R v Davies

CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Pyritz CCA 23.11.98 DECISION : Leave to appeal against sentence granted.; Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60500/99 SHELLER JA HULME J DOWD J

1 SHELLER JA: I have had the benefit of reading the judgments prepared in draft by Hulme and Dowd JJ. For reasons given by Hulme J, I agree that the appeal against conviction should be dismissed. 2 The stark facts of this case are that the appellant illegally drove through a red traffic light at a busy intersection where traffic in the lane to his right had stopped and at such a speed that he was unable to avoid hitting a pedestrian crossing the road in the pedestrian crossing. The pedestrian was a teenage school girl. She was thrown in the air by the impact and killed. 3 In his remarks on sentence, Judge Patten was satisfied that the appellant's conduct in driving through a red light into a pedestrian crossing in the circumstances constituted a piece of grossly irresponsible driving. This conclusion was clearly open. The appellant gave no evidence at the trial or on sentence. In his record of interview, he said that he was travelling at 60 kilometres per hour and as he got to the lights, the light was green. He saw a girl running from the right hand side, he turned the wheel to the left to swerve and applied the brakes. By the time he stopped the vehicle and turned around, the girl was lying on the ground and he ran back and tried to offer assistance. He said he was first aware that the light was green about 40 metres from the traffic lights and it did not change. 4 This record of interview was before the jury. Palpably the jury did not believe it. Why the appellant drove in such a senseless fashion through the red light cannot be known. But there is nothing to suggest that it was as a result of momentary inattention or misjudgment; compare R v Jurisic (1998) 45 NSWLR 209 at 231. The appellant pleaded not guilty and at no stage expressed to the sentencing Judge any contrition or remorse. Appropriately, the sentencing Judge took account of the evidence of other witnesses to find that the appellant was remorseful. These and other matters the Judge took into account in sentencing the appellant. I am conscious of the careful evaluation of these matters and other matters to which Hulme J has referred in coming to the conclusion that the sentence imposed is so unreasonable or unjust that this Court may infer that in some way there has been a failure properly to exercise the sentencing discretion; compare House v The King (1936) 55 CLR 499 at 505. I am not so persuaded. The purpose of s52A of the Crimes Act 1900 is to impose, through the courts, severe punishment for dangerous driving which kills. In Jurisic at 227 the Chief Justice said that the level of community concern about the conduct proscribed by s52A must be reflected in the sentences which trial courts impose. I see no reason in this case not to defer to the trial Judge's response to the appellant's conviction for the offence prescribed by s52A taking account particularly of the need for general deterrence. 5 In my opinion, and for the reasons set out by Dowd J in his judgment, leave to appeal against sentence should be granted but the appeal should be dismissed. 6 HULME J: On 12 July 1999 the abovenamed Appellant was convicted of a charge that on 28 October 1996 at Sylvania he drove a utility motor vehicle when it was involved in an impact occasioning the death of Natalie Martyn and at the time was driving the vehicle in a manner dangerous to another person or persons. 7 On 27 August 1999 Judge Patten sentenced the Appellant to imprisonment for a minimum of 18 months commencing on 27 August 1999 and an additional term of 18 months commencing on 27 February 2001. 8 The central issue in the trial was whether the Appellant drove through a red light at an intersection and pedestrian crossing. 9 The only issue raised on appeal is whether the verdict of the jury was, having regard to the evidence, unreasonable. The submission made on behalf of the Appellant is that it is a reasonable possibility that the traffic control light facing the Appellant at the time was green and therefore, that "there is a significant possibility that an innocent person has been convicted" - M v The Queen (1994) 181 CLR 487 at 494. 10 In this case the evidence certainly contained discrepancies, but the question is whether they were such as could not be resolved by the jury, for example, preferring some witnesses to others. 11 An appreciation of the evidence of those at the intersection at the time of the collision requires an understanding of the features of the intersection and of the operation of the traffic lights there. 12 The intersection was that of Port Hacking Road which runs north and south and Melrose Avenue which runs east and west. The Appellant was driving south in Port Hacking Road. There is a large traffic island running north and south in the middle of the intersection and traffic in Melrose Avenue travelling west is obstructed by this island and must turn left i.e. south. Traffic in Melrose Avenue travelling east towards the intersection may turn north or south into Port Hacking Road. The colour of the traffic light facing vehicles in that part of Melrose Avenue said nothing about the colour of the traffic lights facing vehicle south-bound in Port Hacking Road. 13 On the northern end of the intersection in Port Hacking Road there are three traffic lanes for traffic travelling north, a median strip and three further traffic lanes. Two of these run to the east of the traffic island to which I have referred, permitting traffic to continue to the south or turn left into Melrose Avenue. The third of these traffic lanes diverges right and runs between the median strip in the centre of Port Hacking Road and the traffic island. Vehicles travelling south but wishing to turn west into Melrose Avenue use this third lane. 14 The pedestrian crossing relevant to the present case runs from the north-west corner of the intersection to the traffic island, crossing the three north bound lanes in Port Hacking Road and this third lane. On the traffic island immediately adjacent to the crossing is a set of lights with a pedestrian control button and room to stand. The crossing then continues from the traffic island across the eastern two lanes of Port Hacking Road to the north-east corner of the intersection. 15 According to a surveyor called on behalf of the Appellant, the distance from the traffic control light on the north-western corner to the traffic control light on the traffic island was 17.49 metres. The distance from the north western kerb to the nearest kerb of the traffic island was 14.75 metres. The traffic island was 2.69 metres wide from the centre line of one crossing to the centre line of the other. The distance from the traffic control light on the island to the control light on the north-eastern corner was 8.27 metres. The distance from the eastern kerb of the traffic island in the middle of the crossing to the eastern kerb was 6.2 metres. 