R v RADLEY [2010] NSWCCA 64 | Case summary

Judgment 1 BEAZLEY JA: I agree with Grove J. 2 GROVE J: This is a Crown appeal against sentence pursuant to s 5D of the Criminal Appeal Act 1912. 3 The respondent pleaded guilty to a charge of dangerous driving occasioning death and he asked to be taken into account on sentence a further offence of doing an act with intent to pervert the course of justice. The indicted offence has attached to it a maximum prescribed penalty of ten years imprisonment and the offence on the Form 1 a prescribed maximum penalty of fourteen years imprisonment. 4 North DCJ (the Judge) sentenced the respondent to imprisonment for two years with a non-parole period of one year four months to be served by periodic detention. The sentence was ordered to commence on the date of imposition, 4 December 2009. 5 We are informed that on 17 December 2009 a Deputy Director of Public Prosecutions signed a notice of appeal which was served on the respondent on 19 December. An amended notice of appeal dated 29 March 2010 specifies a single ground in these terms: "The sentence is manifestly inadequate as it fails to give proper weight to the objective seriousness of the offence." 6 The amended notice of appeal records the non-parole period as eighteen months which is inconsistent with the transcript of the Judge's remarks on sentence and a typescript of the sentence and orders signed by him apparently to be treated as the endorsement on the back of the indictment. 7 The facts were outlined in a statement and acknowledged to be accurately summarized in the Crown written submissions and I draw the following therefrom: "Briefly, around 6:50am on Thursday 5 July 2007 the respondent was driving his Ford utility south along Mirannie Road, Mirannie. His sixteen year old son was in the front passenger's seat. At the same time Martin Kelly, the victim, was riding his Suzuki motorcycle north along Mirannie Road. Also at that time Gary Gallard was driving his Pajero south along Mirannie Road, in front of the respondent's vehicle, at a speed of 95 kilometres per hour. Ellen Ingram was the front-seat passenger in Mr Gallard's vehicle. Mr Gallard had earlier overtaken the respondent. At the time the weather was fine, the roadway and surrounds were dry, and it was dawn. Mirannie Road at this location runs in a generally north/south orientation. There is one lane provided for southbound traffic and one lane provided for northbound traffic. There are no separation lines dividing opposing traffic lanes. The bitumen road width measures six metres. The outer edges of Mirannie Road are bordered by dirt and vegetation. The area is best described as rural. The speed limit applicable to this portion of Mirannie Road is 100 kilometres per hour. Approaching the collision scene from the direction given by the respondent, traffic encounters a straight section of roadway, then negotiates a gradual left hand bend on a slight uphill grade, continuing to the crest of the hill at the collision location, before leaving the collision scene along a straight portion of roadway. As the respondent was travelling behind the vehicle driven by Mr Gallard, and was commencing to negotiate the gradual left-hand bend, he attempted to overtake Mr Gallard's vehicle. In doing to he crossed to the incorrect side of the road. At the same time the victim was approaching the right hand bend at the collision scene. The respondent's vehicle impacted heavily with the victim's motorcycle. The impact took place wholly within the precincts of the northbound lane, the lane occupied by the victim's motorcycle. The respondent then tried to influence Ms Ingram and Mr Gallard to say, in effect, that the bike rather than he was on the incorrect side of the road. After Mr Gallard refused to do this, the respondent replied, 'You do whatever you have to do'. As a result of the collision the victim suffered serious injuries and died at the scene. The autopsy report noted death was due to multiple injuries which included a major head trauma, aortic lacerations, and fractures of the spine, pelvis and limb bones. The severity of the injuries is consisted with a rapid death." 8 It is noted that the impact was described as occurring at dawn. There was no evidence concerning the illumination or otherwise of any lights on the motorcycle or the respondent's vehicle. 9 The Judge expressly declared the attention which he paid to the objective seriousness of the offence and his findings in that regard were: "Turning to the objective seriousness of the offence, there can be no doubt that this is a serious offence. The legislature has always recognised a premium upon human life. As the authorities make abundantly clear, the real gravamen of the offence is not just the dangerous driving, it is dangerous driving in association with the taking of a human life. General deterrence is usually given primacy over other sentencing considerations. The authorities are clear that in assessing the objective gravity of this offence I must identify the degree of moral culpability involved. In relation to this offence there is a wide spectrum of behaviour indicative of differing degrees of moral culpability. The term 'abandonment of responsibility' is one method of describing a high degree of moral culpability while the term 'momentary inattention, or misjudgement' is commonly used to describe a low order of moral culpability." 10 As he observed, there is no obligation to ascribe these lastmentioned labels to any particular case. His expression of finding was in these terms: "I find that the offender, in electing to overtake where he did, misjudged the time it would take, and/or the distance to the apex of the left hand bend, after which vision vanishes. Given the lack of unbroken, or indeed any lines, and the lack of signage prohibiting passing, it was not against the road rules to overtake on this area of Mirannie Road before reaching the bend, however it was the offender's course of driving over some distance, and failing to complete the passing manoeuvre before reaching the bend, which caused the collision and the death…" 11 The relevant offence has been the subject of two important guideline judgments delivered by this Court. 12 It suffices for present purposes to note that in R v Jurisic (1998) 45 NSWLR 209 a guideline was promulgated in these terms (at page 231E): "A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment." 13 I do not understand the word "momentary" in that guideline to be intended to qualify "misjudgement" although, of course, in some cases it may be apt. I add that obviously a sentence to be served by way of periodic detention is not wholly non-custodial although it inheres a significant degree of leniency: R v Hallocoglu (1992) 27 NSWLR 67. 14 In R v Whyte (2002) 55 NSWLR 252 what had been described as a numerical guideline in Jurisic, being a custodial element of sentence of not less than three years unless exceptional when there had been present an aggravating factor or factors, was affirmed. Those factors were scheduled (at page 286): "(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. (x) Degree of sleep deprivation. (xi) Failing to stop. " 15 The death of a victim was a necessary ingredient of the charge in the present case and was not an additional aggravating factor. 16 The Judge recorded that the Crown did not suggest that any of the aggravating factors mentioned in Whyte were present. 17 In support of the appeal the Crown referred to the "guide" available from Whyte but did not demonstrate that the acknowledgement recorded by the Judge was erroneous. Nothing in the material otherwise would point to its being in error. 18 No challenge was offered to subjective findings favourable to the respondent which had been made by the Judge and it is not necessary to recapitulate them as they were clearly open to be found and appropriately noted in the Remarks on Sentence. 19 The finding that the respondent's culpability derived from misjudgment, unaggravated by any factor such as those contemplated in the schedule extracted above from Whyte, has not been shown to be wrong. The sentence does not fail to reflect the objective seriousness of the offence and in my opinion the ground is not made out. 20 In stating that conclusion I do not overlook the Form 1 offence which the Judge categorized as "a clumsy attempt in the heat of the moment which was quickly abandoned". That finding was not the subject of challenge in the appeal. 21 Reference was made to Thai v R [2009] NSWCCA 314 in which different approaches to the assessment of adequacy or inadequacy of sentence assessment where there has been an order that it be served by way of periodic detention were discernible in the respective judgments of McClellan CJ at CL and Simpson J. The third member constituting the Bench on that occasion (Hidden J) reserved his opinion on any such difference. The present case does not require an expression of preference for either approach. Whichever is utilized, the ground relied upon by the Crown is not made out. 22 I would dismiss the Crown appeal. 23 HISLOP J: I agree with Grove J.

R v RADLEY

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