Elphick v R

[2021] NSWCCA 167

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Elphick v R [2021] NSWCCA 167

Hearing dates:

12 July 2021

Decision date:

21 July 2021

Before:

Basten JA at [1]; Walton J at [2]; Adamson J at [3]

Decision:

(1)   Grant leave to the applicant to appeal against the sentence imposed on him in the District Court on 19 January 2021.

(2)   Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence —The sentencing judge did not overstate the applicant’s moral culpability — Applicant drove straight into the side of a highly visible vehicle on a highway with a speed limit of 110kph — Conduct constituted an egregious want of care — Failure to look properly and assess the presence of oncoming traffic created a substantial risk of collision with catastrophic consequences — The sentencing judge properly assessed the application for an ICO — Assessed the applicant’s risk of reoffending low whether given an ICO or full-time custody — The purposes of general deterrence would not be sufficiently served by an ICO — Sentence was not manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), s 52A

Criminal Appeal Act 1912 (NSW), s 5

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Thai v R [2009] NSWCCA 314

Category:

Principal judgment

Parties:

Luke Elphick (Applicant)
Regina (Respondent)

Representation:

Counsel:
D Dalton SC / S Kluss (Applicant)
G Newton (Respondent)

Solicitors:
Rake Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/264420

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 January 2021

Before:

Lerve DCJ

File Number(s):

2019/264420

Judgment

1. BASTEN JA: I agree with Adamson J. Just how the applicant came to drive into the side of the vehicle in which the victims were travelling is difficult to comprehend. However, making every allowance for the good character of the applicant, that difficulty does not reduce his culpability. There was no error of principle or fact in the careful reasoning of the sentencing judge.

2. WALTON J: I agree with the judgment and orders proposed by Adamson J and the additional observations made by Basten JA.

3. ADAMSON J: Luke Elphick (the applicant) applies for leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Lerve DCJ on 19 January 2021 at Wagga Wagga District Court for two offences: dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW) and dangerous driving occasioning grievous bodily harm contrary s 52A(3)(c) of the Crimes Act.

4. His Honour imposed an aggregate sentence of 3 years’ imprisonment commencing on 19 January 2021 and expiring on 18 January 2024 with a non-parole period of 2 years to expire on 18 January 2023. The ratio of 66.66% between the non-parole period and the total term reflects his Honour’s finding of special circumstances. His Honour allowed a discount of 25% for the utilitarian value of the applicant’s early plea of guilty to these offences, which was taken into account in the indicative sentences for the two offences: 2 years and 3 months for the dangerous driving occasioning death offence and 18 months for the dangerous driving occasioning grievous bodily harm offence. The applicant was also disqualified from driving for a period of two years for each offence, to operate concurrently.

5. The applicant seeks leave to appeal on the following three grounds:

1. His Honour erred in relation to his assessment of moral culpability;

2. His Honour failed to properly assess the application for the sentence to be served by way of Intensive Correction Order (ICO); and

3. The sentence imposed was manifestly excessive.

6. All references to legislation in these reasons are, unless otherwise indicated, references to the Crimes Act.

The sentencing judgment

7. The applicant was sentenced on the basis of agreed facts and the evidence at the sentence hearing, which established the following narrative, as found by his Honour.

The circumstances of the offence

8. The Hume Highway (M31) near Tumblong in southern NSW is a divided highway with an east-west orientation and with two lanes in each direction, together with separate slip lanes on either side for vehicles entering and exiting at cross-roads. The Old Hume Highway, oriented roughly north-south, forms a cross-road. At about 1.20pm on Saturday 24 August 2019, the applicant was driving a silver Toyota Hilux vehicle south along the Old Hume Highway towards its intersection with the Hume Highway. There were two “give way” signs at the northern side of the Hume Highway for traffic coming from the Old Hume Highway. At this intersection there was a clear view of the Hume Highway for a distance of approximately one kilometre in both the eastbound and westbound directions.

9. Nicola Livingstone was a passenger in a vehicle driving east along the Hume Highway (and thus on the northern side). She saw the applicant’s vehicle cross in front of her and stop at the crossing of the median strip in the centre of the Hume Highway. At the southern edge of the median strip there were a further two “give way” signs directed at traffic wanting to move from the median strip into or across the westbound lanes.

10. Paul Sinclair was driving westbound in his white Nissan four-wheel drive, which towed a campervan, in the left-hand (southern-most) lane of the Hume Highway at approximately 105kph. His wife, Gail, was in the front passenger seat.

11. Ms Livingstone observed the applicant stop at the median strip area for a period of less than a second. From the median strip, looking east (in the direction from which the Sinclairs were coming) there was a clear view of westbound traffic for about a kilometre. It was daylight. There was no sun glare. The surface of the Hume Highway was dry. The applicant, as established by a subsequent blood test, had no alcohol in his blood. Nonetheless, he failed to see the Sinclair’s vehicle or the campervan which it was towing. The applicant drove his vehicle south in order to cross the westbound lanes of the Hume Highway. Viewed from his vehicle the Sinclairs were travelling in the second lane. His vehicle collided with the driver’s side of their vehicle, causing it to roll over onto its roof.

