Regina v Campton [2004] NSWCCA 56

New South Wales Court of Criminal Appeal

CITATION : Regina v Campton [2004] NSWCCA 56 HEARING DATE(S) : 05/03/04 JUDGMENT DATE : 24 March 2004

JUDGMENT OF : Simpson J at 1; Kirby J at 6; Bell J at 77 DECISION : Appeal dismissed.

CATCHWORDS : Criminal Practice & Procedure - Crown appeal on sentence - dangerous driving occasioning grievous bodily harm - 2-1/2 years imprisonment by way of periodic detention - whether inadequate - application of guidelines - delay - discretion on Crown appeal. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Kyroglou & Tsoukatos [1999] NSWCCA 106 R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Gleeson [2000] NSWCCA 101 R v Ardron [2000] NSWCCA 412 R v Park [2001] NSWCCA 313 CASES CITED : R v Romanic [2000] NSWCCA 524 Griffiths v The Queen (1977) 137 CLR 293 Dinsdale v The Queen (2000) 202 CLR 321 R v Allpass (1994) 72 A Crim R 561 R v Musumeci (unreported, CCA, 30.10.97) R v Zamagias [2002] NSWCCA 17 R v Cromarty [2004] NSWCCA 54 R v Howland (1999) 104 A Crim R 273 Regina PARTIES : Sean Leigh Campton

FILE NUMBER(S) : CCA 60445/03 COUNSEL : Ms E Wilkins (Crown/Appl) P Rowe (Resp) SOLICITORS : S Kavanagh (Crown/Appl) Baker Ryrie Rickards Titmarsh (Resp)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0234 FILE NUMBER(S) : LOWER COURT Tupman DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60445/03

SIMPSON J KIRBY J BELL J

Wednesday 24 March 2004 REGINA v Sean Leigh CAMPTON Judgment 1 SIMPSON J: I have read in draft the judgment of Kirby J. I agree that the account his Honour has given is indicative of error in the sentencing process. The facts and circumstances outlined pointed to a full-time custodial sentence. The respondent's previous history of drink-driving, his driving of an unregistered motor vehicle whilst unlicensed, his conduct at the scene in absconding, and his subsequent untruthfulness, are all factors that militated against leniency. 2 But there is one additional circumstance which, although plainly known to the sentencing judge, appears to have been given only passing attention in the District Court, and never became the focus of real discussion in this Court. That was this. The offence was committed on 7 August 2001. The respondent was arrested and charged on the same day. He was not ultimately sentenced until 19 September 2003 – more than two years after the offence. That was not attributable to any fault or delaying tactic on the part of the respondent. It occurred because the Crown persisted in charging the respondent with the aggravated form of the offence. When, on 26 March 2003, the Crown signified its acceptance of the respondent's proffered plea of guilty to the alternative charge, the respondent entered that plea promptly. Evidence on the sentence was given, and submissions made, on 17 June 2003. That was followed by a further three months' adjournment. Transcript of the proceedings shows that this came about because her Honour had been urged to give consideration to ordering that the respondent serve his sentence by way of periodic detention. At that time the respondent was living in Queensland, and it would be necessary, if a periodic detention order were to be made, that he relocate to NSW, and make appropriate accommodation arrangements. In this context it should be pointed out that her Honour was at pains to make it clear that she was far from convinced that such an order would or should be made. She was merely giving the respondent the opportunity to put himself in a position that would enable him to obtain the benefit of such an order, were she persuaded to make it. 3 It was on resumption of the proceedings on 19 September that the respondent was finally sentenced. By that date the respondent had taken full advantage of the time available to him and achieved commendable rehabilitation. Nevertheless, having regard to the accumulation of aggravating circumstances, it is still arguable that no sentence other one involving some period of full-time custody was, as of that date, adequate to meet the whole of the circumstances. The observations of Kirby J in paragraph 68 are apposite and of considerable force. It may well be that, even at that late stage, her Honour ought to have sentenced the respondent to full-time imprisonment. 