Bingley, George Stanley v The Queen

[1980] FCA 139

Re: GEORGE STANLEY BINGLEY
And: THE QUEEN
No. G27 of 1979
Criminal Law
1 A Crim R 411

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY REGISTRY
GENERAL DIVISION
Franki J.
Northrop J.
Lockhart J.

CATCHWORDS

Criminal Law - culpable driving - appeal against custodial sentence.

Crimes Act 1900 (N.S.W.) as applicable to A.C.T. s.52A

HEARING

CANBERRA

#DATE 10:10:1980

ORDER

1. The appellant be released without having sentence passed upon him upon entering into his own recognizance in the sum of $500 to be of good behaviour for the period of two years commencing from 10 October 1980 and that it be a condition of the recognizance that he pay to the Registrar of the Supreme Court of the Australian Capital Territory at the Supreme Court Canberra on behalf of the Commonwealth a penalty of $500 payable as to $250 on or before 28 November, 1980 and as to $250 on or before 27 February, 1981. The recognizance may be taken before a Justice of the Peace who is an official of the Supreme Court or of the Court of Petty Sessions.

2. The appellant pay to the Commonwealth a penalty of $500 to be paid to the Registrar of the Supreme Court of the Australian Capital Territory at the Supreme Court Canberra payable as follows: $250 on or before 28 November, 1980 and $250 on or before 27 February, 1981.

3. The suspension of any licence to drive motor vehicles which the appellant may hold for a period of three years from 30 July 1979 is confirmed.

JUDGE1

The appellant, George Stanley Bingley, appeals against the severity of the sentence of imprisonment with hard labour for 15 months imposed by the learned trial Judge in the Supreme Court of the Australian Capital Territory. A non-parole period of 5 months was fixed and the appellant's licence to drive motor vehicles was suspended for a period of 3 years from the date of the sentence, namely, 30 July 1979.

The appellant was convicted by a jury of driving in a manner dangerous to the public on the Tuggeranong Parkway on 26 April 1977 when through impact of his motor vehicle with another motor vehicle driven by a Mr. Arthur Wilson grievous bodily harm was occasioned to Mr. Wilson.

The accident took place shortly after 7 o'clock in the morning.

At the scene of the accident there were two lanes for vehicles proceeding south on the Tuggeranong Parkway and one for vehicles proceeding north and outside that lane was a gravel shoulder.

The appellant was proceeding south and the vehicle with which he came into contact was proceeding north. The appellant's vehicle crossed the unbroken line which separated the south bound lanes from the north bound lane. This unbroken line was one which traffic proceeding in the direction of the appellant was, in accordance with the relevant regulations, not permitted to cross. The appellant's vehicle was proceeding at a speed not in excess of 50 m.p.h. when it crossed the unbroken line onto the wrong side of the road narrowly missing a car driven by a Mr. Thompson. Thereafter it collided with a truck driven by Mr. Wilson. Both the appellant and Mr. Wilson were taken to hospital, Mr. Wilson suffered serious injuries including the breaking of several ribs, several bones in his feet and various cuts and abrasions.

On the morning of the accident the visibility was good, the weather fine and the roadway clear of any loose material. The appellant gave evidence at the trial and in examination in chief said that he could not explain how his vehicle came to be on the wrong side of the road. The appellant had been interviewed by a Police Constable Mr. Keelty. In answer to a question "How did the collision occur?", the appellant told the Constable "I think a blow out and it spun me across to the other traffic". He also said that he had lost control of the car and "the car just suddenly swerved over to the other side of the road". The tyres were then examined by a Constable Armstrong who was attached to the Accident Investigation Squad of the Australian Capital Territory Police Force. Constable Armstrong had certain technical qualifications and after an examination of the vehicle found no evidence of the type which he would have expected had the tyre blown out before the accident. Although the tyre was smooth, Constable Armstrong said that the fact that it was smooth had not contributed to the accident. He also said that he had found no evidence of any defect in the vehicle which he considered would have contributed to the vehicle proceeding onto the wrong side of the road. Constable Armstrong gave evidence.

The fact that on examination it did not appear that the front tyre had contributed to the accident was conveyed to the appellant on 24 June 1977 when he was asked whether he had any other opinion of what caused the accident. He said "I might have blacked out or fainted". On the occasion when the appellant had said that he thought a blow out had caused the accident he had denied that he had ever suffered black outs.

The appellant, when being cross-examined, said that he remembered the answers given to Constable Keelty about the possible cause of the collision.

Mr. Thompson, who was the driver of the vehicle which the appellant's vehicle narrowly missed before colliding with Mr. Wilson's vehicle, gave evidence to suggest that the appellant had been leaning over as if to pick up some article and that he had seen the appellant's vehicle move into the lane for north bound traffic and that the appellant then looked up. It seems that at some time prior to the accident, but apparently not until after the appellant's vehicle had at least partly entered the wrong lane, it was skidding and the appellant was endeavouring to regain control of the vehicle.

The Crimes Ordinance makes provision for a defence where the grievous bodily harm occasioned was not in any way attributable to the manner in which the vehicle was driven.

For conviction the jury must have been satisfied beyond reasonable doubt that there had been a breach of proper conduct of a vehicle upon a highway which was so serious as to be in reality and not speculatively potentially dangerous to others.

At the time of the accident the accused had had no adverse association with police and was aged only 17 years and 7 months.

