REGINA v ERRINGTON

Application by the Attorney General [2004] NSWCCA 303, 61 NSWLR 305 Police v Cadd (1997) 69 SASR 150 R v Bailey [2001] NSWCCA 10 CASES CITED: R v Hallocoglu (1992) 29 NSWLR 67 at 75). R v Howland [1999] NSWCCA 10 R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252

Appellant: A Francis COUNSEL: Crown: P Ingram

Appellant: Simon Fung-Greenfield Lawyers Pty Ltd SOLICITORS: Crown: Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL CCA 2005/1301

MASON P GROVE J BUDDIN J

REGINA v Burt ERRINGTON Judgment 1 MASON P: The applicant seeks leave to appeal against sentences imposed by Balla DCJ. 2 There had been pleas of guilty in the Local Court in respect of two charges arising out of a motor vehicle accident on 6 November 2003, namely dangerous driving causing death and dangerous driving causing grievous bodily harm. The first offence carried a maximum penalty of ten years imprisonment, the second a maximum of seven years imprisonment. For each offence there was an automatic period of licence disqualification of three years, unless the court thought fit to order a shorter period (of not less than twelve months) or a longer period of disqualification. 3 On 2 February 2005 the applicant was convicted and sentenced as follows:

• On the second charge, a term of eighteen months imprisonment commencing on 2 February 2005 and expiring on 1 August 2006 consisting of a non-parole period of nine months and expiring on 1 November 2005. • On the first charge, a term of two years and six months imprisonment commencing on 2 May and expiring on 1 November 2007 consisting of a non-parole period of fifteen months expiring on 1 August 2006. 4 The total effective sentence was therefore an aggregate term of two years and nine months that included an aggregate non-parole period of one year and six months. 5 The judge declined to shorten the three year period of statutory disqualification prescribed by s25(2)(d) of the Road Transport (General) Act 1999. 6 Her Honour regarded R v Whyte (2002) 55 NSWLR 252 as a guide to the sentencing decision. 7 In the context of s21A of the Crimes (Sentencing Procedure) Act 1999 the judge accepted that the relevant mitigating factors were that the offences were not planned and that the applicant had good prospects of rehabilitation. Since, however, the applicant's behaviour in driving on this occasion was unexplained, the judge declined to find that the applicant was unlikely to re-offend (cf s21(3)(g)).

Facts 8 The primary facts are not in dispute. Balla DCJ found: At the time the offender was employed as a driver, at about 3pm he was driving a prime mover which was towing a 3 axle tabletop trailer which was loaded with an empty cargo container along General Holmes Drive at Mascot. He was travelling at 60 to 70 kilometres an hour in a northerly direction towards the intersection with Millpond Road. The speed limit was 70 kilometres an hour. The roadway was dry. The offender was travelling along a multi-laned roadway. As the road straightened out from a left hand bend the traffic lights controlling the intersection and any vehicles stopped at those lights would have come into the offender's view. That point is 370 metres before the intersection. The offender travelled [that] 370 metres in 18 to 20 seconds. He collided with the last vehicle in a line of traffic which had stopped at a red traffic light on General Holmes Drive. He did not break heavily until immediately before he struck that vehicle which was a green Hyundai XL. It had been stationary behind other vehicles. The impact pushed the front of the Hyundai into the rear of a Holden panel van. The front of the Holden panel van was then pushed into the rear of a Holden Rodeo utility. Mr Wells was a passenger in that Holden Rodeo utility. The Holden Rodeo utility was pushed into the vehicle in front of it, a Ford Falcon sedan. In addition the rear of the Holden Rodeo utility was forced upwards and rotated so that it was suspended between the Holden panel van and the Ford Falcon. The Holden Rodeo utility also collided with the trailer and cargo container being towed by a Mitsubishi prime mover. The impact between the Holden Rodeo utility and the Ford Falcon pushed the Falcon into the rear of a State transit bus. The bus was then pushed into the vehicle in front [of] which was a Toyota Prado. That Prado was then pushed into a Holden Commodore station wagon. When the offender's truck impacted with the Hyundai XL, the front of the offender's vehicle also impacted with a Holden Commodore utility which had been travelling in the adjacent lane. As the Hyundai XL became wedged under the offender's vehicle the vehicle also collided with a Yamaha motorcycle. A video taken at the scene depicts the damage caused by the impact. Many of the vehicles were extensively damaged, some people were trapped in their vehicle and had to be released by rescue personnel. As a result of the impact the driver of the Hyundai XL, Mr Gentilli received fatal injuries and died at the scene. Mr Wells suffered undisplaced factures of the right tibia and fibula in his leg. He also sustained soft tissue injuries to his right leg which resulted in swelling, blistering and bruising. He underwent surgery at St George Hospital. The offender however was uninjured. The reason for the collision has not been explained. The offender was not speeding or affected by drugs or alcohol. His truck was found to be in good roadworthy condition. As I have recounted he had been able to negotiate a slight curve, merge into the centre of three right hand turn lanes and drive up to the line of stationary traffic. On the day of the accident the offender told the police that he had just been keeping up with the rest of the traffic. He said that he remembered looking ahead and then his attention was diverted away from what he was doing by a crash coming from the right hand side of the truck. He could not remember what he had seen in front of him or whether he had seen the traffic lights. He also told the police that he could not remember being distracted immediately prior to the collision. At the sentencing hearing before me he said that he could not recall anything of that 370 metre journey. It was not suggested that there is any relevant medical condition to account for his loss of memory other than as a symptom of a post-traumatic stress disorder caused by the accident. There is accordingly no explanation offered for the offender's failure to see the red light and stationary vehicles and to stop before the collision. I do not accept that there was any object such as a tree which would have impeded his ability to see the vehicles and the red light during the whole of his 18 to 20 second approach. The subjective case 9 Her Honour made findings concerning the subjective case, including that the applicant:

(a) was 49 years old, married with two children with no relevant criminal record;

(b) had an excellent driving record, particularly in view of his work as a truck driver for the past 17 years. Despite having been a commercial truck driver for 22 years averaging 50-60 hours of driving a week he had only two minor offences for speeding, one occurring in 1974 and the other in 1992.

(c) had extensive evidence of good character. His friends, co-workers and wife had described him as a truthful, charitable and considerate family man. The actions were totally out of character;

(d) had been elected as the OH&S drivers' representative at work and was regarded as a responsible driver by his employer;

(e) had symptoms of a post-traumatic stress disorder stemming from the accident;

(f) accepted full responsibility for his actions and was deeply remorseful. He had pleaded guilty at the first opportunity;

(g) had assisted the police by providing a statement in relation to an unrelated matter of armed robbery arising at his place of work;

(h) had been assessed by the Probation and Parole Service as able to meet a fine, suitable for Community Service Order but ineligible for a periodic detention order. 10 The early plea of guilty attracted a 25% discount, according to the sentencing judge. This conclusion is not in dispute.

Ground 1: The sentencing Judge had insufficient regard to the applicant's subjective case

Ground 2: The sentencing Judge erred in finding that the applicant's subjective case fell within the category of the typical offender identified in R v Whyte. 11 These grounds were addressed concurrently. The nub of the complaint is that the judge failed to give proper effect to the strength of the subjective case because she regarded the guideline judgment in Whyte as wholly embracing the situation of an offender with relevant good character. 12 The applicant had a powerful subjective case. His excellent driving record put him ahead of the young offenders with no or limited prior convictions whose situation had called forth the Whyte guideline. The Pre-Sentence Report of the Probation & Parole Service observed that: Persons contacted for this report confirmed that Mr Errington is known for his attention to safety, and for his responsibility and commitment, not only to his work as a truck driver, but in other aspects of his work, family life and the children's charity work he is engaged in. Colleagues and friends of many years confirm that Mr Errington is teetotal, the "designated driver" at functions, and a person know for not rushing or taking risks. A driving assessor in 2000 commented that Mr Errington "relates to his vehicle very well and to other road uses (sic)". 13 Whyte emphasises fidelity to statutory guidance and the importance, in the present context, of principles of general and specific deterrence. Balla DCJ adverted to those matters, perhaps bluntly, when she said that "no [weighting] of the relevant subjective features can be allowed to extinguish a proper consideration of the compelling public interest to ensure that all people who are licensed to drive motor vehicles upon a public street do it in a way that is not dangerous to other users of that street". 14 In recounting the applicant's subjective circumstances her Honour said: However as the Court of Criminal Appeal noted in the decision of Whyte the fact that the offender has little or no criminal record and is of good character are frequently recurring features of offenders charged under s52A.

