Kerr v R

Court of Criminal Appeal (NSW)|2016-07-11|Before: Bathurst CJ, Hoeben CJ, Price J

The applicant's subjective circumstances

The sentencing judge noted the applicant was single and lived with his parents "in a supportive parenting and familial structure". His Honour noted that after the applicant completed his secondary education, he held various positions including running his own fitness centre for three to five years, which the sentencing judge described as a tribute to his initiative and work values.
The sentencing judge noted, however, that the applicant had a prior criminal conviction for affray, ultimately the subject of a community sentence order which he completed satisfactorily. He also noted the applicant had an additional conviction for aggravated robbery for which he was subject to a two year intensive correction order, which was in force at the time of the offences. The sentencing judge noted that, having regard to the penalty imposed, the offences would not have been at the upper range of seriousness for such matters.

The sentencing judgment

The sentencing judge summarised the facts which I have set out above. He noted that the victims had suffered substantial harm, which he said was an element of the offence and not to be used in an aggravating sense. He paid regard to the victim impact statements in a manner to which no objection was taken. He noted that Dr Haber underwent major spinal surgery on the day of the crash to stabilise his spine and prevent paraplegia and endured a lengthy and extremely painful recovery period in terms of regaining his ability to walk and becoming increasingly mobile. He noted that Dr Haber was required to have a second operation and that he was 55 years of age at the time of the accident and suffered physical, mental and medical concerns as well as property and financial losses.
His Honour also recorded that, as a result of the accident, Mr Dean was substantially affected in relation to his financial situation and employment and that the accident had a direct impact on his personal finances and the quality of his family life.
His Honour described the effect and consequences of the injury of each of the victims as significant and ones which should be reflected in a sentence which "reflects the objects of sentencing".
The sentencing judge noted that the applicant did not give evidence at the sentencing hearing. However, he noted that the applicant read a prepared statement of remorse to the victims. His Honour stated that he was prepared to accept the applicant was genuine in his expression of remorse, whilst noting that his evidence was untested.
The sentencing judge also referred to other evidence concerning the applicant's character given by witnesses and in tendered references. Whilst noting that such evidence minimised the witnesses' knowledge of the applicant's driving record, he stated that it was generally confirmatory of the applicant's secure and stable upbringing, his support of his family and his character, stating that he would take those matters into account in sentencing.
His Honour noted the Crown submission that the speed of the vehicle driven by the applicant must be considered in light of the circumstances of the accident. He noted and accepted the submission that the evidence established the applicant was travelling at a speed of 70 kph, approximately 40 kph faster than the cyclists, and that that speed was unsafe absent an adequate lookout.
The sentencing judge accepted that the cyclists must have been visible at a distance of at least 300 metres, a distance which would take about 17 seconds to complete. He concluded that even though the applicant was travelling at less than the speed limit, this must be considered in light of the prevailing circumstances. He accepted the Crown submission that, in those circumstances, the breach could not be considered momentary or fleeting.
The sentencing judge declined to accept the submission that personal deterrence was not relevant and general deterrence did not loom large. In relation to the latter, he stated that the Court needed to make it clear that cyclists who obey the law have the right to use the road without danger and that drivers must be aware of the need to constantly pay attention and to adjust their speed to take account of changing circumstances.
In dealing with personal deterrence, the sentencing judge noted that, in general terms, the applicant was a person of good character. He stated that the applicant's driving record and, to a limited extent, his criminal record, was only relevant to determining where a sentence should lie within the boundaries set by the objective seriousness of the offence. In that context, he made the following remarks: "In my view, his record does indicate over the years prior to the commission of the offence a somewhat casual attitude towards the law and its applicability to him. The matters I have set out which have occurred in the five years preceding this offence do not assist him at all. They are relatively serious transgressions where there have been a range of or a series of non-custodial sentencing options extended to him. That leniency does not appear to have been recognised by him. … I have considered the factors that I have specified and the general remarks in both Jurisic and Whyte. What is clear here from the nature of the driving, which was clearly dangerous, is that given the distance and the time involved and all the other circumstances as outlined, I regard this as being more than a case of momentary inattention. Whatever term is used be it a continual or a range or a level, what is needed is an assessment of the moral culpability as was set out by Chief Justice Spigelman in Jurisic at [228]. I do regard here the moral culpability as being significant and not minor. In terms of what was said in Whyte at [214], I also find that the level of culpability is above a low level and I find that with reference to the two particular factors I have identified as was set out in Gonzales v The Queen [2006] NSWCCA 4 at [13]. … In terms of the spectrum of such cases referred to by Justice Simpson and the language sometimes used in other sentencing contexts, I assess the criminality to be above the bottom end of the spectrum although closer to the lower end than the higher end. In terms therefore of my overall consideration, what was involved was an act of clearly dangerous driving on a straight section of a major highway in Sydney. The weather was fine, the road was in good condition, it was bituminised. The offender's view of the cyclists was unobstructed. There was no issue, mechanical or otherwise, with his car. There was no alcohol or drug use involved by him."
In considering alternatives to full time imprisonment, the sentencing judge concluded that none of the possible alternatives adequately reflected the requirements of general deterrence, nor would they address the dangerousness of the applicant's driving or his past criminal history. He also stated that such alternative options would also disregard the generosity of sentencing options which had been extended to him in the past.
So far as accumulation was concerned, the sentencing judge noted that, although all seven of the charges arose out of essentially the same incident with the same factors of criminality, there were seven victims, a matter which needed to be marked by some partial accumulation albeit of a relatively minor nature.
His Honour allowed a discount on sentence of 25% for the applicant's plea of guilty.
In those circumstances, the sentencing judge imposed the sentence to which I have referred above.

