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[2014] NSWCCA 265
Court of Criminal Appeal (NSW)
2014-10-07
Meagher JA, Fullerton J, Schmidt J, Mr P
Original judgment source is linked above.
The applicant's case on appeal 16At the sentencing hearing the Crown had conceded that the prosecution could not establish the dangerous driving offences with which the applicant had been charged. He had never been charged with negligent driving offences, although it was an agreed fact that his driving had been negligent. The Crown submitted that in the result, there would be no error in his Honour taking into account the negligent driving as part of the applicant's criminality. The applicant took no issue with that submission. 17On appeal, however, the applicant's case was that his Honour had erred in taking negligent driving into account in sentencing him and further that his Honour had also erred in not taking into account that if he had been charged with an offence of negligent driving occasioning death/grievous bodily harm under s 42(1) of the Road Transport (Safety and Traffic Management Act) 1999 (NSW), then the appropriate charge for failing to stop after an impact was an offence under s 70(1) of that Act. The maximum penalty for that offence was only 30 penalty units and/or 18 months imprisonment (in the case of a first offence). 18It was submitted that the s 52AB offences were "tethered to" dangerous driving and that the facts known to police, even at an early stage, had warranted the laying of charges of negligent driving, not dangerous driving. His Honour had erred in not having regard to the maximum penalty imposed for an offence under s 70 of the Road Transport (Safety and Traffic Management) Act, which was "tethered to" negligent driving occasioning death or grievous bodily harm under s 42(1) of that Act. In the result, absent the dangerous driving charge, the maximum penalty of 18 months in the Local Court ought to have been taken into account on sentencing for these s 52AB offences. 19Further, the applicant contended that his Honour had erred in not taking into account by way of mitigation the maximum penalty for the s 52AB offences, if they had been prosecuted in the Local Court. The s 52AB offences were not Table 1 offences under Schedule 1 to the Criminal Procedure Act 1986 (NSW) and so had been committed to the District Court, while the applicant still faced the dangerous driving charges. Those charges were not finally pursued, but the Director elected to have the s 52AB offences dealt with by the District Court. It was submitted that after the dangerous driving charges were withdrawn, the s 52AB charges could have been dealt with summarily had the Director elected. In that event the maximum penalty for those offences would also have been 18 months. 20In those circumstances it was submitted that on sentencing his Honour ought to have taken into account the maximum penalty in the Local Court, as discussed in McCullough v R [2009] NSWCCA 94. There reference was made to Johnson J's judgment in R v El Masri [2005] NSWCCA 167 where his Honour observed at [29] - [30]: "29 It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie, at paragraph 16; Doan, at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule (Sandford, at 195) nor a factor which operates universally to reduce sentence (Doan, [[2000] 50 NSWLR 115] at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13. 30 The maximum penalty for an offence under s.59(1) Crimes Act 1900 is imprisonment for five years. When disposed of summarily in the Local Court, the maximum sentence is imprisonment for two years or a fine of 50 penalty units or both: s.268(2)(a) Criminal Procedure Act 1986. These provisions prescribe the jurisdictional limit of the Local Court and not the maximum penalty for any offence triable within that jurisdiction: Doan at 123 (paragraph 35). Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney-General's Application under s.37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 137 A Crim R 196 at 204 (paragraph 27). A judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Crombie, at paragraph 16; LPY, at 240 ...." 21Further, at the sentencing hearing the parties had advanced submissions as to the nature of the offences created by s 52AB. Madgwick ADCJ was referred to the Second Reading Speech, NSW Legislative Assembly, Parliamentary Debates (Hansard), 21 September 2005 at 18124, which described the purpose of the newly created offence. It was there said: "Assistance may save a life, minimise injury, improve the prospect of recovery, alleviate suffering and preserve the dignity of the injured or deceased. Failure to stop and assist in serious accidents should invite significant punishment... What is required is for the person to stop and take steps to assist directly or obtain expert help by contacting police or emergency services to ensure that professional expert assistance is obtained at the earliest opportunity. The action of drivers fleeing may thwart police in their ability to identify the drivers and collect necessary evidence. The presence of drivers at the scene ensures that the investigation is at no disadvantage." 22In his sentencing remarks his Honour observed as to the purpose of the offences: "The offences appear to have two rationales. First, to provide that whatever may be the position in relation to not needing to attempt to be a good Samaritan in relation to injuries sustained by others generally, that is not the position when one has been the driver of a motor vehicle and there has been an impact and one knows, or ought to know, that there has been death or serious injury to another person. The other rationale is to seek to ensure that a person seriously at fault cannot profit by fleeing the scene and avoiding being charged with dangerous driving causing death of a person or grievous bodily harm to a person." 23On appeal the applicant complained that his Honour had wrongly regarded him as having taken steps to avoid prosecution for negligent driving occasioning death as a matter of aggravation, when assessing the objective seriousness of the offences for which he was being sentenced. 24It was also submitted that his Honour's approach had resulted in negligent driving, an irrelevant matter, being taken into account on sentence. That was revealed by his Honour's observations that: "The prisoner was travelling at least 13 kilometres over the speed limit and may well have been travelling at a speed in excess of that. Whether or not his driving could ever have been proved to amount to dangerous driving, it is clear that his inattention or judgment as he was driving were, in the case of inattention, of a high order and, in relation to his judgment, lacking to a quite substantial degree." 25It was submitted in the alternative that if the nature of the driving which caused the impact was a relevant consideration, negligent driving was a fact in mitigation of penalty, given that the impact was not caused by dangerous driving.
