Barnett v The Queen

[2014] NSWCCA 296

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Barnett v R [2014] NSWCCA 296

Hearing dates:

15/10/2014

Decision date:

11 December 2014

Before:

Macfarlan JA at [1];
Fullerton J at [2];
Bellew J at [59]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - dangerous driving occasioning death - whether sentencing judge erred in finding that the applicant's conduct was not a case of momentary inattention

Legislation Cited:

Crimes Act 1900 (NSW), s 52A(1)(c)

Cases Cited:

House v The King [1936] HCA 40; 55 CLR 499
R v Isaacs (1997) 41 NSWLR 374

Category:

Principal judgment

Parties:

Kaine Daniel Barnett (Applicant)
The Crown

Representation:

Counsel:
S Odgers SC (Applicant)
J Pickering SC (Crown)
Solicitors:
Bahlmann Burke Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2012/79741

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2014-04-24 00:00:00

Before:

Handley DCJ

File Number(s):

2012/79741

Judgment

1. MACFARLAN JA: I agree with Fullerton J.

1. FULLERTON J: On 3 March 2014, a jury found the applicant guilty of two counts of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 10 years imprisonment.

1. On 24 April 2014, the applicant was sentenced to an aggregate sentence of 3 years imprisonment commencing on 24 April 2014 to expire on 23 April 2017 with a non-parole period of 18 months to expire on 23 October 2015. Sentences of 2 years imprisonment with a non-parole period of 1 year were indicated for each offence. The applicant was also disqualified from holding a motor driver's licence for three years from 15 February 2012.

1. The applicant seeks leave to appeal against the aggregate sentences imposed. There is no appeal against conviction.

1. The sole ground of appeal is that the sentencing judge erred in finding that the applicant's conduct was not a case of momentary inattention.

The proceedings at trial

1. Unless specifically noted, what follows is a summary of the facts that were not in dispute at trial or on sentence.

1. The collision occurred on 15 February 2012 on the Hume Highway near Berrima. The highway at the collision site was a double highway which consisted of two lanes oriented generally north-south with an incline to the south. There is a gradual left-hand bend prior to the incline. An additional left-hand lane, designated for heavy vehicles, commences at the start of the incline.

1. The collision occurred between 12.30pm and 12.40pm. The weather was clear and the road surface was dry.

1. The deceased Ms Fraser, was travelling south on the Hume Highway when her Ford TX5 ("the Ford") experienced mechanical problems, causing it to stop. Because the breakdown lane and a metal Armco rail restricted the extent to which she could park off the highway, the Ford was partially on the road shoulder and partially in the left lane. She turned her hazard lights on and raised the bonnet.

1. Ms Fraser contacted the NRMA for roadside assistance. A tow truck driver, the deceased Mr Clark, was assigned to tow her car.

1. The Ford had been broken down at the collision site for over an hour prior to the collision. Evidence was led at the trial from two witnesses, each of whom were travelling south (that is, towards the collision site). Both gave evidence that they had seen Ms Fraser and her vehicle stationary and awaiting roadside assistance. They said they had been able to take evasive action to avoid colliding with her vehicle by verging to the right on the approach.

1. The Crown also led evidence that 178 vehicles would likely have passed the collision site whilst Ms Fraser awaited the attendance of the tow truck. The inference the jury were invited to draw was that those drivers who had seen Ms Fraser's car (and Ms Fraser) had been able to safely avoid any collision.

1. Mr Clark positioned his tow truck in front of the Ford and activated the hazard lights. The Ford and the tow truck (collectively referred to as "the hazard") both encroached into the left lane by approximately 1 metre and 1.3 metres respectively. Traffic was diverted to the middle and right lanes by the large flashing amber arrow on the back of the tow truck. Mr Clark was wearing a high visibility vest at all material times.

