R v Pisciuneri; Pisciuneri v R

Crimes Act LEGISLATION CITED: Crimes (Sentencing Procedure) Act Roads Transport (General) Act

Cheung v The Queen (2001) 209 CLR 1 M v The Queen (1994) 181 CLR 487 Markarian v The Queen (2005) 215 ALR 213 R v Davies [2000] NSWCCA 84 CASES CITED: R v Isaacs (1997) 41 NSWLR 474 R v Jurisic (1998) 45 NSWLR 209 R v Martin (1981) 2 NSWLR 640 R v Wall [2002] NSWCCA 42 R v Whyte (2002) 55 NSWLR 252

PARTIES: Regina v Natale Domenico Pisciuneri Natale Domenico Pisciuneri v Regina

FILE NUMBER(S): CCA 2007/3321 (formerly 2007/714) ; 2007/3235 (formerly 2007/829)

COUNSEL: D. Woodburne (Crown/Respondent) A.J. Bellanto QC (Respondent/Applicant)

SOLICITORS: Solicitor for Public Prosecutions (Crown/Respondent) William S. Whitby Solicitors (Respondent/Applicant)

LOWER COURT DATE OF DECISION: 5 September 2006; 16 February 2007

IN THE COURT OF CRIMINAL APPEAL 2007/3321 (formerly 2007/714) 2007/3235 (formerly 2007/829)

SPIGELMAN CJ HISLOP J HARRISON J

Wednesday 5 September 2007 REGINA v Natale Domenico PISCIUNERI Natale Domenico PISCIUNERI v REGINA Judgment

1 SPIGELMAN CJ: I agree with Hislop J. 2 HISLOP J: Natale Pisciuneri ("the appellant") has appealed against conviction. The Crown has appealed against sentence.

The conviction appeal 3 The appellant appeals against his conviction following a guilty verdict by a District Court jury on 5 September 2006 to a charge brought pursuant to the Crimes Act 1900 s 52A(1)(c) that on 28 March 2005 he did drive a motor vehicle in a manner dangerous to another person, whereby the vehicle was involved in an impact as a result of which the death of Timothy Thornton was occasioned. 4 The ground of appeal is that: "The verdict is unreasonable and cannot be supported by the evidence and in the alternative, a miscarriage of justice was occasioned by the jury in failing to give proper consideration to the conflicting bodies of expert evidence on a highly technical matter, namely the understanding of the methodology of traffic accident reconstruction." 5 The "impact" occurred in fine weather in Sheather's Lane Camden at about 5.45 pm on 28 March 2005. Sheather's Lane ("the road") runs generally east-west from a roundabout at its intersection with Cawdor Road to the east and its intersection with Old Oaks Road to the west. The road is straight and flat for 750 metres from Cawdor Road until a moderate right hand bend or curve for vehicles travelling westward is reached. The road passes through what is described as "open pasture country". There were no houses, crossroads, traffic lights or pedestrian thoroughfares. At the bend the road commences to proceed up hill. The road has a bitumen surface 7.1 metres wide and is abutted on either side by a gravel shoulder which extends to grassed areas. The gravel shoulders present an uneven surface at the edge of the sealed road and there was, at the relevant time, a drop of about 2-3 centimetres between the sealed road and the gravel. The road is divided into one lane in each direction by a broken separation line, save at the bend where there are double unbroken separation lines preceded by a short distance of double separation lines, one broken, one unbroken. The speed limit in the vicinity of the bend is 80 kph. There is a 65 kph speed advisory sign just before the bend. The critical speed (ie the threshold speed at which a curved path can be negotiated in a motor vehicle) was calculated at 135 kph. 6 Immediately before the collision the appellant was driving his 2005 Monaro west along Sheather's Lane. The deceased was driving his Kia four wheel drive in the opposite direction. Each man was alone in his vehicle. It was common ground at the trial that at the bend the left hand side wheels of the Monaro left the bitumen surface and travelled onto the gravel shoulder and that the appellant lost control of his vehicle which collided with the Kia causing the death of Mr Thornton. 7 Mr Dykes, who was driving his motor vehicle about 30 metres behind the Kia, gave evidence that he saw the Monaro at the very beginning of the bend, saw the two left side wheels go off the road onto the gravel shoulder, the vehicle then overcorrected, its other rear wheel left the road and it slid out and the Monaro veered in a clockwise direction across the road and connected with the Kia. After the Monaro hit the Kia it spun in a clockwise direction up the hill towards Mr Dykes' car and passed him, narrowly missing his car.

