R v Vukic
[2003] NSWCCA 13
•27 February 2003
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Vukic [2003] NSWCCA 13
FILE NUMBER(S):
60459/02
HEARING DATE(S): 18 December 2002
JUDGMENT DATE: 27/02/2003
PARTIES:
Regina v Joshua Barry Vukic
JUDGMENT OF: Adams J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/11/0539
LOWER COURT JUDICIAL OFFICER: Finnane DCJ
COUNSEL:
(A) P M Strickland
(C) E A Wilkins
SOLICITORS:
(A) Kennedys - The Law Firm
(C) S E O'Connor
CATCHWORDS:
Aggravated dangerous driving causing death - bad case but not worst type of case, need for consistency in sentencing - sentence imposed out of kilter with pattern of sentencing.
LEGISLATION CITED:
American Law Review 5:1Codes and the Arrangement of the Law (1870)
Commentaries on Equity Jurisprudence
Crimes Act 1900
Criminal Appeal Act 1912
Justices Act 1902
DECISION:
See para 75
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60459/02
ADAMS J
SMART AJ
Thursday, 27 February 2003
Joshua Barry VUKIC v REGINA (NSW)
JUDGMENT
1. ADAMS J: I agree with the judgment of Smart AJ but I wish to make some observations of my own.
It has recently been suggested that reference by sentencing judges to perceived patterns of sentencing in relation to particular offences is not only wrong but contrary to the public interest. This view is not only mistaken but is also dangerous. As Spigelman CJ said in R v Jurisic (1998) 45 NSWLR 209 at 216 –
“That there are a multiplicity of factors that need to be considered in sentencing has long been recognised. There is, however, a tension between maintaining maximum flexibility in the exercise of the discretion, on the one hand, and ensuring consistency in sentencing decisions, on the other. Inconsistency in sentencing offends the principle of equality before the law. It is itself a manifestation of injustice. It can lead to a sense of grievance amongst individuals upon whom uncharacteristically severe sentences are imposed and amongst the broader community, or victims and their families, in the case of uncharacteristically light sentences…”
Although the Chief Justice cited Griffiths v The Queen (1977) 137 CLR 293 at 326-327, per Jacobs J as an example of a similar statement of principle in the High Court of Australia, the proposition to which his Honour adverted has long been of fundamental importance in the administration of criminal justice. The most recent restatement of the principle may be found in Wong v The Queen; Leung v The Queen (2002) 76 ALJR 79, where Gleeson CJ said ([at 6]) –
“One of the legitimate objectives of such guidance [as is given by guideline judgments] is to reduce the incidence of unnecessary and inappropriate inconsistencies. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
[7]…day by day, sentencing judges, and appellate courts, are referred to sentences imposed in what are said to be comparable cases. There will often be room for argument about comparability, and about the conclusions that may be drawn from comparisons. But sentencing judges seek to bring to their difficult task, not only their personal experience (which may vary in extent) but also the collective experience of the judiciary. Communicating that collective experience is one of the responsibilities of a Court of Criminal Appeal.”
Gaudron, Gummow and Hayne JJ came to a different conclusion on the appropriate result of the appeal to the Chief Justice but did not suggest that the statement of principle which I have set out above was incorrect. Their Honours observed -
“[65] To focus on the result of a sentencing task, to the exclusion of the reasons which support the result [as the guidelines under consideration did], is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences.”
Kirby J said -
“[89] In Lowe v The Queen (1984) 1 54 CLR 606 at 610, Mason J explained that consistency in criminal punishment is ‘a fundamental element in any rational and fair system of criminal justice’. Inconsistency, he declared, ‘is calculated to lead to an erosion of public confidence in the integrity of the administration of justice’ and is ‘regarded as a badge of unfairness and unequal treatment under the law’ (ibid at 611).
He was there speaking of disparity between the sentences imposed on co-offenders. However, the principle is one of general application.”
Callinan J did not find it necessary to advert to the general principle of sentencing under present discussion.
There can be no doubt that consistency in sentencing is a basic principle of the law in this area and has been for some time. It is no mere technicality but reflects a basic notion of justice, which is obvious upon a moment’s reflection. Not only, however, is consistency important but the development of a coherent system of sentences as an attribute of a just system of criminal law is an essential element of the rule of law. Moreover, the idiosyncratic exercise of individual discretion in sentencing – very much a feature of many American jurisdictions where the legislatures have found it necessary to bring in sentencing schemes of varying kinds – will undermine public confidence for the very institutions of justice, which will inevitably degenerate into meting out capricious and arbitrary punishments. It is for this reason that the criticism that I have mentioned is not only wrong in law but also subversive of any system of law that aspires to be both just and rational and thus deserves public respect. The attempt to achieve coherence and consistency in sentencing by attempting to perceive a pattern and, where one exists, to reflect it, is a vital part of any rational judicial process aspiring to do justice. The words of that great jurist, Justice Oliver Wendell Holmes in another context may usefully be borne in mind (Codes and the Arrangement of the Law (1870) American Law Review 5:1) –
“A well settled legal doctrine embodies the work of many minds and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step.”
