Regina v Clampitt-Wotton

IN THE COURT OF CRIMINAL APPEAL 60383/02

LEVINE J HIDDEN J HOWIE J

30 October, 2002 REGINA v Anthony James CLAMPITT-WOTTON

1 LEVINE J: I agree with Hidden J. 2 HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act, against sentences imposed upon the respondent in the District Court after he was found guilty at trial of two charges of dangerous driving occasioning death and two further charges of dangerous driving occasioning grievous bodily harm. The charges of dangerous driving occasioning death, brought under s 52A(1)(c) of the Crimes Act, carry a maximum sentence of imprisonment for 10 years. The charges of dangerous driving occasioning grievous bodily harm, brought under s 52A(3)(c), carry a maximum sentence of seven years. On the major charges the sentencing judge passed concurrent sentences of imprisonment for two years with a non-parole period of twelve months. On the lesser charges his Honour passed concurrent fixed terms of imprisonment for six months, those terms also being concurrent with the twelve month non-parole period. Effectively, then, the respondent was sentenced to imprisonment for two years with a non-parole period of twelve months.

Facts 3 The charges arose from a tragic accident which occurred in Cowpastures Road, West Hoxton on the morning of 14 September 1999. Ms Patricia Lerch was driving her Holden Gemini sedan in Cowpastures Road, approaching the intersection with Nineteenth Avenue. Her three daughters, aged from two to eleven years, and her five year old son were passengers in the vehicle. There was a line of five cars stopped at the intersection, waiting to turn right into Nineteenth Avenue. Ms Lerch stopped behind them. Also approaching the intersection was a heavy truck, driven by the respondent. He failed to stop and collided with the rear of Ms Lerch's car. 4 Two of Ms Lerch's daughters, aged two and four, died as a result of the collision. Her eleven year old daughter and five year old son suffered serious injuries. The daughter lost consciousness and sustained a small laceration to her forehead, a compound fracture of her left occipital bone and mild traumatic brain injury. Although psychologically traumatised, she was reported to have made an excellent physical recovery. The son suffered fractures to the right tibia and fibula, resulting in a slight shortening of his right leg. 5 His Honour made a number of findings of fact for the purpose of sentence which were not challenged by either party to this appeal. The weather at the time was fine, the road was dry, and visibility was unobstructed. The respondent was a truck driver by profession. It was not the first time he had driven the truck involved in the collision and he was familiar with the route along Cowpastures Road. He did not apply his brakes before the collision. He was not driving at an excessive speed and, if he had been keeping a proper look out, he should have been able to stop in time. 6 The respondent told police, and his Honour appeared to have accepted, that he had little or no recollection of the collision or of what occurred immediately prior to it. However, two drivers travelling in the opposite direction gave evidence that the respondent took his eyes from the road, looking downwards and to his left, just before the impact. One of them, Mr McKenna, said that he glanced up for a couple of seconds and then appeared to look down again. This evidence led to his Honour's crucial finding for the purpose of sentence, which he expressed in his remarks on sentence as follows: … clearly it is consistent with the verdicts, that the offender was not looking ahead, but was intent upon doing something else whatever that may have been. It is not for me to speculate as to what caused or motivated the offender not to look ahead, nor to speculate as to what he was doing. What is to the point is that the offender did not attend to his driving in the circumstances of that occasion. … Clearly, one cannot quantify accurately in terms of seconds or parts of seconds the dynamics of that which Mr McKenna observed. But accepting as I do Mr McKenna's evidence, that having looked down, the offender glanced up and then looked down again, one is led to the inescapable conclusion that the offender made a deliberate decision and in looking down took a calculated risk. 7 His Honour noted that there was a volume of traffic in the area at the time, and that people were driving to work or taking their children to school. In the circumstances, he rejected a submission on behalf of the respondent that his manner of driving amounted to no more than momentary inattention. That expression, his Honour said, was inadequate to "describe the serious disregard by the offender of his obligation as a driver of that vehicle on that occasion".

Subjective case 8 The respondent was thirty-four years old at the time of the offences, and is now thirty-six. He has no prior convictions. He has a minor traffic record, which his Honour treated as of no significance. He has been in a stable de facto relationship since 1998, which produced two children. His partner has three children from a previous relationship, who were living with them. He has a son from a previous relationship, who has been living with his mother. 9 The respondent attained the higher school certificate and had been in steady employment since. He had been a truck driver since 1993. After the accident, he did not drive any vehicle and handed in his licence. 10 For a time he went back to work as an offsider to a truck driver but that did not continue. He and his partner purchased a take-away food business, which they operated for about twelve months. However, the business failed because of vandalism and harassment, apparently as the result of publicity about the accident. They went into voluntary bankruptcy, and at the time of sentence they had accrued debts of about $197,000 and were facing the loss of their home. 11 His partner gave evidence, attesting to his remorse and to the severe emotional effects of the accident upon him. In a pre-sentence report, a Probation and Parole officer observed that he "displayed a high degree of unresolved trauma, which he attributed to the deaths and injuries to the victims and also to the alleged harassment and threats made to him and his family, which has led inadvertently to the loss of his business and home".

