Bonsu v R

[2009] NSWCCA 316

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Bonsu v R [2009] NSWCCA 316

FILE NUMBER(S):
2006/12701

HEARING DATE(S):
19/11/2009

EX TEMPORE DATE:
19 November 2009

PARTIES:
Samuel Bonsu v Regina

JUDGMENT OF:
Howie J      

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2006/12701

LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ

LOWER COURT DATE OF DECISION:
24/02/2009

COUNSEL:
F Veltro - Crown
H Dhanji - Applicant

SOLICITORS:
S Kavanagh - Crown
Murphy's Lawyers - Applicant

CATCHWORDS:
CRIMINAL LAW - Sentence - breach of community service order - offence dealt with under s 166 of Criminal Procedure Act - whether discretion on resentence after breach miscarried - sentencing for negligent driving causing death.

LEGISLATION CITED:
Crimes Act 1900 - s 52(A)1(c)
Road Transport (Safety and Traffic Management) Act 1999 - s 42(1)(a)
Criminal Procedure Act 1986 - s 166
Crimes (Administration of Sentences) Act 1999 - s 115
Crimes (Sentencing Procedure) Act 1999 - ss 9, 10A

CATEGORY:
Principal judgment

CASES CITED:

TEXTS CITED:

DECISION:
The appeal is allowed, the sentence imposed in the District Court is quashed.  In lieu the applicant is to enter into a good behaviour bond for a period of 12 months.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/12701

HOWIE J

THURSDAY 19 NOVEMBER 2009

Samuel BONSU v REGINA

Judgment

1. HOWIE J:  This is an application for leave to appeal against sentence that arises in somewhat unusual circumstances. The parties agree that for the purposes of determining the application a single Judge should constitute the Court.

2. The applicant was originally charged with dangerous driving causing death contrary to s 52(A)1(c) of the Crimes Act. The offence was alleged to have been committed at Kellyville on 7 September 2005. He pleaded not guilty and the matter was dealt with by a judge alone trial conducted by Judge Morgan. The allegation was that the applicant was driving dangerously at about 3.10 pm in a public street on a weekday when he lost control of his vehicle or in some other way he allowed his vehicle to come in contact with the deceased. He was at the time performing duties as a traffic controller and standing alongside a cement truck. He was pinned by the applicant’s vehicle against the truck and died of his injuries The Crown alleged that the applicant was engaged in some type of manoeuvring of the motor vehicle that resulted in him striking the hapless deceased.

3. The applicant gave evidence before her Honour to the effect that for some reason he had a momentary blackout, the result of which was that he was not in control of his vehicle at the time that it struck the deceased.  Her Honour came to the view that she was not satisfied beyond reasonable doubt that the factual circumstances relied upon by the Crown were made out and, therefore, she could not be satisfied beyond reasonable doubt the applicant was driving dangerously.  Rather, she came to the view that the evidence was, in her words, "more suggestive of momentary inattention" which in the circumstances of this particular case her Honour did not believe amounted to dangerous driving for the purposes of the charge for which the applicant was being tried.

4. The result was that her Honour found that the applicant was not guilty of the s 52A offence. As a consequence she was asked to deal with, what was in effect, a back-up charge under s 166(1)(b) of the Criminal Procedure Act 1986 of negligent driving occasioning death. That is an offence contrary to s 42(1)(a) of the Road Transport (Safety and Management) Act. It is a summary offence for which the maximum penalty in the applicant's case was imprisonment for 18 months.

5. Her Honour imposed a community service order of two hundred hours. The sentencing remarks of her Honour amount to no more than the imposition of the sentence. They do not attempt to explain why her Honour imposed the sentence that she did. However, she did make it known that she was sentencing the applicant on the basis of momentary inattention. This paucity of the sentencing remarks is perhaps understandable because, generally speaking, the pronouncement of the sentence would have been the end of the matter. However, the history thereafter shows why a Judge should give properly reasoned sentencing remarks even when dealing with a matter under s 166 of the Criminal Procedure Act.

6. The applicant ultimately failed to complete his community service order.  In fact he served only 11 hours.  The reason for that is probably both a lack of commitment by him and some medical problems, one of which, in the view of the community service officer, would have disentitled him to such an order had he disclosed the injury at the time he was being assessed.  There was also an injury that the applicant suffered during the period while the community service order was on foot. The result was that, after much to-ing and fro-ing over a lengthy period of time, the order was ultimately revoked.

7. The matter was re-listed before the District Court and, for reasons that are presently irrelevant, the applicant failed to appear on the hearing date.  A bench warrant was issued and the applicant appeared before the Parramatta District Court on 24 February 2009 in custody.  The judge hearing the proceedings was not Judge Morgan. There followed a hearing of sorts that, it has to be said, were completely unsatisfactory as a way of determining to take away a citizen’s liberty.  I think it is important to set out what happened in some little detail because the present proceeding is an application for leave to appeal against what purports to be the exercise of a sentencing discretion.

