R v Bailey

[2001] NSWCCA 10

Reported Decision: (2001) 336 MVR 189

New South Wales

Court of Criminal Appeal

CITATION:	R v Bailey [2001] NSWCCA 10
FILE NUMBER(S):	CCA 60603/99
HEARING DATE(S):	30 November 2000
JUDGMENT DATE:	14 February 2001
PARTIES :	Regina (NSW) (Respondent) Paul Wayne Bailey (Appellant/Applicant)
JUDGMENT OF:	Wood CJ at CL at 1; Dunford J at 2; Carruthers AJ at 54

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0887
LOWER COURT JUDICIAL OFFICER :	Downs ADCJ

COUNSEL :	WG Dawe QC (Crown) SJ Odgers (Applicant) (severity appeal) In person (Appellant) (conviction appeal)
SOLICITORS:	SE O'Connor (Crown) Murphy's Lawyers Inc (Appellant)
CATCHWORDS:	CRIMINAL LAW - dangerous driving causing death - summing up - need for trial judge to specify the matters relied on as constituting dangerous driving - CRIMINAL LAW - sentencing - dangerous driving causing death
LEGISLATION CITED:	Crimes Act 1900, s 52A(1)(c) Crimes (Sentencing Procedure) Act 1999, s 44(2)
CASES CITED:	R v Oliva (1965) 49 Cr App R 298 Jiminez v the Queen (1992) 173 CLR 572 R v Hain (1966) 85 WN (Pt 1) (NSW) 7 Fleming v R [1998] HCA 68, 197 CLR 250 R v Giam [1999] NSWCCA 53, 104 A Crim R 416 M v The Queen (1994) 181 CLR 487 Alford v Magee (1952) 85 CLR 437 R v Zorad (1990) 19 NSWLR 91 R v Tillott (1991) 53 A Crim R 46 R v Jurisic (1998) 45 NSWLR 209 R v Howland [1999] NSWCCA 10, 104 A Crim R 273 R v Carrion [2000] NSWCCA 191, 49 NSWLR 149 R v MacIntyre (1988) 38 A Crim R 135
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted (by majority), sentence quashed, applicant re-sentenced (see para 53).

IN THE COURT OF
CRIMINAL APPEAL

60603/99

Wednesday, 14 FEBRUARY 2001

R v Paul Wayne BAILEY

JUDGMENT

1    WOOD CJ AT CL: I have had the advantage of reading in draft the reasons for judgment of Dunford J. I agree with his reasons and the orders he proposes.

*********

2    DUNFORD J: This is an application for leave to appeal out of time by Paul Wayne Bailey against his conviction following a trial before his Honour Acting Judge Downs QC and a Jury in the District Court at Sydney on one count of dangerous driving causing death contrary to s 52A(1)(c) Crimes Act 1900, the particular allegation being that at the time he was driving his motorcycle in a manner which was dangerous to another person or persons. There is also an application for leave to appeal against the sentence of imprisonment for a minimum term of 3 years with an additional term of 1 year imposed on the applicant following such conviction. The Crown does not oppose the application for an extension of time to appeal against the conviction and on such appeal the appellant has appeared unrepresented, whilst on the application for leave to appeal against sentence he was represented by Mr S Odgers SC.

3    Two issues were fought at the trial:

1. Whether the appellant was the driver of the motorcycle at the relevant time, the appellant claiming that he was the pillion passenger and that the driver was his friend, David Rice, since deceased; and
2. Whether the Crown had established that the manner of driving at the time of the impact causing the death of the victim was dangerous to other persons.

4    At about 4 pm on Wednesday 22 March 1995 a motor cycle carrying the appellant and Rice came into collision with a pedestrian, Winifred Mary Collins, in Norfolk Road, North Epping as she crossed the roadway from west to east towards a pedestrian refuge in the middle of the road, thereby causing her death. At the time there were a number of cars, the motorcycle and a bus carrying schoolchildren, all heading in a generally northerly direction on the road.

5    Shortly after having rounded a bend in that road near Grigg Avenue, the motorcycle overtook a car driven by Mr David Garrett. Mr Garrett said that he was travelling at approximately 60 kph and the motorcycle was going 20 kph faster than him. After it passed him he looked in his rear vision mirror to see where a red car that had been following him was, and when he looked back his view was obscured by the bus which was several car lengths in front of him and was pulling out from the kerb at about 40 degrees with its yellow lights flashing. He then saw persons tumbling on the road near the pedestrian refuge.