8 The Kia came to rest off the bitumen on the grass on the northern side of the road, the front of the vehicle facing south. The Monaro came to rest wholly on the bitumen, straddling both lanes with the front of the vehicle facing south.

9 The Crown case, as opened to the jury, was: "… that whilst he was in control of his motor vehicle Natale Pisciuneri was driving in a manner that was potentially dangerous to another person or persons in that he engaged in conduct which included any one or more of the following things. Firstly [he] was driving his motor vehicle at an excessive speed, culminating in the collision. Two [he] steered his motor vehicle so that it moved onto the gravel shoulder of the roadway. Three [he] steered his motor vehicle onto the wrong side of the road into the path of oncoming traffic. Four, [he] was not paying proper attention to the bend in the roadway whilst driving at the relevant time. It's for any one or more of those reasons, whilst Mr Pisciuneri had control of his motor vehicle, he veered into the path of Timothy Thornton's vehicle, killing Timothy Thornton and it's the Crown case that any one or more of those things amount to driving in a manner dangerous." 10 In M v The Queen (1994) 181 CLR 487 at 493 Mason CJ, Deane, Dawson and Toohey JJ said: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. 11 The only element of the offence in dispute at the trial was whether the appellant was driving in a manner dangerous to another person. Thus, the real issue for determination was why did the Monaro leave the bitumen surface and move onto the gravel at the bend. 12 The appellant gave evidence that he commenced to negotiate the bend, saw the Kia approaching with its front being about half a metre on his side of the road; he veered off to his left to avoid collision; the left hand wheels moved onto the gravel shoulder and the Monaro went out of control and the collision occurred. The appellant informed an ambulance officer who attended the scene that "the car came straight over onto my side of the road". He also completed an insurance claim form in which he stated: "I was travelling west along Sheather's Lane, Camden at a speed of approximately 80 kph when I noticed a vehicle approaching in the opposite direction. This vehicle had moved onto my side of the road, so I moved my car slightly to the left to avoid a collision. This is the last thing I remembered."

As to the question, "Who do you believe was at fault and why" the appellant answered, "Unknown". 13 The appellant qualified a traffic accident investigator, Mr Sculthorpe. Mr Sculthorpe gave evidence that the impact occurred in the westbound lane. The basis for this conclusion was a gouge mark in the westbound lane. The gouge mark was approximately ten metres from the front of the Monaro and approximately one metre from the double unbroken separation lines. It ran in an east-west direction and was deeper at its eastern end. The gouge mark contained two small pieces of alloy of the type found in the front driver-side wheel of the Monaro, which wheel had been damaged in the collision. 14 His Honour correctly directed the jury that if the evidence of the appellant and Mr Sculthorpe was accepted, or there was a reasonable possibility that it may be true, the appellant should be found not guilty. 15 The jury, by its verdict, rejected this evidence. In my opinion, there was a sound basis in the evidence to do so. The relevant material was:

(a) The presence of consolidated debris, being vehicle debris and glass, on the northern gravel shoulder and eastbound lane of the roadway in an area to the front of the Kia. Amongst that debris was the bumper bar of the Monaro;

(b) The presence of oil staining on the roadway which was described by the investigating police officer, Snr Const West as follows: "Commencing on the eastbound lane in this area of debris in the vicinity of the northern bitumen edge, I saw a large patch of apparent oil and fluid staining on the roadway. This oil staining ran in a distinct, large, semi-circular motion across the centre of the roadway and into the westbound lane and back into the eastbound lane to the northern bitumen edge. The oil stain commenced in a spray-type pattern and continued up to and underneath the front of the Monaro coupe. The further oil staining from the front of the Monaro across to the northern bitumen edge was more consistent with the natural draining of oil from the front of the Monaro after it came to rest, and it followed the general slope across and down to that edge of the roadway. This area of debris and the commencement of the oil staining were consistent with the area of impact between the two vehicles being in the vicinity of the northern bitumen edge of the roadway, well within the eastbound lane approximately four metres from the front of the Kia four-wheel drive."

(c) Snr Const West gave evidence that the area of debris and the commencement of the oil staining were consistent with the area of impact being in the vicinity of the northern bitumen edge of the roadway well within the eastbound lane and approximately four metres from the front of the Kia vehicle. He observed two scrape marks on the road surface in the eastbound lane in the area of debris which he considered may represent the point of impact.

