These proceedings involve an appeal against the convictions and orders of the Local Court of New South Wales. The appeals are lodged pursuant to Section 11 of the Crimes (Appeals and Review) Act 2001. The appellant contends the penalties imposed by the Local Court are too severe. As appeals against sentence the Court is, in determining each appeal, to have regard to Section 20(2) of the Act.
Suffice to say the Court is vested with legislative authority to set aside the original sentence, vary the sentence or dismiss the appeal. In these proceedings the Court is asked to quash the convictions and sentences imposed in the Local Court and deal with each appeal pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999.
Dealing with a matter in this fashion effectively means that save in relation to the possible imposition of a bond the appellant suffers no penalty other than the public acknowledgment of her guilt reflected in the pleas of guilty entered before the Local Court.
Before turning to the issues argued by Mr Daoud on behalf of the appellant it is appropriate to shortly state background to the appeal and the facts that were before the Court at first instance.
The appellant was issued with two court attendance notices to appear before the Local Court at the Downing Centre. She was charged with Negligent Driving Occasioning Grievous Bodily Harm contrary to the provisions of Section 117(1) (b) of the Road Transport Act 2013 and not giving way to an oncoming vehicle contrary to Section 63(3) of the Road Rules 2014. The penalty for the offence under the Act is 9 months imprisonment and or a fine of up to $2200. Where a conviction is recorded there is an automatic period of disqualification from holding or obtaining a license for 3 years with a statutory minimum period of 12 months. The offence against the Road Rules carries a maximum fine of $2200.
In the Local Court Her Honour recorded a conviction in respect of each offence. For the offence against the Act a conviction was recorded and a fine of $1,000 was imposed. Her Honour in the exercise of her discretion reduced the automatic period of disqualification from 3 years to the minimum period of 12 months. Her honour imposed a fine of $400 for the offence against the Road Rules. The facts upon which sentence was imposed are clear. A comprehensive rendition is contained within the tendered Crown bundle. The abbreviated version is as follows:
At about 2.55 p.m. on 18 April 2016 the appellant was driving south in Nicholson St, Crows Nest. According to evidence given before this Court on the appeal she was intent on finding a parking spot on the street as she had an aversion to the darkened interior of the parking station. A reasonable inference available on that evidence is that the appellant's focus of attention was divided between the effective control of her motor vehicle and keeping lookout for a parking space. Whatever might be the causal explanation however the appellant's decision to execute a turn across the direction of travel of a motor cycle being ridden by one Michael Tarrant resulted in a collision with significant physical ramifications for Mr Tarrant.
The facts make it clear there was no issue of speed involved either on the part of the appellant or by Mr Tarrant. Although the speed limit for this section of roadway was 50 kph the undisputed facts put Mr Tarrant's motor cycle as travelling at a speed of 20-25 kilometres per hour. An independent witness, John Bevan who was travelling behind Mr Tarrant's motor cycle reported he saw the white 4WD motor vehicle, the appellant's vehicle turn in front of the oncoming motor cycle causing it to swerve unsuccessfully in an evasive reaction only to collide with the appellant's vehicle. The rider was projected over the front of the motor cycle.
When questioned by police at the scene the appellant is reported to have said "I heard a bang, I didn't see the motor cyclist at all…… and the first time I saw him was on the road."
Subsequent attendance by ambulance and police resources resulted in Mr Tarrant being conveyed to hospital where "he was treated for damage to his right leg, being a compound fracture with bone piercing through the skin above the knee, severe ligament damage, various bones broken, dislocated knee, foot laceration (and a) large opened wound on the shin area below the knee." Mr Tarrant remained in hospital from 18th April to 13th May 2016. During this time he underwent a major surgical intervention to repair his right leg. Even with the assistance of and participation in rehabilitation he was not expected to be able to walk without assistance until at least September 2016. The Court has not had the benefit of any update in relation to Mr Tarrant's current medical condition and prognosis.
On any objective assessment the failure on the part of the appellant to keep a proper lookout was above the mid-range of objective seriousness for an offence of this nature. An independent observer would find it extremely difficult to understand how the appellant could fail to see the approaching motor cycle if she was keeping a proper lookout, as the law requires her to do.
The facts disclose no environmental impediment to the appellant's ability to take in what was happening on and around the road upon which she was travelling. The facts describe the roadway as level and dry. The accident occurred in daylight and that there were no other vehicles in the intersection at the time.
I turn to the subjective factors put before the Court in support of the appellant's submission that either or both of the matters before the court can appropriately be dealt with other than by the recording of a conviction.