16 Other figures for some of these distances were given by a police officer called by the Crown but there was no radical difference between these witnesses and in any event there does not seem to be any doubt that the surveyor's figures are more accurate. 17 Pedestrians could stop the traffic in Port Hacking Road by means of buttons placed on the posts holding the lights. When this occurred, the pedestrian lights for someone moving from the north west to the traffic island had a green walk segment for between 6 and 8 seconds, depending on traffic conditions, and a flashing "don't walk" period of a further 14 seconds. At the same time the pedestrian lights between the traffic island and the north-eastern corner of the intersection had a 10 second green "walk" segment followed by a 10 second flashing "don't walk" segment. At the end of the respective flashing "don't walk" segments, "don't walk" would show continuously and the corresponding light controlling traffic flow would show green. Thus for a period of up to 2 seconds, there could be a green light for traffic travelling south in Port Hacking Road while the "don't walk" signs western side of the road were flashing and north-bound traffic was stopped. There were other circumstances when the light facing north-bound traffic could be red while that facing southbound traffic was green but if the light facing north-bound traffic was green, then so would be the light facing south-bound traffic. The timing of these pedestrian lights was changed on 12 August 1997 to increase the total period available for crossing by 9 seconds. 18 The RTA timing of lights proceeds on the basis of a walking speed of 1.2 metres per second, a speed at or above which 85% of the population walk. 20 seconds would thus allow (just) a full crossing of Port Hacking Road kerb to kerb if the pedestrian started immediately the green "walk" sign flashed. At the time of the accident with which the proceedings are concerned, the timing of the lights had been designed to allow movement from one footpath to the traffic island and then, on a subsequent operation of the lights, movement from the island to the other footpath. 19 The evidence as to what occurred at about the time of the collision was provided by a number of eye witnesses. 20 A Mr Hawkins was driving a garbage truck south in Port Hacking Road. He said that when he was about 50 metres away and travelling at about 20 kms per hour he observed the light facing him was red; he slowed down and stopped just short of the pedestrian crossing in the lane to the east of, but next to, the traffic island. This lane was referred to as lane 2. He said he was stationery for about 2 seconds and saw the deceased standing on the traffic island and then step off the island in front of his truck walking east. When she was about half way across the adjacent kerb side lane Mr Hawkins saw her struck by the Appellant's utility travelling, according to Mr Hawkins, against the red light. 21 The Appellant brought his vehicle to a stop some 20 metres past the intersection against the eastern kerb and Mr Hawkins said that at the time the vehicle pulled up he saw a light in the foreground, still red. He identified this light as one on the south-east corner of the intersection. There was in fact no light there. There were however 2 lights to Mr Hawkin's right on the traffic island, one of which was in front of him.. 22 Mr Hawkins described the deceased's walk as "striding" although he said that a fraction of a second before the impact, he observed a little "stutter" in her step, as if she had seen the car coming. Mr Hawkins did not reject the proposition that the deceased was about to start running. 23 There were some inconsistencies between Mr Hawkin's evidence and statements he had made to the police and in earlier proceedings. In evidence in chief Mr Hawkins said the deceased was inside the pedestrian crossing whereas in his original statement he had said that the deceased was walking across the road at a place well south of the pedestrian crossing, i.e. more towards the middle of the intersection. He had also earlier said that the deceased started to step off the traffic island while he was still moving. Mr Hawkins did agree that certain markings he had made on a map and photographs during committal proceedings were not reliable and his evidence given earlier as to where a pole was and where the deceased crossed also answered this description and that as time went on his recollection was faulty. Nevertheless the transcript indicates that he was firm on the question of seeing a red light immediately after the accident. 24 A Mr Howle said he was driving south in Port Hacking Road intending to turn right into Melrose Avenue. He just missed the green light and had to pull up between the median strip and the traffic island. He observed the deceased to his right on the north-west corner of the intersection activating the pedestrian button. She then crossed in front of Mr Howle in a walk he described both as "normal" and "ambling". He saw her pass in front of him, pass in front of the garbage truck on his left and pass out of his sight. He observed the pedestrian light to his right flashing and while doing so heard a heavy thud to his left. He then saw the deceased being half dragged half rolling underneath the vehicle. He then had a green arrow which allowed him to proceed into Melrose Avenue. 25 Mr Howle agreed that during the committal proceedings he had said that the red pedestrian light was flashing at the time the deceased walked in front of his car. He also remembered the deceased pushing the button and waiting for the green pedestrian light. He was certain that he was watching a flashing red pedestrian light when he heard the impact and was firm that he saw the back axle of the car pass over the deceased. Mr Howle's evidence as to the movements of the deceased's body following the impact is at odds with that given by every other witness on that topic. 