Crawley v The Queen

[1981] FCA 116

Re: DENNIS PHILLIP CRAWLEY
And: THE QUEEN (1981) 55 FLR 463
No. ACT G26 of 1979
Culpable Driving - Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Blackburn(2) and Sheppard(3) JJ.

CATCHWORDS

Culpable Driving - Sentence - Long Time and Undue Delay Since Offence - Employment Consequences - Public Interest

Crimes Act NSW as amended to 1979 s.52A 2(b)

Public Service Act s.62

Public Service Amendment Act 1978 s.20.

Criminal Law - Sentence - Appeal against severity of sentence - Whether sentence lawful - Culpable driving - Principles of sentencing - Crimes Ordinance 1971 (A.C.T.), s. 556B.

HEADNOTE

The appellant was convicted in the Supreme Court of the Australian Capital Territory by a jury of an offence commonly known as culpable driving. The offence was committed in April 1977 and he was sentenced in July 1979 to twelve months' imprisonment. The trial judge ordered, in reliance on s. 556B of the Crimes Ordinance 1971, that the appellant be released after three months upon his entering into a recognizance in the sum of $100 to be of good behaviour for two years and to pay a penalty of $500 to the Commonwealth within three months from the date of sentence. The appellant appealed against the severity of the sentence to the Full Court of the Federal Court of Australia.

Held, that, in the light of sub-s. (4) of s. 556B of the Crimes Ordinance 1971, the sentence, which imposed a term of imprisonment as well as requiring the giving of a security for the payment of a penalty, could not stand.

The gravity of the offence of culpable driving, the appropriateness of a custodial sentence, the effect of imprisonment on the appellant's continued employment, the power of the court to impose a fine where the punishment provided was imprisonment, the inadequacy of the statutory limit of $2,000 and the effect of the unreasonable delay in bringing the appellant to trial discussed.

HEARING

Canberra, 1981, April 3; June 10; July 22. #DATE 22:7:1981

APPEAL.

Appeal from the Supreme Court of the Australian Capital Territory to the Federal Court of Australia against severity of sentence.

The full circumstances of the case are set out in the judgments which follow.

J. B. Norris and R. E. Williams, for the appellant.

K. Hempenstall, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Sneddon Hall & Gallop.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

1. The appeal will be allowed and the sentence set aside.

2. The appellant be released forthwith upon his entering into a recognizance in the sum of $200

(a) to be of good behaviour for three years;

(b) to pay within one month to the Commonwealth a penalty of $2,000 to be paid to the Registrar of the Supreme Court, Canberra;

(c) to surrender his driving licence forthwith, and not to apply for another in any part of the Commonwealth of Australia for a period of three years;

(d) not to drive a motor vehicle in the Commonwealth of Australia for a period of three years.

3. The time for payment may be extended by the Supreme Court on application made to it within 14 days, and it may make such order in that regard as it thinks fit.

4. The matter be remitted to the Supreme Court to hear any application for time to pay and for execution of this order.

JUDGE1

This is an appeal from the Supreme Court of the Australian Capital Territory against severity of sentence.

The accused was convicted by a jury of an offence under s.52A(2)(b) (as it formerly was) of the Crimes Act of NSW 1900 as amended in its application to the ACT. This is an offence commonly known as culpable driving and involves driving in a manner dangerous to the public and through impact of the accused's vehicle with another vehicle causing grievous bodily harm to another person.

The offence was committed on 9th April 1977 and the accused was convicted on 10th July 1979. He was sentenced by the trial judge to 12 months' imprisonment with an order that he be released after three months upon his entering into a recognizance in the sum of $100 to be of good behaviour for two years and to pay a penalty of $500 to the Commonwealth within three months from the date of sentence. This form of sentence purported to involve the provisions of s.556B of the Crimes Ordinance 1971 and particularly sub-secn. (1) of that section. I set out that sub-section:
"Subject to this section, where a person is convicted of an offence against the law of the Territory, the Court by which he is convicted may, if it thinks fit, by order -

(a) release the person without passing sentence upon him upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that -

(i) he will be of good behaviour for such period as the Court specifies in the order;

(ii) he will, during the period so specified comply with such conditions (if any) as the Court thinks fit to specify in the order, which conditions may include -

(A) the condition that the offender will, during the period so specified, be subject to the supervision on probation under a person, for the time being appointed in accordance with the order; and

(B) the condition that the offender will obey all reasonable directions of a person so appointed; and

(iii) he will pay to the Commonwealth such penalty if any (being a penalty not exceeding the prescribed penalty) as the Court specifies in the order on or before a date specified in the order or by specified instalments as provided in the order; or

(b) sentence the person to a term of imprisonment but direct that the person be released, upon his giving a like security to that referred to in the last preceding paragraph, either forthwith or after he has served a specified part of the sentence imposed upon him."

