Regina v HOWLAND [1999] NSWCCA 10 | Case summary

1 SPIGELMAN CJ: This is a Crown appeal against the inadequacy of the sentence imposed on Robert Paul Howland who was found guilty by a jury on 24 June 1998 of the offence that on 8 March 1997 at Wallsend he drove a vehicle in a manner dangerous to another person whereby the vehicle became involved in an impact as a result of which John Skyrus was killed. 2 This is a crime under s52A(1) of the Crimes Act (NSW) 1900 for which, at the relevant time, the maximum penalty was ten years. 3 Howland contested his guilt during the trial. However, the jury found him guilty. 4 The basic facts were as follows. On 8 March 1997, the respondent was driving a Daihatsu tipper truck north along Cowper Road at Wallsend. As he approached the intersection with Minmi Road, the traffic lights changed from green to orange. He was travelling behind another car which stopped at the lights. Howland directed the truck he was driving around the inside of that stationary motor vehicle and proceeded across the intersection. In doing so he collided with a motor cycle crossing the intersection and driven by the deceased, John Skyrus. 5 A number of eye-witnesses to the accident gave evidence before his Honour. This included the respondent, a passenger in the truck and other people present at the intersection. On the basis of hearing the whole of the evidence and seeing the witnesses, his Honour made two crucial findings of fact which were not challenged and could not seriously be challenged before us. 6 First, his Honour found that the deceased did not jump the lights. He only commenced to move the motor cycle, and even then did so slowly, after the lights turned green in his favour. His Honour expressly held, "There was certainly no fault at all by the victim." 7 Secondly, his Honour rejected the evidence of Howland that the car in front of him had jammed on its brakes quickly so that, "He had a choice of either hitting the vehicle in front or going through the intersection." His Honour expressly rejected this version of the case, propounded by the respondent and his passenger, on the basis of the other witnesses who observed the accident. His Honour found: "There was no sudden braking and...they had pulled up in a normal fashion." 8 His Honour mentioned the seriousness of the offence. He then proceeded to identify certain other factors which he took into account in determining the sentence. First, his Honour said: "In the prisoner's favour there is no evidence of any excess speed. The vehicle pulled up within a reasonable time on the other side of the intersection. There is certainly no evidence of any drinking or drug taking as is often the case in cases involving driving in a manner dangerous and causing death. There have been a number of cases where people have been heavily affected by intoxicating liquor or drugs and cases where there was dangerous driving for some considerable time before the incident leading to the death. These are all absent in this present case." 9 Subsection 52A(1) which creates the relevant offence applies in three different circumstances in relation to dangerous driving occasioning death. These are, firstly, where the driver was under the influence of liquor or drugs; secondly, where driving was at a dangerous speed; and thirdly, and alternatively, where the driver was driving the vehicle "in a manner dangerous". It was the last of these three alternatives with which the respondent was charged and of which he was convicted. 10 It is plain that the Parliament intended that driving in a manner dangerous was an alternative to driving which occurred in circumstances of excessive speed or driving under the influence of alcohol or drugs. While such factors are often present in accidents causing death on the highway, the focus must be on the conduct constituting the driving in "a manner dangerous". 11 It has long been established that even momentary inattention may amount to driving in a manner dangerous. I refer to R v Coventry (1939) 59 CLR 633 at 638-639; also R v LKP (1993) 69 ACrimR 159 at 162. It will be necessary to consider whether or not the facts as submitted by counsel appearing for the respondent constituted a momentary misjudgment in accordance with those authorities. 12 His Honour identified a number of subjective matters which were relevant to the exercise of the sentencing discretion. In this regard his Honour referred to the youth of the respondent and the fact that he had no criminal convictions and only one speeding fine. His Honour outlined certain references that were tendered on behalf of the respondent, emphasising and establishing his remorse and his general good character. 13 His Honour concluded that the respondent was "unlikely to ever drive in such a fashion again". 14 Such considerations of personal deterrence are significant in the sentencing process. 15 The Crown challenges the sentence of eighteen months periodic detention on the basis of its inadequacy. 16 The sentence in this case was handed down on Friday 14 August 1998. A few months later, on 12 October 1998, this Court handed down judgment in the case of R v Jurisic (unreported) , which constituted the first sentencing guideline judgment. In that case, the Court propounded a guideline with respect to sentencing for s52A of the Crimes Act , the section involved in this case. 17 It is not necessary to refer in detail to my judgment in Jurisic , with which four other members of the Court agreed. In that judgment I traced the history of sentencing with respect to such offences. I noted how community concern about the conduct of dangerous driving causing death or grievous bodily harm had grown, and said: "The level of community concern about the conduct proscribed by s52A, as reflected in the substantial increase in the maximum penalties, must be reflected in the sentences which trial courts impose. The concerns manifested by Parliament in this way must be given effect to by the Court." 