Tang v R

The sentencing judgment

1. The trial judge found, having regard to the verdict, the evidence at trial and the submissions of counsel that the following facts were proved beyond reasonable doubt: "On 19 July 2017 at about 3.50pm the [applicant] was driving a Kia Grand Carnival on Abuklea Road approaching Culloden Street (sic), Marsfield at a speed of about 40 to 50 kilometers an hour. Ms Pye, a driver behind, was travelling about one to two car lengths behind the [Applicant's] vehicle on Abuklea Road. Ms Jialei Qu collected her son Jingqi Gu from a day centre and then walked in an easterly direction on the pedestrian footpath on Abuklea Road approaching the intersection of Culloden Road The mother and her son stopped for approximately 4 seconds at the intersection before stepping onto Culloden Road together. Ms Qu was holding her son's hand as they stepped off the curb. The son was on his mother's left side and closer to Abuklea Road, the [applicant's] vehicle was between 88 to 111 metres from the intersection when the mother and her son stepped off the curb. Ms Pye saw the pedestrians when she was just past Desmond Street and the mother and son were approximately a quarter of the way across Culloden Road. Ms Pye was approximately 30 metres away from Ms Qu and her son when she saw them. … The [applicant's] vehicle crossed the centre line of Abuklea Road approximately 12 metres before the eastern curb of Culloden Road. When the [applicant's] vehicle entered the view of the CCTV camera, which was situated at a residential home along Abuklea Road near the intersection, the [applicant's] vehicle was wholly on the northern side of Abuklea Road. The [applicant] took the right hand turn into Culloden Road in a manner inconsistent with the Australian Road Rules and her vehicle was on the wrong side of both Abuklea and Culloden Road before commencing the turn and when making the turn. The [applicant's] vehicle was approximately one to one and half car widths from the north-east corner of Abuklea and Culloden Road. The mother and the deceased started to cross Culloden Road and were approximately two metres past the centre line of Culloden Road when the [applicant's] vehicle collided with them. They had been on that roadway for between 7 and 8 seconds prior to impact."
2. Her Honour was satisfied beyond reasonable doubt that the applicant had the opportunity to see and avoid the deceased and his mother for "between around 5 to 11 seconds".
3. The trial judge found that the applicant's driving was dangerous in the following ways: "(a) the manner in which the [applicant] made the right hand turn from Abuklea Road into Culloden Road was dangerous because she did not take all objectively reasonable steps to ensure it was safe to turn right, at all or, in the manner she conducted that turn in various said actions: (i) she did not take the right hand turn in accordance with the Road Rules (ii) that if she drove into the path of the two pedestrians in circumstances that if she had driven in compliance with the Road Rules she would not have struck them (iii) the manner in which she made the right hand turn allowed her to travel at a speed greater than if she had made the turn in accordance with the Road Rules (iv) that she crossed over onto the wrong side of the roadway before reaching the intersection (v) the manner in which the [applicant] approached and made the right hand turn reduced her time and ability to see and avoid collisions and (vi) that she did not take sufficient care, given the factors that could have been affecting her visibility and (b) the [applicant] also failed to keep a proper lookout in circumstances where the pedestrians would have been visible and were so to other drivers for a significant time and distance."
4. In assessing the objective seriousness of the offence, the trial judge had regard to the applicant's age of 71 years; that the deceased was a very young child; that the offence occurred around 3.50pm on a weekday; that the applicant had a passenger; that the deceased was holding his mother's hand on impact; that the applicant had repeatedly travelled on that Road; that the impact occurred two metres past the centre line; that the right hand turn was not in accordance with the Road Rules; that the manner in which the applicant took the right hand turn allowed her to travel at faster speed; that as she crossed over to the wrong side of the roadway before reaching the intersection that she did not take sufficient care given the factors that could have affected her visibility and that she failed to keep a proper lookout for the likely pedestrians which would have been visible for some time and distance.
5. Her Honour found, having regard to these matters, "that the offending did not involve a momentary inattention or misjudgement and falls just between the low and mid-range of seriousness and moral culpability for an offence of its type".
6. The trial judge referred to the guideline judgments for dangerous driving of R v Jurisic [1] and R v Whyte [2] , and noted that the guideline judgments remain a 'check or sounding board', citing Kerr v R. [3] Her Honour observed that for offences against s 52A(1) and (3), the typical case was where the offender's moral culpability was high, which was not the present case. Her Honour recounted that in a typical case, full time sentences of less than 3 years in the case of death have been held to not generally be appropriate. Her Honour went on to identify the following common features of the offence of dangerous driving outlined in Whyte: "(a) a young offender (b) of good character with no or limited prior convictions (c) death or permanent injury to a single person (d) the victim is a stranger (e) no or limited injury to the driver or the driver's intimates (f) genuine remorse and (g) a plea of guilty of limited utilitarian value." [4]
