You, Jae Bok v R

[2020] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

You, Jae Bok v R [2020] NSWCCA 71

Hearing dates:

20 March 2020

Date of orders:

15 April 2020

Decision date:

15 April 2020

Before:

Basten JA at [1];
Rothman J at [24];
Cavanagh J at [33]

Decision:

(1)   Grant leave to the applicant to appeal from the sentences imposed on him in the District Court on 14 June 2019.
(2) With respect to the sentence for the offence under s 53 of the Crimes Act of driving furiously causing bodily harm, delete from the record the statement:
“The offender is to be released to parole on 13 January 2020.”
(3)   Otherwise dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against sentence — dangerous driving occasioning death — whether sentencing judge erred in application of the guideline judgment — R v Whyte — use of remarks made in course of hearing to attempt to establish error — Crimes Act 1900 (NSW), s 52A

 

CRIME — appeals — appeal against sentence — manifest excess — whether sentencing judge failed to have regard to applicant's subjective circumstances

 

CRIME — appeals — appeal against sentence — principle in R v De Simoni — Crimes Act 1900 (NSW), s 52A

CRIME — appeals — appeal against sentence — clerical error in record of sentence entered for offence under Crimes Act 1900 (NSW), s 53 — record corrected

Legislation Cited:

Crimes Act 1900 (NSW), ss 52A, 53
Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 158; Div 2
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 42A, 50
Parole Legislation Amendment Act 2017 (NSW), Sch 3.2[1]

Cases Cited:

Aitken v R [2014] NSWCCA 201
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
Hughes v The Queen [2008] NSWCCA 48; 185 A Crim R 155
Legge v R [2007] NSWCCA 244
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
R v Karacic [2001] NSWCCA 12; 121 A Crim R 7
R v Kennedy [2000] NSWCCA 527
R v Nguyen [2008] NSWCCA 113
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Van Hong Pham [2005] NSWCCA 94
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Woodward v R [2014] NSWCCA 205

Category:

Principal judgment

Parties:

Jae Bok You (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Stratton SC with J Park (Applicant)
D Patch (Respondent)

  Solicitors:
CSY Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/394032

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

14 June 2019

Before:

Turnbull SC DCJ

File Number(s):

2017/394032

Judgment

1. BASTEN JA: On 14 June 2019 the applicant, Jae Bok You, was sentenced by Judge Turnbull in the District Court at Parramatta for two offences arising out of a serious motor vehicle accident. He seeks leave to appeal the severity of the sentence for dangerous driving occasioning death.

2. The facts, as agreed by the parties, have been summarised by Cavanagh J, and need not be repeated. Suffice it to say that on the afternoon of 22 December 2017, a vehicle driven by Mr You collided with a parked car in which there were two men. One, then in the driver’s seat, Barry Polgase, was fatally injured and died at the scene of the accident. The other, Tjun Hian Michael Heuw, was seriously, but not fatally, injured. With respect to the death of Mr Polgase, Mr You was charged with driving in a manner dangerous occasioning death, under s 52A(1)(c) of the Crimes Act 1900 (NSW). He was sentenced to a period of imprisonment of 4 years 1 month, after a discount of 25% for an early guilty plea. A non-parole period of 2 years 7 months was fixed. The commencement of the sentence was accumulated on 5 months of the non-parole period fixed with respect to an offence of furious driving causing bodily harm to Mr Heuw, under s 53 of the Crimes Act. For that offence, a sentence of 10 months was imposed, with a 7 month non-parole period.

3. Mr You (“the applicant”) sought leave to appeal from the sentence imposed for the offence of dangerous driving occasioning death.

4. Subject to what follows, I agree with the reasons given by Cavanagh J. I also agree with the proposed orders, subject to one qualification with respect to the variation of the lesser sentence. That may be dealt with first. There are further observations below with respect to the use made by counsel for the applicant of the transcript of the sentencing hearing.

Error in recording sentence

5. As noted by Cavanagh J, in delivering his judgment on sentence, the judge identified the sentence for the more serious offence as one of “four years and six months.” [1] That was an error; the overall effective term of both sentences was 4 years 6 months. The term for the more serious offence was 4 years 1 month. The period of accumulation accounted for the additional 5 months.

   1.    Sentencing judgment, p 20.

6. It is clear that there was a slip at one point in delivering the judgment. That slip does not need to be corrected unless the orders as entered reflected the incorrect statement. In fact the orders entered on JusticeLink were correct in relation to the more serious offence. However, it appears that there was an error in entering the sentence for the lesser offence. The principal elements of that sentence, namely that it was “a term of imprisonment of 10 months to commence on 14 June 2019 and expiring on 13 April 2020 with a non-parole period of 7 months”, were correctly entered. However, the record then states:

“The offender is to be released to parole on 13 January 2020.”