The appellant entered a plea of guilty before the Local Court on her second appearance. There is no issue the pleas to each charge were entered at the first available opportunity. The utilitarian value of the plea should, both from the perspective of Section 22 of the Sentencing Act and in line with the principles set out in the Guideline Judgment of R v Thomson and Houlton (2000) 49 NSWLR 383, be quantified at 25%.
The appellant is 73 years of age. The Criminal Record tendered with the Crown documents reveals she is a person of no prior convictions. She is entitled in that context to be regarded as a person of good character. The Court is however mindful of the observations of the Court of Criminal Appeal in the matter of R v MacIntyre (1988) 38 A Crim R 135 wherein the Court observed (at 139) that for offences of this type:
"… courts need to tread warily in showing leniency for good character to avoid giving the impression that persons of good character may, by their irresponsible actions at the time, take the lives of others and yet receive lenient treatment."
Further:
"…. no significant reason can be found for differentiating between [the] driving [of younger persons] and that of persons who are older."
Following the line of reasoning in MacIntyre, whilst the appellant's prior good character is relevant to her submission for additional leniency to that shown in the Local Court, the weight to be accorded to it is limited.
The penalty in each case is also mitigated by what this Court concludes to be genuine remorse and contrition. The appellant gave evidence before me. It is clear that the consequences of her failure(s) weigh heavily upon her. I accept that for the purposes of Section 21A (3) (i) her remorse is genuine.
The appellant also gave evidence of the insights she gained from participation in a Traffic Offender Programme. Participation in the programme together with her clear evidence of how saddened she was with herself for causing an accident and injury to another human, together with a realistic assessment of the impact of her failure to properly manage her motor vehicle set out in her letter to the Local Court dated 12 September 2016 point towards what I accept to be a genuine prospect of rehabilitation.
I turn to other subjective factors placed before the Court in furtherance of the appellant's submission that her offending is amenable to satisfactory disposition pursuant to the provisions of Section 10 of the Crimes (Sentencing Procedure) Act 1999.
In addition to the matters to which I have already referred the appellant gave evidence of the potential hardship that would flow from the loss of her license. A number of documents within the Crown bundle also address the consequences of having to serve the minimum period of disqualification imposed by her honour in the Local Court. As they are part of the Crown bundle it is assumed the documents in question were tendered to the Local Court and the effect of them was weighed in the balance by her honour at first instance.
The appellant's evidence and the content of the documents in question establish two different aspects of consideration, one in relation to what may be stated to be the inconvenience of not having a license to drive relative to her geographical location and commitment to her daughter, the other in relation to the consequences of a conviction being recorded in terms of its impact on her ability to continue with her work and social commitments.
In her letter to the Court dated 12 September 2016 the appellant described the social isolation that would flow from a loss of her license to drive. She lives in Putty, a small, scattered rural community between Windsor and Singleton. Like many rural locations there is no access to public transport. It is pertinent to quote from the essence of her description of the consequences of losing her license wherein she writes:
"…without my license it would be virtually impossible to continue living in Putty as I wouldn't be able to get to my volunteer work, which also includes serving on the Putty Community Association Council, as well as rehearsing and playing in four orchestras. I also need my licence to get to the small jobs I still maintain and help me pay the bills - teaching music and working with disadvantaged elderly folk. If I lost my licence it would be very difficult for me at this age to obtain new jobs. Without my licence I would be helplessly confined to my Putty home without any public transport.
Most importantly however without my licence I wouldn't be able to care for my daughter who unfortunately suffers quite seriously from schizoaffective/bipolar disorder. I travel down to Sydney every week to care for my daughter as she lives alone…..I am seriously concerned for my daughter's wellbeing if I would be unable to come to Sydney and care for her. Two weeks ago I went away for a short period of time, I returned to find my daughter extremely agitated. As a result she was admitted to the mental health unit at Royal North Short Hospital for a month.
I am a Minister in a church and loss of license will effectively end my capacity to act in any pastoral care. The Church will not allow a convicted criminal to sustain that position and still help others. The criminal conviction would also end my music teaching since I require a police clearance to work with children and the elderly. It would also end over forty years working as a Justice of the Peace."
The Court can readily understand the appellant's personal concerns on both levels. It is common knowledge that in areas that do not have the benefit of a public transport system that members of society can be unwilling hostages to the consequences of licence disqualification; dependent for the period of disqualification on the generosity of other members of the community to fill the void as best they are able until lawful authority to drive a motor vehicle is returned. This is a reality of life in a state as large as New South Wales. In the view of the Court it is not of itself the sort of "special circumstance" spoken of in the decision of Cobiac v Liddy (1969) 119 CLR 447 at 449 that might be applied to avoid the rigidity of inexorable law".
