Walters v Cooper [2014] ACTSC 331 (29 October 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2014] ACTSC 331

1. The appeal is upheld.
2. The appellant is re-sentenced.
3. The appellant is ordered to sign a good behaviour undertaking for 24 months.
4. The appellant is to perform 80 hours of community service in the next 12 months.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - application of NSW guideline judgment relating to serious driving offences to less serious ACT driving offence - failure by Magistrate to explain how guideline judgment had been applied - application of parts of guideline judgment favouring severe sentence but not relevant parts favouring more lenient sentence - sentence severe having regard to circumstances of offence and offender - error found - appellant re-sentenced.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender re-sentenced after successful appeal against sentence in Magistrates Court - offence of negligent driving occasioning grievous bodily harm - serious injury to offender's pregnant partner causing loss of viable foetus - accident caused by momentary inattention - no other culpable behaviour by offender - devastating consequences of accident for offender and family - offender of good character apart from one previous driving offence - offender re-sentenced.

Crimes Act 1900 (ACT), s 29

Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 6, 6(1)

Crimes Act 1900 (NSW), s 52A

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Kennewell v Rand [2005] ACTSC 89

Kennewell v Rand [2006] ACTCA 10

R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (Guideline Judgment)

Case Title: Graeme Robert Cooper and Daniel James Walters

1. Daniel Walters has appealed against a sentence imposed in the Magistrates Court on 9 May 2014. The sentence was for an offence of negligent driving occasioning grievous bodily harm. That offence arises under s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Safety and Traffic Management Act) and carries a maximum penalty including imprisonment for one year.

2. Mr Walters was sentenced to three months imprisonment, one month to be served in fulltime custody and the remainder of the sentence to be suspended subject to a two-year good behaviour order. He was also disqualified from driving for three months.

3. The circumstances giving rise to the charge were described in the police Statement of Facts as follows:

About 10.05pm on Wednesday 16 January 2013 Daniel James Walters ... was driving his motor vehicle west bound along Southern Cross Dr, Scullin, in the Australian Capital Territory, approaching the intersection with Kingsford Smith Drive. The defendant was intending to turn right at the intersection and continue north bound along Kingsford Smith Drive.

Southern Cross Drive in the area is a major arterial road with two lanes in each direction separated by a wide gravel median island. The roadway is of bitumen construction in good repair. Weather conditions were clear and traffic volumes light. West bound traffic is subject to a speed limit of 80km/h whilst east bound traffic approaching the intersection is subject to a speed limit of 60km/h. The intersection with Kingsford Smith Drive is controlled by traffic lights.

The vehicle being driven by the defendant was a silver coloured Ford Fairlane sedan ... registered to the defendant.

At the time the traffic lights facing west bound traffic were a green circular light and a red right-turn arrow. The defendant brought his vehicle to a stop briefly at the intersection before he moved off into the intersection against the red right-turn arrow. Travelling east bound along Southern Cross Drive at the time was Bozidar Kicenko. As he approached the intersection, Mr Kicenko observed the traffic light facing him was green and continued on without slowing or stopping.

The defendant's vehicle crossed into the path of Mr Kicenko's vehicle and they collided in the east bound lane. The impact upon the defendant's vehicle was centred on the front left door causing a significant intrusion into the passenger cabin. The outside edge of the door sill was displaced about 30cm laterally and the front passenger-side foot well was compressed. Seated in the front passenger seat at the time was the defendant's partner, Casey Lyons.

The vehicles came to rest a short distance away, still in the intersection. Other motorists immediately stopped and rendered assistance to the vehicle occupants. Emergency services were contacted and resources from ACT Ambulance, Fire Brigade and Police responded to the collision scene.

Ms Lyons was 38 weeks pregnant and had to be extricated from the vehicle by ACT Fire Brigade. She was transported to Canberra Hospital by ambulance and sustained very serious injuries from the collision. Due to impacts sustained during the collision the unborn baby did not survive. Ms Lyons was admitted for emergency surgery for head, chest and abdominal injuries, injuries to her right leg and to have the baby removed.

4. In formally imposing sentence, her Honour made the following remarks:

In sentencing you today, I take into account the purposes and factors of sentencing set out in the legislation and the statement of facts that's been summarised into the record. In terms of objective seriousness this, in my view, this is toward the mid to upper range of objective seriousness for this type of offence. The degree of negligence in my view was a high one involving you not only travelling through a light that was red but also failing to observe an oncoming vehicle at the material time.

