the ERISP the prisoner gives an account of his drinking on that day starting at the Tarago Hotel, then to a friend Albert Stockworth’s(?) place. Talks about four or five middies of Hahn light at the Tarago Hotel, with a couple of beers at Alberts and they could’ve been home brew or Reschs, I’m not certain. Question 64 talks about whether he felt affected.HALLIGAN: Mr Karooz statement has a useful summary on that your Honour – maybe not.
10 In order to understand these exchanges between her Honour and the parties, it is necessary to set out the applicable sections of the Crimes Act. The relevant statutory provisions of s 52A are as follows:
(3) Dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:
- (a) under the influence of intoxicating liquor or of a drug, or
(b) at a speed dangerous to another person or persons, or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
(4) Aggravated dangerous driving occasioning grievous bodily harm
A person is guilty of the offence of aggravated dangerous driving occasioning grievous bodily harm if the person commits the offence of dangerous driving occasioning grievous bodily harm in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 11 years.
In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:(7) Circumstances of aggravation
- (a) the prescribed concentration of alcohol was present in the accused’s blood,
(9) Definitions
In this section:
- prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.
11 Section 52AA contains provisions relating to proof of the fact that a driver was under the influence of alcohol as follows:
(1) Presumption as to intoxication
For the purposes of section 52A, the accused is conclusively presumed to be under the influence of liquor if the prosecution proves that the prescribed concentration of alcohol was present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm.
(3) Time of intoxication(2) Evidence of intoxication
For the purposes of section 52A, evidence may be given of the concentration of alcohol present in the accused’s blood at the time of the impact occasioning death or grievous bodily harm occurring at a place that is not a road or road related area within the meaning of the Road Transport (General) Act 1999 (other than a road or road related area that is the subject of a declaration made under section 9 (1) (b) of that Act relating to all of the provisions of that Act) as determined by a blood analysis carried out in accordance with Division 4 of Part 2 of the Road Transport (Safety and Traffic Management) Act 1999 .
A concentration of alcohol determined by the means referred to in subsection (2) is taken to be the concentration of alcohol in the accused’s blood at the time of the impact occasioning death or grievous bodily harm:
- (a) if the blood sample that was analysed was taken within 2 hours after the impact, and
(b) unless the accused proves that the concentration of alcohol in the accused’s blood at the time of the impact was less than the prescribed concentration of alcohol.
(7) Definitions
In this section:
- prescribed concentration of alcohol means a concentration of 0.15 grammes or more of alcohol in 100 millilitres of blood.
12 In summary the scheme of the legislation is as follows. There are two offences arising from the infliction of grievous bodily harm as a result of an impact when the driver of the motor vehicle was under the influence of liquor. The aggravated offence, s 52A(4) arises where the driver at the time of the impact has a concentration of alcohol of the prescribed quantity, s 52A(7), that is a blood alcohol reading of more than 0.15, s 52A(9). A driver is presumed to be driving under the influence of liquor where he has a prescribed concentration of alcohol at the time of the impact, s 52AA(1), that is a concentration above 0.15, s 52AA(7). The concentration determined by analysis is taken to be the concentration at the time of impact provided that the blood sample analysed was taken within two hours of the impact, s 52AA(3).
13 In that part of the proceedings, to which the transcript quoted above relates, it is clear that her Honour had raised the issue of the relevant blood alcohol reading for the purposes of sentencing the respondent and had determined to ignore a reference in the statement of facts to it being 0.205, because, as she was informed by counsel for the respondent, it was a reading taken “after the event”. Her Honour was directed by the Crown to a report in the brief of evidence indicating that the blood alcohol range was between the 0.170 and 0.265, but the Crown acknowledged that it was relying upon the lowest end of that range. Judge Payne accepted that this was appropriate. When asked by her Honour why the Crown was relying upon an estimate of the blood alcohol reading rather than the blood sample, defence counsel informed her that the sample of blood was taken two hours and twenty minutes after the accident. Her Honour then raised the question of whether the respondent had been drinking all day and was referred to passages in the ERISP.
