Bilal BADR-EDDEEN Omari v Adam Robert Moore

[2013] ACTSC 9

BILAL BADR-EDDEEN OMARI v ADAM ROBERT MOORE
 [2013] ACTSC 9 (4 February 2013)

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against conviction – Specific error – Whether evidence supported findings of Magistrate – Findings supported by evidence despite impossibility of accurately determining speed of deceased at impact – Appeal dismissed

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against sentence for Negligent Driving Causing Death – Whether sentence manifestly excessive – No reasons given for sentencing appellant to imprisonment other than a general reference to the principles of general and specific deterrence – No reasons given by Magistrate for the rejection of alternative sentencing options – Degree of negligence toward the bottom of the range for an offence under s 6 (1) of the Road Transport (Safety and Traffic Management) Act – Sentence was manifestly excessive – Appeal upheld

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against sentence for Driving whilst Disqualified – Whether sentence manifestly excessive – Appellant’s subjective circumstances do not justify imposition of maximum penalty – Magistrate in error to apply maximum sentence – Sentence was manifestly excessive – Appeal upheld

APPEAL AND NEW TRIAL – Appeal from the ACT Magistrates Court – Appeal against sentence – GBO as part of suspended sentence breached – Whether sentence manifestly excessive – Appellant did not appeal from the suspended sentences of imprisonment – No basis for re-examination of suspended sentences – Magistrate had discretion either to impose the suspended sentences, or to re-sentence – Magistrate not in error to impose sentences – Sentences not manifestly excessive – Appeal dismissed

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6 (1)
Crimes (Sentence Administration) Act2005 (ACT), s 110 (2)
Crimes (Sentencing) Act 2005 (ACT), s 10 (2)
Road Transport (Driver Licensing) Act1999 (ACT), s 32

Connelly v Allan [2011] ACTSC 170
DPP v Yeo [2008] NSWSC 953
House v The King (1936) 55 CLR 499
R v Antoniazzo [2010] ACTSC 36
R v Evans (unreported, ACTSC, Higgins CJ, 21 June 2005)
R v Griffith [2009] ACTSC 114
R v Murray [2008] ACTSC 115

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 18 of 2012
Judge: Burns J             
Supreme Court of the ACT

Date: 4 February 2012           

IN THE SUPREME COURT OF THE     )
  )          No. SCA 18 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BILAL BADR-EDDEEN OMARI

Plaintiff        

AND:  ADAM ROBERT MOORE

Defendant

ORDER

Judge:  Burns J
Date:  4 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction with respect to the charge of negligent driving causing death is dismissed.

1. The sentences of imprisonment imposed by the sentencing Magistrate on charge

   
   

   CC 10/9730 and CC 11/8727 are set aside.

1. The sentences of imprisonment made by the sentencing Magistrate as charges

   
   

   CC 11/357 and CC 11/360 are confirmed, but the orders of the learned Magistrate are varied such that these sentences commenced on 14 September 2011. Otherwise the appeal against these sentences is dismissed.

1. I will hear the parties as to the appropriate sentences to impose on CC 10/9730 and CC 11/8727.

1. On 18 April 2010, at about 8pm, the appellant was driving his green 1999 Honda Civic west along Southern Cross Drive in Florey.  After moving into a slip lane he began to turn right into Florey Drive.  At that time the deceased, Mr Andrew Carcamo, was travelling east on Southern Cross Drive on his Kawasaki ZXR motorcycle approaching the intersection with Florey Drive.  The motorcycle ridden by the deceased collided with the front passenger side of the appellant’s vehicle, throwing the deceased from his motorcycle and resulting in his death.

1. The appellant was charged with one offence contrary to s 6 (1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) alleging that he did, by negligent driving, cause the death of the deceased. After a contested hearing in the Magistrates Court he was, on 12 December 2011, found guilty of that offence by a Magistrate.

1. On 16 February 2012 the learned Magistrate convicted the appellant and sentenced him to imprisonment.  Her Honour also sentenced him with respect to a number of other traffic offences, including re-sentencing him with respect to the breaches of two Good Behaviour Orders imposed as part of Suspended Sentence Orders on 3 May 2011.  Below is a table setting out the sentences imposed by the learned Magistrate on 16 February 2012:

CHARGE NO.	OFFENCE OR BREACH	DATE OF OFFENCE	SENTENCE
10/9730	Negligent driving causing death	18/4/10	3 months imprisonment, suspended
11/9732	First offender drive whilst suspended	18/4/10	Convicted, GBO
11/8727	Drive whilst disqualified as repeat offender	13/9/11	9 months imprisonment

11/10866	Breach of GBO of 3 May 2011	Constituted by finding in respect of 11/8727	Suspended 2 months imposed cumulative on 11/8727
11/10867	Breach of GBO of 3 May 2011	Constituted by finding in respect of 11/8727	Suspended 2 months imposed cumulative on 11/8727 but concurrent on 10866
TOTAL 11 MONTHS IMPRISONMENT BACKDATED TO 14/9/11. No non-parole was imposed.