4 I do not find it necessary to reach a final view on that matter because that does not conclude the history. In the submissions filed in this Court, the Crown acknowledged that the notice of appeal was not signed until 31 October, seven weeks after sentencing, and was served on the respondent on 5 November. The respondent's sentence having commenced on 3 October, he had, by then, served four of the periods specified, and had in fact relocated to NSW. 5 Delay (whether delay in relation to which blame should be assigned or not) can be a relevant factor in the exercise of this Court's residual discretion to dismiss an otherwise meritorious Crown appeal: Regina v Kyroglou & Tsoukatos [1999] NSWCCA 106. In my opinion this is a case where the lapse of time between the offence and the determination of the Crown appeal is relevant. It is not necessary, in reaching that conclusion, to find fault with the Crown in relation to either period of delay. The delay is a fact, as is the change in the respondent's personal situation. In my opinion, this is a case where the Court's residual discretion to dismiss a Crown appeal, even where error has been shown, should be exercised. 6 KIRBY J: This is an appeal against sentence by the Crown. Mr Sean Leigh Campton (the respondent) pleaded guilty to one count of Dangerous Driving occasioning grievous bodily harm (s52A(3)(a) Crimes Act 1900). On 19 September 2003 he was sentenced by Tupman DCJ to 2-1/2 years imprisonment with a non parole period of 1-1/2 years, such sentence to be served by way of periodic detention. The Crown alleges that the sentence was manifestly inadequate.

The Incident. 7 Mr Campton lived with his girlfriend. Both were heroin addicts. He had trained as a jockey and at one time had a promising career. However, at the time of the offence he had not worked for six months. He had little money. On Monday 6 August 2001 he had a bitter argument with his girlfriend and then felt depressed. As he was later to describe, his life was "at its lowest ebb". 8 During the course of that day Mr Campton went to an hotel in Merrylands. He drank beer and spirits. He later drove to another hotel at Rydalmere. He continued drinking. He could not say how much he had drunk. 9 In the early hours of Tuesday 7 August 2001, Mr Campton decided to drive to the Albion Hotel at Rose Hill. He was joined by a passenger, a person he had met that night. Whilst driving along Harris Street, Harris Park, and approaching the intersection of Parkes Street, he went through a red light. He collided with a vehicle driven by Mr Cole. Mr Cole, of course, had the green light. 10 Mr Campton's vehicle mounted the kerb and knocked down the traffic control lights. It then spun around, hitting a brick fence. Mr Cole's vehicle also spun around and mounted the kerb. It knocked down a brick fence, and came to rest in the front yard of a block of units. 11 Mr Cole was trapped inside his car. He did not lose consciousness. However, he was injured and in some pain. He had a head wound which was bleeding. Emergency workers were summoned. They cut open his vehicle to remove him from the wreck. He was taken to hospital, where he remained for three weeks. Both vehicles were damaged beyond repair. 12 Mr Campton was able to get out of his vehicle, as was his passenger. He said that he panicked. He ran along Parkes Street, as did his companion. They hid in the driveway of a home. However, their flight was witnessed by a number of people. They were soon found by the police. When questioned, Mr Campton said he was not the driver. He told the police that his companion was the driver, which his companion denied. Mr Campton's face was covered with blood. Both he and his passenger smelt of alcohol. Mr Campton was taken by ambulance to hospital. 13 Mr Campton's passenger had a diagonal burn across his body, corresponding with the seat belt on the passenger's side of the vehicle. A photograph was taken of the burns. It was plain that Mr Campton was the driver. 14 Mr Campton's vehicle was unregistered and uninsured. Mr Campton himself was unlicensed. His licence had been suspended because of unpaid traffic fines. His blood alcohol reading was 0.14. The offence of Aggravated Dangerous Driving occasioning grievous bodily harm arises where the person charged has a blood alcohol reading of 0.15 (s52A(4) and (7)). The maximum penalty for that offence is 11 years imprisonment. The maximum penalty for the offence to which Mr Campton had pleaded guilty (s52A(3)(a)) is 7 years imprisonment. 15 Mr Campton was again interviewed by the police on 3 December 2001. On this occasion he acknowledged that he was the driver of the vehicle. He was charged. He pleaded guilty at the first available opportunity. Her Honour discounted the sentence by 25% by reason of that plea. 16 Mr Campton was injured in the collision. He remained in hospital for a number of days. His injuries, however, were not serious. The victim, Mr Cole, was not so fortunate. Her Honour found that he had sustained the following injuries: (R/S p7) "I do however ... accept that he [Mr Cole] suffered the following injuries: a fractured right little finger, fractured sternum, and injury to his left clavicle or collarbone, a haematoma to his left hamstring muscle, a seatbelt burn to his right shoulder and a macerated injury to his right forearm muscle requiring debridement and flap operation as part of the treatment and recovery process." 