14 It is, therefore, apparent that the respondent continued to maintain his plea of guilty to the second count at a time when the question of proof of the blood alcohol concentration had been discussed openly between the parties and her Honour in circumstances where defence counsel must obviously have considered the issue of whether the Crown could prove the circumstance of aggravation and whether the respondent’s plea of guilty was in accordance with the evidence in the prosecution brief. However, the respondent now seeks to resile from the position before the District Court and asks this Court, in effect, to grant him leave to go behind the plea of guilty and challenge his conviction of the offence on the second count.
15 The evidentiary material before her Honour relevant to the respondent’s blood alcohol level included the following:
(a) An uncontested statement of facts contained the following in relation to the applicant’s conduct on the day of the accident:
Throughout this day the defendant consumed various quantities of beer which he described as Hahn lite, home brew and Resches.
(b) A report of a Police (Forensic) Medical Officer, Stuart Anderson containing the following statement:
It seems the driver told Police he consumed three stubbies home brew beer and four to five middies Hahn Lite beer between 12.00 pm and 5.30 pm on the day of the collision which occurred at 6.00 pm on 26 January 2002.
Blood was taken for alcohol analysis later that day at 8.20 pm when the blood alcohol concentration was 0.205 grams of alcohol in 100 millilitres of blood.
A minimum of the equivalent of seventeen (17) middies of beer would have been consumed.Assuming continuous drinking, based on my specialised knowledge, and relying on the above information, at the time of the collision, the blood alcohol concentration would lie within a range the lower limit of which would be not less than 0.170 grams of alcohol in 100 millilitres of blood and the upper limit of which would not exceed 0.265 grams of alcohol in 100 millilitres of blood.
(c) An ERISP that contained the following questions and answers:
Q22 Can you tell me what time you got up on Saturday morning?
A Approximately, a bit before 7 o’clock.
Q23 That 7.00 am?
A Yeah, 7.00 in the morning.
Q24 What were your movements during the day?
A I basically ah, sat around in the morning and had breakfast then I just fiddled around out in the shed and did a few things, oh, then I, I went down ah, to a friend’s place down the road and all I know it was Tarago South
Q25 Who was the friend?
A Albert Stockford.
Q26 Where does he live?
A Ah, Wolgon Road, I don’t know, I don’t know what the ….. called, you know, Windellama, I supposed. It is actually near ……
Q27 You went with him to where?
A Tarago Show.
Q28 What time would you have got to the Tarago Show?
A Oh, some where after 12.00, between 12.00 and about 1 o’clock, I think.
Q29 How long did you stay at the Tarago Show?
A Oh, couple of hours.
Q30 Where did you go from there?
A We had a ah, beer at the Tarago Hotel.
Q31 Where did you go after the Tarago Hotel?
A Back to Albert Stockford’s place.
Q32 Do you know what time you would have arrived there?
A Ah, between 4.00 and 5.00
Q33 How long did you stay at Albert Stockford’s place.
A Oh, hour or two.
Q34 What happened then?
A I left and came home. I went to come home.
Q35 Was it on the way home from Albert Stockford’s that the accident occurred?
A Yes.
Q36 You indicated that you had a beer at the Tarago Hotel. What type of beer was it?
A Lite.
Q37 Do you remember what sort of Lite?
A Hahn Lite.
Q38 What size beer was it?
A Middy.
Q39 Do you remember how many you had.
A About four or five or so.
Q40 Did you have something else to drink while you were there?
A No.
Q41 Did you have anything to eat while you were there?
A No.
Q43 And I’m talking about after you’ve been to the Tarago pub.Q42 When you went to Albert Stockford’s residence, did you have anything to drink there?
A I don’t know, I ---
A Yeah, I think I had a couple of beers at Albert’s
Q44 What sort of beer was that?
A Um, I, I’m not real sure whether it was a, was his home brew or um, some beer that he, I think, they bought some at the hotel. His home brew, I know, is a, a bit, not as strong as the full strength stuff but it was in the same type of bottle as the other stuff.
Q45 Do you remember what the other stuff might have been?