7. Why that statement was added is unclear; it was correct to say that the non-parole period ended on 13 January 2020; it was not correct to say that the offender was to be released on that date. That statement formed no part of the orders pronounced in open court; indeed it contradicted the statement made by the sentencing judge to Mr You that he would “be eligible to be released to parole, but not before 13 June 2022.” [2]

   2.    Sentencing judgment, p 21.

8. The most likely explanation for the inappropriate recording is that it was added by the officer of the court who entered the orders. It may have been added on the basis that such an order was customary at a time when s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW) required that a court imposing a sentence of 3 years or less make an order directing the release of the offender on parole at the end of the non-parole period. Nevertheless, such an order was not mandatory where it appeared that the offender might in fact not be eligible for release at that time because of some other sentence to which he or she was subject: former s 50(2).

9. Whether or not that is indeed the explanation for the entry, it can provide no justification for such an order since the repeal of s 50, effective from 26 February 2018. [3] Since that time, release pursuant to a “statutory parole order” is effected for offenders subject to a sentence of 3 years or less by s 158(1) of the Crimes (Administration of Sentences) Act 1999 (NSW). Release is not, however, authorised pursuant to that provision where the offender is “also serving a sentence of more than 3 years for which a non-parole period has been set unless the offender is entitled to be released under Division 2”: s 158(4). A person is only to be released on parole under Div 2 (which applies to sentences of more than 3 years) on the order of the Parole Authority. That will only occur where the offender has served the non-parole period of each sentence for which a non-parole period has been set: s 126(2).

   3. Parole Legislation Amendment Act 2017 (NSW), Sch 3.2[1].

10. To correct this clerical error, leave should be granted with respect to the sentence for the offence under s 53 of the Crimes Act and the offending words deleted.

11. Clearly no one acted on this order or the offender would no longer be in custody. The fact that the order was entered without regard to the actual orders made in court is troubling. Some inquiry should be made in the District Court to determine how that happened.

Use of remarks in course of hearing

12. As explained by Cavanagh J, the applicant submitted that the sentencing judge had misunderstood the criteria specified in the guideline judgment of R v Whyte. [4]

    4. (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”).

13. Whyte identified a number of characteristics of what was described as a typical case for offences under s 52A of the Crimes Act. One of those characteristics was identified as “plea of guilty of limited utilitarian value.” [5]

    5.    Whyte at [204(vii)].

14. It is not in dispute that the present case did not satisfy that characteristic; there was an early plea for which the full discount of 25% was allowed, indicating full (not limited) utilitarian value. There was no indication in the sentencing judgment that the judge did not appreciate that the characteristic identified in Whyte was not present. Rather, after noting the relevance of Whyte, and the manner in which it could be used, the judge stated: [6]

“There are aspects of this matter which set it outside what was said to be, in that case, a frequently recurring case of an offence under the section.”

6.    Sentencing judgment, p 7.

15. This statement was patently true; the applicant was not a “young offender”, he suffered injuries which were reasonably serious, and the plea of guilty was accorded its full utilitarian value. The judge did not specifically note these items, but clearly considered the guideline (which was in negative terms, stating only that a custodial sentence of less than 3 years should be exceptional) was of limited assistance because a number of aggravating factors were present, including “abandonment of responsibility”, referring to a high degree of moral culpability. [7]

    7.    Whyte at [223]; sentencing judgment, p 8.

16. The assertion of error depended entirely upon an exchange with counsel in the course of the sentencing hearing in which the judge, after identifying that a discount of 25% would be given for the plea inquired, “The guideline judgment reflects an early plea doesn’t it?” Counsel replied, “Early plea of limited utilitarian value” and the judge said, “Yes, limited utilitarian value.” Counsel responded, rather brusquely it seems, “So just bear that in mind.”

17. Although counsel’s first response was ambiguous, the judge immediately and correctly identified the relevant criterion. If there were any basis for thinking that he may have got it wrong, it was not perceived by counsel appearing in the case. The debate immediately continued with counsel taking issue with a statement by the prosecutor that there was “an overwhelming case”, as if that diminished the utilitarian value of the plea. Counsel was right in that respect and the judge immediately agreed.

18. In short, the passage in the transcript may have revealed an ambiguous statement by counsel for the applicant; it did not reveal error on the part of the sentencing judge.

19. More importantly, the attempt to rely upon the exchange in the course of the hearing was misconceived. Even if there were a misstatement in the course of the hearing, judicial error is not to be imputed by importing something said in the course of an exchange with counsel into the written judgment.

20. It is not entirely clear how such a submission could be relied upon by experienced senior counsel. It is however, not uncommon in this jurisdiction for the court to be invited to embark on a similar exercise of construing reasons by reference to exchanges with counsel. Very occasionally, that course may be warranted, for example where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions. This case did not fall into that category; the reasons were comprehensive and clear and were delivered two months after the hearing.