17 Mr Cole was a security guard. He has been left with a number of permanent disabilities. He had "bad scarring" to his right shoulder, the result of surgery, and pain in the shoulder. He had reduced strength in his right arm. Her Honour accepted that Mr Cole now experienced pain on a daily basis. He also suffered from post traumatic reactive syndrome, disturbing his sleep, causing flashbacks and tending to make him irritable.

The Subjective Case. 18 At the time of sentence Mr Campton was 31 years old. He was born on 16 February 1972. His father had been a successful jockey and later a trainer. Mr Campton was not especially academic. He left school at the age of 14 years and began his apprenticeship as a jockey. He completed that apprenticeship by the age of 21. For a number of years he was a leading apprentice in Newcastle. He also rode in Sydney. 19 In 1991 Mr Campton had a severe fall during a race. He suffered a serious fracture of his leg in which an artery was severed. The injury became gangrenous, such that amputation was contemplated. Whilst in hospital he was given pethidine. Her Honour accepted that the drugs administered at this time were implicated in his later use of illegal drugs. 20 When Mr Campton was about 20 he began experimentation with drugs at parties. He used ecstasy and amphetamines. At the age of 27 years he began using heroin, as did his partner. He ultimately became addicted, sometimes using heroin daily. His life became chaotic and disorganised. Heroin was not, however, a factor in the accident. 21 Strangely, the accident appears to have brought Mr Campton to his senses. Her Honour described his determined rehabilitation in these words: (R/S p15-16) "... once the prisoner was released from hospital after about four days he took his life in hand. He split up with his partner and went to stay with some friends in Sydney. He withdrew from heroin, going onto a methadone program for about three weeks, and then stopped using that and heroin as well. He stayed with these friends in Sydney for about two months after leaving hospital, completing this drug withdrawal and rehabilitation. He started seeing a psychiatrist for about three sessions for post trauma counselling and has been treated on a long term basis by Dr De Costa. I accept that he has made an extremely good recovery from his heroin addiction and the depression that surrounded him at the time he committed this offence. I accept that he has not used any illegal drugs since the time of this offence. He pulled his life together following this offence and his detoxification from heroin use, to the extent that he then went to live on the Gold Coast with his mother, as I understand the evidence, in about 2001, early 2002. He has continued to reside there until now. He had a professional jockey's licence to ride in Queensland and worked there as a professional jockey, mainly on the Gold Coast but also in rural Queensland." 22 Referring to Mr Campton's decision not to seek the renewal of his licence, her Honour added: (R/S p16) "He has not sought to renew his driver's licence, either in New South Wales or Queensland, since the offence, even though he would have been able to do so up until March 2003 when I imposed a bail condition preventing him from driving after he entered the plea of guilty. I accept that this has been his own decision and that he did so because of the impact this offence has had on him and the guilt, shame and remorse he feels for having committed it. I accept that the prisoner has completely rehabilitated himself from the life he was leading at the time he committed this offence." 23 Her Honour noted that Mr Campton had not only "turned his life around" but, in the two years following the accident, had managed to keep his life "on an even keel" (R/S p18). 24 At the time of these events Mr Campton had a criminal record. He had been convicted at the Parramatta Local Court on 5 January 1994 with having driven with a middle range concentration of alcohol. He was fined and disqualified from driving for six months. In the same proceedings, he was also dealt with in respect of charges of having driven whilst his licence was cancelled, and driven an unregistered and uninsured vehicle. His general driving record was also poor. His licence had been suspended on a number of occasions, either through loss of points or the accumulation of unpaid fines.

