R v Balla

Court of Criminal Appeal (NSW)|2021-12-08|Before: Rothman J, Button J

Solicitors: Solicitor for Public Prosecutions (Appellant) Streeton Lawyers (Respondent) File Number(s): 2020/181856 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2021] NSWDC 487 Date of Decision: 5 July 2021 Before: Hanley SC DCJ File Number(s): 2020/181856

judgment

SIMPSON AJA: I agree with Button J.
ROTHMAN J: I have had the advantage of reading in draft the analysis of Button J with which I agree. I agree with his Honour's reasons for judgment and the orders he proposes.
I would add the following. I have viewed the "dashcam" footage a number of times. While I accept that the lights were clear and may be seen by users of the road, the colour of the lights is not so discernible in the footage. The change from green to amber and from amber to red can be inferred from what seems to be the upward movement of the traffic light.
Over and above the analysis of Button J, even if one were to accept the analysis of the Crown to which his Honour referred, the gist of this offence is that, having seen the amber light, the respondent misjudged the time he had to make the right hand turn and decided to effect the turn. His inattention even on the Crown case, is confined to the two seconds that the light was red.

Introduction This is a Crown appeal against the sentence imposed on Mr Tommy Balla (the respondent) for the offence of dangerous driving causing death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for ten years, and no standard non-parole period.

On 20 August 2021, the respondent was sentenced by Hanley SC DCJ to a term of imprisonment for two years, to be served by way of an Intensive Correction Order (ICO). The ICO included conditions imposing home detention and the performance of community work for 400 hours. That sentence was imposed after his Honour had delivered substantive remarks on sentence on 5 July 2021 that were, with respect, detailed, comprehensive, and reflective.
For the reasons that follow, I would dismiss the Crown appeal.

