This is an appeal upon the sentence imposed by her Honour Magistrate Kennedy on 25 June 2019 with respect to the appellant's plea of guilty to one count of dangerous driving occasioning grievous bodily harm contrary to s52A(3)(c) of the Crimes Act 1900. Her Honour sentenced the appellant to a term of fulltime imprisonment of 1 year with a non-parole period of 7 months.
The severity appeal is brought pursuant to s11 of the Crimes (Appeal and Review) Act 2001 and may be determined by setting aside the sentence, varying the sentence or by dismissing the appeal pursuant to s20(2) of the Act. It is a rehearing of the evidence and fresh evidence may be given pursuant to s17 of the Act.
The appellant in this matter Amelia Hungerford pleaded guilty in the Local Court to one count of Dangerous driving occasioning grievous bodily harm, relating to an event that occurred on 9 May 2018 at the Kuring-Gai National Park.
[2]
Circumstances of Driving
On that day she and others had been involved in what is referred to as a media drive day organised by McLaren automotive to allow media representatives to drive the motor vehicles for the purpose, presumably, of reporting their appearance and drivability. Media representatives could film and photograph the cars during the course of driving. Exhibit 1 tendered on the appeal was the video filmed by a go pro camera which was installed inside the vehicle Miss Hungerford was driving. The camera was attached to the dashboard apparently more towards the passenger side of the vehicle and facing towards the driver and passenger. The camera was recording video and audio from the time Miss Hungerford got into the motor vehicle until the collision. Several viewings of the video have been instructive with respect to findings on the circumstances of the driving.
It was apparently prearranged that Miss Hungerford would drive the vehicle from Illawong Bay picnic area along General San Martin Drive at Akuna Bay. She was travelling in a generally north easterly direction towards Church point and part of the route of travel was from the Illawong Bay picnic area past Akuna Bay and then towards West head Road. (Google maps exhibit to Erisp).
It is part of the agreed facts and observed in the video that prior to leaving the picnic area Ms Hungerford was given instructions that she needed to push hard on the brake pedal and to "stand on the brake" if she felt like she was going too fast. She clearly had some difficulty in starting the motor vehicle as the brake had to be fully engaged or the ignition would not switch on. She had several attempts at starting the motor vehicle before the instructor got in the car to start it for her. He instructed her again that she had to apply significant pressure to the brake pedal when driving. After the car was started Miss Hungerford moved off and appeared to be happy with the drive. At the commencement of the drive she made numerous remarks to her passenger including" I see what you mean about the brakes". She did not attempt to test the braking requirement before she entered the public road.
General San Martin Drive has a speed limit of 60 km/h. A single lane is provided for in each direction and is divided by double unbroken white lines. At the time of the collision it was daylight, approximately 10:45 AM and the weather was fine. The roadway was dry and constructed in bitumen which was in fair condition. I have had the benefit of a photograph of the road area and that observation confirms this fact. There were no visible contaminant or obstructions on the roadway that may have contributed to the collision. It is also noted in the agreed facts that general San Martin Drive is commonly used by bicycle riders. This was the first time that Miss Hungerford had driven on this road.
At approximately 10:44 AM Miss Hungerford commenced driving the motor vehicle. My observation of her demeanour during the course of the drive is that she was apparently happy and confident, chatting to her passenger throughout. Indeed my observation of the video is that both Miss Hungerford and passenger appeared to be treating the drive with enthusiasm and excitement, rather like children at a fun fair. There appeared to be some hamming for the benefit of the video and/or for the mobile phone filming being carried out by the passenger. The tone was light-hearted and self-focussed. From time to time Miss Hungerford made comment as to the brakes but she also expressed on several occasions the apparent favour she found in driving the motor vehicle.