The nature of s 52AB offences - Ground 1(d) 26The case advanced on appeal raises the proper construction of s 52AB of the Crimes Act. Contrary to the applicant's case, the offences created by s 52AB of the Crimes Act are not "tethered to" the offence of dangerous driving created by s 52A, despite the reference there made to s 52A. The section provides: "52AB Offence of failing to stop and assist after vehicle impact causing death or grievous bodily harm (1) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning the death of another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 10 years. (2) A person is guilty of an offence if: (a) a vehicle being driven by the person is involved in an impact occasioning grievous bodily harm to another person, and (b) the person knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: imprisonment for 7 years. (3) The provisions of section 52A (5) and (6) (which prescribe circumstances in which a vehicle is taken to be involved in an impact) apply for the purposes of this section in the same way as they apply for the purposes of section 52A. (4) In this section, vehicle has the same meaning as it has in section 52A." 27Grievous bodily harm is defined in s 3 of the Crimes Act to include: "(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease)." 28A driver who is involved in an impact caught by s 52AB, that is an impact which occasions either the death of another person or grievous bodily harm to another person, who fails to stop and give assistance that may be necessary and that it is in his or her power to give, commits an offence under s 52AB, if he or she: "knows, or ought reasonably to know, that the vehicle has been involved in an impact occasioning the death of, or grievous bodily harm to, another person". 29It is the failure to stop, the driver having that knowledge, which is the gravamen of the s 52AB offences, not the nature of the driving which caused the impact, as Price J discussed in Shumack v R [2008] NSWCCA 311; 191 A Crim R 513 at [32] - [33]. 30It is the consequences of the impact itself, namely either death in the case of s 52AB(1), or grievous bodily harm in the case of the s 52AB(2) offence, which determines whether the offence falls within s 52A(1) or s 52A(2) and the resulting maximum penalty which applies, respectively 10 or 7 years. An impact which causes injury which does not result in either death or injury which falls within the statutory definition of grievous bodily harm, cannot give rise to a s 52AB offence. 31In a case where a driver failed to stop and give assistance after an impact which causes less serious injury, it was the offence created by s 70 of the Road Transport (Safety and Traffic Management) Act (see now s 146 of the Road Transport Act 2013 (NSW)) which arose for consideration. Section 70 relevantly provided: "70 Offence of failing to stop and assist after impact causing injury (1) A person is guilty of an offence if: (a) a vehicle or horse being driven or ridden by the person on a road or road related area is involved in an impact occasioning the death of, or injury to, another person, and (b) the person knows, or ought reasonably to know, that the vehicle or horse has been involved in an impact occasioning injury to another person, and (c) the person fails to stop and give any assistance that may be necessary and that it is in his or her power to give. Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence). (2) .... " 32A s 70 offence was committed, in the case of the driver of a vehicle, by failing to stop and assist if the driver knew or reasonably ought to have known that the vehicle had "been involved in an impact occasioning injury to another person". Such injury includes injuries which do not fall within the definition of "grievous bodily harm". That offence was, however, also not concerned with the nature of the driving which caused the impact which caused such injury, but with the failure to stop and give assistance. 33The elements of the three offences created by these two statutory schemes are thus different. They are each concerned with the conduct of the driver of a vehicle after an impact which causes death or injury. They do not depend on the nature of the offender's driving before the impact, which is the subject of different offences altogether. 34An offence under s 70 was undoubtedly a less serious offence than either of the two s 52AB offences, as the respective maximum penalties for the three offences reveal: 18 months for the s 70 offence, as opposed to 10 years in the case of death, and 7 years in the case of grievous bodily harm, for the s 52AB offences. The penalties imposed for the s 52AB offences are similar to the penalties imposed for dangerous driving offences under s 52A of the Crimes Act. That is an indication of the seriousness which the Legislature considers s 52AB offences to have. It does not, however, tether the s 52AB offences to cases where it is dangerous, rather than negligent driving which has resulted in an impact which caused either death or grievous bodily harm. Nor is negligent driving a mitigating factor to be taken into account in sentencing such an offence. 35It is the consequences of an impact and what the offender knew or ought reasonably to have known about those consequences, when he or she failed to stop and render assistance, with which the s 52AB offences are concerned. That is irrespective of whether those consequences were the result of dangerous, negligent or even safe driving. That does not mean, however, that the offender's driving is irrelevant to the sentencing exercise. 36Unquestionably what a person knows or ought reasonably to have known about a particular impact, will depend upon what he or she knows about both the cause and the nature of the impact, at the time that he or she fails to stop and give assistance. In the case of the driver of the vehicle which caused the impact, the way in which he or she was driving when it occurred, will be relevant both to determining what he or she knew or ought to have known about the impact and assessing the gravity of the offence. 37It follows that the applicant's negligent driving was not only an agreed fact on sentencing, there was also no error in the attention which his Honour paid to that fact in the sentencing exercise.