Undisputed facts

The following is something of a synthesis of written agreed facts placed before his Honour, the final position of the parties at first instance, and the position of the parties before this Court
At approximately 5.40pm on Thursday 18 June 2020, the respondent was driving his motor vehicle, a white Mitsubishi Triton utility ("the Triton"), southbound along Windsor Road, Rouse Hill. Seated in the front passenger seat in a properly secured child restraint seat was the respondent's 21-month-old son.
Windsor Road consists of five lanes for travel in a northerly direction, including two lanes dedicated to turning right from Windsor Road into Rouse Hill Drive to the east. There are also five lanes for travel in a general southerly direction, the direction of travel of the respondent, with two of those lanes also dedicated to turning right, from Windsor Road into Schofields Road to the west. This section of Windsor Road was, at the relevant time, governed by an 80 km/h speed limit.
The intersection was controlled by traffic lights, and, bearing in mind the number of lanes, is obviously a major one. And since this was during the evening rush hour on a Thursday in the suburbs of Sydney, there were many vehicles and persons present at the intersection.
Travelling behind the respondent's vehicle was another vehicle ("the dashcam car"), also approaching the intersection. It had a dashcam fitted, and its footage became exhibit D on sentence. (The time of day that the footage displays is agreed to be wrong, but the relative times are correct.) What it actually shows, and what inferences can be drawn from what it shows, assumed significance at first instance, and in this Court.
The footage captured the Triton southbound and approaching the intersection. The footage also depicts the respondent driving the Triton into one of the two right-hand turning lanes, preparatory to turning west.
What followed was the conduct that formed the crux of the fatal incident, the criminality of the respondent, the resultant sentence, and ultimately the grounds relied upon by the Crown in this appeal.
At the time when the respondent was approaching the intersection, the right-hand turning arrow was changing from amber to red. (The precise timing of the amber arrow, and its significance, is disputed, so I shall discuss it later.) The turning arrow facing the respondent was red for approximately two seconds before his motor vehicle crossed the stop line, against the red light, and entered the intersection to commence the right-hand turn into Schofields Road.
The agreed facts record that the respondent was familiar with that intersection; was aware that it had traffic lights; nothing obstructed his view of the lights when he went through the intersection; he accepted that there were three red arrows facing him at the time he went through the intersection; despite having been on a Bluetooth phone, he could not point to anything that would have led to him being distracted; and he could not point to any explanation as to why he crossed the stop line at that time.
A witness who was an off duty police officer observed the respondent's vehicle enter the intersection "quickly", although it was made clear by the Crown at first instance that speed was not relied upon as an explicitly aggravating feature against the respondent.
As the Triton approached the intersection from the north, a motorcycle being ridden by Mr Aaron Vidal (the deceased) was approaching it from the south. The motorcycle was to the left of lane 1 travelling north (in other words, the most westerly lane). The deceased was "lane filtering"; by that I mean the tactic commonly adopted by motorcyclists of passing through a line of stationary cars by travelling beside or between them. Although that manoeuvre can be done lawfully, his Honour found that the deceased was doing so contrary to the road rules, and that finding was not impugned on appeal.
There was also evidence from a bystander parked at the traffic lights waiting to travel north that the deceased was travelling at a reasonable speed, and "opportunistically" took advantage of the change in the lights to travel through the intersection without needing to stop. Again, that is a tactic commonly adopted by car drivers and motorcyclists lawfully when they have the chance to do so.
As I have said, the motorcycle of the deceased was positioned on the left-hand side of lane 1 of Windsor Road travelling in a northerly direction. The deceased entered the intersection with a green traffic light in his favour; in contrast, it is to be recalled that there was no dispute that the respondent crossed the stop line and turned right against a red arrow.
As the Triton completed its right-hand turn, the motorcycle collided with the side of it at the point of the front nearside passenger door and rear tray.
Tragically, the deceased was killed as a result of the collision. A large number of very moving victim impact statements read in the proceedings on sentence demonstrated the immense pain that has been caused by his loss.
Paragraph 19 of the agreed facts is entitled "Criminal Liability". It broadly recounts the events summarised by me above. Its final sentence reads as follows: "[t]he offender's actions in driving through the intersection against a red traffic signal constitutes [sic] driving in a manner dangerous to another person or persons."
There was no question of the collision having been caused by mechanical defect to the Triton, or intoxication by any substance on the part of the respondent.