6    His evidence of the speed of the motorcycle was somewhat confusing. Although he said that when it overtook him it was travelling 20 kph faster than him, he then said that after it passed him the motorcycle was doing about 20 kph and accelerated past him quite quickly at about 20 kph. His Honour was apparently concerned by this evidence and during the trial had an extract of that portion taken out and transcribed; his comments in the absence of the jury at p 128 of the transcript and his summary of the evidence at the foot of p 26 of his Summing Up indicate that his Honour understood the evidence as being that after it passed Mr Garrett's vehicle, the motorcycle was only travelling at 20 kph, but as I read the evidence in its context, Mr Garrett was saying that the motorcycle was travelling at 20 kph faster than he was, that is 80 kph and I believe the jury would have understood it in this sense.

7    Regarding the persons on the motorcycle, Mr Garrett said that when the motorcycle tucked in front of him after passing him he could only see the pillion passenger who was dressed in all dark clothing, long dark trousers and a long jacket down to his wrists with a dark head-covering of some kind and at the back of his neck he could see hair protruding. He said the passenger's pink hands were tucked behind his back and seemed to be gripping something at the back of the motorcycle and he had a very clear recollection of this because of the colour contrast between the hands and the dark jacket. He said that after he stopped he saw a man coming across the road from his right with a marine hair cut and a black t-shirt who was hobbling and went across in front of the bus and sat down on a low fence where he later saw he was wearing light coloured shorts.

8    There was an admission at the trial that the appellant was the taller of the two men, being 190 centimetres or 6 foot 3 to 6 foot 5 inches tall, whilst Rice was 173 centimetres or 5 foot 6 to 5 foot 8 inches. There was also no dispute that whereas the appellant was wearing a black t-shirt with the sleeves cut off, light coloured long baggy shorts (Kepper pants) and had a short spiky "marine style" hair do, Rice was wearing a black jacket, blue denim jeans and had long curly shoulder length hair; both were wearing black helmets. There was no evidence in the trial that either were wearing gloves and the appellant suffered an injury to his right knee as well as a number of grazes and abrasions as a result of the accident. The evidence of Mr Garrett therefore clearly identified Rice as the pillion passenger and thus implicated the appellant as the driver.

9    The bus driver, Nuuialaa Afele, said that he had stopped at the bus stop to let some school students off and was just doing 10 to 15 kph when he saw an elderly lady about 2 lamp posts in front of him just stepping onto the roadway. There was no other traffic on the roadway in front of him but the next thing he recalled was the motorcycle zooming past him, then he saw the motorcycle going towards the lady and as she hurried towards the refuge, the motorcycle veered away to the right. He said the motorcycle did not change speed and did not brake. He estimated the speed of the motorcycle at over 70 kph but from cross-examination it emerged that at the committal and at an earlier trial he was unable to say the motorcycle was exceeding the speed limit (which was 60 kph).

10    He said there were 2 persons on the motorcycle, the person driving had very short dark hair and the passenger was fair with shoulder length blonde hair but he could not remember whether either were wearing crash helmets. He said that the passenger came right away from the motorcycle but the one which was driving was still near the motorcycle after the collision. He could clearly see the 2 riders after the accident but not before. He agreed in cross-examination that he asked Rice who was driving and Rice told him, "the other person", and he said this confirmed what he already knew. He did not recall either wearing a leather jacket.

11    Miss Button was a wine consultant attending a drive-in liquor store about a kilometre south of where the accident took place and she recalled the 2 persons on the motorcycle coming to that liquor store shortly before the accident. She said the passenger was wearing a black leather jacket and had long hair which she saw when he took his helmet off when he came into the bottleshop. She said at the time the driver was still sitting on the motorcycle and was wearing a helmet, shorts and a dark coloured singlet. She said his shorts were also dark and the driver addressed the passenger as, "Dave". The driver got off the motorcycle at one stage to use the EFTPOS machine and after the passenger had purchased some beer and it was strapped to the motorcycle, they left. She was adamant that the person wearing the shorts and the dark coloured singlet (it was in fact a t-shirt with the sleeves cut out) was the driver and the person with the leather jacket and long fair hair was the passenger.

12    Penny Craig was a school girl travelling on the bus who said that she first saw the motorcycle as the bus was pulling into the bus stop but the bus did not fully stop and kept going. She said that by looking through the front window of the bus she saw the motorcycle hit the lady about 2 lengths in front of the bus, at which stage the lady was halfway across from the kerb to the refuge. She said there were 2 persons on the motorcycle, the passenger ended up in the gutter on the other side of the road and the driver ended up next to the motorcycle. She said the driver had long hair and they were both wearing black jackets and the driver had a black leather jacket on, the other person had short hair, as she discovered after he took his helmet off.

13    She said that before the accident she did not pay much attention to the person on the back of the motorcycle, but after the accident the person in the gutter on the other side of the road, whom she identified as the passenger, appeared to be injured and limped back across the road and sat on a small fence and drank a beer, at which stage she noticed he had short hair, but she could not say what clothing he was wearing. She agreed she did not notice anything about him before the accident but only afterwards. She described the driver as having long hair, wearing a leather jacket with a white t-shirt and she could see the hair blowing out from under his helmet. She said he landed about a metre from the motorcycle and checked the motorcycle and then the lady. She made a statement to police at the scene and later that evening made further notes of what she had seen.