A Well, I think he, he only ever drinks Reschs, it’s always the same type of bottle, he saves his bottles and he makes his home brew.
Q46 You said you had a couple of those. What size beers were they?
A Just the little small bottles, so a stubby.
Q47 Did you have anything to eat while you were at Albert Stockford’s afterwards?
A No.
Q48 Did you have anything to drink at the Tarago Show?
A No.
Q49 Did you have anything to eat at the Tarago show?
A No.
Q50 When you went to Albert Stockford’s residence in the morning, did you have anything to drink at his residence?
A1 Ah, I had one stubby.
Q51 When you were there that morning, did you have anything to eat?
A No.
Q53 Did you have anything to drink before you left home that morning?Q52 Was that stubby that you had in the morning, the same as the couple you had in the afternoon?
A It was similar, that’s all I can say.
A No.
16 The respondent gave evidence before the sentencing judge. In evidence in chief the following questions and answers concerned his alcohol consumption prior to the driving:
Q What do you recall about the consumption of alcohol then?
A As it turned out it was far too much.
Q But what do you remember about how much you had to drink?
A Very little.
Q Very little memory or very little alcohol?
Q Were you in the habit of drinking to excess during those days and weeks preceding the date of the accident?
A Very little memory.
A No.
17 In cross-examination the following were relevant questions and answers:
Q Sir I put it to you that you told the police that you were drinking at the Tarago hotel?
A Correct.
Q Now is that right?
A Yes.
Q And that you had four to five middies of beer on that day is that right?
A Well it would be something like that, I really can’t recollect anything much about that day.
Q What has your memory got worse since that day?
A Well yes it has and being such a terrible event you try and block things out of your mind.
Q So giving a version two days after you would agree you would have a better recollection of what you were drinking?
A No not particularly.
Q But you managed to tell the police you had four to five middies of Hahn Light, you had a memory at that stage when you were giving the ERISP interview?
A Yes.
Q And you also recall going to Albert Stockford’s place, you recall that now?
A Yes.
Q And you did go to Albert Stockford’s place?
A. Mmm hmm.
Q What about a couple of beers?Q And what did you drink there do you recall?
A I can’t really recall to be truthful.
A Yeah it would be beer, yeah.
Q Do you know what sort of beers they were?
A Oh possibly Resches.(?) it would be full strength beer.
Q What about Albert’s home brews, do you think-
A Oh yeah.
Q So you do have a memory it’s, you do recall going to Albert’s and drinking beer.
A Yes
Q So on your evidence you had four to five middies from – what time did you start drinking that day?
A Oh it would be after dinner time.
Q What one, 2 o’clock?
A Oh something like that, yes.
Q Up until the accident at six, so you’ve had a couple of beers would you agree, two to three?
A Oh it would be possibly more, it would have to be.
Q Well that’s what I’ve put to you Sir, you’ve told the police you’ve had four to five middies of light beer which spread over that period of time wouldn’t normally affect you, wouldn’t affect an adult person that great a deal would it?
A I have no idea how it would affect anyone.
Q Well Sir you were drinking, you were there?
A hmmm.
Q You would know how it affected you?
A Yeah well I felt all right.
Q Four to five middies wouldn’t have any real affect would it over a period of time, light beer, you’d agree with that wouldn’t you?
A Well I suppose yourself on the day and whether you had any medication or tablets or anything.
Q And you’re a seasoned drinker, it’s not as though it’s the first time you drunk was it?
A No.
Q Now putting all of that alcohol together you would have had to have more than that to reach the reading of 170 would you agree with that?Q Sir and you said you had a couple of beers at Albert’s do you agree with that?
A Yes.
A Well I just have done, yes.
Q So what did you drink Sir?
A I don’t remember it would only be beer it must have been full strength instead of the light, that’s all I can—
Q Well you were pretty specific when you spoke to the police when you said middies of Hahn Light?
A Well see that’s what I normally drink.
Q Sir it was some two days after the accident wasn’t it?
A Well it wouldn’t have mattered if it was two hours, I can’t really remember.
Q Wasn’t it the case that you were trying to down play the amount that you had had to drink?
