Thai v R

[2009] NSWCCA 314

New South Wales
Court of Criminal Appeal

CITATION:	Thai v R [2009] NSWCCA 314 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 December 2009
JUDGMENT DATE:	22 December 2009
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 8; Hidden J at 66
DECISION:	(i) Leave to appeal granted; (ii) Appeal allowed; (iii) In lieu of the sentence imposed in the District Court, the applicant be sentenced to a fixed term of imprisonment for 15 months commencing on 18 April 2009 and expiring on 17 July 2010, to be served by way of periodic detention.
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - dangerous driving causing death - momentary inattention - term of periodic detention - whether manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 R v Hallocoglu (1992) 29 NSWLR 67; (1992) 63 A Crim R 287 R v Jurisic (1998) 45 NSWLR 209 R v Overall (1993) 71 A Crim R 170 R v Pangallo (1991) 56 A Crim R 441 R v Roberts, Lewis and McVean (1994) 73 A Crim R 306 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Wegener [1999] NSWCCA 405 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17 Reed v R [2007] NSWCCA 4
PARTIES:	Thanh Vinh Thai (Applicant) The Crown
FILE NUMBER(S):	CCA 2008/676
COUNSEL:	W Hunt (Applicant) V Lydiard (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	008/676
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	3 April 2009

2008/676

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J

22 December 2009

Thanh Vinh THAI v R

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Simpson J in draft.

2 I share her Honour’s view that the sentence was in the present case manifestly excessive. This conclusion is informed by consideration of the guidance provided with respect to this type of offence, inter alia, by the decisions of this Court in R v Jurisic(1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. As Simpson J has indicated, in Whyte, this Court confirmed that where an offender’s moral culpability is high, in the case of death a sentence of less than 3 years imprisonment would generally not be appropriate. High moral culpability may be present where an offender is found to have abandoned responsibility for their driving.

3 Both in Jurisic and Whyte this Court recognised that there will be circumstances where the moral culpability of an offender may be of a lower order and may justify only the imposition of a non-custodial sentence. The circumstances where such a sentence may be appropriate will “almost invariably be confined to cases involving momentary inattention or misjudgement.” (Jurisic at 2213E). However, this Court has not said that momentary inattention will necessarily result in a non-custodial sentence.

4 When considering the moral culpability of an offender a finding of momentary inattention is plainly of significance. However, it may not and generally will not be an adequate description of the circumstances relevant to the offence. Momentary inattention when driving at low speed or on an isolated country road may involve culpability of a significantly lower order than momentary inattention when driving on a freeway or in an urban environment where the traffic is dense with intersections controlled by traffic signals.

5 Momentary inattention when travelling at the speed limit, 60 kph towards an intersection controlled by traffic signals can, as happened in the present case, result in the tragic death of others. Although in this case a custodial sentence was required I am satisfied that the term provided by the sentencing judge, having regard to the guidance available from Whyte was excessive.

6 Simpson J discusses the nature of the relationship between a custodial sentence and the manner in which it is to be served. The Criminal Appeal Act provides for an appeal against the sentence imposed on an offender. Sentence under that Act is defined to mean any order by the court of trial “including any sentence of imprisonment the subject of a periodic detention order or home detention order and any sentence of imprisonment whose execution is suspended.” A sentence of imprisonment which is the subject of such an order or which is suspended will be more lenient than one which is required to be served by full time custody. That leniency may be significant: R v Hallacoglu (1992) 63 A Crim R 287 (at 292). When considering whether the sentence which has been passed is appropriate the fact that it has been ordered to be served other than by full time custody is relevant and could be significant. When considering whether another sentence should have been passed (s 6(3)) requires consideration of all of the elements of the sentence including as the Criminal Appeal Act, in my view, contemplates the manner in which the sentence is to be served.

7 I agree with the orders proposed by Simpson J.

: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 3 April 2009 following his plea of guilty to a charge of dangerous driving causing death (Crimes Act 1900, s 52A(1)(c)). Such an offence carries a maximum penalty of imprisonment for 10 years. Murrell DCJ sentenced the applicant to imprisonment for 2½ years, made up of a non-parole period of 22 months and a balance of term of 8 months, and directed that the sentence be served by way of periodic detention.

The facts

9 The offence was committed on 25 September 2006. At about 10.00am on that day the applicant was driving a small sedan motor vehicle south on the Cumberland Highway at Smithfield at a speed of approximately 60 kph (within the prescribed speed limit).

