Gillett v R

[2006] NSWCCA 370

Reported Decision: 166 A Crim R 419

New South Wales

Court of Criminal Appeal

CITATION:	GILLETT v REGINA [2006] NSWCCA 370 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 October 2006
JUDGMENT DATE:	24 November 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Sully J at 57; Hislop J at 58
DECISION:	1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence but dismiss the appeal.
CATCHWORDS:	CRIMINAL LAW - CONVICTION APPEAL - SENTENCE APPEAL - drive in a manner dangerous - occasioning death - epileptic seizure - causation - whether epileptic seizure was a novus actus interveniens - meaning of “substantial risk” - whether an epileptic seizure was a substantial risk whilst driving - whether driving was “objectively dangerous” - whether correct to take into account sleep apnoea when assessing objective dangerousness - whether error in finding appellant aware that it was not safe to drive - whether appropriate weight given to expert evidence - whether appropriate to take into account failure to disclose epilepsy in RTA form for licence renewal - admissibility - relevance to assessment of objective dangerousness - whether error in refusing to admit document containing guidelines and standards for assessment of fitness to drive
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986
CASES CITED:	Hill v Baxter [1958] 1 QB 277 Jiminez v The Queen (1992) 173 CLR 572 R v Jurisic (1998) 45 NSWLR 209 Kroon 52 A Crim R 15 Mercer v Regina (1993) 67 A Crim R 91 R v Price [2004] NSWCCA 186 R v Plumb [2003] NSWCCA 359 Royall v The Queen (1990) 172 CLR 378 R v Whyte (2002) 55 NSWLR 252 Zheng v Regina (1995) 83 A Crim R 572
PARTIES:	Ross Gillett (Appl) The Crown
FILE NUMBER(S):	CCA 2006/1709
COUNSEL:	P Byrne SC/W Barber (Appl) R Cogswell SC/J Caldwell (Crown)
SOLICITORS:	I Rolfe (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1112
LOWER COURT JUDICIAL OFFICER:	Berman DCJ
LOWER COURT DATE OF DECISION:	18 March 2005

2006/1709

McCLELLAN CJ at CL
SULLY J
HISLOP J

FRIDAY 24 NOVEMBER 2006

GILLETT, Ross v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of three counts of driving in a manner dangerous to other persons occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900. The maximum penalty for the offence is ten years. He was convicted and sentenced to a total period of imprisonment of seven years with a non-parole period of five years and three months.

2 The sentences imposed for each offence were:

On count one, which concerned the death of Cameron Howie, imprisonment for five years to commence on 25 November 2004, being the day on which the appellant first went into custody in relation to those offences. His Honour imposed a fixed term for this count because of the other sentences which he imposed.

On count two, which relates to the death of Shannon Howie, his Honour set a non-parole period of three years and nine months to commence on 25 November 2005 and expire on 24 August 2009. The total term of sentence was also imprisonment for five years.

On count three, which relates to the death of Michaela Howie, his Honour set a non-parole period of three years and three months to commence on 25 November 2006. That period expires on 24 February 2010. The total term of the sentence was again imprisonment for five years.

3 The appellant appeals his conviction and seeks leave to appeal in relation to the sentences imposed.

4 The trial was conducted without a jury, the appellant having elected to take that course pursuant to the provisions of s 132 of the Criminal Procedure Act 1986. The trial judge published a judgment in which he carefully explained the reasons for concluding that the appellant was guilty. In that judgment he provides an account of the circumstances of the relevant events in the following terms:

“ Events of 2 May 2003
On 2 November 2004 the accused Ross Gillett was called for trial. An indictment containing 3 counts was presented. Each of those counts alleged that the accused had driven his motor vehicle in a manner dangerous to other persons, whereby his vehicle was involved in an impact, as a result of which a named person was killed. The 3 counts each related to the death of a different member of the Howie family: Cameron Douglas Howie, Shannon Anne Howie and Michaela Howie.
At about 4.45 pm on 2 May 2003 the accused was driving a new Toyota Avalon sedan in a northerly direction along Condamine Street at Manly Vale. The weather was fine, the road was dry and it was still daylight. Condamine Street is a major road and traffic was moderate to heavy. As the accused approached the corner of Condamine Street and Campbell Parade, traffic lights facing him changed from green to amber. The car in front of his was driven by Dr Currie who slowed her vehicle intending to stop at the traffic lights. The accused’s car ran into Dr Currie’s car with such force that her car spun and was pushed into the middle of the intersection.
The accused did not stop after this collision. He continued along Condamine Street towards the intersection of Kentwell Road. The traffic in front of him had banked up, a common occurrence because of the traffic lights at the intersection of Condamine Street and Kentwell Road. The car immediately in front of the accused’s was a green Mitsubishi Lancer driven by Cameron Howie with his wife Shannon Howie in the front passenger seat and their young daughter, Michaela Howie in a child’s seat in the back. The accused’s car ran into the back of the Howie’s car forcing it not only forwards but also to the right, across the median strip and into the path of oncoming traffic. One of the oncoming vehicles was a 4-wheel drive Nissan Patrol driven by Mr Michael Fuller. He was travelling at about 60 kph, that being the speed limit. The force of the impact between Mr Fuller’s 4-wheel drive and the much lighter Mitsubishi sedan was enormous. The smaller car was destroyed, killing all 3 members of the Howie family.
So far I have described the accused’s collision with 2 vehicles, Dr Currie’s at the corner of Campbell Parade and the Howie’s car a short distance down Condamine Street. Despite those 2 collisions, still the accused did not stop. He continued along in a northerly direction until he collided with yet another car, this a Toyota Corolla driven by Mr Peter Wiebe. The accused’s car, having pushed the Howies’ car out of the way, had continued on until it collided with the rear of Mr Wiebe’s car. Finally the accused’s vehicle came to a stop.”

5 The trial judge also received evidence of an incident in August 1993 when the appellant was involved in another motorcar accident. His Honour concluded that this earlier accident was the result of an epileptic seizure.

6 The appellant was charged pursuant to s 52A. That section relevantly provides:

“(1) Dangerous driving occasioning death
A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:


(a) …

(b) …

(c) in a manner dangerous to another person or persons.”

7 There were three different ways in which the Crown sought to establish the appellant’s guilt:

1. The appellant did not have an epileptic seizure at the time of or immediately before the impact. His actions were voluntary and he was driving in a manner dangerous to the public. According to this formulation of the Crown case this was simply a case of dangerous driving and epilepsy had nothing to do with it.

