Casey v R

HOEBEN CJ at CL:

The applicant was found guilty of one count of driving in a manner dangerous occasioning death, contrary to s 52A(1)(a) of the Crimes Act 1900, for which the maximum penalty is imprisonment for 10 years. The victim was the pillion passenger on a Suzuki motorcycle ridden by the applicant which collided with a parked car. This caused the victim to be flung from the bike to his death on 25 April 2011. The applicant was under the influence of intoxicating liquor at the time.

On 30 July 2014 the applicant was sentenced to imprisonment with a non-parole period of 2 years and 7 months, commencing 21 July 2014 and expiring 20 February 2017, with a balance of term of 11 months expiring 20 January 2018. In addition the applicant was disqualified from driving for 4 years commencing 30 July 2014 and expiring 29 July 2018.

The applicant seeks leave to appeal from that sentence on the following grounds:

On 25 April 2011 the applicant finished his shift as a train driver at 7am and after getting some sleep joined friends, including the deceased Adam Ryan, at the Toronto Hotel. The applicant was a close friend of the deceased whom he regarded as something of an older brother figure. The two men were drinking alcohol at the hotel. After some hours, the applicant and the deceased went to the Toronto Workers Club where they continued to drink. They left the Club at about 8.30pm with the applicant’s fiancée driving them to the applicant’s home. By that stage the applicant had been drinking since about midday.

The applicant and the deceased remained at his home for a time but then decided to travel by motorcycle to West Wallsend, a distance of about 10 kms, where a mutual friend was hosting Anzac Day drinks. The motorcycle used by the applicant was a Suzuki dirt bike, which belonged to his brother.

It was common ground that motorcycles of this type were not intended for use on public roads. The bike had no headlight, no indicator lights, no mirrors and no footrest for a pillion passenger. The tyres with which it was fitted were unsuitable for highway use. It was accepted that the bike was not roadworthy in the sense that it could not because of these deficiencies be registered for safe use on a public street in New South Wales. The applicant was not licensed to ride a motorcycle.

The night was dark, it being after 9pm. It had been raining and there was still light rain falling from time to time. Neither the applicant nor the deceased wore a helmet. The applicant had some difficulty in starting the motorcycle so that it was the deceased who ultimately was successful in starting it. Once the motorcycle had been successfully started, the applicant commenced to drive it with the deceased as a pillion passenger.

Because the applicant had no recollection of precisely how the accident occurred, the evidence on that issue was given by various eyewitnesses. Not far from where the journey commenced, the motorbike collided with a parked car. The impact was such that the car was propelled a short distance along the road. The motorcycle collided with the rear driver’s side of the car causing the applicant and the deceased to be ejected from the bike onto the road surface. The applicant was also on the roadway very near the bike and the deceased was further away from the bike. Bystanders tried unsuccessfully to revive the deceased but he died at the scene of the accident.

The applicant was injured in the collision and suffered a fracture to the left side of his pelvis, along with some minor abrasions. The injury required surgical repair and the applicant spent a month in hospital followed by rehabilitation. The applicant told bystanders, police and ambulance officers at the scene of the accident that he was the driver of the motorcycle. Subsequently the issue at trial was whether the applicant or the deceased was the driver of the motorcycle. As indicated, that issue was decided against the applicant.

The applicant had been drinking beer and spirits until shortly before the accident. A blood sample obtained from him at 10.45pm on the night of the accident revealed a blood alcohol reading of .124 grams of alcohol per 100 millilitres of blood. There was expert evidence that with such a reading, the driving skills of all people would be significantly impaired, but the skills of a younger driver would be impaired substantially. This was because a younger driver would be less likely than an older individual to be experienced either as a drinker or as a driver and the effect of alcohol upon such an individual would be greater. The expert evidence was that a driver’s perceptions, judgment, visual functioning and information processing would all be impaired in a person with a blood alcohol reading of .124. Such a person’s motor skills, co-ordination and reaction skills would also be significantly impaired.

