Bates v R

THE GROUND OF APPEAL - The sentence imposed was manifestly excessive

Submissions of the applicant

1. Counsel for the applicant advanced two specific submissions in support of the ground of appeal, the first of which centred upon the judgment of this Court in R v Whyte. [22] Counsel accepted that whilst it was the aggregate sentence which was to be considered in determining the ground of appeal, it remained relevant to consider the indicative sentences, and pointed out that the indicative sentence for each count exceeded the guideline which was expressed in Whyte as being applicable to what was described as a "typical case". Counsel emphasised that the sentencing judge had specifically found that there were no aggravating factors of the kind referred to in Whyte, and had also found that the applicant's moral culpability had not risen to a level which constituted a complete abandonment of responsibility. It was submitted that all of these factors supported the conclusion that the sentence was manifestly excessive.
2. Counsel's second submission related to the level of notional accumulation applied by the sentencing judge. Whilst accepting that some accumulation was warranted in order to acknowledge the harm done to Mr Collis, counsel for the applicant submitted that in circumstances where there was no offending conduct in count 2 over and above that in count 1, the notional accumulation of 12 months fortified the conclusion that the aggregate sentence was manifestly excessive.
3. These submissions were supplemented by reference to two particular decisions of this Court, namely R v Clampitt-Wotton [23] and Preston v R. [24] Counsel submitted that the manifest excess of the sentence imposed upon the applicant was further supported by the sentences imposed in each of those cases, bearing in mind the recent observations of Bell P in Moodie v R [25] regarding the use to which such material can be put.

Submissions of the respondent

1. Counsel for the respondent submitted that the circumstances of the applicant's offending were such that this was not a typical case of the kind which attracted the strict application of the guideline referred to in Whyte, and that her Honour's finding in that respect was entirely correct. It was further submitted that there was no error in her Honour's conclusion that the applicant's offending involved his having taken a "calculated risk". It was submitted, in particular, that there was no error in her Honour's finding that this was not a case of momentary inattention, and that the evidence supported a conclusion that the applicant's distraction was far more significant.
2. Counsel for the respondent also pointed out that the legislature had set a maximum penalty of 10 years for the offending in count 1 and a maximum penalty of 7 years' imprisonment for the offending in count 2. It was submitted that taking into account these statutory guideposts, the objective seriousness of the offending, and the applicant's subjective case, the sentence did not fall outside the permissible range of sentencing discretion, and was neither unreasonable nor plainly unjust.