The grounds of appeal

The applicant originally relied on two grounds of appeal as follows: "Ground 1. The sentences imposed were, in all the circumstances, manifestly excessive. Ground 2. His Honour erred in taking the applicant's previous unrelated criminal history into account for the purposes of sentencing."
In his written submissions the applicant relied on specific matters which were said to constitute error by the sentencing judge. Following objection by the Crown to these matters being raised under the manifestly excessive ground, the applicant sought to rely on the following additional grounds of appeal:

Ground 3. His Honour erred in finding that the moral culpability was not at the lower end of the range.
Ground 4. His Honour erred in finding that the applicant was driving at excessive speeds.
Ground 5. His Honour erred in finding that the length of the journey during which others were exposed was an aggravating factor.
Ground 6. His Honour erred in finding that the accident was not the result of momentary inattention.
Ground 7. His Honour erred in finding that specific and general deterrence were relevant factors.
Ground 8. His Honour erred in ordering that two months of the sentence ought to be aggregated.

No objection was taken by the Crown to this course. In these circumstances, it is convenient to deal with the discrete grounds of appeal prior to dealing with the manifest excess ground.

Ground 2 - His Honour erred in taking the applicant's previously unrelated criminal history into account for the purposes of sentencing

The submissions

The applicant criticised the remarks made by the sentencing judge in considering alternatives to full time imprisonment. I have set out the remarks in question above at [54]. In that context, the applicant referred to the following submissions made by his senior counsel at the sentencing hearing concerning the applicant's conviction for aggravated robbery: "That this happened straight after a funeral, the day of a funeral, not with other participants and there was an incident. So that may put some colour on - not saying anything justifies, but when your Honour said an ICO is lenient that may have been the relevant background circumstances and the aggravation being in company."
The applicant also criticised the Crown's submission that the fact that the applicant was subject to an intensive corrections order at the time of the offence should be treated as an aggravating factor.
While not disagreeing with this general proposition, the applicant submitted that, given that the facts giving rise to the earlier convictions were not similar to those the subject of the present indictment, the earlier convictions ought not be considered a relevant factor in determining the sentences to be imposed.
The applicant also noted that the sentencing judge did not know the facts surrounding each of the earlier offences and was in error in taking into account the applicant's prior history and in making a finding that the previous sentences were generous. At the hearing, senior counsel for the applicant submitted that it was trite to say that the applicant could not be punished for past offences or past generosity and that this was not a case where the applicant had abused a grant of conditional liberty to commit a further crime, as the offence in question was a result of inattention rather than deliberate misconduct.
The Crown submitted that the sentencing judge was careful not to elevate the objective gravity of the offence when taking into account the applicant's prior criminal history and traffic record. It noted that evidence of the criminal history and traffic record were tendered without objection and submitted that this Court has considered an offender's traffic record as part of his or her subjective case on a number of occasions. It further noted that driving whilst disqualified is an offence which involves a conscious and deliberate decision to flout the law.