(d) Mr Johnston, a consulting engineer and expert in traffic accident reconstruction, gave evidence that the areas of consolidated debris and liquid staining were significant and assisted him in forming his opinion that the impact occurred in the eastbound lane.

(e) Mr Sculthorpe said of the position of the consolidated debris and the staining that they were compelling and that his initial reaction when he looked at the photographs of the scene was that the fluid stains appeared to have been continuous and originated from one vehicle and that the area of consolidated debris suggested that the area of impact may have occurred on the [eastbound] side of the road, though, on further analysis and taking into account the existence of the gouge mark in the westbound carriageway and variation in the colour of the fluid stain, he had concluded the impact occurred in the westbound lane.

(f) There were suggestions that the debris could have been moved by vehicle or pedestrian traffic in the area following the collision. However, Const Lincoln gave evidence that at about 5.50 pm he received a message to attend the collision scene and pretty well immediately after he arrived at the scene the road was blocked off to all traffic except to emergency traffic, and efforts were made to preserve the scene with all emergency vehicles and personnel, with the exception of the ambulance, being kept east of the scene. There was no interference with the scene between the time he arrived and the arrival of Snr Const West;

(g) The absence of debris in the vicinity of the gouge mark relied upon by Mr Sculthorpe (save for the small pieces of alloy in the gouge mark) and the fact that the oil and liquid staining did not appear to start at that point;

(h) The evidence from the Crown experts, Snr Const West and Mr Johnston, that the gouge mark relied upon by Mr Sculthorpe was consistent with occurring during the post impact movement of the Monaro and was within the area of the post-impact trajectory of the Monaro;

(i) The eyewitness evidence of Mr Dykes that he did not lose sight of the Kia at all. The Kia was just going in a straight line downhill on the left hand side of the road until just before the accident when it braked toward the left hand side. He did not see the Kia move across to the right at any time. The appellant seized on the following question and answer as a concession: "Q. But, of course, if you were watching your speedo and watching your driving, it [a move by the Kia across to its right] may have occurred and you not notice it? A. It may have." However, read in the context of the whole of Mr Dykes' evidence, the jury was entitled to accord this so-called concession no weight whatsoever.

(j) Mr Forrest, who said he was travelling 150-200 metres, maybe not that far, behind Mr Dykes' vehicle, gave evidence he did not observe the Kia veer across the centreline; it was not possible that it did and he failed to notice it. 16 Mr Dowling, a vehicle examiner employed by the NSW Police Force, examined the Monaro following the accident. He formed the opinion that there was no mechanical defect or component failure with the vehicle that may have contributed to the collision. He said that loose ball joints would have a very minimal handling effect on the car but that when he had examined it the nut securing the lower ball joint to the offside steering arm was intact and there was no gap. 17 Mr Piening, a former motor vehicle examiner for the Police Department, said he had inspected the Monaro and found excessive clearance between the nut securing the lower ball joint to the offside steering arm and was able to obtain movement of the ball joint taper in the steering arm. He considered this was a factory fault but that it would not cause a vehicle which had veered left to pull hard right. There was no evidence from the appellant that he had any problems with the steering of the Monaro which was near new and had been recently serviced. 18 The jury, as evidenced by the verdict, did not find there was any reasonable possibility the collision was the result of any mechanical defect in the Monaro or the Kia crossing to the westbound lane, with the consequence that the only cause of the Monaro leaving the bitumen surface and entering the gravel shoulder was the appellant's manner of driving. 19 The Crown asserted, among other things, that the appellant's manner of driving involved excessive speed. 20 The appellant gave evidence that he had driven along that section of the road on many occasions and that he had found it quite comfortable to take the bend at 80 kph. He understood the advisory speed sign at the bend of 65 kph was applicable in wet weather conditions and at night time. Accordingly, he had no regard to it. There was evidence from Snr Const Lincoln that advisory speed signs are set for good weather conditions but that it was not an offence to travel in excess of the speed posted on an advisory sign so long as one's speed remained under the applicable speed limit. Mr Sculthorpe gave evidence he had driven around the bend at 80 kph without incident. 21 The appellant gave evidence that at no time did he exceed 80-82 kph in driving along Sheather's Lane on that occasion. He relied on

(a) the evidence of Mr Sculthorpe, who made calculations that the pre-impact speed was less than 80 kph.