8. It is important to understand that the applicant was aged 28 years when he came before the District Court as a result of the breach of the community service order. In effect he had no criminal record and a very minor traffic record. The offence occurred over four years earlier. He had given evidence before Judge Morgan that he had been working as a courier driver at the time. He expressed remorse for the killing of the deceased to the family that was in the court and related how the death had affected him.

9. The proceedings for the breach was governed by s 115 of the Crimes (Administration of Sentences) Act 1999. The relevant part of the provisions for present purposes is s 115(3) which is as follows:

   (3) If satisfied that the applicant has established the grounds on which the application is made, the court may revoke the offender’s community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made.

   It is clear from the terms of this provision that, where a community service order is revoked, the court deals with the offender for the offence in respect of which the order had been made. There is no offence of failing to carry out a community service order.

10. The judge before whom the applicant came was to determine whether the application for the revocation had been established, whether in the court’s discretion the order should be revoked and, if so, to deal with the offender “in any manner in which it could have dealt with the offender had the order not been made”.

11. Unfortunately this is now how the Judge dealt with the matter. The parties had in mind that the matter would be adjourned for an updated report and the solicitor appearing for the applicant asked for bail. However his Honour read aloud from the application for the revocation of the order, including the recommendation that the order be revoked and some other penalty substituted. When the defence suggested that his Honour might need more facts, the Judge stated, “There are enough facts there for me”. He made it plain that in his view the only alternative was full-time imprisonment and “it’s a question of how long”. The Judge then asked the Crown’s representative, “What’s 190 hours equivalent of, Mr Crown?” The Crown indicated he could not do the calculation. The Judge stated, “Don’t they say that 50 hours per month or something is the rule of thumb?” The Crown said he did not know. The Judge then proceeded to indicate that he would convert the remaining periodic detention to full-time custody and, having some notion of “50 hours as a rule of thumb for a month” imposed a fixed term sentence of three months.

12. With respect, his Honour simply failed to approach his task, as he should have done, because he did not understand that in effect he was re-sentencing the applicant for the offence for which Judge Morgan had sentenced him. He merely determined to apply some understanding that he had that fifty hours of community service equalled one month in custody. He imposed the sentence without any appreciation of the facts of the offence for which the community service order had been imposed or any concern as to the subjective factors relating to the applicant. He understood his only function was to convert unperformed hours of community service into a period of full-time custody by applying some mathematical formula even though the parties before him were unaware that such a formula existed. I should add that neither of the very experienced counsel before me had ever heard of any such formula.

13. As a result a sentence of imprisonment for three months was imposed upon a person of good character with a minor traffic record for an offence of negligent driving causing death where the negligence was momentary inattention. The only justification for the imposition of the prison sentence was that the applicant had failed to perform the community service order imposed upon him by Judge Morgan.

14. I have set out what happened in this case in order to put to rest any suggestion that there is a presumption that a failure to perform community service order results in a prison term and that there is any mathematical formula to be applied to convert unserved periods of community service into a period of imprisonment. The proper course is to re-exercise the sentencing discretion in respect of the offence committed but taking into account that community service is no longer available. It may follow that there is, therefore, no alternative to the imposition of a prison sentence but that is to be determined on the material then available to the sentencing judge.

15. The applicant therefore went into custody.  He appealed to this Court and he was granted bail. He served one month and two days in custody before being granted bail and being released.

16. The matter now comes before me on appeal.  There is really no dispute between the parties as to the manner in which I should deal with the application. The judge’s discretion having seriously miscarried, I am to re-sentence the applicant. There is some dispute, however, as to what I should do now. With great respect to Judge Morgan it is difficult to understand precisely what facts her Honour found that gave rise to the driving negligently that was not driving in a manner dangerous to the public.  It is difficult at times to discern the difference between the two offences because driving in a manner dangerous is merely an aggravated form of negligence. But it is an important distinction, not only because of the relevant penalties that apply, but also because one cannot sentence a person for negligent driving on the basis of conduct which would amount to driving in a manner dangerous.

17. I am left in some difficulty in re-sentencing the applicant because I do not understand what her Honour found as a matter of fact in sentencing the applicant to community service for two hundred hours other than it was a case of momentary inattention. What caused that momentary inattention is left un-stated and undetermined.  The applicant had suggested that he had suffered a blackout for some reason not explained or that he may have fallen asleep.  Again it is difficult to know what to make of those assertions and certainly her Honour did not indicate the circumstances in which the momentary inattention arose.  Of course I have no help whatsoever from the Judge who determined that the applicant should spend three months in custody.

