Ul-Hassan v R

[2018] NSWCCA 177

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ul-Hassan v R [2018] NSWCCA 177

Hearing dates:

20 April 2018

Date of orders:

17 August 2018

Decision date:

17 August 2018

Before:

Fullerton J at [1]
Davies J at [2]
Lonergan J at [124]

Decision:

(1) Leave to appeal granted.

 

(2) The appeal is allowed.

 

(3) Quash the sentence imposed by Judge McLennan SC in the District Court on 15 December 2016.

 (4) In lieu, sentence the appellant to an aggregate sentence of five years imprisonment commencing 15 December 2016 and expiring 14 December 2021 with a non-parole period of two years and six months expiring 14 June 2019.

Catchwords:

SENTENCING – appeal against sentence – aggravated dangerous driving occasioning grievous bodily harm – mitigating factors – no record of previous convictions – Crimes (Sentencing Procedure) Act s 21A(3)(e) – whether sentencing judge erred by failing to advert to the applicant’s record – whether sentencing judge erred in finding that the applicant’s conduct amounted to an “abandonment of responsibility” – moral culpability not mitigated by identification of absent aggravating factors – whether applicant suffered extra-curial punishment as a result of injuries sustained by applicant and his friends who were passengers in the vehicle – applicant re-sentenced

Legislation Cited:

Crimes Act 1900 (NSW) s 52A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)

Cases Cited:

Bravo v R [2015] NSWCCA 302
GW v R [2018] NSWCCA 79
Mills v R [2017] NSWCCA 87
Mulato v R [2006] NSWCCA 282
Pereira v R [2018] NSWCCA 171
Priovolidis v R [2016] NSWCCA 201
R v Baker [2000] NSWCCA 85
R v Howcher [2004] NSWCCA 179
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Wright [2013] NSWCCA 82
Vaiusu v R [2017] NSWCCA 71
Vale v R [2016] NSWCCA 154
Zreika v R (2012) 223 A Crim R 460 [2012] NSWCCA 44

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Waqar Ul-Hassan (Applicant)
Crown (Respondent)

Representation:

Counsel:
T Alexis & A Cheema (Applicant)
R Ranken (Respondent)

  Solicitors:
W Aman (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/219667

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

15 December 2016

Before:

McLennan DCJ

File Number(s):

2015/219667

Judgment

1. FULLERTON J:   I agree with Davies J.

2. DAVIES J:   The applicant pleaded guilty to three counts of aggravated dangerous driving occasioning grievous bodily harm. The maximum penalty for this offence is 11 years imprisonment together with periods of disqualification from driving.

3. He was also charged with driving with a mid-range of prescribed concentration of alcohol. The maximum penalty for this offence is 20 penalty units and/or imprisonment for nine months. There are also periods of disqualification from driving. That offence was placed on a s 166 certificate.

4. On 15 December 2016 he was sentenced by Judge McLennan SC to an aggregate sentence of six years imprisonment commencing 15 December 2016 and expiring 14 December 2022 with a non-parole period of three years expiring 14 December 2019. He was also disqualified from driving for a period of two years which, by virtue of the legislation, means two years dating from his release to parole.

5. The applicant now seeks leave to appeal against the severity of his sentence on the following grounds:

1.   His Honour erred by failing to take into account the applicant's Major Depressive Disorder, for which he was taking medication, at the time of the offences.

2.   His Honour erred in finding that the applicant's conduct amounted to an "abandonment of responsibility" and that his moral culpability was high.

3.   His Honour erred by failing to take into account the degree of permanent injury to the victims and that they all made a complete recovery.

4.   His Honour erred by failing to take proper account of the applicant's extra-curial punishment as a mitigating factor on sentence.

5.   His Honour erred by failing to take into account the applicant's unblemished criminal and driving record.

6.   The sentences imposed were manifestly excessive and unreasonable.

Facts of the offending

6. The facts found by his Honour accorded with the Statement of Agreed Facts. Those facts disclosed the following:

Background

7. The applicant is a Pakistani national residing in Australia on a student visa. He holds a Pakistani Driver's Licence issued on 11 November 2011.

8. The applicant resided at XX Merrylands Road, Merrylands with flatmates Muhammad Ijaz and Mohammed Aslam. Ijaz and Aslam are also Pakistani nationals residing in Australia on student visas.

9. At the time of the offence, the applicant was driving a maroon 2000 model Ford Falcon sedan registration CA14LA. The vehicle was registered to his friend, Hashim Manzoor.

The accident

10. At about 10.00pm on Saturday 21 March 2015, the applicant drove to the Merrylands Railway Station to pick up Mr Ijaz who had finished work. They then purchased some takeaway kebabs for dinner. The applicant also picked up Mr Manzoor.

11. The applicant, Mr Ijaz and Mr Manzoor travelled to a friend's house in Styles Place, Merrylands. Whilst they were there they ate the kebabs, socialised and played cards. At some point in the evening, the offender's other flatmate Mr Aslam joined them.

12. At about 3.00am on 22 March 2015, the applicant, Mr Ijaz, Mr Manzoor and Mr Aslam left the premises to drive home. The applicant sat in the driver's seat, Mr Manzoor was seated in the front passenger seat, and Mr Ijaz and Mr Aslam were seated in the rear passenger seats.

13. The applicant drove from Styles Place towards his home. Shortly before he was about to arrive home, the applicant turned into McFarlane Street and accelerated westbound. McFarlane Street is a sign-posted 40 km/h zone due to the high levels of pedestrian traffic during daytime hours.