Sentencing Remarks. 25 Her Honour, in her remarks on sentence, referred to the Guideline judgments dealing with offences under s52A Crimes Act 1900, R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252. She helpfully framed her findings by reference to the criteria identified by those judgments. It may be useful to refer to the guidelines and then to her Honour's findings. 26 The offence under s52A involves driving a motor vehicle in circumstances of an impact occasioning death or grievous bodily harm. The presence or absence of a number of "factors", and the degree to which they are present, will determine the appropriate penalty (R v Jurisic (supra: at 231)). In Jurisic the factors were enumerated as follows: (at 231) "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring warnings. (ix) Escaping police pursuit." 27 The first two matters focus upon the occurrence. The remaining matters related to the conduct of the offender. Referring to paragraphs which deal with the conduct of the offender, Spigelman CJ said this: (at 231) "The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence." 28 Within that context, the Court promulgated the following guidelines: (at 231) "1. A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment." 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional." 29 The Court emphasised, however, that its judgment was a guideline. It was not meant to erode or eliminate the sentencing Judge's discretion. In R v Whyte (supra) the guidelines were reformulated to ensure that their tone was less prescriptive. The first limb was expressed in these terms: (at 286 para 214) "A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment." 30 The second limb was expressed as follows: (at 286 para 214) "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." 31 Dealing with those matters relevant to the occurrence, her Honour made the following findings: · First, that the injuries to Mr Cole were not the most serious that might be seen in cases of grievous bodily harm. Neither were they at the bottom of the range (R/S 8). · Secondly, the passenger was put at risk, as was Mr Cole. 32 In respect of those issues relevant to Mr Campton's moral responsibility, her Honour said this: (R/S 9) "... there is present a degree of intoxication which is more than minimal. The prisoner's blood alcohol reading was .14 percent. That is just less than the high range prescribed concentration of alcohol. That is an aggravating factor present to a reasonable extent in this case." 33 Her Honour accepted that Mr Campton was not in the habit of drinking a lot of alcohol. He was a person of slight build and that may have magnified the blood alcohol reading. She then said this: (R/S 12) "Nonetheless, at the time he must have realised that his driving ability was impaired. He chose to get behind the wheel of his car, however, and drive to the other venue. Not only that, but he had a passenger with him when he made that choice. The evidence allows for only one finding in relation to the cause of the accident, namely, that his alcohol level impaired his ability to drive safely and to stop at the red light." 34 Mr Campton gave evidence. He estimated that he had driven ten kilometres before the collision. Her Honour accepted that his estimate may have overstated the journey undertaken. She determined that, in the circumstances before her, distance was not an aggravating factor. 35 The Crown on this appeal has complained about that finding. The length of the journey, during which others are exposed to risk, is a specific matter identified in Jurisic (supra: para 26). It ought to have formed part of her Honour's assessment. It was said on behalf of Mr Campton that, as a matter of geography, the distance between the hotel at Rydalmere and the point of collision was significantly less than ten kilometres. 36 There is merit both in the position of the Crown and the respondent. Distance was a factor identified by Jurisic. Plainly a journey of some distance was made between Rydalmere and the point of impact during which Mr Campton was affected by alcohol. However, the distance appears to have been significantly less than ten kilometres. It was a factor, but not a large factor. 37 There were other matters, however, which did reflect adversely upon Mr Campton, and therefore his moral culpability, namely: · The fact that he had left the scene, and then attempted to blame his passenger. · The fact that he was unlicensed and the vehicle that he was driving was both unregistered and uninsured. 