The Crown also submitted that breach of conditional liberty such as an intensive correction order is a relevant aggravating factor under s 21A(2)(j) of the Sentencing Procedure Act and at common law, although the breach does not serve to increase the objective gravity of the offence. It was submitted that the breach was relevant regardless of whether the subsequent offence was of the same or a different character.

Consideration

In his sentencing judgment, the sentencing judge expressly stated that neither the criminal history nor the traffic record of the applicant could be taken into account as an aggravating factor in determining the objective seriousness of the offence. He elaborated on this later in his judgment where he stated that the applicant's driving record and "to a limited extent" his criminal record were only relevant to determining where a sentence should lie within the boundaries set by the objective circumstances of the offence and not to determine its objective seriousness.
The remarks of the sentencing judge, to which I have referred above at [53]-[55], must be read in that context. It does not seem to me that he took the prior convictions and traffic record into account in dealing with the objective seriousness of the offence but rather, as he said, in determining the appropriate sentence within the framework set by the objective circumstances.
It seems to me that the sentencing judge was entitled to take those matters into account in the manner in which he did. In R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, the Court accepted that it was appropriate to take the applicant's traffic and criminal record into account when sentencing the offender. In that case, Howie J, with whom McClellan CJ at CL and Simpson J agreed, stated that the determination of whether a criminal record was a matter of aggravation was largely a matter for the sentencing judge to determine: at [47]. A similar approach has been taken by this Court in other cases: Gonzalez v The Queen [2006] NSWCCA 4 at [7], [11], [29]; Stanyard v The Queen [2013] NSWCCA 134 (Stanyard) at [25]-[26].
Further, this Court on a number of occasions has stated that the fact that the offence was committed whilst the offender was on conditional liberty constitutes an aggravating circumstance: R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380 at [5]; R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299 at [7]; Frigiani v The Queen [2007] NSWCCA 81 at [24]-[25]. In the latter case, Howie J made it clear that the offence in respect of which the offender was on conditional liberty did not have to be similar to the offence the subject of the indictment before it could be considered an aggravating factor, although it would generally be considered more aggravating where the conduct was similar to that for which the offender is being sentenced: at [24].
It is true that, in the present case, the offence was a result offence rather than an intentional offence. Nonetheless, to drive in a manner dangerous to the public whilst the subject of an intensive corrections order for an offence of a different nature could be held to be an aggravating circumstance in determining the appropriate sentence. The sentencing judge was entitled to take it into account and did not commit error in doing so.
So far as concerns the asserted error in finding that the prior sentences imposed upon the applicant were generous, the remarks complained of must be read in the context of his Honour's earlier remarks that, in considering personal deterrence, it was relevant to take into account the somewhat casual attitude to the law shown by the applicant. After making the remarks to which I have referred above at [44]-[45], he stated that these were relatively serious offences in respect of which a series of non-custodial options were extended to the applicant, the leniency of which did not appear to have been recognised. It was in that context that the remarks concerning the generosity of previous sentences were made.
It seems to me that all the judge was doing was pointing out that previous non-custodial options had not deterred the applicant from committing further crimes. There does not appear to me to be any error in reaching that conclusion.
This ground of appeal has not been made out.