14. CCTV footage captured the applicant driving towards the intersection of McFarlane and Treves streets at a speed well in excess of the 40 km/h limit. This intersection is controlled by traffic control signals, and a red left arrow and red circle traffic signals were displayed to the applicant. The applicant drove in lane 1 of 2.

15. As the applicant reached the intersection he failed to slow his vehicle in sufficient time to negotiate the left turn safely. He panicked, applied the brakes and skidded approximately 30 metres through the intersection, across Treves Street and into the front of an apartment building located at 2-4 Treves Street. The impact occurred at a speed such that damage was caused to the brick fascia, and the front portion of the Ford was forced rearwards to the front axle.

16. The traffic control light and vehicle movements were captured on CCTV.

17. Witnesses to the collision quickly contacted Triple-0.

Arrival of police

18. At 3.06am, police arrived at the scene and saw a maroon Ford Falcon facing west next to the garage door at the head of the driveway of 4-6 Treves Street. The front of the vehicle was compressed into the brick wall.

19. Police saw that the driver's side door was open, and saw the applicant lying on the grass about 5 metres away from the vehicle. He was bleeding from the mouth and was experiencing abdominal pain.

20. Police also saw that the front passenger door was open. They saw Mr Manzoor lying on the ground about 2 metres away from the front passenger door. His arm was displaced in a backwards position.

21. Inside the vehicle, Mr Ijaz and Mr Aslam were trapped in the rear passenger seat. The NSW Fire Brigade and the NSW Ambulance Service were contacted. All occupants were extricated and conveyed to Westmead Hospital in serious conditions.

Crash investigation unit

22. When the crash investigation unit attended the scene they noticed the weather was cool and overcast. The roadway was in good condition. The roadway surface was wet, but there were no pools of water or puddles on the roadway. The area was dark, but there was sufficient lighting to illuminate the pedestrian footpaths, roadside objects and the roadway itself.

23. The speed limit in the area is 40 km/h to the high pedestrian traffic. The 40 km/h speed limited terminated on Treves Street. The roadway was bordered by pedestrian footpaths and shops.

24. The crash investigation unit noted that the applicant’s vehicle was facing in a westerly direction and had significant collision damage to its front portion with the bumper, headlights and grille forced rearwards. The bonnet was raised, the radiator and a portion of the engine casing had cracked, and there were fluids leaking from both reservoirs. The windscreen was fractured across the entire surface and was held only by the laminate. Both driver's side and front passenger airbags had deployed. There was blood and human tissue on the airbags. The steering column had been lowered and the dash board was cracked

Injuries - Hasim Manzoor

25. As a result of the collision, restrained front seat passenger Mr Manzoor, sustained a number of injuries. His injuries included a ruptured diaphragm, non-displaced fractures to his 7th, 8th, 9th, and 10th ribs, a suspected non-displaced fracture to his 6th rib, a splenic contusion, a comminuted fracture to the right humerus, a minor fracture to the L4 vertebrae, a small haemorrhagic contusion over both frontal lobes and a tear to his intestine.

26. When Mr Manzoor was admitted to Westmead Hospital he was taken to the operating theatre for an urgent laparotomy, partial sigmoidectomy (partial removal of the colon), repair of serosal tearing and repair of the left diaphragmatic rupture. After surgery he was taken to the Intensive Care Unit for an orthopaedic team to advise on the management of the L4 fracture. The fracture was conservatively managed. A ‘u-slab’ was also placed for his right humeral fracture.

27. Mr Manzoor underwent a laparotomy on 23 March 2015. He was extubated the following morning. He experienced nausea and vomiting and a naso-gastric tube was later inserted on 25 March 2015. On 26 March 2015, he was transferred to the Surgical High Dependency Unit. The NG tube was removed on 28 March 2015.

28. On 31 March 2015, staples from his abdomen and sutures on the knee and chin were removed. An MRI was also conducted that day from which it was established that the L4 fracture was still unstable. Mr Manzoor was placed in a Thoracic Lumbar Sacral Orthosis back brace. A Sarmiento brace was also placed on his arm.

29. Mr Manzoor was discharged from Westmead Hospital on 9 April 2015 after 19 days in hospital with the aid of the TLSO Sarmiento braces. He was required to attend follow-up appointments with the orthopaedic surgeons for 6 weeks after discharge.

Injuries - Muhammad Ijaz

30. Mr Ijaz was unrestrained in the rear left passenger seat. As a result of the collision he sustained multiple injuries including comminuted femoral fractures to both his left and right legs with the left leg fracture presenting as a compound fracture, lung contusions, L1/L2 vertebrae traverse process fractures and a cranial injury resulting in multiple small haemorrhages.

31. He also sustained a significant amount of facial and oral trauma, including a Le Fort II fracture of left face, a Le Fort III fracture of right face, a fracture to his palatal bone, a comminuted nasal bone fracture and naso-orbital ethmoid (NOE) fractures.

32. Mr Ijaz underwent surgery on 26 March 2015 in relation to his leg fractures. His leg fractures were fixed by way of open reduction and internal fixation. Bilateral femoral nails were inserted into his left femur. Those nails will not be removed.