10 At an intersection with Brennan Street, through inattention (conceded by the Crown to have been momentary) he failed to observe an amber traffic light followed by a red light and travelled into the intersection without lessening his speed. His vehicle collided with a vehicle driven by Mr Van Nui Nguyen, who was driving a sedan in Brennan Street, and entered the intersection with a green light in his favour. Mr Nguyen suffered fatal injuries.

11 The applicant himself suffered an injury to his head, and a broken ankle, resulting in hospitalisation for three days, and a degree of amnesia concerning the accident.

Subjective circumstances

12 The applicant was born in March 1955 in Vietnam. He was 51 at the time of the offence, 54 at sentencing. (His plea of guilty was not entered until 9 February 2009, the day fixed for trial, which presumably explains the rather lengthy delay between the offence and sentencing.)

13 The applicant grew up in Vietnam, during the Vietnamese/American war, where he was conscripted into the army at the age of 17. At the conclusion of the war his family sought refuge in Thailand, and then Australia. The applicant migrated to the United States, where he remained for almost 30 years, and took out US citizenship. He married in the US in 1983. Two children were born. In 2000 the marriage failed and he and his children migrated to Australia to rejoin the family of his birth. He has been granted permanent resident status in Australia.

14 In 2006 the applicant was in the process of attempting a reconciliation with his wife, when she died suddenly in the US. A couple of months earlier, a brother, to whom the applicant had been very close, also died. The applicant was plainly distressed by these events.

15 The applicant has no criminal or traffic record. He has held a driver’s licence for many years, and has driven regularly, sometimes for significant periods of time.

16 At the time of the offence, and thereafter, he was employed as a forklift driver and storeman.

17 The applicant has the sole care of his two children, a daughter in her 20s who is a TAFE student, and a 14 year old son.

The proceedings

18 As at September 2008, the applicant had entered a plea of not guilty to the charge. On 15 September 2008 a trial commenced before Judge Sides and a jury. Some time after the first day of the trial, and for reasons that do not, for present purposes, matter, the jury was discharged. A further trial date was fixed. On 9 February 2009 the applicant entered a plea of guilty. The matter then came before Judge Murrell.

19 Notwithstanding the plea of guilty, there was a significant factual issue raised on behalf of the applicant, as a result of which expert witnesses were called and gave evidence over two consecutive days. That evidence was directed to an issue raised on behalf of the applicant in an attempt to cast some of the responsibility for the collision upon Mr Nguyen. That attempt failed and Murrell DCJ rejected the proposition that any blame could be attributed to Mr Nguyen.

20 The applicant himself did not give evidence on the sentencing proceedings, either with respect to the circumstances of the collision, nor to his subjective circumstances. Counsel who appeared for him made extensive submissions (including written submissions) and began by telling her Honour that the Crown prosecutor had indicated:

“… that he does not need, does not require me to call my client and he is content for me to put these matters from the bar table.”

21 Also before her Honour was a pre-sentence report, from which some of the subjective matters outlined above were drawn. The author of the report referred to the applicant’s behaviour during the interview when Mr Nguyen was discussed. The author appears to have accepted that the remorse expressed by the applicant was genuine.

22 Importantly, the officer assessed the applicant as eligible for a sentence to be served by way of periodic detention, but nevertheless considered him unsuitable for such an order by reason of:

“… his work commitments that would prevent him from attending the Correctional Centre as required and his family commitments where he is the sole parent with two dependent children.”

The remarks on sentence

23 The sentencing judge recounted the facts and subjective circumstances. As indicated above, she rejected the proposition that Mr Nguyen had contributed to the accident. She accepted, as was conceded by the Crown, that the applicant’s culpable conduct was momentary inattention and that this was due to the recent tragedies of the deaths of his brother and wife.

24 She considered a submission that the applicant ought to be dealt with by way of a suspended sentence, and rejected that as too lenient, having regard to the fact that his conduct had resulted in the loss of a life. She also rejected the assessment of the applicant as unsuitable for a sentence to be served by way of periodic detention, determined that the sentence to be imposed would be served by way of periodic detention, and imposed the sentence I have mentioned above.

25 It will be observed that the sentence is structured (although mathematically imprecisely) broadly in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).

26 Her Honour made no mention of that sub-section, and gave no reasons for not varying the statutory ratio. (This is hardly surprising, as she was at no time invited to do so.)

