R v Zelukin [2003] NSWCCA 262 (17 September 2003)

Last Updated: 23 September 2003

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R. v. ZELUKIN [2003] NSWCCA 262

FILE NUMBER(S):

60242/02

HEARING DATE(S): 30/05/03

JUDGMENT DATE: 17/09/2003

PARTIES:

R. v. ZELUKIN

JUDGMENT OF: Beazley JA Hidden J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/41/0070

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:

P. Byrnes SC/G. Bashir (Appellant)

W Dawe QC (Respondent/Crown)

SOLICITORS:

D. J. Humphreys (Legal Aid Commission)

S.E. O'Connor (Solicitor for Public Prosecutions) (Respondent/Crown)

CATCHWORDS:

Aggravated driving occasioning death - Dangerous driving occasioning death

Extension of time to appeal - appeal against conviction - appeal against sentence

Withdraw guilty plea - whether miscarriage of justice

Whether sufficient evidence to substitute lesser verdict

LEGISLATION CITED:

Crimes Act 1990 (NSW) ss52A, 52AA

Criminal Appeal Act 1912 (NSW) s10

DECISION:

1. Application for extension of time in which to bring the appeal against conviction is dismissed

2. Grant leave to appeal against sentence

3. Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60242/02

BEAZLEY JA

HIDDEN J

CARRUTHERS AJ

17 September 2003

R v ZELUKIN

FACTS

The applicant pleaded guilty to a charge of aggravated dangerous driving occasioning death, under s52A(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was the presence of the prescribed concentration of alcohol in the applicant's blood: s52A(7)(a).

The applicant sought to withdraw his please of guilty and applied for an extension of time in which to appeal against conviction. He also applied for leave to appeal against sentence.

HELD per Beazley JA (Hidden J and Carruthers AJ agreeing)

(i) The evidence upon which the applicant sought to rely in support of an appeal against conviction was not sufficient to persuade the Court that his guilty plea was entered in circumstances amounting to a miscarriage of justice: see Maxwell v The Queen (1996) 184 CLR 501.

(ii) The evidence adduced was not sufficient to substitute a verdict on the lesser charge of dangerous driving occasioning death under s52A(1).

(iii) Even if the matter had proceeded to a trial on the evidence now sought to be adduced, the Crown would have charged the applicant with an alternative offence under s52A(2), alleging a circumstance of aggravation under s52(7)(d), that the applicant's ability to drive was substantially impaired by the influence of a drug.

(iv) The trial judge did not err in her consideration of the facts of the case when imposing sentence.

ORDERS

1) Application for extension of time in which to bring the appeal against conviction is dismissed;

2) Grant leave to appeal against sentence;

3) Appeal against sentence dismissed.

IN THE COURT

OF CRIMINAL OF APPEAL

60242/02

BEAZLEY JA

HIDDEN J

CARRUTHERS AJ

17 September 2003

R. v ZELUKIN

Judgment

1 BEAZLEY JA: On 20 August 2001 the applicant pleaded guilty before Morgan DCJ to a charge under s.52A(2) of the Crimes Act 1900 (New South Wales) of aggravated dangerous driving causing death. The circumstance of aggravation was the presence of the prescribed concentration of alcohol in the applicant's blood: s52A(7)(a). An offence under s.52A(2) of the Crimes Act carries a maximum penalty of imprisonment for 14 years.

2 Her Honour sentenced the applicant to a period of 5 years imprisonment to commence on 15 October 2001 and to expire on 14 October 2006. Her Honour ordered a non-parole period of 3 years to commence on 15 October 2001 and to expire on 14 October 2004.

3 The applicant applies for an extension of time in which to appeal against conviction and sentence and, if granted, applies for leave to appeal against his conviction and sentence.