33. He also underwent facial surgery on 30 March 2015. The surgery required an open reduction and internal fixation of the mid-facial fractures. Arch bars were inserted to the top and bottom arches with 249 SS wire. The Le Fort lI and III fractures were exposed bilaterally and plates were inserted on both the left and right side of Mr Ijaz's face. A 7-hole 20mm Martin straight plate was placed across the fragments of the right maxilla. A 4-hole plate was also placed on the left side of his face. A closed reduction of nasal bones was also completed and a nasal splint was externally secured.

34. After surgery, Mr Ijaz was told to keep his head up at 30 degrees, not to blow his nose and to keep ice to his face. On the ward, he was placed on a liquid diet, told not to blow his nose for a further 2 weeks and was given IV antibiotics.

35. Mr Ijaz was discharged from hospital on 9 April 2015 after 19 days in hospital. The arch bars in his face were later removed. He ate soft food for 40 days after his release and was on crutches until 20 May 2015.

Injuries - Mohammed Aslam

36. Mr Aslam was unrestrained in the rear right passenger seat. As a result of the collision he sustained multiple injuries including a left femoral head fracture- dislocation (dislocation of hip), left distal radius fracture (wrist), a fracture to his right medial cubital (elbow) and fractures to his T10/T12 thoracic vertebrae. He also sustained facial fractures, fractures to his 8th and 9th ribs, a mid-sternum fracture, right side lung contusion, and a small laceration to his liver.

37. Mr Aslam underwent a closed reduction to his left hip on 22 March 2015. After further consultation, it was decided that Mr Alsam required further surgery on his femur. This was performed on 27 March 2015 by way of open reduction and internal fixation with screws. The fractures to his T10/T12 vertebrae were treated non-operatively and a plaster cast was placed on his wrist.

38. Mr Aslam was discharged from hospital on 10 April 2015 after 20 days in hospital.

Injuries – the applicant

39. The applicant also sustained a number of injuries as a result of the collision, including a punctured lung, a fracture to his 10th rib, bilateral mandibular facial fractures, and a Type III odontoid fracture (cervical vertebra number 2).

40. In relation to his facial fractures, he was seen by the oral maxillofacial surgery team. The applicant required operative fixation of these fractures on 24 March 2015 and was later placed on a soft food diet for 6 weeks. The applicant was also treated with a cervical spine collar.

Record of interview with applicant

41. Due to his facial injuries, the applicant was unable to be interviewed for some time. On 2 June 2015, arrangements were made for the applicant to attend Merrylands Police Station whereby he was cautioned and placed under arrest.

42. The applicant agreed to participate in a recorded interview and told police the following:

a.   He resided at XX Merrylands Road, Merrylands;

b.   He worked as a courier driver. He was currently in Australia on a student visa studying Business through the Kings Own Institute. After he finishes his studies he wanted to go back to Pakistan.

c.   Before the offence, he was making enquiries to obtain a NSW Driver's Licence. He was in the process of booking his Driver's Knowledge Test.

d.   On 21 March 2015, he woke up at 7.00pm and went to his friend's house in Styles Place, Merrylands. There he consumed two beers. At about 10.00pm he took the anti-depressant Zoloft as he gets home sick.

e.   At about 10.15pm he picked up his housemate from Merrylands railway station. They purchased some food from Kabul House and while they were there they met his housemate Hashim. They all travelled back to Styles Place. Sometime in the evening they were joined by Mohommad Aslum who had walked to Styles Place. It takes about 15 minutes to walk from the applicant’s address to Styles Place.

f.   Whilst the applicant was at Styles Place he ate dinner and had one glass of red wine. He then spent the evening talking, watching a movie and playing cards.

g.   At about 3.00am they decided to leave. He did not feel affected by alcohol.

h. In relation to the offence, the applicant told police that he saw the amber light was going to turn red so he tried to 'pass' his vehicle through the amber light. He told police that he sped up and when he passed the light, he felt the vehicle was not in his control. He tried to brake but he hit the building. He said he applied full pressure on the foot brake and when that didn't work, he pulled the handbrake.

i. He told police that prior to that night, he felt the vehicle had a problem with the brakes.

j. He told police that he thought the speed limit on McFarlane Street was 50 or 60km/h. When he reached the restaurant ‘HRT 2 HRT’ he accelerated to about 60-65km/h in order to make the lights. He was probably travelling at 70km/h when he went through the intersection. His intention was to turn left into Treves Street. He thought he could negotiate the turn safely at the speed he was travelling.

k. He said the light was still amber when he crossed into the T-intersection.

I. He could not remember if there was any conversation in the car prior to the collision. He just remembers waking up at Westmead Hospital. He was discharged after a week in hospital.

m. He told police that he had driven on McFarlane Street before, as it was right in front of his house. He drove on that road on a daily basis.

43. The applicant was charged on 27 July 2015.

Speed analysis

44. The CCTV footage of the offence was analysed by the NSW Police Forensic Imaging Section and a speed analysis was undertaken. Based on the footage and further validation testing, it was determined that the applicant’s vehicle travelled 126.38 metres in 4.1 seconds down McFarlane Street. This equated to a conservative average speed of 110.9 km/h at the time of the offence.

Mechanical examination

45. On 2 April 2015, police examined the vehicle that the applicant was driving. As a result of the mechanical examination, it was found that there were no mechanical faults or defects which might have been a contributing factor towards the collision.

46. In particular, the following was found:

a.   The accelerator system was operating correctly prior to the collision;

b.   The steering system was operating correctly prior to the collision;

c.   The braking system was operating correctly prior to the collision. The brake fluid was at a serviceable level, the brake pedal was firm and at a good working height, the brake pedal pad was in good condition and when pressure was applied to the braking system, there were no leaks detected, and lock up was achieved at all four wheels;

d.   The tyres had sufficient pressure and tread depth. The tyres were not a contributing factor towards the collision occurring;

e.   No issues were identified with the driveline of the vehicle that could have caused the collision.