27 Although she commenced her remarks on sentence with a reference to the fact that the applicant had pleaded guilty, she made no further reference to that circumstance, and did not say whether she had or had not made any allowance in accordance with the decision of this Court in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, for the utilitarian value of the plea.

28 It is these two aspects of the remarks on sentence that give rise to two specific grounds of the application for leave to appeal as initially pleaded.

Grounds of the application

29 These are pleaded as:

“(1) The sentencing judge failed to properly consider, or at all, whether ‘special circumstances’ were made out in relation to the applicant.

(2) The learned sentencing judge failed to assess properly, or at all, whether the applicant’s plea of guilty entitled him to a sentencing discount on a utilitarian basis.

(3) The sentence is manifestly excessive.”

30 At the conclusion of the argument of the application, counsel for the applicant sought and was granted leave to amend by adding an additional ground. This he formulated as:

“(4) The sentencing judge failed to properly consider the appropriate period of imprisonment before turning to a consideration of how that period of imprisonment ought to be served.”

Ground 1 (special circumstances)

31 Section 44(2) of the Sentencing Procedure Act is as follows:

“(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

32 It is to be observed that the sub-section prohibits the imposition of a term of imprisonment in which the period of eligibility for release on parole exceeds one-third of the non-parole period, unless the court finds that special circumstances exist that permit departure from that ratio (in which case the court must give reasons for that decision). That is, the presumption is that the sentence will be structured in accordance with that ratio, unless reasons to the contrary are demonstrated. It is departure from the stated ratio, not adherence to it, that must be justified and explained. I mention this rather obvious and well-known fact because the submissions put on behalf of the applicant tended to invert that position, and argue that, notwithstanding that the issue was not raised at the sentence hearing, and that it was never put to the sentencing judge that a basis existed to vary the s 44(2) ratio, nevertheless she was obliged, of her own accord, to have considered that question as part of the proper discharge of her sentencing function.

33 It was further argued that, had she done so, she could, on the material available, have reached a satisfaction that the necessary special circumstances existed. The relevant circumstances were identified as:

“(a) it had been established that the applicant had no record of any kind and was of prior good character,

(b) the Crown had conceded remorse for the purposes of s 21A(3) of the [ Sentencing Procedure Act ],

(c) the sentencing judge had found the applicant was unlikely to re-offend, and

(d) the imprisonment (however to be served) would represent his first ever sentence.”

34 It may be doubted that (b) and (c) have any significant bearing on the question. The need for assistance or supervision in readjusting to non-prison life, and to maintaining a crime-free existence is often cited as a circumstance justifying departure from the statutory ratio. Where rehabilitation is complete (or, as here, the offence is such that rehabilitation is of dubious relevance), no basis exists for extending the parole period. Indeed, those circumstances might point towards the imposition of a fixed term of imprisonment: see s 45 of the Sentencing Procedure Act. I accept, however, that (a) and (d) are capable of having a bearing on the question; to these I would add the applicant’s obligations and responsibility for the care of his children.

35 But the real question is whether, having regard to the manner in which the sub-section is structured, it is obligatory upon a sentencing judge, in the absence of submissions, explicitly to consider a course of action that, if followed, would result in a sentence more favourable to an offender than would otherwise be the case. In my opinion, it was not. The various participants in litigation, including sentencing litigation, have their own roles and responsibilities. It is the responsibility of counsel to raise, on behalf of their clients, such matters as may be relevant to the ultimate determination of the proceedings. It is no less so in sentencing proceedings. It is particularly the role and responsibility of counsel for an offender to produce evidence and direct argument in support of issues that may properly be used to mitigate the sentence to be imposed. It is not the role and responsibility of a judge to take on the role of counsel and anticipate what might, had proper attention been given to the question, have been put. It is quite unfair to criticise a judge who determines sentence on the basis of the issues addressed by counsel for not going beyond those issues. Indeed, it may well be that counsel who appeared for the applicant made a considered decision not to seek variation, based on his appreciation of the relevant evidentiary material.

36 I am prepared to accept that, had the question of special circumstances been raised, it would have been open to her Honour to make a finding favourable to the applicant and that she may have done so. What I am not prepared to accept is that, in the absence of the issue being raised by counsel for the applicant, it was an error for her Honour not to take it upon herself to direct attention to it. I would, accordingly, reject this ground of the application.

Ground 2 (the plea of guilty)

37 Once again, no mention was made on behalf of the applicant of the question of a reduction in sentence by reason of his plea of guilty.