Background facts

4 The facts as found by her Honour in her remarks on sentence were these. On 2 September 2000, at about 9.44 pm, the applicant was driving his white Toyota Hilux utility south on the Federal Highway at Sutton, north of Canberra. Major roadworks were being carried out at the time. The section of the road near where the accident occurred diverged from dual to divided lanes and then to single lanes for both north and south bound traffic. A large dirt area divided the dual lanes. Her Honour stated:

"It would appear that at an unknown point prior to the convergence of the north and south-bound lanes, the offender crossed the dirt strip into the north-bound lane. He travelled in that lane for some distance, narrowly missing a north-bound vehicle ... He continued south in that north-bound lane and when he was approximately 25 metres south of a Give-Way sign at the junction of the two lanes, his vehicle collided head-on with a motor vehicle being driven in a northerly direction by Mr. Mark Frazer. As a result of that collision, both vehicles rotated anti-clockwise, coming to rest in the south-bound lane. The offender's vehicle mounted the front bonnet of Mr. Frazer's vehicle with the bull-bar penetrating the cabin area. Mr. Frazer was killed instantly."

5 Her Honour found that the roadworks which were being undertaken were well sign marked, with a clear sign directing traffic travelling in a southbound direction to "keep left". There was also a clear speed advisory sign.

6 A short time prior to the accident, possibly 10 to 20 minutes before, a Mrs. Elliott was travelling north along the Federal Highway. She described the roadworks and the roadwork signs as she travelled in that direction. She gave evidence that she observed the lights of a motor vehicle travelling in a southward direction which then "left the road into the dirt median strip, and appeared to be heading straight for her". She described the vehicle as appearing to gain speed as it travelled downhill and said that when it was about a metre to a metre and a half from her, the vehicle swerved. As it did so, "dirt and rocks flew up and hit the side of her car and she saw wire and stuff being brought along by the vehicle". About 20 minutes later, she was returning back past the same section of roadworks, travelling in a southerly direction. She again described the signs relating to the roadwork which she considered were clear and sufficient to direct traffic through it. She said that as she was travelling along this section, she saw there had been an accident and identified one of the vehicles involved as being the utility that had nearly hit her.

7 The applicant was subjected to a roadside breath test which returned a reading of .085. He told police at the scene that he had only had "a couple of beers" about half an hour previously. He also told police that at the time of the accident he had a beer in his hand. During the course of his discussion with the police officer he said "Why did this bloke veer across and hit me, what happened?"

8 The applicant was taken to Queanbeyan Hospital where a blood sample was taken at 10.00 pm. It returned a reading of a blood alcohol concentration of .156 grams per 100 millilitres. The sample also returned a drug reading of Delta 9THC .029 milligrams per litre and Delta 9THC acid greater than .10 milligrams per litre. Delta 9THC acid is the active ingredient in cannabis. A small quantity of cannabis leaf was found in a cigarette packet that the applicant had in his shirt pocket.

The offence

9 Section 52A(2) of the Crimes Act provides:

"A person is guilty of the offence of aggravated dangerous driving occasioning death if the person commits the offence of dangerous driving occasioning death in circumstances of aggravation. A person convicted of an offence under this sub-section is liable to imprisonment for fourteen years."

The "prescribed concentration of alcohol" is defined in sub-s (9) to mean "a concentration of 0.15 grams or more of alcohol in 100 millilitres of blood".

10 Cannabis is a prohibited drug for the purposes of the section.

11 It is convenient at this stage to also refer to another of the circumstances of aggravation under sub-section 7, namely that in paragraph (d) which provides:

"The accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor), or a combination of drugs whether or not intoxicating liquor was a part of that combination".

12 Section 52A(1) provides for the lesser offence of dangerous driving occasioning death where, inter alia, a person is driving under the influence of intoxicating liquor or a drug. Section 52A(1) carries a maximum penalty of 10 years imprisonment.

13 Section 52AA provides for a number of procedural matters. Relevantly for the purpose of this case, an offence under s.52A(2) involving a circumstance of aggravation under s52A(7)(a), as was the case here, may be proved by evidence of a blood analysis carried out in accordance with the prescribed legislation: s.52AA(2). Under sub-s.3(a), a blood analysis under sub-s.(2) is taken to be the concentration of alcohol at the time of impact, provided the blood sample was taken within 2 hours of the impact, unless the accused proves otherwise: s.52AA(3)(b). A jury may convict a person under s.52A(1) if not satisfied that the accused is guilty of an offence under s.52A(2).

Application for an extension of time in which to appeal against conviction

14 The applicant pleaded guilty before Morgan DCJ on 1 November 2001 and was sentenced on that day. On 29 April 2002, the applicant filed an application for leave to appeal against sentence only, together with a notice of application for extension of time. His application was dated 2 April 2002. An application for leave to appeal must be filed within 28 days of the date of sentence: s.10 Criminal Appeal Act 1912 (NSW). The reason advanced by the applicant for having failed to lodge the application in time was "due to subsequent legal advice".