2. If the appellant did have an epileptic seizure, his actions were nevertheless voluntary in the sense that he could be said to be driving in a manner dangerous to the public immediately before impact. The nature of the appellant’s driving at the time demonstrated that the appellant was, even if he did have a seizure, aware of what he was doing and able to control his vehicle.

3. If the appellant was not acting voluntarily at the time of impact, because he had suffered an epileptic seizure, the mere fact of his driving with his medical condition constituted a real danger to the public and his driving with that condition constituted driving in a manner dangerous to the public.

8 The trial judge found as a matter of fact that the appellant did have an epileptic seizure and that his conduct in driving immediately prior to the impact was not voluntary. It is agreed that this conclusion disposes of the first and second bases on which the Crown relied to establish its case against the appellant and it is only necessary to consider the third basis in this appeal.

9 The trial judge correctly recognised that in order to make out the offence the Crown would have to prove that the appellant’s driving was objectively dangerous and that it was the cause of the impact that resulted in the deaths of the victims. Whether the appellant was aware that his driving was objectively dangerous was a question which was relevant only to any defence of honest and reasonable mistake, if the other elements of the offence were proved. His Honour said:

“When looking at the third way the Crown puts its case the live issues are whether the Crown has proved beyond reasonable doubt that:

§ At a time when the accused was driving voluntarily he was driving dangerously.

§ This time was close enough in time to the collision as to make the driving at that time, in a practical sense, the cause of the impact and the deaths of the Howies.

§ The accused did not believe on reasonable grounds that it was safe for him to drive (again using the word safe as a shorthand antonym for the concept of dangerousness in the 3 counts the accused faces).

I will look at these issues in a different order to that which I have just announced, beginning with the time issue.
Although a glance at the charges may suggest that the Crown has to prove beyond reasonable doubt that the accused was driving dangerously at the time of the impact, that does not mean the precise second when the cars collided. If it did mean that, then because the accused was acting involuntarily whilst in a seizure, then he could not have been driving dangerously at the time of the impact and the Crown could never succeed in a case like this, or the more common case in a case where a driver falls asleep at the wheel.
The driving I must look at in order to determine whether it was dangerous or not is the accused’s driving at a time which is close enough to the time of his car colliding with that driven by Mr Howie so that it can be said that at the time of the impact the accused was driving in a manner which was dangerous to another person or persons.
Although a person who is acting involuntarily can not be said to be ‘driving’ his car, I must look at how the accused drove before he had a seizure that day and ask myself whether that was driving in a manner which is dangerous to another person or persons, as long as the driving before the seizure was, in a practical sense, the cause of the impact and the deaths of the Howies.
I am satisfied beyond reasonable doubt that on the accused’s journey towards Manly Vale on 2 May 2003, he was driving voluntarily until he had a seizure – this coming upon him suddenly as he approached Campbell Parade. I am also satisfied beyond reasonable doubt that in a real and practical sense it was his voluntary driving before the seizure started which caused the later fatal impact with the Howies’ car. Had it not been for the voluntary act of driving towards Manly Vale on 2 May 2003, his car would not have collided with the Howies’ car, causing their deaths.”

10 The trial judge did not form a favourable conclusion in relation to the appellant’s credit. In particular he was not sure that he had been given an accurate account of the entirety of the appellant’s epileptic events, Nevertheless, having regard to the evidence, including medical evidence, his Honour made the following findings in relation to the appellant’s epilepsy, sleep apnoea and their relationship to the accident.

“The accused has epilepsy. Before 2nd May 2003 , even while regularly taking medication, the accused had had seizures, both nocturnal and daytime. The unchallenged evidence is therefore that there was a risk that he would have another seizure whilst driving, should he continue to drive.

From his teenage years, the accused has suffered from nocturnal seizures which have not been eliminated by any form of medication. He continued to suffer from nocturnal seizures up until 2 May 2003 . He was taking his medication regularly but the nocturnal seizures still occurred. The accused also has had a number of daytime seizures. His first appears to have been in a lift in North Sydney in 1970. He had one in 1986 whilst in uniform, 3 in early 1987 (exhibit T), one in 1991 (exhibit 1) and one in 1993 which led to a significant motor vehicle collision involving 4 cars. Thus in a period of about 7 years there is evidence of 6 daytime seizures . Dr Worthington's "concern" expressed in 2001 at the accused's failure to tell the RTA about his seizure disorder seems, in the light of subsequent events, to have been entirely justified. On the other hand there is no evidence of any daytime seizure between 1993 and 2003 although the nocturnal seizures continued.

I am not entirely sure that I have before me evidence of all of the daytime seizures suffered by the accused. After all, as the Crown points out, the accused may well have lied about the number of daytime seizures he suffered. Further some of the earlier seizures appear to have been "in the morning on waking' (see exhibit Q) - whether they are more accurately described as nocturnal or daytime I don't know because neither of the Doctors was asked. Nevertheless I will proceed on the basis that the accused's history of daytime seizures is accurately set out above - a number of such seizures up to 1993, but none between 1993 and 2003.

Of relevance also to the risk of a collision following a seizure whilst driving is the fact that, as the accused told Dr Somerville, he would have no warning of an approaching attack. It may be one thing in terms of objective dangerousness for a person to be driving where there is a risk of seizure which would be preceded by a significant period in which the person can tell that a seizure is about to develop, and a case such as the present where the attacks come without much, if any, warning.

Daytime Seizures After 2 May 2003

In the light of what I am about to now say it is important to remember that the issue I am presently considering is whether the accused's driving was objectively dangerous. His knowledge or otherwise of the level of risk that he presented to other road users is, at this stage, irrelevant.

There are 2 matters to which I have not yet referred which I have taken into account in assessing the objective dangerousness of the accused's driving on 2 May 2003. The 2 matters are related.

The first matter is that the evidence suggests that the accused was developing sleep apnoea leading up to the 2nd May 2003, and suffering from sleep apnoea that day. Dr Beran was asked:

‘Q. Is it possible that at the time prior to the accident that Mr Gillett was suffering from sleep apnoea if he was diagnosed later last year with that complaint?
A. Most definitely. But it was not diagnosed prior to it.’


The second matter to which I have yet to refer, clearly related to the first, is that the accused continued to have daytime seizures after 2 May 2003 (that evidence is to be found in Dr Beran's report exhibit 1)

The reason these events are related is that as Dr Beran said in oral evidence:

‘sleep deprivation is a well accepted provocateur for seizure’

and in his written report,

‘sleep apnoea... is also known as a trigger for exacerbating epilepsy.’