7. Her Honour recognised that the applicant fell outside these common features due to her age of 71 years at the time of the offence and by her plea of not guilty.
8. Her Honour observed that while the guideline focusses attention on the objective circumstances of the offence, the subjective circumstances required consideration and may deserve considerable weight.
9. As to the applicant's subjective circumstances, evidence was primarily put before the trial judge by way of a sentencing assessment report, dated 5 November 2018; a psychiatric report by Dr Cheryl Colquhoun, dated 2 September 2018; a psychological report by Ms Farzana Sharmin Rita dated 6 November 2018; various character testimonials and evidence given by the applicant during the sentence hearing and her letter to the Court dated 25 October 2018.
10. The trial judge observed that the applicant was a 72 year old retiree who was born in China and migrated to Australia in 1996. She had a daughter from a marriage of 30 years. The applicant was the sixth of nine children and had always had good relationships with her siblings but after the offence, she largely cut contact with her family.
11. Her Honour noted that until the offence, the applicant had worked in the disability sector for over ten years. Her employer reported that she was reliable and trustworthy. Her employer confirmed that the applicant had not worked since the accident on 19 July 2017 and stated in her letter to the Court that the applicant's focus was always the happiness and the wellbeing of the ladies in her care. Her Honour further observed that "all of the letters tendered on behalf of the applicant written by her colleagues speak of the fondness and respect that they have for her and by all accounts she was a hard and tireless worker".
12. Her Honour noted that the applicant had no history or contact with psychiatric services prior to the offending, denied any history of mental health problems, and that Dr Colquhoun diagnosed her with a major depressive disorder and opined that the applicant may have been experiencing symptoms of post-traumatic stress disorder as a result of the offence.
13. Her Honour observed that the applicant completed the Traffic Offender Intervention Program. Her Honour noted that "…during her evidence at the sentence hearing that since she has completed the Traffic Offender's Program… [s]he now understands… that she cut the corner but… she does not accept that she was wholly on the wrong side of the road and she stated that if she had her time again she would have checked the road more carefully."
14. Her Honour recounted that the applicant had a traffic record of disobeying traffic lights, exceeding speed limit, drive over continuous lines and negligent driving in October 2002. Her Honour found that this record, "…whilst limiting the leniency to be applied to some extent, is not regarded as an aggravating feature for the sentencing purposes."
15. As to aggravating features nominated in Whyte, her Honour found "the [applicant's] driving placed the mother of the deceased at a significant risk and it would have nearly inevitably led to a collision with another motor vehicle that was approaching the intersection if driving up Culloden Road". Her Honour found no other aggravating feature under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) nor under the aggravating features outlined in Whyte.
16. Her Honour said that "the [applicant's] mental health… [would] make her time in any custodial setting, more onerous and more burdensome". Her Honour further found that the applicant was a person of good character, had good prospects of rehabilitation and that "…the risk of re-offending to be very low, if not non-existent".
17. Her Honour accepted that the applicant was profoundly remorseful for the consequences of her actions but balanced against that was the consideration that remorse is not an uncommon feature in matters of this kind.
18. The trial judge said that contrition was a "different consideration" and that the applicant did not have a full appreciation of the extent to which she drove in a dangerous manner. Her Honour observed that whilst accepting responsibility, the applicant stated in her evidence, that the passenger in her car was making her anxious as she approached the intersection. Her Honour noted that the applicant had not told the police this, nor was it raised at trial. Further, despite the verdict and evidence presented at trial, the applicant did not believe that she was on the wrong side of the road. Given this lack of insight, her Honour found there was "a slight need for a degree of specific deterrence".
19. Her Honour accepted that the applicant's elderly age of 72 years was a relevant consideration but noted that "age is not a licence to commit an offence". [5] Her Honour further observed that for offending of the present kind, "general deterrence is usually given primacy over considerations personal to the offender". Her Honour cited R v Musumeci, where Hunt CJ at CL said: "It is never easy to send a youthful person of good character to gaol but where it is appropriate, it is something which must be done as a deterrent to others. The need for public deterrence will usually outweigh the fact that the particular offender has already learned his or her lesson. Also retribution remains an important purpose for which the sentence must serve." [6]
20. Her Honour found "that quote apposite to the matter here but in relation to the advanced age".
21. Her Honour found special circumstances on the basis of the applicant's age, mental health and the fact that this would be her first time in custody. The statutory ratio between the balance of term and the non-parole period was varied to 50%.