As for undisputed subjective findings made in the remarks on sentence, they were as follows.
The respondent was a person of "high good character". At the time of sentence, he was aged 37, and therefore had "a considerable bank of good character" to rely upon. His character was demonstrated by his lack of criminal convictions, and the very large number of character references tendered from disparate sources.
The respondent had pleaded guilty in the Local Court, and was entitled to a utilitarian discount of 25%.
The offender was sincerely and profoundly remorseful, a proposition established by many sources, including his own evidence on oath by affidavit and in the witness box. His Honour regarded it as a degree of remorse rarely seen in a career in the law that had extended well over forty years.
The family of the respondent was originally from Hungary. Born in Adelaide, he moved with his family to Sydney when he was three years old. He completed an apprenticeship as a mechanic, and then moved on to skilled work involving escalators, automatic doors, and, by the time of sentence, solar energy installation. He had enjoyed two significant romantic relationships, his current one having existed for nine years. He had adopted the son of his current partner from a previous relationship. He had never been burdened by dependencies or addictions on alcohol, prohibited or prescribed drugs, gambling, or anything else.
Although there were some entries on his traffic record, they were relatively minor, sparse, and needed to be reflected upon in the context of the amount of driving that the respondent did for work: up to 45,000 km a year. He had never been involved in a major traffic accident before this collision.
The offence had placed great strain upon the family of the respondent. The family savings had been spent on legal fees and living expenses, bearing in mind that the respondent had been psychologically incapable of working since the offence.
As for his prospects of rehabilitation, the sentencing judge accepted the proposition in a Sentencing Assessment Report that the respondent presented a low risk of reoffending.
The respondent had attended the Traffic Offenders' Program, which he had completed to "an outstanding standard".
An eminent forensic psychiatrist spoke of his "long-term prospect" as good, and gave reasons for that opinion.
The respondent had also been undertaking regular psychological counselling, in order to address the Post Traumatic Stress Disorder (PTSD) that he had suffered since the offence. Speaking generally about the mental health of the respondent, the psychiatrist had diagnosed him with a depressive illness and PTSD.
The psychologist who had regularly seen the respondent between the collision and the proceedings on sentence reported that the he had spoken of being consumed by the accident "in every sense of the word day and night", and had told her that his mind was "constantly focused on this tragedy".
The sentencing judge spoke of the pandemic that began in early 2020, and was satisfied that the necessary response to it by the NSW Department of Corrective Services would increase the hardship of a sentence of full-time custody.
His Honour was also of the opinion that the psychological conditions of the respondent would not only further increase that hardship, but would in turn be exacerbated by imprisonment, not least by the unlikelihood of receiving full-time psychological counselling in prison.
His Honour referred to the suffering of the family of the deceased as "immeasurable" and "forever lasting". He also spoke of the effects that the offence had had on the family of the respondent, including adverse publicity, and the mental and emotional collapse of the respondent. The sentencing judge also noted that, if the respondent were incarcerated, his family would suffer "an extreme financial challenge". His Honour remarked that that would be taken into account "in the general mix of subjective factors".
Finally with regard to such factors, the sentencing judge spoke of various aspects of the behaviour of the media towards the respondent and his family, not least an 11-year-old boy, as having "caused public humiliation and vilification to the extent that it has had a significant psychological effect on the offender", and took it into account, to some degree, as extra-curial punishment. Grounds of appeal
The grounds of the Crown appeal are: 1. That his Honour erred by making findings of fact that were not reasonably available on the evidence, namely: 1. His Honour's findings as to the timing of events leading up to the collision were erroneous; 2. His Honour erred in disregarding the respondent's inattention during the time that the amber light was illuminated; 3. His Honour erred in finding that the respondent was inattentive for a two-second period; and 4. His Honour erred in finding that the respondent did not deliberately go through the red light. 1. That his Honour erred in his assessment of the respondent's moral culpability. 2. That the sentence is manifestly inadequate.
It was accepted by the Crown at the hearing of the appeal that the success of grounds 2 and 3 depended "fundamentally" on the success of ground 1; in other words, unless this Court were satisfied that there had been at least one material and appealable error of fact in the remarks on sentence, it could not be said that the assessment of moral culpability was erroneous, nor that the sentence imposed was manifestly inadequate (AT 2.12 ff).