Ground 3 - His Honour erred in finding that the moral culpability was not at the lower end of the range.

Ground 4 - His Honour erred in finding that the applicant was driving at excessive speeds.

Ground 5 - His Honour erred in finding that the length of the journey during which others were exposed was an aggravating factor.

Ground 6 - His Honour erred in finding that the accident was not the result of momentary inattention.

These grounds all relate to the particular circumstances surrounding the offence. It is convenient to deal with them together.

The applicant's submissions

In relation to moral culpability, the applicant emphasised there was no suggestion that he drove deliberately at a group of cyclists nor was there any evidence of road rage. He submitted that the issue was whether his inattention was momentary or something more than momentary.
The applicant referred to the remarks of Spigelman CJ in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte) to the effect that moral culpability is a critical component of the objective circumstances of the offence: at [205]. He referred to the aggravating factors listed at [216] in the judgment in Whyte, stating that no submission was made in relation to them at the hearing.
The applicant repeated his submission that the judge erred in concluding that the fact the applicant was subject to an intensive correction order was an aggravating factor. He submitted the objective seriousness of the offence was to be determined without reference to matters peculiar to the applicant. The applicant repeated his submission that there was no abuse of conditional liberty as the offence was not deliberate.
The applicant also submitted that the sentencing judge erred in concluding that the speed at which he was driving was relevant to his moral culpability. He submitted that the references to the degree of speed in Whyte and R v Jurisic (1998) 45 NSWLR 209 (Jurisic) were references to how far over the speed limit the offender in question was driving.
The applicant referred to the remarks by the sentencing judge that, even though he was driving below the speed limit, the degree of speed, relative to the circumstances and the driving conditions, remained relevant and drivers needed to adjust their speed to take into account changing circumstances. He submitted that there was no suggestion of excessive speed made at the hearing and it was not open to the Court to make such a finding.
The applicant also submitted that the sentencing judge erred in finding that the length of the journey was relevant, submitting that, in Whyte and Jurisic, it had been used to refer to the distance over which others were imperilled. He submitted that the distance over which other road users were imperilled could not have been 300 metres as found by the sentencing judge as the applicant could not have driven inattentively over that period whilst remaining in his lane.
The applicant referred to the evidence of eye witnesses to the effect that they did not recall the applicant's vehicle veering. He submitted that the inference to be drawn from this evidence was that the applicant had been attentive up to the time of the accident and that it was only momentary inattention which caused the accident to occur.
In those circumstances, the applicant submitted that the sentencing judge erred in finding that the applicant's moral culpability was significant and not minor.
In dealing with the question of speed and the distance driven during the course of which users of the road were imperilled, senior counsel for the applicant submitted that the applicant was driving within the speed limit and the cyclists were only imperilled from the time he should have slowed down or changed lanes. He submitted that, in those circumstances, there was merely momentary inattention because the applicant's vehicle did not veer from the lane in which it was travelling.
Senior counsel for the applicant referred to the statement made by the applicant in the presence of Mr Martin, "I don't know what happened, I looked up and all of a sudden I started clipping you guys". He submitted this was consistent with momentary inattention because the applicant could not have been looking down for a significant period of time as he was driving in a straight line. He referred to the statement of Mr Ung (see above at [19]) and submitted that, at some point in time, there was a vehicle between the applicant's vehicle and the cyclists.

