R v Romanic

[2000] NSWCCA 524

CITATION:	R v Romanic [2000] NSWCCA 524 revised - 14/12/2000
FILE NUMBER(S):	CCA 60625/00
HEARING DATE(S):	28 November 2000
JUDGMENT DATE:	28 November 2000
PARTIES :	Regina Milorad Romanic
JUDGMENT OF:	Wood CJatCL at 1; Dunford J at 35; Carruthers AJ at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/2110
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

COUNSEL :	R Hulme for Crown (Applicant) B C Stratton QC for Respondent
SOLICITORS:	S E O'Connor
DECISION:	Appeal allowed. Sentence quashed. In lieu, respondent sentenced to a period of imprisonment for 12 months, to commence from today (28/11/00) with a non parole period of 9 months from today, and to expire on 27 august 2001, The release of the respondent is directed at the expiration of the non parole period.

THE COURT OF
CRIMINAL APPEAL

60625/00

WOOD CJ AT CL
DUNFORD J
CARRUTHERS AJ

TUESDAY 28 NOVEMBER 2000

REGINA v MILORAD ROMANIC

JUDGMENT

1 WOOD CJ AT CL: This is an appeal by the Director of Public Prosecutions, pursuant to section 5D of the Criminal Appeal Act 1912, against a sentence imposed upon the respondent following his plea of guilty to the offence of dangerous driving occasioning grievous bodily harm. 2 This offence is punishable by a maximum penalty of seven years' imprisonment - section 52A(3)(a) Crimes Act 1900. 3 On 31 August 2000, the respondent was sentenced by his Honour Judge Sorby, in the District Court, to 22 months' imprisonment with a non-parole period of 18 months, such sentence to be served by way of periodic detention. The sentence was specified to commence on 8 September 2000.

FACTS

4   At about 9.50pm, on Sunday 12 July 1998, the respondent drove his Hyundai Lantra sedan east on Elizabeth Drive, Bonnyrigg, when it crossed to the incorrect side of the road, and collided with an oncoming Mitsubishi Magna sedan driven by Mr Jose Kaduthodil. As a result of the collision, Mrs Vinodini Kaduthodil, the front seat passenger in the Magna, suffered a dislocated and fractured pelvis, broken teeth, chest pain from the impact of the seatbelt and bruising to the stomach. She was hospitalised for two weeks and underwent surgery for open reduction and internal fixation of the fractured pelvis. Mr Kaduthodil suffered a fractured ankle and chest pain from the impact of the seatbelt. Their two sons and a friend, who were seated in the rear of the vehicle, did not suffer any significant injury. 5   The respondent had declined to be interviewed by police and did not give evidence in the sentencing proceedings. However, the pre-sentence report recorded:

"Mr Romanic agrees with the police facts. He stated that he had consumed an unknown quantity of alcohol prior to the commission of this offence."

6 A blood sample taken from him at 12 am yielded a reading of 0.241 grams of alcohol per 100 millilitres of blood. Only a sample taken within a period of two hours can be deemed to be the blood and alcohol level at the time of the driving - section 52AA(3) Crimes Act 1900. Consequently evidence of an estimate of the respondent's blood alcohol level at the relevant time was placed before his Honour in the form of a statement from Dr Anthony Moynham. 7 There being no evidence as to when the respondent had commenced driving, Dr Moynham was only able to provide a range of estimates of blood alcohol levels, for assumed times when the respondent started drinking, on the day of the collision. The lowest point of the estimated ranges was 0.116 grams per 100 millilitres of blood and the highest point of the estimated ranges was 0.297. In Dr Moynham's opinion all levels within the range estimated were such as to impair the respondent's driving ability. 8 His Honour found that at the time of the accident the level of intoxication was such that the respondent had abandoned his responsibility for his conduct.

