R v Woodward [2001] NSWCCA 90 | Case summary

1 STUDDERT J: The applicant, Christopher Paul Woodward, stood trial in the District Court before Acting Judge Wall QC and jury charged with aggravated dangerous driving occasioning death. The applicant was convicted and sentenced to a term of imprisonment of eight years. His Honour found special circumstances and, accordingly, set a minimum term of five years and an additional term of three years imprisonment. 2 The applicant seeks leave to appeal against the sentence imposed. 3 The relevant facts as found for sentencing purposes were as follows: 4 On 10 January 1999 at about 11.30 pm the applicant was driving a motor vehicle on Barrenjoey Road. He had a passenger in the vehicle named Thomas Lang. The applicant was driving in a northerly direction when the vehicle left the road, eventually colliding with a power pole on the north-western corner of Polo Avenue which forms a T intersection with Barrenjoey Road on the western side of Barrenjoey Road. The passenger, Thomas Lang, died from injuries sustained in the collision. Blood analysis revealed that the applicant had a blood alcohol level at the relevant time of 0.216, which is over four times the prescribed limit. 5 The applicant and his now deceased passenger had worked together in a car dealer's yard. On the evening of Sunday 10 January 1999 the applicant drove the deceased to the Newport Arms Hotel where the applicant had a quantity of beer. Then the applicant and his passenger went to a café at Collaroy where they stayed until about eleven o'clock. Whilst in that café the applicant drank a quantity of beer and a quantity of vodka tonics. Having left the café, the applicant set off to drive his passenger home, and had travelled some 8-10 kilometres before the accident occurred. 6 The sentencing judge referred to the features of the roadway in the vicinity of the accident and I draw on what his Honour had to say in this regard. The applicant travelled along Pittwater Road, a main arterial road which became Barrenjoey Road at Mona Vale. The applicant proceeded through the intersection of Darley Street and Barrenjoey Road and had to negotiate a sweeping left hand bend to reach the point where Barrenjoey Road intersects with Polo Avenue. The applicant's vehicle was seen to be travelling at a speed described by an eye-witness as normal speed as it approached the left hand bend. The vehicle then proceeded in a sliding sideways movement, with the front of the vehicle pointing to the west and the boot to the east, continuing in that way until the front wheels impacted with the western kerb of Barrenjoey Road to the south of the intersection with Polo Avenue. The vehicle continued to move across the intersection with Polo Avenue, still sliding sideways, then mounted the kerb, crossed the grass verge and struck the telegraph pole. Then the vehicle left the ground and spun around, coming to rest beside the pole on the north side, with the engine facing east. 7 At his trial the applicant admitted he was the driver of the motor vehicle, that the vehicle was involved in a collision causing death and that at the time of that collision he was under the influence of intoxicating liquor in circumstances of aggravation. The only issue litigated was whether the death of the deceased was attributable to the fact that the applicant was under the influence of intoxicating liquor. The issue was a defence raised under s 52A(8) of the Crimes Act, it being contended on behalf of the applicant that the true cause of his vehicle leaving the road was a mechanical defect. 8 The finding by the jury that the applicant was guilty did not eliminate the need for the learned judge to consider whether the mechanical condition of the car played a role in the accident when he came to his task of sentencing the applicant. I shall refer later to the finding the judge made as to whether any mechanical failure occurred. 9 Turning to the subjective features of the case, the applicant was a young man twenty-four years of age at the time of the offence. He had no criminal record of any significance and the sentencing judge assessed the subjective circumstances as being "highly favourable" but for his very poor driving record. The applicant had first obtained a provisional licence at the age of eighteen but he lost that by reason of accumulation of demerit points after nine months. He obtained a further provisional licence in 1993 but lost that through the accumulation of demerit points in 1996. A probationary licence was issued that same year but that was lost also within a matter of months, for the accumulation of demerit points and in 1996 the applicant was convicted of driving with a high range prescribed concentration of alcohol and was disqualified for a period of twelve months. A probationary licence issued again in September 1997, and in December 1998 the applicant was issued with an unrestricted licence which he had only held for a matter of some three weeks before the fatal accident. His Honour rightly described the applicant's record as "a disturbing traffic record for a young driver." 10 That subjective circumstance apart, his Honour's assessment of the subjective features was, as I have already recorded, a highly favourable one. He had a history of regular employment and a history of regular engagement in voluntary community work. He enjoyed a reputation of being of good character, being highly regarded in his social circumstances. The judge found from material put in evidence that the applicant had manifested strong remorse and contrition for what had occurred and he found that the applicant was suffering from, and receiving treatment for, post traumatic stress disorder brought on by his reaction to the accident and to the death of his acquaintance. 11 Against this background, I turn to consider the submissions advanced on behalf of the applicant. 12 It was submitted that the overall sentence was manifestly excessive for these reasons:

(v) insufficient credit was given to the applicant for the comprehensive admissions made by him at trial and the strictly limited basis upon which the plea of not guilty was entered. 13 I shall deal with these submissions in the order in which I have recorded them. 14 His Honour expressed reasons for the sentence he imposed which were fully and carefully expressed. In considering the gravity of the offence, his Honour did so having referred to the expert evidence given as to the effect that the alcohol which the applicant had consumed would have had upon his driving ability. Ms Pearl, a forensic pharmacologist, gave evidence which his Honour observed was unchallenged. Her evidence was that with a blood alcohol level of 0.216, there was very significant impairment of all driving skills. Perceptions of the traffic environment are significantly impaired; there is delay in the driver's decision making process; the driver's visual sense is significantly impaired; the driver will only focus on that information that is straight in front of him or is the focus of his gaze; glare resistance is significantly impaired; and crash risk is greatly increased so that at 0.15 the risk of a driver being involved in an accident is more than forty times greater than the risk for a person who has not been drinking. His Honour remarked upon the clear legislative intention in the amendments introducing s 52A of the Crimes Act, as it now stands, which was to provide stern punishment for offences of the type to which the section applies. As his Honour remarked, the effect of the amendment was to nearly triple the maximum penalty for an offence such as that for which the applicant was to be punished. 15 Section 52A(2), which is directed to the offence of aggravated dangerous driving occasioning death, provides for a maximum penalty of fourteen years imprisonment. 16 His Honour's assessment was that the degree of intoxication such was "so gross as to demonstrate a wilful abandonment by the prisoner of his responsibility to drive the vehicle safely" (ROS 19). It seems to me that that was a conclusion to which his Honour was entitled to come having regard to the quantity of alcohol that the applicant had had. The Crown was correct to emphasise that the conduct of the applicant was quite deliberate since he admitted to the judge in his evidence that he knew he was over the limit before he started to drive and said that he was attempting to drive in such a way as to not attract attention. 17 In view of the circumstances addressed in his Honour's remarks upon sentence and reviewed above it does not seem to me that his Honour's finding that this case was to be categorised in the more serious category of offences under s 52A(2) was erroneous. 18 The applicant sought at the trial to establish that the accident was due to a mechanical failure, the mechanical failure being in a part known as a constant velocity joint which impacted upon steering control. Under s 52A(8) it would have been a defence to the charge under the section if the death occasioned by the impact was not in any way attributable to the fact that the applicant was under the influence of intoxicating liquor, and the applicant gave evidence seeking to account for this accident by reason of mechanical defect. It was for the applicant to prove on the balance of probabilities that such was the case. However, as I remarked earlier, the jury's verdict did not eliminate the need for the judge to determine whether mechanical defect made a contribution to the cause of the accident. 19 His Honour recognised the requirement to consider this question and he addressed it at pp 15-19 of the remarks on sentence. His Honour considered the evidence that witnesses gave on the question but made the finding that he was not satisfied on the balance of probabilities that the vehicle experienced a constant velocity joint failure as it approached Polo Avenue. His Honour further found that he was not satisfied that the vehicle initially went out of control by reason of such a mechanical defect. 20 The conclusion that his Honour reached was a conclusion of fact and one that he was entitled to come to having heard and assessed the evidence in point. This Court must approach its task recognising this to be the case. 21 The next ground argued was that insufficient weight had been given to the subjective circumstances, particularly the applicant's significant rehabilitation and his remorse. His Honour addressed both matters and I have referred earlier to his assessment that the subjective features were highly favourable to the applicant. His Honour said that he gave "full weight" to those circumstances and 'full weight" to the contrition and to the remorse shown by the applicant. His Honour also stated that he gave full weight to the applicant's recognition of the need for rehabilitation and to the "positive and constructive steps" that the applicant had taken towards that rehabilitation by receiving drug and alcohol abuse counselling at a clinic. The remarks on sentence do not indicate any such failure to weigh those subjective features. 22 The applicant next submits that there was insufficient credit given to the applicant for the admissions which were made. In my opinion, there is no substance in this submission. His Honour recorded in his remarks on sentence the admissions made and the limited issue that arose at trial but the admissions related to matters which the Crown was in a position to prove, and the reality is that these admissions would have saved little trial time. Certainly the applicant was entitled to have taken into account in his favour the utilitarian effect of those admissions, but I do not perceive this feature of the case to be of other than of very limited significance. 23 Having considered his Honour's sentencing remarks, I detect no error of principle. This leaves, however, the question as to whether the sentence imposed was manifestly excessive. 24 Mr Byrne, in submitting that it was, referred the Court to a number of decisions of this court concerning sentences for offences under s 52A of the Crimes Act: 25 R v Sen [1999] NSWCCA 199. The offender pleaded guilty to two counts of aggravated dangerous driving causing death. The concentration of alcohol in the blood of the offender was 0.219. The offender drive through a traffic light and caused the death of two persons in the accident that followed. The District Court judge imposed a head sentence of nine years in the mistaken belief that excessive speed was also involved. On appeal, that error having been addressed, this court sentenced the offender to total terms of seven years imprisonment, setting minimum terms of five years three months. 