Regina v Pevy

[2004] NSWCCA 414

CITATION:	Regina v Pevy [2004] NSWCCA 414 revised - 29/11/2004
HEARING DATE(S):	28 September 2004
JUDGMENT DATE:	25 November 2004
JUDGMENT OF:	Santow JA at 1; Hislop J at 29; Smart AJ at 30
DECISION:	(1) Application for leave to appeal against sentence granted; (2) Appeal allowed so far only as the minimum period is concerned; (3) Sentence imposed in the District Court quashed only so far as the non-parole period is concerned and so as to substitute a non-parole period of three years and three months imprisonment to commence on 30 March 2003 and expire on 29 June 2006 with the balance of the term to expire on 29 March 2008.
CATCHWORDS:	SENTENCING - Leave to appeal against sentence for one count of aggravated dangerous driving causing death - Whether statutory proportion should be varied, with or without reference to special circumstances - Did the sentencing judge err in failing to consider and find special circumstances?
LEGISLATION CITED:	Crimes Act 1900 (NSW) s52A, (1), (2) and (7)(c)
CASES CITED:	R v Elrifai [2002] NSWCCA 496 R v Fidow [2004] NSWCCA 172 R v Quarta [2000] NSWCCA 406 R v Simpson (2001) NSWLR 704 R v Skrill [2002] NSWCCA 484 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Woodward [2001] NSWCCA 90
PARTIES :	Adrian Charles PEVY (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2004/1881 CCAP
COUNSEL:	R BURGESS (Applicant) E WILKINS (Respondent)
SOLICITORS:	Steve O'Connor (Legal Aid Commission) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0312
LOWER COURT JUDICIAL OFFICER :	Maguire DCJ

2004/1881 CCAP

SANTOW JA
HISLOP J
SMART AJ

25 NOVEMBER 2004

REGINA v Adrian Charles PEVY

Judgment

1 SANTOW JA:

INTRODUCTION
This is an appeal against sentence brought by Adrian Charles Pevy. The first ground of the Notice of Appeal was that the sentencing judge, Maquire DCJ, “ did not take into account the applicant’s plea of guilty and the resulting head sentence is manifestly excessive in the circumstances of the case ” but this was not pressed. The second ground of appeal is therefore the only ground before the Court, namely that the sentencing judge “ erred in failing to consider and find special circumstances ”.

2 At the inception of the appeal, the Bench indicated that, subject to consideration of any further argument that might be put, it was minded to concentrate on the non-parole period being set at three years, nine months in relation to the total sentence of five years imprisonment. The sentences followed a guilty plea to the one count of aggravated dangerous driving occasioning death (s52A(2) of the Crimes Act 1900 (NSW)). The circumstances of aggravation were in escaping pursuit; s52A(1), (2) and (7)(c) of the Crimes Act 1900 (NSW).

3 The matter proceeded with brief oral argument but otherwise on the written submissions.

SALIENT FACTS

4 The applicant thus seeks leave to appeal against the sentence imposed on him by the sentencing judge, Maguire DCJ, at the Campbelltown District Court on 24 October 2003, for one count of aggravated dangerous driving causing death.

5 The relevant provisions of s52A of the Crimes Act 1900 (NSW) are set out below:

Aggravated dangerous driving occasioning death (whilst being pursued)

(1) Dangerous driving occasioning death
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years.

(2) Aggravated dangerous driving occasioning death
A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.


…

(7) Circumstances of aggravation
In this section, circumstances of aggravation means any circumstances at the time of the impact occasioning death or grievous bodily harm in which:

(a) the prescribed concentration of alcohol was present in the accused's blood, or

(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or

(c) the accused was driving the vehicle to escape pursuit by a police officer, or

(d) the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination). [emphasis added]

6 Thus the maximum penalty is imprisonment for 14 years. The actual sentence was five years imprisonment with a non-parole period of 3 years 9 months.

