REGINA v. ODDIE [2001] NSWCCA 524

JUDGMENT 1 GREG JAMES, J: This is an application for leave to appeal against a sentence of two years imprisonment with a non-parole period of one year imposed upon the applicant in the District Court of New South Wales on 11 April 2001. The sentence was imposed in respect of the crime of which the applicant had been convicted, following a trial before her Honour Judge Backhouse of Queen's Counsel, and a jury in the District Court. 2 He had been convicted on three counts; the first a count of dangerous driving occasioning death, an offence under s.52A(1)(c) of the Crimes Act 1900, for which the maximum penalty is ten years imprisonment. The second and third counts had been counts of dangerous driving occasioning grievous bodily harm. These are crimes provided for by s.52A(3)(c) of the Crimes Act 1900, for which the maximum penalty prescribed is seven years imprisonment. 3 The applicant had pleaded not guilty and relied at trial upon an explanation for the vehicle he was driving moving to the incorrect side of the road; that is, that it was affected by a mechanical defect. It is apparent that the jury rejected that explanation. 4 It is far more difficult to deal with what was inherent in the case against him as his culpable conduct than it is to define what was not the cause of the vehicle departing from the correct side of the road to the incorrect side of the road, and occasioning the collision which caused the injuries leading to the charges. 5 Following the verdict, the trial judge, in her remarks on sentence, referred to the nature of the applicant's conduct, firstly, when she came to set out the circumstances of the commission of the offence, and subsequently when she came to categorise the relevant conduct, in order to have regard to a decision of this court in Regina v. Jurisic (1998) 45 NSWLR 209. She described the applicant's conduct as follows:- "The prisoner was driving his Hiace van in a westerly direction on the Great Western Highway near Springwood on 17 April 2000. He was returning from a bread delivery in Sydney. It was about 11.30 am and it was a fine, sunny day. He was travelling in the lane closest to the median strip. There were two lanes for vehicles travelling in each direction on the highway with a concrete median strip. The section of the roadway which was near the Hawkesbury Road overpass, the prisoner's vehicle crossed over the median strip. The median strip at this point was less than two metres wide. The prisoner was travelling at 80 kilometres per hour which was the speed limited for that section of the roadway and prior to his vehicle crossing the median strip he had entered a sweeping left hand bend in the highway and his vehicle then travelled across the median strip onto the incorrect side of the roadway and collided with the vehicle being driven by Ian Hardimon in an easterly direction. There was evidence before the court from Mr. Goodwin, who was travelling in the same direction as the prisoner. He recalled that he had been following him for some two to three kilometres and that the prisoner was travelling approximately 200 metres in front of him. The van then went out of his vision. Then he, Mr. Goodwin, started to enter the left hand bend, he was doing 80 kilometres per hour, and he went around the bend and he saw the van on the other side of the road. He indicated that whilst he was following the prisoner's vehicle he didn't seem to be getting away from him, that he was maintaining the same speed as he was. The prisoner gave evidence and he stated that he was headed back from Sydney to Katoomba on the Great Western Highway. He told the court that he had earlier notices what he thought could be a problem with his wheel alignment, but continued to proceed towards Katoomba. He recalled the left hand bend and he said he realised there was a delay in the steering. He past (sic) over the median strip, without being able to make the turn. He said he was unable to explain in any detail how it happened. He did say that he had no time to apply the brakes. He said the van bounced so heavily he was carried onto the other side of the road. He said there was speed signs at various points because there were road works and that those speed limits were 40 to 80 kilometres on hour. He himself was, at the time of the collision, travelling at about 80 kilometres per hour. HE said that he was just concentrating on his driving. He was alert. He did not feel tired. He prisoner went onto say that immediately after the collision he was in a state of shock himself in particular when he became aware of the horrific nature of the accident and that other people were involved."

