James Stephen O'Connor v The Queen

[1992] SASC 3591

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE(1), MOHR(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - particular offences driving offences - Appeal against sentence - Driving without due care or attention - Causing grevious bodily harm to passenger - License disqualification reasonable - Penalty not manifestly excessive. Mccormack v The Queen (No. 894 of 1990) unreported. Delivered 6/6/1991. Judgment No. 2883. and The Queen v Teremoana (1990) 54 SASR 30, applied.

HRNG ADELAIDE, 18 August 1992 #DATE 18:8:1992
Counsel for appellant:     Mr B Harradine
Solicitors for appellant:    Harradine and Associates
Counsel for respondent:     Mr P J L Rofe QC
Solicitors for respondent: Director of Public Prosecutions

ORDER
Appeal dismissed.

JUDGE1 LEGOE J This is an appeal against sentence. The charge contained in the information was that the appellant on 1 January 1990 near Meadows drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Terrence John Stone. Stone was the owner of the vehicle and the passenger at the time of driving. 2. After a considerable amount of evidence and a very thorough summing up, and no doubt addresses from counsel which were referred to by the learned trial judge, the verdict of the jury was, on the charge as laid of causing bodily harm by dangerous driving, not guilty. On the alternative charge of driving in a manner dangerous to the public, not guilty, and on the final alternative of driving without due care or attention, guilty. It was on this verdict that the learned judge had to sentence the appellant. 3. There are three grounds of appeal. I will deal first with grounds 2 and 3 and come back to ground 1. By ground 2 the appellant complains that the learned sentencing judge erred in having regard to facts which were rejected by the jury or which were not found proved by the jury. Counsel for the appellant has drawn our attention to a number of passages in the summing up of the learned trial judge. He submitted that the directions on the law and the summary of the facts that were given to the jury was inconsistent with the sentencing remarks which appear on p.57 of the appeal book. Sentence was passed immediately after submissions as to penalty had been put to His Honour at the conclusion of the trial on the 3rd June 1992. His Honour said this:-
    "On the evidence which I have heard in this trial, and
    having taken into account the submissions of counsel, I find it
    proved beyond reasonable doubt that you overcorrected the
    steering of the car when it started to move to its right after
    you commenced to brake and that any action by Terry Stone in
    grabbing the wheel didn't occur until after you had already put
    the vehicle on a course which would take it off the bitumen and
into collision with the tree." 4. There was ample evidence for the learned sentencing judge to make this assessment of the very lengthy evidence which His Honour had heard over the previous five or six days, and the extensive matters which he had referred to in the course of his summing up. I do not see any inconsistency in either His Honour's remarks in summing up insofar as he was commenting on the facts, nor in his direction as to the alternative of driving without due care, which was the ultimate verdict of the jury, nor has it been suggested that this, in any way, conflicted with the evidence including, in my opinion, the reference that we have been given to the police plan showing the direction and length and overall pattern of the skid marks which were left on the road combined with the photographs in the exhibit which has been shown to us. Accordingly in my view ground 2 fails. 5. Turning to ground 3, the appellant complains that the learned sentencing judge erred in having regard to injuries received by a passenger when determining penalty. In the matter of McCormack v. The Queen, Court of Criminal Appeal (No. 894 of 1990) unreported judgment delivered on 6 June 1991 in judgment no.2883.1 in the reasons of the learned Chief Justice, referred to the submissions of counsel for the appellant in that case on pp.1 and 2. The appellant had been convicted on an information which was laid pursuant to s.19(6) of the Criminal Law Consolidation Act which was the same as this case. The appellant in the case of McCormack had been found not guilty of the charge as laid, but guilty of driving without due care and attention, identical with the case at bar. Counsel for the appellant had submitted to the Court of Criminal Appeal in this case that the sentencing judge was in error in allowing the fact that death resulted from the appellant's driving to influence the penalty imposed. 6. In the case at bar, the passenger suffered as a result of the impact, very severe injuries which resulted in permanent brain damage. (see p.56 of the appeal book and the remarks of the learned sentencing judge.) In the matter of McCormack, the learned Chief Justice referred to two cases decided in this court relating to the question of the extent to which and the circumstances in which the consequence of crime may be taken into account in assessing penalty. His Honour went on to say that the principles discussed in those cases and in a further case of the Queen v. Teremoana (1990) 54 SASR p 30 especially at pp 36 to 39, fully justify a judge sentencing for an offence of driving without due care having regard to the fact that that driving has caused death, bodily injury or other damage. His Honour went on to point out this is confirmed by s.10(e) of the Criminal Law Sentencing Act of 1988 and His Honour quotes that section. 7. He also pointed out that it would not be relevant in applying that sub-section in the Sentencing Act as a general rule if the consequences sought to be taken into account did not make the conduct a different and more serious crime. He concluded by saying:- "I think that the learned sentencing judge acted correctly in having regard to the fact of the appellant's driving caused a death." 8. It is not suggested by counsel in this case, nor in my opinion could it be, that there is any difference when the consequences of the driving without due care are serious bodily injury as the evidence disclosed here. The learned sentencing judge pointed out in his remarks on penalty that there was permanent brain damage to the passenger Stone. 9. For these reasons I am of the opinion that ground 3 fails too as the decision in McCormack clearly supports the view of the learned sentencing Judge that I have expressed. 10. Finally ground 1 states that the period of licence disqualification imposed by the learned sentencing judge is manifestly excessive in all the circumstances, I have already referred to the passage at p.57 in the appeal book where the learned sentencing judge gave his interpretation of the verdict of the jury of driving without due care. I note that in the following paragraph His Honour said and this has not been challenged in any way in this appeal that:-
    "I find it proved that your blood alcohol content at
    the time meant that your reactions were sufficiently slow; that
    you were not able to properly control the car in the
    circumstances. Those findings are consistent with the jury's
    verdict." 11. As my brother Mohr J pointed out during the course of argument, the most favourable view of the driving in this case was that having consumed alcohol, the appellant drove this vehicle with which he was not familiar, (it wasn't his vehicle), at a high rate of speed, that the vehicle got out of control and that he then applied the brakes which caused the vehicle to skid over a long distance and whether the passenger, the victim in this case, Mr Stone grabbed the wheel or not, the vehicle almost instantaneously during the course of that long skid, which was first a swerve to the right and then to the left, resulted in a violent impact with a large gum tree, which, of course, as stated earlier led to the dreadful injuries of the passenger. 12. Counsel for the Crown has pointed out and stated that the 9 months' licence disqualification was within the reasonable bounds of the penalty for this type of offence and that if this court were to dismiss the appeal, he would undertake to withdraw the charges which are presently standing in the court of summary jurisdiction. The court has noted this undertaking from the Crown. 13. In all the circumstances, I am of the opinion that the learned sentencing judge has not been shown to have exceeded the reasonable licence disqualification for this type of offence. 14. I should have added earlier that Mr Harradine does not suggest that the fine of $200 was in any way excessive and as my brother Duggan J pointed out, this fine was clearly reduced so as to come within the means of the appellant who was obviously on very narrow financial limits as far as his ability to pay a fine is concerned and, therefore, the penalty, as a whole, should be looked at and, in my opinion, it has not been demonstrated, in any way, to be manifestly excessive. 15. For these reasons, I would dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 DUGGAN J I agree.