7 The applicant pleaded guilty at the earliest opportunity to the one count of dangerous driving in circumstances of aggravation, namely escaping pursuit by a police officer.

8 A statement of the relevant facts by Sergeant Gary Bailey dated 1 April 2003 was summarised by the sentencing judge in his remarks on sentencing at 1-2. At 10.05 pm on Sunday 30 March 2003 the car driven by the applicant was observed by Senior Constable Courtney, the driver of a police vehicle, to drive very slowly out of the car park of the Sheraton Hotel at Guilford. Constable Courtney did a u-turn and followed the applicant’s vehicle for the purpose of conducting a random breath test. The applicant then accelerated his vehicle and a police pursuit ensued. The applicant drove at speeds of 100-110 kph in a 60 km zone. Tragically, he collided with another vehicle, killing the driver. The driving lasted for some five minutes.

9 The applicant was injured and taken to hospital where he was treated for a laceration on the back of the head and a laceration to his knee. A blood sample taken from the applicant one hour and 55 minutes after the impact, revealed a blood alcohol concentration at that time of 0.126 grams per 100 millilitres of blood, according to the statement of Ms Judith Perl. The expert evidence on sentence was at the time of the impact, the applicant’s blood alcohol reading would have been within the range of 0.115 to 0.175 grams per 100 millilitres of blood and that at these levels his driving ability would have been significantly impaired.

10 I need to elaborate somewhat on the agreed facts as reproduced in more summary form by the sentencing judge in his remarks on sentencing, in order to give some sense of the high level of dangerous driving.

(1) On Sunday 30 March 2003 police were patrolling in the Merrylands West area. At about 10 pm on that date, Senior Constable Courtney, with Probationary Constable Johnson as a passenger, was travelling north along Fairfield Road, Guildford in a fully marked highway patrol SS Commodore sedan. The police patrol car passed the Sheridan Hotel located at the corner of Fairfield and McCredie Roads, Guildford.

(2) The police noticed the vehicle being driven by the applicant (a green Ford Falcon utility registration number XND 835) driving very slowly out of the car park of the Sheridan Hotel. The police patrol car followed this vehicle for the purposes of conducting a random breath test. Thus the police car continued through the intersection of Fairfield and McCredie Roads where Senior Constable Courtney made a U-turn. The vehicle driven by the applicant accelerated harshly and drove east along McCredie Road. The police patrol car turned left into McCredie Road with the intention of pulling the applicant’s vehicle over to conduct a random breath test of the driver. The applicant’s vehicle then again accelerated harshly away from police. It turned right into a street off McCredie Road and in so doing lost traction with the roadway. The police patrol car continued to follow the applicant’s vehicle, which turned left into another street and continued to drive at high speed. At this point Probationary Constable Johnson called a pursuit on the police radio.

(3) The applicant’s vehicle failed to slow down as it approached the intersection of Fowler Road. The rear of the applicant’s vehicle slid outwards due to its excessive speed as it turned left into Fowler Road. The police patrol car continued to pursue the applicant’s vehicle and the police activated the warning devices on their patrol car. The applicant’s vehicle increased speed, pulling away from the police patrol car. The applicant’s speed was estimated to be well in excess of the sign posted 60 kilometres per hour. The applicant’s vehicle failed to slow down at the intersection of Fowler and Hawksview Roads. It drove over the roundabout controlling that intersection, continuing along Fowler Road in a northerly direction.