Ground 1: That his Honour erred by making findings of fact that were not reasonably available on the evidence.

In order to explain the basis of this ground, it is necessary for me to set out some further aspects of the proceedings on sentence, and some findings of fact in the remarks on sentence that are disputed.

Aspects of proceedings on sentence

As I have shown, the criminal liability of the respondent was said in the agreed facts to have been founded upon him disobeying a red turning arrow, with fatal consequence. But that bald statement did not include agreement as to how and why the respondent drove his vehicle in that way, and those matters were a matter of sharp dispute at first instance.
In written submissions for the Crown at first instance, it was said that "the present case is not one of momentary inattention reflective of a low-level of moral culpability. The offender's driving constituted a deliberate action of turning against a red arrow. Whilst 2 seconds in and of itself might seem like a short period of time, in the context of the phasing of lights, after a red light has illuminated, the significance of 2 seconds is greatly increased." (AB 223.9).
In evidence-in-chief of the respondent on sentence, he was asked by his counsel about an interview in which he had engaged with police, and extracts of which appeared in the agreed facts (AB 248 ff). He confirmed that, when he had spoken to police, he had believed that he had the benefit of an amber light when he entered the intersection. It was once he had passed the stop line that he had realised that it was no longer amber but red. At that stage, beyond the stop line with a red light against him, he did not know whether to reverse or proceed, and eventually made a "quick decision" for the latter. It was only much later, when the police had shown him the footage, that he had realised that he had crossed the stop line against a red arrow.
In cross-examination (AB 253 ff), he agreed that he had remembered an amber light facing him. He did not recall slowing down or accelerating. He was asked to watch the dashcam footage from the witness box, but in general was not able to discern much from it.
At one stage, he agreed that he thought he could see in the footage the left brake light of his vehicle illuminate at a point when he had not yet crossed the stop line (AB 260.21).
He agreed that, bearing in mind that the amber light gave warning of an impending red light, he had not prepared himself sufficiently to stop at the stop line (AB 262 16 ff).
When asked whether he had taken a "calculated risk" he denied that he had done so when he pressed the brake pedal, but agreed that he had done so once he had passed the stop line (AB 263.07). He gave evidence that he must have felt that the amber light had not been illuminated for very long, because he had decided to proceed through it.
The following propositions were squarely put to the respondent in cross-examination (AB 264.26 to .36): Q. I'm suggesting to you that you took a calculated risk. You were trying to run that red light? A. I was not trying to run that red light. Q. I'm suggesting that you saw that red arrow and that it had been a red arrow for two seconds, before you passed that solid line? A. I would disagree. Q. And that you had applied your brakes within one second of that red arrow? A. I didn't purposely run the red light. I would not do that generally and especially with my son in the car.
Having been shown the footage for quite some time in the witness box, he maintained the position that he had believed at the time that he had entered the intersection with an amber light. Having said that, he had no explanation as to how it was that he had actually entered it against a red light (AB 267.39).
The relevant portion of the cross-examination about the facts of the offence concluded with the respondent unable to explain why he had not observed the red turning arrow before he crossed the stop line.
In re-examination, the respondent confirmed his opinion that, when the brake light was illuminated, he may well have been slowing down in order to make the turn.
In final oral submissions (AB 286 ff), the Crown prosecutor said "Your Honour, this isn't a case of momentary inattention, it would be momentary inattention if the circumstances were as the offender said they were, they were not…"
Later it was said that "[h]e denies the application of brake lights being connected to the red light that he saw. He must have been oblivious as to the true state of affairs as to what presented him. Now there's just no explanation before the Court as to how that came about."
Later again it was submitted that "[h]e doesn't really attempt to slow down much at all, he has a significant distance by which to observe those lights, he doesn't drive his vehicle in a manner such that he can stop safely at those red lights when they become red, in fact two seconds passed before he passes that southern line and he continues committing to that turn, there's no real reduction in speed. That was what I wanted to say about the circumstances." (AB 209.09)
Subsequently, the submission for the Crown was that "[t]his is not a case of momentary inattention, although I realise that that's not determinative, but it really doesn't have that flavour, this case is about the offender, as I put to him in cross-examination, not having a good and bad decision, this isn't about having an error in judgment, this was always a bad decision, assuming that he was fully aware of what was going on around him and it seems that he was not…" (AB 291.42)
In discussing comparative cases, the Crown prosecutor drew a contrast between "a calculated risk as opposed to simply something such as momentary inattention", and later submitted that the sentencing judge would find "that it's not one of momentary inattention… It's not an unfortunate incident; it's not an error in judgment; it doesn't have that feature and it's not one of momentary inattention." (AB 293)
Finally on this topic, the Crown prosecutor submitted that "[t]he lack of attention to lights, it was suggested that was a momentary aspect but I can see your Honour is aware the Crown says it's the lead-up to the lights that removes it from being a momentary thing…" (AB 296.45)