38 It is well established that such a reduction is allowed for the utilitarian value of the plea (see Thomson and Houlton). A significant factor in the assessment of a reduction is the time at which the plea is entered.

39 Here, as was acknowledged on behalf of the applicant, the utilitarian value was “diluted” by reason of its very late timing, and of the contested facts which involved the court in hearing from witnesses. It is not to be overlooked that a trial had in fact commenced, and proceeded for a day before (for reasons not attributable to the applicant) being aborted.

40 It was, nevertheless, contended that a discount in the range of 5-10 per cent was properly available.

41 I rather doubt that that is so.

42 The Court has been provided with the transcript of the first day of the trial which commenced before Sides DCJ. At the end of that day (a Monday) his Honour told the jury that the trial was anticipated to be shorter than previously thought, and would possibly be completed in that week.

43 As I mentioned above, when the matter came back before Murrell DCJ, evidence was given on two consecutive days; argument took place on a third. The utilitarian value of the plea was very limited indeed.

44 As with the question of special circumstances, I accept that, had the matter been raised before her Honour, it is something to which she could and would have given consideration, and may have made some reduction.

45 However, it was not an error for her not to do so in these unusual circumstances.

Ground 3 (manifestly excessive)

46 The submissions made on behalf of the applicant in support of this ground were that, in the light of powerful findings in favour of the applicant with respect to subjective circumstances, and the relatively low level of culpability, the sentence imposed was manifestly excessive. However, these submissions are of rather less force when it is recognised that they were put on the mistaken basis that the total sentence was of 3 years, rather than the 2 years and 6 months actually imposed.

47 Reference was made to a previous decision of this Court in R v Tomson [1999] NSWCCA 369 in which, in not significantly dissimilar circumstances, a recognisance in the sum of $1000 together with supervision by the Probation and Parole Service for six months was imposed. A Crown appeal failed, with this Court describing the sentence as “extremely lenient”. Indeed, the decision was a majority decision; Smart AJ considered that the sentence imposed failed to reflect the objective gravity of the offence, which his Honour regarded as “exceedingly serious”. Tomson does not assist the determination whether this sentence was manifestly excessive.

48 There are, however, other considerations. In considering whether a sentence to be served by way of periodic detention is manifestly excessive (or, indeed, manifestly inadequate) it is easy to be misled into placing undue focus upon the manner in which the sentence is to be served. That is because, as is well recognised, a sentence to be so served carries a significant degree of leniency (R v Hallocoglu (1992) 29 NSWLR 67). But to focus upon the mode of service of the sentence is to deflect attention from the real question, which is whether the sentence specified is manifestly excessive (or manifestly inadequate). It is the sentence against which leave to appeal is sought, and may be granted.

49 Section 6(1) of the Sentencing Procedure Act is in the following terms:

“(1) A court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order directing that the sentence be served by way of periodic detention.”

50 It is perfectly clear that a sentencing court must, before considering s 6, determine and impose the sentence. So much was confirmed by this Court in R v Zamagias [2002] NSWCCA 17 at [26]. It would be wrong for a sentencing judge to extend the terms of the sentence by reason of the fact that it is to be served by way of periodic detention. That follows purely from the proper construction of s 6 of the Sentencing Procedure Act. It is also established by decisions of this Court: see, for example R v Wegener [1999] NSWCCA 405 at [23]; Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154; Reed v R [2007] NSWCCA 4 at [25].

51 There are other, good, reasons for that being so. For example, an offender who fails to comply with the terms of the periodic detention order may be taken into custody and serve the remainder of the sentence in full-time custody. It would be unfair for such an offender to serve longer than he or she otherwise would because the sentence was initially to be served by way of periodic detention.

52 It would, in my opinion, equally be wrong for this Court to approach its task of determining the manifest excessiveness or inadequacy of the sentence on the basis that it was to be served by way of periodic detention. The task of this Court is to determine if error, explicit or implicit, patent or latent, infected the sentencing process. It must, in this case, therefore, determine whether a sentence of 2½ years was, in the circumstances, manifestly excessive.

53 This is not to say that an order that a sentence be served by way of periodic detention is unreviewable by this Court. There may be cases where the leniency recognised as inherent in a periodic detention order transforms an otherwise adequate sentence into one that is manifestly inadequate. But that is by review of the periodic detention order, not review of the sentence itself.

54 Where the appeal is against severity, the focus of this Court is upon the sentence specified before the order that it be served by way of periodic detention is made.