18 In that judgment I also referred to a clear pattern of inadequate sentencing for this particular offence. I said: "Despite clear indications from this Court concerning the seriousness of this offence, there has been a continued flow of, almost invariably successful, Crown appeals from sentences for offences under s52A." 19 On a number of occasions this Court had indicated, as reiterated in Jurisic, that a sharp upward movement in penalty was appropriate for this offence. Furthermore, there were clear indications of a lack of consistency in sentencing, for which some form of guideline was appropriate. 20 The two guidelines propounded by the five person Bench of the Court of Criminal Appeal in Jurisic were as follows: "1. A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. 2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in a case of dangerous driving causing grievous bodily harm) should be exceptional." 21 It is not necessary for present purposes to recite the list of aggravating factors to which I referred in my judgment in Jurisic . As his Honour Judge Job noted, few were present in the present case. There was no evidence of significant speeding or intoxication or substance abuse, competitive driving or showing off, or a long journey which exposed many people to risk, or escaping police. 22 On the other hand, there was no plea of guilty for which, in accordance with the Court's traditional policy, a discount of substance was appropriate. 23 The factors which seemed to weigh significantly with his Honour are factors which are not uncommon with respect to this particular offence. Young men, frequently of good character, commit this offence. Understandably, they and their families find it difficult to accept that a person, otherwise of good character, should serve a term of imprisonment in the same way as a person who is prone to criminal conduct. 24 The issue before the Court concerns in part the significant weight that his Honour gave to certain personal circumstances of the respondent in determining the sentence. In doing so, his Honour failed, in my opinion, to take into account the matters identified originally by Hunt CJ at CL in the case of Musumeci (NSW CCA 30 October 1997), which were adopted by the five person Court in Jurisic supra at pp 29-31. Relevant points were: "Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases. The Court must tread warily in showing leniency for good character in such cases. So far as youthful offenders of good character who are guilty of dangerous driving therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order." 25 As I indicated in my judgment in Jurisic as quoted above, a non-custodial sentence for an offence under s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment. Judges of the District Court who impose sentences outside the framework of this guideline will need to explain why they have done so. 26 Of course, Judge Job did not have the advantage of the Jurisic guidelines. The principal explanation that his Honour has given for imposing a non-custodial sentence on the respondent was the subjective factors to which I have referred. Even before Jurisic , it was clearly established in this Court that such circumstances rarely justify such a sentence. Jurisic reinforced that line of authority in clear and specific terms. 27 The respondent was found to have committed the act of driving "in a manner dangerous". The reason why a substantial penalty is appropriate in this case is not simply because of that conduct, but because of the consequences of the conduct in the specific case, namely, the death of Mr Skyrus. It is the fact that driving dangerously so often leads to consequences of this character that the conduct is to be regarded as a crime of seriousness. 28 In my opinion, the short sentence of periodic detention in this case is outside any reasonable exercise of the sentencing discretion, subject to dealing with one submission made on behalf of the respondent in this Court. It was said that the incident should be regarded as a case of "momentary inattention or misjudgment". This is a formulation which has appeared in the cases over a long period of time and is picked up in the guideline laid down in Jurisic , as I have quoted it above. 29 I am unable to see any other circumstance which would justify a non-custodial sentence in the present case. Accordingly, in my opinion, the success of this appeal turns on whether the respondent has made good the submission made on his behalf that this was a case of "momentary inattention or misjudgment". 30 In order to determine this question, the two findings of fact by his Honour, which I have set out above, are of great significance. First, his Honour found that the deceased did not jump the lights and that he proceeded slowly across the intersection after his lights had turned green. Secondly, his Honour found that the vehicle in front of the truck driven by the respondent did not apply its brakes suddenly. Rather, it came to a halt in a normal fashion. 