(b) the fact that the speedometer on the instrument panel of the Monaro after impact showed a speed of 82 kph;

(c) his evidence he had filled his car with petrol at a service station a short time before the collision. The receipt for the purchase indicated he paid for the petrol at 5.36 pm. He said he rang his wife immediately after the collision. The call was timed at 5.47 pm. The distance from the service station to the point of impact was measured by Mr Sculthorpe at 5.85 kilometres.

(d) his and his wife's evidence that he was not, and had no reason to be, in a hurry at the time. 22 This evidence was not determinative of the issue. The jury were not bound to accept the evidence of the appellant or Mr Sculthorpe. There was evidence that when the power to the instrument panel of the Monaro cuts off the indicators on the panel freeze. Thus the speedometer reading post-collision established that the Monaro was travelling at 82 kph when the power cut off and did not exclude an earlier higher speed. It was open to the jury to find that the appellant's call to his wife was not made immediately following the collision or that he had taken time after paying for his petrol to reach his car and drive off, or had driven slowly until he reached Sheather's Lane. The mere fact that the appellant was not in a hurry would not exclude the possibility that he drove along the straight in Sheather's Lane at an excessive speed. However, the onus was upon the Crown to prove excessive speed. It was not for the appellant to disprove it. 23 Mr Johnston gave evidence that he estimated the speed of the Monaro at the time of impact at 90-95 kph. 24 An initial submission was made that the evidence of Mr Sculthorpe was such that the jury could not be satisfied beyond reasonable doubt that his opinion as to the speed of the Monaro could be excluded as a reasonable hypothesis and that, accordingly, the appeal should be upheld. I do not accept this submission. The jury was instructed, and must be assumed to know, that it was open to it to reject all or part of the evidence given by any expert. It is always open to a jury to reject evidence and, unless its weight is absolutely overwhelming, such a rejection does not render the verdict unsafe or unsatisfactory. Mr Sculthorpe's evidence was by no means overwhelming. 25 Mr Johnston gave evidence as to the manner of calculation of the impact speed of the Monaro. He said that on the assumption that the Kia had been travelling at 80 kph and had braked for one second and using a drag factor of -0.7 g, he calculated a speed of 55 kph for the Kia at the point of impact. He had conservatively calculated a post-impact velocity of around 10 kph for the Kia and a post-impact velocity for the Monaro of about 40 kph. Using the figures that he had calculated for post-impact velocity and using a pre-impact velocity for the Kia of 55 kph, he carried out a conservation of momentum calculation and calculated that the pre-impact speed of the Monaro was 95 kph. That 95 kph was not an estimate of the precise speed of the Monaro but, based on the assumptions made, all of which were deliberately conservative, the figure of 95 kph was a minimum speed. He said that on the information that was available he was not able to calculate the speed of the Monaro at the point that it lost control at the dirt verge. He said that the Monaro would have been decreasing speed from the point of loss of control to the point of impact but he could not give the magnitude of the decrease. 26 The appellant submitted that the jury could not be satisfied beyond reasonable doubt that he was driving at the speed estimated by Mr Johnston for the following reasons:

(i) Mr Johnston's methodology required the use of an arbitrary braking time of one second for the Kia. A variation of one second or even half a second would have a significant bearing on his momentum analysis;

(ii) he also applied an arbitrary drag factor of -0.7 g. He could have applied -0.6 g or -0.5 g, all being reasonable;

(iv) he was not given the appellant's account of the accident which would have been relevant to his opinion;

(vi) the distance travelled by the Monaro from the point of impact to rest is at variance with Snr Const West and Mr Sculthorpe. The shorter the distance, the lower the speed of the Monaro. It is significant that both Snr Const West and Mr Sculthorpe estimated a shorter distance;