Later she observed that, as regards the subjective factors: … most of the criteria constituting the typical profile of an offender… described by the Chief Justice in the decision of Whyte apply. 15 The applicant submits that these passages show that the sentencing judge considered that the weight of authority (Whyte in particular) militated against the relevance of the applicant's positive subjective case. It is submitted that her Honour erred in regarding that subjective case as neutral. 16 If the sentencing judge had done so, there would have been an error of principle. 17 Whyte explained the need for a numerical guideline by reference, among other things, to the fact that some judges find it very difficult to accept that a person of good character who is unlikely to re-offend is sent to gaol (at 275[145]). The "frequently recurring case of an offence under s52A" was described (at 284[204]) as having characteristics that included:

(ii) Of good character with no or limited prior convictions. 18 It would however be wrong to regard Whyte as a blueprint for all shapes and sizes of offender. Not only would this disregard Whyte's guideline status and its affirmation of the principle of individualised justice (at 296[147]ff). It would also fly in the teeth of admonition to give proper weight to unusual subjective features in a proper case. As Spigelman CJ pointed out at 288[232]-[233]: 232. The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act. 233. This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly R v Dodd , this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing) Act inserted by the 2002 Act, affects this line of authority. 19 In my view, the passages relied upon by the applicant go no further than observing (correctly) that prior good character is a common feature of this category of offence, and that the guideline has been framed on that assumption. 20 The remarks on sentence recognise the "extensive evidence of good character" and the applicant's well-deserved reputation as a responsible driver. His excellent traffic record is specifically acknowledged. The fact that the overall sentence is significantly below that suggested in the Whyte guideline also cautions against finding that her Honour committed the errors suggested in these two grounds of appeal. 21 The applicant also contended that the sentencing judge got off to a bad start with the reference to the Whyte guideline in that she failed to give full effect to the allow a 25% discount for the utilitarian value of the early plea of guilty. In my view, this criticism is unjustified. As her Honour recognised (RS 8), the typical case contemplated by the Whyte guideline was one in which the offender had entered a late plea of guilty of limited utilitarian value. The present case is clearly distinguishable on this account, but it does not follow that a full 25% is to be deducted on top of whatever is suggested by the guideline. That would overlook the fact that the guideline embraces the case in which there is a plea of guilty.

22 Nor can I accept the proposition hinted at in the written submissions that the judge's reference to specific deterrence and her refusal to find unlikelihood of re-offending implicitly downgraded the positive subjective case. 23 The applicant gave evidence that he could not remember the circumstances leading to the offence. He cast no light on what (consistent with the plea of guilty) had occurred in the 18-20 seconds before the crash. Her Honour was entitled to conclude that no explanation was offered for the offence. 24 There was no evidence of any relevant medical condition to account for that loss of memory, but it was not found to be feigned. 25 These matters justified the refusal to find as a specific mitigating factor that the applicant was unlikely to re-offend. That was the only use of this evidentiary void. I reject the suggestion that her Honour undermined the finding of good character by an implicit conclusion that the applicant gave false evidence in attesting to memory loss. On the contrary, that evidence was accepted in the manner indicated. It was not used as a factor warranting a harsher penalty than otherwise appropriate or to qualify the weight of positive evidence about a good driving record.

Ground 3: The sentencing Judge erred in finding that the applicant's conduct amounted to an 'abandonment of responsibility'

Ground 4: The sentence is manifestly excessive 26 The central inquiry with regard to the objective circumstances of the particular offences is identification of the degree of moral culpability involved, this being "a critical component of the objective circumstances of the offence" (Whyte at 284[205]). 27 The jurisprudence in this field recognises "abandonment of responsibility" as one method of describing a high degree of moral culpability (cf Whyte at 287[224]). This does not however endorse a brightline sub-category. There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment. It is not required that cases be assigned to one or other of two pigeon holes marked respectively "momentary inattention or misjudgment" and "abandoned responsibility". In R v Khatter [2000] NSWCCA 32, Simpson J (dissenting) held (at [31]: Offences under s52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.

Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal. 28 In the District Court, the Crown Prosecutor had submitted that this was not a case of momentary inattention. This submission alluded to Spigelman CJ's reference to "momentary inattention or misjudgement" as an indicator of a low level of moral culpability that might not call for any custodial sentence (Whyte at 286[214]). While maintaining the proposition that a fulltime custodial sentence was appropriate, the Prosecutor also submitted (Tr p20): There is a low moral culpability. He wasn't driving from lane to lane. He wasn't speeding. He wasn't racing. He wasn't drunk. So, therefore, the case [of Whyte ] says this, and I think your Honour will get some assistance from this: 'Where the offender's moral culpability is high, a fulltime 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. In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate [ Whyte at 287[229]-[230]].' In my submission that does bring it down from three years ….