26 Mr Carnio was driving south in Port Hacking Road in lane 2. He saw the rear stop lights of a truck he believed to be a cement truck come on when he was about 200 metres away from it. While still about 200 metres away he then noticed the lights on the traffic island to the right of and adjacent to the truck were red also. He saw the deceased who had also been adjacent to the lights walk in front of the truck from the traffic island and then walk out from in front of the truck. Mr Carnio did not see the actual impact - he suggested that he must have closed his eyes - but he did see the deceased "flying up in the air". However, the witness strongly disagreed with the suggestion that in the seconds leading up to the impact the traffic control lights facing the Appellant were not red. 27 A Mr McPhillips gave evidence that he was stopped at a red light in Melrose Avenue on the western side of Port Hacking Road waiting to turn left when the light facing him should turn green. After being stopped for, he guessed, 15 seconds he saw the deceased standing on the traffic island, step off it, take two or a few steps and collide with a white utility. The light facing him turned green after the impact. Mr McPhillips was not aware of any other traffic travelling in the same direction as the utility in the few seconds prior to the impact. Under cross examination he said he didn't know what the lights were doing at the time of impact. Mr McPhillips's evidence says nothing about the colour of the light facing the Appellant at any relevant time. 28 A Mr Weir was also waiting at the red traffic lights in Melrose Avenue. He was waiting to turn right and south into Port Hacking Road. The light changed to green, he turned into Port Hacking Road and about 5 to 10 seconds after turning, he heard a screech of brakes and a thud and saw a white utility and a person being propelled through the air in his rear vision mirror about 30-40 metres behind him. The 5 or 10 seconds may have been after making the turn or after leaving the kerb. Given the configuration of the intersection and the operation of the traffic lights, Mr Weir's evidence also says nothing about the colour of the light facing the Appellant. 29 There were two drivers who had approached the intersection from the south. One was a Detective Senior Sergeant Bamford who had been travelling in the lane nearest the median strip. He said that he first saw the deceased when he was 30-50 metres or a bit more away from the stop line closest to him. His recollection was that at that time the traffic light facing him was green. As he approached he saw the deceased probably on, but certainly in the vicinity of, the pedestrian crossing, saw her walk onto the median strip and continue on and pass in front of a stationery vehicle although he did not know whether in lane 2 or lane 3. Her walking was purposeful and at some stage she quickened her pace. She had her head down just prior to impact. Sergeant Bamford then saw the collision with the Appellant's vehicle in lane 1 of the south-bound side of the road. 30 Sergeant Bamford's recollection is that he was virtually at the stop line of his approach to the intersection at the time of impact. He saw the deceased catapulted through the air and land on the roadway. Shortly afterwards he spoke to the Appellant and said "Don't worry, I saw what happened. She ran straight in front of you" or words to that effect. At the intersection Sergeant Bamford slowed virtually to a stop but did not know what colour the light was at the time he passed thought the intersection. 31 The second driver on the north-bound side of the road was a Mr Pearson. He was in the middle lane and when about 100-150 metres north of the intersection he observed the lights facing him change to amber and later to red. He stopped at the red light. A vehicle pulled up in each of the lanes beside him. He observed the deceased standing on the north-west corner for a second or two and then that she commenced to cross the road in an unhurried fashion. Her speed did not alter. Mr Pearson observed the garbage truck, and the deceased almost in front of it, turned his head away, looked at the light controlling him (which was still red) and looked at something on his seat and then heard a thud. On looking to his right he observed the deceased airborne. By the time he looked ahead again his light was green. 32 In his ERISP the Appellant said that when he was travelling along the road, the garbage truck was slightly in front of him in the adjacent lane, travelling at about the same speed. He travelled through the intersection every day and knew that there were lights and a pedestrian crossing there. Although he could not see the lights to his right which were obscured by the garbage truck, he could see from some 40 metres away that the set on the footpath to his left was showing green. At the time the deceased emerged from in front of the garbage truck which had slowed down, she was running and looking to he right. The Appellant denied that there was anything which had distracted him prior to the collision. 33 The evidence of Sergeant Bamford clearly argues for the conclusion that the Appellant did not drive through a red light. It was submitted that Mr Pearson's evidence was to similar effect, particularly in what was said to be its implication that the drivers he referred to in adjacent lanes drove off before him. However I am unable to see that Mr Pearson's evidence does assist the Appellant. I do not see any justification for the implication to which I have referred and there is nothing in Mr Pearson's evidence to enable one to conclude that the light facing the Appellant was green when he arrived at the pedestrian crossing. Indeed, when combined with other evidence suggesting that the inspiration for traffic lights at the intersection being red was due to enable a pedestrian to cross the road, Mr Pearson's evidence is in conflict with the Appellant's statement in his ERISP that the light facing him as he approached the intersection was green. 34 Mr Howle's evidence is to similar effect although it does not permit of any conclusion as to the situation at the actual time of impact or when the Appellant entered upon the intersection. The same may perhaps be said of the evidence of Mr Carnio although his evidence is clear that at least almost up to the point of impact the Appellant faced a red light. 35 There remains the evidence of Mr Hawkins. It is clearly to the effect that the Appellant did go through a red light. 36 Despite Mr Hawkins' acceptance that some parts of his evidence were unreliable, ultimately the question of whether he should be believed on crucial issues was a question for the jury. So was the significance of the other evidence and whether the evidence of Sergeant Bamford caused them to have a reasonable doubt. The Appellant's submission in reliance on M v The Queen that because Sergeant Bamford's evidence and perhaps some other supported the Appellant's case and tended to undermine that of the Crown, "there is a significant possibility that an innocent person has been convicted" ignores the full text of what the High Court said in the passage from which those words are taken. The full passage reads:- "If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act an to set aside a verdict based upon that evidence." - M v The Queen (1994) 181 CLR 487 at 494. 37 It is not the law that because one or more witnesses, even witnesses whose evidence is not obviously subject to criticism, give evidence indicative of innocence, this Court is bound to set aside a verdict. Although there is nothing on the printed transcript to suggest it, Mr Hawkins for example may have been a far more impressive witness on vital matters than Sergeant Bamford. The need to make full allowance for the advantages enjoyed by the jury means that, in the circumstances of this case, this Court is in no position to substitute its view for that of the primary tribunal. 