1. The appellant now appeals from his conviction with respect to the charge of negligent driving causing death, and against the sentences of imprisonment imposed by the Magistrate.

THE APPEAL AGAINST CONVICTION

1. In Connelly v Allan [2011] ACTSC 170 Refshauge J at [12]-[13] described the nature of an appeal to this court from a conviction imposed in the Magistrates Court:

So far the appeal against conviction is concerned, it is a rehearing.  That is, the appeal court must determine whether the decision of the Magistrates Court is wrong, by that court falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong.  This court, as the appellate court, will give proper allowance to the advantage of that Learned Magistrate who has seen and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

The appellate court is obliged to conduct a real review of the trial and the Learned Magistrate’s reasons’...

1. The most significant evidence on the charge of negligent driving causing death was evidence of the appellant, evidence of various eyewitnesses, evidence of witnesses who heard the deceased’s motorcycle immediately before the collision, evidence of police officers about statements made by the appellant at the scene and expert evidence as to the speed at which the deceased’s motorcycle had been travelling immediately before the collision.

1. Barbara Bakavgas was a resident of an apartment overlooking the intersection of Southern Cross Drive and Florey Drive.  She heard a motorcycle revving loudly.  It sounded to her that it was accelerating rapidly.  She believed it may have turned onto Southern Cross Drive from Starke Street, the intersection of which and Southern Cross Drive she estimated to be about 50 metres from her apartment.  She looked out her window and saw a “black car” in the right hand turn lane on Southern Cross Drive, which allows vehicles to turn into Florey Drive.  There can be no doubt this was the appellant’s vehicle.  She could not tell if it had its turning indicator on, and it appeared to be travelling at “normal” speed.  She saw the car beginning to turn right into Florey Drive, and then turned her attention to the motorcycle, “because it sounded like the rider gave it two hits on the accelerator”.  She heard the motorcycle engine go quiet, before she heard what sounded like an engine backfiring and then a collision.  She did not hear any sound of tyres screeching.  She could not remember if the motorcycle had its lights on, but did remember that it was hard to see it because it was dark and the motorcycle was a dark colour.

1. Matthew Buttriss was a resident of an apartment complex on Hardwick Crescent at Kippax.  The balcony of his apartment looked north over grassland towards Southern Cross Drive.  If he leans over his balcony he can see the intersection of Southern Cross Drive and Florey Drive at a distance of about 75 metres.  At a time which he put at between 8:30pm and 9pm on 18 April 2010 he was on the balcony of his apartment with his flatmate, Jessica Wells.  He heard the sound of a motorcycle “accelerating hard” coming from the direction of Southern Cross Drive.  The motorcycle sounded like it kept accelerating without changing gears.  After about 2 to 3 seconds he heard a bang and the sound of the bike stopped immediately.  He did not hear any gear changes from the motorcycle.

1. David Hobson was a passenger in a motor vehicle driven by his girlfriend Kelly Riddle at about 7:50pm on 18 April 2010.  They were stationary at the lights at the intersection of Coulter Drive and Luxton Street Belconnen.  A small, green hatchback with a “far side” sticker on the rear window stopped at the lights, travelling in the same direction as Mr Hobson and Ms Riddle.  After the lights changed both vehicles travelled west onto Southern Cross Drive.  When they arrived at the intersection with Kingsford Smith Drive, both vehicles again stopped at the lights.  At that point both vehicles were in the right lane, with the green hatchback in front of Mr Hobson and Ms Riddle.  After the lights changed both vehicles drove away normally from the lights, and it did not appear to Mr Hobson that the green hatchback was exceeding the speed limit.  The green car moved ahead and Mr Hobson lost sight of it.  He and Ms Riddle continued along Southern Cross Drive until they came across the collision at the intersection with Florey Drive.  Mr Hobson did not see the collision.

1. The next prosecution witness was Nicholas Martin.  At about 7:30pm on 18 April 2010 Mr Martin was the driver of a motor vehicle on Southern Cross Drive travelling towards the intersection with Florey Drive.  His wife, Rochelle, was a passenger in the front passenger seat.  The vehicle in which they were travelling was a white Toyota Camry.  As he proceeded towards the intersection with Florey drive there was a dark coloured hatchback behind them.  As they approached the commencement of the slip lane for vehicles turning right into Florey Drive, Mr Martin saw that the dark hatchback was quite close behind him.  The dark vehicle moved into the slip lane and moved slightly ahead of him.  Mr Martin recalled the brake lights of the dark hatchback coming on as it approached the intersection, and the vehicle slowing down.  In evidence-in-chief Mr Martin gave evidence that he observed a motorcycle approaching from the opposite direction.  Its headlight was on.  He believed that the motorcycle was definitely going faster than the 60 kilometres per hour speed limit, and may have been going as fast as 80 kilometres per hour.  He saw the dark hatchback making the right hand turn as the motorcycle was about 20 metres away from it.  He did not hear any sound of tyres screeching, or the sound of a horn.  He then heard a very loud collision.