14    David Rice was deceased before the trial and his evidence from the committal was read. He was the owner of the motorcycle but said that the appellant was the driver and he was the pillion passenger because he had been drinking whereas the appellant had not. He said that after the collision he ended up in about the middle of the south bound lane about a metre away from the double lines, while the motorcycle was pretty close to the double centre lines in the north bound lane, but he did not see where the appellant ended up. He was wearing blue jeans, black leather jacket with long sleeves and a t-shirt underneath, possibly a flannelette shirt as well, and he was wearing black sandshoes. He made no reference to wearing gloves. He said that after the accident the appellant told him that he, the appellant, could not afford to get into trouble and that Rice would have to "take the wrap", and that he would pay the fine and pay for a lawyer. He repeated this about 5 times, he also said that he would start drinking beer and that the police would not be able to prove anything.

15    As to the circumstances of the accident he said there was a really slow car in front of them probably doing less than 40 kph which turned into Grayson Street. He said that the appellant went down a gear, accelerating slightly and went round the left side of that vehicle, and when they came up to Valley View Crescent the bus had pulled up and was just indicating to pull out again. He said he told the appellant to "knock it back a peg" and he thought he went back to third gear, he didn't think they were speeding, they went around the outside of the bus and came very close to a traffic island and the next thing he knew, he was off the motorcycle.

16    The appellant gave sworn evidence and said that he was the passenger and Rice was the driver. He said that Rice was a regular drinker, he knew he had been drinking that day, but he had been on the back of the motorcycle with him before and he was normally drunk. He said that when they arrived at the bottle shop and Rice, who was the driver got off to go and buy the beer, he slid forward from the passenger seat to the driver's seat and later after using the EFTPOS machine he got back into the driver's seat and after starting the machine and Rice returned, he slid back to the passenger seat and Rice was driving when they actually left the bottle shop. He said he normally hangs on to the back of the rack when riding and that was what he was doing on this occasion. He was not sure where either of them landed on the roadway after the collision.

17    The appellant said that he was looking over Rice's shoulder from his position as pillion passenger and saw the lady stepping out a couple of feet onto the roadway just prior to the motorcycle reaching the bus, or when it was next to the bus that he saw her stop, turn, look at the motorcycle and then she appeared to sort of hurry a bit towards the pedestrian refuge whilst Rice veered the motorcycle and they hit something. He was not aware of the motorcycle slowing down but it did veer right to the centre of the roadway; he assumed that Rice was trying to go around the pedestrian.

18    Both the appellant and David Rice, when spoken to by police claimed that the other was the driver at the relevant time. Although an initial breath test at the scene showed Rice with a blood alcohol reading of 0.025, later testing showed that a more accurate reading was 0.165. There was no evidence that the appellant had been drinking prior to the accident.

19    Although the appellant was unrepresented on the appeal against conviction he has presented grounds of appeal and written submissions apparently prepared by someone with some legal knowledge.

20    The first ground of appeal is that his Honour erred in not directing the jury that witnesses, namely Miss Button and Mr Afele, gave evidence in this trial inconsistent with evidence they gave in the first trial, and that the jury must not substitute for evidence in the trial, evidence given on previous occasions such as at the committal or in a previous trial where the jury was unable to agree, and R v Oliva (1965) 49 Cr App R 298 was referred to.

21    The fact that there were some differences, not necessarily significant, in the evidence given by some of the witnesses in the trial compared with what they had said on previous occasions was the subject of intense cross-examination of each of those witnesses. This was a matter that was fairly and squarely before the jury in the assessment of the evidence having been referred to in defence counsel's address. His Honour dealt with this aspect at pp 8 and 9 of his Summing Up:

"You have heard that some of the witnesses said something different at the committal hearing back in 1996. Each said something different in a trial that took place in March of this year, from what they said in the witness box here. You will have to satisfy yourself as to which of the evidence is more reliable. On the face of it you could say, well, recollections fade with time, therefore I accept what was said earlier. People when they are tested as to what their recollection is about an incident can, with time, come to believe that something is true which did not in fact happen. In other words, they can construct or reconstruct what happened and come to believe it."

22    The jury should have been told, but were not, that they could act only on the evidence given in the trial, and not on evidence given on previous occasions, and that such earlier evidence could only be used for assessing the reliability of their evidence in the trial. But there was no application for any further direction, so Rule 4 applies. Apart from Mr Afele's evidence in the trial that the speed of the motorcycle was 70 kph whereas he had previously said he did not believe it was exceeding the speed limit, the differences were insignificant. The jury could have been under no illusion that it was the evidence in this trial that mattered and that the Crown was relying on the evidence given in the trial and not evidence given previously; and I would refuse leave to argue this ground.