21. It is possible that the practice of referring to a judgment on sentence (that phrase being used by the judge in this case) by the depreciatory phrase “remarks on sentence”, may tend to equate those “remarks” with remarks made in the course of the hearing. The phrase “remarks on sentence” is, in any event, an inaccurate description of the judicial function being exercised in delivering a judgment. It might be better if that terminology were abandoned, despite long standing usage and the habits of a generation.

22. In any event, in the present case reliance upon the transcript did not assist the applicant.

Orders

23. For these reasons, as well as those of Cavanagh J, I would propose the following orders:

1. Grant leave to the applicant to appeal from the sentences imposed on him in the District Court on 14 June 2019.

2. With respect to the sentence for the offence under s 53 of the Crimes Act of driving furiously causing bodily harm, delete from the record the statement:

“The offender is to be released to parole on 13 January 2020.”

3. Otherwise dismiss the appeal.

24. ROTHMAN J: I have had the advantage of reading in draft the Reasons for Judgment of Cavanagh J, with which I agree fully. I have also had the benefit of reading the additional comments of Basten JA, with which I also agree. The comments I now make do not, in any way, detract from the agreement or qualify the reasons given by the other members of the Court.

25. During the course of the sentencing judgment, [8] there was reference to the judgment of the High Court in De Simoni. [9]

    8.    Sentencing Judgment, p 8.

    9. R v de Simoni (1981) 147 CLR 383; [1981] HCA 31 (“De Simoni”).

26. His Honour had referred at some length to the degree of intoxication being in the "mid-range" and the nature of the aggravation it thereby caused. In the course of so doing, his Honour said:

“The Crown reminds the Court not to fall, though, into the error of aggravating the offending in this instance to a level which might breach the so-called Di Simoni [sic] principle by exposing the offender to a sentence at the aggravated level provided by a separate offence category under s 52A(2). I do not do so."

27. The principles in De Simoni are not so easily avoided. The principles established by the High Court's reasons for judgment in De Simoni clarify that circumstances of aggravation, not alleged in an indictment, cannot be relied upon for the purposes of sentencing, if those circumstances could have been made the subject of a distinct charge: De Simoni. [10]

    10. Ibid, at [9].

28. The reference in the judgment of Gibbs CJ was to the principle at common law, but subject to express provision in a statute, is required to be taken into account in dealing with statutory offences. If, as the sentencing judge seems to assume, a mid-range prescribed content of alcohol was such as to give rise to circumstances of aggravation under s 52A(7) of the Crimes Act, then having a prescribed content of alcohol at the mid-range could not be taken into account in the sentencing for an offence under ss 52A(1) and 52A(3) of the Crimes Act.

29. Fortunately, the term "prescribed concentration of alcohol" in s 52A(7) of the Crimes Act, is defined in s 52A(9) as meaning a concentration of 0.15g or more of alcohol in 100mL of blood. The concentration of alcohol in the applicant's blood, at the time of the accident, was found to be 0.091g per 100mL, i.e. less than 0.15.

30. As a consequence, the applicant’s concentration of alcohol could never have been the subject of an aggravated offence under s 52A of the Crimes Act and no issue relating to the principles in De Simoni can arise.

31. If the definition in s 52A(9) of the Crimes Act were to have allowed aggravation, where the prescribed content of alcohol in the blood was at or greater than the concentration of alcohol in the blood of the applicant, then the alcohol content could not be used at all and it would be insufficient for a sentencing judge to express the view that he was not using the alcohol as a form of aggravation as used in the more serious offence under the Crimes Act.

32. As stated, I agree with the reasons of Cavanagh J. I similarly agree with the orders proposed by Basten JA.

33. CAVANAGH J: By notice of appeal filed on 24 December 2019 the applicant, Jae Bok You, seeks leave to appeal from a sentence imposed by the District Court at Parramatta on 14 June 2019 with respect to one count of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act and another count of drive motor vehicle furiously and cause bodily harm contrary to s 53 of the Crimes Act.

34. The applicant pleaded guilty to the offences. The first count carries a maximum penalty of 10 years’ imprisonment with no standard non-parole period and the second count carries a maximum penalty of two years’ imprisonment with no standard non-parole period.

35. For the offence of dangerous driving occasioning death, the applicant was sentenced to a term of imprisonment of four years and one month with a non-parole period of two years and seven months. The date of commencement was 14 November 2019.

36. For the offence of furious driving causing bodily harm, the applicant was sentenced to a term of imprisonment of 10 months commencing on 14 June 2019 and expiring on 13 April 2020 with a non-parole period of 7 months commencing on 14 June 2019 and expiring on 13 January 2020.

37. The sentencing judge partially accumulated the sentences (by five months) so that the effective sentence was four years and six months expiring on 13 December 2023 with a non-parole period of three years commencing 14 June 2019, with a result that the applicant will be eligible for release on 13 June 2022.