Having reviewed the facts, her Honour considered the objective gravity of the offence and the degree of moral culpability of the applicant. In doing so, her Honour had regard to the guideline judgment in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252. Her Honour noted that in accordance with that guideline judgment, the applicant was a young offender, a person of good character with no prior convictions, that death had been caused to a single person and that there was genuine remorse. Insofar as aggravating features were concerned, her Honour noted that the matter of aggravation was the degree of intoxication of the applicant. Her Honour concluded by reference to the expert evidence that the applicant at the time of the accident was very significantly intoxicated and that his driving ability was substantially impaired. Her Honour was of the opinion that the level of impairment of the applicant greatly increased the dangerousness of his conduct.

Her Honour enumerated the other dangerous features of the applicant’s conduct. He chose to use a motorcycle that was not registered because it was neither designed nor safe for highway use. The journey was intended to be a relatively lengthy one and was knowingly undertaken on a dark and rainy night on a bike with no headlight. The applicant allowed a pillion passenger to join him even though the bike had no suitable foot rest for such a passenger and was plainly not designed for two riders. Her Honour noted that the applicant allowed his pillion passenger to undertake the journey without the protection of a helmet. This was significant because the fatal injuries suffered by the deceased were head injuries.

Her Honour set out her conclusions as follows:

Her Honour then reviewed the applicant’s subjective case which was a strong one. She found the applicant to be a young man of good character (he was aged 18 at the time). He had been fully employed since completing his schooling and had gained the appropriate qualification to drive trains and had obtained fulltime employment in that occupation. The applicant was living with his fiancée, who gave evidence on his behalf, and who impressed her Honour as an honest and upstanding young woman who was providing the applicant with a stable and loving relationship and strong support. Her Honour referred to a number of glowing testimonials which had been placed before the court, which indicated the very high opinion which persons in the community had of the applicant. Her Honour noted that each of those persons who wrote a reference commented upon the impact that the crash and the loss of a close friend had had on the applicant. Her Honour found that the applicant had the significant benefit of a supportive family who would give him every assistance on his release from custody.

The applicant gave evidence in the sentence proceedings. In relation to that evidence her Honour said:

Her Honour found that the applicant had accepted responsibility for the deceased’s death and that his remorse was genuine. Her Honour noted that the applicant had recently received some counselling to assist him to deal with his grief, as well as his anxiety about the legal proceedings. Her Honour set out her conclusion on this issue as follows:

Her Honour was well aware of the delay which had occurred between the offence and proceedings being commenced against the applicant. On this issue, her Honour found:

In relation to rehabilitation, her Honour found:

The applicant submitted that when assessing the objective seriousness of the offending and his moral culpability, her Honour overlooked a relevant factor, i.e. that the activity which led to the death of the deceased was in fact a joint enterprise entered into by both of them. He submitted that they had spent much of the day drinking together and that the decision to go to the party using the bike was one jointly made, even to the extent of the deceased being the person who was able to start the motorcycle. The applicant submitted that both he and the deceased were involved in all decisions leading to the accident.

In making that submission the applicant accepted that in R v Errington [1999] NSWCCA 18 the Court (Grove, Dunford and Greg James JJ) at [27] – [28] found that the actions of the victim cannot be a mitigating factor in an offence under s 52A of the Crimes Act. In that case the victim had been drinking heavily and had travelled willingly in a motor vehicle with someone she must have known was grossly intoxicated. However, the applicant also relied upon the decisions in R v Whelan [2004] NSWCCA 379 and R v Janceski [2005] NSWCCA 288 as supporting the submission. In R v Whelan the Court accepted that the sentencing judge was entitled to take into account the actions of another driver, who had made an extremely dangerous right hand turn across oncoming traffic into the offender’s path, in circumstances where the offender’s ability to control his own vehicle was significantly affected by his own intoxication. In Janceski Hunt AJA (with whom Spigelman CJ and Howie J agreed) considered those cases and said:

The applicant submitted that there was error in failing to take this aspect of the factual circumstances into account, and that her Honour overlooked a relevant factor when assessing the objective seriousness of the offence and the applicant’s moral culpability.

An initial difficulty for the applicant is that this issue was not raised on behalf of the applicant in the sentence proceedings. In those circumstances, it is not appropriate to say that her Honour “overlooked” this issue. This Court has repeatedly said that a sentencing appeal is not an opportunity to reformulate arguments and that parties should be bound by the submissions made and evidence led in the lower court.