12. The only explanation which the applicant offered for not having seen the Sinclair’s vehicle was that his view of the roadway may have been impeded by the “A” pillar of his vehicle. He made this explanation to the psychologist he saw for the purposes of the sentence hearing and also in his evidence at the sentence proceedings. The applicant admitted that if he had looked properly he would have seen the Sinclair’s vehicle.

13. As a result of the collision, Mr Sinclair died at the scene. Mrs Sinclair suffered a fractured left collarbone which required surgery. A report of Ms Robyn Slade, psychologist, recorded that Mrs Sinclair suffered Post Traumatic Stress Disorder as a result of the collision. She also suffered whiplash and musculoskeletal pain syndrome as well as nerve root compression. She continues to have paraesthesia in her right upper arm. His Honour noted the impact of the offending conduct on Mrs Sinclair which was “long and lasting”. The Crown did not submit that this harm constituted an aggravating factor. His Honour confirmed in the sentencing judgment that it had, however, been taken into account in the process of instinctive synthesis.

14. On the day after the collision, 25 August 2019, the applicant went to Gundagai Police Station where he was arrested. He participated in a recorded interview, in the course of which he said that he was familiar with the road, the intersection and its signage, having driven along it for a number of years. He admitted that his view of oncoming traffic was not obstructed and there was “no issue” with glare from the sun.

Objective seriousness

15. His Honour recorded the applicant’s submission that the collision was caused by “momentary inattention” and the Crown’s submission that the offending conduct “involve[d] a significant failure to responsibly manage a vehicle”. His Honour referred to Thai v R [2009] NSWCCA 314 (Thai), which also concerned a crossing of the Hume Highway, in which McClellan CJ at CL, at [4], said that momentary inattention on an isolated country road may give rise to lesser moral culpability than momentary inattention when driving on a freeway or in an urban environment where traffic is dense. Although his Honour referred to Thai, he found that “the matter presently under consideration is not one of momentary inattention”. His Honour said further at [24]:

“In assessing the seriousness of this matter the roadway where the incident occurred is significant. This I understood to be the point the Crown was seeking to make in handing up the judgment in Thai. The roadway in question is at the intersection of one of the busiest roadways in Australia with a secondary road. There is a clear duty on drivers joining or traversing such a busy road to properly ensure that it is safe to do so and in particular to ensure that there is no oncoming traffic. The freeway of dual carriageway is speed limited to 110 km/h. The deceased was travelling well within the speed limit. Ms Livingstone observed the offender’s vehicle either did not stop or if it did the stop was for less than a second. This would have been entirely insufficient to ensure that there was no oncoming traffic given the speed of traffic travelling on the freeway, particularly if his view of oncoming traffic was impeded by the A pillar. The offender failed in the clear duty he had to ensure that it was safe to join or cross the freeway.”

16. His Honour expressed his conclusion about objective seriousness as follows at [34]:

“In all of the circumstances I am of the opinion that the matter is most certainly not one of momentary inattention. The matter is far more serious than that noting the roadway concerned, the fact that the offender was familiar with the roadway and had travelled over that piece of road regularly, the fact that vehicles on that open freeway could be expected to be travelling at or about the speed limit, the fact that on the offender’s evidence his vision was impaired by the A pillar of his vehicle and the complete failure of the offender to ensure it was safe to traverse the freeway. However, it is not a matter where there is an abandonment of responsibility. After much contemplation given the factors I have just enumerated I have reached the conclusion that it is a matter where the moral culpability of the offender so far as his manner of driving is concerned can be described as ‘high’. However the matter is at the lower end of matters where the moral culpability of the offender is high.”

General deterrence

17. His Honour considered that the objective of general deterrence was significant in the present case.

The subjective circumstances

18. Apart from an offence relating to seatbelts in February 2011, the applicant had no criminal record. He was a person of prior good character. As a result of the offending, he was stood down from the Rural Fire Service, of which he had been a valued member. Several testimonial references were tendered by persons who spoke of the applicant’s good reputation and good works, both on the family farm and for the Rural Fire Service. He continues to think about the incident every day and has suffered “extreme distress” as a consequence of his actions.

19. His Honour found that the applicant was unlikely to re-offend and had good prospects of rehabilitation.

Remorse and contrition

20. His Honour accepted that the applicant was “profoundly and genuinely remorseful”.

Whether a sentence of full time custody ought be imposed

21. The applicant submitted at the sentence hearing that an ICO would adequately meet the purposes of sentencing in the present case. His Honour set out s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in full in the reasons before applying it to the present case. His Honour found that because the applicant was unlikely to re-offend, he could not find that either an ICO or a full-time sentence would be “more likely to address [the applicant’s] risk of re-offending” within the meaning of s 66(2). His Honour addressed the purposes of sentencing, as set out in s 3A of the Crimes (Sentencing Procedure) Act, as required by s 66(3), and, after addressing the authorities, concluded, at [103]:

“I am of the opinion that in this matter given the seriousness of the offending noting what reasons I have under the heading ‘Assessment’ at paragraphs [18]-[36] of these reasons and the need for general deterrence, despite what is undoubtedly a strong subjective case it is not appropriate for the sentence to be served by way of Intensive Correction Order.”