Dr Beran's evidence was:

‘Q. Is it your view that his sleep deprivation that he may have been experiencing at that time from sleep apnoea, could have triggered the change from nocturnal seizures to a daytime seizure?
A. Yes.’


Despite extensive tests, sleep apnoea is the only thing which Dr Beran has found which would have caused the accused to have a number of daytime seizures after 10 years of only nocturnal seizures. The accused has now been treated for sleep apnoea and has not had a seizure for over a year: I am therefore satisfied that, unbeknownst to him, the accused had sleep apnoea on 2 May 2003, and that this is what caused him to have the daytime seizure on 2 May 2003 and the ones which followed after the collision.

It is important to emphasise that I am here considering objective dangerousness. There is no evidence that the accused knew that he was developing sleep apnoea. It was not diagnosed until the accused underwent sleep studies as ordered by Dr Beran in the months after 2 May 2003, the results being finally confirmed by the repeat study performed on 6 August 2003. Whether the accused believed that it was dangerous for him to drive on 2 May 2003 must be assessed in the light of what he knew as at that date, not in the light of what subsequent investigations have revealed.

But I can see no reason that I should not take into account events after the 2nd May 2003 in deciding whether, assessed objectively, the driving of the accused on that day was dangerous. To use an analogy, if after one collision the same vehicle is involved in a series of further collisions, and later investigations reveal that the vehicle has faulty brakes, the events after the first collision can be considered in determining whether it was being driven dangerously at the time of the first collision.

In his final submissions, Mr Barber accepted the relevance, and indeed importance, of the accused's undiagnosed sleep apnoea and the daytime seizures after 2nd May 2003.

Thus in assessing the objective dangerousness of the accused's driving of the 2nd May 2003 I will take into account the 2 related circumstances I have just identified. They demonstrate the invalidity of an assessment of dangerousness based only on the accused’s history up to 2nd May 2003. The absence of evidence of daytime seizures for 10 years might suggest a low risk of further daytime seizures. But that risk is far from low when the accused's sleep apnoea is taken into account. The high risk that he would suffer a daytime seizure because of that condition is borne out by the fact that he had further daytime seizures after 2nd May 2003.

It is to be noted that Dr Beran's calculations as to the level of risk of the accused suffering a daytime seizure, on which Mr Barber heavily relied, do not take these circumstances into account. This is another reason that Dr Beran's conclusions were much less helpful than they might otherwise have been.

Another matter of relevance to the level of increased risk to other road users posed by the accused’s driving on 2nd May 2003 is Dr Somerville's evidence concerning the 1993 collisions. Dr Somerville said, in relation to that incident that:

‘Epileptic seizures within a given patient tend to be stereotyped from one attack to the next’

To summarise this part of my judgment, in deciding whether the accused was driving dangerously on 2nd May 2003 because of the risk that he would suffer a seizure I take into account in particular:

· Dr Somerville's uncontradicted evidence that because he was suffering from epilepsy there was an increased risk of him suffering a seizure whilst driving.

· Whilst taking medication the accused suffered nocturnal seizures up until 2nd May 2003.

· The accused suffered at least 6 daytime seizures even whilst taking his medication albeit that the last of these was 10 years before the 2nd May 2003.

· He would get little or no warning of an approaching attack.

· The medical evidence is clear as to the decreasing chance of a daytime seizure occurring as time passed without one.

· The daytime seizure in 1993 led to a significant motor vehicle collision and that seizures within a particular patient tend to be stereotyped from one attack to the next.

· On 2nd May 2003 the accused had undiagnosed sleep apnoea.

· After 2nd May 2003 the accused had further daytime seizures.

After considering the evidence on this issue carefully I am therefore satisfied that because of the accused's epilepsy, and more precisely because of the risk that he would suffer a seizure whilst driving, his driving in that condition shortly before he had a seizure on 2nd May 2003 made that driving a real danger to other people. The fact that the accused was driving whilst there was that risk of seizure, I am satisfied beyond reasonable doubt, subjected other people to a real, substantial and significant risk of injury or death over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions drive with less than due care and attention. As I have I hope made clear, I am satisfied that the risk, that is the risk of injury or death to other people, was far from speculative or fanciful.

The Crown has satisfied me beyond reasonable doubt that shortly before he suffered a seizure the accused was driving in a manner dangerous to other persons and for all three charges that particular element is thus satisfied.

11 There are five grounds of appeal:

Ground One: The learned trial judge erred in concluding that the fact that the appellant was driving his motor vehicle immediately prior to him suffering an epileptic seizure was, in a practical sense, the cause of the impact which caused the deaths. In doing so, his Honour equated the position of a driver who falls asleep at the wheel, and failed to have proper regard to the question whether an epileptic seizure effectively constitutes a “ novus actus interveniens ” for the purpose of assessing the question of causation.

Ground Two: The learned trial judge failed to adequately address the question whether it could be said, in the circumstances that existed, that there was objectively a “substantial risk” that the appellant would suffer an epileptic seizure whilst driving his motor vehicle at Manly Vale on the afternoon of 2 May 2003.

Ground Three: In determining whether the driving of the appellant immediately prior to suffering an epileptic seizure was objectively dangerous, the learned trial judge erred in taking into account the fact, which was not known to anybody at the time but only discovered after the impact, that the applicant was suffering from a condition known as sleep apnoea, a condition found to be the cause of his suffering an epileptic seizure.

Ground Four: The conclusion by the learned trial judge that the appellant himself believed that it was not safe for him to be driving on the afternoon of 2 May 2003, and that the fact of his driving was known to the appellant to constitute a danger to the public, was erroneous by reason of:
i. the failure to give any apparent weight to the fact that the evidence of the expert witnesses called to give evidence was unanimous in finding that they would have recommended to the appropriate authorities that the appellant should be allowed to have a licence to drive a motor vehicle.

ii. His Honour’s finding that the “best evidence of the accused’s belief on 2 May 2003 is to be found in the lies that he told to the RTA when renewing his licence” in the year 2000.

Ground Five: His Honour erred in refusing to admit into evidence the document “Assessing Fitness to Drive: Guidelines and Standards for Health Professionals in Australia” published jointly by Austroads and the National Road Transport Commission, as material relevant in the assessment of the objective dangerousness of the appellant’s conduct.

Grounds one and two - Causation

12 The trial judge considered the question of causation at [143] to [146] of his reasons for judgment. In so doing he applied the test provided by the High Court in Jiminez v the Queen (1992) 173 CLR 572. I have set out the relevant passages from his Honour’s reasons at [9] above.