Sub-section (4) is as follows:
"Sub-section (1) of this section does not authorise a court, when directing that the person be released as provided in paragraph (b) of that sub-section, to require the person to give security for the payment of a penalty."

In my view, in the light of sub-secn. (4), the sentence, which imposed a term of imprisonment as well as requiring the giving of a security for the payment of a penalty, cannot stand. This matter was not raised by counsel for the appellant, or drawn to our attention by the prosecution. Obviously, the statutory probibition in sub-secn. (4) was not drawn to his Honour's attention. The matter having been referred on further hearing to counsel on both sides, they state that they do not wish to controvert the view I have expressed.

I have considered whether we should remit the matter to the trial judge. In view of the time which has elapsed since the trial and sentence, and in view of the fact that the facts of the case are not complex, and taking into account that a sentence now imposed by his Honour may still be appealed, I think it appropriate for us to deal with the sentence ourselves.

The accused drove his vehicle at a speed which he estimates might have been up to 40 mph into an intersection, past a "give way" sign, and hit the near side front door of a vehicle being driven along a main road (Scrivener Street) running at right angles to the road (Brigalow Street) along which the accused was proceeding. The driver of the vehicle which was hit in this way was rendered unconscious by the impact and taken to hospital. We were told that he suffered a number of injuries including a fractured right ankle, the fracture of some ribs and an injury to his lungs. The prosecution had been relieved of the necessity of establishing the nature or extent of the injuries at the trial by an admission made by the accused on the advice of counsel.

The roads which thus crossed at right angles were both straight for some distance back from the intersection. They were on fairly level ground, although, to a driver going south in Brigalow Street, as the accused was, the intersection represented a slight crest. Approaching the intersection in Brigalow Street, visibility both ways along Scrivener Street is impeded until about 15 metres from the intersection. The accused says he saw the other vehicle at a time when it was well back from the intersection, but that he took his eyes off it and looked to the right to see that there was no vehicle approaching from that direction. He calculated that he had ample time to cross before the vehicle on his left reached the intersection. He proceeded into the intersection without looking again to his left and without doing more than slowing down slightly as he entered the intersection. The collision then occurred. There was no other traffic about at the time except a vehicle being driven by a Mr. Lyons, which was behind that which was hit. Mr. Lyons gave evidence at the trial.

The case was put to the jury, as it has been put to us, that what happened was the result of an error of judgment on the part of the accused and no more. It must however be taken from the jury's verdict that the accused was driving in a manner dangerous to the public. It would seem likely that the jury accepted other evidence to the effect that the accused was driving at a speed in excess of 40 mph, perhaps about 50 mph, and that, although driving against the "give way" sign, he did not keep a proper lookout. If he did see the other vehicle earlier, he seriously misjudged its distance from the intersection. Looking at the offence in a very general way, I would judge it to be in about the middle range of culpability for an offence of that nature.

The judge found the accused to be "a man of good character whose record and career to date show him in all respects to be a sound citizen". He is 30 years of age and unmarried. He has two convictions, for speeding, one in 1972 in Queanbeyan and the other in 1973 in Canberra. The former, he says, was "an on the spot fine". Mr. Crawley resides in a house alongside that of his parents in Queanbeyan. He has been employed in the Commonwealth Public Service since 1969 and, although his evidence on the subject seems from a reading of it to be rather laconic, and is certainly unsatisfactory, he does appear to suggest that a sentence of imprisonment is likely to bring his public service employment permanently to an end.

Reference to the Public Service Act 1922-1977 (s.62) and to the Public Service Amendment Act 1978 (s.20 introducing new secns. 61, 62 and 63B) shows that dismissal is not automatic upon a sentence of imprisonment being passed, but the conviction is a discretionary factor which, after a hearing, can lead to disciplinary action including dismissal. This is not to say that Commonwealth public servants are as a class to be given special treatment, but employment consequences are in general a factor to be taken into account, with other circumstances, when sentencing for an offence such as the present.

Against the favourable or mitigating factors there is to be taken into account the public interest and in particular the need for the court to do what it can to keep down the road toll. Conviction for an offence of culpable driving cannot be treated lightly.

A further matter affecting penalty at this stage is the lapse of time since the offence was committed. For some reason or reasons, which cannot so far as we know be attributed to the default of the accused, the trial did not take place for 2 years. It is now nearly 2 years since conviction. This is not attributable to any delay or backlog in the Court's lists. The fact remains that we are now called upon to sentence a person for an offence committed over 4 years' ago, and to do so in a situation where there must be a question whether he be imprisoned. For my part I must say that I greatly deprecate these delays. Criminal matters must be dealt with and disposed of promptly.