1. In cross-examination Mr Martin said that he had seen the actual headlight of the oncoming motorcycle when he was at the intersection with Florey Drive.  The motorcyclist was on flat/straight road.  From the direction in which the motorcyclist was approaching, the rider of the motorcycle would have ridden down a hill, onto the flat area prior to the intersection with Florey Drive.  Mr Hobson testified that after the collision he stopped his vehicle near the start of the turning lane from Southern Cross Drive into Starke Street.  He estimated that he was less than 40 metres from the intersection of Southern Cross Drive and Florey Drive.  In that regard, it appears that Mr Martin was somewhat amiss with his estimates of distance, because the evidence established that the intersection with Starke Street is 176 metres from the intersection with Florey Drive.  However, it does not appear to me that this casts doubt upon the remainder of Mr Martin’s observations.  Mr Claxton, who appeared of the appellant in the Magistrates Court, effectively suggested to Mr Martin that the reason he had not seen the motorcycle until it was some 20 metres away from the intersection with Florey Drive was because the motorcycle was travelling at an extremely excessive speed.  However, Mr Martin said that he wasn’t paying attention to the other side of the road, meaning, as I understand it, that he was not paying attention to oncoming traffic.

1. Rochelle Martin testified that, on the evening of 18 April 2010, she was the front seat passenger in a motor vehicle being driven by her husband, Nicholas Martin.  It was night time and the vehicle they were travelling in had its headlights illuminated.  The speed limit at that area of road was 60 kilometres per hour.  As they approached the intersection with Florey Drive, she recalled that there was a vehicle travelling close behind them.  It moved into the right turn lane and drove up next to their vehicle.  When it moved beside their vehicle, Ms Martin stopped looking at it and turned back towards the front of her vehicle.  She saw a motorcycle driving towards them.  At that point they had not gone through the intersection.  She could not estimate the distance the motorcycle was from her at that time, but it was between Starke Street and the intersection with Florey Drive.  She thought that the motorcycle was travelling toward them faster than the 60 kilometre per hour speed limit.  As they passed the intersection with Florey Drive she heard her husband say “Oh God”.  She turned around and looked out the back window and saw the motorcycle hit the car.  She saw the motorcyclist then flying through the air.  In cross-examination she agreed that the accident occurred very shortly after she first saw the motorcycle.  She thought that it was about three seconds after she had first seen the motorcycle.

1. Michelle Massey was at the Magpies Club at Kippax on the evening of 18 April 2010.  Sometime after 7:30pm she heard a motorcycle accelerate quickly.  It was very loud.  She heard one gear change.  Shortly after she heard a loud bang.  In cross-examination she stated that she wasn’t sure whether there was one or two gear changes and that there could have been more.  She estimated that it was between five and ten seconds between her first hearing the motorcycle and hearing the sound of the collision. 

1. The next witness for the prosecution was Bernard Opbroek.  On the evening of

   
   

   18 April 2010, he was sitting out the front of his home on Southern Cross Drive in Latham.  He noticed a little green car drive past headed toward Kippax.  He could see that it was a hatchback and it had its lights on.  It was in the right hand lane.  In front of the hatchback in the left hand lane were two other cars.  As the cars reached the right hand turn lane he saw the green car indicate right and brake to enter the right hand turn lane.  He saw that the other two cars continued straight ahead.  He then heard what sounded like a motorcycle.  He believed that it was travelling toward Belconnen on Southern Cross Drive.  The motorcycle was loud, and he heard it accelerate quickly.  It sounded to him like the motorcycle went from first gear to second.  It sounded like the motorcycle was revving highly.  The next thing he heard a bang.  In cross-examination Mr Opbroek agreed that he had not seen the motorcycle, but had only heard it. 

1. Julie Opbroek was with her husband in front of their house on Southern Cross Drive on the evening of 18 April 2010 when the collision occurred.  She saw two cars approaching the intersection of Southern Cross Drive and Florey Drive.  She then saw a dark coloured hatchback coming down Florey Drive.  She believed that it was going faster than the other two cars as it was gaining on them.  She believed that the hatchback was travelling in excess of the 60 kilometre per hour speed limit.  She saw the hatchback indicate to turn right, presumably to go down Florey Drive.  She saw it proceed to the right of the two cars at the intersection, moving into the slip lane.  About this time she heard a motorcycle.  She heard the motorcycle go into what she assumed was first gear, then rev highly before going into what she assumed was second gear, before again revving highly.  She then heard a bang.  In cross-examination she testified that she had seen the green car’s brake lights illuminate as it commenced to turn right into Florey Drive.