(vii) the point of impact is at variance with the Crown witness (Snr Const West) and the defence expert (Mr Mark Sculthorpe). 27 I do not agree with this submission for the reasons which follow. 28 Although Mr Dykes' vehicle left skid marks, the Kia did not. Mr Sculthorpe agreed that the impact speed of the Kia could be calculated by reference to its pre-braking speed, the drag factor and the braking time. He also agreed that the impact speed of the Monaro could be calculated using a conservation of momentum calculation. 29 Mr Dykes gave evidence that when the Monaro started to lose control he saw the Kia "braking hardly" and veering off the left side of the road. Prior to that time, the Kia had been travelling at 80 kph. 30 Mr Sculthorpe was of the opinion a drag factor of -0.5 g, -0.6 g or -0.7 g could be used. He accepted that the drag factor of -0.7 g would be the appropriate figure if the Kia was braking at or about its maximum rate. The evidence of Mr Dykes as to the braking he observed, coupled with the emergency situation in which the brakes of the Kia were applied, suggests the Kia was braking at or about its maximum rate. The choice of a drag factor of -0.7 g may be regarded as conservative as the selection of a lower drag factor would have resulted in a higher impact speed of the Monaro. 31 Mr Sculthorpe considered it reasonable to apply a braking time of half a second, a second or 1.5 seconds, or maybe even two seconds. He regarded Mr Johnston's determination of a braking time of one second as a guess. However, the choice of one second was not a guess but rather the application of Mr Johnston's learning and experience. As he explained, the one second of braking time was based on it being a discernible (to Mr Dykes) period of braking. He said that anything much longer than the one second braking time, the Kia would be going at a very low speed and the damage would not have supported the magnitude of the impact. If one assumed much shorter than the one second of braking, then it was not conservative because it would increase the speed of the Monaro. It was for those reasons he took one second as being a reasonable value, trying to be reasonably conservative. 32 There was no mechanical examination of the Kia by the police forensic unit. This accorded with the usual police practice of not mechanically examining vehicles considered not to be at fault in accidents. The absence of such an examination was not shown to undermine the calculation of the Monaro's speed. 33 It was not suggested to Mr Johnston that knowledge of the appellant's version of events altered his opinion. 34 Mr Sculthorpe considered it very likely the Kia bounced or rotated to its rest position after impact and had not rolled as Mr Johnston stated. However, as Mr Johnston said in evidence, it was probably the case that the Kia did not simply roll into its rest position but rather it was a conservative assumption which he made. By not adopting the conservative assumption that the vehicle rolled into its rest position, the post-impact speed of the Kia would have been higher and in consequence the impact speed of the Monaro would have been the greater. 35 There was agreement between Mr Johnston and Mr Sculthorpe as to the vehicle orientation of the Monaro and Kia at the moment of collision. Each agreed that the scrape marks on the eastbound side of the roadway were likely to have been made by the exit path of the Kia. The distance travelled by the Monaro from the point of impact to rest was relevant to the calculation of the Monaro's impact speed as the shorter the distance the lower the speed of the Monaro. Mr Johnston calculated the distance from the area of impact which he had identified. The jury rejected Mr Sculthorpe's point of impact and Snr Const West's suggestion that the point of impact was the scrape marks in the eastbound was rejected by both Mr Sculthorpe and Mr Johnston. 36 In my opinion, the evidence of Mr Johnston can be accepted as forming part of the evidence available as to speed to be considered by the jury. Senior counsel for the appellant did not dispute that the jury could accept that evidence. That evidence did not stand alone. There was additional evidence of speed from Messrs Dykes, Boyd and Jacobs. 37 Mr Dykes' evidence was that he observed the Monaro coming around the corner in the opposite direction and that it was travelling "very fast". He formed that judgment when the Monaro was half way through its turn when it was in the gravel shoulder. Mr Dykes agreed in cross examination that when he spoke to a police officer at the scene he made no reference to the speed of the Monaro. He was a young man and had been on his P plates and driving for about six months. He said he did not tell the police officer of the speed of the Monaro because he was more concerned about the driver of the Kia, so he was thinking more along the lines of the direct incident, not the speed of any of the vehicles. 38 Mr Boyd had worked for a pit crew for a racing team and had a great interest in cars. He had held a driver's licence for 20-odd years. He gave evidence that he was driving east along Sheather's Lane when his vehicle was passed by the Monaro which he had observed coming toward him from the east. He said "It was coming toward me extremely fast". He continued to look in the rear vision mirror when the Monaro had passed and observed its brake lights come on before the bend and then he saw a big cloud of dust come up. He continued on his journey to Camden but on his return spoke to some police officers at the scene and told them of his earlier observations of the Monaro. He gave a written statement on 1 April 2005. He was cross examined principally in relation to his estimation of distances, the position where the vehicles passed and the existence of two rather than one small bridge on Sheather's Lane and differences between his evidence and the statement. 39 Mr Boyd was accompanied by his brother-in-law, Mr Jacobs. Mr Jacobs gave evidence that what he noticed about the Monaro was its speed, which was "excessively fast". After the Monaro passed, he turned his head to watch it. He saw its brake lights come on. He was cross examined about statements which he had given and his estimate of distances. 40 Mr Forrest said he only saw the Monaro for a split second before the accident. He gave no evidence as to its speed. 41 The jury had the opportunity of seeing and hearing each of these witnesses give evidence. It was open to the jury to regard the matters extracted in cross examination as peripheral and to accept the main thrust of the evidence of all three men that the speed of the Monaro was excessive. As was stated in M v The Queen "[this] court must not disregard or discount the consideration that the jury has had the benefit of having seen and heard the witnesses." 42 Having regard to the whole of the evidence as to speed, in my opinion it was open to the jury to be satisfied beyond reasonable doubt that the appellant was driving in a manner dangerous by reason of the speed at which he drove the Monaro. 43 The Crown also alleged that the appellant was driving in a manner dangerous by reason that he steered his car in such a way that it went onto the gravel on the southern side of the road or that he drove without proper attention to oncoming traffic or both. In R v Coventry (1938) 59 CLR 633 the High Court said that the relevant standard was an objective standard and that: "It is, in our opinion, wrong to exclude an act or omission from 'manner of driving' because it is casual or transitory in some senses in which these somewhat flexible words may be understood. Such an exclusion may even suggest that carelessness or inattention may constitute a defence to a charge under the relevant provision of the section. Sudden, even though mistaken, action in a critical situation may not, in all the circumstances of a case, constitute driving to the danger of the public. But casual behaviour on the roads and momentary lapses of attention, if they result in danger to the public, are not outside the prohibition of that provision merely because they are casual or momentary. Further, 'manner of driving' includes, in our opinion, all matters connected with the management and control of a car by a driver when it is being driven. It includes starting or stopping, signalling or failing to signal, and sounding a warning or failing to sound a warning, as well as other matters affecting the speed at which and the course in which the car is driven." 44 The driving of the Monaro in such a manner as to cause it to leave the bitumen carriageway at a speed in the order of 80-82 kph in circumstances where the road shoulder provided an uneven surface with an edge below the sealed road at a bend with oncoming traffic provided circumstances in which, in my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of driving in a manner dangerous to other road users.

