R v Sullivan - [2004] NSWCCA 99

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v Warwick Ross SULLIVAN [2004] NSWCCA 99

FILE NUMBER(S):
60522/03

HEARING DATE(S): 14/4/04

JUDGMENT DATE: 19/05/2004

PARTIES:
Warwick Ross SULLIVAN (Applicant)
Regina

JUDGMENT OF: Tobias JA Kirby J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0197

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
S Odgers SC (Applicant)
GIO Rowling (Crown)

SOLICITORS:
R Freeman (Applicant)
S Kavanagh

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60522/03
TOBIAS JA
KIRBY J
BELL J
Wednesday 19 May 2004

REGINA v Warwick Ross SULLIVAN

Judgment

TOBIAS JA: I have had the benefit of reading in draft the respective judgments of Kirby J and Bell J. I agree with their Honours that there is no substance in Grounds of Appeal 1 and 2.
Ground of Appeal 3 is of greater concern. Bell J considers that the applicant's moral culpability was high. Kirby J has opined that it was high or even a shade beyond. Adopting the degrees of moral culpability identified by Kirby J in his fourth proposition in [10] of his judgment, my opinion is that the applicant's moral culpability bordered on worse than high.
Although the applicant fitted most of the criteria constituting the typical profile of an offender in respect of the subject offence as described by the Chief Justice in Whyte (at 284 [204]), importantly in the present case, the applicant was not a "young offender". At the time of the offence he was 36 years of age. Notwithstanding his drug and alcohol problems, he was a relatively mature man.
Furthermore, a number of the aggravating factors identified by the Chief Justice in Whyte (at 286 [216] and [217]) applied to the applicant's conduct. Both Bell J and Kirby J have referred to his degree of intoxication (which was high) (factor (iv)), his erratic driving (factor (v)) and his speeding (factor (iii)). The evidence of Ms Evans establishes that by veering onto the incorrect side of the road he potentially put others at risk (cf. factor (ii)). In my opinion the presence of these aggravating factors represents a clear abandonment of responsibility on the applicant's part.
I am conscious of the factors referred to by Kirby J in [26] of his judgment as bearing upon the level of the applicant's moral culpability. However, with respect, I cannot accede to the view expressed by his Honour that his moral culpability was relevantly diminished by the factors referred to by him in [22]. Although the applicant did not drive immediately after he stopped drinking and went to sleep, he did drive some five hours later at a time when, had he given the matter a moment's thought, he must have realised that he was still highly intoxicated and incapable of driving in a safe manner.
In the foregoing circumstances, I cannot, with respect, agree with Kirby J that it was not open to the sentencing judge to adopt, as his Honour suggests he did, a starting point sentence of or exceeding 4½ years given the degree of moral culpability of the applicant to which I have referred. For the reasons given by Bell J, I agree that it has not been demonstrated that the sentence imposed by the sentencing judge exceeded a sound exercise of his sentencing discretion.
I therefore agree with the orders proposed by Bell J.
KIRBY J: I have had the advantage of reading the judgment of Bell J in draft. Her Honour deals with the three grounds of appeal, namely:
Ground 1:The sentencing judge failed to give a proper discount for the plea of guilty.
Ground 2:The sentencing judge failed to give a proper discount for quasi-custody.
Ground 3: The sentence imposed was manifestly excessive.
I agree, for the reasons her Honour states, that there is no substance in grounds 1 and 2. I have, however, formed the view that the sentence was manifestly excessive and that error has therefore been demonstrated.
The Guideline Judgments for s52A Crimes Act offences.
Mr Sullivan pleaded guilty to dangerous driving occasioning death, whilst under the influence of alcohol, an offence against s52A Crimes Act 1900. The maximum penalty is 10 years imprisonment. It is an offence in respect of which there are, of course, guideline judgments: R v Jurisic (1998) 45 NSWLR 209; and R v Whyte (2002) 55 NSWLR 252. The following propositions can be stated, emerging from those judgments, either expressly or by implication:

First, the offence of dangerous driving under s52A of the Crimes Act falls within a class of offence where deterrence is of great importance. The good character of an offender is, relatively, of less importance.
Second, the typical profile of an offender in respect of this offence was described by the Chief Justice in R v Whyte in these terms: (at 284 para 204)
"(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."
A departure from that profile may, in a particular case, require an adjustment of the sentence.
Third, the touchstone in determining the length of the sentence is the moral culpability of the offender. Can it be inferred that there was an abandonment of responsibility?
Fourth, in determining moral culpability, the Court should have regard to the nature of the offence and the circumstances in which it was committed (cf R v Way [2004] NSWCCA 131), recognising that there are degrees of culpability ranging from:
Low.
High.
Worse than high.
Fifth, there are a number of aggravating factors which bear upon the moral culpability of the offender: (R v Whyte (supra) at 286 paras 216 and 217)
"(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.
(x)           Degree of sleep deprivation.
(xi)          Failing to stop."
Sixth, ordinarily one would expect a custodial sentence for an offence under s52A. A non custodial sentence is exceptional and almost invariably confined to cases involving "momentary inattention or misjudgment" (where the moral culpability is low).
Seventh, where there is present to a material degree an aggravating factor involving the conduct of the offender, a custodial sentence of less than:
3 years (where death is caused); or
2 years (where serious bodily injury is caused)
will be exceptional (R v Whyte (supra) at 286 para 215).
Eighth, the period of 2 or 3 years should be regarded as the starting point once the threshold of abandonment of responsibility has been reached. Additional aggravating factors, or their increased intensity, will signify greater moral responsibility and will determine the actual sentence (cf R v Whyte (supra) at 286 para 228).
Ninth, that is not to say that the subjective circumstances of the offender are irrelevant. The sentence, in the usual way, will be the product of both the objective culpability of the offender and his or her subjective case.
Adjustments to sentence.