SUBJECTIVE FEATURES:

9 The respondent was initially charged with aggravated dangerous driving causing grievous bodily harm - section 52A(4) of the Crimes Act. He pleaded guilty in the Local Court and was committed to the District Court for sentence. However, he did not adhere to that plea and the matter was then listed for trial. On the day of the trial the Crown presented an indictment for the lesser section 52A(3) offence and the respondent then pleaded guilty. This plea his Honour accepted as one offered at the first reasonable opportunity. 10 The respondent was fifty years old at the time of sentence and was married with one adult son. He had been born in the former Yugoslavia and had migrated to Australia in about 1974. He had always been in full employment before establishing a gyprocking business in 1992 which he conducted in partnership with his wife. He placed evidence before his Honour to the effect that his financial circumstances were comfortable. He had held a driver’s licence for 25 years and his traffic history recorded the issue of six traffic infringement notices, the last in 1992. 11 He had no criminal convictions. There were testimonials before his Honour to the effect he was a hardworking man, an active member of his church, reliable, generally a responsible drinker and remorseful for the present offences.

THE APPEAL:

12   It was submitted his Honour erred in four respects when passing sentence:

a) by failing to give consideration to the aspect of general deterrence;
b) by giving excessive weight to the respondent's subjective circumstances;
c) by the approach taken to the discount for the plea of guilty; and
by finding special circumstances.

13   These grounds overlapped to a considerable extent, it being submitted that had proper recognition been given to the guideline judgment in Jurisic (1998) 45 NSWLR 209, then the matter would not have been dealt with by way of a sentence of periodic detention. The sentence exercise undertaken, it was submitted, was also marred by arithmetic error, apparent on the face of the reasons, in the calculation of the non-parole period. There was another arithmetic error apparent on the face of the reasons concerning the application of the percentage discount given for the plea, but it was accepted by Mr Hulme, on behalf of the Crown this morning, that this was probably no more than an error of transcription since the notes of the instructing officer recorded that his Honour referred to a discount of 25 per cent, rather than the 20 per cent noted in the reasons. Otherwise there would have been an obvious arithmetic error in the calculation made consequent upon the deduction. 14 In the leading judgment in Jurisic Spigelman CJ observed:

"In my opinion this Court should promulgate the following guidelines:

1. A non-custodial sentence for an offence against section 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.

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.

The period of three or two 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 that actual sentence."

15   His Honour also listed conveniently for the assistance of trial Judges those matters which have been accepted as aggravating circumstances, the presence of absence of which is important in determining the appropriate penalty. Those factors are as follows:

"(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".

16   While guideline judgments are not to be treated as absolute directions for sentencing Judges, the rationale for their delivery lies in the objective of ensuring consistency in sentencing, and in the opportunity which they provide for a considered analysis by the Court of Criminal Appeal of sentencing principle, in respect of offences where some uncertainty or unevennesses in sentencing practice has emerged. They are, accordingly, to be regarded as persuasive, and as a considered expression by this Court as to the proper range of sentences, from which there should be no departure save in accordance with a reasoned and justifiable exercise of discretion - Griggs [2000] NSWCCA 33 at paragraphs 29-30, per Simpson J, Henry (1999) NSW CCA 111 at paragraph 29. 17 In the present case his Honour found, not inappropriately, that a two and a half year sentence was a proper starting point, given the aggravated circumstances referable to the respondent's abandonment of responsibility in taking the wheel of his motor vehicle while in a significantly intoxicated state. 18 The case was not one of excessive speed or of prolonged erratic driving. It did, however, involve more than momentary inattention and simple misjudgment. Mr Hulme responsibly brought our attention to the fact that the solicitor appearing on sentence pressed only the aspect of intoxication as an aggravating circumstance. It is not clear to me, however, why the number of persons at risk was not also an aggravating circumstance. In my view, that it is a matter which also should have been taken into account. 19 The case was one which, was appropriate for a sentence which marked a significant element of general deterrence for the reasons explained in Davies NSW CCA 27 March 1998 and Musumeci NSW CCA 30 October 1997; see also the two recent decisions of this Court in Khan 2000 NSW CCA 454 and Turner 2000 NSW CCA 455. Although those two last mentioned appeals were concerned with the more serious offence of aggravated dangerous driving occasioning grievous bodily harm, they are relevant so far as they re-affirm the importance of general deterrence in relation to section 52A offences. 20   This Court has clearly underlined the concern which the community has in relation to offences involving the injury to persons by those who choose to drive while drunk. It is proper that sentencing Judges respect what this Court has said. They do no favour to accused persons appearing before them when they give lenient sentences that ignore the guidelines in Jurisic. 21   By his silence in relation to the important element of sentencing concerning general deterrence, it appears to me that his Honour did fall into an error of law. It also appears to me, in the way in which the subjective circumstances were taken into account, that there was further error of law. 22   It is evident that it was, because of those circumstances, that his Honour concluded that the sentence of imprisonment which he considered appropriate should be served by way of periodic detention, notwithstanding the clear direction in Jurisic that a non-custodial sentence for a section 52A offence, should be exceptional and almost invariably confined to cases involving momentary inattention and/or misjudgment. This was not a case of that kind. 23   Periodic detention has been recognised as having a strong degree of leniency built into it, and as being less severe in its denunciation of the offence, and in the message it conveys as to general deterrence - see Caradonna 2000 NSW CCA 398 at page 24. In Musumeci, Hunt CJ at CL, made the position perfectly clear when observing: In relation to dangerous driving offences (specifically in relation to those causing death, but also of relevance to cases such as the present):

