DPP v Foggo

On 28th March 2005 the defendant was charged with a variety of offences arising out of police investigations into the nature and cause of the accident. The Director of Public Prosecutions accepted that the appropriate charge is one of Negligent Driving (occasioning death) contrary to the provisions of Section 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The defendant entered a plea to this charge in circumstances where the Crown accepts it was a plea entered at the first available opportunity. In the light of the guideline judgment in R -v- Thomson and Houlton [2000] NSWCCA 309 and subsequent decisions, such as R. -v- Harmouche [2005] NSWCCA 398 the entry of a plea of guilty and the timing of the plea are matters for consideration in terms of the utilitarian value of the plea and the ultimate question of whether a discount for a plea of guilty is to be applied in mitigating the sentence ultimately to be imposed.

In terms of the utilitarian value of the plea entered, and its timing and mindful of the observations of the Court of Criminal Appeal in the two cases aforesaid I would evaluate the level of discount in this case at 20%. Having set the starting point for consideration of submissions made on behalf of the defendant by his counsel and by the solicitor representing the Crown I turn to the facts and antecedents of the defendant.

The accident was a simple one that, save for the catastrophic consequences is all too familiar to courts in this jurisdiction. The intersection of Woonona Parade and Myall Road is governed by a Give Way sign. Shortly before 12 noon on 8th November 2004 Ms. Wendy Yarrow was driving her motor vehicle along Woonona Parade Oatley at a speed estimated by a Police Expert to have been no more than 52 kilometres per hour. At the same time the defendant was driving a small Mercedes community bus with a number of passengers down Myall Road at a speed which the same expert estimated at no greater than 48 kilometres per hour. A Give Way sign governs entry from Myall Road into Woonona Parade.

There is no issue that the defendant drove through this sign at a time when a reasonable and prudent driver would, by keeping a proper lookout, have noticed the imminent presence of Ms. Yarrow. By reason of the failure on the part of the defendant to keep a proper lookout a collision occurred. The consequences are described with greater particularity in the agreed statement of facts tendered by the Crown.

An evaluation of those agreed facts against the background of the defendant's plea guilty satisfies the court that it was an entirely appropriate plea to enter. Objectively the conduct of the defendant in failing to keep a proper lookout had tragic consequences. I accept that he acknowledges his responsibility and accountability for what occurred in a manner too rarely seen in Courts during an era in which the search for excuses for criminal offending behaviour is almost interminable.

Having listened to Mr. Ashton and Mr. McClelland attest to the outstanding character of the defendant and having read a number of references from a wide cross section of his local community I am not surprised that those qualities of acceptance and accountability should manifest themselves in his plea. It is to his great credit and completely satisfies this Court as to the existence of genuine contrition and remorse. Against that background I turn to the subjective features argued by Counsel to mitigate sentence.

The defendant is 81 years of age. He is a person of no prior criminal convictions. The combination of age and lack of prior antecedents allows this court to regard the event of 8th November 2004 as an aberration. Given his age it is unlikely a similar event will ever occur again. The Court is reinforced in that conclusion by regard to his driving record, which shows only 2 entries recorded against him in a history of over 56 years of licensed driving, 54 at the time of the offence. It is abundantly clear that he was, up until this tragic event, a careful driver conscious of his responsibilities for the preservation of public safety and obedience to the laws governing the exercise of the privilege of a license to drive a motor vehicle.

I am further mindful that the effect of his age is such that on an annual basis his ability to continue to drive will be subject to the scrutiny of the licensing authorities, again in the interests of furthering public safety both on behalf of the community at large and on behalf of the defendant himself.

The fact of the defendant's good character has been added to before me by the combination of character evidence and written testimonials. Mr. Edward Ashton, who has known the defendant for some years attested to his prior good character and the contribution he has made to countless aged and disadvantaged members of the community through participating in the St. George Community Transport Project. Mr. Robert McClelland, the sitting Federal Member for the electorate of Barton and Shadow Attorney General and Shadow Minister for Workplace Relations gave evidence as to a personal knowledge of the defendant and his good works extending over a 30-year period. Mr. McClelland's assessment of the defendant's contribution to the community resulted in his sponsorship of the defendant for the award of a centenary medal in 2003 in recognition of his outstanding efforts. As the Prime Minister said, in a written congratulation to the defendant following the approval of his nomination - " Australia is proud that has many outstanding people who have helped make our country and the wider world a better place". When the court hears from Mr. Ashton and Mr. McClelland and considers the multiplicity of glowing testimonials on behalf of the defendant attesting to both his personal characteristics and his contribution to the community over a very long period of time then the words of the Prime Minister in this case, have a particular resonance.

The contribution by the defendant to the defence of this country during desperate times has also been raised in the context of his character. Counsel for the defendant made much of the defendant's involvement as a member of the armed forces of the Commonwealth during the Second World War undertaking active service in Borneo. This Court acknowledges as a matter of public record and history the selflessness of such service by the defendant and others who were prepared to risk their lives on behalf of their country. As a nation, we will be eternally in their debt.

The issue of the defendant's medical condition was also raised, along with that of his wife. I accept that his age and that of his wife is such that increasing impairment of health is a reality of life. I also acknowledge that a person with the integrity and background of the defendant would have been seriously affected by the guilt associated with the consequences of this offence. He would be less than human were he to remain unaffected. I acknowledge at this time that I have no doubt those members of the families of Mr. Dryden and Mr. Gilroy would, despite the advanced age of each gentleman, be similarly be affected by a grievous sense of loss.