1. On the evening of 18 April 2010, Stacey Searle was at home in her apartment on the first floor of a complex located at Hardwick Crescent Holt.  Her kitchen window faced north toward Southern Cross Drive, at its intersection with Florey Drive.  On that evening she heard the sound of a motorbike engine, and saw a motorcycle on Southern Cross Drive.  When she heard the motorcycle noise, she looked out the window and saw a motorcycle travelling in an eastern direction on Southern Cross Drive approaching the intersection with Florey Drive.  The bike was about 30 to 40 metres west of the intersection with Florey Drive at that point.  She also saw a small dark coloured car turning into Florey Drive.  The car turned into the path of the motorcycle.  Both the car and the motorcycle had their headlights on.  The bike collided with the car.  She stated that from the time that she first saw the motorcycle until the collision was almost instantaneous. 

1. Sergeant Dick Dauth of the Australian Federal Police Collision Investigation and Reconstruction Team, prepared a report on the basis of observations of the scene Sergeant Dauth was of the opinion that at the time of the collision the vehicle driven by the appellant was likely to be travelling between 21 kilometres an hour and 30 kilometres an hour approximately.  Sergeant Dauth assumed that the deceased turned onto Southern Cross Drive from Starke Street before the accident.  Using a similar motorcycle over a similar distance the maximum speed that was achieved was

   
   

   124 kilometres per hour.  Sergeant Dauth, based on his training experience, attended the scene inspection of the vehicles and information contained on the brief of evidence concluded:

It appears moments before the collision the Honda sedan was travelling in a westerly direction on Southern Cross Drive approaching the intersection with Florey Drive.  The driver intended to turn right into Florey Drive.  The Kawasaki motorcycle was travelling in the opposite direction or easterly along Southern Cross Drive.  The rider intended to travel straight ahead at the intersection.  The Honda sedan commenced its right turn placing it in the intended path of the motorcycle.  As the Honda sedan commenced its turn it was struck by the motorcycle.  The motorcycle collided with the Honda sedan just in front of the passenger side front wheel. 

It would appear both vehicles had their headlights illuminated.  Impact speed for the Honda was likely in the range of 21 - 30km/h (approx).  Impact speed for the Kawasaki motorcycle was likely in the range of 85 – 142 km/h. Two seconds before impact, the vehicles would have been between 60 and 83 metres apart (approx), meaning each vehicle was well within sight of the other driver/rider. 

1. The appellant participated in a taped record of interview on the night of 18 April 2010.  Below, I have extracted from this record of interview the questions and answers that appear to me to be most relevant:

Q70:Okay.  In the Australian Capital Territory.  Bilal, what can you tell me about that collision and what happened?

A:I had previously picked up my father from the airport at approximately a quarter past seven this evening.

Q71:    Yep.

A:I had proceeded home to drop my father off.  At that time I had gone inside, grabbed a jacket and walked straight out.  After I left I told my dad I am going to school to study with my cousin.  I had come towards Macgregor to pick my cousin up from Macgregor.  As I was coming down Southern Cross Drive, as I’m aware, I was the only vehicle travelling at that time.  I was doing the speed limit.  I had come to proceed to the intersection of Florey Drive and Southern Cross Drive to turn right onto Florey Drive.

Q72:    Okay.

A:As I was coming to the slip lane on Southern Cross Drive I had seen [sic] a beam in the distance but I couldn’t see the entire light.  I could see the reflection of the surrounding light.  If you know what I mean?

Q73:    Yep.

A:Yeah, I had seen [sic] that light and I had no doubt that I had a lot of time to complete the turn.

Q74:    Yep.

A:In a safe, a safe amount of time.  As I proceeded the beam had shown [sic] and I proceeded right and before I knew it I was in a – a vehicle had hit me.

...

Q122:Okay.  Now as you approached the intersection, sort of were coming down there’s that bit of a hill, bit of a rise back there.

A:       Yeah

Q123:  What speed were you doing?

A:       I was doing sixty.

...

Q133:Okay. Now, as you’re approaching you’re going to make a right hand turn, what were your actions in the vehicle? What did you do?

A:I was driving, preparing to turn right.  I would have looked in the mirror, slipped into the slip lane, indicated.  I put it into second gear, slowed down and would have turned right.

...

Q138:Okay.  So as you’ve pulled up in the slip lane, as you said, you’ve got your indicator on.

A:       Yeah.

Q139:  Just what did you see?