38 Directing her attention to the first limb of the guidelines, her Honour made the following finding: (R/S 11) "This is not a case where the collision occurred as a result of any momentary inattention on the part of the prisoner. The collision occurred because he was driving under the influence of alcohol. That much is [conceded] by his plea of guilty. As I have said, it was a relatively high reading of .14, just below the high range prescribed concentration of alcohol." 39 Given the aggravating factors which were present, her Honour's conclusion (addressing the second limb) was in these terms: (R/S 12) "It seems to me, in looking at all of those factors, that this is an example of this particular offence towards the middle of the range in terms of seriousness. On an objective assessment his moral culpability is not at the top of the range but nor was it at the bottom. There is a continuum and it seems to me that he was at about the middle of that continuum in terms of his moral culpability." 40 Her Honour added: (R/S 12/13) "On an objective assessment, and taking into account the guideline set by the Court of Criminal Appeal, a sentencing court would be looking to impose a full time sentence of imprisonment of about two and a half years, even taking into account the fact that this is an early plea of guilty." 41 Her Honour then dealt with the powerful subjective case presented on behalf of Mr Campton, and especially the rehabilitation through his own efforts, as set out above. He had changed his life. He was no longer using drugs. He had recognised that his associates were part of the problem. He no longer mixed with such people. He had moved to the Gold Coast, where he lived with his mother. He had resumed his career as a professional jockey. 42 Upon the basis of these findings her Honour said this: (R/S 18) "This offence, even taking into account the subjective factors, clearly calls for a prison term. It seems to me that, taking into account the aggravating factors, and even allowing for the fact that this is an early plea of guilty and, after taking into account those subjective factors, an overall term of imprisonment of two and a half years would be appropriate." 43 Her Honour found special circumstances. This was Mr Campton's first term of imprisonment. Given his background, which I take to be a reference to drugs, "he would benefit from a longer period of supervision in the community". Her Honour fixed a non parole period of 18 months (R/S 19). 44 Her Honour then turned to the manner in which the prison term should be served. She said this: (R/S 19) "Had it not been for the exceptional steps that this prisoner has taken to turn his life around since committing this offence, it seems to me that there would be no other option but to order that it be served full time." 45 However, her Honour believed that the "remarkable steps" taken by Mr Campton "towards his own rehabilitation" made periodic detention appropriate. She said this: (R/S 19) "Even though the offence itself was not committed because of his use of heroin, nonetheless he had in large part, because of his use of illegal drugs, allowed his life to reach the stage where he put himself in a position to commit this particular offence on this particular night. He has through his own efforts rehabilitated himself since that night and climbed back from the abyss. His demonstrated rehabilitation, it seems to me, would be significantly undermined if he were required to serve this sentence full time." 46 An order for periodic detention was not feasible so long as Mr Campton remained on the Gold Coast. The closest centre was Grafton. Mr Campton would have to use public transport, which was difficult, and would involve a long journey. To take advantage of periodic detention, Mr Campton would need to move to Sydney, which he was prepared to do, as was his mother. Her Honour said this: (R/S 20) "That will be a hard sentence for this particular prisoner because of the impact that it will have on him, requiring him to relocate to Sydney, give up his established career and income in Queensland and to earn a significantly reduced income and reduced career opportunities whilst riding in track work in Sydney. It seems to me, however, that it is an option that is much less likely to interfere with his demonstrated rehabilitation than an order that he serve that non parole period full time." 47 Her Honour added: (R/S 20) "It is for that reason that I propose to order that the non parole period be served by way of periodic detention, he having been found suitable to do so by the Probation and Parole Service."