38. When announcing the head sentence in respect of the dangerous driving occasioning death offence, the sentencing judge specified a head sentence of four years and six months which was an inadvertent slip or error. It is clear from the sentencing judgment that his Honour intended that the head sentence in respect of the dangerous driving occasioning death offence would be four years and one month and, with partial accumulation, the effective sentence would be four years and six months.

39. On the hearing of the appeal the applicant accepted that the reference to four years and six months was an inadvertent slip or error.

40. The applicant was granted leave to rely on amended grounds of appeal filed 19 March 2020. There are two grounds of appeal:

1. the sentencing judge erred in his application of the guideline judgment of R v Whyte; [11] and

2. the sentence imposed for the count of driving in a manner dangerous occasioning death was manifestly excessive.

   11. (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”).

Background facts

41. On 22 December 2017, the applicant attended a function at a Chinese restaurant in Darling Harbour. He consumed red wine and mixed drinks, having his first glass of red wine at 12.01pm and his fifth glass at 1:23pm. He was then shown (on the CCTV footage) consuming a dark colour mixed drink followed by a coffee and some water. He did not drink the last glass (the sixth glass) of red wine that was poured for him around 2.15pm.

42. After finishing his dessert, he left the restaurant around 2.52pm, catching a bus to West Pennant Hills where he lived.

43. At approximately 4.00pm, Barry Polglase, who was then 72 years of age, departed his residence at St Peters in a Nissan X Trail with Tjun Hian Michael Heuw as a passenger in the front seat. Mr Polglase was intending to drive to his sister’s house in Macksville for Christmas.

44. Between 4.30pm and 4.45pm Mr Polglase parked his vehicle on the northern side of North Rocks Road, Carlingford and intended to take a short break before travelling north on the freeway. After taking the dog out of the vehicle for a walk Mr Polglase and Mr Heuw sat in the vehicle having something to eat.

41. At approximately 5.00pm, Brett Atuell was driving East along North Rocks Road, Carlingford at approximately 50 kph when he heard an engine revving behind him and observed a vehicle travelling at high speed, which witnesses estimated to be approximately 100 kph. The vehicle, a white Nissan Maxima, was being driven by the applicant.

42. Mr Atuell observed the applicant pass Carlingford High School and veer left out of his lane, mounting a raised concrete island at a bus stop and colliding with a sign mounted on the island. The collision uprooted the sign and caused damage to the front bumper of the vehicle.

43. Despite this, the applicant continued to drive back into his lane, even as the offside corner of the front bumper and fog light fell off his vehicle. He then overtook Mr Atuell’s vehicle on the left for a short distance before he collided heavily with the rear of Mr Polglase’s vehicle which was still stationary. This caused Mr Polglase’s vehicle to collide with the vehicle in front of it and then mount the kerb before travelling along the nature strip and colliding with a power pole.

44. Mr Polglase’s vehicle moved a distance of approximately 15 metres as result of the impact with the applicant’s vehicle. Further, the vehicle in front of Mr Polglase’s vehicle was pushed into oncoming traffic and collided with another vehicle.

45. Mr Heuw was trapped in Mr Polglase’s vehicle until removed by Police and taken by ambulance to Westmead Hospital. He remained in intensive care for two days. He received significant injuries, including fractures.

46. As a result of the collision, Mr Polglase received fatal injuries. He could not be resuscitated and was pronounced dead at the scene of the collision.

47. The applicant was able to get out of his vehicle. He appeared dazed and unsteady on his feet and did not respond initially. He smelt strongly of alcohol. When conveyed to Westmead Hospital, a blood sample was taken.

48. Based on the opinion of an expert pharmacologist, Dr Judith Perl, it was agreed that the applicant most likely had a blood alcohol concentration of 0.091g/100ml at the time of the collision, within a possible range from 0.074g and 0.124g.

49. It was also agreed that with a blood alcohol concentration between 0.074g and 0.09g there would be the impairment of all major driving skills and more complex skills would be significantly impaired.

50. There was no evidence of braking by the applicant prior to or during the collision and there was no evidence of any mechanical defect or failure with the vehicle which may have been a contributing factor towards the collision.

51. On being interviewed on 31 December 2017 (in the presence of his son and a Korean interpreter), the applicant told Police that he had consumed two glasses of wine between 12.20pm and 1.30pm at a work lunch and he went home thereafter but was driving to go to the shops when the collision occurred. He recalled colliding with something but did not recall anything after that. He said that he rarely drinks alcohol.

52. The applicant pleaded guilty at an early stage appearing at the Local Court on 8 November 2018.

Sentencing judgment

57. The sentencing judge observed that a person would be guilty of the offence of dangerous driving occasioning death under s 52A of the Crimes Act if, at the time of the impact, the driver was under the influence of intoxicating liquor or driving at a dangerous speed or driving in a manner dangerous to another person or persons. The sentencing judge observed that the applicant was driving the vehicle in such a way as to encompass all three of those circumstances. This, his Honour observed, made the offending a most serious example of the offence.