The Crown's submissions

The Crown submitted that the finding that the applicant's culpability was significant and not minor and that his criminality was above the lower end of the spectrum, although closer to that end than the higher end, was open. The Crown referred to the fact that there were seven victims. It submitted that there was more than momentary inattention and that the reason for the inattention remained unexplained. It pointed to the fact that the seriousness of the injuries caused was relevant to the objective gravity of the offence.
The Crown submitted that the concept of the degree of speed as a relevant factor is not to be read down so as to mean the degree to which the driving exceeded the relevant speed limit. It submitted that there were limitless factual circumstances in which a driver's speed may be dangerous, notwithstanding that it was within that limit.
Senior counsel for the Crown submitted that it was not a case of momentary inattention. He described it as a level of inattention predicated upon the knowledge that the cyclists were there for a period in the order of 17 seconds over a total distance of 300 metres.
Senior counsel for the Crown submitted that, whilst the speed at which the applicant was driving may have been appropriate 100 metres away from the cyclists, the closer one got to them, the greater the significance of continuing at that speed and, ultimately, the speed becomes a potentially aggravating factor. He submitted the distance over which the dangerous driving takes place is also a relevant factor. He submitted that whilst 300 metres was not a great distance, in circumstances where a person knows he or she is coming into close proximity of a group of cyclists, it will be a relevant factor in determining whether the guidelines in Whyte should apply.

Consideration

It is convenient to deal first with the challenge to the judge's findings that the accident did not occur as a result of fleeting and momentary inattention. It seems to me that this finding was open to the sentencing judge. It was not challenged that visibility was good and that the cyclists would be visible up to a distance of 300 metres. Although senior counsel for the applicant submitted that, at one point, there was a car between the applicant's vehicle and the cyclists, there was no suggestion that the applicant's view was impeded by that vehicle. Further, such a proposition was not put at the sentencing hearing.
In these circumstances, there appears to be only two hypotheses: either the applicant did not see a group of seven cyclists because of inattention to the road for at least 17 seconds, or, seeing them, he approached them at a speed of 70 kph up until a point of momentary inattention, which caused the accident; the applicant having made no attempt to slow down or otherwise avoid the cyclists up to the point his attention was momentarily diverted. The latter finding effectively involves the proposition that the applicant, being aware of the cyclists, did nothing to take account of them on the road until momentary inattention led to the collision. His Honour was justified in coming to the alternative conclusion, which, on one view, was more favourable to the applicant.
It was submitted that the sentencing judge erred because it would not be possible to drive in a straight line if the applicant was not attentive to the road. However, had that attention been paid, the applicant would have observed the cyclists, which was contrary to what he told the police and what he said in the presence of Mr Martin at the scene of the accident: see above at [7] and [24].
In those circumstances, the sentencing judge did not err in concluding that the accident was not the result of momentary inattention.
So far as Ground 4 is concerned, the sentencing judge recognised that the applicant was driving within the speed limit. However, he found that the speed was unsafe, absent an adequate lookout. It may be added that the danger increased the closer the applicant's vehicle got to the cyclists, who were travelling 40 kph slower.
The applicant submitted that the reference to excessive speed in Whyte was a reference to how far above the speed limit the applicant was driving: see above at [80]-[81]. Whether or not this is so, it does not mean that the actual speed at which the offender was driving cannot be taken into account in determining the objective seriousness of the offence. As was pointed out in Whyte, the guidelines in the judgment must be taken into account only as a check or sounding board: at [113]. It does not follow that circumstances of aggravation other than those found in the guideline judgment itself cannot be taken into account: see Stanyard at [29], [40]; R v Tzanis [2005] NSWCCA 274 at [24]-[25].
In these circumstances, I do not consider the sentencing judge to be in error in concluding that driving at 70 kph in the near vicinity of a group of cyclists was excessive and that he was entitled to take that into account as an aggravating factor.
So far as Ground 5 is concerned, once the sentencing judge's conclusion that the collision was not due to momentary inattention is accepted, the question of the distance the applicant travelled without attention to the road was a relevant factor. The sentencing judge concluded that it was relevant, in the circumstances, that the applicant drove the vehicle 300 metres over a period of 17 seconds without regard to the group of cyclists ahead of him. It does not seem to me to be erroneous to take this into account in determining the objective seriousness of the offence.
Once it is concluded that the sentencing judge was not in error in determining that the accident was not the result of momentary inattention and that the speed travelled by the applicant and the distance during which he was inattentive to the road were aggravating factors, it does not seem to me that the sentencing judge erred in concluding that the applicant's moral culpability was not at the lowest end of the range but rather, was above the lowest end of the spectrum, although closer to that end than the higher end.
In these circumstances, in my view, none of these grounds of appeal have been made out.