23    The second ground of appeal is that his Honour erred in that he did not direct the jury appropriately on the elements of the offence, and in particular did not direct the jury that the offence was committed only if the vehicle was being driven in a manner dangerous to another person contemporaneously with the impact.

24    Although the offence of dangerous driving causing death requires a motor vehicle to have been driven in a dangerous manner at the time of the impact occasioning death, a preceding period of dangerous driving may be so nearly contemporaneous with the impact as to satisfy this element of the offence: Jiminez v the Queen (1992) 173 CLR 572 at 578. The interval of time between the driving which is in breach of the section and the impact may in all the factual circumstances of the case be so short that the offending driving can be regarded as proceeding to the moment of impact: R v Hain (1966) 85 WN (Pt 1) (NSW) 7.

25    When the Summing Up is considered as a whole, I am satisfied his Honour has sufficiently described all the elements necessary to establish the offence. From the context of the Summing Up and the manner in which the trial was conducted, both by the prosecution and the defence, there can be no doubt that the jury was aware that the relevant time for them to consider the appellant's driving was the time of impact with the victim or so close as to be inseparable from it. His Honour directed the jury (pp 23-24) as follows:

". . . you have to look at the driving and you have to look at two things. You have to look at firstly, the manner of the driving, or riding, and secondly the circumstances surrounding the riding. Then after considering the manner of the driving and the circumstances surrounding the driving you would then come to the (sic) consider if in those circumstances it was dangerous to another person.
This test is the objective test. The accused does not have to prove what he had been thinking in his mind at the time. The accused (sic) conduct must be judged according to the objective standards fixed in relation to all users of the road. It does not matter what might have been in the mind of the rider at the time. It is a standard that attaches to all users of public roads. And before you could find the person guilty of riding in a manner which was dangerous to another person, you would have to be satisfied that the breach, of what you consider to be proper control and management of a motor vehicle, was to be so serious, as to be in reality, a potential danger to other persons. You have to be satisfied that the circumstances of control and management of the motorcycle was, the breach of driving, was so serious as to bring in reality a potential danger to other persons."

and later (at p 25):
"So you have to look at all of the circumstances to decide if the driving be dangerous. And it would be wrong, very wrong indeed, if you said, oh well, there was an accident, there was an impact, a woman died from the injuries, it must have been dangerous driving. That is quite wrong. You must decide the manner of driving before you can decide if it was dangerous and fell far short of the proper management of a vehicle on a roadway, so short of the proper standard that in the circumstances it amounted to a crime."

26    It was never an issue at the trial that any dangerous driving of the appellant was not sufficiently contemporaneous with the impact which caused the death of the deceased and accordingly it was not necessary to give any directions in relation to that issue. No application was made for any redirection, Rule 4 applies, the appellant has not been prejudiced in any way, and I would refuse leave.

27    The third ground of appeal is that the verdict was unsafe and unsatisfactory. This ground is more correctly expressed as being that the verdict is unreasonable or cannot be supported having regard to the evidence: Fleming v R [1998] HCA 68, 197 CLR 250, R v Giam [1999] NSWCCA 53, 104 A Crim R 416, and requires the Court to make its own independent assessment of the evidence and ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, bearing in mind that the jury is the body entrusted with the primary responsibility for determining guilt or innocence and has had the benefit of having seen and heard the witnesses: M v The Queen (1994) 181 CLR 487 at 492-3.

28    The submission focused on the two issues fought at the trial, namely,

(a) whether the appellant was the driver of the motorcycle; and

(b) whether the manner of driving was dangerous to a member of the public.

29    The evidence of Mr Garrett, Mr Afele and Miss Button was clearly to the effect that the appellant, being the person wearing the singlet (or more correctly described as a t-shirt with the sleeves cut out) and the long shorts, was the driver of the motorcycle and Mr Rice, being the person in the dark coloured clothing, including a leather jacket, long trousers and with long fair hair protruding from the back of the crash helmet, was the passenger. There were some discrepancies in the evidence of these witnesses but they were comparatively minor. Mr Garrett said that he could see the pillion passenger's hands were tucked behind his back and he seemed to be gripping something at the back of the motorcycle, although Mr Rice in his evidence at the committal said that (at p 31):

"Q. Do you hang on when you are on the back or how do you sit. Is there some sort of strap or bar --
A. When Paul's riding I've got a rack behind me so no I don't have to hold on at all. I just sit there and feet on the pegs.
Q. You are quite comfortable sitting there--
A. Not holding on at all."

30    This evidence was relied on to suggest that it must have been the appellant on the back of the motorcycle. But apart from the fact that it contradicted the appellant's evidence that Rice never rode pillion when the appellant was riding the motorcycle, Rice was not saying that he never held on, but only that he was comfortable not holding on. Moreover, Mr Garrett said that what struck him was the contrast between the dark coloured sleeves of the jacket that the pillion passenger was wearing and the pink hands protruding therefrom, and this was inconsistent with the fact that the appellant had no dark coloured sleeves and therefore no colour contrast between the sleeves of a jacket and his bare hands.