Submissions by the Parties. 48 The Crown submitted the sentence was manifestly inadequate. It was not a case of momentary inattention or misjudgement. There was, as her Honour recognised, a degree of moral culpability arising especially from the amount of alcohol consumed by Mr Campton, and also from his flight from the scene, as well as the fact that he was unlicensed and his vehicle unregistered. By reference to the guidelines, a full time custodial sentence was required. 49 The Crown said this: "24. It appears the sentencing Judge in the present case fell into error by fixing a head sentence by reference only to the objective seriousness of the offence and by considering only subjective features of the respondent in determining the manner in which the sentence was to be served." 50 Her Honour, according to the Crown, had decided that the sentence should be served by way of periodic detention solely upon the basis that Mr Campton had rehabilitated himself. 51 The Crown also drew attention to a number of cases in which offenders had been sentenced under s52A(3)(a). In each case a custodial sentence had been imposed. Most were appeals by the offender against the severity of the sentence: R v Gleeson [2000] NSWCCA 101; R v Ardron [2000] NSWCCA 412; R v Park [2001] NSWCCA 313. One, R v Romanic [2000] NSWCCA 524, was a Crown appeal. 52 It is instructive to examine the Crown appeal. In R v Romanic the offender was a fifty year old man. He had a successful business as a gyprocker. He was well regarded within the community. Whilst affected by alcohol he crossed onto the incorrect side of the road, colliding with an oncoming vehicle. The occupants of that vehicle were quite seriously injured. Both suffered various fractures. A sample was taken of Mr Romanic's blood, although there was some delay in doing so. The delay led to a debate as to the likely reading at the time the offence was committed. Dr Moynhan gave evidence that the likely range of blood alcohol was between 0.116 and 0.297. The sentencing Judge found that Mr Romanic had abandoned responsibility for his conduct. However, by reason of his strong subjective case, he sentenced Mr Romanic to 22 months imprisonment with a non parole period of 18 months, such sentence to be served by way of periodic detention. 53 Wood CJ at CL (with whom Dunford J and Carruthers AJ agreed) said this: (at para 22) "22. It is evident that it was, because of those circumstances, that his Honour concluded that the sentence of imprisonment which he considered appropriate should be served by way of periodic detention, notwithstanding the clear direction in Jurisic that a non-custodial sentence for a section 52A offence, should be exceptional and almost invariably confined to cases involving momentary inattention and/or misjudgment. This was not a case of that kind." 54 Periodic detention involved a strong element of leniency. Wood CJ at CL proposed the following order, with which other members of the Court agreed: (at para 34) "34. In that regard, I think it appropriate to make some allowance for his age and also to give him full credit for the period of three months periodic detention which he has served. Having regard to the principle of double jeopardy I would propose that in lieu of the sentence below the respondent be sentenced to a period of imprisonment for 12 months, to commence from today, with a non-parole period of 9 months, similarly to commence from today and to expire on 27 August 2001. That would be the date on which the respondent would be eligible for release on parole." 55 Responding to the Crown's submissions, counsel for Mr Campton drew attention to the principles which should guide a Crown appeal. Such appeals should be rare. Intervention by this Court should be exceptional. The Crown must show that the sentence was so far outside the permissible range of the proper exercise of discretion as to require the intervention of this Court (Griffiths v The Queen (1977) 137 CLR 293 at 309-310; Dinsdale v The Queen (2000) 202 CLR 321 at 341; R v Allpass (1994) 72 A Crim R 561). 56 Here, according to the respondent, there was no compelling reason to intervene. The guideline judgments were indicative only. The broad sentencing discretion had been preserved (Jurisic (supra: Spigelman CJ at 220-221)). Her Honour well understood the serious nature of the offence. She took account of the fact that periodic detention for the offender would have a far greater impact than in the case of other offenders. She fashioned a sentence best designed to both punish the offender and preserve the rehabilitation which had been won. 57 The respondent submitted that, even were the Court to find that the sentence was manifestly inadequate, it would not intervene on discretionary grounds.