I take into account your plea of guilty. It has the utility for the administration of justice and is indicative of remorse. I have taken that plea into account and the manner in which I will impose sentence. I take into account your age and your personal circumstances as they have been outlined to me. I take into account the facts and matters set out in the documents provided that form Exhibit "A".

I also take into account all of the facts and matters set out in the pre-sentence report and, in particular, your current family circumstances and situation.

I take into account your criminal history. It does not aggravate this offence but it does to some degree reduce the degree of leniency that may have been extended to you as a person with a wholly clean record. Particularly, I note that ... the one matter on your record is a driving related offence.

I take into account that a high standard of vigilance and care is to be expected in relation to driving a motor vehicle. I also take into account those relevant parts of Wilkins v Hague and Brian, ACT Supreme Court, 22 November 2011. I also take into particular account, the matter of R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. ....

Although that is a New South Wales guideline case I note that the penalties in relation to that guideline judgment are fairly significantly different from what I can gather than the penalties available in relation to this offence. Although, I accept that the general principles are applicable and should be considered and I have considered them in reaching a sentence in relation to this matter.

5. The grounds of the appeal were specified as follows:

(a) that the penalty is too severe in all the circumstances;

(b) the learned Magistrate erred in taking into account matters that were not supported by the material before the court; and

(c) the learned Magistrate did not place sufficient weight on the subjective factors of the appellant.

6. In oral argument, the appeal grounds were refined to assert:

(a) first, that her Honour had erred in her approach to the New South Wales Guideline Judgment in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (the Guideline Judgment); and

(b) secondly, that the sentence was manifestly excessive having regard to the fact that the offence consisted of momentary inattention and to the offender's subjective circumstances, especially the impact of the motor vehicle accident on the offender himself, including the death of the unborn child fathered by him and the subsequent loss of his relationship with his partner, as well as the fact that he had lost his job as a result of taking some weeks away from work after the accident to support his partner in hospital.

7. The Guideline Judgment was drawn to her Honour's attention by the prosecutor. That judgment concerned s 52A of the Crimes Act 1900 (NSW) (the NSW Act), which deals with dangerous driving occasioning death or grievous bodily harm.

If the vehicle driven by [a] person is involved in an impact [occasioning the death of another person or occasioning grievous bodily harm to another person] and the driver was, at the time of the impact, driving the vehicle:

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons.

9. The offence carries a maximum term of imprisonment of 10 years if death results, 14 years if death results from dangerous driving in circumstances of aggravation, 7 years if grievous bodily harm is caused and 11 years if grievous bodily harm is caused in circumstances of aggravation. That phrase, "circumstances of aggravation" is defined to mean:

any circumstances at the time of the impact occasioning death or grievous bodily harm in which:

(a) the prescribed concentration of alcohol was present in the accused's breath or blood, or

(b) the accused was driving the vehicle concerned on a road at a speed that exceeded, by more than 45 kilometres per hour, the speed limit (if any) applicable to that length of road, or

(c) the accused was driving the vehicle to escape pursuit by a police officer, or

(d) the accused's ability to drive was very substantially impaired by the fact that the accused was under the influence of a drug (other than intoxicating liquor) or a combination of drugs (whether or not intoxicating liquor was part of that combination).

10. The ACT offences relating to death and grievous bodily harm caused as a result of driving are created by s 6 of the Safety and Traffic Management Act and s 29 of the Crimes Act 1900 (ACT).

11. Section 6 refers to negligent driving, and contains maximum penalties of imprisonment for two years and one year respectively for negligent driving causing death or grievous bodily harm.

12. Section 29 refers to culpable driving and contains maximum penalties of imprisonment for 14 years and 10 years respectively for culpable driving causing death or grievous bodily harm, with maximum penalties of 16 years and 12 years respectively for aggravated versions of the offence.

13. The offences created by s 52A of the NSW Act are most closely comparable with the ACT offences created by s 29 of the Crimes Act, although the scope of conduct covered by the two offences is slightly different.

14. The NSW offence identifies specific forms of dangerous driving, being driving under the influence of alcohol or drugs, or at speed or in a manner dangerous to other people.

15. By comparison, the ACT offence of culpable driving defines culpable driving as driving negligently or while under the influence of alcohol or another drug to such an extent as to be incapable of having proper control of the vehicle. Negligence is further defined as "failing unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case".