"1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.

2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.

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

4. The Courts must tread warily in showing leniency for good character in such cases.

5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.

6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.

7. The statement made by this Court in relation to the previous offence of culpable driving - that it cannot be said that a full-time custodial sentence is required in every case - continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence."

24   Those observations on sentencing were approved in Howland (1999) NSW CCA 10 at 24 and in Jurisic at para 228. 25   I am driven to the conclusion his Honour gave far too much weight to the subjective circumstances, with the result that a sentence which was manifestly lenient was imposed. 26   Of the decisions identified by the Crown in which this Court has refused leave to appeal, or has dismissed appeals against sentence for similar offences since Jurisic, the most relevant, for present purposes, appear to me to be McGuiness (1999) NSW CCA 304 and Gleeson (2000) NSW CCA 101, in each of which the Court declined to interfere with minimum terms of eighteen months and additional terms of six months. 27   The consequence of the errors mentioned was to produce a sentence that was, in my view, manifestly inadequate and inconsistent with the Jurisic guideline. There was, accordingly, error calling for intervention in accordance with the principle discussed by Greg James J, in Pont (2000) NSW Court of Appeal 419. 28   These errors were compounded by an error identified by the Crown concerning the discount for the plea of guilty, and by the arithmetic error made in consequence of the finding of subjective circumstances. 29   His Honour, as I observed, allowed a discount of 25 per cent in relation to the plea of guilty, no doubt, in accordance with the guidelines announced in Thomson (2000) NSW CCA 309. However, it must not be overlooked that the guideline in Jurisic assumes that there had been a plea of guilty. As a consequence, there was a double discount for this consideration. 30   The other arithmetic error concerns the finding of special circumstances. As a result of that finding, it might have been expected that the non-parole period would have been less than 75 per cent of the full term (16.5 months) but inexplicably it was set at 18 months (82 per cent of the full term). 31   The significance of this last mentioned matter needs also to be considered in the light of the opinion of the author of the pre-sentence report, that supervision by the Probation & Parole Service of the respondent was unnecessary in this case. That was an opinion taken up by his Honour when observing that he, "did not see any necessity for parole service supervision at the expiration of the non-parole period." 32   Having regard to this finding, and to the reasons or justification as to why special circumstances might properly have been found as noted by Hunt, CJ at CL in Lett NSW CCA 27 March 1995, and in the decisions there cited, it is impossible to understand why his Honour found special circumstances at all, particularly when he considered that the case was appropriate for periodic detention, or why he thought it necessary to do other than impose a fixed term. 33   For all of those reasons I am of the view that the appeal should be allowed and the sentence below quashed. It accordingly becomes necessary to re-sentence the respondent. 34   In that regard, I think it appropriate to make some allowance for his age and also to give him full credit for the period of three months periodic detention which he has served. Having regard to the principle of double jeopardy I would propose that in lieu of the sentence below the respondent be sentenced to a period of imprisonment for 12 months, to commence from today, with a non-parole period of 9 months, similarly to commence from today and to expire on 27 August 2001. That would be the date on which the respondent would be eligible for release on parole. 35   DUNFORD J: I agree. 36   CARRUTHERS AJ: I also agree. 37   WOOD CJ AT CL: The order of the Court will be as I have proposed. The release of the respondent is directed at the expiration of the non-parole period. ----