The learned judge thought that a period of imprisonment was requisite, together with a penalty. He did not refer to suspension of the accused's driving licence, a matter which can constitute a heavy penalty in itself. The conviction does not involve automatic suspension or disqualification and indeed, as the accused is resident in New South Wales, he does not have, or require, a licence issued in the Australian Capital Territory. His counsel told us, at the continued hearing, that he was prepared to undertake not to drive, and to surrender his licence for such period as the court might determine.

In my opinion, in all the circumstances, there should be a heavy monetary penalty (as heavy as the law allows), a long period of suspension from driving and the accused should be put on a bond to be of good behaviour.

In my view the appeal should be allowed, and, the sentence set aside. I would order that the appellant be released forthwith upon his entering into a recognizance in the sum of $200
(a) to be of good behaviour for three years;

(b) to pay within one month to the Commonwealth a penalty of $2,000 to be paid to the Registrar of the Supreme Court, Canberra;

(c) to surrender his driving licence forthwith, and not to apply for another in any part of the Commonwealth of Australia for a period of three years;

(d) not to drive a motor vehicle in the Commonwealth of Australia for a period of three years.

The matter should be remitted to the Supreme Court to hear any application for time to pay and for execution of this order. The appellant should be warned of the possible consequences of a breach of the bond. The said period of one month may be extended by the Supreme Court on application made to it within 14 days, and it may make such order for payment by instalments as it thinks fit.

JUDGE2

The appellant appeals from a sentence awarded by the Supreme Court of the Australian Capital Territory on 30 July 1979. He was convicted on a charge under s.52A(2)(b) (as it formerly was) of the Crimes Act 1900 (N.S.W.) (the Act) in its application to the Australian Capital Territory. The offence may be described as driving a motor vehicle upon a public street in a manner which was dangerous to the public and thereby causing grievous bodily harm to another person.

The circumstances of the offence were that the appellant drove his motor vehicle at a speed which he himself said may have been up to 40 miles per hour, and was estimated by an onlooker at 50 miles per hour, towards a road intersection which consisted of two roads crossing at right angles. The appellant was familiar with the intersection and saw a "give way" sign which faced him as he approached it. The appeallant saw another vehicle, which was approaching from his left on the other road, when that other vehicle was, he thought, about 70 metres from the intersection. The appellant considered it safe to proceed through the intersection ahead of the other vehicle, and before he did so looked up the other road towards his right. At the intersection he collided with the other vehicle. His own account of the matter was that he misjudged the speed of the other vehicle and acted on the assumption that the other vehicle would not reach the intersection before his vehicle.

At this point I quote from the learned judge's remarks on passing sentence:
"The jury obviously came to the conclusion that his manner of driving was dangerous, and could not have failed to notice that, having once looked at the injured man's vehicle, and there being no other distraction on the road, he did not check his original estimate or keep the other vehicle under observation or even look at it again.

It seems to me that on these facts his actions did constitute a most serious breach of the proper management and control of his vehicle at the relevant time and one which also is difficult to understand having regard to the conditions which existed, and his own experience and relatively mature age.

The accused is undoubtedly a man of good character whose record and career to date show him in all respects to be indeed a sound citizen. That he has caused grievous bodily harm to another in these circumstances will undoubtedly be a matter which will remain of concern to him.

On the other hand, the statistics of what is described as the toll of the road indicate that such offences are prevalent and have been a matter of continued and even increasing concern to the courts. In particular courts have made it clear in their treatment of such breaches that anyone who offends in this way may expect that there will be punishment. This is so even though such offenders quite frequently are upright members of the community, as is the accused here."

The learned judge sentenced the appellant to imprisonment for 12 months, and ordered under s.556B of the Act that he was to be released after serving three months of the term of imprisonment upon entering into a recognizance to be of good behaviour for a period of two years and to pay a penalty of $500 to the Commonwealth.

It was conceded by the respondent that in one respect the sentence passed by the learned judge could not stand. Subsection (4) of s.556B in effect prevents a court from including in the recognizance a provision for a penalty if that recognizance is to be given by the accused upon his release from a term of imprisonment under the section. This Court must, therefore, set aside the sentence and substitute another sentence. The contention of counsel for the appellant was that the learned judge erred in principle in making any part of the sentence custodial. The appellant had no record of criminal offences except for two convictions for exceeding the speed limit, and he was a man of otherwise excellent character, as the substantial body of character evidence showed. In these circumstances counsel contended that it was wrong to order the appellant to be imprisoned for even a short period such as three months.