The appeal 12 In this Court, the Crown prosecutor argued that each of the four sentences is manifestly inadequate, and that the effective total sentence of two years with a non-parole period of twelve months fails to reflect the totality of the respondent's criminality. In particular, he submitted that the sentences are disproportionate to the seriousness of the offences, fail to give adequate weight to the consideration of general deterrence and, as far as the charges of dangerous driving causing death are concerned, fail to recognise that the gravamen of that offence is not just the dangerous driving but also the taking of human life. Finally, he argued that his Honour fell into error in directing that all four sentences be served concurrently. 13 In R v Whyte [2002] NSWCCA 343, this Court revisited its guideline judgment in respect of offences under s 52A of the Crimes Act in R v Jurisic (1998) 45 NSWLR 209. His Honour did not have the benefit of that recent decision at the time he passed sentence. In Whyte (at para 204) Spigelman CJ identified features of a typical case as follows: (i) Young offender.

(ii) Of good character with no or limited prior convictions.

(iii) Death or permanent injury to a single person.

(v) No or limited injury to the driver or the driver's intimates.

(vii) Plea of guilty of limited utilitarian value. 14 In Jurisic (at 231) the Chief Justice had set out a list of aggravating factors established by the authorities, and in Whyte (at paras 216-7) his Honour enunciated a revised list of those factors as follows:

(vii) Length of the journey during which others were exposed to risk.