13 Jiminez was a case in which an appellant fell asleep whilst driving. The High Court recognised that before the offence could be committed the relevant actions of an accused must be voluntary. Because a person who was asleep at the point of impact could not be said to be acting voluntarily a question arose as to whether or not a preceding period of driving could satisfy the relevant element of the offence. In concluding that the preceding period may be relevant the joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ at 578 approved the following passage in the judgment of King CJ in Kroon 52 A Crim R 15 at 18-19:

“Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other causes, responsible for his actions. If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care and may be driving in a manner dangerous to the public. If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury ( McBride v The Queen (1966) 115 CLR 44 at pp 47, 51, 52 per Barwick CJ) to be regarded as the cause of the death or bodily injury.
… The cases must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep.“

14 The joint judgment (at 581) emphasised that by reason of a conscious act of avoiding driving “a driver can avoid lapsing into sleep whereas a state of unconsciousness or involuntariness induced by an act which he cannot avoid is not capable of constituting an offence.” Their Honours identified that a state of epilepsy or being stung by a swarm of bees may be a state of involuntariness which an accused may have been unable to avoid. However, this may not always be the case. A person may have driven in circumstances where a risk which was previously apparent eventuates, causing them to lapse into unconsciousness and lose control of the vehicle. This may be the case for a person who suffers from epilepsy.

15 As I have indicated, the joint judgment in Jiminez emphasised that before there could be an offence the relevant driving must be voluntary, which in the present circumstances excludes the period when the appellant was overcome by the seizure. However, as with the person who falls asleep, the relevant inquiry is with respect to the period when the appellant was driving before the seizure occurred. For the offence to have been committed that period must “be sufficiently contemporaneous with the time of impact to satisfy the requirements of s 52A (and) the driving during that period must be, in a practical sense, the cause of the impact and the death” (p 578).

16 In the present case, the appellant was voluntarily driving his car immediately before the seizure and the collision. Furthermore, the appellant, by driving with an epileptic condition, which he knew about, and sleep apnoea of which he was unaware, was at risk of having a seizure which would cause him to lose control of his vehicle. In these circumstances his driving, at a time when he was suffering from the relevant condition, was the cause of the accident. Just as driving when tired is the cause of the accident when the driver falls asleep, driving with the appellant’s condition was relevantly the cause of the accidents and deaths when he suffered a seizure.

17 The appellant submitted that the trial judge’s reliance on Jiminez was misplaced. It was submitted that there is a “crucially significant difference between the driver who falls asleep and one who suffers an epileptic seizure.” The difference was said to be that a person who falls asleep will usually be given some indication of the onset of tiredness and will have some idea of the likely risk but an epileptic will not. Emphasis was given to the comment in Hill v Baxter [1958] 1 QB 277 at 283 where a stroke or an epileptic fit was described by Lord Goddard CJ as an “act of God” in contrast with falling asleep, a matter over which the driver at some earlier time would have control.

18 For my part I do not accept that there is a relevant distinction. Although prior warning may be relevant to the question of honest and reasonable mistake it is not relevant to whether the driving caused the accident. If a driver suffered a heart attack at the wheel followed by a loss of consciousness and an accident occurred, the cause of the accident would appropriately be described as having a heart attack whilst driving. Unless the driver was driving, the heart attack would be of no consequence to other road users.

19 The High Court did not elaborate in Jiminez on the principles which might be applied in determining when the mere fact of driving, in a real and practical sense, may have been found to cause the relevant impact and the deaths. However, the application of principles of causation in a criminal context was discussed by the High Court in Royall v The Queen (1990) 172 CLR 378, in which Toohey and Gaudron JJ stated at 423:

“In Campbell v The Queen , Burt CJ with whom Jones and Smith JJ concurred) expressed reservations about attempting to explain causation in the context of a charge of dangerous driving causing death. His Honour said:
‘It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.’
Burt CJ’s comments have much to commend them. In particular, there is little to be gained, but there is a risk of confusion, if the members of the jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased’s death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: Regina v Butcher ; Regina v McKinnon . In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death.”

20 Mason CJ (at 387), Deane and Dawson JJ (at 411-412) and McHugh J (at 440-441) also expressed the view in Royall that causation in criminal cases is to be approached by attributing legal responsibility for the relevant acts which were committed. It would follow that the mere fact of driving may be the real and practical cause of a fatal accident for which legal responsibility should be attributed to the driver.

21 In the present case the trial judge found that in a real and practical sense it was the voluntary driving of the appellant before the seizure occurred which caused the later fatal impact. His Honour said:

“Had it not been for the voluntary act of driving towards Manly Vale on 2 May 2003, his car would not have collided with the Howies’ car causing their deaths.”

22 The appellant submitted that by approaching the matter in this way his Honour applied a simplistic “but for” test of causation which could equally be applied to find criminal liability in the case of a driver who was struck with a stone or attacked by a swarm of bees or whose consciousness was affected by some other “act of God.” It was submitted that in the appellant’s case it was the epileptic seizure not the driving which caused the impact.

23 In my view this submission must be rejected. The present case was quite unlike the bee attack case where the swarm attacks without warning. In the present case the danger arose from driving with a medical condition which had an inherent capacity to bring about a seizure. This was a voluntary act which carried a risk over and above that normally associated with driving a motor vehicle.

Ground three - Objective dangerousness

24 The trial judge accepted that although the appellant had suffered nocturnal epileptic events, he had not had a daytime seizure prior to the accident since 1993 – a period of ten years. The medical evidence indicated that the trigger for the seizure which occurred in 2003 was the appellant’s lack of appropriate sleep due to his sleep apnoea which had not been diagnosed and of which he was not aware. Sleep deprivation is a known initiator of epileptic seizure.

25 The appellant accepted that he was aware of his susceptibility to epileptic seizure. However, he submitted that he could not be found to have driven in a manner which was objectively dangerous when he was not aware of his heightened potential to an epileptic seizure, which was a result of his sleep apnoea.

26 In my opinion the approach which the appellant urges to the resolution of this issue is contrary to the decision in Jiminez. Although the High Court adopt with apparent approval the statement of King CJ in Kroon, where the Chief Justice speaks of knowledge in the driver of a risk of falling asleep, prior knowledge is not an essential element of the offence. The essential element which the joint judgment identified as required before the offence can be committed was some feature which subjects the public to a risk over and above that ordinarily associated with driving a motor vehicle. Their Honours said (at 580):

“For the driving to be dangerous for the purposes of s 52A there must be some feature which is identified not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention. Although a course of conduct is involved it need not take place over any considerable period.
Nor need the conduct manifest itself in the physical behaviour of the vehicle. If the driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, including the occupants of the motor vehicle, then his driving in that condition constitutes driving in a manner dangerous to the public. In some way, driving a motor vehicle in a seriously defective condition may constitute driving in a manner dangerous to the public, even though the defect does not manifest itself until such time as the vehicle is out of the control of the driver. But it should be emphasised, and it must always be brought to the attention of the jury, that the condition of a driver must amount to something other than a lack of due care before it can support a finding of driving in a manner dangerous to the public. Driving in that condition must constitute a real danger to the public (see McBride v The Queen (1966) 115 CLR at 49-40)
…
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public.”