An observation of the video and the map area shows that after leaving the car park area in a generally easterly direction the road consisted of a series of gentle bends before an almost 90° right hand bend prior to Akuna Bay, and then a sweeping 90° bend to the left after Akuna Bay. The appellant appeared to be relaxed and commented on the scenery and location, at that part of the drive. Thereafter the road continued again with a series of gentle bends up until at 10:47 AM when the appellant approached another left 90° bend. The facts point out that just before approaching this deviation there is an advisory sign of 25 km/h as being the recommended maximum speed for the corner in good driving conditions for an average car. The appellant failed to negotiate the bend safely. As a result her vehicle veered across double unbroken white centre-lines to the incorrect side of the roadway. It cannot be established to the required standard that she was travelling in excess of the speed limit or indeed what speed she was travelling at all. An observation of the go pro however shows that shortly before going into the bend she had been accelerating and travelling at an unknown speed. Just before she turned the wheel to the left the sound of the motor vehicle is consistent either with her decelerating or braking. It is obvious from viewing the video that at that time she made an expression of concern consistent with an observation that she seemed to be aware she was on the wrong side of the road going in to that sharp left turn. An observation of the video shows that 1 second later she steered heavily to the left almost simultaneously with the collision with the cyclist.
At the time Miss Hungerford was driving her motor vehicle on the wrong side of the road at that particular corner the victim was riding his bicycle at about 40 km/h in the opposite direction on the correct side of the road, in the middle of the lane. The two collided. I find that Miss Hungerford's motor vehicle was well into the opposite lane when the collision occurred. There is evidence in the agreed facts the collision occurred after the sharp 90° bend to the left, in an area where there is a slight rise and the road straightens out before a gentle bend to the right. It is the area where left hand bend is completed that the motor vehicle struck the bike.
Notwithstanding where Ms Hungerford placed the collision in her ERISP (see "X" on photograph) it is clear from the facts that the McLaren motor vehicle was well into the incorrect lane when the collision occurred. The agreed facts confirm the contact damage included black scuff marks chips on the paintwork and scratches on the passenger side of the motor vehicle. Red paint flakes, a small skid mark and scrape marks were located on the road surface in the south bound lane indicating where this cyclist was hit. A single line black skid mark approximately 10 m long was located in the southbound lane leading towards the first mark suggesting that the cyclist is trying to avoid the car. The obvious conclusion is that the care was well into the incorrect lane at least.
There was no mechanical explanation for the accident occurring and there is no evidence that Ms Hungerford had any alcohol or other substances in her system.
[3]
Injuries
The consequences for the cyclist have been catastrophic. The injuries are detailed in paragraph 24 of the facts which represent facial and spinal injuries and upper body injuries including fractures throughout. His condition was so serious that he was in intensive care and in a coma for some time. Initially there was doubt that he would live. The victim impact statement details the long-term consequences for him. Prior to the collision, Mr Tan was a self-employed dentist and had been so for approximately 30 years. He worked in his own practice and enjoyed an active life with his wife and family. His interests included bushwalking hiking and cycling. He clearly was a very active person. His physical injuries, which included five vertebrae fractures, have resulted in him being required to spend a daily average of 16 hours in bed to rest his weak and painful body. He also suffered facial fractures have resulted in difficulty in eating and chewing. His head injury has resulted in some ongoing and serious physical and psychological damage. He reports a good recovery from his fractured ribs, fingers and collapsed lungs but ongoing difficulty with respect to his head, cranial and vertebrae injuries. His statement details of that his life is very different from what it was before. He suffers from chronic pain, a reduced range of movement of his head and neck and functional deficits in his right arm and leg. It appears that he is unable to work and his dental practice is now closed. Consequential financial difficulty has impacted the family. He still undergoes physiotherapy occupational therapy and a daily exercise program order to increase his range of movement and decrease his pain. All of these injuries persist over a year after the collision.
The appellant admits through her counsel that the degree of injury occasioned to Mr Tan is very serious. I find it to be toward the higher end for grievous bodily harm.