16. Section 29 does not apply to negligent driving unless it involves a failure to observe a reasonable standard of care "unjustifiably and to a gross degree". Section 6 of the Road Transport Act, which creates the offence with which Mr Walters was charged, applies to all negligent driving.

17. It is apparent from a comparison of the content of the various legislative provisions and the penalties imposed by them that the offence created by s 52A of the NSW Act is, as already noted, roughly comparable with the s 29 offence in the ACT, but is not directly comparable with the basic negligence offence created by s 6 of the Road Transport Act. Although s 52A deals with conduct that produces the same outcomes as both the ACT offences (that is, death or grievous bodily harm), it deals with conduct that is considerably more culpable than simple negligence.

18. Counsel for the respondent pointed out that both the ACT offences involved negligence and sought to argue that, therefore, the s 6 offence as well as the s 29 offence was comparable with the s 52A offence in NSW.

19. That is correct up to a point. In fact, the more serious of the ACT offences, that created by s 29 of the Crimes Act, applies not only to negligent driving but separately to driving while under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle. Furthermore, s 29 applies not to just any negligence but only to more serious negligence, that is, negligence constituted by failing "unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case".

20. However, even accepting that the s 29 offence and the s 52A offence are intended to cover roughly the same ground, this does not justify the further conclusion that because the s 29 offence and the s 6 offence both refer to negligence, the s 6 offence is directly comparable with the s 52A offence, or even that the s 6 offence and the s 52A offence are usefully comparable to any particular extent.

21. Given the absence of any direct equivalence between the relevant ACT offence provision (s 6) and the NSW offence provision dealt with in the Guideline Judgment (s 52A), it seems to me reasonable to expect a Magistrate, to the extent that he or she refers to the applicability of a guideline judgment relating to the NSW offence, to articulate clearly the aspects of that judgment on which he or she relies. What her Honour in fact said was this:

I also take into particular account, the matter of R v Whyte ... Although that is a New South Wales guideline case I note that the penalties in relation to that guideline judgment are fairly significantly different, from what I can gather than the penalties available in relation to this offence. Although, I accept that the general principles are applicable and should be considered and I have considered them in reaching a sentence in relation to this matter.

22. Her Honour then immediately turned to the importance of specific and general deterrence, saying, among other things, "drivers must be held to a high standard of care or else death or serious injury can result".

23. Counsel for the respondent submitted that "the general principles" to be found in the NSW Guideline Judgment are that general deterrence is particularly significant in relation to these kinds of driving offences. In the Guideline Judgment, Spigelman CJ said:

142 Prior to Jurisic there were a number of decisions of this Court which had identified such principles applicable to s52A of the Crimes Act, drawing from time to time on the case law of other jurisdictions for parallel offences. However, it was apparent to this Court in Jurisic that these principles had not been applied by sentencing judges. In particular the weight to be given to the need for public deterrence and the seriousness with which the community regarded the particular offences, manifest in a substantial increase in maximum penalties, had not been reflected in a substantial number of cases. As a result there was a flow of almost invariably successful Crown appeals against sentences imposed under s52A. (See Jurisic at 229.) The large proportion of cases that did not result in a term of actual imprisonment suggested a pattern of leniency and of inconsistency on the part of sentencing judges. The numerous statements in this Court about the need for a sharp upward movement in the sentencing pattern (e.g. R v Slattery (1996) 90 A Crim R 519) had been ignored by a significant number of sentencing judges. An approach limited to the identification of relevant sentencing principles had proved inadequate.

143 As Wood CJ at CL observed in Jurisic at 233:

"The Court has, in the many instances identified and in several other areas, over the years endeavoured to lay down sentencing principles for particular classes of case where sentences reflecting a significant element of general deterrence are required, or where non-custodial options are inappropriate. It appears that sometimes these principles are lost or that their significance is overlooked, in the volume of appellate decisions handed down and in the pressure imposed on trial courts to dispose of increasingly busy criminal lists."

24. I accept that the Guideline Judgment was promulgated with a view to ensuring that the need for general deterrence in relation to driving offences involving death or grievous bodily harm was properly accounted for by sentencing judges across NSW. That aim was to be achieved by setting out in the Guideline Judgment, guidelines for appropriate sentences for what were described as the typical or "frequently recurring" cases arising under s 52A, and identifying factors which would aggravate the typical case so as to require a more severe sentence.