The alternative ground 45 The jury retired to consider its verdict at 2.56 pm on 5 September 2006. It returned its verdict at 4.05 pm that day. 46 The appellant submitted that a deliberation of approximately one hour by the jury following the completion of his Honour's summing up could not possibly reflect consideration, discussion, assessment or analysis of the expert evidence. It was submitted the evidence was complex and required a thorough analysis which did not occur and that, accordingly, the Court should intervene, uphold the appeal and direct an acquittal. I do not agree. 47 The trial commenced on 21 August 2006. The Crown case closed on 29 August 2006. There was an opening address by senior counsel for the appellant and the evidence in the appellant's case continued until Monday 4 September 2006. Addresses then commenced on 4 September and concluded on the following day. His Honour summed up on 5 September articulating the respective cases. The jury was provided with numerous plans, photographs and a video of the scene during the course of the hearing. They also had the benefit of a view of the scene on the second day. 48 The jury's attentiveness and perception of the issues was illustrated by questions asked by them. At the outset of the Crown Prosecutor's address to the jury he commented: "…you have been very attentive during this trial… It occurs to me that this morning you really would have had a good opportunity to understand what the areas of difference are in this trial and what the respective cases are in this trial." 49 Senior counsel for the appellant in his address complimented the jury on the attention they had obviously paid to the evidence in the case throughout the trial. 50 The sentencing judge in his remarks on sentence said, whilst considering an application by the appellant for a certificate that the verdict was unsafe and unsatisfactory: "As is my normal practice, at the beginning of the trial I directed the jury that they might and should discuss aspects of the case amongst themselves at any time during the trial and that they should not reach any conclusion on any matter of fact until they had heard the addresses of counsel and my directions at the end of the trial. It is quite understandable that anything the jury heard from counsel or from me might simply have confirmed tentative or conditional views they had formed independently on relevant issues of fact during the trial, and a short period of consideration does not necessarily render the verdict unsafe and unsatisfactory."

51 The Crown submitted there was simply no good reason to suppose that the jury had not grasped the real issues in dispute by the time they retired to consider their verdict. I agree. In my opinion, the relatively short period of consideration would have been adequate for the jury to crystallise the views already formed. The verdict is not unsafe or unsatisfactory by reason of the time the jury took to consider the verdict. 52 The appeal against conviction should be dismissed.