[4]
Consideration of Objective Seriousness
Counsel for the Crown submit that the circumstances of the driving are such as to amount to low to moderate objective seriousness of dangerous driving. Counsel for Ms Hungerford submits that the level of dangerousness is closer to that described as that of negligent driving and indeed submitted that the plea of guilty to dangerous driving was likely due to his clients remorse and contrition rather than acknowledgement of a degree of dangerousness or abandonment of responsibility.
The Crown concedes that Miss Hungerford's level of remorse and contrition is significant and that it was immediate and is ongoing.
When assessing the level of objective seriousness of the dangerous driving the court must take into account the entire circumstance of the event. I propose to refrain commenting on the wisdom or otherwise of the automotive company deciding to hold it's media event on a public road which is used by many cyclists in circumstances where the road is only single lane each way and consists of many sweeping bends and speed advisory speed signs.
It is trite to observe the McLaren motor vehicle is a high performance sports car, designed to appeal to people would enjoy the thrill of being able to accelerate quickly to a fast speed. Indeed my observation of Ms Hungerford throughout the course of four minutes she was driving the car was that she was behaving in exactly this way. She was encouraged no doubt by the positioning of the camera and the enthusiastic commentary provided by her companion. As I observed they appeared to be like excited children at a fun park rather than grown-ups test driving a motor vehicle. My observation further is that Ms Hungerford was very aware of the placement and filming of the go pro, and the filming being undertaken by her companion. I do not know whether she was distracted by that fact. In her record of interview she told the interviewing officer that she was in her mind distracted by the tiptronic transmission feature. By that I understand that she was considering whether she should retain driving the motor vehicle in automatic mode or go into the tiptronic mode. My observation is that she was having enough difficulty driving the motor vehicle in automatic to make this latter consideration premature. She however exuded confidence in her ability, a confidence which was obviously misplaced.
It was suggested by the Crown submissions that Miss Hungerford ought to have been aware that she was not capable of properly using the brakes of this motor vehicle and therefore should have taken more care, or had a practise in the car park. I observe that Miss Hungerford first obtained her driver's licence in 2009 and that at that time she received an exemption in order to be able to drive what was classed as a prohibited vehicle. I also observe in her record of interview she said she had a previous experience with another high-performance vehicle, a Lamborghini. In the interview she also told police that she forgot for a moment where she was and thought perhaps she was driving her own car into on that corner. She said that she was concerned not to drive too close to the left, for fear of damaging the vehicle. I do not know why she would have thought like this. The road, while narrow has ample room for vehicular traffic in each direction. This is not particularly helpful to the appellant.
The clear observation from the evidence and facts is that Miss Hungerford was driving too fast for the conditions at the time she entered the corner. She estimates her speed being "50 or 60" but I observe the advisory sign was 25kph. She did not recall seeing this sign. As I have observed from the sound on the video, there is evidence of the vehicle no longer accelerating immediately prior to the corner as she turns the wheel sharply to the left. It is not clear whether she decelerated or braked at that point but it is clear that she did not have sufficient control of the motor vehicle at that time she entered the corner, either due to speed or distraction. He reaction observed on the video confirms that she apparently became aware that she was significantly on the wrong side of the road, or saw the cyclist, or both. At that point she tried to turn further to the left, the cyclist hit the front passenger side of the vehicle and was thrown very high into the air. As observed, damage to the McLaren shows that the car must have been significantly or entirely in the wrong lane the time the collision.
The circumstances in summary are:
1. Just before the collision she was driving in the wrong lane , facing potential oncoming traffic;
2. Either she was aware she was on the wrong side of the road and intended to take the corner in that way; or
3. She was driving too fast for that corner, either because she failed to heed the advisory sign, or she failed to brake sufficiently to slow down or both.
There is no evidence of abandonment of responsibility in a purposeful way, so the only conclusion is that she was driving too fast for the conditions, and/ or failed to slow down as required by the road contour and advisory sign. She had been warned about driving and the use of the brakes on the McLaren. The most favourable conclusion for the circumstance she finds herself is that she failed to heed that advice.