58. The sentencing judge assessed the applicant’s moral culpability as high. He found that the combination of circumstances was such that the applicant abandoned responsibility when he got behind the wheel and drove the vehicle. The sentencing judge did not consider the journey of eight to nine minutes a short journey. There was reference to this finding as a particular in the original notice of appeal but it is not included as a particular in the amended notice and no error has been established in respect of that finding in any event. Further, his Honour considered that the collision with the signpost and damage to the car must surely have been a warning to him which he did not heed.

59. His Honour found:

“I assess this matter as being on the cusp of the high range of objective seriousness. The moral culpability involved in this case and the abandonment of responsibility is very high.”

60. Having recognised the early plea, the sentencing judge found that the applicant was remorseful and his contrition was palpable. He accepted his responsibility. His Honour allowed a 25 per cent discount for the utilitarian value of the early plea of guilty.

61. The sentencing judge accepted that the applicant had no criminal record beyond traffic matters and found that, prior to the commission of the offence, the applicant was of good character and indeed of exceptional character.

62. His Honour did not consider that personal deterrence was a factor in the sentencing process but considered that general deterrence loomed large. His Honour recognised a particular need for general deterrence in relation to drinking and driving.

63. The sentencing judge had regard to the victim impact statements including the statement from Mr Heuw, as well as the statement from Mr Polglase’s daughter, Jane Polglase and a friend, Billy Yip.

64. The sentencing judge paid particular regard to the applicant’s personal circumstances, his remorse and contrition. He noted his unblemished record prior to the offending. He noted the applicant’s concern about maintaining his financial obligations and that he was a breadwinner for the family.

65. The sentencing judge also referred to the injuries sustained by the applicant in the accident and his psychological response to the accident, including low mood and suicidal ideation and symptoms consistent with PTSD. He found that the applicant had been diligent in working to support his family, had been a member of his Church, had helped children with physical and mental disabilities and worked with the homeless. He had helped with the local Lions Club for many years. He is said to have made a significant contribution to the African Voluntary Missionary team. He was well-liked and well-regarded.

66. The sentencing judge accepted that the applicant was rehabilitated. The sentencing judge said he was convinced that the applicant will never re-offend.

Ground 1

67. The applicant submits that the sentencing judge erred in his application of the guideline judgment, Whyte.

68. A sentencing judge is obliged to take into account a guideline judgment given by this Court. The relationship between guidelines and other sentencing matters is set out in as set out in s 42A of the Crimes (Sentencing Procedure) Act:

42A   Relationship of guidelines and other sentencing matters

A guideline that is expressed to be contained in a guideline judgment--

(a)   is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and

(b)   does not limit or derogate from any such requirement.

69. The existence of the guideline judgment thus does not limit the requirement that the sentencing judge otherwise apply proper sentencing principles in the exercise of the sentencing discretion.

70. Guideline judgments are intended to be indicative only: R v Karacic. [12] The guidelines are appropriate indicators and may be used for the purposes of a sounding board or a check. [13] This was acknowledged by the sentencing judge.

    12. [2001] NSWCCA 12; 121 A Crim R 7 at [52].

    13.    Whyte at [87]–[88].

71. As observed by Callinan J in Wong v The Queen,[14] a guideline is merely an indicative starting point, not to be rigidly or mechanistically applied. The sentencing judge still has a real, judicial sentencing discretion.

    14. (2001) 207 CLR 584; [2001] HCA 64 at [168] (“Wong”).

72. Indeed in Legge v R,[15] Spigelman CJ, when referring to the judgment in Whyte observed:

“Subsequently in the case of R v Whyte this Court affirmed the basic nature of the guidelines as a check, a guide or an indicator or as a sounding board. Further Whyte contains a detailed analysis of the inter-relationship, in the context of formulating and applying the guideline, between the principle of individualised justice and the principle of consistency.

The manner in which his Honour appears to have applied the guideline would, if it were valid, constitute an impermissible confinement of the exercise of the sentencing discretion. His Honour appears to have proceeded on that basis. The authorities in this Court make it quite clear that a guideline is not a tramline.” (Citations omitted.)

15. [2007] NSWCCA 244 at [58]–[59].

73. In Whyte, the Court laid down a guideline judgment in what is described as a typical case in respect of an offence of dangerous driving causing death or bodily injury.

74. The typical case for offences under s 52A of the Crimes Act considered in Whyte (at [204]) has the following characteristics:

1. young offender;

2. of good character with no or limited prior convictions;

3. death or permanent injury to a single person;

4. the victim is a stranger;

5. no or limited injury to the driver or the driver’s intimates;

6. genuine remorse; and

7. plea of guilty of limited utilitarian value.