A Well I think a drinker is usually the worse judge of how much he has had to drink anyway.
Q And they’re the best person to know exactly how much they had drunk, wouldn’t you agree with that Sir.
A Well at times, yes.
Q If they were being truthful they would be the only person that would know exactly how much was drunk
A Not necessarily.
Q Sir isn’t it the case that you didn’t tell the police the exact truth about how much you’ve had to drink on that day to down play how much you’d had to drink?
A I don’t think telling the truth is the right thing, I might have miscalculated the amount of drink I’ve had but as for telling the truth-
Q Well I put it to you that you did it intentionally to lessen your guilt in this, or your culpability in this, would you agree with that?Q Mislead is a better word?
A Well unintentionally I must have done.
A No.
Q Sir I ask you again, you were well affected by alcohol weren’t you when you left to commence your trip?
A Well I don’t feel I was that bad.
Q And I put it to you that you would have known you were over the limit?Q But you were bad, you were affected weren’t you?
A Yes
A Yes.
Q You made the decision to drive after drinking most of the day?
Q That you made the decision to drive didn’t you?
A Yes.
A Yes.
18 The respondent pleaded guilty to the aggravated offence as particularised by the Crown and, therefore, is to be taken as having admitted each of the elements of the offence of the charge, including the element of aggravation. Of course it was open for the sentencing judge to reject the plea but she was never asked to do so and there was nothing in the statements in the police brief or in the evidence of the respondent to raise any question about the propriety of the plea. Nor is there any material before this Court to indicate that the respondent’s plea should not be taken for what it was: a voluntary admission of the elements of the offence. There is no evidence placed before this Court to suggest that any of the circumstances, in which this Court would permit a person to go behind the plea of guilty, existed.
19 The grounds of appeal are drawn in terms of asserting legal error arising from both the charging of the respondent with the offence of aggravated dangerous driving and in the Judge convicting the respondent of that charge. But these grounds seem to be based upon a misconception of the relevant provisions of s 52AA. These provisions are, as the heading to the section makes clear, procedural matters. In particular the provisions, referred to and relied upon by the respondent as indicating that the respondent was erroneously charged and convicted, merely facilitate the Crown in its proof of one or other of the elements of an offence created by s 52A. The respondent by pleading guilty relieved the Crown of the onus of proving any of the elements of the offence under s 53A(4) and, therefore, the provisions in s 52AA were made irrelevant.
20 For example, the fact that the sample of blood was taken more than two hours after the impact did not mean that the respondent could not be guilty of the offence under s 52A(4). That fact simply meant that, had the Crown been required to prove the charge, it could not rely upon the deeming provision in s 52AA(3) to prove the respondent’s blood alcohol concentration at the time of impact. But there is nothing in the section that prevents the Crown from charging or proving the aggravated offence on the basis that the sample of blood was not taken within the two hour period.
21 The contention in ground 1 that the existence of s 52AA(3) prevented her Honour from convicting the respondent of an offence under s 52A(4) misconceives both the relevance of the provisions in s 52AA and the effect of the applicant’s plea of guilty to the second count in the indictment. Similarly the assertion in ground 3 that the respondent should not have been charged with an offence under s 52A(4) finds no basis whatsoever in any of the provisions of s 52AA or the general law of criminal procedure.
22 The second ground asserts that the respondent should not have been convicted of the offence under s 52A(4). But there was no basis upon which the sentencing judge could have refrained from convicting the respondent of that offence in light of both his plea of guilty and the evidence before the court by way of the police brief and the respondent’s testimony. The respondent argues that there was no sufficient basis upon which Dr Anderson could give the opinion as to the range of blood alcohol reading because there was no evidence to support his assumption of “continuous drinking” on the part of the respondent, whatever that term might involve. But whether or not Dr Anderson’s opinion might have been admissible had objection been taken to it is beside the point in light of the applicant’s plea and its acknowledgement that his blood alcohol concentration at the time of the impact was at least 0.150. Although the applicant’s evidence was somewhat conflicting as to the amount of alcohol he had consumed prior to the accident, or at least as to whether he had any reliable memory of what he had consumed, ultimately he agreed with the Crown’s assertion that he made the decision to drive “after drinking most of the day”.