Was there Error? 58 There can be little doubt that the terms of the guideline judgments suggest that a person exhibiting the moral culpability of Mr Campton (as found by her Honour) would ordinarily expect to be sentenced to a term of full time custody, whatever his subjective circumstances. 59 But was there error in determining the sentence should be served by way of periodic detention? Error is not demonstrated simply by pointing to a departure from the guidelines. The Chief Justice in Jurisic, and more recently in Whyte, emphasised the discretion which remains with the sentencing Judge. In Whyte (supra) he said this: (at 276) "The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised. The final balance of a wide variety of incommensurable and often incompatible factors does not, I accept, involve a mathematical exercise." 60 In Jurisic the Chief Justice also made the following comment: (at 221) "The existence of multiple objectives in sentencing -- rehabilitation, denunciation and deterrence -- permits individual judges to reflect quite different penal philosophies. This is not a bad thing in a field in which 'the only golden rule is that there is no golden rule' ( Geddes (1936) 365 SR (NSW) 55, 555 per Jordan CJ). Indeed, Judges reflect the wide range of differing views on such matters that exists in the community. However, there are limits to the permissible range of variation." 61 What are those limits? It should be said that the guidelines were themselves the product of an examination of sentencing patterns. On these facts, was an order for periodic detention outside those limits, such that there was error? 62 R v Musumeci (unreported, CCA, 30.10.97) was a Crown appeal. The offender had been convicted of dangerous driving which had caused the death of a person. The conviction was under s52A of the Crimes Act, which had then recently been introduced. Mr Musumeci was sentenced to imprisonment for 15 months to be served by way of periodic detention. The following remarks by Hunt CJ at CL were specifically approved in Jurisic (supra: at 228). Hunt CJ at CL said this: "This Court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving. 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life. 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases. 4. The courts must tread warily in showing leniency for good character in such cases. 5. So for youthful offenders of good character, who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances. 6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order. 7. The statement made by this Court in relation to the previous offence of culpable driving -- that it cannot be said that a full-time custodial sentence is required in every case -- continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case) but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence." 63 These comments, although made in the context of dangerous driving causing death, can be readily adapted to the cognate offence of dangerous driving causing grievous bodily harm (Jurisic, per Spigelman CJ: supra at 228). In that offence, as in Dangerous Driving causing death, there is a need for public deterrence. The youth and good character of the offender are rather less important. Indeed, it was recognised in Jurisic that often serious motoring offences under s52A were committed by young males with impeccable subjective circumstances. In Whyte (supra) Spigelman CJ said this: (at 284) "A frequently recurring case of an offence under s52A has the following characteristics. (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value. As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime." 64 The touchstone for the sentencing Judge, when determining whether full time custody is appropriate, is the degree of moral culpability exhibited by the offender when committing the offence (R v Whyte (supra: per Spigelman CJ at 284 para 205)). 65 In R v Zamagias [2002] NSWCCA 17, Howie J analysed the issues which a Judge must confront when sentencing under the Crimes (Sentencing Procedure) Act 1999 (cf R v Cromarty [2004] NSWCCA 54, para 85). Once it has been determined that there is no alternative to imprisonment, the Judge must fix the length of the prison term. At that point the Court should consider whether an alternative to full time custody is available and, if available, is appropriate. In the context of that issue, Howie J said this: (para 28) "... But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B." 66 The importance of general deterrence in respect of this class of offence was again emphasised by the Chief Justice in R v Howland (1999) 104 A Crim R 273. That was a case in which a truck driver had deliberately driven through a red light. He collided with a motorcyclist who died as a result of his injuries. The sentencing Judge determined that it was not a case of momentary inattention or misjudgment. He nonetheless imposed a sentence of 18 months imprisonment to be served by way of periodic detention. On a Crown appeal the Court quashed the sentence. The offender was sentenced to 18 months imprisonment, being a minimum term of 9 months and an additional term of 9 months. Spigelman CJ (with whom Wood CJ at CL and McInerney J agreed) said this: (at 279) "His Honour's exercise of the sentencing discretion erred in two respects: first, by failing to give appropriate weight to the objective seriousness of the offence as reflected in the maximum penalty; secondly, by failing to give