Disputed portions of remarks on sentence

In the remarks on sentence, the following disputed findings of fact were made.
As the respondent approached the intersection, he braked slightly, as shown by the illumination of the left hand brake light of the Triton. The initial impression of the sentencing judge from watching the footage was that it was done so that the right-hand turn could be completed. Having seen and heard the respondent give evidence, and having watched the footage more than thirty times in Chambers, that initial inference was confirmed: his Honour rejected the Crown thesis that the respondent braked momentarily because he had seen the red light, and then decided to proceed through the intersection in any event. Approaching that Crown thesis as an obvious aggravating feature, the sentencing judge made it clear that he was not satisfied of it to the criminal standard, and therefore rejected it for the purposes of sentencing.
The red arrow activated "approximately two seconds" before the respondent entered the intersection.
Thereafter, the sentencing judge set out his detailed determination of the timing and sequence of events. It was as follows: 26(d) Whilst the settings of the dash cam may not record the correct time, it does provide a basis for determining the timing and sequence of events leading up to and occurring at the time of the collision. They are: (i) 15.40.58, the relevant traffic light was green. (ii) 15.40.00 [scil. 15.41.00], the light had turned orange. The motor vehicle ahead of the offender had commenced to turn right. (iii) 15.41.02, the red traffic light activated. At this stage, the right turning vehicle ahead of the offender's vehicle had commenced crossing in front of the far left northbound lane. (iv) 15.41.04, the offender's vehicle had commenced crossing the white line in his lane and commenced to turn right into the intersection against the red light. The front vehicles in the three northbound lanes remained stationary. This is consistent with the offender's evidence in crossexamination. He said the traffic had not moved so he had continued into the turn. (v) 15.41.07, as the offender's vehicle was about to cross in front of the stationary vehicle in the far northbound lane, I observed, consistent with the witness' statements, the victim's motor cycle lights suddenly appear for a split second under-passing the passenger side of the northbound vehicle stationary in the far left lane. The victim's motor cycle appeared to be travelling quickly under passing this vehicle in the limited space between the vehicle and the traffic island. The offender's vehicle proceeded through the right hand lane driving across the front of the far left lane obscuring the stationery vehicle in that lane and the victim's motor cycle light. (vi) 15.41.08 the offender's vehicle momentarily shuddered towards a northerly direction as a result of the impact of the victim's motor cycle. Thereafter the offender's vehicle completes the right hand turn and the victim and his motor cycle can be seen lying on the road.
Later in the remarks on sentence, the sentencing judge recorded the submission of the Crown as being "not one of momentary inattention reflective of a low level of moral culpability but that the offender's driving constituted a deliberate act of turning against a red arrow." (AB 23)
His Honour then recounted that the respondent had told the police that he believed that he had the benefit of an amber light, and that the arrow had turned red as he commenced to execute the right-hand turn. It was also recounted that the respondent had come to accept that that belief was wrong. His Honour remarked that: "The evidence does not support that belief although I accept it was honestly held. I have had the benefit of seeing and hearing him as he gave evidence and I accept he is an honest witness… He cannot explain his inattentiveness for the two second period when he did not notice the traffic lights had turned red. An issue is whether that period of two seconds is a momentary lapse on his behalf. The inattentiveness and ultimate collision has occurred over a moment compromising [scil. comprising] of several seconds and ultimately a split second.… He did not see the warning by red lights requiring him to stop.… He was inattentive for 2 seconds and cannot explain why."
With regard to this question of the mechanism of the collision, the sentencing judge ultimately found "[t]he offender is a person of good character and he gave evidence on oath. He impressed me as an honest witness and that impression is supported by the numerous referees who provided testimonials tendered in this hearing. On that basis I propose to accept his explanation and [defence counsel's] submission. I am satisfied that he did not deliberately or intentionally ignore the red lights warnings." That was the final factual determination made in the remarks on sentence under the heading "objective seriousness of the offence".
Finally with regard to disputed findings, with regard to the moral culpability of the respondent the sentencing judge referred to a number of authorities of this Court. His Honour confirmed the findings that the respondent "had an honest but unreasonable belief that the lights were amber"; "[t]he offender for unknown reasons over a period of two seconds failed to see the traffic lights had turned red"; "[h]e did not intentionally or wilfully ignore the red light or its signals"; after having crossed the stop line and realising the light was red "he made a split second decision and proceeded into the intersection. The oncoming traffic was still stationary"; and the "period of dangerousness" was constituted by "the period of seconds after the breach of driving against a red light" (AB 31).
His Honour went on to say that the offending behaviour could not "be characterised as momentary inattention/misjudgement but it lies towards the lower limits of the continuum referred to by Simpson J" in R v Khatter [2000] NSWCCA 32 at [31].
Ultimately, having re-emphasised the findings about how the collision came to occur, and the fact that "his inattention could not be displayed [sic] as "momentary" but it falls just above that accepted description", his Honour assessed the moral culpability of the respondent as "towards the lower end". Grounds of Crown appeal 1. That his Honour erred by making findings of fact that were not reasonably available on the evidence, namely: 1. His Honour's findings as to the timing of events leading up to the collision were erroneous; 2. His Honour erred in disregarding the respondent's inattention during the time that the amber light was illuminated; 3. His Honour erred in finding that the respondent was inattentive for a two-second period; and 4. His Honour erred in finding that the respondent did not deliberately go through the red light.