31    Miss Button was quite firm and clear that the appellant whom she identified by his clothes was the driver of the motorcycle. She saw the motorcycle arrive at the bottle shop with him as the driver and she saw it leave the bottle shop with him as the driver, and her evidence was quite inconsistent with the appellant's evidence that he moved from the pillion seat onto the driver's seat and then after using the EFTPOS machine resumed the driver's seat, started the motorcycle and then moved back to the pillion seat.

32    Mr Afele's evidence was not as strong because, although he was very firm in his evidence that the appellant was the driver, he did not recall either of the persons on the motorcycle wearing a leather jacket or helmet and he saw nothing to identify the respective positions of the riders before the accident. His evidence seems to be based mainly on the position of the persons on the roadway after the accident which places the appellant closer to the motorcycle, although some of the other evidence, by no means conclusive, tends to suggest that the appellant may have finished furthest from the motorcycle after the accident. Mr Afele's evidence may have contained an element of reconstruction in it, and standing alone I would not regard it as particularly strong but the evidence of Mr Garrett and Miss Button is much stronger.

33    On the other hand, there is the evidence of Miss Craig which clearly identified the appellant as the passenger and not the driver, although she also said that she did not notice anything about the passenger before the collision; and there may be an element of reconstruction in her evidence also, based on her recollection of where the two persons finished up after the accident.

34    There was also the evidence that as he was clearly intoxicated at the time, Rice had good reasons for not driving. At the time the appellant was sober and there was also the evidence of Rice of what he claimed was said to him by the appellant (which the appellant denied) to the effect that he wanted him to "take the wrap" and would pay his fines and legal expenses on his behalf.

35    Although there was a conflict in the evidence, the jury had the opportunity of seeing and hearing all the witnesses, except Rice (in respect of whom they were given appropriate warnings) and it was a matter for the jury to determine which witnesses they accepted and which witnesses they rejected, in whole, or in part. There was in my view, ample evidence to support the Crown allegation that the appellant was the driver. It was a question of fact and therefore a matter for the jury and it cannot be said that they acted unreasonably in finding the appellant was the driver or that the verdict cannot be supported.

36    I am also satisfied that there was ample evidence to support the jury's finding that the motorcycle was driven in a manner which was dangerous to a member of the public. It was a flat, straight, open, bitumen road on a clear, sunny afternoon. The evidence suggests, although not conclusively, that the driver of the motorcycle was exceeding the speed limit and he clearly overtook a bus as it was slowly pulling out from the kerb. However, the pedestrian was crossing the road some fair distance past where the motorcycle overtook the bus and there was no traffic between the motorcycle and the pedestrian to obscure the driver's view of the pedestrian once he overtook the bus.

37    The evidence, including the evidence of the appellant, that after starting to cross the road, the pedestrian stopped, then hurried towards the refuge, and at the same time the motorcycle veered to the right, leads to a very strong inference that the driver of the motorcycle was not keeping a proper lookout, and when he saw the pedestrian crossing the road, instead of braking, he attempted to go around her to the point of the pedestrian refuge. The failure to keep a proper lookout until it was too late, the failure to brake and at the same time to veer to the right, in my view clearly justified a finding that at the time the appellant was driving in a manner dangerous to a member of the public. The driver of a motorcycle or any other vehicle overtaking a bus pulling out from the kerb must do so at such speed and with such attention that he or she will be able to cope with pedestrians or any other emergency which may be present on the roadway in front of the bus.

38    Notwithstanding this, I am concerned that his Honour did not in his Summing Up spell out in specific terms the particular manner in which the Crown alleged that the appellant's driving was in a manner dangerous to a member of the public. A Summing Up should not only give directions as to the ingredients of the offence, and contain an explanation as to how the law may be applied to the facts of the particular case, including a brief resume of the evidence relating to those ingredients, but should include a succinct and accurate summary of the issues and a concise summary of the arguments of both sides: Alford v Magee (1952) 85 CLR 437 at 466, R v Zorad (1990) 19 NSWLR 91 at 105, R v Tillott (1991) 53 A Crim R 46 at 51.

39    It was incumbent on his Honour in a case such as the present, to not only describe to the jury the elements of driving in a manner dangerous, but to spell out in unambiguous terms the particular manner of driving which the Crown alleged in this case constituted a manner dangerous to the public, together with the arguments in support thereof and the defence arguments to the contrary, all in summary form, but this his Honour failed to do.

