Markham v Regina

The application 9 The third ground of the application is that the sentence is manifestly excessive. This is said to be the result of errors asserted in the first and second grounds. These are, firstly, that the sentencing judge erred in his application of the guideline set out in R v Whyte (2002) 55 NSWLR 252 and, secondly, that his Honour erred in giving effect to the finding of special circumstances by extending the additional term with no downward adjustment of the non-parole period. The applicant was represented by Mr Game SC. 10 There is no need to set out the now familiar guideline in Whyte. It is to be found in the judgment of Spigelman CJ at [215] ff, where the Chief Justice re-examined and developed the guideline in R v Jurisic (1998) 45 NSWLR 209. It is sufficient to say that for a typical offence of dangerous driving occasioning death, where the offender's moral culpability is high, the guideline is that a head sentence of less than three years would not generally be appropriate. A case would involve high moral culpability if the circumstances were such that it could be said that the offender had abandoned responsibility for his or her conduct: [228] - [229]. 11 The sentencing judge found that the case involved the "factors contemplated" in the Whyte guideline but that there were "no additional aggravating factors". One of the features of a typical case identified by the Chief Justice in Whyte was a plea of guilty of limited utilitarian value: [204] (vii). Mr Game pointed out that that could not be said of the plea of guilty in the present case, which had been entered in the Local Court and was accepted to have been at the first opportunity. He argued that, in the light of that plea and the fact that his Honour found no additional aggravating factors, a sentence which is double the three year guideline could not be justified. Indeed, he argued, the sentence should have been below the guideline. 12 Mr Game submitted that this was a sufficient basis for the Court to intervene and re-sentence. In that event, he challenged the sentencing judge's assessment of the applicant's moral culpability and invited us to reach our own conclusion about it. This involves an examination of aspects of the applicant's evidence about his journey from Mildura and the circumstances of the accident. 13 Although he had told police that he left Mildura at about 9.00 pm, he gave evidence that it was "probably" between 7.00 and 8.00 pm. He drove to Wagga via Hay, and thence to Yass. He did not recall having stopped at Hay but said that "most likely" he would have had a break there which, he thought, would "probably" have been for an hour. He said that he had a half hour break at Wagga and that he stopped briefly at Yass. 14 He gave his logbook to police when he was arrested, and the officers who interviewed him had the book with them during the interview. The page of the logbook for 1 April 2005, the day of the accident, was in evidence. It provided for entries for the twenty-four hours from midnight. It would seem that the page for the previous day, which would have contained any entry between his departure from Mildura and midnight, was not able to be produced. The document in evidence records a stop at Wagga for half an hour, between 3.30 and 4.00 am. It records a later stop at an unspecified location for three-quarters of an hour, between 6.00 and 6.45 am. Presumably, that was the break at Yass, which must have been significantly longer than the applicant recalled. 15 It appears that there had been some delay in the vehicle being driven to Mildura, where the applicant was to pick it up for the journey to Sydney. As a result, and because the engine of the vehicle was not performing as it should, he was running late in arriving at the depot in Sydney where he was to deliver his cargo. It will be remembered that the accident occurred at about 10.15 am. He was supposed to have been at his destination by 6.30 am, although he said that he maintained contact with the depot and reported his progress. 16 He denied having been fatigued at the time of the accident. It remained his recollection that, as he approached the intersection where it occurred, the traffic light was green in his favour. He said, however, that he was looking for an intersecting street into which he had to turn from the Horsley Drive and that he must have been distracted, so as not to see the light change from amber and then to red. He said that he was travelling at no more than fifty kilometres per hour, and accepted that his attention must have been diverted for several seconds. 17 His Honour was referred to certain regulatory provisions whereby the applicant was required to have a half hour's rest after five hours driving and to drive for no more than twelve hours in a twenty-four hour period. His Honour was satisfied that he had commenced his journey no later than 8.00 pm, so that some fourteen-and-a-quarter hours elapsed before the accident. His Honour rejected his evidence that he had stopped at Hay, noting that he had not said anything of the kind in his police interview and that it was not supported by any entry in the logbook. He found that the logbook entries did not corroborate "the fact of or the length of" the breaks said to have been taken at Wagga and Yass. 18 His Honour added that, even if he accepted the evidence about those breaks, the applicant had "put in thirteen hours actual driving time". He noted that this put him outside the time permitted by the regulations. His Honour continued: Clearly he was obliged to stop and commence a twelve hour rest period not later than 9.15 am. That should have happened at a point well south of the suburbs of Sydney and long before he arrived in heavy traffic in a suburban street where he was unsure of his precise location and when he was under pressure from the consignee of his cargo. 