6 It is notable that in that recital her Honour referred to the vehicle of the prisoner travelling on to the incorrect side of the road without making any express finding as to what might have caused it to take that course. She referred to the prisoner's account that there was some steering difficulty, his inability to explain in any detail as to how it happened, and his assertion of the lack of time to apply the brakes. 7 Her Honour found the offences to be extremely serious ones, involving as they did, the death of one person and the grievous bodily harm to two others, one of whom was a 10 year old child. There was, she pointed out at the trial, evidence rebutting the suggestion of mechanical defect. In attempting to embark on that categorisation process, to which I have referred, she said the following:- "The Crown case put to the jury was that the manner of driving dangerously was the driving of the vehicle onto the wrong side of the road. Clearly the jury have accepted that that was the situation by their verdicts. So much may be accepted; that is, that the applicant's vehicle came in some manner to the incorrect side of the road." 8 Her Honour went on to note the Crown's concession:- "This is not a case which comes within the matters which were listed by Spigelman, CJ. in The Queen v. Jurisic of 12 October 1998. There, the court mentions a number of these matters, which the Chief Justice pointed out are reflected in the definition of certain circumstances of the aggravation in s.52A(7) for the purposes of the two higher offences." 9 Her Honour there is referring to matters of statutory aggravation noted by the Chief Justice in his judgment. She excludes the suggestion that the applicant had committed the crime whilst driving at an excessive speed or under the influence of alcohol. She further excludes the matters referred to set out by the Chief Justice in Jurisic (supra) at 239 as relevant to penalty numbered (vi) to (ix). Factors (iii) "speed" and (iv) "degree of intoxication in substance abuse" she had already excluded. The remaining two factors referred to the extent and nature of the injuries inflicted, and the number of people at risk. 10 It can be seen that so far at least in her Honour's remarks there has been no definition of the culpable conduct, but she turned to consider what the culpable conduct was by examining two terms used in that judgment, and said:- "Moving to the aspect of whether this was a matter involving momentary inattention or mis-judgment ... " 11 She noted the Crown's submission that this was not a case of momentary inattention and the defence submission that the court could regard the circumstances on the basis of mis-judgment. She concludes that the evidence would not support "momentary inattention" since she refers to the evidence of the prisoner himself that at the time he was alert and concentrating on his driving. 12 She notes the Crown's submission in reply to the suggestion that mis-judgment was involved, that mis-judgment would involve the driver taking a deliberate course. She accepts the Crown submission that mis-judgment was not involved, on the basis, apparently, that there was no suggestion the applicant deliberately chose to take such a course as would put his vehicle on the wrong side of the road. She notes a submission made by the Crown that this is a case where it falls between "momentary inattention" and what was said in the decision of Jurisic (supra). 13 At no point, to this stage at least, of her remarks on sentence, does her Honour define, even in general terms, what the nature of the conduct was, giving rise to culpability, except in the negative manner that I have referred to by ruling out application to the conduct which brought the vehicle to the wrong side of the road of certain of the terms used in Jurisic (supra). 14 Later, she turns to the question of whether this might be one of those exceptional cases referred to in Jurisic (supra) whereby a full-time custodial sentence is not required. In dealing with that matter, she notes that in Jurisic (supra) it has been said that a non-custodial sentence for an offence of this kind should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. 15 At the conclusion of her remarks appears the following:- "The final issue was whether it falls within what has been described as the exception when a non-custodial sentence may be appropriate for an offence such as this. There is room for a finding other than involving momentary inattention or mis-judgment, but in my view this is not a case where the Court can find that it is an exceptional case. It is certainly not a case which is one which does not involve any of those factors, factors which are referred to before." 16 There her Honour appears to be referring to the factors set out in Jurisic (supra) which I have already related. Thereafter her Honour makes no particular finding as to the nature of the conduct which would permit an assessment of its culpability but, having regard to all the other circumstances, including the responsibility the prisoner has for the death and injuries caused, and the subjective circumstances which she held were quite strong subjective circumstances in his favour, and which were set out in the pre-sentence report, she concluded that she should impose the sentence for the term of two years, to which I have referred. 