Submissions of the Crown about ground 1

In written submissions, it was said that error in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40 could be established by reference to the findings of fact impugned as not reasonably open in the sub-grounds.
The Crown submitted that the only findings reasonably open to his Honour, on a correct understanding of the evidence, were either that the respondent was aware that the turning arrows were red when he entered the intersection (thereby rendering his conduct deliberate); or, absent that advertence, if the respondent was not aware that the arrow was red when he entered the intersection, "then he must have been inattentive for longer than two seconds, namely for all or most of the period when the lights were amber".
I proceed to summarise in more detail what was written in support of each of the sub-grounds.
Mistake as to the facts (sub-ground 1a): it was submitted that the sentencing judge was mistaken as to the timing and sequence. For example, his Honour found that at 15:41:00 "the light had turned orange"; it was submitted that that finding, and the finding as to when the arrow had previously been green in favour of the respondent, was simply mistaken.
It was submitted that the dashcam footage actually shows that: at 15:40:57, the right arrows turn amber; at 15:41:02 the right arrows turn red; at 15:41:03 the Triton's left brake light is illuminated; at 15:41:04 the Triton crosses the stop line with the brake light still illuminated; and at 15:41:05 the brake light of the Triton goes out and it continues the turn.
It was submitted that as a consequence of that incorrect understanding of the evidence, the sentencing judge's finding that the lights turned amber at "15:41:00 was inaccurate by three seconds".
It was further submitted that the footage showed that the lights were amber for about 4 to 5 seconds, then red for a further 2 seconds, before the respondent entered the intersection. It was therefore submitted that there was a total period of 6 to 7 seconds "in which the respondent should have observed the lights and prepared to stop".
It was submitted that the findings of fact of the sentencing judge to the contrary constitute a material error that vitiates the sentencing discretion, due to the role of the precise timing of the lights and his driving in enabling one to draw inferences about the respondent's state of awareness and state of mind at the time of the offence.
Failure to take into account the respondent's evidence regarding the amber light (sub-ground 1b): the Crown relied on the cross-examination of the respondent to advance this sub-ground. It was submitted that it demonstrated that he could not have been paying attention "because he could not say when he first saw the amber light" and because, it was asserted, he incorrectly formed the view at the time that "it had just turned amber and I was close to the line". It was also noted that the respondent had an admittedly unobstructed view of the lights, and yet, on the respondent's own evidence, he made no attempt to slow down or stop.
It was submitted that this issue was certainly raised in the oral submissions of the Crown at first instance, and his Honour had expressed his understanding of its submission that the misconduct in the "lead-up to the lights" was more than momentary.
The asserted 6 to 7 seconds of alleged "abject inattention" on the part of the respondent was said to be significant to the true assessment of the length and degree of the respondent's dangerous inattention at the crucial time.
Finding not open that the respondent was inattentive for 2 seconds (sub-ground 1c): the Crown submitted that, having regard to the asserted errors outlined above, it was not reasonably open to the sentencing judge to find that the respondent was inattentive for only two seconds. The Crown referred to his Honour's findings that the respondent "was inattentive for two seconds and cannot explain why"; the fact that his Honour was not satisfied that the failure to observe the change in traffic lights for two seconds was "intentional, wilful or reckless"; the acceptance of the explanation of the respondent; and the finding that his inattention, bearing in mind that the red light was illuminated for two seconds before he crossed the stop line, could not be described as momentary "but it falls just above that accepted description" (ROS [71]).
It was submitted that at no stage in the Court below did the Crown prosecutor accept or concede that the respondent had been inattentive for nothing more than two seconds, and that the respondent's evidence about whether and when he had seen the amber light was challenged in cross-examination.
Finding not open that the respondent did not "run the red light" (sub-ground 1d): it was submitted that the sentencing judge was not satisfied beyond reasonable doubt of the Crown's submission that the respondent deliberately entered the intersection against the red light; to the contrary, his Honour accepted the respondent's version that he thought the light was amber when he entered the intersection and did not notice it was red until he was past the line.
The Crown acknowledged that the sentencing judge had the advantage of seeing the respondent give evidence. But the Crown submitted that the "objective evidence" from the footage and other evidence contradicts the respondent's account, and notwithstanding the sentencing judge's assessment of the respondent as an honest witness, the proposition was that there was a distinction between what he knew or was aware of at the time, as opposed to what he believed after the event upon "a mental reconstruction of events".
The objective evidence and events to which the Crown referred included: the respondent had an unobstructed view of the lights; his own evidence was that he was not distracted by anything in particular; the lights turned amber when the respondent was greater than five "road arrow lengths" from the stop line; the turning arrows had been amber for 4 to 5 seconds as the respondent approached the intersection; the turning arrows turned red; within 1 second of the arrows turning red, the respondent applied his brake for a period of about two seconds; and an off-duty police officer observed the Triton entering the intersection quickly.
In oral submissions about ground 1 as a whole, it was confirmed that "the nub of it is that his Honour in effect made these errors, and it had obvious and tangible consequences for the assessment of the objective seriousness and moral culpability" (AT 2.21).
It was said that the context of the driving of the respondent leading up to the intersection needed to be considered, not just the specific fact that the respondent entered an intersection against a red light and fatally proceeded within it.
It was said that, in the oral submissions at first instance, the Crown had certainly relied upon the inattention to the preceding amber light as part of the offending.
It was said that the amber light was illuminated for approximately five seconds, and the inexplicable failure of the respondent to appreciate that fact and slow down in preparation for a red light was part and parcel of the offence.
In short the submission was that, even if one rejected the thesis of deliberately "running" the red light, this was a case of inattention for seven seconds, not for a moment or anything like it.
It was said that, fundamentally, the point of distinction between the Crown on appeal and the findings of fact made by the sentencing judge was the proposition that the fatal mistake extended over a number of seconds, rather than a couple of seconds.
It was accepted that the primary position of the Crown at first instance, as demonstrated by the written submissions there, was that there had been a deliberate, intentional flouting of a red light. But it was said that the oral submissions showed that there had been a "fall-back position"; namely, that there had been "abject inattention in terms of the approach".
It was said that sub-ground 1(d) had been deliberately framed in the negative because "the challenge is that it was not open to find, positively find, that he did not run the light… what I was saying is that it is not open to make the negative finding."
The submission was that the footage was not, in truth, wholly consistent with the evidence of the respondent, with the effect that it could not corroborate it, and the implicit finding of the sentencing judge that it did was "simply not available".
Finally, it was clarified that the sub-grounds that are most crucial to resolution of the appeal are the first two in ground 1.

Reliance on material not placed before sentencing judge?