A:I saw a – as I was slipping into the slip lane I seen [sic] the reflection of the light.  I didn’t see the beam exactly.  I’d seen the surroundings of the light.  You know what I mean, like, do you know when you see a light you can see the beam and you can see, like, a beam coming from over the hill.

Q140:  Uh-huh.

A:I’d seen that beam coming over the hill and ‘cause I come down to Holt a fair bit often I know how far it is.  My cousins own the shop, so I come here very often.

Q141:  Yes.

A:So I’ve seen the beam and as I’ve come, almost come to a complete stop the beam had shown in the hill [sic].

Q142:  Okay.

A:And I had known that I had – I knew myself, personally, that I had more than enough time to proceed with caution to turn right into Florey Drive.

...

Q147:Okay. All right. You’ve seen the light.  What do you recall of the light? What did you think it was that was coming?

A:Well I saw one light.  I didn’t pay much attention to it.  I thought it might have been a car that had a broken headlight.  That’s what I thought originally.

Q148:  Yes.

A:       But I knew that it was way too far to be very close.

Q149:  Okay.  So you’re saying the distance that you could see---

A:       Yeah.  It wasn’t – it wasn’t at a close distance.

Q150:Could you estimate how far you think that distance was when you first saw it?

A:It would have been – I don’t know if you can see where the police – just behind that police car there was a –

Q151:  So that’s where the---

A:       Past the – just past the intersection that turns into Kippax.

...

Q189:And in this instance would you agree it appears, at least, that you’ve failed to give way to the approaching motorcycle?

A:I wouldn’t say I would’ve failed, because the motorcycle, from my – from my driving experience, was at a pretty far distance to the intersection where I was turning right.

Q190:  But do you agree that you did collide with a motorcycle?

A:       Yeah.

Q191:And do you agree the motorcycle was travelling, to the best of our knowledge, travelling to the east on Southern Cross Drive?

A:       Yeah, towards Belconnen, yeah.

Q192:Okay.  So just going back to that.  You agree in the law you would have had to give way to the motorcycle or any traffic travelling east on Belconnen Way?

A:       Yeah, in law, yeah.

Q193:Can you offer any reason why you haven’t given way to this motorcycle?

A:As I said before the motorcycle had appeared to be at a very distant, far distance past even the next intersection before it approached me and I knew, from experience, that I did have enough time to take that turn---

Q194:Are you able to say how long you observed this light for, this single light you spoke of? You said you saw a beam in the distance.  Did you see it for a number of seconds?

A:Uh, I would say maybe two or three seconds.  I mean, its – uh – up ahead it forms one lane, so it would have been the only thing coming my way, so – and in the dark it stands out, so I would have seen it quite clearly, a beam coming at me.

Q195:  So you think you observed it for two or three seconds?

A:       Yes, I would say about three seconds.

Q196:And have you got any idea how far back from the point where you’ve commenced your turn where you first saw that motorcycle beam?

A:       Sorry. Can you please rephrase that?

Q197:Sorry.  In distance, in metres, how far back from where you commenced your right turn, how far back were you when you might have first seen that?

A:       When I first seen [sic] it?

Q198:  Yeah.

A:Uh, maybe twenty metres if that, maybe fifteen, fifteen metres.  That’s when I first saw the beaming of the motorcycle.  Of when I approached – I was ready to turn right the beam had just shown [sic] over the hill, the slight hill.

Q199:Do you feel now, now that the collision has occurred, that your earlier estimate that the motorcycle was a long way back could have been wrong?

A:       I’ve got no doubt.

Q200:Sorry.  I’ll have to get that one clearer.  Do you believe that maybe you were wrong or do you believe that you were correct that the motorcycle was a long way back?

A:       No.  I believe I was in the right.  I was correct.

Q201:  Okay.  What do you – sorry?

A:Uh, no.  I believe my estimation was right that the motorcycle owner did give me enough time to turn right.  So – distance, at that time when I turned right, between me and the motorcycle was at a fair distance.

...

Q207:Well, in that case what do you think the cause of this collision is?

A:I believe that the motorcycle was travelling at a high speed, due to the impact of the vehicle, the impact that he hit my car, considering it was a sixty zone. The impact that he had hit my car [sic] was a very hard impact and you can’t get that, in fact, with sixty ks an hour, and from where the motorcyclist had landed after impact with my car.