Before seeking to apply these principles, it is important to determine the starting point of the sentencing Judge. His Honour said that in fixing the sentence (a term of imprisonment of 3-1/2 years) he took account of two matters in respect of which Mr Sullivan was entitled to some form of discount, namely:

the plea of guilty at an early stage, and
the quasi-custody whilst undergoing rehabilitation.
Neither aspect was quantified. In respect to the plea of guilty, it was entered in the Local Court on 4 March 2003. His Honour clearly regarded it as an early plea (ROS 3). Conventionally, a discount of 25% is given in such circumstances, although sometimes 20%. Here, as remarked in R v Whyte ((supra) at 284, para 204) the utilitarian value of such a plea may be limited. Ordinarily such a trial would be likely to be short. Whyte, however, presupposed a late plea for which a discount of 10% would be appropriate. Mr Sullivan, therefore, could expect a discount for the difference between the 25% (or 20%) and 10%.

As to the time spent in rehabilitation, Mr Sullivan was a patient at the Northside Clinic for three weeks from 19 August 2002. He then entered the residential programme at Benelong Haven where he remained for ten months (9.9.02 to 11.7.03). The total time spent undergoing rehabilitation was almost eleven months. Bell J [66] referring to R v Cartwright (1989) 17 NSWLR 243 and R v Eastway (unreported, CCA (NSW), 19.5.92) identified the approach taken in such circumstances. Credit of between 50% and 75% is usually given for the time so spent.
Mathematically, making these adjustments, the starting point must have exceeded 4-1/2 years. Was it open to his Honour to view the case in that way?
The background of Mr Sullivan.
Before turning to the offence, it is instructive to examine Mr Sullivan's background. He was born on 12 May 1966. He was 37 years at the time of this offence. Both his parents suffered from mental illness. Both underwent deep sleep therapy, which has since been discredited, which may well have made their problems worse. His parents separated when he was a young child. His mother was given sole custody of both the applicant and his younger sister. Their father, at that stage, took no interest.
Mr Sullivan's mother suffered from serious depression. She abused alcohol and was addicted to prescription drugs. She was emotionally unstable and periodically violent. Mr Sullivan's sister described aspects of their upbringing in these terms: (T5/6)
"A.         On a number of occasions I couldn't begin to remember the number but on countless occasions my mother would flog him or whip him with an electrical cord. She'd make me go and get the cord and she would flog him and he would to my surprise he never fought back, never once raised his hand. He would sometimes try and block his body but he never actually fought back.
Q.           Did your mother besides exhibiting violence towards young Warwick, did she ever do things in front of both of you that are abnormal?
A.           She would self mutilate. On a number of occasions she would take sharp instruments and push them into her body which was very distressing. Again my brother being older would often try and intervene, it was very difficult to physically stop an adult when you're a child but he would try and intervene and take things off her, take them out of her hands which wasn't successful. On again countless occasions if my brother or I did something that was remotely irritating or annoying she'd run to her bedroom and grab handfuls of sedatives and other tablets and start saying things like 'that's it I'm going to kill myself', saying to my brother 'you've ruined my life I'm going to kill myself'. And this was over things like a cup of spilled milk or the television being too loud.
Q.           Did she in fact from time to time take the pills and become comatose?
A.           Yes she did."
Both children developed problems of various sorts. Mr Sullivan left home at the age of fifteen years. He abused both alcohol and drugs. Remarkably, he undertook and completed an apprenticeship as an electrician. His sister became a solicitor. She now works in children's courts with children of dysfunctional families.
It is also remarkable that Mr Sullivan had few convictions, notwithstanding his abuse of drugs and alcohol. However, unfortunately, at the age of 30, he became addicted to heroin. He endeavoured to address that problem by entering the methadone programme. Shortly before these events, he asked his father to stay with him at his flat to provide support. His father gave the following evidence before the sentencing Judge: (T16)
"Q. Prior to the accident had Warwick reached out to you for some reason?
A. Yes he was trying to reduce down off his methadone and he was finding that difficult, he wanted me to be with him to give him support."
Unfortunately his father was obliged to return to his own flat in the week before the accident (T17). It was in these circumstances that Mr Sullivan relapsed.
The Incident.
The circumstances leading to the collision were described by Ms Valeria Evans, whose statement is set out by Bell J [77]. The journey between Mr Sullivan's home and the point of impact was relatively short. However, it is plain that he drove erratically, and at a speed unsuitable in a suburban street. He drove at 60 kph. The speed limit was 50 kph. He turned without indicating. He veered onto the incorrect side of the road before correcting. His tyres screeched. He either did not see, or made no allowance for, a speed hump. He saw Mr Shanahan, the deceased, and braked, but was not able to stop. His blood alcohol was 0.14.
Mr Sullivan began drinking at 4.00 pm the day before the incident. He was still awake, and obviously drunk, at 6.15 am the next morning. The police came to his home at that time because of a neighbour's complaint about noise. Mr Sullivan then went to bed. Before doing so, he rang his father. He told him of the visit by the police. His father then came to his home at about 9.00 am. His father knew that Mr Sullivan needed a prescription for methadone and that the doctor's surgery closed at noon. He allowed his son to sleep until 11.05 am when he woke him. He gave him a cup of coffee. The accident occurred at 11.40 am.
In terms of the aggravating factors identified (supra para 3), at least two were present to a material degree. First, the blood alcohol level at 0.14 was just below the limit (0.15) of an aggravated form of this offence, where the maximum penalty is increased to 14 years imprisonment (s52A(2)). According to the expert evidence of Ms Judith Perl, a pharmacologist, a blood alcohol concentration of 0.135 grams per 100 ml would significantly impair a person's driving ability. Secondly, the erratic driving (of which the speed, marginally above the speed limit, was an element) was a further aggravating feature.