There is no doubt that as a general principle of sentencing, it takes a very serious offence to warrant a custodial sentence for a man with an unblemished record. This appellant's record is blemished by two convictions for exceeding the speed limit, but they were more than four years before the offence now under consideration. Moreover, there is another sound principle of sentencing, namely that imprisonment should be awarded only when there is no other appropriate sentence, due regard being had to the seriousness of the offence in the circumstances in which it was committed. The question is therefore whether there is an available alternative sentence which is appropriate to the circumstances of this case. If there is not, the Court will be obliged to award imprisonment even if that result is undesirable and necessitated by the limited range of sentences available.

In my opinion it is the duty of this Court in its capacity as a court of appeal from the Supreme Court of the Australian Capital Territory, to take judicial notice of the gravity, and the magnitude, of the social evil created by the negligent driving of motor vehicles, and to give weight to the elements of retribution and deterrence in sentencing offenders of this kind. To me it appears that the learned trial judge had proper regard for this principle. Whether the inclusion of a custodial element in the sentence was the best way of giving effect to it may be another matter. But if the custodial element is to be removed, I could not approve of any substitute which did not impose a really heavy burden on the appellant.

A heavy fine might be appropriate, but it appears that there is probably no common law power to impose a fine for a statutory offence which is a misdemeanour under the Act (see s.10), and for which a penalty is provided by the Act. A contrary suggestion was made by the learned authors of that part of the third edition of Halsbury's Laws of England which dealt with criminal law; see 3rd edition, volume 10, page 494, paragraph 902, where it is suggested that a provision in a criminal statue such as the Malicious Damage Act 1861, to the effect that the court may fine in substitution for the imprisonment which is provided for specific offences described as misdemeanours, is "unnecessary in view of the common law power". But I cannot find other authority which supports this view, and Stephen suggests the contrary. In his History of the Criminal Law of England, volume 1, at page 490, he classifies the fine as one of the

"punishments appointed by the common law, both for misdemeanours at common law and also for those statutory misdemeanours for which no punishment is provided by statute."
The case before this Court is, of course, one in which the statute provides a punishment. If there is doubt about the existence of a power of punishment, that power should not be exercised. Moreover, nothing in the Federal Court Act 1977 empowers this Court to award a sentence which the learned judge had no power to award. It follows that in my opinion a fine, in lieu of the custodial sentence awarded by the learned trial judge, is out of the question.

I note that in England, the Crown Court has a general power to find for any offence of which the offender was convicted on indictment, subject to certain qualifications (Powers of Criminal Courts Act 1973,s.30). The need for flexible sentencing powers, and a wide range of penalties, has often been pointed out. In my opinion, a similar general power to fine should be granted to the Supreme Court of the Australian Capital Territory, as part of a general widening of the range of punishments available.

Under s.556B of the Act, the Court may include as a term of a recognizance (if no imprisonment, actual or suspended, is ordered) that a penalty of up to $2,000 be paid to the Commonwealth. The maximum of $2,000 was fixed in 1971, and is plainly in need of review. The Court may also include other terms, and in the case before us it may be appropriate to include terms which have the effect of preventing the appellant for a period from driving a motor vehicle.

I have to consider therefore whether the release of the appellant under s.556B(1)(a), upon his entering into a recognizance to be of good behaviour, to pay the Commonwealth a penalty of $2,000, and to be without a driver's licence for an appropriate period, would be a sufficient recognition of the retributive and deterrent elements to which the learned trial judge properly gave weight. Other things being equal, I would be of opinion that such an order would be insufficient, and I would prefer a custodial sentence. The penalty of $2,000 would in my opinion be too light.

But there is a further matter for consideration. In the case before us, not only was the offence committed two years and three months before the trial, but also the hearing of the appeal was one year and nine months after the sentence. For almost all this time the accused has been on bail. For the earlier delay, between the offence and the trial, the appellant was not at all responsible. For the later delay he may have been responsible; the Court does not know.

The procedural history of this appeal causes me grave concern. Notice of appeal was given on 30 July, the very day of the sentence - no doubt with a view to keeping the appellant out of custody if possible. The next sittings of this Court for hearing appeals was in September 1979. The index to the appeal book was not filed and settled till 28 August. The Registrar did not then set down the appeal. At the call-over of appeals on 4 February 1980, the next sittings being in March 1980, it was said for the appellant that it was intended to bring the appeal on; yet at the next call-over, on 15 September 1980, the appeal was not mentioned, and the appeal book was not certified till 29 September 1980, too late for the September 1980 sittings. The appeal was heard in the sittings which began in March 1981.

It is highly unsatisfactory that the Crown made no application at any time to have the appeal dismissed for want of prosecution. When, in a criminal appeal, the appellant, having been awarded a custodial sentence, has been released on bail pending the hearing of the appeal, it is his duty to take every possible step to prosecute the appeal diligently, and if there is any delay it is the duty of the Crown to make the appropriate application. It is only by such means that the Court can be fully informed of the reasons for what appears to be an undue delay.