The appeal against sentence 53 On 16 February 2007 the appellant was sentenced for the offence to imprisonment for a non parole period of eight months commencing on 16 February 2007 and a balance of term of eight months. The sentence was to be served by way of home detention pursuant to Pt 6 of the Crimes (Sentencing Procedure) Act 1999. The appellant was disqualified from holding a drivers licence for 18 months to date from 4 September 2006. 54 The Crown has appealed against the sentence on the ground it is manifestly inadequate. 55 The maximum penalty under s 52A(1)(c) is ten years imprisonment. The appellant was also liable to be automatically disqualified from holding a drivers license for a period of three years- Roads Transport (General) Act 1999 (repealed). 56 The Crown appeal was put on two bases:

(a) that his Honour erred in the approach he took to fact-finding after the guilty verdict; and

(b) the sentence imposed, even if there was no error in the assessment of the objective gravity of the offence, was manifestly disproportionate to the facts and circumstances of the case.

Error in approach to fact-finding by judge? 57 Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests upon the judge and not with the jury - R v Isaacs (1997) 41 NSWLR 474 at 477-478; Cheung v The Queen (2001) 209 CLR 1 at [14]. 58 The trial judge has to determine the facts upon which he should assess the degree of culpability of the offender in order to sentence him. He is bound to look at the evidence and to determine for himself, upon the criminal onus, what facts he should act upon. The view of the facts adopted by the judge for the purposes of sentencing must be consistent with the verdict of the jury - R v Martin (1981) 2 NSWLR 640, Isaacs and Cheung). 59 His Honour determined the degree of culpability of the appellant in order to sentence him. He held: "There is insufficient evidence to satisfy me beyond reasonable doubt that the offender was driving at a speed that exceeded that which a reasonable driver would do. The speed limit on the road was 80 kph and it appears to me more probable than not on all the evidence admitted at the trial that this was or was above the speed at which the offender was driving when he entered the curve prior to impact. It cannot, in my view, be regarded as a failure to exercise the level of care to be expected of a reasonable driver that he drove at about the speed limit."

In my opinion, it was open to his Honour to so find provided his findings were consistent with the jury's verdict. 60 His Honour's findings would not have been open to him if it was apparent beyond reasonable doubt that the jury's verdict was based upon a finding of excessive speed. His Honour considered the jury verdict and concluded:

(a) The jury must have accepted one or more of the four possible bases put to it by the Crown as a reason for finding that the offender's driving was dangerous to other persons. Those were, (1) excessive speed, (2) steering the Monaro in such a way that it went onto the gravel at the southern side of the road, (3) steering the vehicle onto the wrong side of the road, and (4) driving without proper attention to the oncoming traffic. It is impossible to say which of these the jury has found.

(b) There is no evidence whatever that [the appellant] deliberately drove his vehicle into the north-eastern lane of the road.

(c) I cannot accept that the jury must have been satisfied beyond reasonable doubt that the offender was driving at excessive speed. 61 I agree with these findings, the corollary to which is that, as his Honour held, the appellant was to be sentenced on the basis he failed to maintain the standard of driving to be expected of a reasonable driver, either in that he steered his car in such a way that it went onto the gravel or that he drove without proper attention to the oncoming traffic, or both, as these were the only versions of the facts upon which his Honour could find that the jury was satisfied beyond reasonable doubt. 62 In my opinion, no error has been demonstrated in respect of those steps taken by his Honour. 63 His Honour, in the course of his remarks on sentence, said: "There is clear authority in the High Court and the Court of Criminal Appeal that where the facts found by a jury are ambiguous, the sentencing judge must give the offender the benefit of any ambiguity,"

and that, when it is not clear what breaches the jury found, he must proceed in a way that was most beneficial to the offender. . 64 The Crown has submitted that these comments were indicative of error. In Martin this court found that a sentencing judge was in error in concluding that he was bound to act on the basis of the version of facts which was most favourable to the accused. However, in Isaacs this court stated: "4. A second constraint is that the findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt…. 5. There is no general requirement that a sentencing judge must sentence an offender on the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender…However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender…"

Those comments were referred to with approval by the High Court in Cheung. 65 The vice inherent in what was found to be error in Martin was that it caused the sentencing judge not to look at the evidence and determine for himself upon the criminal onus what facts he should act upon. That did not occur in the present case as his Honour made his own factual findings and gave reasons for them. 66 His Honour referred to Isaacs and Cheung in his remarks on sentence. In my opinion, his reference to giving the offender the benefit of any ambiguity and proceeding on the basis most beneficial to him reflects the practical effect recognised in Isaacs of the application of the principle that the findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 67 Notwithstanding his Honour's comments, which read without reference to the whole of his Honour's remarks would indicate error, I am satisfied his Honour determined the matter by the application of appropriate principles. In my opinion, no material error has been demonstrated.