It has also been suggested that the influence of perceived patterns of sentencing has resulted in the lowering of sentences. This is both a logical and a factual error. First, whilst a sentence higher than the generally imposed range for a crime of the same order of culpability ought, in general, to be reduced to fit within that range, by parity of reasoning a sentence below the range should be increased. As a factual matter, as has been well demonstrated and is accepted by all persons with experience in the administration of criminal justice in this State, sentences for almost all offences, especially over the last two decades have shown a distinct overall increase.
Accordingly, I consider that Smart AJ’s approach to the propriety of the sentence under appeal by comparing the sentence in the circumstances of the instant case with those that have been passed in cases considered by the Court of Criminal Appeal to be not only justified but required. Of course, as his Honour has observed, it is essential to bear in mind that circumstances can vary widely and comparisons of culpability must therefore be made with care and common sense, applying a broad and fair measure to cases which reflect substantial similarities but also substantial differences. This is a matter of conscientious judgment and, to some extent, must be one of impression but it is both reasonable and right.
In the present case, the culpability of the applicant was, indeed, grave. However, he was neither charged with nor convicted of the crime of manslaughter although the extent of his criminal recklessness would, in my view, have fully justified such a charge. For reasons which are too obvious to state, he cannot be punished for a crime other than that for which he has been convicted. The difference between the offence of aggravated dangerous driving under s52A of the Crimes Act 1900 (the Act) and manslaughter under s24 of that Act is in part demonstrated by the fact that the former offence carries a maximum liability to imprisonment for fourteen years whilst the latter carries a maximum liability to imprisonment for twenty-five years. It is a matter of history that the offence of dangerous driving causing death, which was enacted over fifty years ago, was inserted because juries were reluctant to convict drivers of manslaughter. In Attorney General v Bindoff (1953) 53 SR (NSW) 489 the Court said (at 490) -
“The reason for the introduction of the section is well-known. Where death or grievous bodily harm is caused to a person by the negligent driving of a motor vehicle by another, it is a notorious fact that juries have been reluctant to convict of the serious crime of murder or of manslaughter or of doing grievous bodily harm, and the purpose of the section was to create a less grave offence, until then unknown to the law, in the hope and expectation that some check might thereby be placed on dangerous driving.”
There has, I think, been a considerable change in public attitudes to serious death inflicted by wrongful driving since 1951 and there can be little doubt that the reason for insertion of s52A no longer holds. This is not to say that the provision is not appropriate in many cases, but I do not think that it can now be justified upon the basis that juries would be unjustifiably reluctant to convict reckless drivers of manslaughter in defiance of their oaths. It is time, if I may respectfully say so, that indictments should be drawn with this in mind. In R v Buttsworth [1983] 1 NSWLR 658, O’Brien CJ of CrD (with whom the other members of the Court of Criminal Appeal agreed) set out extensively the basis and history of the offence of driving dangerously. As his Honour shows, there is a real distinction between the extent of culpability reflected in the offence of manslaughter as distinct from the offence of dangerous driving causing death, characterised by the differing ingredients of each crime. In some cases, of course, the distinction may be a fine one but that ought not to obscure the fundamental point that an offender can be punished only for the crime of which he or she is convicted, an obvious and fundamental notion of justice which is given authoritative expression in The Queen v de Simoni (1981) 147 CLR 383.
To my mind the applicant in this case drove with considerable recklessness and disgraceful irresponsibility, which resulted in a fatal collision which was clearly foreseeable to any reasonable person. It seems obvious that driving a motor vehicle with a blood alcohol content of not less than .172 grams of alcohol per 100 millilitres of blood, the effects of which must have been known to the applicant, constitutes gross recklessness, which is aggravated by the actual course of extremely dangerous driving that involved both excessive speed, overtaking over double yellow lines and ultimately the inability to control his vehicle around the fatal corner. The measure of punishment, however, cannot reflect a characterisation of the facts which would result in sentencing the applicant for manslaughter rather than aggravated dangerous driving, in short, to sentence the applicant for gross criminal negligence, usefully defined in Nydam v The Queen [1977] VR 430 at 445. To do otherwise would be to subvert the purpose for which s52A was inserted into the Act and procure and punish convictions for manslaughter under the guise of convictions for dangerous driving causing death. The extensive review of sentences set out in the judgment of Smart AJ does, to my mind, demonstrate a pattern of sentencing which ought to inform the sentencing range applicable to the present case. I note, in passing, that this information was not supplied by counsel to the learned sentencing judge. Although, without this guidance, I would not have regarded the sentence under consideration as excessive, I do not see how it can stand in light of the sentences to which Smart AJ refers, making every allowance for differences in circumstances. If the applicant had been convicted of manslaughter, I have little doubt that a longer sentence than imposed below would have been fully justified. As it is, the sentence must be reduced.
Accordingly, I agree with the orders proposed by Smart AJ which, therefore, are the orders of the Court.