Failing to take into account that the s 52AB charge could have been dealt with summarily - Ground 1(a) 38The offence with which a person is charged and where it is pursued are prosecutorial decisions. Understandably, given the nature of the consequences of the impact which the applicant caused for Mr Quang Mai and Mr Liem Thanh Le, the applicant did not advance a case on sentencing that he ought to have been charged with an offence under s 70. On the agreed facts it was the more serious s 52AB offences of which he was guilty. They were the offences to which he entered a plea and for which he was being sentenced. A contrary case cannot be advanced for the first time on appeal. 39In any event, it is for a prosecutor alone to decide what charge is to be preferred. It is for the accused person to decide whether to plead guilty to that charge and it is for the sentencing judge to impose a sentence for the charge to which the plea has been entered (see GAS v R [2004] HCA 22; 217 CLR 198 at [28] - [30]). As discussed in Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 at [36] "[c]onsideration of different offences for which an offender might have been convicted is merely a distraction." That is because, as the plurality observed at [34]: "34 It may be accepted that the prosecutor's selection of the charge is capable of having a bearing on the sentence. Commonly this will be the case where the prosecution has a discretion in determining whether to proceed summarily or on indictment. However, the separation of functions does not permit the court to canvass the exercise of the prosecutor's discretion in a case in which it considers a less serious offence to be more appropriate any more than when the court considers a more serious charge to be more appropriate. In this context, the observations of Dawson and McHugh JJ in their joint reasons in Maxwell v The Queen bear repeating [Maxwell v The Queen (1996) 184 CLR 501 at 514]: "No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority." 40It follows that the prosecutor's decision to bring charges under s 52AB cannot be criticised, as the applicant sought to do on appeal. That he could have been charged with an offence under s 70, was not a relevant consideration in this sentencing exercise. 41Furthermore, given the agreed facts in relation to the speed at which the applicant must have been driving when he struck the vehicle in which Mr Quang Mai and Mr Liem Thanh Le were travelling; the impact which the applicant caused, which resulted in the other vehicle being pushed a very considerable distance, spinning it around so that it ended up on the other side of the road and hitting a fence and a tree and the applicant's vehicle being pushed to the wrong side of the road before coming to a stop, 35 metres from the collision point; the results of that impact, namely the death of a person and grievous injuries to another; the prosecutorial decisions to charge the applicant under s 52AB and to pursue those charges in the District Court, were entirely understandable. 42The agreed facts also explain why the applicant entered pleas to the two s 52AB charges, namely, the circumstances of the accident, including the speed at which the applicant was driving and the consequences of the impact. On those facts there can have been no doubt that at the time when he failed to stop and render assistance, the applicant knew or ought reasonably to have known that the impact he had caused had resulted in the death or grievous bodily harm to occupants of the vehicle which he had struck. 43That conclusion is reinforced by a consideration of the applicant's conduct after the impact, not only absconding without rendering any assistance to those who so plainly needed help, but coming forward only some four days later. The explanation which the applicant advanced for that conduct at the sentencing hearing was understandably not accepted. There was no challenge to that conclusion on appeal. 44At the sentencing hearing a suspended sentence or an intensive correction order was pressed for the applicant as an appropriate sentence for these offences. 45Madgwick ADCJ then indicated why he considered that a custodial sentence was necessary, observing that the offences involved an element of callousness; that they were moderately serious; that the applicant had avoided prosecution for an offence of negligent driving causing death; and that the fact that he had not gone to police for four days after the impact had made the offences more serious. 46It was also submitted to be relevant to consider that the s 52AB offences could have been dealt with summarily. His Honour also then indicated that he took the view that the maximum penalty available in the Local Court would not reflect an appropriate sentence for the applicant's offences. 47There was no error in that approach. As explained by Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [112] "[u]nless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge." 48Here, not only was the theoretical possibility that these offences could have been prosecuted in the Local Court raised at the sentencing hearing, concessions were then properly made for the applicant, given the death and grievous bodily harm caused by the impact, that this was not a matter which his Honour had to take into account when assessing penalty and that there was nothing inappropriate in this matter having been brought before the District Court. His Honour's approach in the circumstances was open and accorded with Johnson J's approach in El Masri, quoted above.