25. While it may therefore be correct to describe the importance of general deterrence in relation to the relevant offences as one of the general principles to be found in the Guideline Judgment, the material included in the judgment that is intended to provide specific direction to sentencing judges could also be described as general principles. They include the principles to be drawn from the following material:

(a) The description of the typical or frequently recurring case, set out at [204]:

1. A frequently recurring case of an offence under s52A has the following characteristics.

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

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

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

(b) The identification of factors that will aggravate the typical case, set out by Spigelman CJ at [216] to [218]:

1. I had earlier set out a list of aggravating factors which had been established in the authorities as follows:

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

1. Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding:

"Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has 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."

(c) The numerical guidelines for sentencing in such cases, set out at [214], [229] and [230]:

1. The guideline this Court should give pursuant to s37A of the Crimes (Sentencing Procedure) Act 1999 with respect to the typical case identified above is:

A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.

1. The guideline for offences against s52A(1) and s52A(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.

1. In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.

26. The appellant's complaint appears to be in general terms that it is not clear what general principles from the Guideline Judgment her Honour applied in sentencing him, and more specifically that her Honour appears to have selectively applied the Guideline Judgment, in that she has focused on the importance of general deterrence, but ignored the principle found in the first guideline which identifies a case of "momentary inattention or misjudgement" as involving "a low level of moral culpability" and, by implication, as not requiring a custodial sentence. It is not unreasonable for the appellant to consider that if that principle applies to offences carrying a maximum penalty of seven years imprisonment, it should also be applicable to a similar offence with a maximum penalty of one year's imprisonment, and to submit that her Honour has fallen into error in the manner in which she relied on the Guideline Judgment in her sentencing.

27. Counsel for the respondent submitted that the importance of general deterrence in sentencing for these kinds of offences was adopted in the ACT in Kennewell v Rand, both in the Supreme Court ([2005] ACTSC 89) and in the Court of Appeal ([2006] ACTCA 10). I accept this submission, but it does not seem to address the appellant's concern that in applying the Guideline Judgment in his sentencing, her Honour has, without clear explanation, emphasised the aspects of the Guideline Judgment that appear to encourage severity in sentencing and ignored the aspects that would suggest that the appellant's particular case was deserving of greater leniency than was provided.

28. A further more minor criticism is made of her Honour's approach to the Guideline Judgment, being that in discussion with the prosecutor before her Honour finalised the sentence, there was the following exchange:

MR MANSFIELD: ... If I then take your Honour to paragraph 229, essentially through to paragraph 234 which is the application of the guideline judgment and at 229 it says, "The guideline for offences of the typical case identified above should be where the offender's moral culpability is high." I'm not suggesting that that is the case in this instance, your Honour, "A full custodial head sentence of less than two years in a case of grievous bodily harm would not generally be appropriate". So it is saying two years or more.

HER HONOUR: We only have one year available_._

29. That comment, that there is only one year available under s 6, is said to raise a concern that her Honour saw a need, while recognising the different maximum penalties, to impose a penalty representing a similar proportion of the maximum penalty as was indicated by the Guideline Judgment for offences where the offender's moral culpability is high.

30. If that were in fact part of the explanation for her Honour's sentencing, that would compound the criticism of that sentencing to the effect that her Honour had selectively applied the guideline judgment to the appellant's disadvantage.

31. In summary, the difficulty in this case is that her Honour has indicated that she has applied the "general principles" from the Guideline Judgment without identifying which particular principles she has applied, and therefore without enabling a proper examination of whether that has been done correctly or erroneously.

32. It is not necessarily the case that any uncertainty about how a sentencing outcome has been reached raises the possibility of error sufficient to enable the reopening of a sentencing decision. However, in this case the possibility that there has been legal error in applying the Guideline Judgment is in my view strengthened by the fact that the sentence imposed by her Honour seems high having regard to the evidence before her about the level of the appellant's negligence and, to a lesser extent, about the appellant's subjective circumstances. Although, given the limited information available to me about sentencing practice for s 6 offences in the Magistrates Court (at [41] below), I refrain from making a finding that the sentence was manifestly excessive, I am nevertheless satisfied that another sentence would be appropriate in this case.

33. On an appeal, it is the appellant's responsibility to satisfy the appeal court that grounds exist to uphold the appeal. In this case, the appellant has satisfied me that her Honour's comments, both during the hearing and in her sentencing remarks, about the significance of the NSW Guideline Judgment which applies explicitly to a much more serious offence than the offence for which the Magistrate was sentencing the appellant, taken together with the somewhat severe sentence imposed by her Honour, establish a sentencing error sufficient to enliven my discretion to re-sentence.