15 Twelve months later, on 15 April 2003, the applicant filed an application for extension of time to file a notice of appeal against conviction. In his application for extension of time, the applicant stated that, at the time he was sentenced by Morgan DCJ, he was unaware that he had any possible defence to the charge to which he had pleaded guilty. However, he had obtained further legal advice, and had read a report of Professor Graham Starmer as a result of which he was "now aware that I may have a defence to my conviction". He said he did not become aware of this until November 2002. The applicant deposed to these matters in an affidavit sworn 14 March 2003.

16 The applicant's solicitor also swore an affidavit in support of the application in which he said:

"During the course of investigating the merit of the proposed appeal, it became apparent that there was an issue as to blood alcohol concentration at the time of the accident".

He stated that on the advice of counsel he had obtained a report from Graham A. Starmer, Associate Professor of Pharmacology at the University of Sydney. A copy of Professor Starmer's report was annexed.

17 The applicant's application for extension of time was objected to by the Crown.

18 The matter proceeded on the basis that this Court would admit all evidence conditionally and hear argument on both the leave issues and the appeals together. The matter thus proceeded before this Court on the basis that the two affidavits to which I have referred, were read subject to objection, as was the report of Professor Starmer which was annexed to the affidavit of the applicant's solicitor. The Crown had obtained evidence in response to Professor Starmer's report from Dr. William Allender and his report, dated 8 May 2003, was annexed to an affidavit of Katherine Anne Williams sworn 19 May 2003. Both Professor Starmer and Dr. Allender gave oral evidence in the proceedings before the Court.

19 Before going to the evidence of each of those experts, it is necessary to return to the facts in a little more detail. As I have said the accident occurred at about 9.44 pm and the applicant's roadside blood test reading was 0.085. There was some doubt as to the reliability of that breath test because some "corridor air" had possibly been admitted into the testing device which could have had the effect of diluting the reading. There was no dispute however that the blood test returned a reading of 0.156. The sample was taken within the 2 hour period required by s.52AA, the reading was greater than the prescribed concentration of alcohol for the purposes of s.52A(2) and there was no challenge to the testing procedure. The applicant contends, however, that the effect of the evidence of Professor Starmer on the history he received, pointed to it being possible that the likely level of concentration of alcohol in the applicant's blood was less than the prescribed amount of 0.150. If this submission was accepted, the applicant submitted that the conviction should be set aside and the applicant convicted by this Court of the lesser charge of dangerous driving occasioning death under s.52A(1).

20 As will become apparent, an examination of the evidence of Professor Starmer, reveals that the question whether the applicant's blood alcohol level could have been less than .150 very much depended upon the history of alcohol consumption on the night of the accident.

21 I have already referred to the applicant's statement to the police officers at the scene of the accident as to the extent of his alcohol consumption. That version would not be accepted whether in relation to a reading of .085 or .156. In January 2001, the applicant was assessed by Ms. Kate Barrelle, clinical psychologist. During the course of that assessment, the applicant gave a history that over the afternoon prior to the accident he had consumed "7 or 8 stubbies of regular beer" as well as one joint of cannabis. He described this as his "usual" level of intoxication at that time. He said that he "had a snack" and the last of these beers at approximately 7 or 7.30 pm. He commenced travelling to Canberra at around 8.00 pm. His last recollection was pulling out of the driveway of a friend's property and entering the Federal Highway. He told Ms. Barrelle that there were roadworks on the highway at that time and changed traffic conditions. It is not clear, however, whether this was his general state of knowledge or whether it was a recollection of the night, although I would infer the former. He has no recollection at all of the accident.