55 I accept that this Court may not always have recognised the need to differentiate between the term of the sentence and the manner in which it is to be served; see, for example R v Pangallo (1991) 56 A Crim R 441 at 444; R v Overall (1993) 71 A Crim R 170 at 175; R v Roberts, Lewis and McVean (1994) 73 A Crim R 306 at 313. But, at least since 1999 (Wegener), the sequence necessary for sentencing judges has been clear. It is only logical that this Court (as a Court the jurisdiction of which is to identify error) must take a parallel approach.

56 In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252, this Court re-formulated the guideline judgment earlier promulgated in R v Jurisic (1998) 45 NSWLR 209. It held that, in cases of dangerous driving causing death, a full-time custodial sentence of less than three years would generally not be appropriate (at [229]). But following Jurisic, this was directed to cases in which the level of culpability was high, or the offender had, in effect, abandoned responsibility. Relevant factors are listed at [216], and include speed, nature of the driving, intoxication by alcohol or other drugs.

57 The present was not a case to which either Jurisic or Whyte applies. In Jurisic, indeed, the Court implicitly recognised the possibility of a non-custodial sentence in cases of “momentary inattention or misjudgment” (see [206]).

58 In Whyte, the Court said:

“230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.”

59 Here, the sentence of 2½ years imposed was only 6 months below that specified for cases of high moral culpability and/or abandonment of responsibility. Care must be taken not to allow the assessment of that sentence to be clouded by focus upon the mode by which it is to be served. When the element of periodic detention is removed from consideration (as, in my opinion, for reasons I have given, it must be), it becomes plain (to my mind beyond argument) that the sentence here imposed was manifestly excessive. The applicant’s criminality was far below that envisaged in Whyte and Jurisic.

Ground 4

60 At the conclusion of her sentencing remarks, the sentencing judge said:

“The offender’s counsel submitted that a suspended sentence under s 12 of the [ Sentencing Procedure ] Act was warranted. In my view, such a sentence would be too lenient. Whatever the merits of the offender’s case, it must not be forgotten that his conduct has resulted in a loss of a life. I have considered the statements, the contents of the pre-sentence report. Although the offender has been assessed as unsuitable for periodic detention, I consider that such an order should be imposed. I do not accept that his work and family commitments render him unsuitable. As far as his teenage son is concerned, the offender’s adult daughter and other relatives are able to assist. Work commitment is no reason to exclude the sentencing option of periodic detention. Subject to the offender signing an appropriate undertaking, I am satisfied of the requirements of s 66 of the [ Sentencing Procedure ] Act . My intention is to impose a periodic detention order with a non-parole period of twenty-two months and a balance of term of eight months. At total term of thirty months.”

61 The issues raised by this supplementary ground of appeal overlap significantly with those of Ground 3 and I do not propose to re-state that which I have already stated. I accept, as was put on behalf of the applicant and was conceded by the Crown, that this passage unambiguously discloses error in the approach to sentencing. Together with the relativity between the sentence imposed and the sentences promulgated in Jurisic and Whyte, it is clear that that error in approach has led to an error of substance in the selection of the sentence imposed.

62 Accordingly, in my opinion, the sentence must be quashed and the applicant re-sentenced.

63 It was accepted that the applicant has been conscientiously serving his periodic detention since April of this year. That is a period of 8 months.

64 By reference to the 3 years proposed in Jurisic and Whyte for offences of the kind there described, I am of the view that the appropriate term of the sentence to be imposed upon the applicant is 15 months’ imprisonment to commence on 18 April 2009 and expire on 17 July 2010. Pursuant to s 45 of the Sentencing Procedure Act I would decline to set a non-parole period. I consider that course appropriate because of the nature of the offence, the antecedent character of the applicant and the fact, that cannot be ignored, of the punishment the applicant has already undergone. Pursuant to s 6 of the Sentencing Procedure Act I would make a further order that the whole of the sentence be served by way of periodic detention.

65 The orders I propose are:

(i) Leave to appeal granted;

(ii) Appeal allowed;

(iii) In lieu of the sentence imposed in the District Court, the applicant be sentenced to a fixed term of imprisonment for 15 months commencing on 18 April 2009 and expiring on 17 July 2010, to be served by way of periodic detention.

66 HIDDEN J: I agree with the orders proposed by Simpson J and, generally, with her Honour’s reasons. The question to what extent this Court should have regard to the fact that a sentence is to be served by way of periodic detention in determining whether that sentence is manifestly excessive is one which need not be decided in the present case, and I prefer to express no concluded view about it.

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