1. The appellant gave evidence in the Magistrates Court.  He said that he was very familiar with the road where the collision occurred.  He said that there is a crest beyond the right hand turn into Florey Drive in the direction in which he was travelling.  At the time of the accident it was quite dark, and he remembered seeing beyond the crest a faint beam of light.  He described this as being not the actual beam but the outline of a beam of a vehicle approaching.  He concluded that he had more than enough time to make the right hand turn.  He described the light that he saw as the “outer halo” of the motorcycle’s headlight (21/11/11, T5).  He said that as he entered the slip lane to turn right into Florey Drive he saw the halo of the light beyond the crest of the hill in front of him.  He then proceeded to make the right hand turn.  He testified that he did not see the motorcycle rider impact with his vehicle.  He agreed that he could have been travelling between 20 to 30 kilometres an hour as he made the right hand turn into Florey Drive.  In his evidence-in-chief he said that when he commenced to make the right hand turn he did not see any vehicle in front of him.

1. In cross-examination the appellant agreed that he had clear vision of the road in front of him when he made the right hand turn.  He agreed that he was concentrating on making the right hand turn, however he believed that he would clearly be able to see at that time of night whether there was a strong beam of light in front of him.  He said that before commencing his right hand turn he again checked for the halo, and at that point the beam of light was still a halo over the rise in front of him.  It was put to him that as the collision occurred half way across the east bound lane of Southern Cross Drive it was nonsense to suggest that the lights of the vehicle approaching still appeared as a halo beyond the distance crest when he commenced making his right hand turn into Florey Drive.  In response to that the appellant said that he clearly did not recall there ever being a beam of light in front of him as he made the right hand turn.  It was then suggested to him that that was because he did not look.  His response was:

I don’t recall whether I made a look [sic] or not.  My memory is now vague of that incident. (21/11/11, T13)

1. It was put to the appellant in cross-examination that in making the right hand turn when he had earlier seen the halo of light from the vehicle approaching, he had taken a risk.  Initially in cross-examination he stated that as he was approaching the intersection he formed the view that the vehicle travelling towards him was travelling at high speed.  He agreed that that was what he believed as he was turning the corner.  When it was then put to him that in those circumstances he should have stopped to allow the other vehicle to pass he said:

When I was making the right hand turn I only saw the – like I said I saw the halo of the light approaching me.  I didn’t make the – when I was making that turn, I didn’t make the judgment that the vehicle approaching me was making that – was travelling at a high speed.  I [sic] was not until after the collision that that’s what I had assumed. (21/11/11, T18)

1. In cross-examination the appellant also noted that when he looked at the halo it did not appear to be getting any brighter, and didn’t appear to be getting any closer.

1. A further, significant piece of evidence in the prosecution case was given by Constable Onken, who testified that the distance from the intersection of Southern Cross Drive with Florey Drive to its intersection with Starke Street was 176 metres.  The photographs tendered in the prosecution case show that the appellant would have been able to see oncoming traffic on Southern Cross Drive for at least that distance as he commenced to make his right hand turn into Florey Drive.

The Learned Magistrate’s Decision

1. The learned trial Magistrate found herself unable to determine how fast the deceased was travelling on his motorcycle at the time of the collision.  This is understandable, based upon the fact that her Honour could not be certain that he had entered Southern Cross Drive from Starke Street.  Her Honour was only able to conclude that it was at least 80 km/h and may have been in excess of the 124 km/h estimate given by Sergeant Dauth.

1. The learned Magistrate stated the law applicable to an offence under s 6 (1) of the Road Transport (Safety and Management) Act 1999 (ACT) in her reasons:

For a finding of negligent driving attracting criminal liability, I must be satisfied beyond reasonable doubt that the defendant failed to exercise the degree of care which an ordinary, prudent driver would exercise in all the circumstances.

In the decision of the DPP v Yeo [2008] NSWSC 953, Johnson J stated, at paragraph 27:

Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary, prudent driver in the circumstances.

The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of a departure from the standard of care for other users of the road to be expected of the ordinary, prudent driver in the circumstances. (12/12/11, T11)

1. In formulating the test for negligence relevant to a charge under s 6 (1) in this way, the learned Magistrate was clearly aware of the decision of Penfold J in R v Murray [2008] ACTSC 115; and the decision of Gray J in R v Griffith [2009] ACTSC 114, where the above passage from DPP v Yeo [2008] NSWSC 953 was quoted with approval with regard to the test for negligence under

   
   

   s 6 (1). As Gray J noted in R v Antoniazzo [2010] ACTSC 36 at [18]:

The distinction... between the negligence for culpable driving and negligent driving causing death is a question of degree.

1. The learned Magistrate’s reasons make it clear that her Honour was aware of this principle, and of the fact that the degree of negligence required for an offence under s 6 (1) must be such as to justify a finding of criminal liability. The test applied by the learned Magistrate was consistent with that applied by Higgins CJ in R v Evans (unreported, ACTSC, 21 June 2005), which itself, with respect, was consistent with the test in DPP v Yeo. I am not persuaded that her Honour made any error in directing herself on the applicable law.