SMART AJ: Joshua Barry Vukic seeks leave to appeal against the asserted severity of a sentence of imprisonment of 8 years with a non-parole period of 5 years for the offence of driving in a manner dangerous occasioning death in circumstances of aggravation on 30 November 2001 when the vehicle which he was driving collided with that driven by the late Mrs Pam Foley.
On the evening of 29 November 2001 the applicant, his brother and a friend were celebrating the successful completion by the applicant of a Real Estate Management course. The applicant had left his car at his friend's house where he intended to stay the night as he proposed to drink. For a short time he left the premises where he was drinking and was refused readmission due to his intoxication. This was his last recollection prior to the accident. He must have walked back to his friend's home and, the applicant assumes, being unable to obtain entry, got into his car and attempted to drive home. The applicant was unable to offer any explanation or recall his reasons for choosing to drive home other than to state that he was clearly so intoxicated that he did not realise what he was doing. His next recollection was of a fireman cutting the top off his car door at the scene of the accident. He also recollects flashes of his hanging out of the car and complaining of the pain in his leg. His next recollection was waking up in hospital.
About 12.15 am on 30 November 2001 the applicant was driving his black four wheel drive Kia Sportage in an easterly direction along Mowbray Road West, Lane Cove at a speed well in excess of 60 kph, the applicable speed limit. On approaching a sweeping lefthand bend in the roadway the applicant allowed the vehicle to cross double centre lines onto the incorrect side of the roadway. At the time Pamela Foley, the deceased, was travelling west along Mowbray Road West. Physical evidence at the scene suggests that the deceased took evasive action and applied the brakes hard. The front portion of the applicant's vehicle with its bull bar, collided heavily head-on with the front portion of the deceased's vehicle within the westbound lane.
The front portion of the deceased's vehicle was forced downwards and the rear end of the vehicle became airborne, coming to rest on the bonnet of a vehicle parked nearby.
The deceased was trapped within her vehicle, suffering severe injuries. She died at the scene.
There were several eye witnesses. Mr Dekell was travelling east on Mowbray Road West. He saw the applicant's vehicle pass him at high speed, cross over the double centre lines and continue at high speed on the wrong side of the road for between 30 and 50 metres longer than necessary to complete the manoeuvre, only pulling back onto the correct side of the road just before he reached a concrete median strip dividing the road at a bend.
Mr Lee saw the applicant through his rear vision mirror after Mr Lee had followed a moderate bend in the road. The applicant was travelling too fast and veered straight across the double centre line, hitting the deceased's vehicle head on.
Mr Tacon, an experienced bus driver, was travelling behind the deceased and saw the applicant cross the double lines at a bend in the road, travelling too fast. The applicant's vehicle headed straight for that of the deceased. Mr Tacon did not see the applicant brake or take evasive action. The deceased attempted to take evasive action but to no avail.
The applicant suffered major injuries and was taken to Royal North Shore Hospital. About 2am a blood sample was taken from him. The concentration of alcohol present was not less than 0.172 grams of alcohol per 100 millilitres of blood. A reading of 0.15 grams or more constitutes circumstances of aggravation.
The judge made these findings:
"It cannot be said from the facts that I have recounted that [the applicant] consciously drove onto the wrong side of the road seeking to overtake other vehicles in a reckless way. It may well be that he fell asleep because of his state of intoxication. It may well be that he ceased to be able to keep control of the vehicle. It is not clear how he got onto the other side of the road. All that is clear is that he was travelling at an excessive speed and that he got onto the other side of the road. It is not a case of inadvertence or mere tiredness. It is a case of reckless driving aggravated by intoxicating liquor.
In terms of facts, it is hard to think of a case that could be worse … the combination of factors here, the high speed, the passing onto the wrong side of the road and the heavy intoxication, are a very bad combination which makes this crime one of the worst of its type."
On any view this was a very bad case but I doubt if this offence could be described as one of the worst of its type. That is usually reserved for cases where the blood alcohol reading is significantly higher or cars are racing each other or the offender had been disqualified from driving and his conduct is gross, or there is a high speed police chase and the offending vehicle goes through red traffic lights. Those examples are not exhaustive. There is in the worst type of case often a combination of factors, for example, high speed, a blood alcohol reading of 2.00 or more and going through red traffic control lights The maximum penalty is 14 years.
The applicant was born on 14 May 1973. He has a poor traffic record. His convictions include two for driving with a mid-range p.c.a., one in 1991 and one in 1998. On the latter occasion he was disqualified from driving for 3 months There have been many traffic infringements including those of exceeding the speed limit by more than 15 kph in 1990, 1992, 1995, 1997 (twice), 1998 and 1999. In 1995 he also exceeded the speed limit by more than 30 kph. There are other infringements including disobeying traffic lights and not wearing a seat belt. He received Demerit Points, warning letters and Demerit Point cancellations and restriction of his licence. As a driver/furniture removalist for about seven years he would have driven frequently and for considerable distances.