Offender's blood-alcohol content

47. A blood sample taken from the applicant at 4.00am on the day of the offence was later sent for analysis to determine the concentration of any alcohol present in the offender's system.

48. The concentration of alcohol present in the sample was not less than 0.120 grams of alcohol in 100 millilitres of blood.

49. Expert analysis of that blood sample by Clinical Forensic Pharmacologist Judith Perl indicated that at the time of the collision, the offender's BAC would have been not less than 0.130g/100ml, with an upper limit of 0.145g/100ml and a most likely level of 0.135g/100ml

50. In her report, Dr Perl indicated that, at a BAC of over 0.100 grams per 100ml, there would be significant impairment of driving ability in all people. At the BAC that the applicant had, there would have been a very substantial impairment of driving skills, including a very significant impairment of reactions skills, lane keeping ability, perceptions, judgment and decision making, visual scanning and peripheral vision and vigilance.

51. Dr Perl further noted that Zoloft is a brand name for the drug Sertraline which is used for the treatment of depression. It is not recommended that it be used on an ad hoc basis. Studies have shown that single oral doses of up to 100 mg or repeated doses up to 200 mg are nearly free of adverse effects in both patients and healthy volunteers, and that Sertraline did not interact with alcohol to alter the impairing effects of alcohol. Zoloft is not considered to impair driving ability.

Subjective matters

52. His Honour made the following findings. He found that the applicant was of good character, that his prospects of rehabilitation were good, that it was unlikely he would reoffend, that he was deeply remorseful and his remorse had been demonstrated by his care for his victims, that he pleaded guilty at the earliest opportunity and that he sustained serious injuries himself.

53. His Honour noted that each of the persons injured in the vehicle had written a letter to the court requesting leniency on his behalf. Those letters testified to his remorse and to his care for them after the accident and while they were in the process of recovering from their injuries. His Honour noted other references from the applicant’s employers, from his landlord and from a friend, all of whom spoke glowingly of his personal characteristics.

54. His Honour noted a report from a consultant psychologist, Anne Lucas. She noted an unexceptional upbringing, and that the applicant had come to Australia to gain qualifications that would see him better placed for personal advancement when he returned to Pakistan. He suffered from homesickness followed by depression. A general practitioner provided him with Zoloft which he took intermittently due to its side effects which included drowsiness. Ms Lucas referred to the applicant’s diagnosis of depression, noting that it predated the offences by some 12 months.

55. His Honour noted the account the applicant gave to Ms Lucas about the events leading up to the accident. His Honour said that, having regard to the objective facts relating to the applicant’s speed and blood-alcohol reading, his Honour was unpersuaded by his unsworn statements concerning his alcohol consumption and the speed at which he was driving. The applicant did not give evidence at the sentence hearing. Nevertheless, his Honour said that the matters he had identified collectively presented a strong subjective case.

56. His Honour also had the benefit of a pre-sentence report where the account given by the applicant in his ERISP differed to some extent. He told the Community Corrections officer that on the night of the offence he consumed a few beers at a friend’s house. He subsequently attended another residence where he consumed a further four beers as well as a glass of wine. He said also that he had taken a Zofolt tablet on the night of the offence. He told the Community Corrections officer that, while he was initially reluctant to drive, given the peer influence and the short distance from home, he made the decision to drive. The Community Corrections officer noted that the applicant made no attempt to minimise his actions or deflect blame.

Grounds of appeal

Ground 1:   His Honour erred by failing to take into account the applicant's Major Depressive Disorder, for which he was taking medication, at the time of the offences.

Submissions

57. The applicant submitted that he was taking Zoloft for depression in a non-prescribed manner because it made him feel "woozy" and tired. The applicant drew attention to what the psychologist had said about the side effects which included drowsiness, dizziness, feeling lightheaded and having a dry mouth. He also drew attention to what Dr Perl had said, that either he was being provided with inadequate instructions in the use of Zoloft or was provided with incorrect instructions about them.

58. The applicant submitted that his depression had lowered his level of assertiveness, making it more difficult for him to resist the urgings of his friends to drive the vehicle on the night.

59. The applicant submitted that the psychologist provided evidence that Zoloft may have contributed to the applicant misjudging his level of intoxication and the speed at which he was traveling. The applicant submitted that inasmuch as the sentencing judge rejected the psychologist's opinion that the applicant may not have been reckless at the time he drove, his Honour failed to take into account the psychologist’s expert opinion on his depression and the likely effect of Zoloft on his judgment. The applicant submitted that the sentencing judge did not refer to Dr Perl's report concerning the adverse effects of Zoloft on driving. It followed, the applicant submitted, that the sentencing judge must have considered that drug and its potential effects to be irrelevant to the issue of the applicant's judgment about his own impairment.

60. The Crown submitted that for the applicant to establish this ground of appeal, he must first show that the sentencing judge failed to take into account his major depressive disorder and the fact that he was taking medication for that disorder at the time. The Crown submitted that a fair reading of the sentencing remarks disclosed that his Honour did take those matters into account.