22 The applicant gave evidence at his sentence hearing in which he confirmed what he had told Ms. Barrelle.

23 Professor Starmer was retained on behalf of the applicant in September 2002. Professor Starmer was given the following information as to the applicant's physical circumstances at the time of the accident as well as his alcohol consumption at that time. At the time the applicant was 176 centremetres tall and of average build weighing 77 kilos. On the evening prior to the collision he had about 6 stubbies of beer between 4 and 6 pm and smoked 2 joints of cannabis containing "heads". On the day of the accident he had his first drink at about mid-day and then consumed one stubby of beer about every 45 minutes to 1 hour until about 8 pm. At about 8 pm he drank 2 stubbies in quick succession while he ate his steak sandwich. He then opened a third and drank this while he drove down the track towards the main road. He thinks he might have finished this beer about 10 minutes before the collision. He also had one cannabis joint with heads in it at about 3 to 4 pm that afternoon. The applicant had had breakfast at about 7.30 am, lunch (a packet of chips) between midday and 1.00 pm and a steak sandwich at about 8.15 pm. He then opened another beer and drank this while he drove down the track to the main road, finishing it about 10 minutes before the collision.

24 Professor Starmer acknowledged that the blood alcohol testing procedure conducted by Dr. Allender is an accurate and precise one, and is normally within a range of accuracy of about 1 per cent.

25 On the basis of this history, Professor Starmer expressed the opinion that, "The rapid consumption of the last 3 stubbies of beer between 8 pm and the time of the collision and the concomitant consumption of a steak sandwich, would suggest that, at the time of the collision, a significant proportion of the alcohol ... would not have yet been absorbed and would have remained unabsorbed in his stomach". He explained that if alcohol is absorbed on an empty stomach it takes between 20 to 30 minutes for the blood alcohol concentration to reach its peak. However, when food is consumed at the same time, especially if the food includes carbohydrate and fat, it can take up to 60 to 90 minutes for the blood alcohol to reach its peak. Professor Starmer said, therefore, that as the applicant had eaten a steak sandwich with the alcohol at about 8 pm "It was likely that [he] had reached his peak blood alcohol concentration at or about the time of the blood sampling [22:00 hours]".

26 Professor Starmer recognised that the roadside blood alcohol testing device may give rise to inaccurate readings and acknowledged there was some issue about the reliability of the test performed in this case. He then gave his final conclusion in these terms:

"If it is assumed that none of the alcohol delivered by the last 3 stubbies of beer had been absorbed at the time of the roadside breath test, then [the applicant's] blood alcohol concentration would be expected to have been about 0.089 g/100 ml ... . The roadside result was close to the estimate of [the applicant's] blood alcohol concentration and, in my opinion, the roadside reading of 0.085 g/100 ml was almost certainly a better index of his blood alcohol concentration at the time of driving than the blood alcohol concentration which was recorded at 22.00 hours".

27 In his evidence before this Court, which was heard on the same conditional basis as his report was admitted, Professor Starmer agreed that his opinion as to the level of intoxication depended, at least for one of its bases, upon the history of drinking. He agreed that a different history to that given to him by the applicant "would materially affect [his] opinion". He also stated that his conclusion was dependent not only upon the history that he had been given but also "on the somewhat artificial premise that none of the alcohol delivered by those last 3 stubbies would have been absorbed at the time of the crash, which was just a way of looking at it". He then gave the following evidence:

"Q. The conclusion you make is the roadside test is consistent with the history of drinking and food consumption that he gave you?

A. It could be. Given the fact that alcohol absorption is very very irregular. It is not like alcohol elimination which you can rely upon, you know the coverage and variability of alcohol elimination, but not absorption."

28 In cross-examination, Professor Starmer agreed that because of the possible inaccurate testing, the breathalyser "could have significantly under read his blood alcohol content".

29 Dr. Allender, who had prepared the expert certificate in relation to the blood sample, provided a report in response to Professor Starmer's report. In that report, he commented that upon the history given to Professor Starmer, with a period of some 45 minutes between the consumption of at least two of the stubbies of beer and the time of the roadside breath testing, he would have expected at least some alcohol absorption to have occurred. He also commented upon the accuracy of the testing device and observed that because of the problems with the roadside testing on this occasion there was a significant under reading of the actual blood alcohol concentration.

Application to withdraw plea of guilty

30 Senior counsel for the applicant submitted that leave should be granted to the applicant to withdraw his plea of guilty. He acknowledged that the legal effect of a plea of guilty is "an admission of all the essential elements of the offence": see Maxwell v The Queen (1996) 184 CLR 501 at 510 per Dawson and McHugh JJ; Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 and that there is a need to accord finality to a plea of guilty: see R v Davies (1993) 19 MVR 481. However, as Dawson and McHugh JJ pointed out in Maxwell at 511:

"The plea of guilty must ... be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance ... mistake".