Absent anything more the appellant's appeal on this point alone would in the view of this Court, fail. To do otherwise would be to place one section of the community in a position of preference to others. Deterring the commission of offences which involve a threat to public safety would effectively be undermined where one section of the broader community is dealt with in an extremely lenient manner simply to maintain the use of a license while others were not.
Following on from that observation, the decisions of R v Fing (unreported, NSWCCA, 4/10/94) and R v Stephenson [2010] NSWSC779 at [66] clearly state it is improper and undesirable to dismiss a matter under Section 10(1) without a conviction merely to avoid some other legislative provision which is otherwise applicable. The decision of Nielson DCJ on 20 November 2012 in the matter of R v Handford, an appeal against leniency at first instance in the Local Court confirms the currency of that approach. The weight of the law is against recourse to the use of Section 10 in this appeal as a device to enable the offender to keep her licence. This brings me to the provisions of Section 10 of the Crimes (Sentencing Procedure) Act 1999.
In determining whether it is appropriate to apply the provisions of Section 10(3) of the Act the court is required to turn its mind to the entirety of factors set out within the provision, and to any other factor the court thinks proper.
The factors set out in Section 10(3) that must be considered are as follows:
(a) The person's character, antecedents, age, health and mental condition.
(b) The trivial nature of the offence
(c) The extenuating circumstances in which the offence was
committed
(d) Any other matter that the court thinks proper to consider.
I have dealt with the essence of sub paragraph (a) within my comments at paragraph [15] supra. There is no issue related to mental health or health in general. So far as the appellant's antecedents are concerned, they do not assist. Whilst she has held a driver's license for a considerable number of years, in excess of 50 her record as a driver since 2000 is unimpressive. Mr Daoud in his submissions on behalf of the appellant described her record as minor. I disagree. Since 2000 her driving record discloses 18 offences, 16 of which are for exceeding the speed limit. Although the nature of the offending is not such as to bring it within the type of considerations identified in Tsakonas v R [2009] NSWCCA 258 at [37]-[39] it nonetheless reflects a less than appropriate commitment to public safety.
So far as sub paragraph (b) is concerned it would be difficult to classify an offence that carries a maximum penalty of 9 months imprisonment as trivial. In the context of the factual circumstances this offence is well beyond any consideration of the offending as trivial. Such is also the case with the regulatory offence. Although much of the factual mix of this offence is caught up in the more serious matter, an offence, regulatory in nature or otherwise that has the potential to affect public safety is only rarely capable of being classified as trivial unless perhaps the breach is technical in nature.
There are no extenuating circumstances associated with the commission of either offence. This much is self-evident.
I turn to subparagraph (d) of Section 10(3). Based on submissions made by Mr Daoud for the appellant consideration relevant to this provision is in three parts. The appellant argues that taking away her licence to drive as a consequence of conviction will also have the effect of taking away either totally or in large part her ability to supplement her finances through the giving of music lessons. Secondly the appellant argues that a conviction for these offences will impact on her ability to continue her pastoral care work as the church in which she is a Minister will not allow, to use her words, "a convicted criminal to sustain that position".
Loss of income as a consequence of loss of license is one of the ordinary consequences of conviction for an offence that carries a statutory period of disqualification. Of itself it cannot be a justification for dealing with serious matters such as this without conviction where such a conviction is otherwise appropriate. On the basis of the decisions of Fing, Stephenson and Handford referred to earlier the submission on this basis would fail. General deterrence and specific deterrence would be almost completely ineffectual if the penalties laid down by Parliament were rendered secondary to the personal desires of an offender.
As to the issue of a conviction for this type of offence impacting on the appellant's ability to continue her no doubt valuable work within her Church and within the community or in relation to a police clearance to work with children, other than the espoused belief on the part of the appellant there is no evidence before the court in relation to what is inferred to be a suggestion of extra curial punishment. Objectively, dealing with the more serious charge as submitted does not avoid the consequences under the Child Protection (Working with Children) Act 2012. For the purposes of that act conviction "includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."
The considerations relevant to this issue are no different in the view of the Court to those identified in the decisions of Fing et al referred to earlier, that is, it is a misapplication of the law to deal with a matter in a particular way simply to avoid the consequences of conviction unless there is a proper basis for adopting that course.