34. For the purpose of that re-sentencing, I take account of several matters.

35. First, I note the contents of the police statement of facts to which I have already referred. In that context, I note in particular that the statement of facts excluded various kinds of inappropriate behaviour by the appellant, such as speeding or otherwise driving dangerously, driving while intoxicated or driving a vehicle in dangerous conditions, and did not identify any other possibly culpable behaviour by the appellant.

36. I note also that her Honour's suggestion that the appellant's conduct involved two instances of negligence, being failing to stop at a red light and failing to keep a proper lookout for approaching vehicles, may be flawed; although no doubt very cautious drivers will do so, I am not convinced that in the normal course of events it is expected that a driver approaching a green traffic light will slow down sufficiently to be able to confirm before entering the intersection that no other driver is disobeying a red light facing his or her vehicle. Indeed, the police statement of facts in this case specifically records that the other driver involved in the accident "observed the traffic light facing him was green and continued on without slowing or stopping."

37. If I am correct in my view about the usual way of approaching a green traffic light, and if it is accepted that the appellant entered the intersection because, momentarily confused, he believed he was facing a green right-turn arrow, then his failure to realise and respond to the fact that the vehicle coming towards him was intending to enter the intersection is not necessarily a separate incident of negligence. I note also in this context that the speed of an approaching vehicle, and perhaps particularly one approaching from in front of the observer, is generally more difficult to assess at night.

38. Secondly, I take into account the devastating consequences of the appellant's driving, especially for his partner, who was seriously injured in the accident and who lost her baby as a result.

39. Thirdly, I note the appellant's subjective circumstances outlined to the Magistrate by his counsel, in particular:

(a) the fact that at the time of the offence the appellant had only one prior conviction, although that was another traffic offence, specifically, a drink-driving offence committed in 2006 when the appellant was 21;

(b) that the appellant appears to have been otherwise of good character; and

(c) that the appellant has also suffered significantly as a result of the accident, not only by losing his baby, but also from the stresses arising from the accident that appear to have brought his relationship with his partner to an end, the fact that he lost his job as a result of the extended time he took away from work after the accident to support his partner in her recovery, and the fact that at least at the time of the original sentencing, he continued to support his partner in various ways in that recovery.

40. Of course, the fact that the appellant is generally of good character is, as noted in the Guideline Judgment, typical of dangerous driving offences, and probably also of negligent driving offences, and therefore may not mitigate the sentence as much as it might in other cases.

41. Finally, I note that the ACT sentencing database currently contains data from 52 sentences for offences created by s 6. For 94% of offenders, the penalty was either a fine or a good behaviour order, or possibly both. Two offenders appear to have received prison terms, one involving periodic detention and one (being the sentence imposed on the current appellant) was partially but not wholly suspended.

42. This is useful information as far as it goes. However I note that s 6 covers not only negligent driving causing death or grievous bodily harm, but also negligent driving with less serious or possibly even no identifiable consequences, so the fact that this sentence is one of the two most severe of the 52 recorded in the database is not as significant as it might otherwise be. The other difficulty with the database is that for the Magistrates Court, the data provides little information about the circumstances of the offence or the offender.

43. There is no doubt that, given the potentially catastrophic consequences of even momentary inattention while driving, general deterrence is a relevant consideration in sentencing. On the other hand, general deterrence may be less effective in relation to driving that is low-level negligence, especially involving momentary inattention, than in relation to driving that involves any degree of conscious risktaking.

44. Despite the importance of general deterrence, I do not see that a term of imprisonment is the only appropriate sentence in this case, especially bearing in mind that a term of imprisonment should not be imposed, even if the intention is to suspend it fully, unless it would be appropriate for that term to be served in fulltime custody (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Kirby J at [74] to [76]). Accordingly, I consider that the appropriate way to re-sentence in this case would be to:

(a) note the conviction entered in the Magistrates Court; and

(b) order the appellant to sign an undertaking to be of good behaviour for a period of two years, with a condition of that good behaviour order that during the next 12 months, the appellant performs 80 hours of community service.

45. I have, in determining the amount of community service to be ordered, taken into account that the appellant has already served five days of the term of imprisonment imposed in the Magistrates Court.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.