(xi) Failing to stop. 15 The Chief Justice went on, adopting what he had said in Jurisic, to observe that the first two of those factors focus on the occurrence, whereas the others relate to the conduct of the offender. The presence of those other factors might indicate that the offender had abandoned responsibility for his or her own conduct, and would bear upon an assessment of the moral culpability of the offender at the time of the offence: Whyte at paras 218 and 228. His Honour continued: 229 The guideline for offences against s 52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. 230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. 231 In the case of the aggravated version of each offence under s 52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. 16 The Chief Justice emphasised (at para 232) that the guideline is a "guide" or a "check", and that the appropriate sentence in each case must be determined by the exercise of a broad discretion. His Honour also observed that the guideline focuses on the objective circumstances of the offence, and that the offender's subjective circumstances must also be considered. 17 The present case differs in several respects from the typical case identified in Whyte at para 204. The respondent is not a young man and did not plead guilty. Far from death or permanent injury to a single person, two children were killed and two others were seriously injured. Turning to the aggravating factors listed at paras 216-17, the extent and nature of the injuries inflicted were very serious and the respondent's manner of driving was such as to put a significant number of people at risk. On the other hand, his conduct did not exhibit any of the other factors referred to. 18 Counsel for the respondent, Mr Dhanji, argued that the accident was the result of misjudgement and that the respondent's conduct was at the lowest end of the scale in terms of moral culpability: cf Whyte, per Spigelman CJ at para 214. It is true that one could readily imagine a much more culpable course of driving. The respondent was not driving recklessly, at an excessive speed or under the influence of alcohol. Nevertheless, his inattention at the critical time cannot fairly be described as misjudgement. As I have said, the sentencing judge did not see the accident as the product of momentary inattention. His Honour's unchallenged findings, set out in paras 5 and 6 of these reasons, were that the respondent took a calculated risk in taking his eyes from the road and that, given the volume of traffic and conditions at the time, he was in serious disregard of his obligation as the driver of a heavy vehicle. That is the measure of his blameworthiness, and nothing would be gained by an attempt to assign to his conduct some position within a notional scale of culpability. 19 Mr Dhanji relied upon three decisions of this Court in cases involving driving which amounted to more than momentary inattention, but all of them are distinguishable from the present case and are of little assistance in resolving this appeal. In R v Mansour [1999] NSWCCA 180, a sentence of four years for one charge of dangerous driving occasioning death was reduced to two years, comprising a minimum term of twelve months and an additional term of twelve months. In R v Foster [2001] NSWCCA 215, a Crown appeal against a suspended two year sentence for one charge of dangerous driving occasioning death was dismissed. Apart from other distinguishing features, each of those cases involved the death of one person only. 20 Of more significance is R v Oddie [2001] NSWCCA 524, in which an effective sentence of two years with a non-parole period of twelve months for one count of dangerous driving occasioning death and two counts of dangerous driving occasioning grievous bodily harm was reduced to sixteen months with a non-parole period of eight months. However, the Court intervened in that case because the sentencing judge had made no clear finding about the culpability of the offender's driving apart from accepting a Crown submission that it was more than misjudgement. 21 Of course, appropriate weight must be given to the respondent's subjective case. It is true, as Mr Dhanji pointed out, that he suffered a significant measure of extra curial punishment as a result of the vandalism and harassment to which I have referred, leading to the collapse of his business and his financial ruin, and that that is a matter properly to be taken into account: cf R v Allpass (1994) 72 A Crim R 561 at 566. Similarly, regard should be had to the severe and continuing psychological effect upon him of the accident: R v Dhanhoa [2000] NSWCCA 257, per Priestley JA at paras 12, 24, 34 and 40-44. 22 However, while giving full weight to those matters, I am satisfied that the effective sentence passed upon the respondent is manifestly inadequate and that this Court must intervene. I am not dissuaded from that conclusion by some additional evidence which we received going to our residual discretion to dismiss the appeal, although that material must be taken into account on re-sentence. 23 The primary reason why I would increase the sentence is that it fails to reflect the seriousness of the offences, given the particularly tragic consequences of the accident. As Hunt CJ at CL observed in R v Musumeci (CCA, unreported, 30 October, 1997) the "real substance" of the offence of dangerous driving occasioning death is "not just the dangerous driving; it is the dangerous driving in association with the taking of a human life" (at p 5). Similarly, the extent of physical injury is relevant to the assessment of the seriousness of an offence of dangerous driving occasioning grievous bodily harm. 24 It is this which is reflected in the first of the aggravating factors set out at para 216 of Whyte, that is, the extent and nature of the injuries inflicted, while para 231 recognises that the number of victims must bear upon the appropriate sentence. The sentence of two years in the present case is not adequate to denounce a course of driving which took the lives of two young people and seriously injured two others. Nor does it serve the requirement of general deterrence, so as to emphasise the special need for vigilance on the part of the drivers of heavy vehicles. 25 None of this is to deny that sentencing for offences of this kind is notoriously difficult. So much was recognised by Hunt CJ at CL in Musumeci. His Honour observed (at p 8) that "… sentencing in this type of case presents a particularly difficult task. They almost always are sad cases for everyone involved." The devastating effect of this tragedy upon Ms Lerch and all the loved ones of those unfortunate children hardly needs to be stated. For their part, the lives of the respondent and his wife will never be the same again. 26 What, then, is to be done? The fresh material before this Court comprises a recent psychological report, and certificates from the Department of Corrective Services attesting to the respondent's good behaviour and industriousness whilst in custody. The psychological report affirms the evidence which was before his Honour of the emotional effect of the accident upon the respondent. It also discloses that the children's education has been disrupted through their being taunted at school about the incident. The psychologist saw the respondent on 6 September 2002, and noted what she considered to be "remnants of what was probably a severe Post Traumatic Stress Disorder" resulting from the accident. She observed him to be "profoundly remorseful" and to have "demonstrated empathy for the parents of the victims based on a personal understanding of parental love and attachment." She found him also to be suffering for his own family who were "sharing his trauma in different ways …". 27 The psychologist noted that the respondent had not had adequate counselling whilst in prison, due to the fact that the resources of the psychology staff were "always stretched." She concluded: "Anthony's personal qualities and his understanding of the joys and responsibilities of parenthood make his private grief over the offences very poignant indeed. He is unlikely to ever completely leave this tragic incident in the past, an experience he knows he shares with the parents of the victims." 28 The respondent was sentenced on 11 April 2002, some six months ago. The principle of double jeopardy in Crown appeals means that he should not now have to face a sentence of the severity which might then have been passed upon him. The sentence which this Court passes should be the least which could properly have been imposed upon him at first instance: Jurisic at 232. In my view, that would be an effective sentence of four years with a non-parole period of two years. I would achieve this by increasing the sentences on each of the first two counts accordingly. I do not consider that accumulation is called for. Clearly, there are special circumstances and the Crown prosecutor did not suggest otherwise. 29 I would allow the appeal. I would quash the sentence on the first two counts and on each count I would substitute a sentence of four years imprisonment, with a non-parole period of two years, to date from 11 April 2002. I would confirm the sentences of six months on the third and fourth counts, also commencing on 11 April 2002. 30 HOWIE J: I agree with Hidden 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.