Cantwell v Nozhat
[2017] ACTSC 14
•3 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cantwell v Nozhat |
Citation: | [2017] ACTSC 14 |
Hearing Date: | 1 February 2017 |
DecisionDate: | 3 February 2017 |
Before: | Robinson AJ |
Decision: | See [22] – [25] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – manifestly inadequate – negligent driving – resulting in grievous bodily harm – appeal allowed – re-sentenced offender. |
Legislation Cited: | Magistrates Court Act 1930 (ACT) ss 219B, 219F Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6 Crimes (Sentencing) Act 2005 (ACT) ss 7, 17 |
Parties: | Phillip Cantwell (Crown) Spozmai Nozhat (Defendant) |
Representation: | Counsel Ms R Christensen (Crown) Mr J Lawton (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Capital Lawyers (Defendant) | |
File Number: | SCA 58 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 15 August 2016 Case Title: Cantwell v Nozhat Court File Number: 180431 |
Robinson AJ:
The informant Phillip Cantwell appeals to the Supreme Court under division 3.10.3 of the Magistrates Court Act1930 (ACT), against the outcome of two charges laid against Ms Nozhat, whom I will refer to as the defendant in these reasons. It was alleged that the defendant drove a motor vehicle negligently causing grievous bodily harm to two cyclists on 15 April 2015.
The two charges were brought under s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and attract a maximum penalty of 1 year imprisonment or 100 penalty units or both.
Ms Nozhat pleaded not guilty to both charges and a hearing followed. Magistrate Cook found both offences proved. The issue litigated, in general terms, was whether the Crown had proved, beyond reasonable doubt, that the driving in question was a departure from the standard of care expected of the ordinary prudent driver in the circumstances prevailing at the time.
The appeal was bought against the disposition of the charges by the Magistrate after this finding had been made. The sole ground of appeal was that “His Honour erred in imposing a sentence that in all of the circumstances was manifestly inadequate”. That ground of appeal is expressly provided for provided for in s 219B(1)(f) of the Magistrates Court Act.
Circumstances of the Offences
It is necessary to briefly set out some of the findings as to liability so far as they are relevant to the ground of appeal. His Honour found that:
At about 7.13 am on Wednesday, 15 April 2015 you were driving your dark grey Mazda CX5 station wagon, registration [redacted for legal reasons] in the eastbound lane on Baldwin Drive, Giralang, the eastbound lane being a dual carriageway and the westbound lane a single carriageway. Heading eastbound along Baldwin Drive you would have encountered a left-hand bend followed by a straight and slight incline. The section of the straight road is about 150 meters before the crest of the incline.
At the crest of the incline a collision occurred with cyclists as a result of the sun blinding you, on your evidence, and as was set out within the various comments made by you in exhibit 1. The collision caused Ms Kimber to fall onto the bonnet and windscreen of the motor vehicle and then she fell onto the road. Both Mr Coleman and the third rider, Mr Burkhardt, fell to the ground on collision. Mr Coleman and Ms Kimber suffered grievous bodily harm as a result of being struck by the vehicle being driven by you from behind.
The gravamen of the Magistrate’s decision was that either the defendant drove for a period of between six and nine seconds with the sun in her eyes, without taking any evasive action or, at that time, she did not keep a proper lookout and therefore see a group of cyclists who were riding directly in front of her. The Magistrate found that, only upon the point of impact, did Ms Nozhat see the group of cyclists and that two of that group of cyclists suffered very substantial injuries, which was not in contest in the proceedings.
There was no contest on appeal from Ms Nozhat concerning these findings relevant to guilt.
Magistrate’s Disposition
In the course of his remarks on sentence, Magistrate Cook twice made an assessment of the objective seriousness of the offences as “at the low end of the scale”.
In her written submissions, the Crown Prosecutor had taken issue with this characterisation in the context of drawing attention to it for the purposes of making out the sole ground of appeal concerning manifest inadequacy.
At the hearing of the appeal, I gave leave to the Crown Prosecutor to amend the Notice of Appeal so as to include, as a distinct ground, that His Honour was in error in characterising the objective seriousness of the offences “at the low end of the scale”. It was not suggested that this amendment raised a new issue.
After taking into account a very strong subjective case on sentence by the defendant, of which I will say more below, the Magistrate disposed of both matters as follows:
CC16/1222- No conviction. Good Behaviour Order for a period of 10 months. Disqualified from holding or obtaining a drivers licence for 3 months
CC16/1223- No conviction. Good Behaviour Order for a period of 10 months. Disqualified from holding or obtaining a drivers licence for 3 months
Disposition
The objective seriousness of the offence for which there was a finding of guilt necessarily rests upon an evaluation of both the degree of departure from the proper standard of driving derived from the prevailing road conditions and the degree of the grievous bodily injury caused by the driving.
I am unable to agree that the objective seriousness of these offences can be accurately described as low level. There was more than momentary inattention. There was either a significant period of complete inattention or a significant period of driving a vehicle without proper visibility which led to the defendant striking a group of cyclists from behind. The Magistrate observed “...it seems to me that Ms Nozhat at no time sees the cyclists, not even at the moment of impact.”
Further, the medical reports set out very significant injuries to the two cyclists certainly amounting to grievous bodily harm as might be expected as a result of a rear end collision where the defendant estimates her speed at between 60 and 70 kilometres an hour in an 80 kilometre zone.
In my view His Honour was in error in finding that these offences were at the “low level”. There was a substantial departure from the standard of driving required on that day and time. The injuries, which must be taken into account on this characterisation, were very substantial as well.
Against this, the very strong subjective case of the defendant must be assessed.
The defendant has an excellent driving record, is a person who has made and is making a great contribution to the community and who is held in high regard by it.
I do not consider that those subjective circumstances can overcome the need to record convictions in this case. The other purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) need to be given adequate recognition and attention, namely s 7(b), (e), (f) and (g). Many negligent drivers are persons whose character and good works are beyond question but other forces are at work in the criminal justice system including the recognition of harm to the victims of these offences. The Magistrate recognised this when he said:
Against that I then need to look at section 33 factors, and they are matters that are directly about you, but they are also matters about the two victims and the fact that their injuries that they received and that caused long-term prospects for their returning back to their previous life prior to the collision. What I’ve got from the material and through the submissions there is some long-term obviously injury that they will carry with them and permanent. So I need to take their particular outcomes into account as well in arriving at an appropriate sentence.
The Magistrate acceded to a submission under s 17 of the Crimes (Sentencing) Act. It was not appropriate to uphold this submission in the circumstances. The seriousness of the offence s 17(3)(b) and the lack of extenuating circumstances s 17(3)(c) precluded this outcome.
I would allow the appeal on the ground that His Honour erred in not having proper regard to the objective seriousness of the offences. I do not need to consider the other ground of appeal.
Resentence
As this is a crown appeal, I do not propose to deviate from the parameters below. The point of principle can be corrected without further punishment of the offender.
Order
I allow the appeal to the extent below.
I make the following orders;
a)In each case I record a conviction of negligent driving causing grievous bodily harm.
b)In each case I impose a Good Behaviour Order, upon the terms previously imposed, for a period of 12 months, that period to commence on 15 August 2016 and end on 14 August 2017.
I confirm the order made by the Magistrate that the defendant be disqualified from holding or obtaining a drivers licence for the period of 3 months being the period 15 August 2016 to 14 November 2016.
| I certify that the preceding [ 25 ] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 3 February 2017 |
I order, pursuant to s 219F(8), that the Appellant pay the costs of and incidental to the appeal.