1. Whilst Mr Clark was in the process of attaching the Ford to the tow truck, the applicant was driving in the left southbound lane (on the incline) in a 4.8 tonne table-top truck at a speed of 100 kilometres per hour. The designated speed limit was 110 kilometres per hour. There were no vehicles in either of the southbound lanes ahead of the applicant as he approached where Mr Clark was attending to the Ford. Another truck driver was travelling behind the applicant's truck. That driver gave evidence that he had clearly seen the deceased and their vehicles on the approach and with sufficient time to allow him to move safely to the centre lane. He confirmed there were no vehicles between the applicant's truck and the victims' vehicles. He also gave evidence that he did not see the applicant's truck brake or slow down prior to the collision, but saw it swerve suddenly and sharply to the right just prior to impact. He witnessed the collision.

1. The applicant swerved 7.6 metres before clipping the rear offside (the driver's side) of the Ford and then colliding with Ms Fraser and Mr Clark who were standing beside the two stationary vehicles in the breakdown lane. Both Mr Clark and Ms Fraser sustained fatal injuries and died at the scene. The applicant was treated by ambulance officers and taken to Bowral hospital. He sustained no injuries.

1. The applicant was not under the influence of alcohol or drugs at the time of collision. The Crown did not allege that he was driving recklessly.

The trial

1. The trial proceeded on a very limited basis. The only element of the offences in contention was whether the Crown had proved that, at the time of the collision which caused the death of Mr Clark and Ms Fraser, the applicant's manner of driving was dangerous by reason of his failure to maintain a proper lookout.

1. It was the Crown case that whilst driving a heavy vehicle on an open highway the applicant had failed to maintain a proper lookout as he approached the collision site such that he did not see the hazard in sufficient time to avoid the collision.

1. Defence counsel submitted that it was open to the jury to be satisfied of the reasonable possibility that on approach to the collision site the applicant was momentarily distracted and that when his attention was redirected to the road ahead he did not have sufficient time to avoid colliding with Ms Fraser's vehicle. The defence submitted that, in those circumstances, the jury would not be satisfied beyond reasonable doubt that at the time of the impact which caused the death of the deceased, the applicant was driving in a dangerous manner.

1. The trial judge directed the jury that the Crown would prove its case if they were satisfied there had been a serious breach of the applicant's proper management and control of his vehicle, and that the breach was so serious that it created a real danger, in the sense of posing a real risk to others in the vicinity. They were also directed that where a lapse of attention by a driver creates a danger of that kind, it may constitute dangerous driving despite the driver's inattention being either casual or momentary. The jury were further directed that whether the Crown proved that the applicant's manner of driving shortly before, and at the time of impact, was dangerous depended upon all the circumstances in which the driving occurred, including such factors as the time of day, the nature of the road surface, weather conditions and the general environment. They were reminded that the use of a motor vehicle is always dangerous, simply because of the risk it poses to others, but that potential risk can be minimised by the driver exercising proper control and management of the vehicle.

1. By their verdicts, the jury must be taken to have been satisfied beyond reasonable doubt that at the point of impact the applicant was driving in a manner that was dangerous, despite what was relied upon in his defence as constituting what the sentencing judge described in his sentencing remarks as "proffered sources of distraction".

1. These included:

(1)   At the scene immediately after the collision the applicant said to a witness, "I think I grabbed my drink bottle and there they were";

(2)   The applicant told an attending ambulance officer that he was driving, placed the bottle into the cup holder, looked up and I saw two people in front of him or in front of the truck and that he hit them; and

(3)   Approximately a fortnight after the collision, through his solicitor, the applicant provided a signed statement, the effect of which was that, as he climbed the incline to the south, he checked both of his rear view mirrors and moved into the left-hand lane as an extra lane was available. He said that, as he approached what he described as the "first crest", he checked his rear view mirrors again as the third lane was about to merge at the top of the crest. He then said, "After checking both mirrors I looked back and saw a woman on the road immediately in front of my truck in the middle of my lane. I immediately pulled the vehicle hard to the right and heard a bang".

(4)   In his statement, the applicant also said that he checked his mirrors because he wanted to know the location of a truck that he had earlier passed and because he believed the left lane was about to end and he intended to merge out of the left lane. The left lane ended 350 metres after the collision site. It was common ground that the applicant's vehicle had only two mirrors, being the left-hand side and right-hand side mirrors. There was no centrally placed rear vision mirror. (He made no mention of the drink bottle in his statement to police.)