38 In any event, I am by no means persuaded that the evidence of Sergeant Bamford does not have its own problems. It is impossible to reconcile a number of the aspects of his evidence with that of many of the other witnesses. His evidence of seeing a green light and of the position of the deceased when he was 30-50 metres away from the intersection falls into this category. If Sergeant Bamford is correct, there would seem to have been no occasion for Mr Pearson to have been stopped at the intersection at all. 39 The appeal against conviction should be dismissed. 40 I turn to the application for leave to appeal against sentence. In the way the matter was presented to the jury, the jury's verdict means that the Appellant drove through a red light immediately before the impact with the deceased and that manner of driving constituted driving in a manner dangerous. It fell to the trial judge to decide other questions relevant to the topic of sentence. 41 His Honour's findings in this regard included the following:- (i). The intersection was well known to the Appellant. (ii). The traffic lights were visible to approaching vehicles for at least 200 yards. (iii). The Appellant was driving at between 50 and 60kms per hour compared with the applicable speed limit of 70kms per hour. (iv). The Appellant's speed did not diminish as he approached the lights notwithstanding the fact that during the course of his approach it should be inferred that they changed against him. (v). The Appellant must or should have seen the garbage truck pull to a stop beside him. 42 His Honour also said:- "It is true that none of the aggravating elements listed in Jurisic such as a high degree of speed, intoxication, erratic driving, et cetera, are present here, but the fact remains that the prisoner neglected to obey the requirements of traffic lights which were plainly visible to him for a considerable distance as a result of which Natalie Martin suffered a most tragic death." 43 There was no challenge to these findings although it seems to me that some qualification must be placed on the statement that "the traffic lights … were plainly visible to him for a considerable distance". If the relative positions of the garbage truck and the Appellant's motor vehicle were as the Appellant said - and Mr Carnio gives some support to the Appellant in this respect - it seems clear that the lights on the traffic island would have been obscured for some distance. There is, indeed no persuasive evidence that those lights were visible to the Appellant at any relevant time. Photographs in evidence of the traffic lights on the footpath which was to the Appellant's left demonstrate that those lights would have been obscured until he was a distance away equal to the space between two telegraph poles or a little more - perhaps the 40 metres away the Appellant referred to in his ERISP. 44 At 60 kilometres per hour, 40 metres takes about 2½ seconds to traverse and it does not seem to me that his Honour was justified in his conclusion that "the traffic lights ... were plainly visible to (the Appellant) for a considerable distance". 45 That said, I am nevertheless unable to regard the error as of more than limited significance. The Appellant's knowledge of the intersection and the slowing down to a stop of the truck to the front and left of him removed any excuse for the Appellant continuing onto the intersection as he did. 46 His Honour took the view "that the prisoner's conduct in driving through a red light into a pedestrian crossing in the circumstances constituted a piece of grossly irresponsible driving" and that the Appellant "was irresponsibly inattentive towards his obligations to other users of the road" and concluded that the case should not be regarded as one of momentary misjudgment or inattention as that expression was used by this Court in Jurisic (1998) 45 NSWLR 209. 47 I agree with this last conclusion. Whether the earlier descriptions are apposite, I think depends on what his Honour meant to convey by the expressions "grossly irresponsible" and "irrresponsibly inattentive". While it may be that the Appellant decided to ignore a red light of which he was aware or, having seen the lights, made a judgement that they would change before he entered the intersection, the circumstances seem to me at least equally consistent with a careless lack of attention. It does not seems to me that the evidence permits one to conclude, certainly conclude beyond reasonable doubt, that the Appellant's conduct was deliberate or reckless, as distinct from careless. 48 In Jurisic , (supra) at p 231 the Chief Justice expressed the guideline which this Court promulgated in the following terms: "(1) A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. (2) With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional". 49 The Chief Justice listed as aggravating factors:- (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. 50 In the paragraphs immediately before and after his statement of the guidelines, his Honour equated the presence of an aggravating factor to a material degree with an abandonment of responsibility. 51 In R v Pyritz (unreported, CCA, 23 November 1998) Simpson and Kirby JJ seemed to regard this two part classification as intended to be exhaustive but, with respect, I am unable to agree. There is, for example, inattention which falls between the "momentary" and that which could be described as "an abandonment of responsibility". In trying to quantify the criminality of the Appellant in this case, I would regard it as falling in that middle ground. While I agree with the learned sentencing judge that the Appellant's conduct was not momentary inattention, I do not regard the evidence as justifying the conclusion that his conduct was an abandonment of responsibility. 52 It must be acknowledged that Judge Patten so describe it. On the other hand, against the background of the terminology in Jurisic to which his Honour referred, his use of the terms "grossly irresponsible" and "irresponsibly inattentive" suggests that is how he may have thinking. Certainly, his Honour did not draw the distinction between the Appellant's conduct and that referred to in the second guideline in Jurisic which I have done. 53 Turning to other matters, his Honour said it was relevant to take into account delays in the case which occurred through no fault of the Appellant. Its history may be summarised as follows:- 2.11.96 Arrested ? Committal proceedings vacated because no Magistrate available. July 1997 Committal proceedings over 2 days. 21.3.98 Trial fixed but not reached. 13-15.7.98 Trial aborted. 20-24.7.98 Trial aborted. 15.3.99 Trial vacated on Appellant's application. 4.7.99 Trial aborted. 5-12.7.99 Trial proceeded to verdict.