After the collision Miss Hungerford and her passenger immediately stopped and rendered what assistance they could. A motor vehicle following them and part of the media event assisted in calling emergency services. Mr Tan was given as much assistance as possible.
Ms Hungerford was initially charged with several offences, some in the alternative. The prosecution did not elect to have the matter heard at first instance in this court. She pleaded guilty at the first opportunity, and is entitled to a discount for that fact. The Crown support that.
[5]
Consideration
In assessing the Appellants moral culpability counsel have addressed the court on the relevant principles. There is little disagreement. The moral culpability is to be assessed considering the circumstance of the driving, rather than the consequences of the driving. I accept that.
The Appellants state of mind and care she was taking are available from the facts and the video. It is clear that she took the corner too wide and too fast. I have provided reasoning for this conclusion. To get to this point of collision, the appellant failed to steer the car properly for the corner, failed to brake sufficiently or entered to corner too fast. She was clearly travelling at a speed that did not allow her to correct the difficulties before she travelled to the wrong side of the road.
Considering the instruction on the braking systems she had, the acknowledgement of the difference in the brakes while she was driving, the apparent confidence she exuded during the short trip, the poor driving that caused the collision was caused by more than momentary inattention. Whether she was distracted by the filming process, or her thoughts of using the gearing system, or something else is not for the court to find, but the totality of her actions were considerably less than required on a single lane winding road that she had not travelled on previously.
It is accepted that there are no so called aggravating factors as referred to in R v Whyte (2002) 55 NSWLR 252. The length of the journey is in the circumstances not a relevant consideration. Her driving was for that corner at least, well below the safe requirement. It cannot be said that there was showing off as is meant in Whyte's case, but the presence of the filming and a passenger to impress, or her own ego may have been factors in her lack taking proper care and the need to drive to the road conditions.
I accept that the consequences for Mr Tan are not matters which affect moral culpability. The fact that the instructor did not specially warn about cyclists may be relevant elsewhere, but in the circumstances of the collision occurring on the wrong side of the road not relevant to my considerations of moral culpability. The fact that the unfortunate Mr Tan was riding a bicycle no doubt had a lot to do with the injuries he suffered, but any vehicle coming in the other direction would not have been able to avoid a collision in those circumstances. Similarly the suggestion that the other vehicles in front of Ms Hungerford did not slow for the corner, or she was not warned specifically about the corner are not useful submissions. In agreeing to drive in the circumstances, she accepted responsibility for the management of the vehicle.
I further accept that guideline judgements such as Whyte are just that, a guide, or a check (as referred to in Wong (2001) 207 CLR 584). The court retains discretion in each individual case. Since the decision in R v Jurisic (1998) 45 NSWLR 209. Section 5 of the Crimes Sentence act was enacted, requiring courts to only sentence a term of imprisonment if no alternative was appropriate in the circumstances of a particular case. Since that decision further legislative amendments have occurred. I have been referred to by counsel to some cases. Some more relevant and useful then others. The case of Pullen (2018) NSW CCA 264, was an offence relating to similar charges, although very different circumstances of both driving and injury, is somewhat useful.