1. The applicant did not give evidence at trial or on sentence.

1. Photographs taken by a police officer of the applicant's truck showed several drink bottles in the footwell of the cabin of the truck but no drink bottle in the cup holder. The police officer also gave evidence that there was a "fridge type system" in the cabin.

1. The Crown called a forensic accident investigator. He gave evidence as to the time available to avoid the collision (measured in seconds) from a point on the roadway where the hazard was first visible to a driver in the position of the applicant.

1. The expert gave evidence from which the following factual propositions can be derived:

(1)   The hazard was potentially visible 300 metres before the point of impact (tree foliage obscured the hazard prior to that point);

(2)   The hazard was clearly visible 250 metres before the point of impact;

(3)   A vehicle travelling at 100 kilometres per hour has 10.8 seconds before reaching a point that is 300 metres distant;

(4)   A driver travelling at 100 kilometres per hour has 9 seconds before reaching a point that is 250 metres distant;

(5)   The applicant swerved 7.6 metres (or 0.27 seconds) before the point of impact;

(6)   An ordinary driver would take evasive action 2.9 seconds after seeing the hazard (including the time taken to perceive, process and act upon the stimulus created by the hazard).

1. The Crown expert was invited in cross-examination to factor into his assessment the various explanations the applicant had given to account for his failure to see the hazard in sufficient time to avoid the collision. He gave the following evidence:

(1)   It would take 1.5 to 2.5 seconds for a driver to either remove a drink from or replace a drink into a cup holder mounted in the way the holder was positioned in the applicant's truck; and

(2)   It would take 1.5 seconds for a driver of a heavy vehicle of the general kind the applicant was driving to check one rear vision mirror.

1. In his sentencing remarks, his Honour noted that, on that analysis of the evidence, a driver who was keeping a proper lookout had 7.9 seconds (10.8 seconds less 2.9 seconds) available to observe a hazard ahead and to take evasive action and that, on the expert's estimation, the applicant's inattention spanned at least approximately 4 to 5 seconds (being 7.9 seconds minus 3 to 4 seconds).

1. There is nothing in his Honour's sentencing remarks to suggest that he did not give consideration to that evidence or that he rejected any of the sources of distraction the applicant proffered in the accounts he gave to the witness, police and ambulance officers as not being capable of explaining his lack of attention. What was in dispute on sentence was what conclusions could be drawn from all the evidence led at trial concerning the extent or duration of the applicant's inattention, or the time during which he failed to keep a proper lookout, consistently with the verdicts of the jury.

1. It was submitted by counsel then appearing for the applicant that it was not inconsistent with the jury's verdicts for his Honour to sentence the applicant on the basis of a lapse of attention, or inattention, for a period of time which could properly be described as "momentary".

1. After detailing what his Honour regarded as the factual findings embedded in the jury's verdicts, he rejected that submission and made the following findings:

... I do not accept [the applicant's] failure to maintain a proper lookout at the critical time can be fairly described as "mismanagement" or "momentary inattention on his part".

...

I am satisfied the jury's verdicts indicate a finding that the offender failed to keep a proper lookout at the road ahead of him for a significant period of time in the circumstances of being a professional driver on a busy highway and where there existed a need to be continuously alert and where the risk to

others is considerable. This indicates a finding that his moral culpability went beyond a classification of "moral [sic] inattention or misjudgement".

1. Although the sentencing judge made no finding that the sources of distraction proffered by the applicant were not legitimate (in the sense that a driver may look away from the road to attend to a drink bottle and is required to use the rear or side mirrors as part of the safe management of the motor vehicle), it is clear from the findings he did make that he was not satisfied that, either individually or in combination, they allowed for the applicant's driving at the point of impact to be characterised as involving "momentary inattention". He also observed that, even were the jury to have accepted the sources of distraction proffered by counsel in argument as a reasonably possible explanation for the applicant's failure to maintain proper focus on the road ahead, their verdicts must be taken to have left them in no doubt that he was driving in a dangerous manner at the point of impact.