(4) The police patrol car continued to pursue the applicant’s vehicle along Fowler Road as it [the applicant’s vehicle] increased speed to well over 100 kilometres an hour and pulled away from the police patrol car which was travelling at a speed of approximately 110 kilometres per hour. (see Q and A 65, 78, 164 - 8 of interview with Senior Constable Courtney). As the applicant’s vehicle approached the crest of a hill on Fowler Road it overtook another vehicle on the nearside. The applicant’s vehicle failed to indicate or slow down and increased its speed when it overtook that vehicle. The police patrol car became stuck for a short time behind the vehicle that had been overtaken by the applicant. Police lost sight of the applicant’s vehicle as they came over the crest of the hill on Fowler Road approaching the intersection of Fowler and Merrylands Roads. The police patrol car continued north along Fowler Road through the intersection of Merrylands Road into Burnett Street. When nearing the intersection of Dan Street, Merrylands, the police saw a Nissan Maxima vehicle QPE 149 with extensive crushing and body damage to the offside of the vehicle. This vehicle was on the eastern side of Burnett Street facing in a southerly direction.

(5) The applicant’s vehicle was at least 500 metres ahead of the pursuing police vehicle when the fatal collision occurred. A witness to the collision, Kylie Phillips saw what she described as a blue Ford ute hit the gutter on the passengers’ side of that vehicle and then hit the front driver’s side of the oncoming car.

(6) The police stopped their vehicle and approached the Nissan Maxima where they found the driver of that vehicle, John Wai Keung Lau, to be deceased. The applicant’s vehicle was located in excess of 100 metres from the deceased’s vehicle facing south in Burnett Street. It had extensive damage to the front portion and damage to the driver’s side front windscreen. The bonnet was missing from the vehicle.

(7) Senior Constable Courtney approached the applicant at the scene whilst he was seated in the driver’s seat of his vehicle and asked him what he was running for. The applicant replied, “I just saw the lights and got scared”. He told her that he “had two beers or something” (Q and A 134 of interview with Senior Constable Courtney). Other police at the scene observed the applicant to be under the influence of either alcohol or a drug. He smelt strongly of alcohol, his head was nodding forward and his eyes were droopy and bloodshot. He had some blood on his forehead. The applicant did not respond to police requests to undergo a roadside breath test. He was read the demand on several occasions but failed to comply with it. (see paragraph 5 of the statements of Senior Constables Keyvar and Glynn respectively), The applicant was later conveyed to Westmead Hospital where a blood sample was taken from him. He was treated for a laceration to the back of his head and a laceration to his knee.

(8) There was a passenger in the applicant’s vehicle. His name is Jeffery Thompson. Mr Thompson participated in a recorded interview in relation to the incident. He informed police that the applicant had driven him to the Coolibah Hotel earlier in the evening where they had consumed no more than four beers. They both left and the applicant drove to the Sheridan Hotel, where the bar had already been closed at 9.45 pm (see paragraphs 5 to 10 of the statement dated 2 April 2003 of Carolyne Dejaguer, the Bar Manager of the Sheridan Hotel). On driving from the car park of the Sheridan Hotel, both the applicant and Mr Thompson noticed that there was a police vehicle nearby. Mr Thompson said that the applicant sped off without saying anything. He was travelling very fast and Mr Thompson kept telling him, “Slow down, let me out.” Mr Thompson said the speed of the applicant’s vehicle was so fast that he [Mr Thompson] had to close his eyes.

(9) The Nissan Maxima had to be extensively cut to remove the deceased from the vehicle. The autopsy revealed that the deceased had suffered multiple injuries, the combined effect of which caused his death. (page 6 of the autopsy report of Dr Dianne Little dated 30 May 2003). These injuries included a fractured skull and other fractured bones, brain and chest haemorrhages, a tear in the aorta and lacerations of the liver, heart and the inferior vena cava (the main vein to the lower part of the body).

(10) At about 1.10 pm on 1 April 2003, police conducted an electronically recorded interview with the applicant. The applicant said that he presumed that he was driving the vehicle XND 835 at the time of impact but that he had no recollection of the incident. (Q and A 23 and 24 of the record of interview). The applicant said that he had one stubby of beer at lunchtime and admitted having a couple of smokes of pot around lunchtime that day. (Q and A 174 of the record of interview). A metabolite of cannabis was found in the applicant’s blood. However Dr Perl’s opinion was that the cannabis used by the applicant would not have caused any significant impairment of his driving ability.