The applicant did not give evidence. The Pre-Sentence Report reveals that while the applicant's parents separated when he was about 10 years of age, he has had the support of his mother and his siblings. He left school in 1988 prior to Year 10. Thereafter he had a variety of jobs, mostly of an unskilled kind. He was employed in furniture removals for at least seven years. This involved driving a truck. His former employer described him as a hard worker who related easily to his colleagues and customers. His elder brother encouraged him to improve his education and he studied for a Business Diploma in Real Estate Management and completed the course. He was on the verge of turning his life around.
The applicant has a history of alcohol and cannabis misuse. He admitted to smoking cannabis on a daily basis and claimed that the regular use of this drug has led to a problem with blackouts, the intensity of which are increased with alcohol intake. The applicant claimed that prior to the offence he had taken steps to address this problem. He and his mother asserted that cannabis was not a factor on the evening of the offence. Since his discharge from the rehabilitation program he undertook he no longer uses cannabis and attends regular Narcotics Anonymous meetings.
The Probation and Parole officer has written:
"He presented as an individual who fully appreciates the consequences of his actions and displayed a willingness to make whatever recompense necessary in an effort to alleviate the obvious pain and suffering he has caused the victim's family. The fact that Mr Vukic was in the process of addressing problem areas in his life and instigating positive changes, makes this offence so much more disappointing and painful for both Mr Vukic and his family, who all appeared to believe that his troubled past was behind him."
The Court also has the benefit of the report of Dr O O'Connell, a consultant psychiatrist who has been managing the Drug and Alcohol Unit at Northside Clinic for approximately three years. He saw the applicant on some thirteen occasions between his admission to that unit on 11 April 2002 and his discharge on 11 May 2002.
Dr O'Connell's report records that the applicant sustained fractures to the right neck of his femur, the mid-shaft of his right femur and the right fibula. He sustained lacerations of his left arm and hypochondrium. His fractured femur was pinned and plated. He was given pain relief for a number of weeks. His last dose of morphine ceased only ten days prior to his admission to the clinic. He had taken Endone, an opioid analgesic in the week prior to admission. He remained on Panadeine and Brufen, both analgesics.
Dr O'Connell reported that the applicant's mood was depressed and that he was breaking down sobbing two to three times a day. His sleep was very disturbed. He was unable to eat even when hungry as he was anxious and agitated. His energy was low and he was unmotivated and unable to make decisions. He was preoccupied with extreme guilt over the death of the deceased. He questioned why she had died and not him and expressed the belief that he would never have a normal life on account of her death. His nightmares had decreased in frequency.
Dr O'Connell traced the applicant's drug and alcohol history. It was a sorry story.
Dr O'Connell wrote:
"Mental state examination revealed Mr Vukic to be an appropriate, honest and open historian. He expressed appropriate remorse, guilt and shame about the accident. He was tearful and anxious and his mood was depressed. He was occasionally suicidal.
In my opinion Mr Vukic suffered Major Depression, Marijuana Dependence, Alcohol Dependence in early remission and sub syndromal Post Traumatic Stress Disorder.
During the initial part of his admission Mr Vukic was noted to be extremely distressed and disturbed. Sleep was extremely poor such that he was reluctant to go to bed at night. He was continually pre-occupied with guilt about his involvement in the accident.
After a two-day observation period Zoloft an antidepressant was commenced as well as Seroquel a major tranquilliser. Mr Vukic's mood slowly improved as did his sleep and appetite. He attended the Drug and Alcohol rehabilitation program and gained insight into his condition and the need for total abstinence from all addictive substances. His physical injuries also improved although his level of pain remained unchanged.
During the last week of admission Mr Vukic became highly agitated over an up coming court appearance. He was terrified of going to gaol and what that meant in terms of his ongoing mental, physical and occupational rehabilitation. He did express an interest in making restitution for his actions in a way that would benefit the community. He suggested sharing his story in the hope of preventing one other person from suffering the same fate as him.
In conclusion Mr Vukic suffers from a severe Drug and Alcohol Dependence complicated by Major Depression and a vulnerability to Post Traumatic Stress Disorder. He has shown a good response to some initial interventions but will require follow up for his addictions and depressive disorder."
The judge accepted that the applicant suffered from permanent severe physical injury, major depression and a post traumatic stress disorder and that he was alcohol and drug dependent.
The applicant's subjective features cannot be allowed to dominate when the Court is dealing with such a serious crime
The judge was very sympathetic to the great and tragic loss suffered by the family of the deceased, as is this Court. The judge correctly stressed that all human life is precious and strongly protected by the law.
The judge stated that the sentence which he imposed reflected a maximum discount of 20 to 25 per cent for the plea of guilty. The judge accepted that when the applicant was not drinking he conducted himself in a reasonable and responsible way except as to traffic matters.
The judge accepted that the applicant was genuinely sorry for what he had done and because he thought that there were prospects of rehabilitation he reduced the non-parole period. Extended treatment, support and supervision will be required.
Appeal Ground 1 – Alleged Inadequate Discount for Plea of Guilty at Earliest Possible Opportunity.