It was submitted that here, the applicant was ignorant of the possibility that the blood alcohol reading may be able to be challenged.

31 Badgery-Parker J (with whom Wood J (as he then was) and Matthews J agreed) made the same point in Davies:

"If the integrity of the plea is bona fide questioned because it appears that the person who entered the plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion, the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the applicant) it is clear that there is ... `an issuable question of guilty' - to put more simply, if there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."

32 It was acknowledged on behalf of the applicant that he was intoxicated at the time of the accident. It was submitted however that the evidence of Professor Starmer established, to the requisite standard, that he was not driving with the prescribed concentration of alcohol in his blood at the time of impact. It was said, therefore, that the requirements of s.52A(2) were not established.

The applicant urged the Court on this evidence to allow him to withdraw the plea of guilty on the charge under s.52A(2) and to convict him under s.52A(1).

33 In my opinion, the evidence upon which the applicant seeks to rely is not sufficient to persuade the Court that the plea was entered in circumstances amounting to a miscarriage of justice. Professor Starmer's opinion, even on the history given to him, was qualified. The highest his evidence rose was that the actual blood level could have been close to the breathalyser test. This opinion had within itself the seeds of its own demise as Professor Starmer acknowledged that the test was likely to have been an under-reading. Added to that, the applicant had given a different history to Ms. Barrelle only some months after the accident. Professor Starmer did not say that on that history the blood alcohol analysis of .156 could have been wrong. It is possible that a jury, given the different histories and the evidence of Professor Starmer, might have resolved the issue in favour of the applicant. But in my opinion, that is a long way from being certain.

34 During the course of argument, the Court indicated to counsel for the applicant that even if (which was unlikely) this Court was minded to act upon the evidence of Professor Starmer, it considered that it would only be appropriate to do so to the extent of quashing the conviction and remitting the matter for a new trial.

35 When the applicant was apprised of the Court's preliminary views on this, his counsel informed the Court that the applicant did not seek an order for a new trial and if the Court was not persuaded that a verdict should be substituted then he would not pursue the appeal against conviction. There has been nothing in my consideration of this issue in the course of these reasons which has persuaded me that a conviction under s.52A(1) should be substituted.

36 There is another reason why, in my opinion, the applicant has not established that the Court ought to substitute a verdict under s.52A(1). The Crown submitted to this Court that had the matter gone to trial in circumstances where there was a challenge to the blood alcohol anaylis, it would have presented an alternate case under s52A(2) relying upon s52A(7)(d) as the circumstance of aggravation. I have already referred to the evidence that, in addition to consuming alcohol, the applicant had had a cannabis joint during the course of the afternoon of the accident. I have also referred to that cannabis reading. Both Professor Starmer and Dr. Allender dealt with this in their reports.

37 Professor Starmer acknowledged that the Delta 9 THC and the Delta 9 THC acid readings indicated that the applicant was a heavy cannabis user. Professor Starmer, in his review of the effects of cannabis, observed that THC causes changes, inter alia, in motor co-ordination, cognition and sense of time. He acknowledged that the level of THC acid recorded in the applicant's blood sample was high but said that this indicated a development of tolerance to the drug and a lesser degree of impairment from a given dose than would be expected in a person who was not a constant user.

38 Professor Starmer stated that the effects of cannabis on driving are "much less well defined than those of alcohol". He recognised that readings above 0.010mg-l were associated with driving impairment. He referred however to studies which had been done on the relationship between cannabis use and driving impairment, noting that those publications had thrown doubt on that relationship. In his oral evidence, Professor Starmer also agreed that the combination of the alcohol and the cannabis in the applicant's blood would probably have had a substantial effect on his driving.

39 Dr. Allender also commented upon the effects of cannabis. He stated in his report that:

"Based on my specialised knowledge ... I am of the opinion that at the time of driving, [the applicant] was under the influence of alcohol and cannabis to the extent that his driving ability would have been significantly impaired."