29 The sentencing judge effectively accepted this submission, particularly bearing in mind that two offences were involved. While minds might differ as to the degree of moral culpability and the sentence called forth by it, this Court is not entitled to interfere with an available exercise of the sentencing discretion unaffected by any specific error. 30 With the Whyte guideline clearly in view, her Honour sought to analyse the primary facts. The judge had viewed a videotape of the accident scene and of the approach to it. This Court was not invited to do likewise. Her Honour described the applicant's conduct as amounting to "offences of significant gravity". Later she said: I am not persuaded that the accident was the result of momentary inattention or misjudgement. I accept that the offender must have been paying some attention for part of the journey to be able to negotiate his way up to the intersection, however I infer from his failure to brake in time that he either failed to see the vehicles and red traffic light or failed to act appropriately if he did see them. From the time when he should reasonably have anticipated that he needed to stop he was not keeping a proper lookout, that is there was a relevant abandonment of responsibility. (emphasis added). 31 With respect to the applicant's submissions, I do not read this passage as a finding that the applicant's conduct was within the parameters of the guideline. The facts would not have supported any such characterisation. Nor did the sentences imposed, particularly bearing in mind that there were two separate offences. I take her Honour to have recognised this when she said that: … [in] the guideline decision of Whyte the Court of Criminal Appeal held that a custodial sentence would usually be appropriate unless the offender has a low level of moral culpability as in the case of momentary inattention or misjudgement. For the typical case with a plea of guilty where the offender's moral culpability is high a full-time custodial 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. This decision is to be used as a guide.

32 The applicant submits, and the respondent concedes, that none of the nine aggravating factors (iii) - (xi) referred in Whyte at 286[216]-[217] were involved in the present case. These are: (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. 33 These factors engaged the second limb of the guideline in R v Jurisic (1998) 45 NSWLR 209, as reformulated in Whyte (at 287[228]-[229]) as follows: 228. In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion. 229. The guideline for offences against s52A(1) and s52A(3) of the Crimes Act 1900 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."

34 The nine identified factors refer to the conduct of the offender, as distinct from background subjective factors. Speaking of them, Spigelman CJ said (in Jurisic at 231, restated in Whyte at [218]): The presence of these latter factors may indicate that the offender may have abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.

The Chief Justice also said ( Whyte at [221]) that: The period of three or two years, once the threshold of abandoning responsibility has been reached is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.

35 While conceding that none of the nine enumerated Whyte factors were present, the respondent drew attention to the remarks of Spigelman CJ (with whom Wood CJ at CL and McInerney J agreed) in R v Howland [1999] NSWCCA 10, where it was said that the aggravating factors set out in Jurisic (ie factors (iii)-(ix) in the Whyte list) were not intended to be exhaustive. I respectfully agree with this analysis. It is further borne out by the very fact that items (iii), (iv), (vii) and (x) cover spectra of relevant conduct. 36 I do not read the addition of two more factors in Whyte as the judicial closure of the canon of what is capable of representing "abandoning responsibility"; and certainly what is conduct of such seriousness as to merit a custodial sentence. The expanded list of nine factors remains illustrative, not definitive. 37 In Whyte (at 287[226]), the Chief Justice suggested that what is common to cases that attract the gravitational force of the numerical guideline (my words) is that there is something of the character of "contumacious offending" (a concept derived from Police v Cadd (1997) 69 SASR 150). Howland contained a finding of abandonment of responsibility based on the fact that the driver consciously took the risk of running a red light. The submissions of the Prosecutor at trial show that the present case was never placed in this general category. 38 The applicant submits that the sentencing judge committed the fallacy identified by the Chief Justice in Howland (at [50]), notwithstanding the qualifier "relative" used by her Honour to describe the abandonment of responsibility in the present case. This was not a situation involving contumacious offending. 39 In Howland (at [50]), the Chief Justice said that: There will be few cases in which the very facts relied on to constitute the offence in terms of dangerous driving will also constitute a factor of aggravation.