23 For the purpose of considering the respondent’s appeal against conviction I have found it unnecessary to review in any detail the authorities concerned with the circumstances in which this Court would allow an appellant to traverse the plea of guilty. Those principles are well known and were reviewed comprehensively in Van (2002) 129 A Crim R 229.
24 Mr Halligan asserts, without evidence to support it, that the plea was entered without a full knowledge of the facts. See R v Ganderton (NSWCCA, unreported, 17 September 1998) where it was held:
"If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."
25 It is asserted in submissions, but without evidence to support it, that:
It was not until the Appellant received a Notice of an Appeal brought by the Crown alleging an inadequacy of penalty that it became necessary to re-examine the material collected in the prosecution’s brief of evidence. It was then discovered that a period of 2 hours and 20 minutes lapsed between the time of impact and the sample given up by the Appellant to Dr Hislop.
That assertion sits uneasily with the transcript of the proceedings before Judge Payne, set out above, which makes it plain that the respondent’s legal representative was well aware of this “defect” in the Crown’s evidence. In any event the fact that the plea was entered notwithstanding that the Crown might have difficulty in proving an element of the charge does not mean that the plea of guilty is not entered “with a full appreciation of the facts and as a genuine recognition of guilt”.
26 It has been held that the Court should only entertain a ground of appeal such as the present with “caution bordering on circumspection” because of the significance of the plea of guilty: Liberti (1991) 55 A Crim R 120 at 122. The onus is upon the person seeking to have the conviction set aside to satisfy the Court that the conviction following the plea of guilty has resulted in a miscarriage of justice. In the present case the respondent has not only failed to fulfil that onus, but a consideration of the whole of the material including the evidence given by the respondent satisfies me that there is no possibility of miscarriage of justice having occurred.
27 I am of the opinion that the respondent should not be permitted to go behind the plea of guilty and the appeal against conviction fails. There should be an order that the application for an extension of time in which to appeal is granted but the appeal is refused.
28 This then leads to a consideration of the question of sentence. A conviction for the offence to which the respondent pleaded guilty exposed him to a maximum sentence of 11 years imprisonment. Judge Payne sentenced the respondent to imprisonment for 3 years from 3 May 2004 with a non-parole period of 1 year 9 months. The respondent will be released to parole on 2 February 2006. The respondent was also disqualified from driving for a period of 4 years from 26 January 2002. There is no appeal against that order.
29 The Notice of Appeal by the Crown is dated 12 May 2004 some 9 days after sentence was imposed. There was, therefore, no undue delay in the bringing of the appeal. Although the respondent sought leave to appeal against sentence, no submissions were made either orally or in writing in support of that application. Rather in submissions in answer to the Crown appeal the respondent sought to support the Judge’s findings and the sentence imposed.
30 The facts can be briefly stated. On Australia Day 2002 at about 6pm, when driving home along a country road, the respondent allowed his vehicle to veer onto the incorrect side of the road where it collided with an on-coming vehicle. As a result, the driver of the other vehicle suffered extensive injuries to both legs and his left arm and internal injuries. He was hospitalised but died a short time later. As I have already noted, the acceptance of the plea of guilty by the Crown was on the basis that it was conceded that the respondent was not criminally liable for the death of Mr Powell. The respondent had a blood alcohol reading of at least .170 and it was estimated that he had consumed about 17 middies to reach that level of intoxication. The respondent had been drinking alcohol at various times throughout the day prior to driving his vehicle.
31 The respondent told investigating police that he did not see the other vehicle before the impact. He thought that he may have moved toward the centre of the road to avoid a wild animal or because there was loose gravel. He was distracted at the time by a twist in his seat belt. He believed that the road was not wide enough to allow for vehicles to pass with safety particularly if large trucks were using the road. He said that he did not feel intoxicated. Although he denied having alcohol in the vehicle, there was evidence of an open stubby near the foot pedals and a strong smell of alcohol coming from the vehicle.