In my opinion, the spectacle of an offender being sent to prison four years after the offence, and almost two years after his trial, there being no explanation for the delay which would enable the Court either to excuse him or to reprove him, is so unseemly as to justify the imposition of a sentence which might otherwise be thought too lenient. If that result is undeserved good fortune for the appellant - and this Court does not know whether it is or not - it is nevertheless, in my view, a less undesirable result than sentencing him to prison so belatedly. I repeat that I see this case as one in which a custodial sentence should have been avoided if there was a reasonable alternative; but I think that the absence of power to impose a monetary penalty higher than $2,000 means that there is no alternative reasonably appropriate to the offence itself. What drives me reluctantly to agree to a non-custodial order is the grossly unreasonable, and unexplained, lapse of time.

I concur in the orders proposed by Fox J.

JUDGE3

On 10 July, 1979, the appellant in this matter was convicted of culpable driving. On 30 July, 1979, he was sentenced to imprisonment for twelve months. It was, however, provided that, upon his entering into a recognizance in the sum of $100,

(a) to be of good behaviour for a period of two years,

(b) to pay a penalty of $500 to the Commonwealth within three months,

he was to be released after serving three months of the said sentence.

The appellant appeals against the severity of the sentence which was imposed. It was the submission of his counsel that the case was not one for a custodial sentence.

The appellant was charged pursuant to the provisions of s.52A(2)(b) of the Crimes Act 1900 of the State of New South Wales in its then application to the Australian Capital Territory. The provisions of the sentence imposed by the learned trial judge which provided for the entry by the appellant into a recognizance to be of good behaviour and the payment of a penalty were not authorised by s.556B of the Crimes Ordinance 1971. That is because of the provisions of sub-section (4) thereof referred to in the judgments of Fox and Blackburn JJ. which I have had the advantage of reading.

The facts out of which the charge of culpable driving arose were as follows. The accident happened on 9 April, 1977, at the intersection of Brigalow Street and Scrivener Street, O'Connor. Brigalow Street runs generally in a north-south direction and Scrivener Street in an east-west direction. Confronting a driver travelling north or south in Brigalow Street are give way signs which oblige him to give way to traffic travelling in either direction in Scrivener Street. This obligation is imposed by s.124(1) of the Motor Traffic Ordinance 1936 which provides:-
"(1) Where -

(a) a motor vehicle upon a public street is approaching a traffic sign, inscribed with the words "GIVE WAY", erected at, near or within the junction or intersection of that public street and another public street and facing in the direction from which the motor vehicle is approaching;

(b) another vehicle is approaching the same junction or intersection from either of those public streets; and

(c) the circumstances are such that there is a reasonable possibility that the vehicles might arrive at the same point simultaneously or that a dangerous situation might otherwise be created,

the driver of the motor vehicle shall either decrease the speed of his motor vehicle to such an extent, or stop his motor vehicle for such time, as is necessary to avoid that possibility or situation."

The intersection was described in the evidence of Sergeant Pearson as follows:
"Brigalow Street is a main connecting road leading from the Barton Highway through to the O'Connor area, it is of good bitumen construction, divided into two lanes by a broken white line carrying one lane of traffic in a southerly direction and another lane of traffic in a northerly direction. As you approach Scrivener Street from the north, in Brigalow Street, you travel up a slight gradient to the intersection where it meets Scrivener Street at the crest of a hill. As you approach the intersection, your view, both east and west in Scrivener Street, is "restricted. On the eastern side of Brigalow Street, as you approach the intersection of Scrivener Street, your view is restricted by trees and a bus shelter, and you need to be within 15 metres of the intersection before getting a clear view in either direction."

At about 4.50 p.m. on the day in question the appellant was driving his motor vehicle south in Brigalow Street towards the intersection. One Kazimierz Gasiewicz was driving his vehicle west in Scrivener Street. Both were approaching the intersection. It was the appellant's intention to travel across Scrivener Street and further south in Brigalow Street. It was Mr. Gasiewicz's intention to turn right out of Scrivener Street into Brigalow Street.

By reason of the provisions of the section earlier referred to the appellant was obliged to give way to Mr. Gasiewicz. He failed to do so. According to the evidence of Mr. Gasiewicz he saw the appellant's vehicle some distance from the intersection on his right. He did not remember anything of its speed and lost consciousness about the time of the impact. Mr. Gasiewicz suffered a number of injuries as a result of the collision including a Potts fracture of his right ankle, fractures of some ribs and an injury to his lungs. It was conceded by counsel for the appellant at the trial that as a result of the impact Mr. Gasiewicz had suffered grievous bodily harm.