Moral culpability.
However, in determining the applicant's moral culpability, it is important that these matters be seen in context. First, but for the intrusion of his father, Mr Sullivan would not have undertaken the journey. He would, no doubt, have missed out on his methadone. However, it may be assumed that he would have slept on. The fact that he was roused from sleep, given coffee, and urged to go by his father, to my mind diminishes his moral culpability.
Secondly, this is not a case of a person binge drinking and then driving his car. The applicant went to sleep at 6.15 am. He slept five hours until he was woken up by his father. As mentioned, the doctor's surgery closed at noon. The accident happened at 11.40 am. It may be inferred that he was travelling at 60 kph because he believed that time was short and the surgery may close. When interviewed by the police at the scene, Mr Sullivan responded as follows:
"I said, 'Have you had any alcohol today?'
The defendant said, 'No, none.'"
A breath test was then undertaken. There was a reading of 0.130 which was disclosed to Mr Sullivan. He responded with these words:
"I must still be over from last night".
Bell J said that it must have been apparent to Mr Sullivan that he remained considerably affected by the alcohol he had consumed a matter or hours earlier. However, Mr Sullivan had a long history of alcohol abuse. No doubt he had developed some tolerance. His father did not give evidence that he appeared to be affected by alcohol. It may be inferred, since he encouraged his son to make the journey, that the outward signs were not obvious. Having said that, I accept that Mr Sullivan would have recognised that he was, to some degree, affected by alcohol.
Thirdly, in determining Mr Sullivan's moral culpability, it is also relevant to examine why he drank, and the steps he had taken to safeguard against relapse (cf R v Henry (1999) 46 NSWLR 346, per Wood CJ at CL at 397/8). There is a difference between someone drinking for pleasure, who then gets drunk and drives, and the circumstances in this case. Mr Sullivan was seen by Dr Gilandas after the accident. He was diagnosed with a Major Depressive Disorder. He had not received treatment for that disorder. It was Dr Gilandas' view that his resort to alcohol (and drugs) could be explained upon the following basis: (Ex 4)
"His history of drug/alcohol abuse is a neurotic and maladaptive mode of self-medicating his depression."
Mr Sullivan had recognised that he was vulnerable to relapse whilst endeavouring to withdraw from methadone. He had therefore arranged for his father to stay with him. Unfortunately his father was not able to remain indefinitely, and so it was that Mr Sullivan relapsed.
Subjective case.
Counsel for Mr Sullivan also pointed to two matters which, in his submission, should further moderate any penalty imposed. The first was the depth of Mr Sullivan's remorse. He wrote a letter of apology to the family of the deceased. It was given to the Director of Public Prosecutions to pass on to them. Dr Gilandas made the following comment in his report:
"He presented in a withdrawn and remorseful manner, as if he felt 'crushed' by the death of the pedestrian hit by his car."
The Probation and Parole report included the following comment on Mr Sullivan's attitude:
"When discussing the offence, Mr Sullivan was visibly distressed and, at times, incapable of articulating his thoughts, due to his palpable state of anguish. He expressed feelings of extreme guilt particularly concerning the recklessness of his behaviour and the resulting death of the victim."
Dr John Nolan, the Director of Benelong Haven, the rehabilitation centre where Mr Sullivan underwent rehabilitation, said this:
"He has expressed deep regret for the accidental death. He has used this tragedy as a trigger to rehabilitate his life, change his way of thinking and help others in the process. He is more positive than ever before."
The second issue is that raised by Dr Nolan in the passage above. Mr Sullivan, after this tragedy, made an extraordinary effort to bring about his own rehabilitation. His Honour rightly said that he had made "giant steps in his own rehabilitation". He had so impressed the staff of Benelong Haven that he had been offered a position with the rehabilitation centre as a full time employee. Dr Nolan said this, in a passage quoted by the sentencing Judge: (ROS 4)
"Warwick's current drinking status is nil. In a residential treatment centre, it may be that such status is artificial. However, the client still makes an individual choice to maintain sobriety. In Warwick's case, he has reported that this last ten months is the longest time he has ever spent sober in over twenty years. Warwick is still learning about addiction and has stated that he has become more aware of alcohol and drug issues, even in the last two months. He has stated that he is happier than he has ever been in recent months and that this is due to living free of alcohol and drug use. His current sober lifestyle has allowed him to understand that he stood still emotionally for many years during the time of his addictive behaviour. Warwick is able to connect to others with good interpersonal skills and compassion. He has matured as an individual and he has given back to this program selflessly and with good humour. In summary, Mr Sullivan has successfully attended to this treatment program and has given back to the aims of the centre by willingly connecting to the newer residents. He has voluntarily placed himself into a strict quasi-custodial regime and has demonstrated to all aspects of the program whilst accepting the residential rules. He has demonstrated a commitment to a future sober life. Most of all, Warwick's entry to this program has provided him with, firstly, a sober attitude. Secondly, it has provided him with the ability to be empathic towards others. It is possible that Warwick's presence in the program has assisted many others to stay sober and live a constructive life. In consideration of Mr Sullivan's remarkable change and contribution to this centre's program, it is felt that Mr Sullivan's continuing productive support would greatly benefit current and future clients. It is for this reason that an employed position has been identified to suit the merging skills of Mr Sullivan. It is submitted that consideration be given to this proposal."