CONSIDERATION

1. In order to establish the complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. In Vaiusu v R [26] R A Hulme J summarised the relevant principles in the following terms: [28] … (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
2. As I have noted, the first of the submissions advanced on behalf of the applicant was based upon the decision of this Court in Whyte. In that case, Spigelman CJ observed: [27] [204] A frequently recurring case of an offence under s52A has the following characteristics: (i) Young offender. (ii) Of good character with no or limited prior convictions. (iii) Death or permanent injury to a single person. (iv) The victim is a stranger. (v) No or limited injury to the driver or the driver's intimates. (vi) Genuine remorse. (vii) Plea of guilty of limited utilitarian value.
3. His Honour then made reference to aggravating factors often seen in this type of offending: [28] [216] I had earlier … set out a list of aggravating factors which had been established in the authorities as follows: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit." [217] Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding: (x) Degree of sleep deprivation. (xi) Failing to stop.
4. His Honour concluded: [29] [229] The guideline for offences against s52A(1) and (3) … for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. [230] In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.
5. The "typical case" to which his Honour referred was a case which had the characteristics set out in the passage extracted in [39] above.
6. The sentencing judge specifically referred to the judgment of this Court in Whyte and correctly observed that the judgment was not prescriptive. Her Honour found that this was not a case of momentary inattention, and was not a "typical" case of the kind referred to by Spigelman CJ in Whyte. In my view, no error is demonstrated in those findings, for a number of reasons.
7. To begin with, the applicant's offending arose from his having made a conscious decision to take his eyes off the road and, at least for a period of time, to remove his hands completely from the steering wheel before using the edge of his right hand to steer a heavy vehicle. Such conduct, which was directed to retrieving a drink and replacing the cap on the bottle, was obviously extremely dangerous. These actions are not properly described as momentary inattention. Moreover, and leaving aside the death of Mr Fardy and the injuries to Mr Collis, the applicant's actions placed other drivers in immediate peril, as evidenced by the necessity for Ms Croker and Mr Singh to take evasive action.
8. The applicant was not, at the age of 65, a young offender. Even taking into account the testimonials tendered on his behalf, he was not a person of good character with no or limited prior convictions. He had long history of offending which included an unenviable driving history.
9. Further in my view, the accumulation applied by the sentencing judge does not support a conclusion that the aggregate sentence is manifestly excessive. The level of accumulation was a matter for her Honour's discretionary determination, by reference to the principle of totality. [30] It is apparent that in making that determination her Honour was, quite properly, mindful of the injuries sustained by Mr Collis. [31]
10. In oral submissions before this Court, counsel for the applicant pointed out that before the sentencing judge, the Crown had categorised the harm suffered by Mr Collis as falling towards the lower end of the scale. [32] It was submitted, in effect, that even accepting that the injuries sustained by Mr Collis were relevant to the issue of accumulation, they did not, in view of the Crown's categorisation of them, warrant the level of accumulation that the sentencing judge had adopted.
11. Two observations may be made in relation to that submission. Firstly, the injuries sustained by Mr Collis were such that in my view the Crown's categorisation of them was, to say the least, generous to the applicant. Secondly, and in any event, her Honour made express reference to Mr Collis' injuries in the context of considering accumulation and obviously took those injuries into account in determining the extent of any accumulation that was to be applied. Such an approach does not reflect error. Moreover, and however one might categorise them, the nature and extent of Mr Collis' injuries were such that I am not satisfied that the level of accumulation adopted by her Honour supports a conclusion that the sentence is manifestly excessive.
12. It remains to consider the two cases to which counsel for the applicant referred and which, it was submitted, supported a conclusion that the sentence was manifestly excessive. In doing so, I am mindful of the observations of Bell P (with whom Davies and N Adams JJ agreed) in Moodie [33] about the use to which sentences imposed in cases of like offending can be put, and of his Honour's disagreement with the differing views expressed in respect of that issue in FL v R. [34] However, irrespective of what view might be taken, two propositions relevant to the use of such material are beyond dispute. The first, is that consistency in sentencing requires consistency in the application of relevant legal principles, as opposed to mathematical equivalence. [35] The second, is that whilst sentences imposed in cases of like offending may establish a range of sentences which have been imposed, they do not establish that such range is the correct range, nor do they establish that the upper and lower limits are the correct upper and lower limits of such range. [36] This is particularly relevant in circumstances where the Court was referred to, and counsel for the applicant relied upon, sentences imposed in two other cases. Two cases obviously do not establish a range.
13. In any event, for the reasons that follow, an examination of these cases establishes that they can be distinguished from that of the applicant in a number of respects.
14. In Clampitt-Wotton the offender, who was the respondent to a Crown appeal against inadequacy had been found guilty by a jury of two charges of dangerous driving occasioning death and two charges of dangerous driving occasioning grievous bodily harm. The offender had failed to stop whilst driving a heavy vehicle, and collided with the rear of another vehicle killing two young children, and injuring two others. There was no dispute that the offender had not applied his brakes before the collision, that he was not driving at excessive speed and that had he been keeping a proper lookout, he should have been able to stop in time. Evidence was given that the offender had taken his eyes off the road and had looked downwards and to his left just before the impact.
15. The sentencing judge found that the offender had not been looking ahead but had been "intent upon doing something else, whatever that may have been". [37] The sentencing judge did not view the offending as being one of momentary inattention. He found that the offender had taken a calculated risk in taking his eyes off the road and that in doing so he had seriously disregarded his obligations as the driver of a heavy vehicle. [38]
16. The offender was 34 years of age. He had no prior convictions and had what this Court described as a "minor traffic record which [the sentencing judge] treated as of no significance. [39] This Court set aside concurrent sentences of imprisonment of 2 years with a non-parole period of 12 months on the most serious charges and imposed, in lieu thereof, a sentence of 4 years' imprisonment with a non-parole period of 2 years in each case.
17. The offender in that case was substantially younger than the applicant, and his traffic record was minor. In each of those respects, the applicant's case is markedly different. Further, this Court re-sentenced the offender in circumstances where the principle of double jeopardy remained applicable, a matter in respect of which Hidden J said: [40] The principle of double jeopardy in Crown appeals means that he should not now have to face a sentence of the severity which might then have been passed upon him. The sentence which this Court passes should be the least which could properly have been imposed upon him at first instance.
18. In Preston, the offender had been found guilty by a jury of one count of dangerous driving occasioning death. Whilst driving a 42-tonne semi-trailer, the offender failed to stop at a Give Way sign, proceeded directly onto a highway, and failed to observe the presence of the vehicle driven by the deceased, which had been approaching from his right, until about three seconds before colliding with it. This Court set aside the sentence of 4 years' imprisonment with a non-parole period of 3 years which had been imposed by the sentencing judge and substituted, in lieu thereof, a non-parole period of 18 months and the balance of term of 18 months.
19. In doing so, this Court observed that the offender's driving record over 40 years was "excellent" which was viewed as an important factor given the number of kilometres he had driven. [41] It was also observed that the offender, at the age of 60, had been convicted after leading a "blameless life". [42] Moreover, the offender faced only one charge. In all of those respects, that case is plainly distinguishable from that of the applicant.
20. In all of these circumstances, and given the numerous distinguishing features in each, I am not satisfied that either of the two cases to which this Court was referred supports a conclusion that the sentence imposed on the applicant was manifestly excessive.
21. For all of the reasons I have expressed I am not satisfied that the ground of appeal has been made out.

CONCLUSION

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

1. Commencing at ROS 2.
2. At [12]-[13].
3. At ROS 6-7.
4. AT ROS 7-8.
5. ROS 8.
6. ROS 9.
7. T7.25-T7.26.
8. T5.9-T5.35.
9. ROS 2.
10. T7.37-T7.38.
11. ROS 10.
12. ROS 10.
13. ROS 10.
14. ROS 10.
15. ROS 11-12.
16. At p. 2.
17. ROS 12.
18. ROS 15.
19. ROS 13-14.
20. ROS 14.
21. ROS 14.
22. (2002) 55 NSWLR 252; [2002] NSWCCA 343.
23. (2002) 37 MVR 340; [2002] NSWCCA 383.
24. (2011) 57 MVR 346; [2011] NSWCCA 25.
25. [2020] NSWCCA 160 at [83].
26. [2017] NSWCCA 71 at [28], citations omitted.
27. At [204].
28. At [216]-[217].
29. At [229]-[230].
30. Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27].
31. See [32] above.
32. Crown's written submissions on sentence at [23].
33. At [94]-[96].
34. [2020] NSWCCA 114 at [77]-[79].
35. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49].
36. Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] per Simpson J (as her Honour then was).
37. At [6]
38. At [6].
39. At [8].
40. At [28] citations omitted.
41. At [44] per Beazley P.
42. At [45] per Beazley P.

Amendments 08 October 2020 - Correction to Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2020