The appellant submitted that if the judge gave a 20 per cent discount for the plea of guilty, the starting point for the sentence must have been 10 years. If the discount given was 25 per cent the starting point must have been 10 years 8 months.
In reliance upon Thomson & Houlton (2000) 49 NSWLR 383 the applicant submitted that the extent of the discount to be given depends upon the timing of the plea of guilty. Reliance was also placed upon the Chief Justice's statement that it was appropriate to give discounts of up to 35 per cent on pleas for all relevant matters including contrition.
The applicant submitted that as he pleaded guilty at the first available opportunity and was committed for trial pursuant to s.51A of the Justices Act 1902, his plea warranted a discount of 25 per cent for its utilitarian value. The extent of the discount given is discretionary. The judge cannot fairly be criticised for allowing a discount of 20 to 25 per cent and not being more specific. A discount of 20 per cent is not open to criticism.
Appeal Ground 2 – Sentence Was Manifestly Excessive.
The applicant accepted that the judge had referred to a number of relevant circumstances. The complaint was that the judge had failed to give those factors sufficient weight in the sentencing outcome. The applicant relied on the following:
(a)The starting point was too high; whether the judge allowed a discount of 20 per cent or 25 per cent or some intermediate figure, the sentence imposed revealed that his starting point ranged from 10 years to 10 years 8 months.
(b)He was genuinely remorseful about the tragic consequences of his crime, being pre-occupied with extreme guilt.
(c)He suffered continuing physical and psychological problems resulting from the accident. These have been detailed earlier.
(d)While he had a poor driving record he had never received a custodial sentence. He was a good worker and apart from his driving record a person of good character.
(e)He was an alcoholic at the time of the offence but had taken steps to rehabilitate himself.
(f)At age 28 he was relatively young. He was setting out on a new career and the future held much promise.
The applicant also submitted that the sentence imposed upon him was out of kilter with the pattern of sentences in other cases for the subject offence but having regard to the criminality revealed in the present case.
Both parties referred this Court to the guideline judgments in R v Jurisic (1998) 45 NSWLR 298. What is there written has been taken into account. The Crown also referred the Court to R v Whyte [2002] NSWCCA 343. It is useful first to look at the three cases where head sentences of eight years have been imposed.
In R v Cousins [2002] NSWCCA 81, the offender pleaded guilty to one charge of aggravated dangerous driving occasioning death and another charge of aggravated dangerous driving occasioning grievous bodily harm. The offender was driving a stolen car which he pulled in to a service station at Hurstville. Two police vehicles, responding to the report of the owner of the stolen vehicle, entered the service station, with one parking across the front of the stolen car. A police officer reached into the stolen vehicle and grabbed the offender by the upper arm or shoulder and told him to get out of the car. The offender dismissed the officer in coarse terms. The offender drove the stolen vehicle forward wrenching himself free from the officer's grip proceeding around the police vehicle which was attempting to block his exit and took off at high speed. A high speed police chase, which lasted for 14 minutes, ensued through suburban streets. They bore moderate to heavy traffic. The offender's vehicle reached speeds well over 100 kph and weaved around other vehicles at high speed, narrowly missing one of them. Pursuing police vehicles had their emergency sirens and flashing lights operating. The offender went through a red light at the intersection of two busy major roads, namely King Georges Road and Forest Road, Hurstville and at an estimated speed of 130-140 kph and hit the front corner of a cement truck which was proceeding in accordance with the traffic lights. The stolen car sideslipped towards a raised traffic island and collided with a stationary vehicle. The stolen car then mounted the traffic island, hit a traffic light pole on the island and bent the pole. The car then careered off the traffic island across a traffic lane and into a street light pole near the road edge before coming to a stop.
The person killed and the person injured were passengers in the stolen car. The offender also suffered serious injury The offender had an appalling criminal record. It included many driving offences as well as a wide range of other offences. He had been convicted of driving with more than the prescribed concentration of alcohol, driving in a manner dangerous and driving whilst disqualified. He had served a number of terms of imprisonment. In April 2001 he was declared an habitual offender. At the time of the offences under consideration he was a disqualified driver with a period of disqualification until 12 December 2010. He had demonstrated a persistently defiant attitude towards the law.
There was a plea of guilty but no evidence of contrition or remorse. That plea had a "significant utilitarian value." The subjective case advanced on behalf of the offender was not a strong one.
Amongst other matters the Chief Justice emphasised the serious risk to many innocent people in addition to the victims occasioned by a long period of erratic and dangerous driving. The gravity of the offence was extremely high. Nothing in the offender's subjective case reduced in any substantial way the appropriate penalty that ought to be imposed.
The Court, on a Crown appeal, imposed a sentence of 8 years with a non-parole period of 6 years on the primary offence. That was regarded as the least sentence which could reasonably be imposed.
The facts in Cousins were much worse than those in the present case.