61. The Crown submitted that the submissions now made, namely, that the applicant’s depressive disorder mitigated the his moral culpability because of his lowered assertiveness and because his judgment may have been impaired by the effects of Zoloft and alcohol, were not submissions that were made to the sentencing judge. Reference was made to what was said in Zreika v R (2012) 223 A Crim R 460.

62. The Crown submitted that the psychologist was not an expert in pharmacology and was not in a position to give expert evidence about the effect of Zoloft on the applicant’s behaviour. The Crown submitted that the report of Dr Perl referred to studies showing that Zoloft was nearly free of adverse effects, and that it did not interact with alcohol to exacerbate the impairing effects of alcohol.

Determination

63. In his Remarks on Sentence, the sentencing judge said this in relation to the applicant’s depression and use of Zoloft:

A report by Anne Lucas, consultant psychologist, details what I consider to be an unexceptional upbringing. He has come to Australia to gain qualifications that will hopefully see him better placed for personal advancement when he returns to Pakistan. Unsurprisingly perhaps, as a result of language and cultural differences and difficulties, he experienced a bout of homesickness followed by depression. A general practitioner provided him with Zoloft which he took intermittently due to the side effects, including drowsiness. The diagnosis of depression is confirmed by Ms Lucas for the reasons detailed in her report at pp 39 to 54. The depression predates the offences by some 12 months approximately.

The offender has provided Ms Lucas with a history of the events leading up to these offences. Having regard to the objective facts relating to his speed and blood alcohol reading I am unpersuaded by the unsworn history concerning his alcohol consumption and the speed at which he was driving.

I note that he had taken Zoloft this evening. I note that the opinion of Judith Perl, as revealed in the agreed facts, is that Zoloft is not recommended to be used on an ad hoc basis. I note that Zoloft is said not to interact with alcohol to alter the impairing effects of alcohol, although the label on the box (tendered as part of exhibit 1) clearly states it may affect mental alertness and/or coordination and that driving a motor vehicle or operating machinery should be avoided if affected.

Ms Lucas' report at para 74 to 76 suggests the possibility that the combination of alcohol and Zoloft may have impaired the offender's judgment when he got behind the wheel of the car and that he had not been simply reckless. In my view getting behind the wheel of a car when you are .13, having taken medication which past experience teaches you makes you drowsy, irrespective of alcohol consumption (and drowsiness is the reason why you take it infrequently) simply, approaches a high degree of recklessness. That recklessness is exacerbated by driving in the manner alleged with three passengers in a car. Put differently, I do not consider the analysis of Ms Lucas as mitigating the offender's conduct.

64. It is clear from that passage that his Honour did not fail to take into account the applicant’s major depressive disorder. His Honour made specific reference to those parts of the psychologist’s report that dealt with that diagnosis. His Honour also made detailed reference to what Dr Perl had said about Zoloft and set out what Dr Perl had said at the end of her report about studies that had been conducted on patients and volunteers with Zoloft and whether it interacted with alcohol and how it might impair driving ability.

65. The psychologist was not an expert in pharmacology and even if some regard could be had to her expressed views about Zoloft, those views could not prevail in the face of the evidence from the expert pharmacologist. There was, in any event, no evidence to suggest that drowsiness had contributed to the accident.

66. In relation to the effect of the depression on the applicant’s assertiveness, the psychologist said this (at para 78):

His depression is likely to have made his already low levels of assertiveness lower. Although Mr Ul-Hassan said he had felt Ok to drive, it was noted that he was driving his friend's car the request of his friends. If he was more assertive he may have declined.

67. That passage was not drawn specifically to his Honour’s attention, nor was any submission made in relation to the applicant’s lack of assertiveness flowing from his depression. The psychologist’s statement that if he was more assertive he may have declined to drive can only be seen to be speculation on her part. A more likely explanation might be, as Dr Perl said, that a blood alcohol concentration of 0.130g/100ml might have produced disinhibition and risk-taking behaviour.

68. The sentencing judge took into account the applicant’s major depressive disorder and took into account the likely effect of Zoloft on his behaviour at the time. No error is shown. This ground is not made out.

Ground 2:   His Honour erred in finding that the applicant's conduct amounted to an "abandonment of responsibility" and that his moral culpability was high

Submissions

69. The applicant drew attention to the list of aggravating factors from R v Whyte (2002) 55 NSWLR 252 that may inform an assessment of the objective seriousness of this offence. The applicant, while accepting that his speed and intoxication were reprehensible, sought to demonstrate that few of the other factors referred to were present at the time of the offending. The applicant said that his driving was not erratic in the sense that he was attempting to negotiate the left turn before colliding with wall, that he was not showing off or driving in a competitive style, that the total length of the journey was only a few minutes, that apart from the passengers in the vehicle, no one else was put at risk, that he did not ignore warnings nor was he escaping a police pursuit, and neither was sleep deprivation or failing to stop a relevant factor.

70. The applicant submitted that his moral culpability was not at the extreme end of completely abandoning responsibility, but was at the lower end of the mid-range of objective seriousness.

71. The applicant submitted that although the injuries to each of the victims in the accident were serious at the time, each of them made a complete recovery.

72. The Crown submitted that the characterisation of an offender's moral culpability was classically within the role of the sentencing judge. It would be necessary for the applicant to satisfy the Court that the finding was not open on the material before the sentencing judge.

73. The Crown submitted that the applicant’s submissions focused unduly on the absence of other matters which, if present, would have warranted a finding that his moral culpability was extremely high.