31 Whilst rejecting the evidence of the respondent in both these respects, his Honour did not otherwise identify with any degree of precision the nature of the driving "in a manner dangerous" which is the central element of the offence. 32 His Honour noted as a fact: "There was evidence before me that the lights were red when the prisoner drove through the intersection." It appears that his Honour accepted that evidence. 33 His Honour also said: "In the prisoner's favour there is no evidence of any excess speed. The vehicle pulled up within a reasonable time on the other side of the intersection." 34 However, his Honour also found, relevant to the prior case law and the decision in Jurisic : "I do not regard the driving of the prisoner as merely being a momentary inattention. It may have been that he was not paying attention to the lights ahead and he realised too late that they were changing." 35 In an interview with police, the respondent had indicated, in the context of asserting that the car in front of him had slammed on its brakes, that he was aware of the car in front of him and that both cars were coming to a set of lights. His explanation of what happened was as follows: "I didn't believe that I could stop in time so I went, went to the left, and feeling that if I did manage to stop I'd be halfway across the intersection. I put it back a gear and floored it and then I seen a motorbike sitting in front of me...". 36 In his evidence during the course of the trial, the respondent said: "As I was approaching the lights I was following the Datsun in the middle lane, that would be lane number 2, and the lights changed orange. And when the lights changed orange the car in front of me slammed on the brakes, stopped quickly. I felt that I did not have time to stop for that to stop without hitting the vehicle in front of me so I moved to the left-hand lane and once I moved to the left-hand lane and actually passed the vehicle I was already on the intersection... My view to myself was that I knew I wouldn't be able to stop so I had all intentions of proceeding through the orange light. However I did not expect the silver car in front of me to stop and that to stop as quickly as he did as well...". 37 The respondent estimated that he was fifty metres from the lights and that the car in front of him was twenty-five to thirty metres closer than that. He went on to give the further evidence: "I did not jump on the brakes, I didn't slam on the brakes knowing that the wheels would lock up on the truck and I'd lose control so I applied the brakes gently then released the brakes to steer the truck to the left-hand side so I slowed down a little bit, I wouldn't say a hell of a lot, a little bit and I've steered it to the left-hand side and once I was past the vehicle I was well in the intersection...so I put it back a gear and accelerated as to get out of the intersection not to cause any confusion for any other vehicle once their lights changed. At this particular time I went back through the gears, applied the accelerator, started veering to the right a little bit as the road forms into one lane so I could back in the middle lane that I was previously in and then off to my left-hand side in the peripheral vision I noticed movement." 38 His Honour's express finding that the car in front did not suddenly brake puts the respondent's version in a completely different light. The combined effect of this finding and the finding that the motorcyclist proceeded slowly after his lights had turned green indicate that this was not a case of momentary inattention of a character which can happen to any driver on the road. Rather it was a case in which the driver took a calculated risk to run the red light. In view of the action taken by the respondent in changing lanes and then accelerating, on his own version of the facts, he took the risk of running the light. 39 As his Honour Judge Job found, there is nothing to suggest mere momentary inattention. The conduct was of a deliberate character. It involved two distinct acts, albeit occurring within a short period of time: First, changing lanes to get around the car that had stopped, and secondly, accelerating to get through the intersection. These acts do not suggest momentary inattention or misjudgment. 40 His Honour's exercise of the sentencing discretion erred in two respects. First, by failing to give appropriate weight to the objective seriousness of the offence as reflected in the maximum penalty. Secondly, by failing to give weight to the need for general deterrence - the deterrence to others from engaging in irresponsible conduct that so often results in death or serious injury. 41 As to the first error, the community has indicated that it wishes to denounce this conduct in the strongest terms. The premium on human life which our society accepts as a fundamental value is such that culpable conduct which kills must be treated as a serious crime. By the increases in the maximum sentences, the community, acting through the Parliament, has indicated that this is a crime which it wishes to denounce and deter. It is the duty of the judges to reflect this community concern. 42 The second factor is the need to deter others from engaging in the conduct which might lead to the commission of this offence. Judge Job made no express reference to this factor. There is, and has been for many years, a debate as to the deterrence value of imprisonment. Judges will differ in their opinions with respect to this matter. It is perfectly appropriate for sentencing to vary, within reasonable bounds, to reflect such differences of opinion, being differences which judges share with members of the community as a whole. The emphasis, however, is on the reasonable bounds. 