In R v Jaworowski (1999) 108 A Crim R 489 the offender pleaded guilty to one count of dangerous driving causing death in circumstances of aggravation. At 12.20 pm on 15 October 1996 the offender drove his four-wheel drive vehicle out of the driveway of his home at St Ives onto Eastern Arterial Road, a busy main road, where he collided with a motor cycle being driven along that road. The cyclist came to rest beneath the four-wheel drive. The offender initially sought to move his vehicle but was prevented from doing so by a passing motorist. The offender immediately realised what had happened and displayed signs of agitation. He went into the house to make a telephone call. While inside the house he consumed some alcohol, but not a significant amount, and returned to the scene. He told the police he had consumed a small quantity of brandy and dry ginger ale earlier in the day. A roadside breath test yielded a reading of 0.240g of alcohol per 100 ml of blood. A later test at the police station on a breath analysis machine yielded a reading of 0.270.
Less than two weeks prior to this incident the offender was dealt with in the Local Court for a high range p.c.a. On that occasion there was present in his blood not less than 0.15g of alcohol per 100 ml of blood. He was disqualified from driving for 2 years and was thus a disqualified driver at the time of the offence. He admitted that he had driven the vehicle earlier in the day.
In 1988 he had been dealt with in the Local Court for a high range p.c.a. He was disqualified from driving for nine months.
The offender was aged 43 at the time of the offence and an alcoholic. He had discontinued attending Alcoholics Anonymous and had had no treatment for his condition. He had suffered from a depressive illness for some time. He was intelligent and well educated. Since the offence the offender had given up drinking. His expressions of contrition were regarded as genuine.
Simpson J found that the subjective material was strong and justified a degree of sympathy for the offender, but that it did not demand leniency. She said:
"What cannot be avoided is the objective seriousness of the applicant's conduct in driving a vehicle at all so soon after his disqualification and worse, after he had been drinking."
The Court upheld the sentence of 8 years as being within the permissible range. The Court found that there were special circumstances and that the judge had erred in not so finding. It reduced the non-parole period from 6 years to 5 years,
In Jaworowski the blood alcohol reading was very high and the offender had driven (and was driving) whilst disqualified from doing so. That is a worse case than Vukic.
In Woodward [2001] NSWCCA 90 the offender, on 10 January 1999 about 11.30 pm, was driving a motor vehicle north along Barrenjoey Road when the vehicle left the road, eventually colliding with a power pole on the north-west corner of the T-intersection with Polo Road. The passenger died from injuries sustained in the collision. The offender had a blood alcohol level of 0.216.
The offender and the deceased worked together. The offender drove the deceased to the Newport Arms Hotel, where the offender consumed a quantity of beer. He and the deceased then went to a café at Collaroy where they stayed until about 11 pm. Whilst in the café the offender drank beer and vodka tonics. The offender set off to drive the deceased home and travelled 8-10 kms before the accident occurred. The offender travelled along Pittwater Road to Mona Vale and thence along Barrenjoey Road. He had to negotiate a sweeping left hand bend as he came up to Polo Avenue. The offender was travelling at a normal speed. The vehicle slid sideways for some distance, mounted the kerb, crossed the grass verge and struck the pole. The vehicle left rhe ground and spun around coming to rest beside the pole.
At the trial the offender admitted he was the driver, that the vehicle was involved in a collision causing death and that he was under the influence of intoxicating liquor in circumstances of aggravation. The only issue litigated was whether the death of the deceased was attributable to intoxicating liquor. The offender contended that the true cause of his vehicle leaving the road was a mechanical defect.. The jury rejected that defence. The trial judge was not satisfied that the vehicle initially went out of control by reason of a mechanical defect nor was he satisfied that the vehicle experienced a constant velocity joint failure. The trial judge held the degree of intoxication was "so gross as to demonstrate a wilful abandonment by the prisoner of his responsibility to drive the vehicle safely."
The offender was aged 24, had no criminal record of any significance and overall his subjective circumstances were "highly favourable" but for his very poor driving record. In about 1992/1993 and again in 1996 he lost his licence through the accumulation of demerit points. In 1996 he was convicted of a high range p.c.a. and disqualified for 12 months. A probationary licence was issued again in September 1997. In December 1998 he was issued with an unrestricted licence which he had only held for 3 weeks before the fatal accident. The offender manifested strong remorse and contrition. He was receiving treatment for post-traumatic stress disorder.
The Court in Woodward reviewed some eight previous decisions of this Court. Studdert J, with whom Barr J agreed, found the study of these decisions was not very helpful in determining whether the offender's sentence was manifestly excessive. Studdert J concluded that the objective gravity of the offence was such that he was unable to conclude that the sentence of 8 years with a non-parole period of 5 years manifested error.
There are two distinguishing features. In Woodward the blood alcohol level was much higher, 0.216 as against 0.172 and Woodward was not entitled to a discount for a plea of guilty The matters which Woodward admitted could be readily and quickly proved. Thus the admissions had little utilitarian value.
I turn now to the matter that attracted the next most serious sentence.
In R v Sen [1999] NSWCCA 199, the offender pleaded guilty to two counts of aggravated dangerous driving occasioning death. Sen passed through a red traffic control light. He had a blood alcohol reading of 0.219. The Court held that the offences were more serious because of the two deaths. The subjective features were not discussed but were apparently quite favourable. There were no significant prior convictions, although he did have matters of exceeding the speed limit on his record. He was sentenced to a minimum term of 5 years 3 months with an additional term of 1 year 9 months, there being no special circumstances.