27 The relevant question is whether the manner of driving, the condition of the vehicle, or the condition of the driver as a matter of objective fact made the driving a danger to the public. The answer to that question will depend upon the facts of the case. But whether or not the driver believed their driving was dangerous or the condition of the vehicle or their own condition represented a danger is not relevant other than when examining whether the driver had a relevant honest and reasonable belief.

28 To my mind the trial judge approached this aspect of the matter correctly. His conclusion that driving with an epileptic condition accompanied by sleep deprivation as a result of sleep apnoea subjected the public to a risk over and above that ordinarily created was both open and correct.

29 Medical evidence was tendered at the trial which suggested that if the appellant had been examined to determine whether, notwithstanding the history of epileptic seizure, he was fit to drive he may have been certified fit. It is not clear whether the assessment would have enabled the doctor carrying it out to identify that the appellant had the complicating condition of sleep apnoea. Without that complication, the appropriate conclusion may have been that, although the appellant had a history of epileptic seizure, his medication and subsequent history indicated that the risk was below the threshold which responsible medical opinion assessed as being acceptable to the community. There will always be a risk that a driver will, by reason of a natural event over which they have no control, cause an accident and hurt or kill others. The community accepts that risk and only if the actual risk created by the driver is greater than that ordinarily associated with driving a motor vehicle will an offence be committed. In the appellant’s case the presence of the additional condition of sleep apnoea created a risk which the evidence confirmed the community would not accept. Persons suffering from epilepsy who have been deprived of sleep from whatever cause, including sleep apnoea, have such a risk of a seizure that they should not drive.

Ground four - Subjective dangerousness

30 The trial judge considered this issue at [183] to [208] where he said

“We now come to the next issue under this third way that the Crown presents its case, which is whether the Crown has proved beyond reasonable doubt that the accused did not believe on reasonable grounds that his driving subjected another person or persons to a real, substantial and significant risk over and above that associated with the driving of a motor vehicle including driving by people who may, on occasions, drive with less than due care and attention. The risk I am speaking of here is again not some fanciful risk, but so serious a risk as to be in reality, and not merely as a matter of speculation, potentially dangerous to other people on or near the road.
It is enough if the Crown proves beyond reasonable doubt that the accused did not have that belief. If it does so then the question as to the reasonableness of that belief does not arise.
At the risk of over-repetition, when considering what the accused actually believed I must ignore anything which the accused did not know. On 2nd May 2003 he did not know he was suffering from sleep apnoea. He thus did not know of the increased risk of him suffering a daytime seizure as a result of his sleep apnoea.
The Accused's Attitude to his Driving .
The accused gave evidence that he thought it was safe for him to drive in the time leading up to May 2003. Just what the accused meant by the word "safe" was not explored by Mr Barber so the accused's answer has that limitation in assessing whether the accused's belief as to safety was the same as the test I have to apply.
A further problem with the accused's evidence is that he is, as I have explained, a man whose credibility I find difficult to accept when it comes to important issues in this case.
Part of the reason the accused said that he thought it was safe for him to drive in 2003 was that he did not believe, although he now accepts, that the 1993 collision was caused by him having a seizure. I do not accept that. The accused described the incident this way. He said the last thing he remembered was driving past Warringah Mall with the next thing he remembered being getting out of the car after the accident had occurred. He said that until this trial started he believed the collision was caused by him bending over to change a cassette and thus taking his eyes off the road.