1. The crucial finding by her Honour on the question whether the appellant had been negligent was:

I conclude that the defendant failed to keep a proper lookout, in that, being aware of an oncoming vehicle, from his entering into the slip lane, he failed to either maintain a continuous observation or to check again as to the proximity of that vehicle before commencing his right hand turn. (12/12/11, T11)

1. I consider this to be a finding open to her Honour on the evidence before her, despite the fact it is not possible to accurately assess the speed at which the deceased’s motorcycle was travelling on Southern Cross Drive prior to the collision.  All the indicators are that it was travelling in excess of the posted speed limit, and perhaps grossly so.  But the fact remains that the deceased was there to be seen over a distance of at least 176 metres before the collision had the appellant been keeping a proper lookout.  The appellant was aware of the presence of an oncoming vehicle by virtue of his observation of the “halo of light” that he saw approaching the crest of Southern Cross Drive as he approached the intersection with Florey Drive.  He did not stop at the intersection, or make any further observation of oncoming traffic, before commencing his right hand turn.  He only crossed half of one lane on the eastbound carriageway of Southern Cross Drive before the collision occurred.

1. The fact that the deceased’s motorcycle was there to be seen by the appellant prior to the collision if he had been keeping a proper lookout is not merely based on inference or even common sense.  The witness Nicholas Martin saw the deceased’s motorcycle with his headlight on as it approached the point of collision.  It is also important to note that Mr Martin’s estimate was that whilst the deceased was exceeding the speed limit, he was not grossly exceeding it.

1. Having reviewed the evidence before the learned Magistrate and her Honour’s reasons I am satisfied that she was entitled to find the appellant guilty of the offence.  The appeal against conviction must be dismissed.

THE APPEALS AGAINST SENTENCE

1. My task with respect to the appeals against the sentences of imprisonment imposed by the sentencing Magistrate is not to assess whether they are the preferable sentences, or sentences which I would have imposed.  Before I can interfere with the sentences imposed I must be satisfied that her Honour made an error in sentencing the appellant.  The type of error that an appellant must demonstrate was explained in House v The King (1936) 55 CLR 499 at 505:

It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Negligent Driving Causing Death (CC 10/9730)

1. In assessing the appellant’s culpability with respect to the offence of negligent driving causing death, her Honour said:

I turn to the very difficult issue of negligent driving causing death.  The penalty which attaches to this offence recognises that it is an aggravated form of negligent driving because of the awful consequences of the death of another human being.

In finding that the offence of negligent driving causing death is proved, the law doesn’t require, however, that the driver who is convicted is the sole cause of that death in the sense that we ordinarily understand causation.

And it is not terminative of guilt or innocence that another driver or another road user might also have been faulty and thus contributed by that to his own death but it seems to me that it is a factor which can be taken into account in determining sentence.

Without Mr Carcamo’s excessive speed, and I haven’t been able to determine just what that was but it clearly was in excess of the speed limit, and whilst it remains somewhat speculative, it is possible that he may not have died.

And also whilst I found that Mr Omari’s manner of driving was negligent in that being aware of an oncoming vehicle, he failed to maintain observation of it prior to undertaking his right hand turn into its path, I consider that that negligence was not of the worst kind and this is the tension that we have between the awful consequences and the actual degree of criminal culpability.

It’s not that Mr Omari hadn’t looked at all, it’s not that he was speeding or not looking at other traffic.  In fact, on the evidence that I heard, his manner of driving was fairly unexceptional prior to this incident occurring and that was observed by other road users on the night.

He clearly misjudged the possible speed of Mr Carcamo’s motorbike and that may be understandable in the context of what was a significant excess of the speed limit.

But the fact remains that Mr Omari failed to pay proper attention to that other vehicle’s progress with no justification and that is why I have found him guilty of criminal negligence causing death.  Nonetheless, all of that said, I assess the breach at the lower end for an offence of this type.

1. At the time of the commission of the offences of 18 April 2010 the appellant had not previously been convicted of any offence.  On May 3 2011, the appellant was dealt with in the Magistrates Court for the following offences, and the following penalties were imposed:

Charge No	Offence	Date of Offence	Sentence
CC 2011/360	Drive while suspended	1 December 2010	Imprisonment for 2 months, suspended
CC 2011/357	Drive while suspended	19 December 2010	Imprisonment for 2 months, suspended
CC 2011/358	Stop in bus zone	19 December 2010	Fined $150
CC 2011/359	Drive unsafely maintained vehicle	19 December 2010	Fined $300
CC 2011/976	Drive while suspended	20 January 2011	Imprisonment for 3 months, to be served by periodic detention.