Mr Sullivan, it was submitted, was at the cross roads (cf R v Molina (1984) 13 A Crim R 76). He had managed to "turn his life around". He was in a position to do good for others who suffered from the same affliction.
The applicant's submissions.
It was submitted, in these circumstances, that the moral culpability of Mr Sullivan was low to moderate, rather than high. He should, upon the basis of the guidelines, have been given a sentence of less than three years rather than a term (before adjustments) half as much again as that appropriate for a person of high moral culpability (4-1/2 years).
The moral culpability of Mr Sullivan, in my view, was certainly not low, or even moderate. Notwithstanding the matters in mitigation, it remained a very serious offence. In terms of the spectrum, I would regard his moral culpability as high, or even a shade beyond. The guideline judgment suggests a term of not less than 3 years imprisonment for an offence where there is high moral culpability. That suggestion presupposes an aggravating factor present to a material degree. I do not believe it was open to his Honour, on these facts, to characterise the offence as justifying a term more than half as much again as that appropriate for an offence where there is high moral culpability. I therefore believe that a sentence exceeding 4-1/2 years was excessive. To my mind error has been demonstrated. There is a need to resentence.
Resentence.
I would find moral culpability in accordance with these reasons. I would adjust the sentence to reflect the early plea and an appropriate discount for quasi-custody. A term of imprisonment of 2-1/2 years is appropriate. I would, for the same reasons as his Honour, find special circumstances.
Order.
I therefore propose the following orders.
1. Leave to appeal granted.
2. Appeal allowed.
3.The sentence of Patton DCJ of 11 July 2003 should be quashed.
4.In lieu thereof, the applicant is sentenced to a term of imprisonment of 2-1/2 years to date from 11 July 2003 and to expire on 10 January 2006, with a non parole period of 1 year to date from 11 July 2003 and to expire on 10 July 2004.

BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant by his Honour, Judge Patten (the Judge) in the Sydney District Court on 11 July 2003. On that occasion the applicant adhered to his plea of guilty, which had been entered in the Local Court, to a charge that on 5 August 2002 at Dulwich Hill he drove a motor vehicle that was involved in an impact causing the death of John Joseph Shanahan and that at the time of the impact he was under the influence of intoxicating liquor. The offence is provided for by s 52A(1) of the Crimes Act 1900 (NSW) (the Act). It carries a maximum penalty of imprisonment for ten years.
The applicant was sentenced to a term of imprisonment of three and a half years, to date from 11 July 2003 and to expire on 10 January 2007. A non-parole period of 18 months was specified. The non-parole period will expire on 10 January 2005.
The facts on which the Judge sentenced the applicant are set out in his remarks on sentence at pp 1 and 2:
“Shortly, the facts of the matter are that at about 11:40 am on 5 August 2002, the prisoner drove his vehicle in a southerly direction along Pigott Street, Dulwich Hill, at what is said to be a speed exceeding the 50 km per hour speed limit applicable. He was first observed travelling west in Denison Street. He drove over a speed hump and then accelerated harshly, resulting in smoke coming from his rear tyres. Without indicating, he turned left from Denison Street into Pigott Street and veered onto the incorrect side of the road.
He continued south in Pigott Street and, at a point approximately 30 metres west of the intersection of Pigott Street and New Canterbury Road, locked his brakes, apparently having observed a pedestrian. Nonetheless, his vehicle collided heavily with the pedestrian, Mr John Joseph Shanahan, who subsequently died as a result of the injuries he received.
Shortly afterwards, the prisoner was submitted to a roadside breath test by police officers from Marrickville, which returned a positive reading. He was arrested for the purpose of a breath analysis and was conveyed to Newtown Police Station. He said, ‘I must still be over from last night’. His breath, when analysed, returned a reading of 0.120 grams per cent (sic). He admitted to police that he had been drinking the previous day and night, he said from about 4:00 pm until 3:00 am or 4:00 am that morning. He claimed that he had two to three middis of beer and shared a bottle of red wine, but that seems to be a significant understatement. Dr Judith Perl assessed his most likely blood alcohol concentration at the time of the impact as .140, at which point she said all people would be under the influence of alcohol to the extent that driving ability would be significantly impaired.”
The applicant had a criminal record that the Judge characterised as being of a relatively minor nature consistent with the applicant’s long-standing involvement with illicit drugs. His Honour also noted that a number of offences were disclosed in the applicant’s traffic record but that none approached the seriousness of the present offence.
The applicant was aged 37 years at the date of sentence. He was a qualified electrician with a history of employment in that trade.
The Judge found that there were a number of significant subjective circumstances that were to be taken into account in the applicant’s favour. He had been raised in a dysfunctional family that was characterised by alcohol abuse and violence. Both the applicant’s parents suffered from mental illness. They separated when the applicant was aged around eight years. He lived with his mother until he was forced to leave home at the age of 15 years. Thereafter he had received somewhat intermittent support from his father.
The Judge noted the contents of a pre-sentence report as follows:
“Mr Sullivan admits to having a lengthy history of poly-substance abuse, commencing at approximately fourteen years of age when he began smoking cannabis. He then progressed to using amphetamines in his twenties and reflected that in conjunction with his abuse of illicit substances, alcohol has always been a constant issue in his life. He indicated that he commenced using heroin when he was in his early thirties. At the time of the offence, Mr Sullivan stated he was abusing alcohol on a daily basis and was also being prescribed methadone in an attempt to control his heroin habit.”
A report prepared by Dr Gilandas, a psychologist, was tendered on the applicant’s behalf. Dr Gilandas set out details of the applicant’s history, including that both his parents had been admitted to the Chelmsford Private Hospital where they had undergone deep-sleep therapy. This had taken place when the applicant was aged between six and eight years. It is to be noted that Dr Gilandis had assessed the applicant’s parents some years earlier in connection with their treatment at the Chelmsford Private Hospital. He described the applicant’s mother as an emotionally unstable woman. She had attempted suicide on occasions when the applicant, who was then a child, had been present. She had been both verbally and emotionally abusive towards him.
Dr Gilandas examined the applicant in May 2003 and found him to be suffering from a major depressive disorder and moderate anxiety. In Dr Gilandas’ opinion the applicant’s use of drugs and alcohol was a form of self-medication in order to cope with his depression. His underlying emotional problems were linked to the history of inadequate parenting. The psychiatric illnesses suffered by the applicant’s parents had occurred at a critical period in his childhood development. In Dr Gilandas’ opinion the applicant required psychiatric treatment for his depression and in order to maintain his momentum towards recovery from drug and alcohol abuse. For these reasons he considered that the applicant would profit by being treated in a therapeutic setting rather than by the imposition of a custodial sentence.
The Judge found that the applicant had taken very significant measures towards his rehabilitation since the commission of the offence. Within days of it he had been admitted to the Northside Clinic where he remained for three weeks. Thereafter he was accepted into the residential drug and alcohol rehabilitation program provided by Benelong’s Haven Ltd at Kinchela Creek.
A report from John Nolan, a psychologist employed at Benelong’s Haven, detailed the applicant’s favourable progress during the ten months that he had been a resident of the program. Mr Nolan stated that the applicant had been sober throughout this period. The applicant described himself as being happier than he had ever been. He demonstrated good interpersonal skills with others on the program and had shown a capacity for compassion. He had accepted the residential rules of the program and possessed a commitment to a future sober life. Mr Nolan referred to a “remarkable change” in him and spoke very favourably of his contribution to the program. He had been offered employment as a community services worker with Benelong’s Haven.
Mr James Carrol, a director of Benelong’s Haven Ltd, gave oral evidence. His account of the applicant’s success on the program was consistent with the contents of Mr Nolan’s report.
The applicant’s father gave evidence. He said that prior to the accident the applicant, who was on the methadone program, had been attempting to reduce his dosage. The applicant asked him to move into his apartment to help him get through this difficult period. He had done so. On the weekend prior to the accident he had returned to his own home to attend to some personal business. On Sunday 4 August the applicant telephoned him and told him that the police had called in connection with some noise complaints. Mr Sullivan snr contacted the police and was informed that police officers had attended the applicant’s apartment and spoken to him about a noise complaint. Mr Sullivan snr returned to the apartment at around 9.00 am on 5 August. The applicant was sound asleep. Mr Sullivan snr knew that the applicant needed a fresh prescription for methadone and that the doctor’s rooms closed at 12 midday. At around 11:05 am he woke the applicant, gave him a cup of coffee and reminded him of the need to collect the prescription. The applicant left in a hurry to do so.

The sentence is challenged on three grounds:
Ground 1
The sentencing judge failed to give a proper discount for the plea of guilty.
The applicant entered his plea of guilty in the Local Court. He submits that he was entitled to a discount, reflecting the utilitarian value of the plea, in the order of 20–25%.
The Judge observed at the commencement of his remarks that the applicant had adhered to the plea of guilty that he had entered in the Local Court. His Honour went on to say:
“The prisoner is entitled to the benefit of his plea of guilty at an early opportunity, thus indicating some degree of contrition and providing a utilitarian benefit to the State. Nonetheless the case against him was strong.” (ROS 3.2)
His Honour again referred to the applicant’s plea of guilty at the conclusion of his remarks:
“I will take into account, apart from the discount for the plea of guilty, the fact that he has been in a quasi-custodial position for the last ten months and the other circumstances. But being as lenient as I can, I am of the opinion that only a substantial sentence of full-time custody will meet the circumstances of this matter.” (ROS 6.5).
The applicant acknowledged that the failure to quantify the discount for the utilitarian value of a plea of guilty does not demonstrate error: R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 per Spigelman CJ at 419 [160]. Rather, the applicant contended that the failure to quantify the discount to be allowed for an early plea in a case which involves the application of the guideline judgment in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 does amount to error.

In Thomson Spigelman CJ at 419 [161] observed:
“In each of R v Jurisic (1998) 45 NSWLR 209, (at 231) and R v Henry (1999) 46 NSWLR 346 (at 380 [162]), the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for the purposes of the application of the guideline promulgated in these reasons.”
The typical case contemplated by the guideline in Whyte is one in which the offender has entered a plea of guilty of limited utilitarian value: per Spigelman CJ at 284 [204].