We were referred to a large number of other decisions of this Court. Brief details of these (and some of the cases referred to in those decisions), all of which involved a plea of guilty, are set out below.
| Decision | Offences | Sentence |
| R v Reeves | Aggravated dangerous | MT 2 yrs 6 months |
| 1999 NSWCCA 26 | driving causing death (1 count) | AT 2 yrs 6 months |
| Aggravated dangerous | MT 18 months | |
| Driving causing GBH (2 counts) | AT 12 months | |
| (sentences to be served concurrently) | ||
| Appeal dismissed |
Long drinking session at hotel; p.c.a. in excess of 0.15-0.166; also taking medication; aware mixing with alcohol prohibited; car left road and hit two pedestrians; one killed, one badly injured; passenger also injured; suffering from psychiatric condition of bi-polar syndrome; sexually assaulted in previous month; tragic life of applicant.
| R v Kalanj | Aggravated dangerous | MT 30 months |
| 98 A Crim 505 | driving causing death | AT 30 months |
| (sentences substituted on Crown appeal) |
P.c.a. of 0.16; crossed to wrong side of road causing head-on collision. Subject to community service order and several prior convictions including driving convictions related to alcohol abuse. Offender's vehicle unregistered and uninsured; offender injured in accident. Offender's deliberate decision to drive through the night.
| R v Hawkins | Aggravated dangerous | MT 4 years |
| [2000] NSWCCA 380 | driving occasioning death | AT 1 year |
| Appeal dismissed |
P.c.a. of 0.216; travelling at least 100 kph when speed limit 70 kph; erratic driving leading to collision; alcohol problem; poor record including mid range p.c.a. convictions.
| R v Tadman | Aggravated dangerous | 5 years 3 months |
| [2001] NSWCCA 225 | driving causing death | NP 2 years 8 months |
| (Sentence substituted by CCA on appeal by Tadman Initially sentenced to a total of 7 years) |
Injected heroin. Period of erratic driving; colliding with median strip several times and veering between lanes indiscriminately; collision with vehicle in adjoining lane after veering. Offender driving while ability to do so seriously impaired on a busy road over a lengthy period of time during which he put at risk numerous members of the community. Offender did not stop after collision and evaded attempts to have him stop. Aged 21; no prior convictions of any kind; genuine sorrow and remorse; disturbed vulnerable man who sought solace in drugs; good prospects of rehabilitation.
| R v Rayner | Aggravated dangerous | 6 years with NP of 4 years |
| [2002] NSWCCA 309 | driving causing death (1 count) | |
| Aggravated dangerous | 4 years fixed term | |
| Driving causing GBH (1 count) | (sentences concurrent) | |
| Appeal dismissed |
Blood alcohol reading between 0.270 and 0.294; passenger who was killed had reading of 0.250. Offender's vehicle hit median strip, went onto passenger side wheels and continued over median strip onto wrong side of road; ended up almost at right angles to oncoming traffic. Passenger killed. Cyclist seriously injured. Offender seriously injured including brain damage. Offender police officer for 18 years who lost $250,000 in superannuation rights and his job. Offender on a 3 year bond on charge of dangerous driving.
R v Kaliti Aggravated dangerous 5 years with NP 3 years
[2001] NSWCCA 268 driving causing GBHAppeal dismissed
Blood alcohol reading of 0.20. Clear and significant abandonment of responsibility. Offender was 30 with no prior history. Victim suffered very grave injuries. Head sentence not challenged.
R v Khan Aggravated Dangerous
[2000] NSWCCA 454 driving causing GBH 4½ years
NP 3 years 4 months
Appeal dismissed
Blood alcohol reading of 0.20-0.21. Speeding; vehicle crossed to wrong side of road. Erratic driving. Both victim and passenger suffered serious injuries.
R v Hill Dangerous driving MT 2 years
4 Dec 1998 – unrep causing death. AT 2½ years
NSWCCA
Sentences substituted
on Hill's appeal
Offender a disqualified driver for a high range p.c.a. offence. His blood alcohol reading for the subject offence was 0.113. Excessive speed. Offender was physically injured and psychologically devastated.
R v Black Aggravated dangerous MT 3 years
23/7/98 – unrep driving causing death AT 2 years
NSWCCA
Aggravated dangerous 3 years fixed term
Driving causing GBH
Sentences to be served
concurrently.Sentence substituted on Crown appeal and regarded as lenient.
Blood alcohol reading between 0.120 and 0.135. Travelling at 110 kph in 60 kph area and drove through two sets of red lights. Erratic driving dangerous to others. Collided with another vehicle. Case fell within category of worst class of case. Strong subjective features – youth and good character.
R v McDonald Aggravated dangerous MT 3 years
12/10/98 – unrep driving causing death AT 3 years
NSWCCA
Aggravated dangerous 2 years 6 months
Driving causing GBH fixed term.