DISPOSITION
Subjective case

11 Before turning to the Remarks on Sentencing and the remaining Ground 2, I should record the salient features of the strong subjective case submitted both to the sentencing judge and now on appeal.

(1) The applicant was 22 years old at the time of the offence. He was born and raised at Inverell and has an older stepbrother and stepsister. He gave evidence at the sentence proceedings (T, 1-17), as did his mother, Patricia Pevy (T,17–20). Peter Bates, Rhonda Magann and Brian Maddigan also gave character evidence on his behalf (T, 20-26). References were tendered from Toma Bules, the applicant’s employer, Rodney Loy, a previous employer, Neil Harman, who first knew him through his occupation as a school bus driver, Franco Scaramuzo and Harry Charambulas, work colleagues and Andrew Jones, who had employed him to work on his renovations. A pre-sentence report by Brian Copeland dated 30 September 2003 was tendered.

(2) The applicant was educated at Inverell Public school and McIntyre High School until year 12. He gave evidence that in his High School studies he did well at Engineering Science and Industrial Technology. He did part time work from the age of 13 with local companies. He did work experience in a company owned by Peter Bates, who gave evidence on his behalf. When he left school he gained a cadetship in telecommunications engineering with Optus in Sydney. He said that he was a “bit overwhelmed” coming to Sydney from the country and never really adjusted. He left Optus after about 18 months. In the course of that employment he met Brian Maddigan, who ran a handyman service. He commenced working for him, gaining positions of some responsibility within the organisation, and he intended to get his building licence.

(3) The applicant admitted that he had a problem with alcohol and had sought counselling in custody. He had been convicted of demanding money with menaces in 2000 and given a suspended sentence. There were facts about that matter, but he said the offence was basically a “stupid mistake”. On the day of the offence he had problems at work and went home and smoked some pot. A man he did not really know came to his home and he agreed to do a crime with him. The applicant gave evidence for the prosecution against him (T, 14;16). The pre-sentence report of Mr Copeland quotes from an earlier pre-sentence report (July 2000) in relation to that earlier offence, in particular to his immaturity at the time. Mr Copeland goes on to say, in a paragraph not referred to by the trial judge “whilst peer pressure appears not to have been a factor in this offence, the fact that he had a conviction for a serious offence related to peer pressure probably was”.

(4) Shortly before the commission of this present offence, the applicant had lost a friend, Peter Bates’ son, who was killed in a motorcycle accident a week before the offence. He told the probation officer, Mr Copeland that he was feeling sad about this and must have drunk more than usual. When he saw the police car he panicked, partly because he had been drinking and partly because of his conviction for demand money with menaces (pre-sentence report at page 2). When cross-examined about his lack of recollection about the offence the applicant said that he had a “a couple of basic recollections” about the night (T, 16). However, he took full responsibility for his actions. He did not seek bail and accepted that a full time custodial sentence was inevitable because “.. it’s my actions that have brought us here today and I have to face up to the fact of what I’ve done” (T, 11.5).

(5) The applicant expressed remorse (at T, 5 -6) and had written a letter of apology to the wife of the victim. He received advice from his solicitor that it would be best to have that letter given to her through the Court system, rather than to forward it to her directly. His grandmother died in the first few days he was in custody. He was transferred from Parklea Prison after he was assaulted. He was king hit and the injury to his lip required nine stitches (T, 9-10).

Remarks on Sentencing

12 It is apparent that the trial judge did take into account the applicant’s plea of guilty at an early stage. While there was no quantification of the precise effect of that, there was no necessity to do so, as the Crown rightly pointed out, this being a matter for the discretion of the trial judge, though usually desirably done; R v Thomson; R v Houlton (2000) 49 NSWLR 383 per Spigelman CJ at 411 [112] and 419 [160(ii)].