A witness to the accident was a Mr. Lyons. He was behind Mr. Gasiewicz's vehicle also travelling in a westerly direction towards the intersection. Mr. Lyons thought Mr. Gasiewicz was travelling at about 15 to 20 miles per hour as he approached the intersection. Mr. Lyons was travelling faster than Mr. Gasiewicz - about 30 miles an hour - and caught up to him. Mr. Lyons was asked what happened as his vehicle and the vehicle in front of him approached the intersection. He said:-
"I glanced to the right at some point before the intersection and I saw a vehicle coming at a speed which I estimated at the time that I think around about 50 miles an hour, and I immediately applied the brakes and came to a dead stop . . . . . . ."
Later he said:
"I observed the car on the right (the appellant's car) apparently not slowing down and then turned my eyes to the intersection to observe the - well, it was all happening simultaneously, and then I just sort of saw the two cars come together in the middle of the intersection".
Still later he said that he did not see the appellant's car do anything by way of avoidance or braking.

Mr. Lyons was cross-examined closely about his observations of the appellant's car and particularly about the assessment he made of its speed.

The appellant gave evidence in his defence. He said, as I have mentioned, that he intended to proceed through the intersection. He said his speed was 30 to 35 miles an hour as he approached the intersection. He saw Mr. Gasiewicz's vehicle on his left when, so he said, he was 40 metres from the intersection and Mr. Gasiewicz's vehicle 70 metres away. He said that he thought that it was safe to proceed through the intersection, apparently upon the basis that he would be through it before Mr. Gasiewicz arrived.

The appellant was interviewed at the scene of the accident by Constable Heathcote. The appellant's account of the accident to Constable Heathcote was much in accord with the appellant's evidence. Constable Heathcote put to him that he had been travelling at approximately 50 miles per hour. According to the Constable he said, "No way in the world. It may have been 40 but not 50". The appellant also told the Constable that he had slowed down prior to entering the intersection but did not know by how much he had reduced his speed.

The appeal, as I have mentioned, is an appeal against the severity of the sentence which his Honour imposed. There is no appeal against the conviction and no complaint about any aspect of his Honour's directions to the jury. They were properly directed as to what the Crown had to establish in order for them to be satisfied as to the guilt of the appellant. It is clear that the jury by their verdict accepted the Crown case and rejected that of the appellant. It was his case that he was driving at a moderate speed which was within the speed limit, that he slowed down as he neared the intersection and that the collision was due to an error of judgment on his part brought about by his erroneous assessment that he would be through the intersection before Mr. Gasiewicz entered it.

On the basis of his Honour's directions it is reasonable to conclude that if the jury had accepted that case the appellant would have been acquitted. He was not. The reasonable conclusion to draw, in my opinion, is that the jury found that the appellant not only failed to observe the give way signs which obliged him to yield right of way to Mr. Gasiewicz and any other traffic in Scrivener Street; he travelled at a speed which in all the circumstances was grossly excessive. He conceded to the constable that his speed might have been as high as 40 miles per hour before he commenced to slow down. He was approaching an intersection where upon his own evidence visibility was restricted because of trees. The jury obviously took the view that his driving was dangerous and reckless. It was a view which they were well entitled to take.

There is, in my opinion, a real question as to whether the appellant ever saw Mr. Gasiewicz's vehicle. As the Crown Prosecutor put to the appellant in cross-examination, the truth of the matter may well be that he mistakenly thought that the vehicle with which he collided was the one he had seen some distance from the intersection, whereas in fact that vehicle was Mr. Lyons' vehicle. Bearing in mind that Mr. Gasiewicz must have approached the intersection slowly in order to make his turn, the collision could not have happened if he had been, as the appellant thought, 70 metres from the intersection when the appellant himself was 40 metres from it. That would be so even if one were to accept that the appellant was driving at a speed as low as 30 to 35 miles per hour.

Those considerations on one side, the jury's findings require that the matter be approached upon the basis that the appellant drove into the intersection at a high speed, paid little or no regard to the give way signs which confronted him and, in that manner, entered the intersection despite its being on the crest of a hill and his view of both sides of the intersecting street being substantially obscured. It is difficult to imagine a more dangerous piece of driving. The jury's conviction, based as it was on the ultimate finding that the appellant drove in a manner which was dangerous to the public, was amply justified. The appellant did not in this Court contend that it was not. It is perhaps unnecessary to add that the appellant was not convicted of exceeding the speed limit, nor for that matter, of failing to observe the give way signs. But his failure to obey the law in those respects provided a sound foundation for the finding by the jury that the appellant had driven in a manner dangerous to the public.

The maximum penalty provided for the offence of which the appellant was convicted is imprisonment for three years. As his counsel submitted this is by no means in the worst class of case of this kind. The appellant was not under the influence of intoxicating liquor or any other drug. There is no evidence that the accident was the climax of a substantial period of reckless and dangerous driving. The evidence would indicate that there was no more than dangerous driving at or about the area of the intersection where the collision took place. Nevertheless it should be emphasised that there was then a very dangerous piece of driving indeed.