Argument

1. In written submissions, the applicant contended that the sentence was not open to the judge in light of her findings when considered against the guideline judgments of R v Jurisic [7] and R v Whyte, [8] as well as the qualifying effect that authorities such as Stanyard v R [9] have on their application.
2. Whilst acknowledging that the guideline is not prescriptive, it was submitted that the applicant's sentence when compared against the guideline judgments, was excessive. The applicant pointed out that her moral culpability not having being assessed as "high" but "between the low and mid-range", and advanced age fell outside of the guideline. Accepting that the applicant also fell outside the guideline by virtue of the not guilty plea, the applicant noted that the guideline judgment provides for a full-time custodial sentence of between 3 years 4 months and 3 years 6 months and her sentence was only 4-6 months less than that indicated by the guideline. Further reference was made to Judicial Commission sentencing statistics.
3. The applicant argued that the sentence was unreasonable or plainly unjust as she was not the "typical" offender and her culpability was between low to middle of the range.
4. In oral submissions, Ms Goodwin, who appeared for the applicant, acknowledged that it was not a proper argument to simply say that the sentence when compared to the guideline was manifestly excessive. Ms Goodwin pointed to the reference by the judge to general deterrence being attributed primacy over considerations such as age and submitted that the judge may have increased the weight of considerations such as general deterrence. Ms Goodwin submitted that type of reasoning may have led the trial judge to impose a sentence which was not properly open given the applicant's age and her subjective background.
5. In written submissions, the Crown contended that the applicant's claim of manifest excess depended on treating the guideline judgment as prescriptive, contrary to the way in which guideline judgments operate as a matter of law. The Crown contended that once it is accepted that the guideline judgment is simply a matter to be "taken into account" and that is not determinative of the outcome, the sentence imposed by her Honour could not be said to fall outside of the sentencing discretion available.
6. Having regard to the circumstances of the case, the Crown submitted that the sentence imposed was within the discretionary range available to her Honour.

Consideration

1. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [10] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [11] It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [12]
2. In a careful and detailed sentencing judgment, the trial judge made findings of fact that were consistent with the verdict of the jury and specifically made six findings of dangerous driving by the applicant. Her Honour went on to assess that the applicant's offending did not involve momentary inattention or misjudgement and fell "just between the low and mid-range of seriousness and moral culpability" for an offence contrary to s 52A(1)(c) of the Crimes Act (see [9]-[13] above). None of these findings are challenged on appeal.
3. The trial judge paid close attention to the applicant's subjective case. Her Honour's findings included that the applicant was a person of good character, had good prospects of rehabilitation, the risk of re-offending was very low, if not non-existent, was profoundly remorseful but did not have a full appreciation of the extent to which she drove in a dangerous manner. Given the applicant's lack of insight, her Honour found a slight need for specific deterrence. The applicant did not contend that these findings were not open to the trial judge.
4. During oral submissions, Ms Goodwin appeared to suggest that the trial judge may have increased the weight to be given to general deterrence because of the applicant's advanced age. Although the trial judge did consider the observations of Hunt CJ at CL in R v Musumeci [13] were apposite to the applicant's advanced age, her Honour, in my opinion, was doing no more than emphasising the importance of general deterrence.
5. Her Honour was mindful of the applicant's age of 72 years at the time of sentence and with the applicant's poor mental health found special circumstances. The non-parole period of 18 months is 50% of the head sentence.
6. Her Honour correctly referred to the guideline judgment in Whyte as being a 'check' or 'sounding board'. When considering the guideline, her Honour was aware that the applicant did not fall within the description of the typical offender in Whyte.
7. Her Honour mentioned that the cases to which she had been referred during the sentencing proceedings provided "nothing particularly on point" as the facts in those cases were so different from the present facts that they could not provide any real assistance. Ms Goodwin accepted in oral argument that little assistance in the applicant's case could be gleaned from the Judicial Commission's sentencing statistics or from other cases.
8. This is a serious offence. The deceased, a young child, and his mother commenced crossing Culloden Road when the applicant's vehicle was between 88 to 111 metres from the intersection with Abuklea Road. The applicant drove her vehicle across the centre line of Abuklea Road approximately 12 metres before the eastern curb of Culloden Road. The vehicle was wholly on the wrong side of both Abuklea Road and Culloden Roads before the applicant commenced the right hand turn into Culloden Road and when she made that turn. The deceased and his mother were approximately two metres past the centre line of Culloden Road when the applicant's vehicle collided with them. They had been on that roadway between 7 and 8 seconds prior to impact. The applicant had the opportunity to see and avoid them for between 5 to 11 seconds.
9. As a result of the applicant's dangerous driving, the vehicle struck the deceased at a point near the front driver's side headlight assembly. The deceased fell under the vehicle and passed under the driver's side wheel. The deceased subsequently died as a result of the impact. The deceased's mother was struck at a point just on the driver's side of the midline of the applicant's vehicle. She fell onto the bonnet of the vehicle and then onto the roadway. The applicant's vehicle travelled for approximately 5 more metres before coming to a stop.
10. The maximum penalty for the offence is 10 years imprisonment, notwithstanding the applicant's strong subjective case and advanced years, the sentence imposed was within the legitimate exercise of her Honour's sentencing discretion. I am not persuaded that the sentence is manifestly excessive.

Orders

1. The orders that I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

1. (1998) 45 NSWLR 209; [1998] NSWSC 423.
2. (2002) 55 NSWLR 252; [2002] NSWCCA 343.
3. [2016] NSWCCA 218 at [96].
4. R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [4].
5. R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484.
6. Court of Criminal Appeal (NSW), 30 October 1997, unrep.
7. (1998) 45 NSWLR 209; [1998] NSWSC 423.
8. (2002) 55 NSWLR 252; [2002] NSWCCA 343.
9. [2013] NSWCCA 134.
10. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
11. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen; Zirili v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
12. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
13. Court of Criminal Appeal (NSW), 30 October 1997, unrep. 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. Decision last updated: 06 November 2019