54 The Appellant must accept the responsibility for the last 4 months' delay apparent in this table but that it should take over 2 years from the time of arrest to trial for someone facing imprisonment is a serious indictment of the justice system. It is fair that someone committing the offence of which the Appellant was guilty should go to gaol. It is not fair that he should have to wait the length of time he did, with the inevitable unsettling of his life, before this occurs. 55 The Appellant's driving record was described by his Honour as "very poor". It contained the following offences and penalties:- 11.2.88 Dangerous driving fined $200 + 18 months disqualification 11.2.90 Follow too closely fined $30 + loss of 1 point. 4.6.91 Exceed speed by 15-29kph fined $130 + loss of 3 points. 4.10.91 Exceed speed by 15-29kph fined $130 + loss of 3 points. 18.6.93 Exceed speed by 45kph fined $250 + loss of or more 6 points

56 His Honour concluded that the Appellant was remorseful, and referred to evidence that, following the accident, the Appellant had become isolated, uncommunicative and withdrawn, housebound for about a year, was unable to commence planning his new business for 3 months, his social network diminished and the Appellant experienced difficulties in his relationship with his partner. It is to be inferred that his Honour accepted this evidence. 57 His Honour also referred to references from people who spoke very highly of the Appellant and said His Honour accepted that before the offence the Appellant was well motivated, in a stable relationship and with a view to pursuing that relationship and advancing in life had within a few days prior to the accident bought equipment to embark upon his own business as a lawn mowing contractor. 58 In his remarks on sentence his Honour also quoted and, it may be inferred, accepted evidence from a psychiatrist, Dr Westmore, that as a result of the accident the Appellant had become significantly affected from a psychological perspective and suffered an adjustment disorder with a depressed mood state. Dr Westmore was in fact called during the sentencing proceedings and was cross examined. There was no challenge to another opinion which Dr Westmore had expressed but to which his Honour did not refer:- "He has been significantly affected by this accident, both in the short and medium term and this is likely to be an incident which adversely affects his psychological state to some degree for the rest of his life… Your client's personality is such that he does not have the anti-social qualities often seen in a custodial population. He will find imprisonment particularly difficult and stressful, he is likely to be victimised in that setting. Because of his positive personality attributes I think he will be able to resist the anti-social influences in custody…" 59 Having regard to all of the matters to which I have referred, is the sentence imposed on the Appellant manifestly excessive or one otherwise affected by error? 60 Relevant in that connection is that it is but 30% of the maximum period of 10 years referred to in the relevant part of s52A. On the other hand, it must be recognised that the Appellant's offence fell a long way short of a worst case for which the penalty of 10 years would be appropriate. 61 The 3 year sentence does accord with the period referred to in the second part of the guideline suggested in Jurisic though it must be recognised that the period was there stated as a minimum (other than in exceptional circumstances), albeit for offences involving greater criminality than in my view can be attributed to the Appellant. Of course, the guideline also referred to persons who pleaded guilty. It may be inferred also to have contemplated persons whose driving record was far better than the Appellants. Thus it would be quite wrong to approach the matter on the basis that merely because the Appellant's criminality was less than that contemplated in the second part of the guideline in Jurisic , the punishment imposed must be less. On the other hand, there is an appreciable difference between careless, even very careless, conduct and an abandonment of responsibility. 62 Some weight must also be given to the unchallenged opinion of Dr Westmore that the Appellant will find imprisonment particularly difficult and stressful. As I have said, Judge Patten did not refer to this evidence although it is clearly relevant to an appreciation of the severity of the punishment being imposed. Material also is the impact of the accident on the Appellant's life and business, for though not imposed by a Court, these are not less punishments arising in consequence of his conduct. 63 In referring to these matters, I do not, of course suggest that they can match the severity of what happened to Miss Martyn or the loss suffered by her family. But while courts seek to make punishment appropriate to offending, our legal system has long since abandoned the principle of "an eye for an eye, and a tooth for a tooth". The laws under which the courts operate do not attempt to make punishment equal to the suffering caused by an offence. 64 Notwithstanding the matters arguing in the opposite direction, when account is taken of the absence of any abandonment of responsibility, the opinion of Dr Westmore to which I have referred, the excessive delay which has occurred in bringing the matter to trial, and the impact otherwise of his actions on the Appellant the conclusion at which I have arrived is that the sentence imposed is outside the appropriate range and that this Court should re-sentence the Appellant. In so concluding, I am not unconscious that this Court is a court of error and that there is but a limited distance between the sentence I think should be imposed and that imposed at first instance. Nevertheless, in percentage terms the difference is substantial and while, in the context of a 5 or 10 year sentence, it would be difficult or impossible to say that one extra year constituted error, when one is talking about much shorter periods, a difference of a year or so is far more significant. 65 Once that conclusion is reached, the Court should have regard to an affidavit of the Appellant which was tendered and which deals with aspects of his time in prison and of the impact of his offence upon him. So far as the first topic is concerned, while the affidavit details events which should not be a necessary part of imprisonment, they are not so far outside the ordinary that I would give them great weight. The Appellant's evidence concerning the second is perhaps summarised in the following extract from the affidavit, although again, I doubt that the matters canvassed extended far, if at all, beyond the information before the sentencing judge:- "The day before this accident I had a home, a life partner, a new business and freedom. Since that day I have lost all of that. I had to sell my business when I went to gaol. Any assets that I had earned over years of working hard were sold or I have lost them. I now have literally nothing except the clothes in the hotel room where I am staying. I also lost my freedom and for some time I lost any feeling of hope for a future." 66 To put one aspect of this statement in context, there was a deal of evidence before Judge Patten that the Applicant had had a good, responsible and, indeed, admirable working life from the time he left school in 1988 aged 17 until shortly before the accident. 