The appellant was born in Canberra on 9 February, 1951. He was thus 26 years of age at the time of the accident and 28 years of age when he was sentenced. He is 30 years of age now.

The appellant has lived most of his life at Queanbeyan. He attended the Queanbeyan primary and high schools. He obtained the Higher School Certificate in 1969. At the time he was sentenced he was studying for a diploma of Valuation which he began in 1974. He expected to obtain his diploma in 1979 but intended to follow further studies. He has been an active sportsman, playing tennis, squash and Australian Rules and Rugby Union football. He was called up for national service in 1972 and was honourably discharged in 1973. Subsequently he played first grade Rugby Union football for the Queanbeyan team for two years and then played Australian Rules football until he was injured during a game in the year of the accident, namely in April 1977. At the time sentence was passed he was playing first grade tennis for the Campbell tennis club. He also played squash and engaged in scuba diving.

He has been employed in the Commonwealth Public Service since leaving school. In 1979 he was employed as a class 6 employee with the Department of the Treasury. At the time he was sentenced, the appellant was residing with his parents who are well known and respected in the Queanbeyan-Canberra area.

The appellant had two previous convictions both for speeding, one in 1972 and the other in 1973.

Evidence was given on his behalf which established beyond question that he was of good character. That was also the view of Constable Heathcote who was the police officer in charge of the matter. I do not refer to the detail of the character evidence, but it establishes that the appellant has worked well in the various positions he has held in the Public Service, has applied himself to his examinations, has a most creditable record in his various sporting activities, is reliable and, subject to the blemish of this conviction, of good character and reputation. I think the earlier speed convictions have to be borne in mind because they indicate a tendency on the part of the appellant to drive at times too fast. But they cannot play any substantial part in the decision which has to be made as to whether this appeal should be upheld.

It is clear from a reading of what his Honour said when passing sentence that he was most concerned to mark appropriately the seriousness of the offence of which the appellant had been convicted, not only to bring home to the appellant the seriousness of his misconduct but also, and more importantly, as a deterrent to others.

I do not find myself in disagreement with anything that his Honour has said about these matters. The road toll is undoubtedly one of the most serious social problems which the Australian community has. It is a matter which is referred to almost daily by judges and magistrates who encounter the problem either when dealing with cases of this kind or when called upon to assess damages in personal injury cases. Often judges make remarks designed to emphasise to governments and to the public their concern about the problem. Thus in Evans v. Sharman (Supreme Court of New South Wales, unreported, 10 December, 1973) I said as long ago as 1973:
"The Chief Judge at Common Law has had occasion to say recently that carnage on our roads is one of the greatest moral problems which face this country. I respectfully agree with him. It is important to provide better roads, to improve the safety of motor vehicles and to devise more satisfactory schemes for awarding compensation to those who are injured. But, highly important though those things be, there is underlying them an assumption that people will continue to drive as "they now do. Plaintiffs are injured by human failure, usually negligent driving upon the highway. That is the test which the law presently imposes before liability will arise. From 1960-1969 inclusive 30,000 persons died on Australia's roads. Many more were injured. Thus for each death upon the road there are numbers of injured persons, many maimed and scarred for the rest of their lives. The impact of death and injury is not only disastrous to the victims themselves and their families who are directly affected but is an enormous waste to the community. Unless Australians as a whole are prepared to come to grips with this problem and change their driving habits, the position will only worsen. Until a licence to drive a motor vehicle comes to be regarded as a privilege rather than a right and until bad driving, even though it may very often be no more than a momentary act of carelessness, comes to be regarded in the community as anti-social conduct deserving of censure rather than indifference or tolerance, or amongst some younger persons, even admiration or amusement, so the problem will remain."

In Quinn v. Campany (Supreme Court of New South Wales, unreported, 24 May, 1979) I said:
"Before coming to the question of damages, I wish to to say that this is one of a number of traffic light accidents which have come to be dealt with by me in recent months. I would assume that other judges would have had similar cases. It seems to me that there is an increasing tendency on the part of members of the community to ignore their obligations to stop at red lights. This is a serious matter and one which will have increasingly serious consequences for the community in seriously injured or dead people and large damages awards if something is not done. The present case, as the evidence to which I am about to refer will show, is one where the plaintiff's whole manner of life has been drastically affected by the serious misconduct of the defendant. There was absolutely nothing the plaintiff could have done himself to avoid the accident and yet his earning capacity has all but been destroyed, serious consequences have ensued for him in his personal life and the effect upon his family has been nothing short of tragic. If the community as a whole does not take the stand that a red light means what it indicates, the already deplorable road toll of this State will continue to increase at a rate which is almost too dreadful to contemplate."