The applicant contends that in a case to which the Whyte guideline judgment applies, the failure to specify the amount by which the sentence has been discounted to reflect the early plea leaves the offender not knowing whether he or she has, in truth, received any benefit for a circumstance that differentiates his or her case from the typical case.

Allied to this challenge was a submission that the Judge’s remarks that I have set out at paragraph [16] above, admitted of the inference that he considered the utilitarian value of the plea to have been reduced by the strength of the Crown case. Such an approach would evidence error: R v Gorgievski [2002] NSWCCA 45; 129 A Crim R 89. To avoid the inference of error from being drawn, it was submitted that the Judge should have quantified the discount.
The reference to the strength of the Crown case in the passage that I have set out is ambiguous. The strength of the Crown case is relevant to the assessment of the extent to which a plea of guilty evidences contrition. In the preceding sentence the Judge referred to both the applicant’s contrition as demonstrated by the plea and to its utilitarian benefit. His Honour’s remarks were delivered ex tempore. While it may have been preferable for his Honour to have explained the significance that he attached to the assessment of the strength of the Crown case I do not consider that the remark evidences error. It was not submitted that it did. Rather, it was put that the ambiguity gave rise to another reason for requiring that the discount be quantified. It does not seem to me that quantifying the discount would necessarily expose the error if that were the approach that the Judge took.
Spigelman CJ explained in Thomson why it is generally desirable for sentencing judges to quantify the discount to be allowed for the utilitarian value of a plea of guilty. However the failure to do so does not amount to error. The error lies in the failure to give weight to the plea of guilty (save in a case in which the protection of the public or the objective gravity of the offence does not admit of discounting the sentence): Thomson at 418 and 419, [157], [158] and [160]. A case may depart from the typical case described in a guideline judgment in a number of respects. The timing of the plea may be one. The requirement that the judge give reasons for sentence does not impose an obligation to explain each respect in which he or she considers the case to depart from the typical case posited in a guideline judgment. It is sufficient for the judge to take the guideline judgment into account in the way explained in Whyte: per Spigelman CJ at [232].
Nothing in the reasoning in Thomson dictates that a sentencing judge quantify the discount to be allowed for an early plea in a case to which the guideline judgment in Whyte has application.

The question of whether the Judge erred in imposing a sentence of three and a half years in a case in which, unlike the typical case contemplated by the guideline in Whyte, the applicant had entered an early plea of guilty is raised by Ground 3, which challenges the sentence as one that was manifestly excessive.
Ground 1 should be rejected.
Ground 2
The sentencing judge failed to give a proper discount for quasi-custody.
The applicant complains that the Judge did not quantify a discount to reflect the circumstance that he had spent ten months in a residential drug and alcohol rehabilitation program.
In the course of his reasons the Judge said this:
“It is plain that his residence at the Benelong Haven has been of a quasi-custodial nature in that his movements have been restricted for about the last ten months, something that I can take into consideration.” (ROS at 5).
At the conclusion of his remarks on sentence the Judge returned to the circumstance that the applicant had been in a quasi-custodial situation for the past ten months.
The ground as drafted asserts a failure to give a proper discount for quasi-custody. In written submissions it was put this way:
“In the present case, for the same reasons advanced in respect of the plea of guilty, the sentencing judge should have indicated the amount of the discount given for this consideration. The quasi-custody was a significant factor differentiating the present case from the standard case, in a way favourable to the applicant. The applicant received a sentence longer than that indicated for the standard case. The applicant was entitled to know what discount for the quasi-custody he was receiving.” (WS [10])
The applicant relied on R v Cartwright (1989) 17 NSWLR 243 at 258–9. In that case the Court took into account a period of eight months spent by the applicant under the supervision of the Australian Federal Police while he was assisting them with their inquiries. His living situation was described as one of quasi-custody and he was given credit for 75% of that period. Reliance was also placed on R v Eastway (unreported) Court of Criminal Appeal, 19 May 1992. The respondent to the Crown appeal in that case had spent a period of 14 months at Odyssey House. The primary judge allowed approximately a 50% deduction in recognition of the time spent at Odyssey House. The Court did not consider that the judge erred in approaching the matter on that basis and the Crown appeal was dismissed.
Neither Cartwright nor Eastway require that a sentencing judge quantify a discount in relation to the period spent by an offender in a residential treatment program or the like. The circumstance that the applicant had spent a period of ten months in what the Judge characterised as a quasi-custodial position was a factor that he took into account. The ground, in so far as it contends that his Honour failed to give a proper discount for quasi-custody, again, seems to me to come down to a challenge that when that factor, together with the other factors, is taken into account the sentence is one that is manifestly excessive.
Ground 2 should be rejected.
Ground 3 – The sentence imposed was manifestly excessive

