R v Scott

[1999] NSWCCA 233

CITATION:

Regina v Stephen Joseph SCOTT [1999] NSWCCA 233

FILE NUMBER(S):

CCA 60774 of 1998

HEARING DATE(S):

6 August 1999

JUDGMENT DATE:

6 August 1999

PARTIES :

REGINA

v

STEPHEN JOSEPH SCOTT

JUDGMENT OF:

Levine J at 1; Carruthers AJ at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0578
LOWER COURT JUDICIAL OFFICER:	Christie DCJ

COUNSEL:	R D Ellis (Crown) P M Skinner (Applicant)
SOLICITORS:	C K Smith (Crown) T A Murphy (Applicant)
CATCHWORDS:	Criminal Law - sentencing - s 52A Crimes Act
ACTS CITED:	Crimes Act 1900 (NSW)
CASES CITED:	Regina v Jurisic (1998) 45 NSWLR 209
DECISION:	See paragraph 19

IN THE COURT
OF CRIMINAL APPEAL

60774/98

LEVINE J
CARRUTHERS AJ

FRIDAY 6 AUGUST 1999

REGINA v STEPHEN JOSEPH SCOTT

1 LEVINE J: The applicant, Mr Stephen Joseph Scott, seeks leave to appeal against the sentence imposed on him in the Sydney District Court by his Honour Judge Christie on 12 November 1998. 2 Upon the calling of the application on for hearing this morning, by reason of circumstances beyond the control of this Court and beyond the control of the applicant, Mr Scott was not present during the time Mr Skinner of counsel made his oral submissions to us in addition to the thorough written submissions that have been lodged. An opportunity has been forwarded to Mr Skinner now to confer with the applicant and one outstanding matter in relation to the applicant having surrendered his driver's licence has been clarified. 3 On 23 July 1998 the applicant pleaded guilty in the Local Court to a charge pursuant to section 52A of the Crimes Act, Dangerous Driving Occasioning Grievous Bodily Harm which carries the maximum of seven years imprisonment. The applicant was sentenced to a total term of four years imprisonment with a minimum term of two years commencing on 12 November 1998. The applicant had also been disqualified consequent upon the surrender of his licence from driving for a period of three years from 15 January 1998. 4    The facts of the matter as found by his Honour were:

“The appellant was working as a bus driver and had been for some not insignificant period of time and had finished a night shift. During the morning of the day on which his shift finished he took himself to a club at Menai where he remained until about four o’clock. During that period of time he consumed a large number of schooners of Victoria Bitter beer, he thinks somewhere perhaps six to eight. Insofar as he would have an accurate recollection, I would be prepared to accept that that might be fairly close to the mark.
He left the club obviously heavily under the influence of that beer. He travelled, before he eventually came to grief, as I shall hereafter describe, he travelled a distance along the road, on which the accident actually happened, of very nearly four kilometres and the statements of the various witnesses and the facts sheet submitted by the Crown paint a very disturbing picture of speed and dangerous driving involving, at very high speed, moving in and out of the two lanes of traffic heading in the same direction he was, tailgating other vehicles in an attempt to get around them and urge them out of his way.
Eventually where the two lanes become one lane he was attempting, it would appear on all the facts, to overtake somebody, thought better of it, came back in and clipped the back of that car which led that car, of course, to go on the wrong side of the road and collide with another car and then another car became involved in the collision also.
There was an estimate of speed given by one witness who eventually moved over to the left to let this prisoner past him, the estimate he gave was that the prisoner was driving at somewhere between 120 and 160 kilometres an hour as he went past him, that is when this particular driver pulled over to the left hand lane, in an effort to get out of his.
The facts are so disturbing that one would spend a long time up here to see a worse set of facts. One of the drivers, of course, was (sic) occasioned very serious injury, that is Mr Helmers, who was the driver of the Toyota and he suffered a fractured pelvis, a fractured spine and a punctured lung.
The breathalyser reading demonstrated 0.160 which, of course, is in the high range and demonstrative of a very significant intake of alcohol”.