13 This matter in any event ceases to have direct relevance save as part of the overall context, given that the applicant abandoned the first ground of application.

14 A considerable portion of the Remarks on Sentencing focuses on the police pursuit and the sentencing judge’s evident concern at the apparent state of confusion surrounding it on the part of the Police. Thus he remarks adversely on the police pursuer not knowing precisely where she was located and apparently may have failed to radio superiors and colleagues of the fact of the pursuit and the particulars. What is clear is that this section of the Remarks on Sentencing occupies over a third of the totality. It may have led the sentencing judge inadvertently to place greater emphasis upon this aspect to the point where what the applicant contends was a critical part of the Pre-Sentence Report by Mr Copeland was omitted from the sentencing judge’s remarks. That paragraph is as follows:

“Mr Pevy appears to be a young man from a stable and supportive environment who has acted against his own best interests firstly, in 1999, by acquiescing to peer pressure and now, in 2003, fleeing from the possibility of an embarrassing confrontation with police while driving after drinking. In the Pre-Sentence Report of July 2000, the assessing officer commented on the offender’s immaturity. His mother said that her son fell in with the wrong crowd when he came to Sydney. Whilst peer pressure appears not to have been a factor in this offence, the fact that he had a conviction for a serious offence related to peer pressure, probably was. The impact of the current offence appears to be profound and it would be reasonable to expect that Mr Pevy will comply with the requirements of whatever sentence is imposed.”

15 However, an examination of the Remarks on Sentencing indicates that the sentencing judge did quote an earlier section of the Report which states “In general the offender seems to have enjoyed a stable and happy home environment with loving and supporting parents”. Likewise, the sentencing judge quotes from a subsequent portion that “the offender appears distraught about the offence and to be overcome with regret and remorse about the death of the victim”.

16 It follows that the only relevance of the paragraph of the Pre-Sentence Report omitted relates to an earlier conviction for demanding money with menaces in 2000. The latter did not result in the applicant going to gaol but rather a suspended sentence.

17 On the surface, the only relevance of that earlier conviction and suspended sentence is that it was one of the two reasons why according to the applicant he panicked. It was “partly because he had been drinking and partly because of his prior offence” as stated in the Pre-Sentence Report quoted by the sentencing judge.

18 The relevance of this is that the sentencing judge must be taken to have had in mind the earlier offence. But there is nothing to indicate that the trial judge took into account its being the product of vulnerability to peer pressure which bore upon the applicant’s inability to deal with difficult situations and bespoke his immaturity. Given that the reason for the tragic outcome was the applicant fleeing from the possibility of an embarrassing confrontation with police while driving after drinking, those earlier circumstances were highly relevant if not central to an assessment of the subjective elements bearing upon a sufficiently long period of parole. I refer in particular to the fact that it is only when the applicant is released from prison and has the freedom to resort to alcohol that he will find, as the submissions on behalf of the applicant point out:

“The pressures inside gaol are different from those outside, and the availability of drugs and alcohol there is limited. Despite a resolve to stop drinking alcohol, the applicant will face a difficult period of re-adjustment after years of incarceration and will have ready access to alcohol. He had tried before the offence, apparently unsuccessfully, to deal with his alcohol problem. He gave evidence (at T, p6.40) that, ‘ I have had problems with alcohol, I will admit, but I’d been trying to get myself over that as well .’ It was a combination of the applicant’s youth and immaturity, his vulnerability to peer pressure, his problem with alcohol and cannabis and the fact that this was his first period of imprisonment, which demonstrated special circumstances.”