The relevance of the applicant not having been charged with negligent driving - Grounds 1(b) and (c) 49The applicant was originally charged with dangerous driving. Those charges were finally not pursued. He entered a plea to the s 52AB offences and it became an agreed fact on sentencing that his driving was negligent. His negligent driving was a matter which the Crown submitted, without objection, could be taken into account in the sentencing exercise. The applicant's counsel also made submissions as to the nature of the applicant's driving and that of the other driver, agreeing with his Honour that the applicant's driving had not been one of the worst cases of negligent driving. 50In the face of the case advanced on sentencing, it is too late on appeal to advance a case that the applicant's driving having been negligent was not relevant to the sentencing exercise. His Honour did not fall into error in taking that fact into account, as he did. He did not take into account as an aggravating matter, that the applicant had avoided prosecution for dangerous driving, as the applicant submitted. 51In his sentencing remarks his Honour also observed that had the applicant been convicted after a defended trial, the objective seriousness of the offences would have required a sentence of between 4 and 5 years to be imposed, notwithstanding relevant subjective circumstances, which included the applicant's mental condition. 52After a discount of 25% for an early plea, consideration of the applicant's remorse and his difficult personal circumstances and a finding of special circumstances, his Honour imposed a 2 year head sentence for the s 52AB(1) offence and a sentence of 18 months for the s 52AB(2) offence. The maximum penalties were respectively 10 and 7 years. His Honour accumulated the sentences with the result a sentence totalling 2 years, 8 months, with a non-parole period of 20 months and a balance of term of 12 months was imposed. 53On the evidence, his Honour was not only correct in taking the view that these serious offences should not have been dealt with summarily and had to result in a custodial sentence, but his assessment of the seriousness of the offending was properly reflected in the sentence imposed. That sentence was not manifestly excessive, but open on the evidence and the cases advanced by both parties at the sentence hearing. The agreed facts and the applicant's evidence well revealed the seriousness of these offences, notwithstanding that the driving which caused the impact which preceded the offending for which he was being sentenced was agreed to have been negligent, rather than dangerous. 54No error has been shown in his Honour's approach or in the conclusions reached. Accordingly, the appeal must be dismissed.
Orders 55I would grant leave to appeal but order that the appeal be dismissed.
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Adam
R
Grounds of appeal 6The one ground of appeal pressed was: "The sentence imposed by the Sentencing Judge was manifestly excessive having regard to the following matters: (a) That given the circumstances under which the applicant fell to be sentenced he failed to take into account as a matter in mitigation that the s 52AB charges could have been dealt with summarily. (b) By taking into account that the applicant had avoided prosecution for negligent driving occasioning death as a relevant sentencing factor. (c) By taking into account negligent driving causing death as part of the applicant's criminality for the s 52AB offence. (d) That no distinction was to be drawn in terms of assessment of objective seriousness of an offence under s 52AB where the nature of the driving involved negligent rather than dangerous driving." 7To make out his case the applicant had to show that his sentence was unreasonable or plainly unjust (see Dinsdale v R [2000] HCA 54; 202 CLR 321 at [3] and [22], discussed Vuni v R [2006] NSWCCA 171 at [33] and Sheen v R [2011] NSWCCA 259; 215 A Crim R 208 at [162]). For the reasons which follow, I am of the view that while the applicant must be given leave to appeal, his appeal must be dismissed because he has not shown that the sentence is either unreasonable or plainly unjust.
[2004] HCA 22
(1996) 184 CLR 501