40 Dr. Allender also referred to the literature on the inter-relationship between cannabis use and driving and noted that in the tests carried out in the papers to which Professor Starmer referred, the marijuana dose was not particularly high. Dr. Allender said that there were studies carried out in Australia and overseas which "had shown that low to moderate doses of cannabis ... taken in combination with low doses of alcohol" had a severe effect on driving ability

41 The applicant referred, however, to Dr. Allender's evidence that he considered the phraseology "severely impaired" and "very substantially" as being synonymous. This was important because it was submitted that Dr. Allender's opinion expressed in his report, that the applicant's driving ability would have been "significantly impaired", did not accord with the statutory test in s.52A(7)(d), and that his evidence viewed as a whole did not accord with s.552A(7)(d), it was contended this was apparent from the following cross-examination:

"Q. Are there degrees of impairment that you described when producing reports of this kind?

A. Well I consider `significantly' and `substantially' pretty much interchangeable, but generally [when] we see such levels like this we put in `significantly'.

Q. You regard `significantly' and `substantially' as being interchangeable though?

A. Yes."

He was then further asked:

"Q. Just leaving aside the cannabis reading, if the alcohol content at the time of driving was in fact somewhat less than .156 grams per 100 mls, and when I say somewhat less, if it was in the range of .08, .09 grams per 100 mls, would that affect your use of the word "significantly impaired'?

A. No. It is just a fact that the two drugs present together attenuate each other.

Q. You say attenuate, they have an additive effect?

A. That's correct.

...

Q. You would say even if the blood alcohol reading was in the range of .08 to .09 it would still have significant impairment?

A. I would have to say that because of the level of THC found.

Q. You equate that with substantial impairment, is that right?

A. Yes."

42 The cross-examination continued with propositions being put to Dr. Allender on the basis that various combinations of the alcohol and the cannabis would cause significant impairment or substantial impairment.

43 The point that the applicant sought to make from this cross-examination was that Dr. Allender's evidence was not sufficient to enable the Crown to make an alternate case under s.52A(7)(d). However, Dr. Allender was not asked by counsel for the applicant whether, given the combination of alcohol and cannabis, the applicant's driving ability would have been "very substantially" impaired, the wording of s.52A(7)(d). He had certainly given that view in evidence in chief. That language was not taken up in cross-examination. This was understandable. The applicant, also for understandable reasons, did not directly challenge Dr. Allender on the view he had expressed in chief.

44 It is important to keep in mind that the task this Court is undertaking is determining whether leave should be granted to the applicant to withdraw his plea of guilty, a plea that was given at a time when the applicant had proper legal representation and in circumstances where he raised no challenge to the blood analysis. The highest that his case has reached before us, on the assumption that we would allow the evidence upon which he seeks to rely in the application for leave, is that there could be an issue as to whether either s.52A(2) or (7) had been satisfied if the case went to trial. However, I do not find the evidence advanced to be compelling or in any way sufficient to establish that there has been a miscarriage of justice. For the reasons I have given there is certainly not sufficient evidence for the Court to substitute a verdict under s.52A(1). As the applicant does not seek a new trial, it follows that his application for leave to appeal is withdrawn and an appropriate order giving effect to that will have to be made.

Sentence

45 The applicant also seeks leave to appeal against sentence. It will be recalled that the applicant was sentenced to 5 years imprisonment with a non-parole period of 3 years. In imposing this sentence, her Honour applied a 25% discount for pleading guilty at the earliest reasonable opportunity: see R v Thomson; R v Houlton (2000) 49 NSWLR 383. The effect of this discount was that the starting point for the sentence was 6 years and 8 months. Senior counsel for the applicant conceded this was within an appropriate discretionary range for an offence under s.52A(2). It was conceded that her Honour appropriately took into account the applicant's expressed remorse for his conduct and the evidence that he declined to take pain killers as his back pain reminded him of what he had done.

46 Nonetheless, senior counsel for the applicant submitted that her Honour made a number of errors in the sentencing process.

47 First, it was submitted that her Honour made no findings of fact beyond reasonable doubt as to the relative objective facts of the offence. As fully argued, this submission was that although the sentencing judge quoted an opinion of one of the witnesses to the warning and road signs, a matter to which it will be necessary to return, she did not make any findings in relation to any contributing effect that these may have had to the accident. It seems to me this submission raises the same factual issues as are raised in the next submission in relation to the roadworks. Accordingly, I will treat this submission as being confined to a complaint that such findings of fact that her Honour made were not made beyond reasonable doubt.