19 Essentially, the applicant’s case is that the sentencing judge did not make reference in his remarks on sentencing to “special circumstances” in the context of whether the statutory proportion should be varied; in particular it is submitted that there was nothing to indicate that he gave consideration to that question at all. This is so, though the trial judge very properly emphasised that “offences of this kind are viewed very harshly by the community”. Moreover, whilst he saw “no need to deter this offender from further breaches of the law” he recognised “the need to deter others”; Remarks on Sentencing at 8. Likewise, the sentencing judge accepted the proposition without reservation put by the applicant’s counsel, namely “fundamentally the offender is a good man and this tragedy will be a turning point in his life” and “further, that his prospect of rehabilitation is excellent”.

20 I here need to remind myself that the absence of any express consideration of special circumstances in the context of varying the statutory proportion mandated by s44(2) of the Crimes (Sentencing Procedures) Act 1999 must be understood in the way explained by Spigelman CJ in R v Simpson (2001) NSWLR 704 at 722 [88] as follows:

“In my opinion, in view of the wide range of considerations that are capable of constituting ‘special circumstances’, a failure to ‘explain’ why a statutory proportion was not varied will not readily be accepted as a basis for an inference that the sentencing Judge did not turn his or her mind to the issue.”

21 Earlier, the Chief Justice confirmed that there was no obligation to give reasons for not finding special circumstances (at 721 [86]).

22 Here the difficulty lies in the fact, not that the trial judge failed to explain why the statutory proportion was not varied, but rather that the trial judge gave no consideration at all to whether the statutory proportion should be varied, with or without reference to special circumstances. In such a context, special circumstances do have a bearing.

23 I need however to emphasise again that, as Spigelman CJ said in Simpson at [67]:

“when a circumstance is taken into account by way of reduction of a head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.”

24 Moreover, as the Chief Justice said in R v Fidow [2004] NSWCCA 172 at [20]

“findings of special circumstances have become so common that it appears likely that there can be nothing ‘special’ about many cases in which the finding is made”.

25 He added [22]

“simply because there is present in the case a circumstance which is capable of constituting a ‘special circumstance’ does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation.”

26 However, I do consider that here there were special circumstances in terms of the applicant’s immaturity associated with his earlier offence, the latter reflecting vulnerability to peer pressure. That was in turn a central factor in his fleeing the scene, with the tragic outcome that followed. That factor, coupled with the influence of alcohol, and the consequent need for rehabilitation outside the artificial constraints of the prison, to my mind does constitute special circumstances such as to justify a reduction of the non-parole period of three years nine months to three years three months, a reduction of six months. I do consider that a shorter non-parole period would result in a sentence disproportionate to the objective seriousness of the case. In that regard I note the submission of the applicant that:

“in the present case the statistics indicate that only 20% of offenders charged with the same offence receive a higher non-parole period than the applicant (that is, on the statistics, higher than four years). It could not be reasonably argued that a non-parole period of less three years and nine months could not have been imposed in the circumstances of this case”.

27 In saying this, I am not however to be understood as accepting the submissions of the applicant, subsequently not pressed, that the head sentence was in any way outside the range of an appropriate sentence when regard is had to comparable cases and their respective differences such as R v Quarta [2000] NSWCCA 406, R v Skrill [2002] NSWCCA 484, R v Woodward [2001] NSWCCA 90 and R v Elrifai [2002] NSWCCA 496. In particular Skrill involved speed and alcohol but no police pursuit, Quarta and Elrifai involved speed and a police pursuit but no alcohol, and Woodward involved speed and alcohol but no police pursuit. Here, speed, alcohol and police pursuit were all involved.

OVERALL CONCLUSION

28 I would order as follows:

(1) Application for leave to appeal against sentence granted.

(2) Appeal allowed so far only as the minimum period is concerned.

(3) Sentence imposed in the District Court quashed only so far as the non-parole period is concerned and so as to substitute a non-parole period of three years and three months imprisonment to commence on 30 March 2003 and expire on 29 June 2006 with the balance of the term to expire on 29 March 2008.

29 HISLOP J: I agree with Santow JA.

30 SMART AJ: I agree with Santow JA.

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Last Modified: 11/29/2004