This principle was recently restated in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 where Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said:

Leaving aside the important issue raised by Zreika, there is little substance in this ground of appeal. Janceski was a Crown appeal in which the respondent was driving a motor vehicle when his passenger recognised another vehicle driving past as one which had been stolen from a friend. This resulted in a high speed car chase in the course of which the driver of the stolen vehicle lost control and he and his passenger were killed. On those facts one can see why the court expressed the opinion which it did.

The facts of this case are more in accord with, though more culpable than, those in Errington. This was a case where the applicant’s moral culpability was high because he was aware that his passenger was very intoxicated and therefore much less likely to be able to hold on if there were any kind of accident. As driver he took responsibility for his passenger knowing that the passenger was in a highly intoxicated state. In those circumstances, the state of intoxication of the deceased increased the dangers associated with driving the motor cycle.

It follows that on the facts of this case, taking into account the highly intoxicated state of the deceased, her Honour’s finding of a high level of moral culpability on the part of the applicant was well open to her. This is particularly so when counsel for the applicant on the sentence proceedings accepted that the applicant’s conduct took him “to the threshold of abandonment of responsibility”.

This ground of appeal has not been made out.

The applicant submitted that her Honour erred when she refused to make a finding of special circumstances on the basis that there was relatively limited evidence as to the likelihood of him successfully dealing with “the issues surrounding binge drinking and grief management”. He submitted that there were significant and positive signs which showed that if he were allowed a longer period on parole, rehabilitation was likely to be successful.

The applicant referred to the evidence accepted by her Honour as to the genuineness of his anxiety and unresolved grief resulting from the death of the deceased. There was evidence that he had reduced his alcohol consumption after the accident and was highly motivated to address his problem drinking. There was the evidence that he had commenced counselling in relation to these issues. There was evidence as to the support provided to him by his partner and by his family. The applicant relied on the opinion in the pre-sentence report that his counselling with a local psychologist was an indication that he had a level of insight into his problem.

The applicant submitted that the effect of this evidence was to demonstrate significant and positive signs that if he were allowed a longer period on parole, he was likely to resolve those issues. He submitted that in those circumstances, a finding of special circumstances was appropriate. He submitted that her Honour’s error was in failing to find that special circumstances existed.

The question of rehabilitation, and therefore a consequential finding of special circumstances, was largely otiose in this case. This is because her Honour found as a fact that the applicant’s prospects of rehabilitation were strongly positive, that he had learnt the terrible lesson from this crime and that there was a strong likelihood that the applicant would never again offend in this or in any other way. In other words, in relation to rehabilitation generally, her Honour was satisfied that this had been achieved. Accordingly, there was no need to allow further time for that process to take place.

In relation to whether an additional period on parole would assist the applicant in dealing with his alcohol problem and grief reaction, his own evidence was not particularly convincing and was consistent with her Honour’s finding:

In relation to the applicant dealing with his grief for the loss of his friend, the highest it was put by the psychologist was that he “would benefit from grief and loss counselling”. She recommended that he continue counselling to address “any unresolved or complex grief issues”.

Against that background her Honour’s finding as to the limited nature of the evidence and that no steps were taken to address those two issues until after his trial, was well open to her. No error in her Honour’s fact finding on this issue has been established.

Whether the ratio of the non-parole period to head sentence should be adjusted to less than the 75% prescribed by s 44(2) Crimes (Sentencing Procedure) Act 1999 involves a “discretionary finding of fact” in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R [2011] NSWCCA 7 at [27]. The decision to find special circumstances is first one of fact to identify the circumstances and secondly, one of judgment to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [73].

The presence of circumstances which are capable of constituting special circumstances does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The degree or extent of any adjustment of the “statutory ratio” is a matter for the discretion of the sentencing judge: R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [38]. It follows that no error has been identified in her Honour’s finding or approach to special circumstances.

This ground of appeal has not been made out.

The applicant submitted that her Honour’s finding “whilst I do not doubt that this delay has caused additional stress and anxiety to the offender and I have taken that into account in mitigation of sentence, the degree of amelioration in that regard must be small given the criminality as assessed by the court” wrongly fettered her sentencing discretion so that the discretion miscarried. The applicant submitted that there was no rule of law which prevented significant leniency being extended to an offender where there had been delay in prosecuting notwithstanding that the offence was serious.

