Judges Must Explicitly Consider a Clean Record When Sentencing

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By Paul Gregoire and Ugur Nedim

Just after 3am on 21 March 2015, Waqar Ul-Hassan was driving Muhammad Ijaz, Hashim Manzoor and Mohammed Aslam back to his place on Merrylands Road, after they’d all spent a night at a friend’s house in Styles Place, Merrylands.

The Pakistani national, who was residing in Australia on a student visa, was driving down McFarlane Street, which is sign-posted a 40 km/h zone. CCTV footage later revealed that Mr Ul-Hassan was driving well in excess of the speed limit.

As he made his way towards the traffic lights at the intersection with Treves Street, Ul-Hassan failed to slow down in time to safely take a left-hand turn. He slammed on the breaks, and the vehicle skidded 30 metres through the intersection and crashed into an apartment building.

The police arrived at the scene minutes later to find Ul-Hassan and Mr Manzoor lying on the ground, while the two other men were trapped in the back of the vehicle. All three passengers suffered multiple injuries as a result of the accident and spent close to three weeks in hospital.

Due to his facial injuries, Mr Ul-Hassan was unable to be interviewed for quite some time. So, on 2 June 2015, arrangements were made for him to attend Merrylands police station, where he was arrested.

Early guilty pleas

Mr Ul-Hassan entered pleas of guilty in the Local Court to three counts of aggravated dangerous driving occasioning grievous bodily harm contrary to section 52A(4) of the Crimes Act 1900. The offence carries a maximum penalty of 11 years imprisonment.

Section 205 of the Road Transport Act 2013 stipulates that an offence of this type carries an automatic licence disqualification of 3 years.

The offender also admitted to one count of driving with a mid-range of prescribed concentration of alcohol contrary to section 110(4) of the Road Transport Act, which was taken into account on sentencing.

The drink driving offence carries a maximum penalty of 9 months behind bars and/or a fine of $2,200 for a first offence, and up to 12 months and/or a fine of $3,300 if it is a second or subsequent major traffic offence within five years.

Conflicting versions

In an interview following his arrest, Ul-Hassan said on the night of the accident, he had drunk two beers at around 7 pm, taken a Zoloft for his depression at 10pm and drunk a glass of wine not long after that. He also said he was driving at around 70 km/h at the time of the incident.

However, clinical forensic pharmacologist Dr Judith Perl said that a blood sample taken after the accident indicated his blood alcohol concentration would have likely been around 0.135 when the crash happened.

An analysis of CCTV footage carried out by the NSW Police Forensic Imaging Section suggested that Ul-Hassan would have been driving at 110 km/h at the time he attempted to make the left-hand turn. An examination of the vehicle found no mechanical faults with it.

Sentencing in the District Court

NSW District Court Judge Jeffrey McLennan found that Mr Ul-Hassan was of good character and had good prospects of rehabilitation. He noted that each of the individuals injured in the accident had written to the court requesting leniency on his behalf.

“The manner in which the offender drove his vehicle clearly amounts to abandonment of responsibility and his moral culpability is accordingly high,” his Honour determined. “These offences are comfortably within the mid-range of objective seriousness.”

On 15 December 2016, Mr Ul-Hassan was sentenced to 6 years imprisonment with a non-parole period of 3 years. The sentence reflected a 25 percent discount due to the utilitarian value of his early guilty pleas.

Mr Ul-Hassan received a longer parole period than statutorily required, as his Honour found special circumstances, because the custodial sentence would be more difficult for him due to his distance from home and his lack of English.

The offender also received a reduction of the automatic licence disqualification from 3 to 2 years. In accordance with the law, this period would begin upon his release on parole.

The rejected grounds

Mr Ul-Hassan appealed the severity of his sentence to the NSW Criminal Court of Appeal (NSWCCA) on 20 April this year on six grounds. The appeals court rejected the initial four grounds outright.

The first ground was that the sentencing judge had made an error by not taking into account the driver’s depression and use of medication. It was put forth that his condition had lowered his assertiveness and he would not usually have agreed to his friends’ requests to drive them that night.

NSWCCA Justice David Davies rejected this ground. He pointed to the sentencing judge’s remarks, which clearly addressed Ul-Hassan’s depression and use of Zoloft. He also noted that rather than a lack of assertiveness, Dr Perl suggested it might have been alcohol that led to the risky behaviour.

Mr Ul-Hassan’s criminal defence lawyers also submitted that the judge had erred in finding their client’s moral culpability was high. Pointing to a list of aggravating factors set out in R v Whyte, they argued that while their client’s speed and intoxication were reprehensible, most of the other factors were absent.

Justice Davies made clear that this argument is flawed because objective seriousness is not defined by an absence of aggravating factors. He found there was evidence for the sentencing judge to support his findings, and therefore rejected this ground of appeal.

His Honour further rejected the argument that the sentencing judge had made an error by failing to take into account the fact that the victims’ injuries were not permanent, as there was no evidence provided during the sentencing hearing to support this.

Extra-curial punishment

The last rejected ground was that Judge McLennan had made an error by not considering the effects of Ul-Hassan’s injuries, along with those of the passengers, as a form of extra-curial punishment and therefore a mitigating factor.

Extra-curial punishment is a loss or detriment suffered as the consequence of the offence which is outside the normal parameters of sentencing. It can, in certain circumstances, be used as a mitigating factor on sentencing.

Justice Davies noted that the sentencing judge was not asked to consider these injuries as extra-curial punishment. He said there is an expectation that a defendant’s lawyer’s should call upon a judge to consider any such factors of mitigation.

An unblemished record

The fifth ground of appeal was that Judge McLennan had failed to consider that Mr Ul-Hassan had no criminal record and only one minor traffic offence to his name before the offence. The appeals court agreed with this submission.

As Justice Davies pointed out, section 21(A)(e) of the Crimes (Sentencing Procedure) Act 1999 stipulates that if “an offender does not have any record or any significant record of previous convictions” it should be “taken into account as a mitigating factor.”

And while the sentencing judge did list a number of mitigating factors, he didn’t mention that Mr Ul-Hassan had no criminal record.

A lesser sentence

The final ground of appeal was that the District Court sentence was manifestly excessive, which Justice Davies took into consideration during the resentencing exercise.

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

However, the justice went on to state that there were strong subjective factors that worked in Mr Ul-Hassan’s favour. These included his good character, no prior convictions, that it was unlikely that he wouldn’t reoffend, and the fact that he’d given considerable care and assistance to the others who were injured in the accident.

On 17 August this year, Justice Davies ordered that the sentence imposed by Judge McLennan be quashed and that Ul-Hassan be sentenced to 5 years imprisonment with a non-parole period of 2 years and 6 months.

NSWCCA Justices Elizabeth Fullerton and Julia Lonergan agreed with these orders.

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