Ground 7 - His Honour erred in finding that specific and general deterrence were relevant factors.

The submissions

The applicant submitted that specific and general deterrence ought not to have been considered of great relevance since what occurred was a result of inattention. The applicant also noted that he had surrendered his licence shortly after the accident.
Senior counsel for the applicant submitted that, even if it was correct that it was necessary to emphasise the fact that people needed to be particularly careful when cyclists were in the vicinity, the sentence that the applicant had already served was sufficient to accommodate any need for such general deterrence.
In relation to specific deterrence, senior counsel for the applicant pointed to the applicant's expression of remorse and submitted that it was difficult to imagine a more salient lesson than what had occurred to deter a person from similar conduct. He submitted that if the Court came to resentence, specific deterrence would not loom large as the applicant had already served a year in prison.

Consideration

This ground can be dealt with shortly.
I have set out senior counsel for the applicant's submission above and ultimately it did not appear to be contended that specific and general deterrence were matters that the judge was not entitled to take into account. Rather, the submission appeared to be that if the Court was required to resentence, the time already spent by the applicant in prison was sufficient to satisfy any need for both specific and general deterrence. As the Court is not required to resentence, no opportunity arises to revisit these matters.

Ground 8 - His Honour erred in ordering that two months of the sentence ought to be aggregated.

The submissions

The applicant, whilst accepting that a portion of the sentence could be aggregated, submitted that the accumulation of two months for each of the counts in question was excessive.
The Crown submitted that there was only modest accumulation of the indicative sentences for Counts 1 to 4 and none in relation to the other counts. It also pointed to the adjustment of the non-parole period to two-thirds of the head sentence, submitting that the aggregate non-parole period was in fact lenient.

Consideration

Questions of accumulation, concurrence and totality are matters which fall squarely within the discretion of the sentencing judge. An appellate court will not interfere unless there appears to be an error of principle or if the sentence imposed is manifestly excessive (or inadequate).
In considering this issue, the sentencing judge recognised that the charges arose out of the same instance, with the same feature of criminality. He stated that there had to be some degree of accumulation to recognise the fact that there were seven separate victims.
The applicant did not point to any error of principle, apart from submitting that the accumulation for each of the sentences was excessive. In these circumstances, it is convenient to deal with this submission in dealing with the manifest excess ground.

Ground 1 - The sentences imposed were, in all the circumstances, manifestly excessive.

The submissions

In relation to this ground, the applicant relied on his submissions in respect of the other grounds. I have summarised these submissions above. In addition, the applicant provided a survey of five comparable cases, which, he submitted, demonstrated that the sentence was manifestly excessive.
The Crown also relied on its submissions in respect of the other grounds and submitted that all of the comparable cases referred to were distinguishable and not of assistance.

Consideration

The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.
As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.
In considering the issue of manifest excess, it is of course important to have regard to the maximum penalty for the offences, which I have set out above at [1], and the guideline judgment in Whyte. However, in considering the guideline judgment, it must be remembered that the applicant did not fall within Spigelman CJ's description of a typical offender: at [204]. He was not a young offender, had prior convictions which were relatively serious and injuries were caused to more than one person. Equally, unlike the typical characteristics, his plea had significant utilitarian value.
I have set out above the reasons the sentencing judge was justified in taking into account the speed at which the applicant was travelling and the distance over which he was inattentive to the road in the manner in which he did. I have also indicated that, in those circumstances, the judge, in my opinion, was entitled to conclude that the level of criminality was above the lower end of the spectrum although closer to the lower end than the higher end.
It was also appropriate to take general and specific deterrence into account. As the sentencing judge pointed out, it needs to be emphasised that cyclists lawfully using the road are entitled to do so without the danger of a random act of dangerous driving. Furthermore, the applicant's previous traffic record indicated a need for personal deterrence.
The sentencing judge was correct in considering that a measure of accumulation was necessary to meet the separate injuries to the victims. The amount of accumulation was mitigated to some extent by the finding of special circumstances and the consequent adjustment of the ratio of the non-parole period to the total sentence, as well as by the fact that the offences the subject of the charge of causing bodily harm by misconduct were to be served concurrently with each other and with the sentence for Count 1.
I have taken into account the summary of the cases attached to the applicant's submission. However, the facts in those cases were so different from the present that they do not provide any real assistance: Hili at [53]-[55].
In the circumstances, I am of the view that the sentence was not manifestly excessive.