I reject the accused's evidence that the conclusion that his 1993 collision was due to him suffering a seizure only became apparent to him after this trial started. Whilst his explanation that he was changing a cassette may account for a collision it would not explain his loss of memory. Although Dr Beran suggested that often in motor vehicle collisions people lose consciousness and therefore suffer a loss of memory, the accused did not suggest that he had formed the view that his loss of memory occurred that way. In any case there is no evidence of the accused losing consciousness as a result of the collision, and in fact the evidence of the accused's behaviour immediately after the last of the collisions suggests to the contrary.
It must be remembered that the accused suffered a loss of memory as a result of the seizure in 1986 (the matter which prompted him to go off to see Dr Beran in the first place). We also know that he was having daytime seizures early in 1987 and a seizure in 1991. I am satisfied therefore that the accused could not have genuinely believed that his collision in 1993 was unrelated to his epilepsy.
The accused was asked in cross examination about a statement which exhibit 1 suggests was made to Dr Beran concerning the accused's history of daytime seizures. Dr Beran's report says that the accused and his wife were adamant that he had suffered no daytime seizures since 1991. When the accused was asked about this statement in cross examination he said that it was possible that when he had told Dr Beran this he meant 1993 instead of 1991. When pressed, the accused realised that this could not be the case if what he had said about when he first thought that the 1993 crash was the result of a seizure was true, but at no time, despite being given the opportunity, did he satisfactorily explain how he could have meant 1993 when he apparently said 1991. This is significant because it tends to suggest that when the accused saw Dr Beran early in 2004 he, that is the accused, was of the view that the 1993 collision was caused by a seizure. Only if that were the case could the accused have given the evidence he did before me as to the possibility of confusion between 1991 and 1993.
Thus l conclude, and I am satisfied beyond reasonable doubt, that the accused knew at the time of the 1993 collision or very soon afterwards, that he had had a seizure and that this had led to a collision involving 4 cars.
That finding is significant because after the 1993 incident the accused renewed his licence. Almost exactly 2 years later, on the 14th August 1995 the accused filled in his licence renewal form and denied that he had epilepsy. When asked by Mr Barber why he had said no to the appropriate question, he said that he "felt that the drugs were controlling me perfectly'. However he had not changed his medication between 1993 and 1995 and being aware, as I have found, that the 1993 collision resulted from him having a seizure, the lie told to the RTA on the 14th August 1995 cannot be justified in the way the accused attempted to. Even if, contrary to my finding, the accused did not attribute the 1993 collision to a seizure he still knew of seizures in 1986, and 1987.
The accused at no stage believed that compliance with his medication meant that he would not have a seizure. He said that Tegretol which he was put on after seeing Dr Beran following the incident in 1986 reduced the chance of him having a seizure "a hell of a lot", but in light of his history of daytime seizures after taking the medication, he could not have "felt that the drugs were controlling me perfectly' as he said in evidence in an attempt to justify his lie to the RTA in 1995.
In Jiminez v The Queen (1992) 173 CLR 572 at 583, it is suggested that the inference that a person believed that it was safe to drive might be drawn from the very fact of his driving. It is true that in an appropriate case the very fact that an accused drove could suggest his belief as to the lack of dangerousness of that conduct. After all one of the persons put at risk by this accused's driving was the accused himself. However in the circumstances of this case, it is not possible to draw the conclusion that the accused believed it was not dangerous for him to drive from the fact that he continued to drive for reasons I will now explain.
Exhibit T was a letter which Dr Beran wrote to the accused's general practitioner in early 1987. It refers to 3 daytime seizures occurring a short time earlier. Although in Court Dr Beran expressed the opinion that he would have hoped that he would have told the accused not to drive, there was no evidence that he had. Nevertheless when the accused saw Dr Beran in early 1987 he knew, because he told the Doctor, that he had three daytime seizures shortly before. Did the accused stop driving, recognising that 3 daytime seizures presented a risk of catastrophe if he had a seizure whilst driving? Well there was no evidence that he stopped driving, and positive evidence that he did not. The positive evidence to which I refer is to be found in the accused's traffic record tendered by the Crown at the request of Mr Barber. It reveals that the accused was charged by way of traffic infringement notice for negligent driving on 1st May 1987.
That the accused was driving on 1st May 1987, after having 3 daytime seizures earlier that year, (and the earlier daytime seizure in 1986 which got him going to Dr Beran in the first place), speaks eloquently of the accused's attitude towards the risks he was prepared to take. It means that the inference that the accused could not have believed it was dangerous for him to drive at the relevant time, because he would not have risked his own safety, cannot be drawn. When the accused's driving history is compared to his seizure history, that submission is not open.
Lies to the RTA
The best evidence of the accused's belief on 2 May 2003 is to be found in the lies he told to the RTA when renewing his licence.
Exhibit J, which contains licence renewal applications made by the accused in 1995 and 2000 indicates that the accused could not have believed that it was safe for him to drive, (again using the word safe in the sense I earlier indicated). If he had had that belief he would have answered "yes" to the question "have you had any type of epilepsy”.
I appreciate that the state of mind of the accused on the 29th July 2000 when he last applied for his licence to be renewed is not necessarily the same as the state of mind of the accused on the 2nd May 2003. I have therefore carefully considered the evidence of the accused's repeated denials of epilepsy to both the Roads and Traffic Authority and his employer as well as the accused's medical history. I am satisfied that there was no significant difference between the state of the accused's mind on 29th July 2000 when he last lied to the RTA in order to renew his licence and 2nd May 2003.
I have considered whether there are other explanations for the lies to the RTA, such as them suggesting merely that the accused was afraid that his licence would be unfairly taken away if he told the truth. Although the lies told to the RTA are direct evidence of a fear that he would not have his licence renewed if he told the truth, when considered in conjunction with his knowledge of his medical history they are also indirect, but nevertheless powerful, evidence as to the accused's knowledge that there was a real risk of him suffering a seizure whilst driving. Notwithstanding the accused's occasional denials of daytime seizures, the accused had had such seizures in the past. He was aware that he continued to have nocturnal seizures. I am satisfied he knew that there was a real risk he would suffer another daytime seizure and, given that he continued to drive, this could well be whilst he was driving. That explains why he lied to the RTA.
The accused was not afraid of his licence being unfairly taken away if he told the truth - he was afraid that if he disclosed that he suffered from epilepsy, any subsequent investigation by the RTA, undertaken by them before deciding whether or not to renew his licence, would reveal his true medical state. The accused knew that this would have gone beyond the simple fact of his epilepsy. He knew that the investigations would have revealed the history of his seizures, their frequency, their effects upon him, the fact that they came upon him without warning, the fact that medication had not prevented them, and probably more as well.
The accused did not lie to the RTA because he was afraid of his licence being unfairly taken away. I am satisfied beyond reasonable doubt that he lied because he knew that telling the truth would have led to the disclosure of the real risk that he would suffer a seizure while driving. The accused knew about that risk but he wanted to keep it a secret from the RTA.
The accused at times suggested that he lied because of social stigma faced by epileptics. That may explain his lies to the Navy, but it does not explain his lies to the RTA. He lied to the RTA because he was afraid that if he told them the truth his licence would be taken away, and properly so. His lies to the RTA were connected with his lies to the Navy because if he lost his licence he would have to explain to his employer why he could not drive any more. But it is precisely that connection which demonstrates yet again that the lies to the RTA were told because the accused feared that the truth would lead to investigations which in turn would have revealed that he should not be licensed to drive.
The fact that the accused's seizures would come upon him without warning was, as I have indicated, relevant to the objective test of dangerousness. It is also relevant to whether the accused believed that it was not dangerous for him to drive. The accused was aware that when he suffered a daytime seizure it came upon him unannounced. The accused knew therefore that if he suffered a seizure whilst driving he could do little if anything to avoid the consequence that the car he was driving would continue out of effective control whilst the seizure ran its course.
Of course the absence of any evidence that the accused had a daytime seizure for 10 years, and was taking his medication, which was of an appropriate dose, tends to suggest a belief on the part of the accused that it was not dangerous for him to drive. However that evidence has to be looked at in the light of the accused's repeated lies to the RTA. That is the best evidence of what the accused believed as to the risks he posed as a driver who suffered from epilepsy. Whilst the significant period of time which has elapsed since his last daytime seizure in 1993 is something I have certainly taken into account in assessing the accused's belief in 2003, in the light of the accused's lies when renewing his driver's licence, repeated lies which he told to avoid an investigation into his safety as a driver, I am satisfied that the accused did not believe that his driving was not dangerous.
I am satisfied beyond reasonable doubt that the accused did not believe that it was safe for him to drive. I am satisfied that immediately before suffering a seizure on 2nd May 2003 the accused knew that he represented a danger to other road users. I am satisfied beyond reasonable doubt that the accused knew that he presented such a risk, that it was not some fanciful risk but so serious a risk as to be in reality, and not merely as a matter of speculation, dangerous to other people on or near the road.
In these circumstances it does not matter whether the accused's belief was reasonable or not.”