75. In respect of this typical case, Spigelman CJ in Whyte stated at [229]–[231]:

“229. The guideline for offences against s 52A(1) and s 52(A)(3) of the Crimes Act 1900 for the typical case identified above should be:

‘Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.’

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

231. In the case of the aggravated version of each offence under s 52A of the Crimes Act 1900, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment.”

76. The applicant submits that the sentencing judge erred on the basis that he must have considered that the guideline judgment reflected an early plea when it reflected a plea of limited utilitarian value, such that the sentencing judge must have misapplied the guideline judgment to the disadvantage of the applicant.

77. This submission was based on the following exchange between his Honour and then counsel for the applicant during the proceedings on sentence:

HOWELL: It’s accepted that he entered a plea in the Local Court and is entitled to 25%.

HIS HONOUR: The guideline judgment reflects an early plea doesn’t it?

HOWELL: Early plea of limited utilitarian value.

HIS HONOUR: Yes, limited utilitarian value.

HOWELL: So just bear that in mind. [16]

16.    Proceedings on sentence, 16 April 2019, pp 18-19.

78. In my view, there are a number of problems with the applicant’s submission as follows:

1. there is nothing in the sentencing judgment which suggests that the sentencing judge was confused or misunderstood the guideline judgment. Rather, the applicant relies on the exchange between Counsel and the sentencing judge in the proceedings on sentence in part as the basis for his submissions on ground 1;

2. in the exchange relied upon by the applicant, his Honour specifically acknowledged that the guideline applied to a plea of limited utilitarian value. Certainly, this comment was in response to Counsel for the applicant describing it as “early plea of limited utilitarian value” but, at its highest for the applicant, the exchange leads to some ambiguity;

3. exchanges between Counsel and the sentencing judge during the proceedings on sentence would not generally provide a basis for establishing error. Comments made by a sentencing judge during submissions might not necessarily reflect the sentencing judge’s final thinking on sentence. In R v Van Hong Pham,[17] the Court said:

“This is not expressly stated in the exceedingly succinct reasons for sentence, and normally this Court will not find an error of principle from interchanges between the bench and counsel that indicate an apparent incorrect appreciation of the law, since those views do not necessarily reflect a considered decision: R v Kain [2004] NSWCCA 143 at [56] and R v A [2004] NSWCCA 292 at [12].”

4. it may be that in some circumstances exchanges during submissions may assist in understanding the sentencing judgment: Hughes v The Queen. [18] However, the applicant seeks to use the exchange to explain the sentence and establish error rather than to assist in the understanding of any particular statements made in the sentencing judgment.

   17. [2005] NSWCCA 94 at [11].

   18. [2008] NSWCCA 48; 185 A Crim R 155.

79. If regard is to be had to the exchange between Counsel and the sentencing judge, then the exchange must be viewed in context. The context in which the exchange took place was with reference to whether the discount for utilitarian value should be 25 per cent. The exchange on the topic ended with Counsel for the respondent submitting as follows: [19]

“All I’m saying is I’d urge your Honour not to treat it any differently because of this category of case or anything said in that guideline. It has to be read consistent with the current practice in terms of an assessment of the utilitarian value of a plea entered in the Local Court in a case such as this, removed from any considerations of the strength or otherwise of the Crown case.”

19.    Proceedings on sentence, 16 April 2019, p 19(25)–(30).

80. The sentencing judge applied a 25 per cent discount. There is no suggestion of error in doing so.

81. The sentencing judge expressly acknowledged that, in his view, there were aspects of the matter which would set it outside what was said to be a frequently recurring case of an offence under the section. Plainly there were, as would be apparent from a comparison of the typical case and the sentencing judgment to which I have already referred. His Honour said:

“I am disinclined to see in this matter that it falls at the level of the generally appropriate range where moral culpability is high as reflected in that case”. [20]

20.    Sentencing judgment, p 15.

82. Further, the length of the sentence does not of itself indicate error on the part of the sentencing judge. The guideline judgment in Whyte merely specifies that a full-time custodial head sentence of less than three years will not generally be appropriate. The effect of the guideline judgment is thus not to set a maximum but to suggest what might be an appropriate minimum. Identifying that the sentencing judge imposed a higher sentence does not establish any error in the consideration of the guideline judgment.

83. According to the guideline judgment, the starting point would be a head sentence of 40 months if the discount for a plea of limited utilitarian value was 10 per cent (leading to the guideline of 36 months). On the applicant’s case the sentencing judge may have believed that the starting point for the guideline judgment was actually 48 months rather than 40 months.

84. However, there is nothing in the sentencing judgment which would tend to suggest that the sentencing judge considered that the starting point in the guideline judgment was 48 months rather than 40 months. I would not accept from the length of the sentence itself that the sentencing judge must have considered that the starting point in Whyte was 48 months.