32 The respondent was aged 52 years at the time of sentencing and was living on the proceeds of investments. He resided with a friend on a property near Tarago. He had a history of alcohol-related offences including a conviction for manslaughter in 1992 arising from the shooting of his then partner for which he received a sentence of imprisonment for 8 years with a minimum term of 5 years. He had prior PCA offences in 1975, 1977 and 1987. He had been reissued with his Class C licence in July 1998.
33 While the respondent was serving the sentence for manslaughter in 1993 he was assaulted in prison, receiving serious head injuries as a consequence, and there were before her Honour a number of reports concerning these injuries and their impact upon him. In particular there was a psychologist report dated March 2004 indicating that as a result of the assault in prison, the respondent suffered the following: fatigue; concentration difficulties; decreased motivation; slowed information processing; and feelings of unsteadiness and vertigo. He did not suffer any deterioration in his condition as a result of the collision. The respondent said in evidence that he also had trouble with blurred vision and dizziness.
34 The respondent gave evidence that he had attended counselling for alcohol use while in prison but did not consider that he had any problem with alcohol at the time of the collision. He did not regularly drink to excess. He had the prospect of obtaining work as a groundsman at a restaurant that was being established. He had been involved in voluntary work for Landcare for a number of years and in a local volunteer bush fire-fighting brigade. There were witnesses called as to the respondent’s voluntary work, his standing in the community and his remorse for the injuries inflicted upon Mr Powell.
35 The respondent had been under the care of a psychiatrist, Dr McConnell since 1996. Following the collision with Mr Powell’s vehicle the respondent became depressed with suicidal thoughts. He was prescribed anti-depressant medication. The psychiatrist last saw the respondent on 10 April 2003 and at that time he expressed his remorse, assuring the psychiatrist that, if he had his licence returned, he would never drive again after consuming alcohol. Although he was still depressed, he was refusing to take medication. The respondent was fearful about the prospect of going to gaol, believing that there was a high risk of him again being assaulted.
36 Judge Payne granted the respondent a discount of 20 per cent for the plea of guilty and found the respondent to be contrite and remorseful. Her Honour considered the guideline judgment in R v Whyte (2002) 55 NSWLR 252 and noted the differences between the features of the present case and those considered as the normal case in Whyte. Unlike the characteristic offender considered in Whyte, the respondent was neither a young offender nor did he have good character or limited prior record. Her Honour, however, noted that unlike the normal case where the plea of guilty had limited utilitarian value, in the present case the plea was of significant value. Her Honour also considered the aggravating features listed in R v Jurisic (1990) 45 NSWLR 209 and determined that the respondent had demonstrated a high level of moral culpability and had abandoned responsibility for his own conduct. She noted that the respondent had to travel “a fairly long distance on a difficult road”.
37 Her Honour then went on to consider the list of aggravating factors contained in s 21A of the Crimes (Sentencing Procedure) Act and found that two were present: (d), a record of previous convictions, and (g), the injury, emotional harm, loss or damage was substantial. Judge Payne did not find that (i), the offence was committed without regard for public safety, was made out. The Crown relies upon this finding as an error.
38 Section 21A(2) provides:
The Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence
39 I do not believe her Honour was in error in not finding the offence was aggravated by item (i) in s 21A(2) because that factor is reflected in the elements of an offence under s 52A and in the aggravating factors to which a court is to have regard specifically when sentencing for such an offence.
40 Judge Payne next considered the mitigating factors under s 21A(3). Her Honour found that the following were present: (b), the offence was not part of a planned or organised criminal activity (g), offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, (i), the offender was remorseful, and (k) a plea of guilty. Her Honour also found that the respondent would be more vulnerable in custody and his conditions of custody would be more onerous because of his fear, poor health and the effects of his brain injury.
41 The Crown does not cavil with any of these findings, but it does assert that her Honour was in error in taking into account that the offence could have been dealt with summarily. Despite the fact that she found that the case was not appropriate for summary disposal, Judge Payne took into account that the offence could be disposed of summarily and gave “some very small consideration to this”: see R v Barton [2001] NSWCCA 63. In my view this particular offence would never have been dealt with summarily and there was no basis to take that consideration into account at all: see R v Royal [2003] NSWCCA 275 at [38]. However, this is a minor matter and cannot have affected the sentence to such a degree that this Court would interfere.