In written submissions the applicant contended that by and large his case fell within the scope of the “typical case” considered in Whyte at [204]. The submissions went on to contend that:
“As regards possible aggravating factors, it is true that there was excessive speed in the circumstances, somewhat reckless driving and a considerable degree of intoxication. However, it is submitted that, when considering the question of degree, these were not such as to take the present out of the ‘typical case’.
There were present in this case significant additional factors (other than the ‘typical case’ factors and the matters referred to in paragraph 12) which supported a non-custodial sentence or, at the very least, a sentence less than that indicated by the guideline (and thus significantly less than the sentence actually imposed):
(a) The moral culpability of the applicant was mitigated to some extent by the fact that the applicant had not been drinking on the morning of the offence (as testified to by his father: T 18-19) but on the previous night. Further, his decision to drive was motivated by a powerful need to obtain a prescription for methadone (T 18.35).
(b) The applicant had a long history of poly-substance abuse, commencing at approximately fourteen years of age. It is clear that this was directly related to the extremely traumatic circumstances of his childhood: see PSR at pp 2-3; evidence of Joanne Sullivan at T 4-7 on 11.7.03; RS 3-4. He used drugs throughout his life to cope with emotional adversity. Dr Gilandas concluded that he was suffering from a major depressive disorder at the time of the commission of the offence (report of Dr Gilandas at 4-5). He concluded that ‘his history of drugs/alcohol abuse is a neurotic and maladaptive mode of self-medicating his depression’ (at 5.4). At the time of the offence he had addressed his heroin addiction by going on a methadone program but had not addressed his drinking. However, after the offence he had taken ‘giant steps in his rehabilitation’ (RS 4.2). Demonstrated rehabilitation of a drug/alcohol addicted offender is a significant mitigating factors: R v Hill (unrep, NSWCCA, 28.5.99); Griggs (2002) 111 A Crim R 233; Ramos (2000) 112 A Crim R 339; R v Rai [2002] NSWCCA 506.
(c) The present is a ‘cross roads’ case (Molina (1984) 13 A Crim R 76). The applicant has turned his life around and has been serving the public interest by assisting other drug and alcohol addicted persons to turn their lives around. Putting him in prison is contrary to the public welfare, notwithstanding the principles of general deterrence supporting such an outcome”.

On the hearing of the appeal counsel contended that the Judge had been wrong to approach the matter upon the footing that the applicant’s moral culpability was high for the purposes of the application of the Whyte guideline at [229].
The Judge did not refer, in terms, to the Whyte guideline judgment. What he said was this:
“In those circumstances, Mr Waterstreet, who appeared for the prisoner, submitted that something other than full-time custody could meet the circumstances of the matter. That is, having regard to what Mr Waterstreet described as his extraordinary background and having regard to what he has done to rehabilitate himself since the offence. However, I find myself unable to agree with Mr Waterstreet’s submission that his culpability is not so high as to warrant full-time custody.
The Court must obviously be sympathetic to the alcohol addiction and the drug addiction which had plagued the prisoner for so many years but, on the other hand, on the night before this tragedy, he had been on a drinking binge. He had only a few hours sleep, his blood alcohol reading was high and his driving over apparently a comparatively short distance was appalling.
The Crown submits that only a sentence of full-time custody will meet the circumstances of the case and, much as I regret having to impose a custodial sentence upon a man in these circumstances, I am satisfied on the authorities that my duty to the community requires me to do so.”
Before turning to the challenge that counsel developed on the hearing of the application it is appropriate to refer to the evidence concerning the applicant’s drinking behaviour in the hours leading up to the offence and to the quality of his driving.
The applicant told the police at the time of his arrest that he had consumed two to three middies of beer and shared a bottle of wine during the period between 4:00 pm on the afternoon of 4 August and around 3:00 am or 4:00 am the following morning.
Dr Perl, a pharmacologist, prepared a report based on the information supplied by the applicant but excluding the stated quantity of alcohol. She said that the applicant’s blood alcohol concentration at the time of the collision was most likely to have been of the order of 0.140 grams per 100 millilitres. She said that a blood alcohol concentration of 0.135 grams per 100 millilitres or above is such that all people would be under the influence of alcohol to the extent that driving ability would be significantly impaired.
Constable Mark Gillard attended the applicant’s premises at 6:15 am on Monday 5 August 2002 in response to a complaint about loud music and banging noises. He spoke with the applicant who smelt strongly of alcohol. Constable Gillard noted that the applicant’s speech was slow and slurred and that he was swaying backwards and forwards. Constable Gillard formed the opinion that the applicant was “well affected” by alcohol. There was spilt red wine on some papers that were lying on a coffee table and a strong smell of alcohol in the apartment. Broken glass was strewn across the floor and the applicant was walking around in bare feet. He told Constable Gillard that he had been drinking some red wine and that he was now going to go to bed.