85. In all of these circumstances, ground 1 is not made out. The applicant has not established that the sentencing judge erred in his application of the guideline judgment. For the reasons set out, I would not infer that the sentencing judge misunderstood the guideline judgment.

Ground 2

86. The approach to an appeal based on a ground that the sentence is manifestly excessive was set out in Hughes v R as follows:[21]

    21. [2018] NSWCCA 2 at [86].

“86.   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

‘(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.’

See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].”

87. The applicant must demonstrate that the sentence is unreasonable or plainly unjust: Markarian v The Queen. [22]

    22. (2005) 228 CLR 357; [2005] HCA 25 at [25].

88. The sentence imposed for the offence of drive in a manner dangerous occasioning death was a head sentence of four years and one month with a non-parole period of two years and seven months.

89. Whilst acknowledging the serious nature of the offence and the findings of an abandonment of responsibility and high moral culpability, the applicant submits that the sentencing judge failed to have proper regard to the applicant’s exceptional subjective circumstances and that this led to the sentence being unreasonable or plainly unjust.

90. The applicant submitted that there were significant mitigating factors and that he had a very powerful subjective case. The applicant submitted as follows:

“[Bombardieri] v Regina (2010) 203 A Crim R 89, [2010] NSWCCA 161 was a case where the offender was sentenced for aggravated drive manner dangerous occasioning death. In the judgment of Beazley JA, her Honour referred to the well-known decision of this Court in Regina v Dodd (1991) 57 A Crim R 349 at where [sic] this Court said that ‘there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case’ (at 354). Her Honour continued (at [4]):

‘4   The converse is also true. Focus on the objective seriousness of the offence without proper regard to the other factors that may be taken into account, including in the sentencing process, may also lead to sentencing error. Those other factors include: the sentencing principle of promoting the rehabilitation of the offender: Crimes (Sentencing Procedure) Act, s 3A(d) and any mitigating factors, including: that the offender does not have any significant record of previous convictions (s 21A(3)(e)); that the offender is unlikely to re-offend (s 21A(3)(g)); that the offender has good prospects of rehabilitation (s 21A(3)(h)); and that the offender has shown remorse in the manner required by this provision (s 21A(3)(i)). This combination of the objective seriousness of the offending conduct, the manifold purposes of sentencing reflected in Crimes (Sentencing Procedure) Act, s 3A and the mitigating and aggravating features relevant to the offender, exemplifies the fundamental notion of individualised justice which underpins sentencing: Regina v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.’”

91. The applicant submitted that the sentencing judge could not have given sufficient weight to the applicant’s powerful subjective case to impose the sentence that he did. [23]

    23.    Applicant’s written submissions on appeal para 43.

92. Further, the applicant compared and contrasted sentences in other cases for the same offence,[24] emphasising that in those cases each of the offenders had a higher blood alcohol reading than the applicant and did not have the benefit of the applicant’s powerful subjective case.

    24. Woodward v R [2014] NSWCCA 205 (“Woodward”); Aitken v R [2014] NSWCCA 201 (“Aitken”); R v Nguyen [2008] NSWCCA 113 (“Nguyen”).

93. It is evident from the sentencing judgment that the sentencing judge had regard to the applicant’s subjective circumstances. The sentencing judge referred to the offender having no earlier criminal record beyond traffic matters and found that prior to the commission of the offence, the applicant was of good character and indeed of exceptional character. The sentencing judge accepted that the applicant was rehabilitated and that he no longer posed a threat of further offences.

94. He found that in the witness box the applicant appeared stoic, reflective and respectful. There were moments when his demeanour reflected his horror at what he had done. He was deeply concerned about maintaining his financial obligations having been the breadwinner for the family. He had extensive involvement with his Church being the Korean Christian Church Community, has not used any illicit substances and had a moderate alcohol use. He was injured in the collision and suffered some ongoing disabilities. He has low mood and suicidal ideation and a constellation of symptoms consistent with PTSD. He relied on references from family members, as well as work colleagues, all of which attest to his good character. He has been an active Church member and made significant contributions to charitable works, including the Kitchen Ministry and the Lions Club. The sentencing judge considered that he was a person of exceptional character.

95. On the other hand, the sentencing judge recognised that denunciation and general deterrence are important factors and that the harm done to the victims and the community must be recognised.

96. In terms of the applicant’s consumption of alcohol, he emphasised that it was an agreed fact that the likely blood alcohol concentration was 0.091g. I note that he told police that he had only consumed two glasses of wine but that was incorrect.

97. Senior Counsel for the Applicant submitted that prior to the collision the applicant was a moderate drinker who had very limited experience of the effect of large amounts of alcohol on him. Despite reporting to have a familial trait of low tolerance to alcohol, he had no alcohol-related charges prior to the commission of the offence. Mr Stratton submitted that because the applicant was a limited drinker, he did not have experience of consuming large amounts of alcohol and thus may not have appreciated the likely consequence of consuming high quantities of alcohol in terms of its effect on him.