1. It is clear from the sentencing remarks that his Honour reasoned to the conclusion that the applicant was inattentive, and for a significant period of time, after considering all the evidence in the case. He also found that what he described as the "proffered sources of distraction" did not adequately account for the time over which the applicant was inattentive or during which he failed to keep a proper lookout. His Honour reasoned to that conclusion by allowing 10.8 seconds (as opposed to 9 seconds) for the applicant to travel the distance of 300 metres - being the distance from the collision site when the hazard was first visible to a driver in the position of the applicant - despite making the further finding that the hazard was at least clearly visible from 250 metres before the point of impact, narrowing the time taken to travel the intervening distance from 10.8 seconds to 9 seconds. That was a finding clearly favourable to the applicant. So much is clear. After accounting for the passage of 2.9 seconds for evasive action to be taken, his Honour then calculated that the applicant was (theoretically) inattentive for 7.9 seconds. That was an error in that 9 seconds less 2.9 seconds equates to finding of theoretic inattention for 6.1 seconds. His Honour later accepted that he had made an arithmetic error when his attention was drawn to it by the Crown prosecutor. When the arithmetic error was pointed out to him, he said that it did not alter his ultimate conclusion that the applicant was inattentive for a significant period of time.

1. On the appeal, senior counsel for the applicant submitted that it was not open to the sentencing judge to find that the applicant failed to keep a proper lookout for "a significant period of time" on approach to the collision site, and that the proper finding (in the sense of it being the only available factual finding on the evidence and the inferences legitimately drawn from the evidence) was that the applicant was inattentive for a much shorter period of time which, according to the calculus senior counsel suggested his Honour seemed to employ, was as little as 0.33 of a second - a time measure which could only be described as momentary. That calculation was expressed as follows: from a starting figure of 9 seconds (time available to observe the hazard) less 5.5 seconds (compound distraction time) less 2.9 seconds (time taken for evasive action) less 0.27 seconds (the seconds before collision where the applicant swerved), with the calculated result being 0.33 seconds. It was then submitted that the criminality inherent in that conduct was of such a low order that the sentences imposed by the sentencing judge were excessive and that this Court should substitute non-custodial sentences by way of re-sentence.

1. The Crown submitted that it would be completely inconsistent with the verdicts of the jury for his Honour to sentence the applicant on the basis that his inattention was momentary (whether for as little as one third of a second or some other order of magnitude in the range) as this would be contrary to a finding of criminal liability for the dangerous driving causing death inherent in the jury's verdicts (R v Isaacs (1997) 41 NSWLR 374). The Crown submitted that to mount a challenge to the sentence tethered to the submission that his inattention was momentary, measured in a fraction of a second, was to implicitly challenge the verdicts as unreasonable.

1. The Crown further submitted that, on a proper reading of his Honour's sentencing remarks, he did not employ the mathematical calculus attributed to him by the applicant before arriving at his ultimate finding that the applicant was inattentive for a "significant period of time", or at least he did not confine himself to the narrow theoretical calculus attributed to him by the applicant on the appeal according to which the figure of 0.33 was arrived at and advanced to this Court in argument.

1. For the applicant to seek to attribute to the sentencing judge such an approach, and then to dissect it for error, ignores the approach his Honour actually took to the fact finding after trial, an approach which the Crown submitted was in strict conformity with sentencing principles.

1. In the Crown's further submission, his Honour did not make any express finding that the applicant's account to police and ambulance officers ought be given any weight at all and, even if it be accepted that his Honour afforded it some weight, it displaced the overwhelming weight of evidence in the Crown case which rendered the applicant's failure to see the hazard as explicable only on the basis of a failure to keep a proper lookout over a considerable distance in advance of the collision site or, as his Honour expressed it, for "a significant period of time".

1. The Crown submitted that having heard all the evidence at trial, in particular the evidence of the expert as to the distance of 300 metres from the rear of Ms Fraser's vehicle where the overhanging foliage no longer interfered with the view of the hazard ahead to the collision site, the drive-through reconstruction of the collision, and having participated with the jury in a view, his Honour was in an optimum position to determine for himself, consistently with the jury's verdicts, the degree or extent of the applicant's inattention to the road ahead and to sentence him according to that finding so as to reflect the extent of his moral culpability for the deaths.