1. The sentencing Magistrate gave no reason for sentencing the appellant to a term of imprisonment for the offence of negligent driving causing death, other than a general reference to the principles of general and specific deterrence in her introductory sentencing remarks. It is difficult to see how such a sentence could be seen as being within the range for a single offence described (and, with respect, rightly so) as being at the lower end of offending of this type. It must be accepted that the appellant’s negligence caused the death of another human being, but that is an element of every offence under s 6 (1) of the Road Transport (Safety and Traffic Management) Act. The single most important factor in determining the level of culpability for an offender with respect to this provision is the degree of negligence established against the offender. In the present case, the degree of negligence established against the appellant is towards the bottom end of the range. By virtue of s 10 (2) of the Crimes (Sentencing) Act 2005 (ACT) a court may only impose a sentence of imprisonment if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. In a Pre-Sentence Report before the sentencing Magistrate at the time of sentencing the appellant was assessed as suitable for community service. In her sentencing remarks the learned Magistrate makes no reference to the contents of the Report or to this assessment, nor does her Honour express any finding that a sentence other than imprisonment is inappropriate, or any reason why that should be so.

1. In my opinion the sentence of imprisonment imposed was manifestly excessive.  The sentence must be set aside and the appellant re-sentenced.  I will return to that in due course.

Driving While Disqualified (CC 11/8727)

1. Turning to charge 11/8727, the sentencing Magistrate imposed a sentence of 9 months imprisonment. The learned Magistrate described this offence as “at the very highest range having regard to all of these factors I have identified” (16/02/12, T29). By “these factors”, her Honour appears to be referring to the appellant’s previous history of driving while suspended. The maximum penalty for an offence of driving whilst disqualified as a repeat offender under s 32 of the Road Transport (Driver Licensing) Act1999 (ACT) is a fine of 100 penalty units, imprisonment for 1 year, or both. The sentencing Magistrate, with respect, quite properly allowed the appellant a 25% reduction in sentence in recognition of his plea of guilty to this offence. This means that the starting point for her Honour, before the reduction for the plea of guilty, was the statutory maximum of 1 year imprisonment.

1. It is understandable that her Honour considered that the sentence she imposed must be such as to act as a deterrent to the appellant committing offences of driving while disqualified or suspended, and to deter others from acting similarly.  Where her Honour has fallen into error is in assessing this offence as justifying the imposition of the maximum penalty.  The appellant is not a mature offender, cognisant of the seriousness of his offending and with a demonstrated resistance to change.  He was a young man, 22 at the time of the offence, whose behaviour was assessed by a psychologist as “suggestive of a degree of immaturity, rather than a more sinister explanation such as anti-social tendencies or a flagrant disregard for the law”.  The psychologist stated that the appellant displayed genuine remorse for his offences, and assessed his risk of recidivism as low.  The author of the Pre-Sentence Report of 2 February 2012 also reported positive steps by the appellant to address his offending.  All of the evidence suggests that he presents as a good prospect for rehabilitation.

1. The sentence imposed by the learned Magistrate for this offence is manifestly excessive.  The sentence of imprisonment is set aside and the appellant will be re-sentenced.

Breach of Good Behaviour Orders (CC 11/10866 and CC 11/10867)

1. Finally, the sentencing Magistrate cancelled the two Good Behaviour Orders imposed on the appellant as part of suspended sentences, each of two months imprisonment, imposed on 3 May 2011 for offences of driving while suspended. Her Honour imposed the suspended terms of two months imprisonment, and ordered them to be served concurrently. Her Honour stated her reasons for adopting this course, as opposed to re-sentencing the appellant, was because of his repeated activity of driving while suspended or disqualified. On balance, this was a course her Honour was entitled to take. The appellant did not appeal from the suspended sentences of imprisonment imposed on 3 May 2011, so that there is now no basis for determining that those sentences were unwarranted. The only choice the sentencing Magistrate had in dealing with breaches of those suspended sentences was either to impose the sentences which had been suspended, or to re-sentence the appellant: see s 110 (2) Crimes (Sentence Administration) Act2005 (ACT). In my opinion the appellant has not demonstrated error on the part of the sentencing Magistrate in exercising her discretion as she did. Her Honour ordered that those sentences be served concurrently, which was appropriate in the circumstances. It is only appropriate to interfere with those sentences to change their commencement dates in the light of the sentences imposed on the charges of negligent driving causing death and driving while disqualified having been set aside. The sentences of two months imprisonment on charges CC 11/357 and CC 11/360 will commence on 14 September 2011, the date he was taken into custody.

1. I note that no complaint is made about the disqualification orders made by the learned Magistrate, so that those orders remain. 

1. I will hear the parties further on the issue of re-sentencing the appellant.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate: James Middleton

Date:    4 February 2013

Counsel for the appellant:  Mr K Archer
Solicitor for the appellant:  Kamy Saeedi Lawyers
Counsel for the respondent:  Mr M Clark
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  19 October 2012
Date of judgment:  4 February 2013