43 Sentencing has always been based on the acceptance of the proposition that condign punishment of offenders will have a deterrent effect on others. 44 In order to have this deterrent effect, sentencing practice of the courts must reflect a consistency in approach. That is what this Court sought to achieve in Jurisic . This is an offence most often committed by young men. Young men in our community must understand that if you drive dangerously and kill someone, you will go to gaol. 45 In my opinion, a period of imprisonment was the only appropriate penalty for this offence. 46 The matters relevant to the determination of the appropriate level of a custodial sentence include the various subjective factors to which Judge Job referred, as indicated above. These are factors in mitigation. The absence of a plea of guilty means that no discount is appropriate in that regard. 47 In Jurisic the Court noted by way of the second guideline that in the case of a plea of guilty, a term of imprisonment of three years in the case of driving causing death was appropriate where a factor, involving the conduct of the offender, which suggested that the offender abandoned responsibility for his own conduct was present to a material degree. 48 In the present case, there is no basis for such a finding. The dangerous driving was constituted by taking the risk involved in running the red light. This was the conduct which constituted the "manner dangerous" and there is nothing to indicate that it occurred in a fashion that involved an aggravating factor which could be described as abandoning responsibility for his own conduct. 49 The Crown in its appeal sought to rely on the reference to erratic driving as such a factor in the list of aggravating factors set out at page 36 of my judgment in Jurisic . That list was not intended to be exhaustive. It is not, in my opinion, appropriate in this case to identify the driving as erratic. There was a single occasion in which a decision was made to run the red light. 50 For the reasons I have indicated, this was not a momentary misjudgment. Nevertheless, the conduct involved did not indicate an abandonment of responsibility in the sense identified in Jurisic. 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. That will be the case for an aggravating factor which is a question of degree, for example, speed. 51 This was not a case in which the driving could be described as "erratic". There was, for example, no weaving in and out of traffic over a period. Accordingly, this is not a case in which the second guideline identified in Jurisic is appropriate to be a basis for sentencing. 52 We are left with a situation in which the objective seriousness of the offence indicates the need for a significant period of detention. There are, on the other side, the various subjective factors, including the good character, the absence of a prior record and the remorse expressed by the respondent. There is also a significant element frequently referred to as the element of double jeopardy involved in a Crown appeal, in which a person convicted of an offence has adjusted over a period of some time to the fact that he would have a lower sentence, in this case a sentence to be served by way of periodic detention. 53 The appropriate test when the principle of double jeopardy applies is as set out in Rose NSWCCA 22 May 1996 at p3, as applied in Jurisic at 39, and it is as follows: "The least sentence that could properly have been imposed upon the respondent at first instance." 54 The least sentence is less than one may usually expect for the serious offence of taking the risk of running a red light. It is the principle of double jeopardy that impinges on this case so that the least sentence that is appropriate on the facts of this case should not be regarded as the appropriate sentence for future offences of this nature. It is one of the most basic rules of the road that lights must be obeyed. Lights are placed on intersections where, either by reason of their configuration or the flow of traffic, accidents are prone to occur. We know in this community all too well that accidents frequently can lead to either death or serious injury. 55 In my view, the least sentence in the present circumstances was a period of eighteen months imprisonment. In the present case by reason of the factors identified by his Honour and the additional element of double jeopardy involved in a Crown appeal, I find there are special circumstances which would justify a longer than one-third additional term as referred to in s5(3) of the Sentencing Act 1989 Accordingly, in my view the sentence should be divided into a minimum term of nine months and an additional term of nine months. 56 I would propose the following orders: 1 The Crown appeal against the sentence is upheld. 2 The sentence of periodic detention imposed by Job DCJ is quashed. 3 The sentence of disqualification of the respondent from holding a driver's licence for the period of three years is affirmed. 4 The respondent is sentenced to imprisonment for a period of eighteen months, to comprise a minimum term of nine months commencing on 22 August 1998 and expiring on 21 May 1999, on which date the respondent is to be released on parole, and an additional term of nine months commencing on 22 May 1999.

Regina v HOWLAND

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