I turn to the submission that taking away the appellant's ability to drive would impact to the detriment of her daughter. It is strongly argued that the mental and emotional wellbeing of her daughter will be compromised.
Documentation from the Northern Sydney Local Health District and a doctor at Neutral Bay confirm that the appellant's daughter suffers from mental health problems that are assisted in their maintenance through the regular attendance by the appellant on her daughter. In the opinion of Dylan Lane, Psychologist lack of ability on the part of the appellant to drive may compromise the daughter's care. Dr. Lele states, as did the appellant, that the appellant attends on her daughter 3 times a week and is her main support. I infer from that statement Dr Lele is referring to family support as it is clear from Dylan Lane's letter that the acute mental health team provide case management. The thrust of the submissions on this point raises the issue of hardship to third parties.
I note the observations in R v Wirth (1976) 14 SASR 291 at 295-6:
"Hardship to spouse, family and friends is the tragic but inevitable consequence of almost every conviction and penalty recorded in a criminal court. It seems to me that courts would often do less than their clear duty - especially where the element of retribution, deterrence or protection of society is the predominant consideration - if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners "
It may be that the weight of authority in relation to hardship to third parties deals with sentences of imprisonment. The principles are nonetheless relevant in relation to sentencing for lesser offences although arguably there is a broader scope for consideration because the inevitability of incarceration is not a dominant factor. Taking an approach whereby the sentencing court is effectively seduced by the subjective factors relevant only to the offender to the exclusion of the community is fraught with insufficient consideration being paid to the purposes of sentencing.
Acknowledging understandable disadvantage to the current caring arrangements brought to bear by the appellant in attending upon her daughter regularly each week enlivens a sense of compassion. No court could fail to be moved by the potential concerns that may arise if the appellant is unable to maintain her regularity of contact because of her inability to drive to and from her remote location to provide emotional and practical assistance to her daughter. To once again borrow from the words of the case manager "Ms Babineau's care may be compromised."
I accept the inherent likelihood of that proposition. Although it is expressed in a qualified sense it is clear that the Royal North Shore Community Mental Health Centre mental health team contributes significantly towards the assistance and management of the appellant's daughter. Ordinary human experience and common sense leads to the conclusion that the inability on the part of the appellant to attend her daughter for the next 12 months or, as more likely to be the case, a reduction in capacity to attend other than through the assistance or generosity of others is likely to have the potential to impact on the quality of life of her daughter.
Harsh though it may seem however, there are arrangements in place to assist the appellant's daughter and which appear to operate to a satisfactory level. I have difficulty against that background arriving at a finding that the hardship that will be caused to the appellant's daughter ought be regarded as exceptional as identified in decisions such as R v Edwards (1996) 90 A Crim R 510 or R v Toigias [2001] NSWCCA522 at [80] such that it would take precedence in determining the outcome to the exclusion of the purposes of sentencing set out in Section 3A of the Sentencing Act.
As was observed in Wirth (supra) - Courts would be doing less than their duty, especially where retribution, deterrence and protection of society are the predominant considerations if they place excessive emphasis on an offender's personal circumstances to the exclusion of those of society in general. To these considerations I would add the impact of the crime on the victim and on the community.
In these matters the Court has identified the objective seriousness of the offending to be above the middle range for the offence of negligent driving occasioning grievous bodily harm. I also take into account the extremely serious injuries to the victim. In the decision R v Mauger [2012] NSWCCA 51 at [19] the Court was clear in its statement that the application of Section 10 has its limits as a means of minimising the impact of the sentencing process on an offender. It is appropriate to re-state what Harrison J. said at [19]:
"Where the offence that is committed is an objectively serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope of the operation of Section 10 decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of that offence."
Even allowing for the combined effect of the subjective factors put before this Court on appeal I cannot come to the view that Section 10 can in the circumstances of this case, adequately reflect the objective seriousness of the offence. If the impact of the crime on the victim, general deterrence and denunciation are to have practical meaning and effect they cannot simply be ignored because of the consequences of conviction. I reject the submission that the application of the provisions of Section 10 to these two matters on appeal is appropriate and confirm the convictions recorded by the Local Court at first instance.
So far as the penalties imposed by her honour are concerned, in light of the maximum penalties available it is clear her honour properly took into account the subjective factors favourable to the appellant and considered them against the objective seriousness of the offending before her. This Court is unable to conclude the penalties imposed were too severe. I confirm the orders of the Local Court, including the order for disqualification of license. The latter is to take effect forthwith.
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Decision last updated: 15 December 2016