5    The following can be noted from his Honour's remarks. His Honour observed the objective circumstances of the offence to be serious and disturbing and save for the intervention of mitigating factors would have, upon conviction, been an offence to which he said he would have applied a sentence of about six years. 6    Secondly, his Honour gave the applicant full credit for his plea of guilty reflecting contrition and remorse. 7    Thirdly, his Honour gave the applicant credit by way of the allocation of an extended time for the additional term by reason of special circumstances. 8    His Honour was cognisant of the applicant's driving record reflecting two charges of negligent driving, failure to stop after an accident, exceeding the speed limit on three occasions, consuming liquor on the road, not making a turn with safety, failing to stop after an accident and including, I happen to note if I have understood it correctly, one offence as a pedestrian in November 1995. 9    The applicant complains of the sentence imposed, and the submissions on his behalf have been concerned with the operation of the guideline judgment of this Court in Regina v Jurisic (1998) 45 NSWLR 209. The nub of the complaint is that the circumstances of this case did not warrant in effect the doubling of the minimum total term of two years referred to by the Chief Justice in that guideline judgment for this particular offence. 10 It is argued that the fact of the four year sentence must indicate what is said to be a doubling-up of factors taken into account in reaching the guideline threshold of two years. There is, in my view, a risk that such a concept of doubling-up would neither conform with what the Chief Justice says in the passage cited below and could detract from the proper exercise of the still quite independently existing sentencing discretion his Honour the Chief Justice recognised. 11 The passage cited from the judgment of Spigelman CJ at 231B by counsel for the applicant is as follows:

“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 s52A(7), for purposes of the two higher offences.
Para(i) and para(ii) focus on the occurrence, whereas para(iii)-para(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 s52A 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.
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 the actual sentence”.

12    The reference to and use of the word "degree" at the beginning of the cited passage, and the reference to and the use of the word "intensity" at the end of the cited passage are, to my mind, clear pointers to the independent sentencing discretion that still unquestionably is available to sentencing judges in respect of these offences. 13    The decision of the court in Jurisic is of course a guideline judgment. One thing it does not do is interfere with the sentencing judge's independent discretion based upon the objective circumstances of each case with which the particular judge is dealing. In the instant application, this observation is reinforced by the concession made for the applicant that the circumstances of this case clearly bring it within the first of the guidelines as laid down in Jurisic, namely, that there are not present such exceptional circumstances as to indicate other than a custodial sentence. It is conceded that the second so-called guideline applies: that there are circumstances of aggravation to a material degree, justifying a total sentence of at least two years. It is further conceded that it is difficult to argue against a finding that the threshold of abandoning responsibility had been reached by the applicant, given the high speed and erratic driving over the distance involved, with what must be remarked as the placing at risk of so many people, and of course the actual grievous bodily harm caused to the victim. 14    What are said to be specific errors are referred to in the submissions. There was no material available apparently that the victim suffered a "fractured spine." In the end, I am not persuaded that anything turns on that. As I understand it, that expression was in a document tendered before his Honour by consent. In any event, I do not consider the suffering of a fractured pelvis and a punctured lung on the part of the victim relevantly any less grievous bodily harm. 15    It is contended that his Honour was in error in holding that the factual situation was significantly worse than that which pertained in the case of Jurisic itself. His Honour was entitled to make a comparison of the objective facts and to come to a judgment about them. I, like counsel for the applicant, might not necessarily agree, but I do not consider that it exposes error. Rather, it reinforces the proper approach by his Honour to the determination of the seriousness of the objective facts of the case before him. I reject the specific submission that too much weight or additional weight was given to the evidence of the applicant's erratic and dangerous driving in the context of the section under which the charge was laid. 16 I expressly agree with his Honour's holding that but for the matters that mitigated the objective facts, the view was open that the circumstances would otherwise be considered as not far removed from the worst offence. 17 His Honour paid particular regard to the consideration which is of paramount importance in a case in respect of this offence, namely general deterrence. Offences under section 52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished. 18 Having considered over the adjournment and beforehand and during the course of them the submissions made by Mr Skinner for Mr Scott, I am not persuaded that there has been exposed any error at all, in my respectful view, in his Honour's remarks on sentence indicative of any mistake in the approach adopted by him with respect to the objective circumstances of the serious offence and the subjective considerations attending the applicant. 19 I propose that leave to appeal be refused. 20 CARRUTHERS AJ: I agree. 21 LEVINE J: The orders will therefore be as I propose.

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