As a preliminary matter, I discuss the material upon which this ground is to be decided.
This Court was of course provided with a disc that contains the footage, it having been an exhibit on sentence. But the Crown also appended to its written submissions stills derived from that footage, with captions said to summarise what they show. That was unorthodox, because those stills were never placed before the sentencing judge.
They were not objected to by counsel for the respondent. If they had been, in my opinion there would have been a serious question about their admissibility, because they were certainly available to the Crown at first instance, but not relied upon then; in other words, it would be very difficult to characterise them as "fresh", as opposed to merely "new". In any event, counsel for the respondent was content for them to be referred to "as an aid, but not to supplant the footage" (AT 7.14).
I have watched the footage many times on more than one device, and have paused it at certain points repeatedly. Because this Crown appeal is based upon findings of fact made by the sentencing judge said not to have been reasonably open, I have focused on the exhibit, not the purported aid to its understanding that was not before the judicial officer whose assessment is now impugned. Finally on this point, I should say that many of the assertions contained in the captions to the stills are unable to be discerned by me, not only in the footage, but indeed in the stills themselves.

My own observations

As for my own observations of the footage, they are as follows: 15:40:27 - at the commencement of the footage, the daschcam car is stationary behind the Triton, before the two of them turn south and approach the intersection. It appears that the headlights of the dashcam car illuminate more of the left-hand side of the rear of the Triton than the right. The possible importance of this observation of mine will be explained later. 15:40:53 - the Triton, travelling south, moves to the right turning lanes. I am unable to see the state of the right turning arrow at that stage. At the same time, or very shortly beforehand, the left brake light of the Triton briefly illuminates as it changed lanes? 15:40:55 - the Triton passes over the first of a number of right turning arrows painted on the roadway. 15:40:56 - the rear right hand indicator of the Triton illuminates as it continues in the right turning lanes. 15:40:57 - the right turning light is amber? 15:40:59 - the Triton passes over the second painted arrow. 15:41:00 - the Triton passes over the third painted arrow. 15:41:02 - the left hand brake light of the Triton illuminates for a moment? 15:41:02 - 03?--the illuminated right turning arrow changes from amber to red. 15:41:04 - the Triton crosses the stop line, against the red arrow. 15:41:06 to 08 - the Triton is turning right within the intersection. 15:41:09 - the sound of the fatal collision is heard.
A number of aspects of the above are important.
First, and appreciating the position of the parties at first instance and on appeal, and the concession seemingly made by the respondent in the witness box about the brake light, I think it is conceivable that its purported illumination was caused by the brighter headlights on the left-hand side of the dashcam car, and not by the brake pedal being pressed at all. That is not only based on my observation of the state of affairs right at the start of the footage. It is also based on the absence of evidence of any fault with regard to the right hand brake light of the Triton, which does not appear to be illuminated at the relevant times. And it is furthermore based on the lack of clarity in the footage, in particular with regard to illuminations of a number of different lights.
That is not to say that I am affirmatively satisfied of that thesis, or anything like it. But it does give an example of the difficulties of observation and interpretation to do with the footage.
Secondly, I believe that one can reasonably readily see when the right turning light turns from amber to red, more by its change of position upward than from any change of colour. In contrast, having watched the footage many times, and contrary to the captions of the stills derived from the footage, I cannot see with any clarity the point in time when the right turning light changed from green to amber.
Thirdly, as my use of question marks and times that are imprecise with regard to seconds seeks to convey, I am incapable of coming to absolutely precise findings about what the footage actually shows about every aspect of the behaviour of the respondent in his driving of the Triton at all of the crucial times.