The sentencing judge's factual errors

Error 1 - The time taken to travel 250 metres

1. The first error was the arithmetic error already discussed.

1. Immediately prior to the conclusion of the sentencing hearing, his Honour had the following exchanges with the Crown prosecutor :

HIS HONOUR: I note that withdrawal [of back-up charges] and they are dismissed. Any other matters?

COUNSEL: Your Honour, there's just one factual matter. In your Honour's indication of the findings your Honour was satisfied the jury accepted, your Honour indicated Mr George's potentially visibilty for 300 metres. Your Honour then went on to indicate that the vehicles were clearly from 250 metres. Your Honour then went on and indicated a distance of 250 metres with the 2.9 seconds and reached a figure of 7.9 seconds. I'm not sure if your Honour was actually indicating a distance of 300 metres which would leave the 7.9 seconds or if indeed your Honour was meaning 250 metres, which would mean a slightly less figure of 6.1 seconds.

HIS HONOUR: Well if that is the case, I will amend it to 6.1 seconds, but it does not make any difference in relation to the findings I made.

1. It was submitted by the applicant that by merely acknowledging that he had made a mistake, but not reflecting on the impact of the error on the finding he had made adverse to the applicant (namely, that he had been inattentive for a significant period of time) before dismissing it as having no impact, his Honour's arithmetic error was compounded. In combination with three further factual errors, it was submitted, invoking House v The King principles ([1936] HCA 40; 55 CLR 499), that the sentencing discretion has miscarried.

1. In my view, neither the making of what has been described as the arithmetic error, nor the realisation that it was made, leads inevitably to the conclusion contended for by the applicant. The critical question is whether the mathematical analysis imputed to his Honour was wholly or substantially determinative in rejecting the submission that the applicant's inattention was only momentary.

1. I am satisfied that on a proper reading of the sentencing remarks and the consideration his Honour gave to all evidence led at trial, that his ultimate finding that the applicant was inattentive for a significant period of time was not so narrowly confined.

1. That being the case, it is unnecessary to consider the three errors said by the applicant to have caused the sentencing discretion to miscarry since they each proceed on the basis of a mathematical formula that his Honour did not apply. However, in order to make clear my reasons for dismissing the applicant's appeal, I will first refer to each of the errors contended for, albeit briefly.

Error 2- the time during which the applicant was "legitimately distracted"

1. The second error relates to what is said to be an error in calculating the time taken to travel from where the hazard was visible to the collision site, referable to what the evidence suggested was the average time it would take to put a drink bottle in a holder and to glance at a side mirror in a heavy vehicle before, presumably, returning attention to the roadway ahead.

1. Counsel for the applicant submitted that the sentencing judge erred in not finding that the applicant could have been distracted by up to 3 seconds by checking both side mirrors, and that the duration of the proffered distractions from both handling his drink bottle and checking the mirrors should have been estimated to be to 4.5 to 5.5 seconds and not the 3 to 4 seconds his Honour must be taken to have deducted from the time it took the applicant to travel to the collision site from the time when the hazard first became visible.

1. Foundational to this submission is the proposition that his Honour found that the combined duration of these sources of distraction in fact ranged from 3 to 4 seconds premised upon the applicant looking into one mirror as he was merging from the left lane into the middle lane and that his Honour then applied a formula in which the combined duration of the sources of distraction were subtracted from the 9 seconds taken to travel to the collision site.

1. As the Crown submitted, and correctly in my view, no such finding was ever made. While his Honour referred to the expert evidence which addressed the "proffered sources of distraction", he made no finding that the applicant was in fact distracted by either handling his water bottle or glancing in the side or rear view mirrors, even if implicitly he allows for that as a reasonable possibility. Even so, there is nothing in his Honour's sentencing remarks to support the proposition that he allowed a compound distraction time of 3 to 4 seconds (1.5 to 2.5 seconds for the applicant to deal with the drink bottle, and 1.5 seconds to check a side mirror) from which he estimated the applicant was inattentive on approach to the collision site for "at least 4 to 5 seconds" (7.9 seconds less 3 to 4 seconds). The appointment of "at least 4 to 5 seconds" was only ever referred to in the context of his Honour's review of the expert evidence. Although he did not refer back to that evidence after the arithmetic error was pointed out to him (something which I am not satisfied he was obliged to do in any event), it would only require an adjustment of 1.8 seconds in the available time within which the hazard would have been obvious (that is, from a base of 9 seconds and not 10.8 seconds). Were that adjustment to be made, rather than the 4 or 5 seconds during which the expert estimated the applicant failed to keep a proper lookout, the estimate would be in the region of 2 or 3 seconds.