Counsel for the appellant submitted that Whyte does not deal with situations when non full time custodial sentences as opposed to non-custodial sentence would be appropriate. Perhaps this is the case, as it was decided after the introduction of s 5 but before the introduction of the s 66 amendments. A recent CCA decision of R v Fangaloka [2019] NSWCCA 173 does however give courts direction. This was not a case concerning dangerous driving but rather a robbery in company where the application of the "Henry" criteria was discussed. It is therefore relevant in terms of the discussion of guideline judgements and the passing of the 2018 amendments. Justice Basten with whom Justices Johnson and Price agreed discussed the section 66 amendments and the effect of those, especially taking into account the historical placement of intensive corrections orders, and the place of section 3A of the Crimes Sentencing and Procedure Act in the discretionary process. Paragraphs 47 to 53 of that decision delivers a discussion of the amendments in the light of that history. At paragraph 58 of the judgement Justice Basten specifically refers to Pullen's case and the statement of the sentencing Judge who indicated that in circumstances where the sentence is less than two years the judge was required to consider whether it was appropriate that be served by way of an intensive corrections order. Justice Basten pointed out that there is no such express obligation under either provisions introduced in 2010 nor in more recent provisions. In paragraph 63 onwards His Honour referred to the preferred construction of s 66 Preferring the interpretation to be "restrictive rather than facilitative". He said "the paramount consideration in considering whether to make an ICO is the assessment of whether such an order or full-time detention is more likely to address the offender's risk of reoffending. That is unless a favourable opinion is reached in making the assessment then an ICO should not be imposed".
He later pointed out that at the same time the other purposes of sentencing must be considered and given due weight.
In paragraph 64 of the decision he said "the first purpose of sentencing identified in section 3A….. is to ensure the offender is adequately punished for the offence". He noted it is "a fundamental principle of long-standing and requires that the sentence be reasonably proportional to the offending".
Further on he said "there is no doubt that a sentencing court must have regard to the personal circumstances of the offender but they should not divert the court from imposing adequate punishment having regard to the objective gravity of the offence". And in paragraph 66 he "observed the purpose of section 66 is merely to ensure that the court does not assume that full-time detention is more likely to address a risk of reoffending than a community-based program of supervised activity". He confirmed that "it would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration".
This decision confirmed that in relation to offences such as the current offence the objective gravity of the offence is and remains the starting point. Objective gravity of this offence is to be assessed taking into account the consequences of the dangerous driving that is the first of two of the list of aggravating factors referred to in Jurisic's decision the other factors which together relate to the manner of driving such as to assess the degree of moral culpability for the driving event.
As I have explained, the moral culpability of this appellant is certainly below mid-range but her abandonment of responsibility represents a far more serious course of conduct than merely momentary inattention as was submitted by her counsel. The consequences of the offending are extremely serious. Therefore the objective gravity of the offence as a whole remains at a lower than mid-range but well above the lowest range of seriousness.
When considering Miss Hungerford subjective circumstances she has many things in her favour. I observe that her traffic record is excellent up until this point. She has had her full driver's licence since 2009 and has no adverse entries on it. I accept that she is remorseful for the commission of this offence and has understood the consequences for Mr Tan as a result of her actions. She has her partner and family support and she remains working for a travel magazine. She finds significant support from her family particularly her father who has been unwell and she is naturally concerned about his health. She remains very anxious about the prospect of serving a custodial sentence and I accept that it would be unusual if she did not. She has appropriate insight into the consequences of her offending for Mr Tan. Dr Furst suggests that her depressive symptoms are such that her current clinical presentation suggests that a diagnosis of a major depressive disorder with high levels of comorbid anxiety is more appropriate than an adjustment disorder alone. I accept that she is likely suffered from an acute stress disorder in the weeks following the offence and again considering the seriousness of the offence that would be a normal and appropriate response.
The fact remains that the important requirements for imposing a sentence remain the need to impose a sentence which reflects the seriousness of the offending. Only a custodial sentence meets that need. It must be served in prison.
The maximum penalty for this offence if dealt with in the District Court's seven years and if dealt with in the Local Court a jurisdictional limit of two years. The Local Court imposed a sentence of 12 months with a non-parole period of seven months and although I am not aware of particular special circumstances that were found in that regard, I accept that this is her first time in custody, that she has some mental health issues and she has good prospects of rehabilitation. In my view no lesser sentence is appropriate. For the reasons that I have stated it is my view that the appeal must be dismissed.
[6]
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Decision last updated: 03 September 2019