67 In my view Judge Patten was right to send the Appellant to prison. Although there are the exceptional cases referred to in Jurisic , retribution, general deterrence, the Appellant's prior driving record, and the relative leniency of periodic detention, even for the maximum period of 3 years, required that that be done. 68 The Appellant went into custody on 27 August 1999. He was admitted to bail on 30 December 1999, so he has served marginally over 4 months of his sentence. That fact makes an argument in favour of periodic detention now, stronger than it was at the time the Appellant was sentenced. However, I do not feel able to yield to it. The totality of the factors which argue in favour of a higher rather than a lower sentence, to my mind require that the Appellant's custody be full time. 69 In my view the sentence which should have been imposed on the Appellant was one of imprisonment for 2 years. As Patten J found that special circumstances existed and that it was appropriate to make the additional term equal to the minimum term, I would propose the same in relation to the period of 2 years. Apart from the guidelines in Jurisic, decisions which, at least to some extent, accord with the conclusion at which I have arrived are:- The decision in Jurisic itself. Although the respondent pleaded guilty he had a far worse record - (see report at p284) - than the Appellant. The respondent's loss of control of his motor vehicle arose from or was contributed to by the ingestion of cocaine in a quantity which adversely affected his driving ability. In the words of the Chief Justice "the Respondent had abandoned responsibility for his own conduct". He had a strong subjective case. But for it being a Crown appeal, 3 years imprisonment, including a minimum term of 18 months was regarded as appropriate. R v Musumeci (unreported, CCA, 30 October 1997) - The respondent had been impatient or reckless. On a Crown appeal, there was substituted for a sentence of 15 months periodic detention, 4½ months of which had been served, full time custody for a minimum term of 8 months and an additional term of 7 months. R v Ngo (1996) 25 MVR 137 - The respondent to a Crown appeal had failed to keep a proper look-out and, though within the speed limit, was travelling too fast in the circumstances. He had a bad driving record but had pleaded guilty. He had been sentenced to imprisonment for a minimum term of 12 months and an additional term of 4 months. The appeal was dismissed although it is proper to recognise that a significant factor in this decision was the Court's approach on Crown appeals. 70 The remaining question is what consequences should flow from the fact that the Appellant has been on bail and, although no doubt his life has hardly been settled, not serving any sentence of imprisonment since 30 December last. In these circumstances, I do not think it would be appropriate to simply date the sentence from the original date when he went into custody, and this even though the Applicant must endure again entry into prison. However to take account of the matters referred to in this paragraph, I would propose that the commencing date of the minimum term of the sentence which this Court imposes be 27 October 1999. That will mean that, without trying to be precise, about half of the time the Applicant has been on bail counts towards his sentence and he will have, in addition to the 4 months already served, another 6 months in custody. 71 (Another way of achieving the same result would be to impose a minimum term of 14 months from 27 August 1999. However it is preferable that the sentence imposed reflect the Court's view of what is appropriate, than be artificially increased.) 72 The only other matter to which it is necessary to refer is the order made by Judge Patten that the Appellant be disqualified for a period of 2 years from holding a licence under the Motor Traffic Act - a period 6 months longer than the minimum term of imprisonment imposed by his Honour. Section 10A of the Traffic Act 1909 provides that in the circumstances of the Appellant's offence, he should be disqualified from holding a licence for a period of 3 years unless the Court is of the view that the period of disqualification should be shorter (but not less than 6 months) or longer. Judge Patten obviously exercised his discretion under this section. 73 Having regard to the punishment of the Appellant represented by imprisonment, it does not seem to me that there is anything to be gained, and something to be lost, by impeding his entry back into society and the work force by a period of disqualification lasting beyond the end of his minimum term. Accordingly I would reduce the period of disqualification to 14 months from 27 August 1999. 74 The orders I propose are:- (i) Appeal against conviction dismissed; (ii) Grant leave to appeal against sentence; (iii) Quash the sentence imposed by Patten DCJ of 27 August 1999; (iv) In lieu thereof the Appellant is sentenced to imprisonment for a minimum term of 12 months commencing on 27 October 1999 and expiring on 26 October 2000 and an additional term of 12 months commencing on 27 October 2000 and expiring on 26 October 2001; (v) Direct that the Appellant be admitted to parole on 26 October 2001; (vi) Order, in lieu of the period of disqualification ordered by Patten DCJ, that the Appellant be disqualified for a period of 14 months from 27 August 1999 from holding a licence under the Traffic Act.

75 DOWD J: I have seen the judgment in draft form of Hulme J, as to the appeal on conviction. His Honour has therein set out the facts and analysed the evidence before the court in the hearing. I agree with His Honour that the appeal against conviction should be dismissed and the reasons for that proposed order. 76 I now turn to the application for leave to appeal against sentence. 77 On 27 August 1999 the appellant who had been found guilty by a jury was sentenced to eighteen months imprisonment to commence on 27 August 1999 and to expire on 26 August 2001 as a minimum term and an additional term of eighteen months to commence on 27 February 2001 and to expire on 6 August 2002. 78 The appellant was in custody from the day of sentence until he was released on bail on 30 December 1999 pending this appeal. 79 The primary submission of the Appellant was that the relevant facts of the case do not bring the driving in the guidelines established by the court in R v Jurisic (1998) 45 NSWLR 209 at 231; (1998) 101 A Crim R 259 at 277, that there is not, in this case present to a material degree any of the aggravating factors identified in Jurisic and thus the need for imprisonment is not established. 80 In his submissions in support of this application Mr Byrne SC for the applicant refers to the English Court of Appeal decisions of Guilfoyle (1973) 57 Cr App R 549 and Boswell (1984) 79 Cr App R 277. It was contended on behalf of the appellant that there were aggravating and mitigating features set out in Boswell and of the nine separate features of aggravation identified none is present in the appellant's case. It is necessary in examining this submission to closely examine the structure of the judgment of the Chief Justice in Jurisic as supported by other members of the Court. 81 It was further submitted that in Jurisic, Spigelman CJ identified nine relevant factors mitigating and aggravating factors and that two of them related to the occurrence and seven of them to the driver. It was submitted that none of the seven factors referable to the driver can be characterised as unfavourable to the appellant in the circumstances of the appellant's case. 82 Mr Byrne further submitted that in referring to the guidelines which the Chief Justice set out which are in the following terms: "1. A non custodial sentence for an offence against s.52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three year (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional,"