40    After giving general directions as to the onus of proof, assessment of witnesses etc, his Honour identified the two issues fought at the trial, gave a warning about identification evidence and then summarised the evidence of the various witnesses in relation to the issue of identification. Then, having properly emphasised to the jury that they only came to the question of manner of driving if they were satisfied beyond reasonable doubt that the appellant was the driver, his Honour gave general directions as to what constituted driving in a manner dangerous to a member of the public, warned them that they must not reason that because there was an accident and a woman died there must have been dangerous driving and summarised the evidence of the various witnesses relating to the manner of driving. He then summarised the submissions of the Crown and the defence in relation to the identity of the driver and concluded the Summing Up with a few formal matters; but at no stage did he spell out what the particular factors in the appellant's driving the Crown alleged were dangerous to the members of the public, nor did he summarise the arguments of both counsel in relation to those allegations.

41    The closest his Honour came to identifying the relevant issues relating to the appellant's driving was at p 24 where he said:

"When considering the manner of driving, you would, or may consider many things. As in this case you would consider the evidence of speed. You may have to consider the alertness of a person. You would consider if the person who was riding the motorcycle kept a proper lookout. You would consider the direction in which the bike was controlled. You would consider acceleration or braking."

These were relevant considerations, but it was not sufficient to make clear to the jury precisely what the Crown was alleging in this regard and what the appellant's response to it was.

42    I have sought a transcript of counsels' final addresses to ascertain what was said in relation to these matters as the issues may have become clearer from such addresses, but such transcript is unavailable; and in any event these matters should have been canvassed in the Summing Up, as I have said.

43    I have therefore considered whether this defect in the Summing Up, although not taken as a ground of appeal, should give rise to an order for a new trial; but having regard to the whole of the evidence to which I have already referred and the circumstances of the plaintiff hitting the pedestrian on an open road in broad daylight where there was an element of speed and after overtaking a bus, where there must have been a failure to keep a proper lookout, and where the evidence discloses that no attempt was made to brake, I consider there is no possibility that the appellant has lost an opportunity of an acquittal which was reasonably open to him, and I would apply the proviso.

44    For these reasons I propose that the application for leave to appeal against the conviction out of time be allowed, but that the appeal be dismissed.

45    In relation to the appeal against sentence, the applicant is aged 31 years and has a criminal record extending back to 1986. The Pre-Sentence Report described him as being one of three children and having an unhappy childhood fraught with difficulties including a family environment characterised by alcohol abuse and argument. It appears that he displayed behavioural difficulties within the family from an early age and his parents separated when he was 16 years old. Shortly after that in 1986-7 he had a number of offences, including one of driving in a manner dangerous, dealt with in the Children's Court and he was admitted to an institution for a time.

46    In 1988 he was convicted of maliciously inflict actual bodily harm with intent to have sexual intercourse and sexual intercourse without consent with a person under 16 years, for which he was sentenced to penal servitude for 8 years with a non-parole period of 4 years. The victim of such assault was his younger sister. Following his release from custody he had a number of other convictions, including malicious damage, larceny, receiving, dishonestly obtain benefit by deception, assault occasioning actual bodily harm and resist arrest. Some of these were dealt with by way of fine, recognizance or an order for community service, and he also served a sentence of 3 months imprisonment in 1992. After being charged with this offence in 1995 he moved to Melbourne where he was subsequently convicted in 1997 of 2 counts of armed robbery, and other offences, for which he was sentenced to imprisonment for 5 years with a non-parole period of 3 years, including 379 days by way of pre-sentence detention. Following his release from prison in Victoria on 27 March 1999 he returned to New South Wales and has been in custody on the current charge since 18 August 1999, the date of the jury's verdict, a period in excess of 15 months.

47    He also has an appalling driving record. At the date of the offence, he had 5 entries for speeding and 2 for negligent driving, since then he has a further entry for exceeding the speed limit.

48    He has been in a defacto relationship since 1994, and there are two children of the union, but the relationship has involved arguments and separations. He has in the past worked as an apprentice carpenter after having left school in Year 10. Whilst in prison he has studied for the Higher School Certificate but has not yet completed same. Over the years he has used and abused a number of drugs, including cannabis, amphetamines, cocaine and heroin, and at the time of sentence he was on a methadone program prescribed by the Correctional Health Service, but he now claims to be drug free. He is a diabetic, receiving 2 or 3 insulin injections a day and will be required to serve his sentence in protective custody because of the prior sexual offence convictions.

49    In R v Jurisic (1998) 45 NSWLR 209 at 231, the Court of Criminal Appeal promulgated guidelines for offences under s 52A(1), including that where there is a plea of guilty, and there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than 3 years (in the case of dangerous driving causing death) should be exceptional. Aggravating factors include matters such as the degree of speed, intoxication, erratic driving, competitive driving, ignoring warnings and escaping police pursuit, none of which were present in this case.