Determination

74. In his Remarks on Sentence, his Honour said:

As can be seen from the facts the manner in which the offender drove his vehicle clearly amounts to abandonment of responsibility and his moral culpability is accordingly high. Indeed that must inevitably be so by virtue of the existence of the circumstance of aggravation to which the accused has acknowledged his guilt. … On any objective view this is a very bad case of aggravated dangerous driving, even before moving on to a consideration of the injuries sustained by his passengers. …

In my assessment these offences are comfortably within the mid-range of objective seriousness for the offence of aggravated dangerous driving causing grievous bodily harm.

75. The applicant’s argument about the absence of factors that inform an assessment of objective seriousness suffers from the problem reiterated in a number of recent judgments of this Court, where the Court has characterised such an argument as being “the offence is less serious because it could have been more serious”: Bravo v R [2015] NSWCCA 302 at [45]; Mills v R [2017] NSWCCA 87 at [57]; Pereira v R [2018] NSWCCA 171 at [36]-[38]. The matter was most clearly put by Fullerton J (Hoeben CJ at CL and Davies J agreeing) in GW v R [2018] NSWCCA 79 at [31] where her Honour said:

… This Court has repeatedly observed that the objective gravity of an offence is not assessed by the absence of features which would elevate the particular offending into a different category of seriousness.

76. The assessment of objective seriousness and the moral culpability of an offender is classically within the role of a sentencing judge: Mulato v R [2006] NSWCCA 282 at [37]. It cannot be said in the present case that there was no evidence to support the findings for the reasons given by the sentencing judge.

77. I would reject this ground.

Ground 3:   His Honour erred by failing to take into account the degree of permanent injury to the victims and that they all made a complete recovery.

Submissions

78. The applicant submitted that while the Court must have regard to the degree of injury caused in any given case, a proper assessment of the permanence of any injury to the victims at the time of sentencing was critical. The applicant submitted that while it was accepted that the injuries to each of the victims were serious at the time, each of the victims eventually made a complete recovery and none of the injuries could be described as catastrophic or life-altering.

79. The Crown submitted that there was no expert evidence before the Court as to whether the victims in fact made a complete recovery. Nor did the applicant make any such submission to the sentencing judge. The Crown submitted that both Mr Ijaz and Mr Islam underwent internal fixation with screws into their femurs that were permanent.

80. The Crown submitted that a fair reading of the sentencing judge’s summary of the victims' injuries and his reference to their recovery leads to the inescapable conclusion that his Honour was aware of their injuries and that they were not such as to prevent them from continuing with their lives without ongoing physical difficulties or impediments.

Determination

81. The extent of the injuries sustained by the victims were detailed in the agreed facts. His Honour set out an extensive summary of the injuries sustained by each of the victims. His Honour also had before him and made reference to letters from each of the victims which spoke in glowing terms of the applicant and what he had subsequently done for each of them. Contrary to the applicant’s submissions, none of those letters disclosed that the victims had made a complete recovery from their injuries. Evidence of their complete recovery was only provided to this Court by leave at the conclusion of the hearing of the appeal. It was tendered on the usual basis, that is, if the Court came to re-sentence the applicant.

82. In the light of the detailed recitation of the injuries by the sentencing judge there is no basis for the assertion that his Honour failed to take into account the degree of any permanent injury to the victims.

83. I would reject this ground.

Ground 4:   His Honour erred by failing to take proper account of the applicant's extra curial punishment as a mitigating factor on sentence.

Submissions

84. The applicant submitted that serious injuries to an offender due to dangerous driving may be taken into account as extra curial punishment. The applicant submitted that while the sentencing judge included the applicant's serious injuries in the list of matters informing the strong subjective case, his Honour said nothing more about them.

85. His Honour’s description of the applicant's injuries as “not insignificant but in my estimate … less than those sustained by his passengers", was submitted by the applicant to reveal error, in that his Honour did not take account of those injuries independent of such a comparison. Further, they were not taken into account as extra curial punishment going to mitigation.

86. The applicant submitted that his relationship with the victims might also give rise to extra curial punishment and that was so in offences of this type where the victims are not strangers. Reference was made to R v Howcher [2004] NSWCCA 179.

87. The applicant pointed to his deep remorse and shame at the consequences of his driving, and to his care and attention to each of the victims after the accident, as demonstrated in the letters from the victims.

88. The Crown accepted that injuries that are self-inflicted in the course of the commission of an offence are capable of being taken into account as extra curial punishment. The Crown submitted that whilst passing reference was made by the applicant’s counsel to the applicant’s injuries when addressing the sentencing judge, no submission was made that his injuries should be taken into account as extra-curial punishment.

89. The Crown submitted that, in any event, his Honour listed the applicant's serious injuries as part of the strong subjective case, and that those injuries were the only matter on that list not required to be taken into as a mitigating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In that way, his Honour recognised that the injuries were a mitigating factor on sentence in a way that can only be derived from its characterisation as extra curial punishment.

90. The Crown submitted that the ground was one that effectively asserted that insufficient or inadequate weight was given to the factor inasmuch as the complaint was that his Honour had failed to take proper account of the applicant's injuries.

Determination

91. There appeared to be two aspects to this ground of appeal. The first concerned the suffering of injury by the applicant. The second concerned the suffering of injury by the victims.