weight to the need for general deterrence -- the deterrence to others from engaging in irresponsible conduct that so often results in death or serious injury. As to the first error, the community has indicated that it wishes to denounce this conduct in the strongest terms. The premium on human life which our society accepts as a fundamental value is such that culpable conduct which kills must be treated as a serious crime. By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern. The second factor is the need to deter others from engaging in the conduct which might lead to the commission of this offence. Judge Job made no express reference to this factor. There is, and has been for many years, a debate as to the deterrence value of imprisonment. Judges will differ in their opinions with respect to this matter. It is perfectly appropriate for sentencing to vary, within reasonable bounds, to reflect such differences of opinion, being differences which judges share with members of the community as a whole. The emphasis, however, is on the reasonable bounds. Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have a deterrent effect on others. In order to have this deterrent effect, sentencing practice of the courts must reflect a consistency in approach. That is what this Court sought to achieve in Jurisic . This is an offence most often committed by young men. Young men in our community must understand that if you drive dangerously and kill someone, you will go to gaol. In my opinion, a period of imprisonment was the only appropriate penalty for this offence." 67 The sentencing task in respect of Mr Campton was unquestionably difficult. Mr Campton had been a heroin addict. He had, against all odds, exhibited extraordinary character and abstained from drugs. His rehabilitation, whilst encouraging, was potentially fragile. Her Honour feared, and with some justification, that full time custody may jeopardise his achievement. In these circumstances one can well understand the sentence which was imposed. 68 However, two things must be recognised. First, inconsistency in sentence is ultimately injustice. There is incongruity in the lenient sentence imposed upon Mr Campton compared to harsher sentences imposed upon others whose characters were without blemish. The typical offender under s52A, who is found to exhibit moral culpability, is given a full time custodial sentence even though he has an impeccable character. Yet Mr Campton, who was also morally culpable, and whose character was less that impeccable, escaped a full time custodial sentence because his character provided him with an opportunity to exhibit remarkable self rehabilitation. 69 Secondly, as Howie J said in R v Zamagias (supra: para 65), the sentencing Judge, when determining whether an alternative to full time custody is available, must consider whether that alternative will satisfactorily fulfil the need, which is especially important in respect of this class of offence, to denounce the conduct and to deter others. 70 In my view, the departure from the guidelines, and the resort to periodic detention, cannot be justified. A period of imprisonment was required. I believe, with respect, that error has been demonstrated.

Discretion on Crown Appeal. 71 An issue arises whether the Court should intervene to correct the error. When sentenced to periodic detention Mr Campton changed his place of abode. He did so in order to comply with the order of periodic detention made by her Honour. He thereby reduced, if not lost, his prospects of employment as a jockey. I accept that the dislocation arising from the sentence imposed was more significant in this case than in most. 72 It being a Crown appeal, if Mr Campton were resentenced, the term imposed would be at the lower end of the range (Dinsdale; supra: at 341 per Kirby J). Such a sentence would be likely to involve a period of 12 months custody, whether imposed as a fixed term or as a non parole period. The sentence, no doubt, would commence on 3 October 2003 (the commencement date of Mr Campton's existing sentence), recognising the dislocation referred to. In other words, a little over 6 months of the sentence would then remain (cf s5(2) Crimes (Sentencing Procedure) Act 1999). 73 There are, however, two matters which may suggest the Court should not intervene. First, a Crown appeal inevitably involves an element of double jeopardy. The person sentenced is called upon to face sentence for a second time. It is for that reason that the Court always has an overriding discretion to dismiss the appeal, notwithstanding error. 74 Secondly, there has been, for one reason and another, significant delay in this matter. The offence occurred on 6 August 2001. The sentence was imposed on 19 September 2003. The Crown appeal was lodged six weeks later, on 31 October 2003. It was served on 5 November 2003. There is no explanation for the delay in the lodgement of the appeal. Mr Campton in the meantime has attended for periodic detention since 3 October 2003. He has, either of his own volition, or more recently as a consequence of the disqualification imposed by her Honour, not driven since the offence occurred. 75 In all the circumstances, although with some hesitation, I believe it would be unduly harsh to impose at this point a term of full time custody. 76 I therefore propose that the appeal should be dismissed. 77 BELL J: I agree with Kirby J. **********

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