Constable Gillard attended the scene of the fatal collision later that morning. He immediately recognised the applicant as the person he had spoken to earlier that day. He noted that the applicant’s eyes were blood shot and he could smell stale alcohol on his breath.
Valerie Evans was a witness to the applicant’s course of driving in the period immediately preceding the fatal collision. In a statement dated 12 August 2002 she gave this account:
“About 11:30 am on Monday 5 August 2002, I was sitting in my car, a silver Nissan Pintara registration number AAO-02S. My car was parked opposite my house, against the northern curb facing east. I was reading my street directory at the time, as I was looking for a location in Leichhardt. When all of a sudden I heard the screeching of tyres. I looked up and couldn’t see where the noise was coming from, so I put the street directory away and prepared to pull out of my parking spot.
I began to drive east along Denison Street and indicated to turn right as I was approaching Pigott Street, which I was intending on turning into. At this stage I again heard the screeching of tyres. I noticed that this noise was coming from an old fashioned aqua coloured car. There was also smoke coming from the rear tyres of this car. The old fashioned car was travelling west along Denison Street towards me, and travelling very fast. I would estimate the speed of this car to be about 60 km per hour in the 50 km per hour zone. This car had just driven over a speed hump and then accelerated harshly, which resulted in smoke coming from his rear tyres.
The old fashioned car continued west along Denison Street and then without any warning turned left into Pigott Street. This car did not make any attempt to reduce his speed. The car maintained his speed of approximately 60 km per hour whilst turning left. The car veered onto the incorrect side of the road and drove straight over a metal roundabout (silent cop) whilst turning left into Pigott Street. I then turned right into Pigott Street, directly behind his car.
I could not understand why this vehicle was driving so fast and driving so recklessly. I have never witnessed anyone driving so erratically before, I was very shocked. The car tyres screeched again and smoke came from the rear tyres of the car as he drove over the metal roundabout (silent cop) and accelerated further.
The old fashioned car had his right blinker on almost as soon as he was driving south on Pigott Street. I thought this was strange as his vehicle was accelerating and not slowing as if to turn into a street or driveway.
I was preparing to turn left into the Boulevard and heard the screeching of tyres again. I looked and saw the old fashioned car about twenty metres ahead of my car, smoke was coming from the tyres of this car, as a result of this sudden braking. At this point I witnessed the car impact with a gentleman who was using a walking stick and crossing Pigott Street. This gentleman was crossing from the eastern curb to the western curb and was about halfway.
Ms Evans later spoke with the applicant at the scene. She observed that his appearance was dishevelled, the fly of his trousers was completely down.
Counsel submitted that the applicant’s level of moral culpability was properly categorised as being low when consideration was paid to his mental state and to the circumstance that he had been roused from sleep and urged by his father to go and collect his methadone. His dependence on methadone was the product of his history of addiction and that, in turn, was bound up with his severely disturbed childhood.
In R v Jurisic (1998) 45 NSWLR 209 Spigelman CJ reviewed a number of authorities dealing with driving offences comparable to those provided by s 52A(1) of the Act. His Honour distilled a list of circumstances of aggravation derived from that survey and promulgated a guideline in these terms:
“1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement.
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.
I realised 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 … 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.” (At 231 E-G)
In Whyte the guideline formulated in Jurisic was reviewed and reformulated in a manner that emphasised its non-prescriptive quality. Spigelman CJ set out the list of aggravating factors that he had identified in Jurisic, adding to it two additional factors and amending one factor by the addition of another element. The list of aggravating factors contained in Whyte at [216] and [217] is 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 or aggressive 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.
(x) Degree of sleep deprivation.
(xi) Failing to stop.”
Spigelman CJ said in Whyte:
“[228] In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion.
[229] 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) and two years (in the case of grievous bodily harm) would not generally be appropriate.’
[230] In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.”
The applicant fell asleep some time after 6:15 am on Monday 5 August 2002 after a sustained drinking binge. He was roused some four to five hours later and encouraged by his father to go and collect his methadone. He was a man of 36 years of age. It must have been apparent to him that he remained considerably affected by the alcohol he had consumed a matter of hours earlier. The evidence of Dr Perl in combination with the statement of Constable Gillard point to such a conclusion.
There were present to a significant degree a number of the aggravating factors to which Whyte directs attention including that the applicant was speeding in a suburban street, that he was driving erratically and that he was intoxicated at the time of the collision. The Judge’s finding that the applicant’s culpability was high is one that was open.

The guideline is a “guide” or “check” and the sentence to be imposed in a particular case under s 52A(1) is to be determined by the exercise of the sentencing discretion taking into account the factors that the court is required to take into account under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW): Whyte at [232]. Spigelman CJ noted at paragraph [233] that the guideline focuses attention on the objective circumstances of the offence and that the subjective circumstances of the offender also require consideration.
Counsel’s submission that the Judge erred in that he paid insufficient regard to the applicant’s mental condition and to the causal relationship between his disturbed upbringing, history of drug and alcohol addiction, and his conduct in driving the vehicle on this occasion is a difficult one to make good. Judges are required in sentencing for offences under s 52A(1) to place emphasis on general deterrence. This explains why considerations such as youth and prior good character are accorded less weight in sentencing for this offence than for other types of offences: Jurisic; Whyte; R v Musumeci (unreported) Court of Criminal Appeal, 30 October 1997. Hunt CJ at CL in Musumeci observed that the real substance of an offence of this description is not merely the dangerous driving but the dangerous driving in association with the taking of a human life. His Honour said:
“… 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.”
I am not persuaded that the Judge erred in not according greater weight to the evidence of the applicant’s mental condition and to the causal connection between his drug dependence and the offence. It is clear that the Judge took these matters into account. They are reflected in the specification of the relatively short non-parole period. The structure of the sentence is designed to make provision for the applicant’s rehabilitation while according appropriate weight to the objective circumstances of the offence.

In the course of submissions counsel argued that the sentence imposed on the applicant was greater than that promulgated in the Whyte guideline. That does not seem to me to be an apt way to characterise it. The guideline speaks in terms of a sentence of less than three years being not generally appropriate in a case in which the offender’s morally culpability for the offence is assessed as high.

Taking into account that the applicant entered his plea of guilty at an early stage and that he had spent a period close to 11 months in a residential drug and alcohol rehabilitation program, I am not persuaded that the sentence of three and a half years with a non-parole period of 18 months can be said to be one that falls outside the range of discretion.
Ground 3 should be rejected.
For these reasons I propose that the applicant be granted leave to appeal but that the appeal be dismissed.
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LAST UPDATED: 19/05/2004