The applicant submitted that delay was an important consideration in sentencing. He relied upon R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 where Wood CJ at CL (with whom Bell J and Smart AJ agreed) said:

The applicant submitted that in this case there had been a significant delay in the order of 18 months from the time of the accident until the time that he was first charged with the offence. He submitted that as in Blanco, there had been no explanation for the delay. Her Honour had accepted that the delay caused additional stress and anxiety. He submitted that while the objective criminality of an offence remained important, it did not restrict or prevent the exercise of the discretion of the sentencing judge to mitigate a sentence if there has been significant delay in the prosecution of the matter.

The applicant’s submissions depend upon a particular reading of what her Honour said. I do not so read her Honour’s findings. It is clear from the language used and the context, that her Honour was using emphatic, rather than prescriptive, language. The weight given by her Honour to the adverse consequences of delay on the applicant and her assessment of the seriousness of the offence were both part of the exercise of the same sentencing discretion. The “instinctive synthesis” referred to by McHugh J in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [66] and subsequently approved on many occasions by the High Court, involves the very process carried out by her Honour, i.e. identifying the principles to be taken into account and having done so, specifying an outcome without engaging in some kind of staged process.

In this case the delay of approximately 16½ months was regrettable and unexplained but was certainly not as long as that which occurred in Blanco and the other cases on which the applicant relied. In any event, her Honour did not ignore the fact of delay. Rather, her Honour took it into account but when also taking into account the objective seriousness of the offending her Honour found that its ameliorative effect was limited. The extent to which her Honour took delay into account, was a matter of discretion. It has not been demonstrated that this exercise of discretion miscarried.

This ground of appeal has not been made out.

In support of this ground, the applicant relied upon two propositions. The first was that proper weight had not been given by her Honour to his very strong subjective case. In that regard, the applicant submitted that her Honour had improperly restricted the weight which she gave to his subjective case when she said:

The second proposition relied on by the applicant was that her Honour had failed to take into account the extra-curial punishment experienced by him in that he had been “terribly affected by the death of Adam Ryan, a young man he looked upon as a best friend, an older brother figure”. (ROS 13.8) The applicant submitted that the psychological impact of the responsibility for the death of a friend could in an offence under s 52A Crimes Act 1900 amount to extra-curial punishment (R v Howcher [2004] NSWCCA 179; 146 A Crim R 371 at [16] and [18]). The applicant submitted that this is what had occurred here but her Honour had not taken it into account.

The submission that her Honour had improperly restricted the weight which she gave to the applicant’s strong subjective case is to misunderstand the rationale behind her Honour’s remarks. Following upon and in support of the passage relied upon by the applicant was the following quote from Hunt CJ at CL (McInerney and Hulme JJ agreeing) in R v Musumeci (unreported, NSWCCA, 30 October 1997):

In relation to the second proposition, counsel for the applicant on sentence did not raise the issue of extra-curial punishment and made no submissions in relation to it. As already indicated, the decision in Zreika gives rise to a significant difficulty for the success of this submission.

There are, however, other difficulties preventing the applicant succeeding on this submission. In Alameddine v Regina [2006] NSWCCA 317 at [10] – [20] the principles relating to extra-curial punishment were reviewed by Grove, Kirby and Hislop JJ. The effect of that review was that a distinction is to be made between situations where the extra-curial punishment was caused by external forces and those triggered by the offender’s own actions. Such an example is that in R v Allpass (1993) 72 A Crim R 561 where the offender was subjected to a campaign of abuse and harassment following publication of a sentence for a sexual crime against a young girl by an elderly man. That is not the situation here. The death of the deceased was a direct consequence of the applicant’s actions and was an integral part of the offending.

In any event, even though her Honour did not consider the applicant’s grief under the heading of extra-curial punishment, she took it into account as an important part of the applicant’s subjective case. It was certainly not ignored. The remarks set out at [16] make that abundantly clear.

It follows that the two propositions upon which this ground is based have not been made out and that this ground of appeal fails.

The orders which I propose are:

HIDDEN J: I have had the benefit of reading in draft the reasons of Hoeben CJ at CL. A tragic case such as this presents a judge with a very difficult sentencing exercise. I can detect no error in her Honour’s approach. None of the grounds of appeal has been made out, and I agree with the orders proposed by the Chief Judge.

ADAMS J: I agree with Hoeben CJ at CL.