92. The sentencing judge said this in relation to the applicant:

Mr Hassan himself, the offender, also sustained a number of injuries as a result of the collision, including a punctured lung, a fracture to his 10th rib, bilateral mandible facial fractures and a Type III odontoid fracture (cervical vertebrae No. 2). In relation to his facial fractures, he was seen by the Oral Maxillofacial Surgery team. The offender required operative fixation of these fractures on 24 March 2015 and was later placed on a soft food diet for six weeks. He was also treated with a cervical collar. Due to his facial injuries, the offender was unable to be interviewed for some time. On 2 June 2015, arrangements were made for the offender to attend the Merrylands' Police Station whereby he was cautioned and placed under arrest.

93. His Honour thereafter included in his list of matters going to make up his strong subjective case that the applicant had sustained serious injuries himself.

94. His Honour was not asked to take those injuries into account as amounting to extra curial punishment. In Zreika, Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said at [79]-[82] that this Court was a court of error, that there was a practical expectation that an offender's legal representative would make submissions to the sentencing judge at first instance by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand, and that this Court would not lightly entertain arguments that could have been put, but were not advanced on the plea.

93. In that way, it is difficult to see how error is shown in the present case when no finding was made in respect of a matter about which the sentencing judge was not asked to make such a finding.

94. As to the second aspect, after dealing with the applicant’s subjective matters, the sentencing judge said:

Each of the victims has written a letter to the Court requesting leniency on behalf of the offender. They testify to remorse and to his care for them after the accident and whilst they were in the process of recovering from the injuries. Other references from his employers and landlord and friend speak glowingly of his personal characteristics.

97. In Howcher, Hulme J (with whom Grove J and Smart AJ agreed) said at [16]:

[16]   Despite the reference in R v Whyte to the victim being a stranger and the extent of injury to the driver or persons known to him there is no discussion in that case of the significance of any such event. Nor as a matter of logic does it follow that the fact the victim is not a stranger of itself justify leniency. Rather is it a case that the offender’s relationship with the victim may be some indication of extra-curial suffering flowing from the occurrence.

98. In the present matter, there was no evidence of suffering on the applicant’s part in relation to the victims. There was evidence of what the applicant had done for the victims. That was taken into account by the sentencing judge. In the absence of any other evidence or of any submissions made to the sentencing judge, no error is shown.

99. Finally, a ground of appeal that complains of failure to take “proper account” of some matter is a complaint about the weight that was given to that matter. Questions of weight are matters for the first instance judge: R v Baker [2000] NSWCCA 85 at [11]; Vaiusu v R [2017] NSWCCA 71 at [29].

100. I would reject this ground.

Ground 5:   His Honour erred by failing to take into account the applicant's unblemished criminal and driving record.

Submissions

101. The applicant submitted that the sentencing judge’s list of subjective matters overlooked the fact that the applicant did not have any previous convictions and that his driving record was minimal. The applicant submitted that no other reference was made to his lack of any serious record by the sentencing judge.

102. The Crown submitted that his Honour’s reference to the various material put forward on the applicant’s subjective case necessarily took into account his unblemished criminal and driving record. The Crown submitted that during the sentencing proceedings his Honour said that he was not going to take a view of the applicant’s driving record which was adverse to him. The Crown submitted that his Honour was not obliged to say anything further, particularly in circumstances where the applicant was aged in his mid-20s and did not have a lengthy period of driving behind him.

Determination

103. The applicant had no criminal record. He had two matters on his driving record; one of them was exceeding the speed limit by not more than 10 km/h (camera detected) on 4 August 2015, and the other was driving without his headlight lit on 13 December 2014.

104. In submissions made on the applicant’s behalf to the sentencing judge, the applicant’s counsel said this:

…[T]he other thing which I think is quite usual in these sort of cases is that he has no criminal convictions, his traffic record is minimal. I understand your Honour might have raised some queries in relation to this traffic record. He’s had an offence that was committed in April 2015 and that can be explained as it wasn’t committed by the offender himself as he was in a state where he just got out released out of hospital, he had these disabilities it was actually committed by his flatmate that was driving the car… .

HIS HONOUR:   There’s a wall [scil. world] of difference between exceeding the speed limit by not more than ten kilometres an hour and exceeding the speed limit by 70 kilometres an hour –

MILANOVIC:   Certainly.

HIS HONOUR:   -- a world of difference. I’m not going to take a view of your client’s driving record which is adverse to him.

105. Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act requires the fact that an offender does not have any record or any significant record of previous convictions to be taken into account as a mitigating factor. Although his Honour listed other mitigating factors, including that he was of good character, he did not say anything about the applicant’s lack of a criminal record or that he effectively only had one minor driving matter on his driving record. The Crown faintly suggested that good character involved somebody not having a prior criminal record but, nevertheless, accepted that his Honour made no express reference to his lack of convictions.

106. This was an error by oversight on his Honour’s part. It is no answer to point, as the Crown did, to the exchange set out above at [104]. The Remarks on sentence were delivered almost five weeks after the sentencing hearing. It cannot be assumed that his Honour remembered that exchange where the Remarks were silent about the matter.

107. This ground is made out and requires the Court to resentence the applicant.

Re-sentence

108. Ground 6 asserted a manifestly excessive sentence. Senior counsel for the applicant accepted that the matters raised in support of this ground were applicable to the resentencing exercise if error was established. I shall therefore deal with the submissions of both the applicant and the Crown going to manifest excess as being relevant to the resentencing exercise.

Submissions

109. The applicant submitted that the offences involved one course of conduct, that is, dangerous driving, in which three separate persons, apart from the applicant, were injured. In those circumstances, he submitted that there should be a significant concurrency of either the indicative sentences or the individual sentences imposed. The applicant submitted that that would result in a lesser sentence than the aggregate sentence imposed by the sentencing judge.