50    There was evidence of a speed in excess of the limit, but it was not grossly excessive over the limit in terms of the guideline judgment, and the main features of the dangerous driving appear to have been overtaking the bus as it was pulling out, failing to keep a proper lookout, and a failure to brake in time. I would not regard these as matters of aggravation such as to indicate that the applicant had abandoned responsibility for his manner of driving. Jurisic was a case involving a plea of guilty and balancing the lack of a plea of guilty here with the lack of aggravating factors, I consider that Jurisic provides a useful guide in the present case. It is also appropriate to take into account that this sentence is to be served in protective custody and follows a lengthy period in prison as a result of the Victorian convictions for armed robbery. In these circumstances, considerations of totality and proportionality become relevant.

51    His Honour in his Remarks on Sentence referred to R v Jurisic and purported to apply it; but he failed to identify the circumstances of aggravation in the manner of driving which indicated that the applicant had abandoned responsibility for his conduct and were relevant to such guidelines; and I have already expressed my view that such aggravating facts were not present in the instant case: R v Howland [1999] NSWCCA 10, 104 A Crim R 273. In addition, his Honour appears to have been under the misapprehension that the armed robberies and other offences in Melbourne had been committed prior to this offence; and in these respects his Honour fell into error.

52    Having regard to all these matters I consider that the sentence, both as to its total term and its minimum term was excessive and that this Court should intervene. In doing so it must apply the Crimes (Sentencing Procedure) Act 1999; R v Carrion [2000] NSWCCA 191, 49 NSWLR 149, so that the Court must set a head sentence and a non-parole period which must be not less than ¾ of the sentence unless there are special circumstances: s 44(2). I consider that the appropriate sentence is 3 years, but in view of the need for the applicant to serve the sentence in protective custody and, having regard to the almost continuous periods he will have served in gaol as a result of the Victorian convictions and this one, the need for a lengthy period under supervision on his release, I am satisfied that special circumstances exist.

53    I therefore propose that leave to appeal against the sentence be granted, the appeal allowed, the sentence imposed by Acting Judge Downs be quashed and in lieu thereof the applicant be sentenced to imprisonment for 3 years, to date from the 18 August 1999 with a non-parole period of 2 years. The earliest date on which the applicant will therefore be eligible for release on parole will be 17 August 2001 and I would order that on that date he be released on parole subject to the conditions imposed by the Regulations and the further condition that he be subject to the supervision of Probation and Parole Service and obey all reasonable directions of such Service.

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54    CARRUTHERS AJ: In this matter I have the advantage of reading in draft form the judgment of Dunford J and I gratefully adopt his summation of the facts both in relation to the conviction appeal and the sentence appeal. I note that Wood CJ at CL has expressed his concurrence with the reasons of Dunford J and the orders which he proposes.

55    I agree that the conviction appeal should be dismissed.

56    As to the sentence appeal, I agree with the submission of Mr Dawe QC, counsel for the respondent Crown, that the appellant’s driving which caused the death of Winifred Mary Collins, was a flagrant example of disregard for the safety of the members of the public who might be expected to be using the roadway in that area. The overtaking of a bus which is drawing away from a bus stop is an inherently dangerous manoeuvre which could put a number of other persons at considerable risk.

57    In this case the risk was exacerbated because, to the knowledge of the applicant, his vehicle was approaching a pedestrian refuge. It must be borne in mind that this occurred during the afternoon of a weekday when it would be likely for pedestrians to be in the vicinity of the refuge.

58    During the course of his remarks on sentence, Downs DCJ stated that he had the benefit of being reminded by counsel for the applicant of the judgments of this Court in R v Jurisic (1998) 45 NSWLR 209. His Honour made no further reference to this authority.

59    I agree with Mr Dawe QC that in the instant case little assistance can be gained by a consideration of Jurisic. It is of interest to note in this context the following remarks by Spigelman CJ in Jurisic (at 231): -

“In my opinion this Court should promulgate the following guidelines:
1. A non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment.
2. With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.
I realise that the formulation I propose - does the relevant aggravating manifest, in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct - introduces an element of judgment on which reasonable minds may differ. Nevertheless the formulation of the issue in such a way will serve the objective of consistency of sentencing with respect to conduct that the community has indicated plainly that it wishes to deter and condemn.
The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence. This is also the approach in the English guideline judgment on rape: R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985.”

60    However, it must immediately be noted that the Chief Justice was there concerned with a case involving a plea of guilty. A plea of guilty generally carries with it an element of contrition. The present applicant has, however, never conceded any responsibility for his conduct or demonstrated in any other way a sense of contrition.

61    The obvious point must also be made that subjective circumstances vary, often markedly, from case to case. I shall refer in a little more detail to that aspect shortly.

62    In so far as the objective circumstances are concerned, the Chief Justice referred in his judgment (at 231) to nine discrete mitigating and aggravating factors relevant to the appropriate penalty for an offence against s 52A. Four of those factors are relevant in this case. They are: -

“(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
…
(v) Erratic driving.”