Sentences substituted on Crown appeal
Offender had prior p.c.a. offence – on subject occasion had blood alcohol reading of 0.195.
R v McKinney Aggravated dangerous MT 18 months
[1999] NSWCCA 51 driving causing death AT 18 months
Sentences substituted on Crown appeal
Blood alcohol reading of not less than 0.166. Offender lost control of truck after driving erratically. Wife, who was a passenger, killed.
R v Hanlon Aggravated dangerous MT 3 years
[2000] NSWCCA 55 driving causing death AT 2 years
Sentence varied by CCA to increase AT from 15 to 24 months
Offender lost control of a vehicle and in accident which followed his brother, a passenger, was killed. Blood alcohol reading of not less than 0.180.
This list is not exhaustive. I have also not referred to a number of cases of dangerous driving causing death and a number of cases of dangerous driving causing grievous bodily harm.
The facts of the present case are unique to it. Sentences are not to be imposed by reason of a process of factual analysis, factual analogy and factual comparison, nor to be unduly influenced by comparing case with case. The focus must be on the facts of the present case. The previous decisions are of use insofar as they reveal a general pattern of sentencing for bad cases of aggravated dangerous driving causing death.
The starting point is that enunciated in Kalanj supra at 510, namely, the taking of a human life in circumstances where the victim is blameless and entirely unassociated with the conduct of the offender and the events which led the offender to commit the offence. The combination of alcohol, speed and crossing the double yellow lines makes the offence a bad one. The offender's driving record is a poor one and militates against leniency. His other subjective features are strong. He has suffered significant personal and psychological injuries which will have a lasting effect and be a constant daily reminder to him of his wrongdoing.
Two other cases which have attracted head sentences of 8 years were worse than the present case. Cousins involved two offences and a high speed police chase of 14 minutes which put many people at risk. Jaworowski involved a much higher blood alcohol reading (0.270), driving whilst disqualified and endeavouring to drive from his home on to a busy arterial road when it was dangerous to do so. Woodward involved a higher blood alcohol reading (0.216), driving 8-10 kms along two main roads (Pittwater and Barrenjoey) and failing to negotiate a lefthand bend. An unrestricted licence had been restored but three weeks previously. He pleaded not guilty and was not entitled to any discount of consequence for his admissions. Tadman was also a worse case with the period of erratic driving, the injection of heroin, failing to stop and evading attempts to have him stop. Sen, which attracted head sentences of 7 years, involved two offences of aggravated dangerous driving occasioning death. His blood alcohol reading was 0.219 and he passed through a red traffic control light.
Most but not all of the offences which have attracted head sentences of 5 to 6 years have not been as serious as that of the applicant. However, Tadman and Rayner are cases where the offences were at least as serious as the present one and the total sentences were respectively 5 years 3 months and 6 years. Some of the sentences have resulted from Crown appeals and are thus of limited use. However, the criminality revealed has been greater than in the present case. See, for example, Black, supra. Other cases, for example, Khan (where the appeal was dismissed) which seems to be as serious as the present one attracted a head sentence of 4½ years.
The correct head sentence in the case of the applicant is one of 7 years. This reflects the correct starting point earlier mentioned and the combination of the blood alcohol reading of 0.172, the excessive speed crossing the double yellow lines, his poor traffic record and his otherwise strong subjective features. A sentence of 8 years is manifestly excessive and not consistent with the pattern of sentences for the offence in question.
The judge in finding special circumstances said:
"I consider that he has expressed remorse, he has done something about his alcoholism problem and his drug problem. He sought expert treatment and he has joined Narcotics Anonymous and other organisations similar in its aims, through Alcoholics Anonymous. He, I am sure, genuinely is sorry for what has occurred. Therefore I should give him the benefit of less time in gaol than he would otherwise receive."
I agree that there are special circumstances. The applicant has ongoing medical problems. His medical condition has not stabilised. It is a matter for future review and decision if and when the nail and screws may be removed from his upper right leg. It is estimated that it will be about three years before it will be known whether he will require a hip replacement.
The applicant will need an extended period of rehabilitation to overcome his disabilities and illnesses. It remains to be seen what physical work he will be able to do. Whether he will be able to utilise his qualifications obtained in December 2001, namely, a Diploma in Business (Real Estate Management), Strata Managing Agent and Stock and Station Agent, remains to be seen. If he sought any kind of licence the instant conviction and his other offences should be disclosed. Despite any setbacks in this area he will have to remain drug and alcohol free. He will need considerable and extended support in these areas. This is the applicant's first custodial sentence.
I propose the following orders:
(1)Leave to appeal against sentence granted.
(2) Appeal allowed; sentence quashed.
(3)In lieu of the sentence imposed the applicant, Joshua Barry Vukic is sentenced to imprisonment for 7 years commencing on 18 July 2002 and ending on 17 July 2009 with a non-parole period of 4 years commencing on 18 July 2002 and ending on 17 July 2006.
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LAST UPDATED: 28/02/2003
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