Lastly counsel remarked on the impact upon the community should the defendant suffer the consequences of the loss of his license. I acknowledge that since a large part of his contribution to and on behalf of the community involved the exercise of the privilege of the use of a license that there would inevitably be a consequential impact on the community and the defendant's sense of civic-mindedness were he to be deprived of his license, whether it be for a short or long period of time. However, I also acknowledge that the role of the court is not to contrive a sentence that meets the expectations of an offender. The role of the court is much wider and is constrained to a degree by the established principles necessary for consideration by any Court, irrespective of the level of jurisdiction exercised.

I do not intend to recite at length those principles. I understand that the defendant's age and medical condition are better served by a short outline of the matters I am required to take into account.

I have already referred to the plea of guilty and the discount to be applied by this Court in reaching the ultimate sentence. I have dealt with the defendant's subjective circumstances. I turn to the objective seriousness of the offence and I do so against the background of the guideline judgments in R. -v- Jurisic reformulated in R -v- White [2002] NSW CCA 343.

I acknowledge these decisions are guidelines and not definitive. I acknowledge they relate to the more serious charge of Dangerous Driving Causing Death pursuant to Section 52A of the Crimes Act 1900. I acknowledge that the maximum penalty for an offence under those provisions is 14 years imprisonment whilst the maximum penalty for the offence to which the defendant has entered a plea is 18 months imprisonment together with a fine of $3300 and an automatic period of disqualification of license of 3 years with a minimum period of 12 months.

Nevertheless the identification of what constitutes a typical case and aggravating circumstances is pertinent to the approach to be taken on sentence for what is commonly described as the lesser offence of Negligent Driving (occasioning death). I do not believe it necessary to repeat what is already stated in relation to a typical case other than to acknowledge that this defendant fits into that category, save for his age, the number of victims and the utilitarian value of his plea.

So far as the aggravating circumstances are concerned I identify them as being

• the extent and nature of the injuries inflicted
• the number of people put at risk (and this includes all the passengers together with Mrs. Yarrow and her child
• the degree of speed 35-48 kilometres per hour
• ignoring warnings - namely the give way sign and;
• failing to stop - hence the collision and its consequences

In R -v- White for a typical case the Court said, inter alia, " Where an 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."

In this case the level of moral culpability is significant. However I draw the distinction between a maximum penalty of 14 years for an offence contrary to the provisions of Section 52A of the Crimes Act 1900 and one of 18 months imprisonment for an offence such as that before me. Clearly the objective seriousness of this offence is demonstrably less, by reference to the maximum penalty available so that whilst the level of moral culpability is high, and the consequences aggravated by the fact of two fatalities it must be abundantly clear that whilst a term of imprisonment is available and is required to be considered, all other things being equal, it is less likely to be imposed for an offence within this category than in the more serious category under the Crimes Act 1900.

Such a conclusion would accord, in part, with the statistical information on sentences imposed for this type of offence tendered by counsel for the defendant in support of his ultimate contention that this is a matter in which the application of the provisions of Section 10 of the Crimes (Sentencing Procedure) Act 1999 would be appropriate. Whilst I acknowledge that this type of information is of assistance in determining the range of sentences applied in the past it is of limited value without information as to particular cases. Statistical information cannot replace the exercise of judicial discretion to sentence on behalf of the community.

Every sentencing exercise should contain within it, inter alia, considerations relevant to retribution, deterrence and rehabilitation. The community is entitled to look to the Courts for punishment of offenders who commit crimes. It is not the case that the impact of a crime on an individual's conscience meets those criteria. The community is also entitled to look to the Courts to establish a level of guidance through the principles of general deterrence in the hope that public knowledge of the consequences of criminal offending behaviour might persuade the community to pay closer heed to what is expected of them. All Courts however must sentence with a view to effecting the rehabilitation of an offender. This outcome may be brought about in many ways. It may be effected as Mr. Wilkinson for the defendant says, by the non recording of a conviction pursuant to Section 10. It is arguable that it might also be affected by the imposition of condign punishment or a sentence between either pole. There is no prescriptive model for success.

As to rehabilitation, that in the view of the court is an area in which progress has already been made, if not successfully accomplished. The out of character nature of the accident and the defendant's prior history make it inherently unlikely this will ever happen again. As to the issue of retribution, to punish blindly is not justice it is simply revenge. Retribution in the form of condign punishment would not in my view benefit the community, or the relatives of the deceased at all. As to deterrence, I recognize that the subjective circumstances of the defendant are such as to make special deterrence a matter of little practical consideration. On the question of general deterrence however, when considered with the issue of retribution and against a background of the aggravating circumstances in the commission of the offence I form the view that those competing and complementary considerations outweigh the personal concerns of the defendant.

It is not easy to come to the conclusion that I must reject the defendant's submissions that I not record a conviction but easy conclusions are not the province of any court in dealing with offences involving such tragedy as this. The role of the court to protect the community through, at the very least the recording of a conviction and imposition of a penalty is a responsibility no sentencing Court can readily abandon, even in the knowledge that it is punishing an honourable, decent and contributing member of society in circumstances where many will regard the outcome as harsh and uncaring. Ultimately however the interests of justice and what I perceive to be the need to promote the principles of general deterrence persuade me to the view that I should record a conviction.

The defendant is convicted. On the question of penalty as a consequence I have already indicated that imprisonment in any form would not serve the interests of justice. He is released pursuant to the provisions of Section 9 of the Crimes Sentencing Procedure Act 1999 to be of good behaviour and appear for sentence if called upon during the next 12 months.

The consequence of conviction and sentence requires me to turn my mind to the issue of disqualification of license. In that regard I note the outstanding record of the defendant. In my view the automatic period of disqualification from holding a license for three years would be too harsh a punishment. I am constrained however by the mandatory period of disqualification which prevails in this State as a consequence of conviction. The defendant is disqualified from holding or obtaining any license under the relevant act for the minimum period of 12 months from today.

G. Henson Deputy Chief Magistrate 21st March 2006

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