48 The Crown submitted that her Honour in her remarks on sentence recounted the facts as they were relevant to her consideration. The Crown draws attention to the fact that this was a plea of guilty and her Honour was not required to make any findings on disputed questions of fact. It was submitted that her Honour was therefore entitled to recount the facts in the manner that she did, accepting the factual material before her, none of which was challenged and that she referred to this material on the basis that it was established beyond reasonable doubt.

49 In my opinion, there is nothing in the applicant's submission. The factual material was not in dispute and her Honour was entitled to record it as she did. It is not an error, in these circumstances for her Honour not to intone the words `I find beyond reasonable doubt'.

50 The second challenge was the manner in which her Honour dealt with the fact that there were major roadworks being undertaken at the site of the accident. This was not in issue. However, senior counsel for the applicant submitted:

"It is a case where apparently the road conditions might have been regarded as a factor which in some sense contributed to what happened".

Her Honour quoted some of the evidence relating to the state of the roads, including that of Mrs. Elliott to which I have referred. There was other evidence and this is referred to in detail in the written submissions. In particular, the applicant relies upon that part of the evidence, particularly that of Mrs. Elliott, which would indicate that the lighting and signage was inadequate. However, although Mrs. Elliott's evidence is quoted accurately in the applicant's written submissions, the fact is, that part of her evidence did not relate to the lighting and signage on the road governing motor vehicles driving in a southerly direction. Rather, it was her evidence in relation to the north bound trip. The applicant was travelling south at the time of the accident. Accordingly, there is no relevant error in her Honour's reference to the condition of the road for south bound traffic and there was no particular point in her referring to the evidence which governed north bound traffic.

51 The applicant next referred to the evidence of a Mr. Zagar. He gave evidence that the road was poorly lit and signposted. However, contrary to the applicant's written submissions, Mr. Zagar was not travelling behind the applicant at the time of the accident. Rather he was travelling north. Accordingly, Mr. Zagar's evidence is consistent with Mrs. Elliott's evidence in relation to the signage governing traffic travelling north. That is not relevant to the signage which governed traffic travelling south.

52 The applicant also relied upon the evidence of Mr. Jurcevic. The material before the Court did not include a statement from Mr. Jurcevic. However, when regard is had to the extracts to which the applicant refers in his written submissions, they indicate that Mr. Jurcevic's evidence was not always easy to follow, it would appear due to transcription problems. In addition, Mr. Jurcevic was in error in a significant respect in his recall of the accident, stating that the accident occurred in the south bound lane, whereas the applicant was travelling south but the accident occurred on the north bound lane. Accordingly, her Honour's failure to refer to this evidence does not establish that her Honour's recount of the condition of the road as it affected the applicant's travel, was erroneous.

53 The applicant complained that her Honour dismissed the roadworks as being "irrelevant". Reference to the roadworks is a matter which would operate both in favour of the applicant and to his disadvantage. If the roadworks were of such a confusing nature that the applicant was misled by, for example, a sign pointing in the wrong direction or the absence of a sign, then that would have been a relevant factor for her Honour to take into account. There was however no such evidence before her Honour. On the other hand, the existence of the roadworks could have worked against the applicant's interests, as their existence may have been a reason why he should have himself been exercising greater caution. In my opinion, when her Honour said that the condition of the roadworks was irrelevant, it seemed to me that she was taking the view that they were not a relevant factor to take into account as a mitigating circumstance. Given the state of the evidence her Honour was correct about this.

54 It was next said that her Honour did not make any findings as to the state of the road, that is as to whether it was wet or dry. The evidence as to the state of the road would indicate that it was dry at the time of the accident. There was some suggestion in one statement that as there had been sleet during the day the road "may" have been damp. The failure to mention this possibility does not amount to error. In any event, there was no suggestion that the applicant's driving was in any way affected by weather conditions.

55 The next matter raised by the applicant was that her Honour had failed to take into account the evidence of a mechanic, Mr. Van der Weide, that the rear brakes were defective and that this had contributed to the cause of the collision. Mr. Van der Weide in his statement of 12 December 2000 said:

"The rear brake linings were worn beyond their serviceable limit and were due for replacement. Additionally the off-side rear axle seal was leaking which has dispersed a film of oil onto and around the braking components reducing the effectiveness of this brake considerably".