that an aggravating factor has to be "present to a material degree" and that is where the offender has "abandoned responsibility for his or her own conduct." 83 It is contended further by Mr Byrne that the two categories of conduct examined are momentary inattention of misjudgment and the second category is that of abandonment of responsibility, that is cases with an aggravating feature present to a material degree. His submission was that there were a significant number of cases not catered for, that fall between these two categories where there are none of the aggravating features present and no abandonment of responsibility but that nature of driving goes beyond momentary inattention. He submitted that the present case is one such case. 84 On behalf of the appellant both in dealing with the appeal on conviction and the application for leave to appeal on sentence the appellant's written submissions I have set out above were amplified by oral submissions by Mr Byrne. 85 The guideline judgment established in Jurisic follows, as is set out in the judgment of the Chief Justice, summaries of a number of statements which have been previously made by the Court which are in the nature of being guideline judgments without being necessarily expressed as such. This covers an extraordinarily diverse range of offences. The Jurisic guideline judgment was an extension of the court's practice. 86 As to the intended use of the guidelines, in the judgment of the Chief Justice it is significant that he held that at p. 220; 266; "such guidelines are intended only to be indicative only. They are not intended t be applied to every case as if they were rules binding or sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents,"

when discussing the need for guideline judgments. In each of the references of the need to establish guidelines there is a reference to the fact that sentencing patterns underrate the degree of criminality. 87 Further, in particular at p. 221; 267 it was held that: "As is have said, inconsistency is a form of injustice. Indeed, a point can be reached where sentences issued by a few judges may be so widely regarded as inadequate that - despite the possibility of correction on appeal - the legitimacy of the legal system itself may be called into question by a significant section of the community."

and at p. 222; 268: "It is however, pertinent to observe that in most of the leading cases in which guidance on levels of sentence has been given the effect has been to increase the general level of sentencing."

and at p. 223; 269 His Honour agreed with a speech made by Lord Bingham of Cornhill, the Lord Chief Justice of England when he said: "I think it is true that public opinion (reinforced in the latter case by legislation) brought home to the judges that they had on occasion failed in their sentences to reflect the seriousness with which society regarded these offences." 88 Although the guidelines obviously have an effect on both the upper and lower range of penalties, it is to be noted that there is no suggestion that public concerns relate to excessive sentences or indeed the variable nature of sentences. The judgment notes public concern with the inadequacy of penalties as one of the underlying reasons for the establishment of the guideline judgment. 89 It must also be noted that Jurisic applies to the sentencing judge at first instance, and that a Court of Criminal Appeal may not just substitute its own view. Error must be found. This Court in considering the application of Jurisic has first to establish error, but then may not just substitute its own view as to the appropriate sentence. 90 It must be reiterated that where criminal appeal courts both here and in the United Kingdom have dealt with inadequacy of penalty in crown appeals that the overturning of the first instance sentence does not result in the fixing of new penalties that the appeal court would usually consider appropriate as though the Court of Criminal Appeal had sat at first instance. The principal of double jeopardy applies only in Crown appeals and if inspired to re-sentence in an offender's appeal, this Court imposes what it regards as the proper sentence: see Holder (9183) 3 NSWLR at p. 255-6, Jurisic at p. 232; 278. The application of the principle of double jeopardy on re-sentencing on crown appeals will result almost invariably in the lowest range of penalties appropriate. 91 This is adverted to by His Honour at p. 221; 268: "Public criticism of particular sentences for inconsistency or excessive leniency is sometimes justified. Courts of criminal appeal operate under constraints which do not ensure that such criticism is necessarily allayed by the usual case by case appellate process. Appeals must be initiated by the Crown. If initiated they are regarded as exceptional and require identification of an error in the exercise of discretion. If upheld, the appellate court is constrained in the sentence it can impose by the principle of double jeopardy. Public confidence in the administration of justice will be best served by ensuring that the system minimises the appellable errors made by trial judges." 92 In Jurisic it must be noted that at p. 231; 277 the Chief Justice in referring to a list of mitigating and aggravating factors as collected in Boswell held that these factors were also reflected in the judgments of this court which His Honour examined in some detail. 93 His Honour then established a list of aggravating and mitigating factors which arise, in determining the appropriate penalty, they being: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed (iv) Degree of intoxication or substance abuse (v) Erratic driving (vi) Competitive driving or showing off (vii) Length of the journey during which others were exposed to risk. (viii) ignoring of warnings (ix) Escaping police pursuit.' 94 His Honour The Chief Justice, as Mr Byrne has already pointed out, points to paragraph one and two on the occurrence and paragraphs three to nine on the offender. His Honour held that the presence of the seven factors may indicate that the offender "has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence." 95 In setting out the guidelines quoted above it is noted that a non-custodial sentence is almost invariably confined to cases involving momentary inattention or misjudgment. 96 The second guideline (b) is limited to cases where there has been a plea of guilty and there is, to a material degree, any aggravating factor provided that a total term or fixed term of less than three years should be exceptional for dangerous driving causing death. His Honour the Chief Justice acknowledged at p. 231; 278 that in the new factor "that the offender has abandoned responsibility for his or her own conduct" that there is an element of judgment introduced on which "reasonable minds may differ." His Honour however made it clear that it is intended to accommodate community concerns with inadequate penalties, in line with the statements that I have set out earlier in this judgment in that respect. 97 I interpolate at this stage a reference to the concurring judgment of Wood CJ in CL in Jurisic with which Justices James and Adams concurred. It was held at p. 233; 279: "By tagging selected decisions as guideline judgments, the Court, is not to be taken as usurping the function of the legislature, or as inappropriately intruding into the exercise of the sentencing discretion reserved to trial judges."