42 Judge Payne found that there were special circumstances justifying a reduction in the non-parole period. Although the Crown, as I understand it, does not contend that this finding was not open to the Judge, it does submit that the non-parole period specified was inadequate to reflect the criminality involved in the offence.
43 On the face of it the sentence seems unduly lenient. This was a very serious instance of an offence for which the maximum penalty prescribed is imprisonment for 11 years. As her Honour found, the offence was aggravated by the abandonment of responsibility by the respondent in determining to drive about 15 kilometres on a difficult stretch of road on which he knew there might be other drivers even occasionally trucks. It was the type of road where all of a sober driver’s care and attention was required. To undertake the road when he was well aware that he had been consuming alcohol for the large part of the day was not simply irresponsible, it was seriously criminal. In Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 at [102] it was stated:
A person, who commences to consume alcohol outside his or her home, must appreciate that he or she runs the risk of reaching a level of intoxication at which it is a criminal offence to drive a motor vehicle. As alcohol is continuously consumed, not only does that risk increase but also the potential seriousness of the offence increases. At the high range level of PCA it could rarely, if ever, be suggested that the person lacked this appreciation at some point of time before the decision was made to get behind the wheel of [a] motor vehicle. These observations may be trite, but they must be kept in mind when consideration is given to the level of criminality involved in driving at the high range PCA and the appropriate punishment necessary to reflect it.
44 Further the respondent must have known that by reason of his brain injuries and other difficulties he was a greater risk on the road after consuming alcohol than other persons not suffering from those problems.
45 The respondent had little in his background to assist him. His voluntary work for the community was of little importance given the seriousness of the offence and his record. Despite his statements to the contrary the applicant has obviously abused alcohol for the greater part of his life. His prospects for rehabilitation, as her Honour noted, depended upon his ability to control his use of alcohol. It is difficult with respect to support her Honour’s findings that his prospects of rehabilitation were good in light of the fact that he appears to have learned nothing about the responsible use of alcohol from his earlier offences and the courses he attended while in gaol. Although he was unlikely to offend if he remained sober, the chance of that occurring was, to say the least, speculative.
46 The Crown contends that the discount for the plea of guilty was too generous as, despite her Honour’s finding to the contrary, there was little utilitarian value in the plea. The only real issue was whether the Crown could prove the causal link between the impact and the death of Mr Powell. A trial of the offence to which the applicant pleaded guilty would have been short and the witnesses to be called would have been police officers. However, her Honour indicated during her remarks that the Crown before her had accepted that a reduction of 20 per cent was appropriate. Certainly the Crown did not cavil with her Honour’s statement of intention to give such a discount during submissions by the defence. The Crown should not be heard to take issue with that matter now.
47 As against a maximum penalty of 11 years, the undiscounted sentence of 3 years 9 months is in my view inadequate to reflect the serious criminality involved in the offence, the serious injuries occasioned to Mr Powell and in light of the respondent’s record. I would have thought that an appropriate starting point was about 6 years. A discount of 20 per cent would lead to a head sentence of 4 years 9 months.
48 However, the respondent argued that, having regard to the statistical information concerning sentences imposed for an offence contrary to s 52A(3), the sentence imposed was well with the range open to her Honour. The statistics show that for an offence of this type, after a plea of guilty, 77 per cent of head sentences are under 42 months with 60 per cent under 36 months. This is a surprising result in view of a maximum penalty of 11 years. The longest sentence imposed was 6 years. It might be thought that these statistics reflect to some degree that many of the offenders have no prior criminal record, but the statistics show that, even where the offender has a prior record for similar offences, 75 per cent still received sentences of less than 3 years (although the sample size is very small only being 12 cases).