Consideration

Taking into account the above, in my opinion, no finding of fact that was not reasonably open to the sentencing judge has been demonstrated by the Crown. I say that for the following reasons.
First, the primary dispute between the parties was whether the respondent had deliberately decided to proceed through a red light, or done so accidentally. So much is clear from the written submissions of the Crown at first instance, which were never withdrawn; the stark propositions put to the respondent in cross-examination; and the understanding of his Honour of the primary issue expressed in the remarks on sentence. Whilst it is true that the Crown at first instance expanded its case somewhat towards the end of oral submissions, as explained in this Court, that was very much a fallback position.
In other words, the primary dispute was whether this was a flagrant decision to disobey a red light, or a tragic mistake. It was not about the sentencing judge being called upon to discern over how many seconds - perhaps three, perhaps seven--the respondent may have been inattentive.
Secondly, as for that primary dispute, it was well open to the sentencing judge to reject the proposition that the respondent - a man of unblemished character; a good driving record; profound remorse; and who had had his young child in the Triton with him - was committing perjury when he denied that this was anything other than a tragic miscalculation.
Thirdly, with respect, the thesis based on error in positive satisfaction of a negative proposition on the part of the sentencing judge was, as the Crown conceded in this Court, convoluted.
Speaking more generally about that, the simple fact was that deliberately flouting the red arrow would have been a matter in aggravation, above and beyond the agreed facts, that needed to be proven beyond reasonable doubt on sentence. It was not. No subtle analysis of the phraseology of his Honour can escape the onus and standard of proof upon the Crown with regard to aggravating matters on sentence, and the consequence that, the Crown thesis not having been established, the respondent was entitled to be sentenced on the lesser basis.
Furthermore, the fact that it was not found to be proven, cannot be successfully impugned on the material placed before this Court, primarily because an important part of its rejection was the presentation of the respondent in the witness box, a factor completely denied to the members of this Court.
Fourthly, as I have said, to the extent that the Crown seeks to impugn the findings of fact by the sentencing judge about when the right turning arrow changed from green to amber, and the length of time during which it was amber, on the basis of the footage I cannot come to any firm view contrary to that of the sentencing judge. Furthermore, as I have said, I think there is a serious question whether all of the theses based on illumination of the brake light of the Triton are well-founded.
In other words, I am in no position to say that the sentencing judge came to a finding that was not reasonably open about any of those matters.
Fifthly, it is true that the sentencing judge focused upon the two seconds between the time when the right turning arrow turned red, and the respondent crossed the stop line. That is understandable, because that is indeed the period during which the driving of the respondent became truly dangerous, a potential that was tragically realised. It is also, of course, the focus of the crucial sentence in the crucial paragraph of the agreed facts. But the repeated references by his Honour to this case not being a true example of "momentary inattention" demonstrate that the sentencing judge was not overly focused upon that period.
Furthermore, by definition, on every occasion when a driver accidentally passes through a red light, there has been a preceding period of miscalculation about, or inattention to, the amber light. The proposition that the sentencing judge was unaware of that common sense fact is, with respect, unpersuasive, especially since the sentencing judge had watched the footage so many times before delivering the remarks on sentence.
Finally, as I have shown above, the sentencing judge found that "the inattentiveness and ultimate collision has occurred over a moment comprising of several seconds and ultimately a split second" (emphasis added). I believe that that reference may support the proposition that the sentencing judge appreciated that the obvious concomitant of the finding that the respondent crossed into an intersection against a red light was preceded by a period of inattention to the amber light.
In summary: the primary evidence in the form of the footage is contestable, based as it is upon one's own subjective observation and interpretation. The sentencing judge rejected the primary case for the Crown, which bore the onus about it to the criminal standard. His Honour was well aware that the whole defence thesis of what had happened was based upon a failure to appreciate the true state of the traffic lights. His Honour then made findings in accordance with the proposition that this was a tragic accident. Even then, his Honour refused to characterise the accident as an example of true "momentary inattention". None of those findings have been shown to be erroneous
For those reasons, I would reject ground 1. Ground 2: That his Honour erred in his assessment of the respondent's moral culpability.
In light of the way the Crown structured its presentation of the grounds, and the explicit concessions made on the hearing of the appeal as to the success of grounds 2 and 3 depending as a matter of logic upon the success of ground 1, this ground cannot succeed.
That is because, accepting the proposition that this tragic fatality was the result of a concatenation of factors, the central ones of which were driver miscalculation and inattention that extended over a period of seconds, and bearing in mind the far more morally blameworthy ways of driving that the offence can encompass, the assessment of moral culpability being "towards the lower end" made by the sentencing judge is unimpeachable.
I would not uphold ground 2. Ground 3: That the sentence is manifestly inadequate.
For the same reasons, including the correct concession of the Crown about the logical connection between its complaints on appeal, this ground must fail as well.
That is also because, despite the enormity of the consequence of the offence, it was well open to the sentencing judge to impose an ICO, in light of the maximum penalty for the offence, the objective findings about how the collision happened that I regard as unexceptionable, and the extremely powerful subjective case put forward by the respondent.
That proposition is bolstered not only by statistics about sentences imposed at first instance placed before us, but also by decisions of this Court. That material shows that, in circumstances such as these, a sentence that does not feature full-time imprisonment can be available to a sentencing judge.
I would not uphold ground 3.

Residual discretion

Because of my firm view that no basis for success of the Crown appeal has been established, I shall not pause to discuss whether the Crown has established that the residual discretion should not be exercised in favour of the respondent.

Order

I propose the following order: 1. Crown appeal against sentence dismissed.

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Crimes Act 1900(NSW)s 52A(1)(c)

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