1. What needs to be emphasised is that it was neither the applicant's case at trial nor on sentence that he took his eyes off the road for a continuous span of seconds as he looked at the side mirrors and dealt with his water bottle. That being the case, the point the Crown makes, and persuasively, is that the mathematical exercise attributed to his Honour on the appeal is an abstraction which has no relevant bearing on the issues to be decided for sentencing purposes. The Crown submitted that to subtract a compound estimate of discrete intervals or periods of inattention in the way proposed by the applicant's senior counsel is to create an air of artificiality foreign to the fact-finding exercise his Honour engaged in and from which he drew his ultimate findings.

1. To the extent that those findings need to be restated, the sentencing judge found that prior to dealing with his drink bottle and/or checking his mirror(s), or during the interval between those tasks, the applicant should have ensured that the road ahead was clear and that it was safe to glance or look down at the drink holder or glance or look into the side mirror. His Honour also found that the applicant's failure to maintain a proper lookout resulted in a degree of inattention found by the jury to amount to driving in a manner dangerous, and which he was satisfied was not momentary.

Error 3- the hazards may not have been visible when the applicant dealt with his water bottle or checked his mirrors

1. It was submitted that the sentencing judge erred in assuming that when the applicant determined to do something with his water bottle and/or check his side mirrors, he would, if he had been keeping a proper lookout, have seen the hazard ahead, because his Honour has assumed that the applicant chose to deal with his water bottle and check his mirrors as he approached the collision site, that is, at some point within the 250 metres from which the hazard was visible.

1. The applicant submitted that it was equally open for his Honour to have proceeded on the assumption that the applicant began to place a drink bottle into the dash mounted drink holder at 251 metres from the point of impact and, if that assumption was made, then the impact of that source of distraction was not only much reduced, but it undermined the finding adverse to the applicant that he was under an obligation to check that the road ahead was clear before engaging in activities which deflected or distracted him from that focus.

1. The only source of evidence as to when the applicant dealt with his water bottle was in the applicant's explanation to the ambulance officers at the scene, where he said that after placing the bottle into the cup holder he looked up and saw the hazard by which time it was too late to take evasive action. To submit that his Honour was obliged to proceed on some other basis without evidence to support it is to misunderstand both the function of the sentencing judge and the role of this court as a Court of review.

Error 4- the failure to take into account the swerve mark created 0.27 seconds before impact

1. Fourthly, counsel for the applicant submitted that the sentencing judge did not properly take into account the evidence of the tyre marks on the road which indicated that the applicant had swerved 0.27 seconds before impact.

1. In estimating that the period of inattention was "at least 4 to 5 seconds", it was submitted that his Honour did not consider the swerve marks that had been laid, on the expert's estimate, 0.27 seconds before impact. On the calculus which the applicant's counsel imputed to his Honour (including the arithmetic mistake referred to above), he accounted for 9 seconds (time taken to cover 250 metres) minus 2.9 seconds (time required for evasive manoeuvres) minus 3-4 seconds (distraction time) but omitted the additional 0.27 seconds which counsel submitted should also have been deducted when determining the period of inattention.

1. Quite apart from what I am satisfied was a misconceived challenge to the period of inattention being found by his Honour as substantial for the reasons already discussed, the reasoning relied upon in support of what is said to be the fourth error is erroneous in any event. It conflates what the applicant should have done with what the applicant did. The applicant cannot have the benefit of subtracting 2.9 seconds from a notional period of inattention to account for what the expert described as the reaction time, and then subtracting a further 0.27 seconds to account for the evasive action he took by swerving to the right before the point of impact. The two figures are mutually exclusive.

1. The orders I propose are:

1.   Leave to appeal granted.

2.   Appeal dismissed.

1. BELLEW J: I agree with Fullerton J.

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