98. It may be that a person who does not generally consume alcohol would not appreciate how much consumption of alcohol could affect the person’s judgement and impair the person’s ability to drive but that presents as a double-edged sword for the applicant.

99. Having a low tolerance for alcohol generally means that the effects of alcohol consumption will be exacerbated above the norm.

100. Having regard to his erratic driving prior to the collision and his failure to stop even after hitting the signpost, it must be that the applicant’s judgment and driving skills were severely impaired. The applicant chose to drive even though he must have known that he had consumed more than the amount of alcohol he usually consumed and must be taken to have been aware of his professed low tolerance to alcohol. These are hardly mitigating factors.

101. In choosing to drive in such circumstances, the applicant caused the death of Mr Polglase and, having regard to the victim impact statements, trauma to those close to Mr Polglase, including his family members and friends.

102. On my analysis of the sentencing judgment, his Honour considered all of the applicant’s subjective circumstances and, in the process of instinctive synthesis, weighed them against the findings as to objective seriousness and the need for general deterrence and denunciation.

103. Generally, an appeal based on the weight that a sentencing judge gave to any particular factor would be difficult. As was said in Wong at [76] (Gaudron, Gummow and Hayne JJ):

“So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.” (Emphasis in original)

104. The respondent points to the observations of Howie J (Simpson J agreeing) in R v Kennedy [25] as follows:

“21.   It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

22.   Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant. But that was not this case.”

25. [2000] NSWCCA 527 at [21]–[22].

105. Of course, too much focus on the objective seriousness of the offence without proper regard to other factors may lead to sentencing error. Having said that, on my analysis of the sentencing judgment, the sentencing judge did not place too much focus on the objective seriousness and too little weight on the personal characteristics of the applicant.

106. The Applicant also points to cases which he says are comparable to demonstrate that the sentence should be viewed as unreasonable or unjust.

107. In Woodward, the offender, who held a P1 Provisional licence and was 26 years old at the time of the offending, was speeding through bushland when he lost control and a passenger was killed. He had a blood alcohol level of 0.127 gms/100ml. After being sentenced to six years’ imprisonment with a non-parole period of four and a half years, his sentence was reduced on appeal to three years and nine months with a non-parole period of two years and nine months.

108. In Aitken, the offender was 18 years old and held a learner driver’s permit at the time of the offending. He had a blood alcohol level of 0.109g. He had driven about 110 kilometres and had been driving erratically when he lost control and collided with a tree, killing one of the passengers of the vehicle. He was sentenced to imprisonment for four years and one month with a non-parole period of two years and six months.

109. In Nguyen, the offender was 19 years old and had a provisional driver’s licence. While driving with two passengers, the offender lost control of the car, mounting the kerb and colliding with a fence. One of the passengers sustained fatal injuries. The Court accepted that the offender had a blood alcohol level of about 0.1 at the time of the accident. With a 25 per cent discount for an early plea, he was sentenced to imprisonment for two years and three months with a non-parole period of 12 months. On appeal his sentence was increased to three years’ imprisonment with a non-parole period of 18 months.

110. The applicant submits that in each of these three cases, the offender had a higher blood alcohol level and did not have the applicant’s powerful subjective case.

111. In Hili v The Queen,[26] the Court referred to the remarks of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa,[27] holding that:

“‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’.”

26. (2010) 242 CLR 520; [2010] HCA 45 at [54] (“Hili”).

27. (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]–[304].

112. In R v Pham,[28] French CJ, Keane and Nettle JJ stated that:

“As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.

It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion. As was emphasised in Hili, and again more recently in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, the sentencing task is inherently and inevitably more complex than that.” (Some footnotes omitted)

28. (2015) 256 CLR 550; [2015] HCA 39 at [26]–[27].

113. It may be that in the three cases relied on by the applicant, the subjective circumstances were not as favourable as those of the applicant. However, the three offenders in those cases were young men.

114. Further, the differences in blood alcohol levels were not marked. They are all mid-range rather than low or high range. Bearing in mind the applicant’s belief that he had a low tolerance to alcohol, that is, that its effects may be more marked on him, I doubt that the differences are material. Having regard to his conduct, he was plainly in such an affected state that he was unable to appreciate that he should stop even after hitting the signpost.

115. The comparison does not suggest the existence of a sentencing pattern that the sentencing judge has ignored. The difference in sentences does not suggest some misapplication of principle. Nor is it so far outside the range as to suggest error.

116. In my view, the sentence imposed on the applicant has not been shown to be manifestly excessive.

117. The applicant fails on ground 2.

Orders

118. Since completing these reasons, I have had the benefit of considering in draft the judgment and orders proposed by Basten JA, particularly with respect to the correction of the record. I agree with the orders proposed by his Honour.

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Endnotes

Decision last updated: 15 April 2020