In that case the plaintiff was more seriously injured than Mr. Gasiewicz appears to have been. And it concerned failure to observe a red traffic signal. But the obligation to yield right of way at give way signs is scarcely less important. The presence of the give way signs, together with the white lines marked on the roadway, gives confidence to drivers who have the right of way to continue. It is in that way that the flow of traffic is maintained. It is for that reason that much of what was said in Quinn v. Campany is as apt for this case as it was for that one.

I have only repeated what I have said in those earlier judgments because they provide examples of the sort of things that judges say about the road toll from time to time. It seems to many of us that remarks of this kind serve little purpose but it is likely that we shall from time to time continue to make them.

The insurance community, governments and some members of the public are presently expressing concern at the effect of the decision of the High Court in Pennant Hills Restaurants Pty. Limited v. Barrell Insurances Pty. Limited (10 February, 1981). Already in New South Wales the Court of Appeal has decided that the impact of this decision will increase very substantially amounts to be awarded for damages where the claim includes lost earning capacity. Fears are expressed as to the premiums which will need to be charged if damages are assessed on this basis.

Little, however, is said about the root cause of the problem - the road toll in Australia. If some real progress could be made in cutting it down the impact of the Barrell case would not be so serious. But nobody seems to wish to discuss that matter; Australians regard a licence to drive as a birthright rather than a privilege. So long as this is the accepted attitude in the community the road roll will continue on as it has done in the last decade, subject to progress here and there as apparently is presently the case in Victoria.

The great problem which confronts a judge faced with the question which faced the learned trial judge here is whether to send a person otherwise of good character to gaol for an offence of this kind. The legislature considers that the worst class of case should be visited with a penalty of three years imprisonment. On the other hand it authorises judges in cases considered by them to be appropriate to release an accused person upon conditions without passing sentence upon him. Those conditions may include the payment of a penalty which may not exceed $2,000. Conditions may also be imposed affecting his entitlement to continue to hold a driving licence. A third alternative is to follow the course adopted by the learned judge here, imposing a sentence of imprisonment but directing that the accused be released either forthwith or after he has served part of the sentence imposed upon him. If that course is chosen, the court may not, however, impose as one of the conditions of early release, the payment of a penalty.

The alternatives I have mentioned are the only ones available. If sentence of imprisonment is not passed, no penalty higher than $2,000 may be imposed. There is no provision in the Territory providing for week-end imprisonment or detention as is the case, for example, in New South Wales.

If the sentence imposed by his Honour had been one which it was within his power to impose, I would have had serious difficulty in concluding that his decision disclosed error. I would have been of the view that the sentence was one which fell within the proper exercise of a sound discretion. But for reasons earlier mentioned the sentence, looked at as a whole, was not one which his Honour could lawfully impose. We must accordingly come to a conclusion ourselves as to what the appropriate punishment should be.

I agree with Blackburn J. that as a general principle of sentencing, it takes a very serious offence to warrant a custodial sentence for a man with an unblemished record. I also agree that imprisonment should be awarded only when there is no other appropriate sentence, due regard being had to the seriousness of the offence and the circumstances in which it was committed. I also agree that a supervening factor which we must take into account is the gross delay that has taken place in the prosecution of this appeal. That is not, of course, a matter which could have concerned the trial judge, but it is a matter which must concern us. I respectfully agree with what has been said about it both by Fox and Blackburn JJ.

Balancing the considerations which I have so far mentioned are the dangerousness and recklessness of the appellant's driving. His unlawful conduct may have occurred in the space of a few seconds, but it was serious in the extreme. To drive as he did was not only to flout the law but also to engage in a selfish disregard for the safety of members of the public, including possibly children and aged persons. His conduct can only be described as entirely disgraceful.

I confess to having had serious misgivings as to whether the course proposed by my brothers should be followed, but after substantial reflection I have decided that I should agree with them that the penalty imposed should not include a sentence of imprisonment.

I would allow the appeal and set aside the sentence imposed at first instance. Pursuant to s.556B of the Ordinance I would release the appellant without passing sentence upon him upon his entering into a recognizance in the sum of $200 -

(a) that he will be of good behaviour for three years,

(b) that he will pay to the Commonwealth a penalty of $2,000 to be paid to the Registrar of the Supreme Court, Canberra, within one month of today,

(c) that he will not exercise during the period of three years commencing today his rights under any driving licence which he now holds,

(d) that he will forthwith surrender to the authority which issued it that driving licence,

(e) that he will not apply, during the period of three years commencing today, for a driver's licence in any part of the Commonwealth.

I agree with the proposal that the matter be remitted to the Supreme Court to hear any application for time to pay and for execution of this order.