26 R v Jaworowski 108 A Crim R 489. This offender pleaded guilty to dangerous driving causing death in circumstances of aggravation. The offender drove his vehicle out of the driveway of his home and into collision with a motorcycle causing the death of the motorcyclist. A roadside breath test returned a reading of 0.240 g of alcohol per 100 ml of blood and a later test produced a reading of 0.270. Two weeks before this fatal accident the offender had been disqualified after a conviction for driving whilst there was present in his blood the high range prescribed quantity of alcohol. This offender was sentenced to a head sentence of eight years with a six years minimum term. On appeal, a finding of special circumstances was made and the sentence was restructured to a minimum term of five years and an additional term of three years. 27 R v Dhanhoa [2000] NSWCCA 257. The offender pleaded guilty to a count of dangerous driving causing death. A passenger in a car he was driving was killed when the offender failed to negotiate a left hand bend in the road, eventually colliding with a tree. When analysis of the blood alcohol content was undertaken, a reading of 0.175 was obtained but the alcohol content may have been as little as 0.144 at the time of the accident. The sentencing judge imposed a sentence of three years with a minimum term of one year and an additional term of two years. An appeal by the Crown to this court was dismissed. 28 R v Gleeson [2000] NSWCCA 101. The offender pleaded guilty to two charges of dangerous driving occasioning grievous bodily harm, for which offences the maximum penalty was seven years imprisonment. The offender had a reading of 0.149 g per 100 ml of blood on testing after the accident, which occurred when he lost control of his vehicle causing injury to two persons. The judge imposed concurrent sentences of two years imprisonment with a minimum term in each case of eighteen months. The offender sought leave to appeal and this was refused. 29 R v McKinney [1999] NSWCCA 51. The offender pleaded guilty to a charge of aggravated dangerous driving causing death. The blood alcohol in that case was not less than 0.166 g per 100 ml of blood. This offender lost control of his truck after driving erratically and his wife, who was a passenger in the vehicle, was killed. There was a Crown appeal from a sentence of three years imprisonment to be served by way of periodic detention. This court on appeal imposed a term of three years imprisonment with a minimum term of one year six months. 30 R v Khatter [2000] NSWCCA 32. The offender pleaded guilty to dangerous driving causing death. The concentration of alcohol in that case was around 0.105 g per 100 ml. The offender was sentenced to two years imprisonment to be served by way of periodic detention and on a Crown appeal this court resentenced the offender to three months imprisonment. 31 R v Hanlon [2000] NSWCCA 55. The offender pleaded guilty to aggravated dangerous driving causing death. The offender lost control of a vehicle and in the accident that followed his brother, who was a passenger, was killed. In this case, the blood alcohol concentration would have been not less than 0.180 g per 100 ml. A sentence of five years, comprising a minimum term of three years nine months and an additional term of one year three months, was imposed but restructured in this court on a finding of special circumstances. This court imposed a minimum term of three years and an additional term of two years. 32 R v Kalanj (1997) 98 A Crim R 505. The offender had pleaded guilty to a charge of aggravated dangerous driving causing death and had been sentenced to a total term of three years imprisonment with a minimum term of eighteen months. With a blood alcohol level of 0.16 g of alcohol per 100 ml of blood, he had lost control of his vehicle crossing to the wrong side of the road and causing a head on collision. He was on a community service order at the time and had a number of previous convictions related to alcohol abuse. On a Crown appeal to this court, the appeal was allowed and the offender was sentenced to five years imprisonment with a minimum term of two years six months. The appeal in this case was dealt with before the guideline judgment in R v Jurisic (1998) 101 A Crim R 259. 33 Of the cases to which the Court was referred and which are above reviewed, Jaworowski was the only one in which the sentence ultimately imposed was as high as the one imposed upon the applicant in the present case. In Jaworowski Simpson J remarked that the sentence under challenge then was said to be the longest on record for an offence under s 52A of the Crimes Act. When one compares Jaworowski with the present case, the reading was higher in Jaworowski and there was the added circumstance there that the offender was at the time a disqualified driver for the reasons to which I referred. On the other hand, the present applicant's driving history was very poor and in Jaworowski there was a plea of guilty, absent in the case of the applicant. 34 However, having made those observations as to Jaworowski, I recognise that one must be careful not to be unduly influenced by comparing case with case. No one case sets an appropriate sentence for another case and no two cases are the same. I add that five of the cases reviewed above came before this court by way of Crown appeals, with the special considerations referable to appeals of that kind. 35 Ultimately, I have not found the study of the above cases to be very helpful in determining whether the applicant's sentence was manifestly excessive. The sentence imposed was a severe one, but this court must recognise the discretion of the sentencing judge. Notwithstanding the "highly favourable" subjective features identified in the sentencing remarks, the objective gravity of the offence was such that I find myself unable to conclude that the sentence manifests error. 36 Accordingly, in my opinion, whilst leave to appeal should be granted, the appeal should be dismissed. I propose orders accordingly. 37 BARR J: I agree with Studdert J. **********

R v Woodward

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