19 It was in the light of these findings that his Honour concluded that the applicant's failure to see that the traffic light was red was attributable to fatigue or to the stress of a long journey. He made no reference to the applicant's evidence about being distracted while looking for an intersecting street and appears, impliedly, to have rejected it. 20 Mr Game challenged these findings. He argued that the page of the logbook in evidence did establish that adequate breaks were taken both at Wagga and at Yass. It should also be noted that, insofar as his Honour's rejection of the evidence that the applicant probably took a break at Hay was based upon the absence of a logbook entry, it may be that there was such an entry on the page of the logbook which was not in evidence. 21 It seems that the applicant was accustomed to the drive from Mildura to Sydney and Mr Game relied upon his evidence, apparently unchallenged, about the usual driving time for stages of the journey. He said that the entire trip normally took about eleven-and-a-half hours, including the breaks required by the regulations. The trip from Mildura to Wagga, he said, took about five and three-quarter hours. As I have said, the page of the logbook in evidence discloses his arrival at Wagga at 3.30 am. That being so, Mr Game argued, it is more likely that he left Mildura at the time he told the police, about 9.00 pm. Even allowing for his slower than usual progress because of the condition of the engine, the period of six-and-a-half hours between his departure from Mildura and the time of his arrival at Wagga was also consistent with his having stopped for a significant break at Hay. 22 In all the circumstances, Mr Game submitted, this Court should not be satisfied that the pattern of the applicant's driving was such that the accident could be explained only by his having fallen asleep at the wheel or by the fatigue and stress engendered by the journey. Rather, he said, we should assess his culpability upon the basis that he was distracted for the reason he gave in evidence. Mr Game acknowledged that even that would be a serious breach of proper conduct on the part of a professional driver in control of a large, heavily laden vehicle. He argued, however, that it falls short of an abandonment of responsibility, as that expression has been used in the authorities. 23 I can see the force of these arguments, but it is not easy for this Court to make its own assessment of this issue. It turned largely on the oral evidence of the applicant. His Honour made no comment in his remarks about his demeanour or his credibility generally, but he had the undoubted advantage of having seen and heard him give evidence. The Crown prosecutor in this Court submitted that it was open to his Honour to have found an abandonment of responsibility on the part of the applicant. 24 All that said, I think that there is force in the Crown prosecutor's alternative submission, developed orally, that it may not be necessary to decide the issue in determining the outcome of the application. He pointed out that, even if the accident was attributable to the applicant having been distracted while looking for an intersecting street, the offence remained a serious one for the reason fairly acknowledged by Mr Game. His Honour referred, appropriately, to the responsibility of drivers of heavy vehicles and the need for deterrent sentences for offences of this kind. 25 The expressions "abandonment of responsibility" and "high moral culpability" employed in the guideline judgment in Whyte are useful, but they are necessarily flexible. It was not intended that they become terms of art in this branch of sentencing law. The Crown prosecutor referred us to R v Clampitt-Wotton [2002] NSWCCA 383, which was a Crown appeal in a tragic case arising from an accident in which the respondent had been driving a heavy truck. It is not necessary to refer to the outcome of that case or the facts of it, except to observe that the sentencing judge had found the accident to be the result of inattention on the part of the respondent somewhat similar to that asserted by the applicant in evidence in the present case. In delivering the leading judgment, I said at [18]: His Honour's unchallenged findings … were that the respondent took a calculated risk in taking his eyes from the road and that, given the volume of traffic and conditions at the time, he was in serious disregard of his obligation as the driver of a heavy vehicle. That is the measure of his blame-worthiness, and nothing would be gained by an attempt to assign to his conduct some position within a notional scale of culpability. 26 It is also important to bear in mind what the Chief Justice said in Whyte at [232]: The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act .