Was the sentence manifestly disproportionate to the facts and circumstances of the case? 68 His Honour made the following findings:

(a) The appellant is a married man with five children. He was born in Italy [on 5 July 1949] and came to Australia when aged eight.

(c) He is a man of good character and a number of reputable people gave evidence as to his character in the highest possible terms. He is clearly well regarded in the community, both as an honest and reputable businessman and as a highly generous patron of a number of charities. His good character must be a significant factor in determining the sentence.

(d) The death caused a great deal of anguish to the appellant though on legal advice he did not contact the deceased's family to express his remorse.

(e) He suffers from depression, diagnosed in 1978 (for which he has been constantly on medication), anxiety and sleep apnoea, for which he uses a sleep apnoea machine.

(f) He has 20 driving convictions for exceed speed limit and one conviction for negligent driving. He was licensed approximately 32 years ago, since which time he has done much driving. He gave evidence, which was not challenged, that he drove between 1000-2000 kilometres per week and well over 100,000 kilometres per annum, and has done so for the last 15 or 16 years. The appellant's record was not an unusual one having regard to the large number of kilometres driven by the him each year though the record disentitled him to leniency. 69 His Honour found special circumstances by reason of the appellant's previous good character, the fact that he had not previously been in custody and his mental illness. He considered that the offence must be regarded as being toward the lower end in the range of seriousness and took into account as a relevant factor the anguish and grief occasioned by the death to the deceased's family and partner. 70 His Honour considered it was appropriate that the sentence should be served by way of home detention due to the appellant's health and other factors. He acknowledged that by being sentenced to home detention the appellant would be able to continue with his business and a relatively normal life and that the sentence was not as onerous as going to gaol full time 71 His Honour indicated that in the light of the jury's verdict, he had no alternative but to disqualify the appellant from holding a drivers licence, and he would impose an automatic period of three years disqualification subject to hearing submissions to the contrary. 72 The Crown submitted that the remarks on sentence indicated that his Honour paid no attention, or insufficient regard, to general deterrence; placed too much weight on good character; failed to appropriately take into account the appellant's driving record; erred in his approach to remorse; erred by "double counting" in relation to the finding of special circumstances; erred in the imposition of the term of sentence and in the making of a home detention order. 73 The Crown also submitted that the sentencing judge placed reliance upon R v Davies [2000] NSWCCA 84 and erred in so doing in that he mistook the head sentence to be one of 15 months rather than 3 years. However, the matter is unclear. His Honour, having noted that the present case was not so morally culpable as Davies (where the driver had killed a girl when he drove through a red light at a pedestrian crossing which the victim was using) proceeded to give a higher head sentence than that which he believed was given in Davies. 74 It was also submitted that his Honour erred in reducing the period of disqualification from driving from the automatic period of three years to 18 months. However, having regard to the appellant's significant need for a licence for the purpose of his business activities, in my opinion the reduction of the automatic period of disqualification to 18 months was within the proper exercise of the wide discretion given to his Honour in relation to this question. 75 A non custodial sentence for an offence against s 52A is almost invariably confined to cases involving momentary inattention or misjudgement - R v Whyte (2002) 55 NSWLR 252 at 284; R v Jurisic (1998) 45 NSWLR 209. 76 The basis upon which his Honour sentenced the appellant was at the lower end of the range of seriousness. It involved little more than momentary inattention or misjudgement. 77 The High Court held in Markarian v The Queen (2005) 215 ALR 213: "…there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." 78 Crown appeals are subject to considerable restraints. These were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] and include the following principles: "(b) Appeals by the Crown should generally be rare and unless there is a clear error of principle identified, it would be exceptional for the court to interfere. (c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons' … but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court and will generally be towards the lower end of the available range of sentence." 79 In my opinion, having regard to the constraints imposed upon this Court in intervening in a Crown appeal, that the offence as found by the sentencing judge was at the lower end of the sentencing range for offences of this nature and the strong subjective case, I do not consider it appropriate for this Court to exercise its discretion to intervene. 80 I propose the following orders:

(1) The appeal against conviction is dismissed; (2) The appeal against sentence is dismissed. 81 HARRISON J: I agree with Hislop J. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.