The learned trial Judge when sentencing the appellant said that:

"He expressly denied any driving action of his as causing the vehicle to travel in the way described and further denied any inattention or failure to keep a constant look-out to his front, as the evidence of Mr Thompson had suggested.

It is clear that the jury in its verdict rejected his explanation. From the description of the movement of his vehicle, they must have considered his actions constituted a serious breach of the proper management and control of it. If one were disposed to concede in his favour at the situation on the road that his actions produced were due to some inattention rather than intended but foolhardy manoeuvre, his behaviour showed a lamentable failure to recognize the responsibility of an adult in charge of a vehicle in the circumstances on that road at that time."

The principles to be applied by an appellate court to review the discretion of the learned sentencing Judge are expressed in various cases including Cranssen v. R. (1936) 55 C.L.R. 509 at pp.519-20; Kovac v. R. (1977) 15 A.L.R. 637; R. v. Tait (1979) 24 A.L.R. 473 and R. v. Hall 28 A.L.R. 107.

In Tait's Case a Full Court of this Court (Brennan, Deane and Gallop JJ.)) said at pp.475-476:-

"The relevant provisions of the Federal Court of Australia Act do not provide any basis for distinguishing between the general principles to be applied by the court on a Crown appeal against sentence and the principles to be applied on an appeal against sentence by a defendant. The principles which limit the exercise by an appellate court of its jurisdiction with respect to a discretionary sentence apply in each class of case. Those principles were expressed in Harris v. R. (1954) 90 C.L.R. 652, which was followed by this court in Kovac v. R. (1977) 15 A.L.R. 637, and which (at 642-3) contains a citation from Cranssen v. R. (1936) 55 C.L.R. 509 at 519-20:'. . .the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as properly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority.'

An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error (see generally, Skinner v. R. (1913) 16 C.L.R. 336 at 339-40; R. v. Withers (1925) 25 S.R. (N.S.W.) 382 at 394; Whittaker v. R. (1928) 41 C.L.R. 230 at 249; Griffiths v. R. (1977) 15 A.L.R. 1 at 15-17)."

The learned sentencing Judge rightly regarded the offence as serious and took into account the appellant's absence of convictions before the accident, that he did not mix with hoodlums and was not addicted to alcohol, that he spent between two and three weeks in custody awaiting sentence after his conviction by the jury, and that he was himself injured in the collision. Indeed, he spent some five months in hospital. In his remarks on sentence the learned sentencing Judge said:-

"However, the circumstances of the accident disclose, in my view, a serious offence. It is of a kind which might be said to be prevalent in the community in recent years. I am mindful of authorities which emphasize the necessity to consider the deterrent effect of any punishment, not only on the individual concerned, but also on those of his peers, who might be disposed to misbehave in the same way, if it were thought that such a lapse attracted only a lenient response from courts."

The appellant was only seventeen years of age at the time of the offence. As people can obtain driving licences in the Australian Capital Territory at the age of seventeen he must have been licenced for only a matter of months. He had no prior convictions. There is no suggestion that the appellant had consumed alcohol or taken drugs or that he was travelling at an excessive speed at the time of the accident; or that he was overtaking any vehicle travelling in the same direction as his vehicle was travelling. Nor was the collision immediately preceded by any pattern of irregular driving by the appellant on the morning in question.

There is no suggestion that he deliberately drove his vehicle in the manner he did. Indeed, the evidence suggests that he attempted to take evasive action shortly before the impact with Mr. Wilson's vehicle. Nor was it suggested to him in cross-examination that what occurred was the result of deliberate conduct on his part.

Culpable driving is a serious offence and must be deterred. The circumstances of this case lead us to conclude, however, that the learned sentencing Judge unduly emphasised the deterrent aspect of punishment by imposing a custodial sentence.

Except for a short period the appellant has not been in custody since he was sentenced. He has been on bail. We do not think a gaol sentence is called for. If the appellant enters into a recognizance to be of good behaviour for two years and also pays an appropriate penalty, a custodial sentence should not be imposed.

In the result the appeal is allowed. The Court makes the following orders.

(1) That the appellant be released without having sentence passed upon him upon entering into his own recognizance, in the sum of $500 to be of good behaviour for the period of two years commencing from 10 October 1980 and that it be a condition of the recognizance that he pay to the Registrar of the Supreme Court of the Australian Capital Territory at the Supreme Court Canberra on behalf of the Commonwealth a penalty of $500 payable as follows; $250 on or before 28 November 1980 and $250 on or before 27 February 1981. The recognizance may be taken before a Justice of the Peace who is an official of the Supreme Court or of the Court of Petty Sessions.

That the appellant pay to the Commonwealth a penalty of $500 to be paid to the Registrar of the Supreme Court of the Australian Capital Territory at the Supreme Court Canberra payable as follows; $250 on or before 28 November 1980 and $250 on or before 27 February 1981.

(3) The suspension of any licence to drive motor vehicles which the appellant may hold for a period of three years from 30 July 1979 is confirmed.

The appellant must realise that if he commits a breach of this good behaviour bond he can be dealt with for that breach and also be dealt with differently in relation to this matter.

It has a double aspect. The appellant will have to be very careful to be law abiding and a traffic offence is a breach of a good behaviour bond. In any event the suspension of the appellant's licence for three years from 30 July 1979 is unaffected by these orders.