63 In the instant case, a death was involved which was of course a necessary element to found the conviction under s 52A(1)(c). As was pointed out in R v MacIntyre (1988) 38 A Crim. R 135 at 139, the real substance of the subject offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life. There was also excessive speed by reference to the conditions which prevailed at the time and the place of the accident. In so far as the manner of driving is concerned, I have already referred to the inherently dangerous manoeuvre undertaken by the applicant and the number of people it potentially put at risk. These are three aggravating factors in accordance with the criteria identified by the Chief Justice.

64    In Jurisic the Chief Justice considered an appropriate test of aggravation was whether the offender had, by reference to the various criteria which he cited, abandoned responsibility for his or her own conduct.

65    However, the Chief Justice acknowledged that the question whether an offender has abandoned responsibility for his or her conduct introduces an element of judgment on which reasonable minds may differ. Thus, if I may respectfully say so, I do not think that his Honour intended that this phrase should have some talismanic status.

66    Indeed, as the Chief Justice was careful to point out, guideline judgments are intended to be indicative only.

“They are not intended to be applied to every case as if they were rules binding on sentencing Judges” (at 220)

67    Having expressed these qualifications, I would, nevertheless, accept that a sentencing Judge could conclude that the manner of driving by the present applicant leading to the fatal impact could be categorised as an abandonment by him of responsibility for his conduct, particularly bearing in mind that he was driving a motor cycle and carrying a pillion passenger.

68    As to subjective circumstances the appellant has a bad criminal record and, in particular, an appalling driving record.

69    There are, on the other hand, clearly certain mitigating subjective factors, such as his diabetes, depression and the need to serve his sentence in protective custody which required (and received) consideration by the sentencing Judge.

70    His Honour seems to have been under the apprehension that the Victorian Armed Robbery offences were committed prior to the subject offence.

71    However, Mr Odgers, counsel for the applicant informed this Court that his instructions were to the contrary. There is however nothing in his Honour’s remarks on sentence to indicate that his misapprehension had any real bearing on the ultimate sentence.

72    In Jurisic the Chief Justice observed (at 223): -

“As in England, it appears that trial judges in New South Wales have not reflected in their sentences the seriousness with which society regards the offence of occasioning death or serious injury by dangerous driving. The existence of such disparity constitutes an appropriate occasion for the promulgation of a guideline judgment by a Court of Criminal Appeal. That is what occurred in England with respect to offences cognate with that in the instant case.

73    In the light of these remarks, it is interesting to note the Judicial Commission statistics relating to sentences imposed for the subject offence in Higher Courts.

74    The statistics for Full Terms All Offenders before Jurisic for the period December 1994 to October 1998 (a total of 25 cases) demonstrate that forty per cent of offenders (including both pleas of guilty and not guilty) received sentences of four years or more, by way of a full term. The comparable statistics after Jurisic from October 1998 to March 2000 (a total of 28 cases which would include the present case) demonstrate that only thirty per cent received sentences of four years or more by way of a full term.

75    Taking the same criteria for Minimum/Fixed Terms the statistics demonstrate that before Jurisic (a total of 25 cases), twenty per cent of offenders received a minimum or fixed term of three years or more. Post Jurisic (a total of 27 cases which would include the present case) only eleven per cent received a sentence of three years or more.

76    Making full allowance for the caution with which one must approach statistics the question must arise as to whether the perceived leniency in pre-Jurisic sentencing for offences of this nature has been influenced by the guideline judgment to the extent that one may reasonably have anticipated. In one aspect there is a clear sign of the impact of Jurisic. Thus, pre-Jurisic (a total of 75 cases) thirty three per cent of offenders were sentenced to imprisonment, whereas post-Jurisic (a total of 43 cases), sixty five per cent received sentences of imprisonment.

77    Nevertheless, one is left with the impression that sentencing Judges may still be failing to recognise the strong element of deterrence in sentencing for the offence of Dangerous Driving Causing Death, particularly bearing in mind the grave public concern at the rate at which fatalities occur on New South Wales roads.

78    For these reasons I am of the view that the head sentence was within the sentencing discretion available to his Honour.

79    In so far as the minimum term is concerned, his Honour concluded that there were no special circumstances. His Honour said: -

“…while supervision might help him I do not consider that it amounts to special circumstances within the meaning of the section.”

80    It would have been open to his Honour to have concluded that, as there was a period of only four and a half months between the expiry of the Victorian sentences and the commencement date of his Honour’s sentence, special circumstances existed.

81    I am unable to conclude, however, that his Honour erred in law in not coming to this conclusion. Thus in my view the minimum term fixed by his Honour was within the sentencing discretion available to him.

82    For these reasons I would propose that the Application for Leave to Appeal be granted, but that the appeal be dismissed.

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