110. The applicant submitted that the indicative sentences were, in any event, manifestly unreasonable because his Honour found that the sentences were in the mid-range of objective seriousness and because of the applicant’s strong subjective case. The applicant submitted, in any event, that the objective seriousness should be assessed as being at the lower end of the mid-range.

111. The applicant also relied on a table of comparable cases, accepting the limitations and qualifications that must necessarily be applied to those, which he submitted showed that there were only three cases since the guideline judgment in R v Whyte where aggregate sentences longer than in the present case had been imposed. The applicant submitted that one of those cases, R v Wright [2013] NSWCCA 82 involved one victim dying and the second having serious head, leg and pelvic injuries. The other two cases were Priovolidis v R [2016] NSWCCA 201 and Vale v R [2016] NSWCCA 154 where the applicant submitted much higher criminal culpability was involved than in the present case.

112. The Crown pointed to the following matters to suggest that no lesser sentence should be imposed:

(a)   The offence involved the serious aggravating feature of exceeding the speed limit by more than 70kph with a blood alcohol reading of at least 0.130;

(b)   The applicant was aware of the effect of Zoloft on him and yet drove;

(c)   Each of the victims suffered serious injuries;

(d)   The manner in which the applicant drove amounted to abandonment of responsibility;

(e)   The offences were comfortably within the mid-range of objective seriousness;

(f)   Each of the offences carried a maximum penalty of 11 years imprisonment;

(g)   The guideline judgment in Whyte established a guideline tariff of not less than two years imprisonment for an offence against s 52A(3) where, as here, the moral culpability was assessed as high. The guideline incorporates an allowance for the plea of guilty. Here the applicant was to be sentenced for the aggravated offence against s 52A(4) so that an appropriate increment was required;

(h)   The indicative sentences appropriately reflected the extent of the injuries suffered by the victims with the indicative sentence for the offence involving Mr Manzoor being six months longer than the others;

(i)   The aggregate sentence is shown to have incorporated partial accumulation of the indicative sentences; and

(j)   The adjustment for special circumstances reduced the aggregate non-parole period to 50% and was in that way generous to the applicant.

113. The Crown submitted that the comparable cases showed that the sentence imposed by the sentencing judge comfortably fitted within the range of appropriate sentences.

Determination

114. Although the applicant relied on no additional evidence in the event of resentence, leave was sought and granted at the end of the hearing for evidence to be filed in relation to the recovery of each of the victims from their injuries. The Crown did not oppose that evidence.

115. Each of the victims has sworn an affidavit saying that he is fully recovered from his injuries and does not suffer ongoing pain or discomfort. The only matter outstanding relates to Mr Ijaz who is due to consult with his orthopaedic surgeon with a view to having the screws in his leg removed. He says that he will do that if so advised by the specialist.

116. In my opinion the manner of driving of the vehicle and the surrounding facts clearly indicate that the moral culpability of the offending was high and that the offences sit within the mid-range of objective seriousness.

117. The subjective factors are strongly favourable to the applicant. He is of good character, he has no prior convictions, and his traffic record is such that it may be disregarded. His prospects of rehabilitation are good, he is unlikely to reoffend. He is deeply remorseful and that has been demonstrated by his care for the victims even before he was charged with the offences. He pleaded guilty at the earliest opportunity and he sustained serious injuries himself.

118. The serious injuries suffered by the victims who were and are friends of the applicant, his considerable care for them including payments of money on their behalf and assistance in obtaining employment after they had recovered from their injuries, should be regarded as some indication of extra-curial suffering flowing from the offences.

119. The applicant is entitled to a 25% discount for his early pleas. I consider that a finding of special circumstances should be made bearing in mind that it is his first time in custody, that custody will be spent some considerable distance from his family, and a custodial sentence will be more difficult by reason of his imperfect English and different cultural background. In addition, he suffers from depression that predated the offending, and that will make the custodial experience more severe.

120. Although three separate offences have been charged in addition to the PCA offence on the s 166 certificate, all offences arose from the same course of conduct. The guideline judgment in Whyte suggests that more than one victim would require an appropriate increment if one offence was charged. That points to a degree of notional accumulation where an aggregate sentence is to be imposed.

121. I consider that an aggregate sentence should be imposed in circumstances where all three offences of dangerous driving and the PCA offence arose from the same conduct. There must be significant notional concurrency whilst not overlooking that there were three separate victims.

122. I would propose a sentence of five years with a non-parole period of two years and six months. There is little to distinguish amongst the three victims in terms of the severity of their injuries, the number of operations needed, their time in hospital and their recovery from their injuries. I would propose the following indicative sentences:

Sequence 2 (Mr Manzoor):      2 years and 6 months

Sequence 3 (Mr Ijaz):      2 years and 6 months

Sequence 4 (Mr Aslam):      2 years and 6 months

Sequence 1 (s 166 certificate):    4 months

Conclusion

123. I propose the following orders:

1. Leave to appeal granted.

2. The appeal is allowed.

3. Quash the sentence imposed by Judge McLennan SC in the District Court on 15 December 2016.

4. In lieu, sentence the appellant to an aggregate sentence of five years imprisonment commencing 15 December 2016 and expiring 14 December 2021 with a non-parole period of two years and six months expiring 14 June 2019.

124. LONERGAN J:   I agree with Davies J.

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Decision last updated: 17 August 2018