56 He concluded that:

"I found apart from the rear brake linings being worn beyond their serviceable limit and oil on the rear off-side brake linings, no mechanical defects, which in my opinion, may have contributed to the cause of the collision".

57 I do not understand Mr. Van der Weide's report as expressing an opinion that the fact that the rear brake linings were worn and there was oil on the rear off-side brake linings, contributed to the accident. Rather, his report was restricted to assessing the condition of the vehicle. There was no suggestion in the case as it was presented to her Honour that some difficulty with braking was the cause of the accident. The applicant was on the wrong side of the road. Accordingly, I do not consider that her Honour's failure to mention this evidence amounts to error in the sense of failing to take into account some relevant consideration on sentence.

58 The next matter about which complaint is made is that her Honour, in the course of making her observations as to the seriousness of the offence, included the fact that whilst the applicant was driving he was holding a beer in his hand. It was submitted that this statement, which was made to a police officer in the ambulance, had never been put to the applicant in any formal interview and would not have passed the test of admissibility under either the Evidence Act or the Criminal Procedure Act. As this matter was developed in oral submissions, senior counsel merely said that it was a matter which should have been the subject of more reliable evidence. He added that the issue seemed to assume "a little more significance than it perhaps should have been given".

59 It seems that these comments by senior counsel recognise that whatever might be thought about her Honour's reference to this evidence, it certainly did not indicate any appealable error in her Honour's sentencing remarks.

60 It was next said that, her Honour in effect engaged in the process of double punishment, when considering the seriousness of the offence. The particular passage of which complaint was made was:

"This case is, of course, very serious, involving as it does the offender driving his four wheel drive utility some distance on the wrong side of the road whilst he was holding a beer in his hand, as he told Constable Williams at the scene, and with over three times the legal limit of alcohol as well as cannabis in his blood. All of this had disastrous consequences for the young man who was innocently driving his motor vehicle north on the road that night".

61 Senior counsel for the applicant submitted that the matters to which her Honour referred, that is, the driving "with over three times the legal limit of alcohol" in his blood was the very circumstance of aggravation which gave rise to the higher penalty under s.52A(2). In my opinion, I do not consider that her Honour was engaging in any process of double punishment. Certainly, the aggravated feature relied upon was the fact that the applicant was driving with over the prescribed level of alcohol in his blood. That, as is recognised by the legislation, is a serious offence. That is what her Honour said. That factor does not preclude a sentencing judge from making reference to that feature as well as other features of the accident to indicate its seriousness. In this case, there were two other very serious circumstances namely, driving on the wrong side of the road "for some distance" and, having used cannabis as well as having imbibed a large quantity of alcohol. In my opinion, there is no question that her Honour imposed double punishment as suggested in the submission.

62 The final submission made on behalf of the applicant was that her Honour appears to have failed to have given any weight to the fact that the applicant himself had suffered serious injury in the accident. It was submitted that as, has been made clear in the guideline judgment R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, this is a relevant subjective feature for consideration. I do not consider this submission has been made out. Her Honour, over approximately seven pages, referred to the applicant's subjective physical and psychological conditions. She referred to his long stay in hospital; the fact that his back continues to cause him great pain; the fact that he does not want to take pain killers. Her Honour also dealt extensively with his alcohol and drug dependence problems and his attempts to overcome them. Given the extensive consideration given to these matters, failure to reiterate these matters in the specific part of the remarks dealing with sentence does not indicate error.

63 The applicant does not contend that the sentence is manifestly excessive. Rather, by seeking to challenge certain aspects of the trial Judge's Remarks on Sentence he seeks to have this Court quash the sentence and re-sentence him.

64 In my opinion, no error has been established in relation to her Honour's sentencing remarks. As was appropriately acknowledged in the applicant's written submissions, the sentence imposed was within an appropriate discretionary range. I would propose therefore to grant leave to appeal against sentence but to dismiss the appeal

65 The Orders which I would propose are:

1. Application for extension of time in which to bring the appeal against conviction is dismissed.

2. Grant leave to appeal against sentence.

3. Appeal against sentence dismissed.

66 HIDDEN JA: I agree with Beazley JA.

67 CARRUTHERS AJ: I agree with Beazley JA.

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LAST UPDATED: 22/09/2003