17 In addition, she imposed the various disqualifications required by the legislation, and for two years also. The sentences that were imposed were concurrent. Her Honour found, but did not expressly enumerate, that there were special circumstances which enabled the variation of the statutory provision of parole period to non-parole period. Her Honour, when she imposed the non-parole period, insofar as I can see, did not order the prisoner's release at the expiration of the non-parole period. 18 As the challenge to the sentence has proceeded in this court, it has been articulated from time to time differently. It has been contended that it was not open to her Honour on the evidence to conclude that this offence was as serious as she must have concluded it to be, to impose the sentence that she did. It was articulated as a challenge on the basis that her Honour had fallen into error in failing to conclude it was an offence of mere momentary inattention. 19 In the upshot, the submission came down to the proposition that there was no finding of her Honour as to the factual circumstances of the offence such as would warrant a sentence of the severity she imposed. It will be apparent from the discussion of her Honour's remarks on sentence that I have undertaken that at no time does her Honour describe the conduct clearly and specifically. Her rejection of the labels of "mis-judgment" and "momentary inattention", to which I have referred, must be considered in the context of her conclusion that there was room for a finding other than that involving momentary inattention or mis-judgment. 20 However one looks at the matter, the reasons as expressed are anything but satisfactory as defining a basis on which a sentence of some considerable degree of seriousness such as this has been passed. In the Crown's submission, although the Crown sought to uphold the sentence, it was conceded that whatever the conduct was, it fell within the lower or lowest range of culpable conduct, whatever label might otherwise appropriately be attached to it, and that the offender should have been sentenced on the basis that his conduct was properly to be put within the lower range of culpability for this offence. 21 It was submitted by the Crown, however, that it was not such an exceptional case as in the Crown's submission should receive a non-custodial sentence, but it was conceded, however, that it was not possible, on the remarks on sentence and the findings, to relate the sentence that had been passed to specific conduct such that one could see that the sentence was supported by an appropriate finding of the objective culpability. It was conceded, in short, that it was open to this court to impose a much lesser sentence, and to do so on the basis that an essential finding had not been made such as to justify the sentence which was passed, although it was submitted that a custodial sentence was required. 22 The Crown's submission should not be misstated. It is not a submission that the Court would interfere and impose a lesser sentence. It is a submission, however, that in the light of the examination of the trial judge's reasoning, it is simply not possible to find articulated a sufficient basis for that sentence. 23 In the view that I have come to, I do not see that there has been a sufficient articulation of a reasoned basis, putting aside the labels, for the imposition of the sentence that was passed. 24 In those circumstances, it is open to the court to intervene. I have not, on the trial judge's findings, in my view, an adequate basis to conclude that it is such an exceptional case as might merit an entirely non-custodial penalty, or a penalty of a custodial nature which should be entirely suspended. Noting the evidence to which we were referred, I accept the trial judge's view, and share it, that there plainly are subjective circumstances advantaging the appellant. 25 Having regard to the fact that the applicant has already spent a substantial period in custody, and to the subjective matters to which her Honour refers, as well as the difficulty, particularly after a criminal trial, in seeking to define the nature of the conduct attracting culpability, I have concluded that the best one can do would be to quash the sentences her Honour passed and to pass in lieu of those sentences, sentences to commence on 11 April 2001, the date on which her Honour proposed the sentence would commence. On the first count, I would impose a sentence of 16 months imprisonment, together with a non-parole period of eight months. On counts two and three, I would impose concurrent fixed term sentences of eight months. 26 Those sentences would be concurrent with each other and with the sentence imposed on the first count, so as to provide, therefore, for a release date of 10 December 2001 and I would, in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, direct the release of the applicant on parole, that direction to take effect immediately. 27 I would confirm the disqualification from driving imposed by her Honour the trial judge. 28 I should not pass from this matter without my recording my gratitude to counsel for their submissions which have frankly attempted to deal with what has appeared to me to be a most difficult question. 29 The orders I propose are as I have set out in my earlier reasons for judgment. 30 BELL, J: I agree. 31 GREG JAMES, J: Those are the orders. ********

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Judgment (10 paragraphs)

Cases Cited (1)

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