22. As referred to above, his Honour made a finding of special circumstances and reduced the statutory ratio between the non-parole period and the total term from 75% to 66.66% on the basis of the applicant’s youth (he was 31 at the time of the offence and 32 at the time the sentence was imposed), and that it was to be his first time in custody.

Ground 1: alleged error in assessment of moral culpability

23. Mr Dalton, who appeared with Ms Kluss on behalf of the applicant, submitted that his Honour erred in failing to find that the offence was one which involved “momentary inattention” and that this error led his Honour to overstate the applicant’s moral culpability and to assess it as being “high”.

24. I am not persuaded his Honour’s finding was other than correct. In effect, the applicant drove straight into the side of a highly visible vehicle which was towing a campervan. The vehicle could have been seen by him at any time within the last kilometre of its path to the place of the collision, which, having regard to its speed of 105kph, would have been within his line of sight for over 34 seconds before he started to cross the westbound lanes of the Hume Highway. He was familiar with the intersection and knew how dangerous it was to cross the Hume Highway where the speed limit was 110kph. His conduct constituted an egregious want of care. In this context, his Honour was correct to reject the description “momentary inattention”.

25. Nor am I persuaded that his Honour erred in finding the applicant’s moral culpability to be high. Although the applicant was neither intoxicated, nor tired, nor unfamiliar with the dangers of the intersection, he did not see a vehicle (which was large, white and conspicuous) which was within plain sight. That his failure to see the vehicle could not be explained by anything other than that he simply failed to look properly does not reduce his moral culpability. To drive out from a side road onto the Hume Highway, cross the area of the median strip and continue across the second set of lanes without properly assessing the presence of oncoming traffic creates a substantial risk of collision, which, having regard to the speed limit on the highway, is likely, if the risk materialises, to have catastrophic consequences. Such a want of care in these circumstances can transform a vehicle into a deadly weapon, as occurred in the present case. Ground 1 has not been made out.

Ground 2: alleged failure to properly assess the application for an ICO

26. In effect, Mr Dalton submitted that his Honour was in error in failing to impose an ICO in the present case. It is apparent from his Honour’s careful reasons that his Honour not only considered the express terms of s 66 of the Crimes (Sentencing Procedure) Act, but also the authorities of this Court which have considered it. As is plain from s 66(2), the sentencing judge was obliged to consider whether making an ICO or serving the sentence by way of full-time detention is more likely to address the applicant’s risk of reoffending. However, in the present case, where his Honour adjudged the applicant’s risk of reoffending to be low in either event, this factor became neutral. His Honour was, accordingly, left to assess the matter by reference to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act, as required by s 66(3). It was open to his Honour to find that a custodial sentence was warranted and that the purposes of general deterrence would not be sufficiently served by an ICO.

27. I am not persuaded that his Honour did not adequately address the application for an ICO. Indeed, his Honour’s summary of the applicable law and his application of it to the facts of this case was, in my view, model. This ground has not been made out.

Ground 3: alleged manifest excess

28. Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). In substance, Mr Dalton submitted that the applicant’s subjective circumstances were sufficient to outweigh the objective seriousness of the offending such that the aggregate sentence was excessive.

29. The starting points for the indicative sentences, before the application of the discount of 25% for the plea of guilty, were 3 years for the s 52A(1)(c) offence (for which the maximum penalty was 10 years’ imprisonment) and 2 years for the s 52A(3)(c) offence (for which the maximum penalty was 7 years’ imprisonment). The finding of special circumstances reduced the non-parole period from 75% of the total term to 66.6% of the total term. Although the applicant’s moral culpability was found to be high, he had a powerful subjective case. As I have found ground 1 (the challenge to the sentencing judge’s assessment of the applicant’s moral culpability) not to have been made out, it is difficult to accept that the sentence as a whole is manifestly excessive.

30. In assessing the sentence as a whole, regard must be had to the gist of the relevant offences: that the driving must be dangerous and that it must cause death (in the case of the s 52A(1)(c) offence) and grievous bodily harm (in the case of the s 52A(3)(c) offence). The unlawful taking of one human life and the infliction of grievous bodily harm on another, as occurred in the present case, was found by the sentencing judge to require a custodial sentence of 3 years’ imprisonment with a non-parole period of 2 years. I am not persuaded that this sentence was manifestly excessive. In my view, it was open to his Honour to impose that sentence. Ground 3 has not been made out.

Proposed orders

31. I regard the grounds as sufficient to warrant a grant of leave.

32. For the reasons given above, I propose the following orders:

1. Grant leave to the applicant to appeal against the sentence imposed on him in the District Court on 19 January 2021.

2. Appeal dismissed.

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Decision last updated: 22 July 2021