49 It should be noted that the maximum penalty for an offence under s 52A(4) is greater than that for a non-aggravated offence causing death, the maximum penalty for an offence under s 52A(1) being 10 years. Parliament should be taken as being of the view that generally an offence under s 52A(4) is slightly more serious than an offence under s 52A(1) notwithstanding that the consequences of the driving will be less serious. Yet the statistics show that sentences for an offence under s 52A(1) are markedly more severe than those for an offence under s 52A(4): only 14 per cent of head sentences are less than 3 years.
50 This difference is perhaps understandable in that the courts will generally consider that an offence in which a death has been occasioned will be more serious than where death did not occur. This no doubt reflects community attitudes. But the offence of dangerous driving has two features: the driving and the result. The aggravated form of the offences reflects the aggravated criminality of the driving by reason of the presence of one of the facts set out in s 52A(7). Each of those facts represent a very significant increase in the criminality from the non-aggravated form of the offence whatever might be the other objective facts of the particular offence for which sentence is being passed.
51 It may well be the case that insufficient regard is being paid to the seriousness of the driving as reflected in the matters of aggravation specified in the s 52A(7) and the increased penalties that the aggravated form of the offence attracts. Appropriately the statistics do reflect a difference in sentencing between the non-aggravated form of the offence and the aggravated form: 83 per cent of sentences for an offence under s 52A(3) are less than 3 years. But the difference between the range of sentences imposed for that offence and the range for an offence under s 52A(4) do not appear to reflect the increased maximum penalty or the increased culpability arising from the fact that the offence is an aggravated one and the serious nature of the element of aggravation.
52 In Whyte it was held that, where the offender’s moral culpability is high, a sentence of less than two years would not generally be appropriate for an offence under s 52A(3). It was also held that for an aggravated offence “an appropriate increment is required”. The appropriate increment must recognise the increase in the maximum sentence from 7 years to 11 years and the increased criminality arising simply from the fact that the offence is an aggravated one.
53 So in the present case her Honour had to sentence the applicant for an offence of significant gravity before any other objective factor was taken into account. She found, with respect, correctly that the applicant’s moral culpability was high and that he had abandoned responsibility. In light of the period over which he had been drinking alcohol and the nature of the driving he had to undertake these findings were clearly required. But these findings were to be taken into account over and above the fact that he had a reading of over .015, this being an element of the offence. His offending under the influence of alcohol in the past, both generally and specifically in relation to driving motor vehicles, deprived him of any leniency. The injuries occasioned to Mr Powell were serious. It was, therefore, an offence, although not the worst of its kind, coming within the upper range of offences of its type.
54 The Crown cannot point to any specific error that would indicate that her Honour’s discretion miscarried. In that case it would be exceptional for this Court to allow the appeal simply on a finding that the sentence was inadequate: R v Baker [2000] NSWCCA 85. However, notwithstanding the range of sentences for this type of offence revealed by the statistics, I am firmly of the view that the sentence was inadequate having regard to the seriousness of the driving, its consequences and in light of the applicant’s record. There could, in my opinion, be little moderation of the head sentence on the basis that the respondent might find imprisonment more difficult because of his injuries and fear of further attack. There were little other subjective or objective matters of mitigation that could reduce the sentence to that chosen by her Honour.
55 I remain of the view that the appropriate starting sentence would have been 6 years but that should be moderated because of the existing range of sentences to 5 years. A discount of 20 per cent reduces the sentence to 4 years. I would find special circumstances for the reason given by her Honour but the reduction in the non-parole period is limited by the importance of the minimum term of imprisonment reflecting both general and special deterrence and the seriousness of the offence. The non-parole period should be 2 years and 6 months. In determining that the Court should interfere and what sentence should be imposed, I have taken into account the limitations on this Court interfering at the behest of the Crown: see R v Wall [2002] NSWCCA 42 at [70].
56 I propose that the application for leave to appeal against sentence be refused. I further propose that the Crown appeal be allowed and the sentence imposed by Judge Payne be quashed. In lieu I would impose a sentence of 4 years to commence on 3 May 2004. There should be a non-parole period of 2 years and 6 months to commence from 3 May 2004 and the respondent is eligible to be released to parole on 2 November 2006.
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