Conclusion

In the result I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed.
HOEBEN CJ at CL: I agree with Bathurst CJ and the orders which he proposes.
PRICE J: I agree with Bathurst CJ.

Amendments 07 October 2016 - Hearing date change to 11 July 2016 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: 07 October 2016

[This headnote is not to be read as part of the judgment] The applicant was driving his vehicle in the first lane of a three lane highway when he ran into the back of a group of seven cyclists travelling in the same lane and in the same direction. The road was straight at the point of the accident, however, an earlier bend in the road meant that the cyclists were visible for a distance of approximately 300m. The cyclists were travelling at 32km/h. A nearby driver whose cruise control was set to 80km/h indicated that the applicant was driving slower than him. It was accepted that the applicant was driving at approximately 70km/h. Several witnesses reported that the applicant did not slow down or take any action to avoid colliding with the cyclists. Four of the cyclists sustained grievous bodily harm, while the remaining three sustained bodily harm. The applicant was accordingly charged, and pleaded guilty to, four counts of dangerous driving causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW) (Crimes Act) and three counts of causing bodily harm by misconduct contrary to s 53 of the Crimes Act. The applicant had prior criminal convictions for affray, for which he completed a community sentence order, and for aggravated robbery, for which he was subject to a two year intensive corrections order that was in force at the time of the offences. The sentencing judge observed that the leniency of the non-custodial sentences extended to the applicant did not appear to have been recognised by him. So far as his driving record was concerned, the applicant was disqualified from driving for two years in 2010 after being charged for using a mobile phone while driving in 2010 and for driving with a midrange prescribed content of alcohol in 2009, both offences for which he was fined. The sentencing judge noted that the applicant's driving history and, to a limited extent his criminal history, was not an aggravating factor, but rather, was only relevant to determining where a sentence should lie within the boundaries set by the objective seriousness of the offence. The sentencing judge determined that, given the distance at which the cyclists were visible, the applicant's inattention could not have been momentary and thus, the distance over which the applicant drove inattentively was an aggravating factor. He also stated that the applicant's speed was excessive in light of the surrounding circumstances and concluded that the applicant's moral culpability was above the bottom end of the spectrum though closer to that end than the higher end. The applicant was sentenced to an aggregate sentence of 27 months composed of a sentence of 21 months with a non-parole period of 14 months on the first four counts, each accumulated by 2 months and a sentence of 9 months for the remaining three counts, wholly concurrent with each other and with Count 1. The applicant appealed against sentence. The issues on appeal were:

Whether the sentencing judge erred in taking the applicant's previous unrelated criminal history into account;
Whether the sentencing judge erred in finding that the applicant's moral culpability was not at the lower end of the range;
Whether the sentencing judge erred in finding that the applicant was driving at excessive speeds;
Whether the sentencing judge erred in finding that the length of the journey during which the applicant was driving dangerously was an aggravating factor;
Whether the sentencing judge erred in finding that the accident was not the result of momentary inattention;
Whether the sentencing judge erred in finding that specific and general deterrence were relevant factors;
Whether the sentencing judge erred in ordering that two months of each sentence for Counts 1-4 ought to be accumulated;
Whether the sentence was manifestly excessive. The Court held (Bathurst CJ, Hoeben CJ at CL and Price J agreeing) dismissing the appeal: Criminal history (i) An offender's prior convictions and traffic record may be taken into account in determining the appropriate sentence within the framework set by the objective circumstances: [70]-[71] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). (ii) The determination of whether criminal record is a matter of aggravation is largely a matter for the sentencing judge to determine: [71] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1; Gonzalez v The Queen [2006] NSWCCA 4; Stanyard v The Queen [2013] NSWCCA 134 applied (iii) The fact that an offence was committed whilst the offender was on conditional liberty constitutes an aggravating circumstance. The offence in respect of which the offender was on conditional liberty does not have to be similar to the offence before the court, though it will generally be considered more aggravating where the conduct is similar to that for which the offender is being sentenced: [72]-[73] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380; R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299; Frigiani v The Queen [2007] NSWCCA 81 applied (iv) The sentencing judge was not in error in pointing out that previous non-custodial sentences had not deterred the applicant from committing further crimes in the context of considering personal deterrence: [74]-[75] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). Moral culpability, speed, length of journey and length of inattention (v) The sentencing judge had two findings open to him: either the applicant was inattentive for a period of at least 17s or he was aware of the cyclists and yet did nothing to take account of them until a point of momentary inattention caused the accident. In light of the applicant's indications that he did not see the cyclists, the former finding was open to the sentencing judge: [93]-[95] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). (vi) For an offence of dangerous driving, the offender's speed may be taken into account as an aggravating factor where it is excessive in light of the surrounding circumstances, even where it is not above the speed limit: [97]-[98] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 considered (vii) The guidelines in a guideline judgment must be taken into account only as a check or sounding board. It does not follow that circumstances of aggravation other than those found in the guideline judgment cannot be taken into account: [97] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343; Stanyard v The Queen [2013] NSWCCA 134; R v Tzanis [2005] NSWCCA 274 applied (viii) Once it is concluded that an accident was not the result of momentary inattention, the distance during which the driver was inattentive to the road is a relevant and aggravating factor: [99]-[100] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). (ix) Where an accident was not the result of momentary inattention and the offender drove at a speed of 70km/h without attention to the road for a period of 17s, a finding that the offender's moral culpability is above the lowest end is open: [100] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). Specific and general deterrence (x) It was appropriate for the sentencing judge to take into account specific and general deterrence. As the Court was not required to resentence, there was no opportunity to revisit the allowance made for specific and general deterrence in light of the applicant's time in custody: [106], [118] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). Accumulation (xi) Questions of accumulation, concurrence and totality are matters which fall squarely within the discretion of the sentencing judge. An appellate court will not interfere unless there is an error of principle or the sentence imposed is manifestly excessive or inadequate: [109] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). (xii) A measure of accumulation was necessary to meet the separate injuries to the victims. The measure of accumulation was appropriate when taking into account the adjustment of the ratio of non-parole period to total sentence and the fact that the final three counts were served concurrently with each other and with the first count: [119] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). Manifest Excess (xiii) An appellate court will only intervene in the sentence if it is unreasonable or plainly unjust, such that the court may infer that in some way there has been a failure to properly exercise the sentencing discretion. An appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: [114] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 applied (xiv) In the case of an aggregate sentence, the principal focus in determining a ground alleging manifest excess will be whether the sentence reflects the total criminality. Indicative sentences are not themselves amenable to appeal. While indicative sentences may be a guide as to whether error is established in relation to the aggregate sentence, the fact that indicative sentences are excessive does not necessarily mean the aggregate sentence is excessive: [115] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 applied (xv) In considering manifest excess, it is important for the court to have regard to the maximum penalty and the guideline judgment. However, the utility of the guideline judgment will depend on whether the offender falls within the description of a typical offender: [116] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 distinguished (xvi) Where the facts in comparable cases are sufficiently different to the case before the court they do not provide any real assistance: [120] (Bathurst CJ); [123] (Hoeben CJ at CL); [124] (Price J). Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 applied

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (19)

Cited By (50)