18. I have been given a number of statistical tables and, as so often is the case, what they reveal is that the maximum penalty imposed by the statute has little or no impact upon the sentences being imposed.  Every time this Court is asked to consider statistics on any offence, other than perhaps murder, the statistics reveal a markedly lenient approach to sentencing, having regard to the maximum penalty imposed.  In any event I am not here to redress the question of ranges or appropriate penalties.  It is not my function to determine that the range is too low and, therefore, take that into account in sentencing the applicant.

19. However, the statistics reveal that very minor sentences have been imposed upon offenders who have actually caused the death of another human being, albeit by negligent driving. I have difficulty in understanding how s 10A or s 9 of the Crimes (Sentencing Procedure) Act 1999 can be used for such an offence. It seems to me, that these statistics reveal that little regard or insufficient regard is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of life. In any event I have to sentence this applicant and I have to do so within an apparent range even if I think the range is manifestly inadequate to reflect the seriousness of the offence.

20. There are limited sentencing options that I have available to me.  I can send the applicant back to do another one and a half months or so in custody.  He was granted bail and it is fairly trite law, at least in this Court, that the grant of bail should not interfere with the Court imposing an appropriate sentence.  However, having regard to the range of penalties that have been imposed on offenders for this offence, I do not intend to send him back into custody. This is not to say that had Judge Morgan sentenced him to three months imprisonment I would have interfered with that sentence but I must re-exercise the discretion afresh.  I bear in mind that now the applicant has spent a short period in custody, and it seems on the statistics before me that is a fairly exceptional sentence for somebody charged with this offence.

21. I have been provided with a judgment of the Chief Magistrate. With respect it is an admirable judgment looking at the issues and concerns in sentencing for this type of offence.  His Honour in that matter, which I should indicate was a significantly more serious act of driving than this, thought that the appropriate sentence to impose was one of 12 months imprisonment less a discount for a plea of guilty of 25 percent.  But then, for reasons completely personal to the offender in that case, decided to suspend the sentence.  His Honour rightly stresses the significance of general deterrence and the importance of denouncing the fact that the offender by his negligent driving caused the death of a completely innocent person. In the present case the deceased was simply engaged in carrying out his employment on a Sydney street in the middle of the day.

22. I cannot now impose community service on the applicant. That was a very lenient sentence. I could suspend a sentence but because of what I consider to be the completely inappropriate provisions in relation to suspended sentences for this State, I could only suspend the sentence for one and a half months on condition that the applicant is of good behaviour for one and a half months.  The absurdity of such a sentence should be obvious

23. Because the applicant has done some part of his community service order and has served one month in gaol, the only appropriate course is to place him on a bond to be of good behaviour.  The applicant should understand that in my view this as a very lenient sentence and it is not the sentence that I would have imposed had I been sentencing instead of Judge Morgan.  He has had in one way a piece of good luck, in another way a piece of bad luck: his bad luck in ending up in gaol for a month has resulted in his good luck in now receiving a very lenient sentence.

24. Nothing that I say in this matter and the penalty that I impose should be taken in any way by either a Magistrate in the Local Court or a Judge in the District Court to indicate that a good behaviour bond is an appropriate penalty for this offence in these circumstances. I have made my view clear, for what it is worth, that the range of penalties being imposed, at least in the Local Court, is inadequate and fails to reflect the fact that offenders charged with this offence have taken a human life.  The applicant has served his disqualification period, however he cannot have his licence returned to him until the RTA is satisfied that he is able to drive safely for himself and other members of the community.  That is a matter for the RTA and medical evidence placed before them.

25. The period of my bond shall be 12 months and it will be a condition of that bond that he is of good behaviour and includes his conduct in relation to his use of a motor vehicle, driving matters when he does and if he does get his licence back.  If he does get his licence back then for the period of the bond that is remaining a breach of the Motor Traffic Regulations will be a breach of this bond.  Of course if he is in any way not of good behaviour, although I don't believe he will be, he will also be called-up before me. I am not imposing any requirement that he attend the Probation and Parole Service.  The probation officers do not think that is necessary.  He has work.  He has a stable relationship and he is hoping to marry a young lady.

26. Everything else about him appears to indicate that he is a worth while member of the community who on this particular day made a very serious error, whatever that error was, that allowed him to bring his motor vehicle into contact with another human being and causing that man's death.  If that does not dissuade him from being very careful in the future about his conduct behind the wheel of a motor vehicle, I don't suppose anything I can do to him will. But if he breaches my bond seriously by a motor vehicle offence, I will consider returning him to gaol.  It is not a threat, it is just an indication that I feel at the end of the day he has been let off very lightly.

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LAST UPDATED:
29 March 2010