thus underlining the clear discretion in sentencing notwithstanding the guideline judgment remaining in the sentencing judge. 98 It must be pointed out when Mr Byrne refers to the decisions of Guilfoyle and Boswell , in Guilfoyle the maximum penalty was two years, the same level that is reserved for magistrates in NSW, and in Boswell it had been increased to five years. It must further be pointed out that the offences now in England, as here in NSW, carry maximum penalties double that in Boswell and five times that in Guilfoyle. 99 His Honour the Chief Justice has in quoting the new s.52A of the Crimes Act 1900 ("the Act") pointed out that many of the more serious aggravating factors have been separated out and a new offence created both where death is caused and where grievous bodily harm is caused which carries imprisonment of fourteen years. 100 In examining matters which Patten DCJ took into account his honour found that the prisoner was twenty six at the time of the offence, that he had no criminal antecedents at the time of the offence except for traffic matters. His honour examined those traffic matters and quite properly found that he had anything but an exemplary driving record for a man so young with such a short period of driving including a conviction for dangerous driving, a further offence followed shortly after of exceeding the limit by between fifteen to twenty nine kilometres per hour and then a further similar offence and a further offence of exceeding the speed limit by 45 kilometres per hour. 101 His Honour found as was clearly in evidence that the subject offence occurred about 1.00 on a Monday approaching an intersection with which the appellant was very familiar. His Honour found as the jury must have found from the way the case was run that the applicant drove through a red light against him at the intersection and that he struck the victim who was lawfully crossing within a pedestrian crossing. 102 That intersection had three lanes travelling in a southerly direction and at the intersection with Melrose Avenue there was a clearly delineated lane for vehicles in the third lane from the kerb turning right and thus a stationary garbage truck being present in the second lane from the kerb, the appellant, being in the kerb side lane, must have brought to the appellant's attention that there was something which had brought the garbage truck to a halt and thus should have obliged him to proceed with caution or stop. 103 The approach to the traffic lights was level and straight and the appellant in his statement to the police did not say that he could not see the traffic sign. He said indeed that he saw it and that it was green. His Honour found that he was driving at between fifty to sixty kilometres an hour which is less than the applicable speed limit but that his speed did not diminish. It is clear from the manner in which witnesses described the victim thrown in the air before landing on the ground that she was hit with some impact. 104 His Honour found that there was no remorse or contrition expressed to the court but found in favour of the appellant, remorse and that on the available evidence he had been clearly effected by the death of the victim and that his personal life and business had very severely suffered. There was obviously no plea of guilty. His Honour in applying Jurisic rejected the contention that the case should be regarded as one of momentary inattention or misjudgment. 105 His Honour, and it appears to me, quite correctly, found that the appellants conduct in driving through a red light into a pedestrian crossing in the circumstances of that intersection on that day constituted a piece of "grossly irresponsible driving" and noted the visibility of the red light, the intersection being well known and the stopping of the garbage truck indicated his irresponsible inattention towards his obligation toward the other users of the road and his irresponsibility which in this case resulted in the tragic death of the victim. 106 Although His Honour stated that none of the aggravating elements listed in Jurisic were present such as a high degree of speed, intoxication, erratic driving etc. were present. It must be noted, that one of the factors outlined at p. 231; 277 in the judgment of the Chief Justice in Jurisic that degree of speed is relevant and in the circumstances of the applicant, degree of speed was one of the factors that precipitated the collision causing the death of the victim. In any event His Honour the sentencing judge held that the traffic lights were plainly visible for a considerable distance and that the appellant's neglect to obey these lights caused the death. 107 Mr Byrne's submission that the applicant's case is outside the nine separate factors of aggravation set out in Boswell is not to the point. The guidelines which are established in Jurisic do not precisely parallel Boswell . The sentencing court in this case had to take into account two of the Chief Justice's list if aggravating factors; the extent and nature of the injuries inflicted and the degree of speed in the circumstances. 108 The factors listed by the sentencing judge clearly indicate the applicant's actions fell well outside of momentary inattention. The factors outlined above clearly bring it within the cases where a custodial sentence is appropriate. I reject the submission that there is a category of cases falling between the momentary inattention or misjudgment and those cases requiring custodial sentences. The Chief Justice in Jurisic outlined all of the relevant factors to be applied in each case. In this case the extent and nature of the injuries inflicted were of course catastrophic - they caused death. 109 I do not agree with the judgment on sentence of Hulme J that there is a category not covered by Jurisic and that there is a middle ground, and in that respect I concur with what appears to be the view of Simpson and Kirby JJ in R -v- Pyritz (unreported, CCA 23 November 1998). 110 I cannot agree with the views expressed in paragraph 29 of the judgment of Hulme J that the sentence in this case could be considered "outside the appropriate range" and in any event being outside the appropriate range is not a sufficient basis for overturning the sentencing judge in this respect. 111 I cannot see in a penalty range of ten years that total of three years is excessive in terms of the legislative intention and the sentence appears to me to fall clearly within the guidelines established by Jurisic . It must be remembered that in Jurisic the indicated three years custodial sentence below which exceptional cases may fall, is only where there was a plea of guilty - a factor not present in the case of the appellant. 112 I therefore find no error on the part of the sentencing judge consider that this Court should not interfere with the sentence imposed by His Honour and I would make the following orders: 1. That leave to appeal against sentence be granted. 2. That the appeal be dismissed.

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