31 The appellant claimed that his Honour erred for two reasons which were stated as follows:

(i) his Honour’s conclusion that the appellant must have lied to the RTA about his medical condition because he believed it rendered him unfit to drive, was “illogical and wrong”; and

(ii) his Honour engaged in circular reasoning in the sense discussed by Hunt CJ at CL in Mercer v Regina (1993) 67 A Crim R 91 at 98 and Zheng v Regina (1995) 83 A Crim R 572 at 576.

32 The appellant’s fundamental submission, both in writing and orally, was that it was impermissible for his Honour to reason that because the appellant had lied to the RTA when applying to renew his licence on three occasions, he knew on 2 May 2003 he was driving in a manner dangerous to the public. To my mind this submission fails to recognise the actual reasoning process by which his Honour came to his conclusion. That process went beyond the fact that the appellant had lied.

33 Essential to his Honour’s reasoning is the following exchange when the appellant was cross-examined:

“Q: And why in 1990 did you fill out the form incorrectly?
A. Because of the reason I gave you before because of social stigma attached to it and the fact that I was on the proper drugs according to a specialist and a GP.
HIS HONOUR: Q. Would you say reduces the chances of you having a seizure?
A. Which, well in my opinion had gotten rid of the chance to have a daytime seizure, I was feeling so well and if anything it was just stopped those seizures to one every whatever it is, 12 months et cetera, to night-time nocturnal seizures.
CROWN PROSECUTOR: Q. During this period of time you were suffering night-time seizures every 6 to 12 months weren’t you?
A. That’s right that’s true.
Q. Didn’t you think that was to answer correctly and truthfully was important to tell the authorities of that particular situation?
A. Now I look back on it yes.
Q. I’m talking about when you filled it out?
A. Well I suppose yes, yes.
Q. What do you mean you suppose yes?
A. As I said to you before, that was I gave you two reasons why I didn’t fill it out was the social stigma attached, the fact that I was taking the correct drugs which limited seizures to night-time very occasional seizures, very occasional seizures.
Q. Just have a look at that form 14 August 1995, where is there a question there ‘If I’m taking my medication I don’t answer the form correctly and truthfully’?
A. There isn’t any.
Q. See I suggest that you lie, you have problems with that word, but you lie when you see there’s some advantage to yourself don’t you?
A. I don’t know what great advantage I got from not ticking the box.
Q. The great advantage you got was that you got a licence where the possibility of not getting a licence if you’d answered correctly wasn’t it?
A. Yes but my seizures were nocturnal and, sorry, one more thing please, no doctor, I repeat, had ever said ‘stop driving’ and I had been to doctors regularly. I hid nothing from the doctors.
HIS HONOUR: Q. What’s avoided I suppose was an investigation is that right Mr Gillett?
A. Well I – I’d never considered – thought about it along those lines but I suppose deep down that’s what I was worried about.
CROWN PROSECUTOR: Q. It’s the only conclusion isn’t it?
A. Most probably yes.”

34 From this exchange it is apparent that the appellant had two reasons for lying. The first was the social stigma which he perceived to be associated with epilepsy and the second was his concern that if he told the truth there would be an inquiry.

35 The trial judge’s reasoning process had a number of steps. It was plain that the appellant had lied to the RTA about his medical condition. His Honour, as was open to him, concluded that he lied out of a concern that there may be an inquiry as a result of which his licence may be taken away for the reason that, with his condition, it was dangerous for him to drive. Although the final step in that reasoning process depended upon drawing the relevant inference, there was more than sufficient evidence supporting his Honour’s conclusion.

36 The trial judge found that the appellant knew that he had a seizure whilst driving in 1993 when he caused a multiple motor vehicle accident. There was also evidence that the appellant drove on 1 May 1987 (when he was charged with negligent driving) after having had three daytime fits already that year and one in the preceding year. Furthermore, his Honour was entitled, as he did, to reject the appellant’s assertion that by taking his medication he believed that he would not have a seizure. Although the Tegretol helped him he had experienced daytime seizures when medicated in circumstances where, when driving, he could do little if anything to avoid an accident.

37 To my mind the submission that his Honour’s reasoning was circular must be rejected. The appellant admitted that he lied to the RTA for the reason that he feared an inquiry. His Honour otherwise concluded from the lies told to the RTA and the appellant’s own admission that the appellant would lie to his advantage and that he was a witness whose credibility was seriously impaired.

38 When considering whether the appellant should be accepted in both his assertion that he was not aware that the 1993 accident was due to a seizure and that he held the relevant belief, when driving in 2003, his Honour was entitled to have regard to his credibility. This was not the process of circular reasoning discussed by Hunt CJ at CL in Mercer v Regina (1993) 67 A Crim R 91 at 98. There was no issue as to whether the appellant had lied to the RTA. He admitted those lies and that he had lied on other occasions.

39 In my opinion his Honour was correct to find that the appellant did not believe that his driving was not dangerous.

Austroads publication: “Assessing Fitness to Drive”

40 The appellant’s counsel sought to tender at the trial an Austroads publication which discussed appropriate medical standards for licensing both commercial and private vehicles users. The document, which is a publication of the National Road and Transport Commission, is entitled “Guidelines and Standards for Health Professionals in Australia.” Defence counsel submitted that the publication was relevant in determining the question whether the conduct of the appellant in driving was objectively dangerous.

41 To my mind the document was relevant to the question of dangerousness and should have been admitted into evidence. His Honour was required to consider whether the driving of the appellant was dangerous having regard to the risk ordinarily associated with the driving of a motor vehicle. An element of that risk is that there will be other drivers on the road, who, although they have a known medical condition, have been certified as safe to drive. The standards which are adopted for that certification may be relevant to an identification of the level of risk which the community is prepared to accept.

42 However, if it had been admitted the publication would have been of little utility except to assist the Crown case. Apart from criticisms of the document made in evidence by Dr Somerville, who said that the figures were “pretty rubbery”, the publication expressly provides that for a person who has had a seizure causing an accident the minimum period during which they should not drive is one year. However, it is also states that “Consultant opinion essential.” In the present case such an opinion was not obtained. It would be reasonable to infer that if it had been sought the appellant’s sleeping pattern and level of tiredness would have been investigated. As the publication acknowledges if deprived of sleep a person suffering from epilepsy should not drive. This was the very condition from which the appellant was suffering and the publication, accordingly, confirms that by driving in his condition the appellant’s driving posed an unacceptable level of risk to fellow road users.

43 For these reasons the appeal against conviction must be dismissed.

Application for leave to appeal against sentence

44 The applicant seeks leave to appeal against sentence on the following five grounds:

Ground one: The individual sentences imposed on the applicant were manifestly excessive having regard to the objective criminality of his conduct.