See also R v Bailey [2001] NSWCCA 10 at [50]) where evidence of a speed in excess of the limit, but not grossly so, coupled with overtaking a bus as it was pulling out, failing to keep a proper lookout, and a failure to brake in time were not regarded as matters of aggravation establishing abandoned responsibility. 40 I agree that this was not a case of contumacious offending. But this does not establish error in regard paid Balla DCJ to the Whyte guidelines, because the sentences imposed were below that which those guidelines said would be "generally … appropriate" for the "contumacious offending" categories. Nor did her Honour commit the imputed fallacy of treating Whyte as a "starting point". A reference point is not the same thing, so long as appropriate adjustments are made to whatever guidance is properly derived from the guideline itself. 41 The sentencing judge was well entitled to infer from the failure to brake in time that the applicant either failed to keep a proper lookout or failed to act appropriately if he did see the line of vehicles stopped at the red light. 42 In my view, it would be wrong to proceed from her Honour's careful use of the term "relevant abandonment of responsibility" to the conclusion that there was appealable error in the sentence actually imposed. I do not read that description as tantamount to a finding that the degree of moral responsibility brought the case four square within the numerical guideline, even as regards the offender's conduct. Once again, the sentences actually imposed do not suggest any such error. 43 Leaving aside the debate about labelling, the respondent submits that this is a case (like Howland) in which the manner of driving itself constituted a factor of aggravation over and above the bare minimum of facts relied on to constitute the offence itself. Her Honour described the two offences as being "of significant gravity". The Crown points to the applicant's failure to keep a proper look out for such time and distance as would have permitted him to appropriately apply his brakes before impact with the first of numerous vehicles in the path of his truck that were stationary at an intersection controlled by traffic lights. The following circumstances are highlighted: a. the Applicant was driving a large heavy articulated vehicle; b after such a long period of experience driving generally, and such vehicles in particular, the Applicant could not but have appreciated the potential for catastrophic consequences in the event of a want of appropriate attention to driving such a vehicle, a fortiori, in traffic; c. there was an imperative for heightened vigilance given the time and place where the Applicant was driving, viz the road was a major arterial road in the inner suburbs of Sydney and it was 3.00pm on a Thursday afternoon; d. the Applicant had to manoeuvre the truck from lanes continuing past the intersection to, and then along, lanes for vehicle turning right at the intersection; e. the intersection was visible for a distance of 370 metres which would have taken 18-20 seconds to cover at the Applicant's speed of 60-70kph; and, f. the period of time that the Applicant must have been inattentive to have so failed to observe and then take the requisite action to halt his vehicle properly behind other vehicles then stationary at the intersection. 44 In my view, these matters explain why a custodial sentence was appropriate (a proposition not disputed in this Court). They also explain why the sentences imposed were within the range of a proper exercise of the sentencing discretion. 45 The gravamen of these offences is not just dangerous driving, but doing so in association with the causing of death of one human being and of grievous bodily harm to another (see R v Hallocoglu (1992) 29 NSWLR 67 at 75). 46 Balla DCJ said: The sentence which I will impose on the offender is undoubtedly hard on someone such as him. A person who but for his actions resulting in these charges is a contributing member of the community, that his actions have resulted in disastrous consequences for his victims and the tenor of the statutory provisions and the need to deter others from acting as he did means that a substantial punishment must be imposed. 47 There is force in the following portion of the able submissions on behalf of the applicant by his counsel, Ms Francis.

It ought not be ignored that there is an aspect of inherent danger in the applicant's employ, an employ which provided for two children and the support of a family and others in the community by way of his charitable works. The applicant came from disadvantage and he has through his conscientiousness and hard work, in a field that exposes him to the risk of accident every day, become a productive member of society. The applicant's fall from grace is a devastating one which has come about without recklessness on his part. This is not a case where general deterrence looms large as it might in circumstances where there is a relevant history of irresponsible driving. Those that have demonstrated years of good and safe work yet who carry out inherently dangerous positions for societal good ought not be dealt with unduly harshly when involved in a work place accident. Such a submission recognises the need for general deterrence in relation to truck drivers however what is to be deterred is unsafe practices, abandonment of responsibility and pre meditated reckless driving. General deterrence has little impact, nor operation upon conduct which arises out of an isolated mistake or the product of human fallibility or misjudgement.

Nevertheless, I have concluded that there is no proper basis for this Court to exercise the sentencing discretion afresh, given the absence of specific error or manifestly excessive sentence. 48 Her Honour said that she was not persuaded that it was appropriate to exercise any discretion in relation to the disqualification period for the licence. No reasons were given. 49 The question whether the function of licence disqualification is punitive as distinct from protective (cf Application by the Attorney General [2004] NSWCCA 303, 61 NSWLR 305 at [110]ff) awaits definitive resolution. 50 I would not interfere with the primary judge's decision to leave the statutory disqualification undisplaced. At first instance, the applicant's representative chose to make no submissions on the topic when invited to do so (Tr 3.12.04 p 42). The cloud of uncertainty that persuaded her Honour to decline finding unlikelihood of reoffending does not enable the Court to be positively satisfied that it should think fit to shorten the indicative 3 year disqualification. 51 I would therefore grant leave to appeal but dismiss the appeal. 52 GROVE J: I agree with Mason P. 53 BUDDIN J: I agree with Mason P. **********

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