Ground two: The total sentence imposed was manifestly excessive having regard to the partial accumulation of his individual sentences.

Ground three: There was a “notable absence” of many of the aggravating factors recognised in R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252.

Ground four: The trial judge made internally inconsistent findings of fact when assessing the appellant’s moral culpability.

Ground five: The trial judge erred in concluding that the appellant had been driving dangerously for an “extraordinary period of time.”

45 This Court considered appropriate sentences for offences under s 52A of the Crimes Act 1900 in Whyte. In his judgment Spigelman CJ, with whom the other members of the court agreed, made plain that even in the absence of any intention to cause injury the Parliament had made clear that an offence under s 52A is a serious crime. Critical to the determination of the appropriate sentence is the moral culpability of the driver.

46 In the present case the sentencing judge gave careful attention to the appellant’s moral culpability. He determined that it was reduced by the fact that he did not know that he had sleep apnoea although he was aware of his epilepsy. However, although his ignorance of his sleep apnoea diminished his moral culpability there were factors which his Honour identified as significantly increasing it. They included the fact that the appellant had repeatedly lied to the RTA; the fact that he had not sought advice as to whether it was safe for him to drive; the fact that in August 2001 Dr Worthington had warned him about the risks he represented but he nevertheless continued to drive; the fact that he knew that his epileptic seizures came upon him without warning and he would be unable to avoid losing control of his car; the fact that he knew that he had had an epileptic seizure whilst driving in 1993 which resulted in a collision between his car and two other cars, the fact that he had driven for ten years knowing that he represented a risk to the community and finally the fact that he had lied out of a desire to keep driving, notwithstanding the possibility that he may have a seizure which caused an accident in which other persons might be injured or killed.

47 Having regard to all of these matters his Honour concluded that the moral culpability of the appellant was “very high indeed.” In my opinion not only was this finding open to his Honour but it was undoubtedly correct. Where, as in the present case, a person takes control of a motor vehicle in circumstances where they know they represent a real risk to others and it is a risk over which they have no control, they must expect that, if the risk materialises, the penalty which will be imposed will reflect the fact that their offending had a high degree of criminality. A licence to drive a motor vehicle is a privilege which carries with it significant obligations. Those obligations require the driver to not only drive safely on the road but also to ensure that by reason of their physical health and capacity they do not endanger the lives of others. If that obligation is not met and injury or death is occasioned to others, a severe penalty will be appropriate in most cases. Every user of the road accepts a risk of injury or death. Those risks are only acceptable if other users of the road do what they can to minimise or avoid identifiable risks.

48 His Honour partially accumulated the individual sentences. He took this course in recognition of the fact that, although there was only one event, three lives were lost because of the appellant’s conduct. Complaint is made that his Honour did not give adequate reasons for making the sentences cumulative. In the circumstances of this case I am satisfied that little explanation was required. In R v Price [2004] NSWCCA 186 Simpson and Howie JJ said that it would be a rare case where sentences for multiple offences of dangerous driving causing death could be made wholly concurrent. Their Honours said that:

“The fact that more than one person is killed means that the criminality will not usually be sufficiently comprehended by a sentence that is appropriate for a single offence.” [49]

49 In the present case, as the appellant acknowledged, the trial judge had great experience in the criminal law. It does not seem to me, having regard to the clear statement by this Court in Price, that his Honour was required to provide detailed reasons for his decision to partially accumulate the individual sentences. In my opinion the accumulation which his Honour provided in relation to the second and third counts was within the appropriate ambit of his sentencing discretion and error has not been revealed (see R v Plumb [2003] NSWCCA 359).

50 The appellant asserted that in this case there was a notable absence of many of the aggravating factors recognised by this Court in Jurisic and Whyte. However, it must also be recognised that the present case had few of the characteristics identified in Whyte at [204] as arising in a “frequently recurring case.” The appellant was not a young offender at the time of the accident – he was 49 years old. Although he had no prior convictions and was of good character in one part of his life, he acted dishonestly and criminally in another part of his life. The accident resulted in the deaths of three people. Furthermore, the appellant was not entitled to the leniency which might have been afforded him if he had entered a guilty plea, and his Honour found that he did not have genuine remorse (see [41]-[42] of his Honour’s remarks). These factors made the appellant’s case more serious than the typical case described in Whyte.

51 The appellant complains that in his remarks on sentence his Honour did not set out the principles in Jurisic and Whyte. However, it must be remembered that his Honour was engaged in a sentencing exercise, where detailed analysis of prior decisions is not necessary. His Honour’s remarks on sentence were faithful to the relevant principles. This was all that was required.

52 The appellant submitted that the trial judge made internally inconsistent findings of fact in concluding, at [4] of his remarks on sentence, that the appellant did not believe that it was safe for him to drive and concluding, at [20], that the appellant did not fully appreciate the level of risk that he represented to other road users. The appellant contended that because he did not fully appreciate the level of risk he represented, as he was not aware of his sleep apnoea, his moral culpability was “significantly diminished” and at least diminished to a point considerably below the level of culpability which would attract a sentence of seven years imprisonment.

53 In my opinion the alleged inconsistency is not present. His Honour found that the appellant was aware that it was risky for him to drive although he did not fully appreciate the level of that risk. To the extent that he did not appreciate the level of risk his Honour included that fact in his assessment of the appellant’s moral culpability.

54 Finally, it was submitted that the trial judge erred by having regard to the fact that the appellant had driven dangerously over a prolonged period. As I understand his Honour’s remarks, his purpose was to contrast the fact that the appellant had driven for many years whilst aware of his epilepsy and must have driven for a significant period with the added risk created by his sleep apnoea, with the circumstances of a person who drives dangerously for only a short time and may be inattentive for “mere moments.”

55 If, as may be the case, his Honour concluded that he had relevantly offended over a lengthy period, this would be an error. However, although the relevant offence was confined to the driving of the motor vehicle in the period immediately before the appellant’s epileptic seizure, the fact that he chose to drive, having on successive occasions over many years taken steps to secrete his potential difficulties from the authorities, was relevant to the determination of his level of criminality. If error has occurred, in my opinion, it has not resulted in a sentence which was outside the appropriate range of penalty for these offences and I am satisfied that no other sentence was warranted in law.

56 The following orders should be made:

1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence but dismiss the appeal.

57 SULLY J: I agree with McClellan CJ at CL.

58 HISLOP J: I agree with McClellan CJ at CL.

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06/12/2006 - Incorrect judge named - should be Hislop J not Hoeben J - Paragraph(s) 58