R v Beckett - [2000] NSWCCA 424

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v BECKETT [2000] NSWCCA 424

FILE NUMBER(S):
60369/2000

HEARING DATE(S): 13 October 2000

JUDGMENT DATE: 13/10/2000

PARTIES:
Regina
Giovanni Robert Beckett

JUDGMENT OF: Hulme J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/1267

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

COUNSEL:
Crown: PG Berman
Appellant: PJ O'Donnell

SOLICITORS:
Crown: SE O'Connor
Appellant: Matthews Dooley & Gibson

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted
Appeal dismissed

JUDGMENT:

- 6 -

IN THE COURT OF
CRIMINAL APPEAL
No: 60369/00
HULME J
BARR J
Friday, 13 October 2000

REGINA -v Giovanni ROBERT BECKETT
JUDGMENT

HULME J: In consequence of driving a motor vehicle which was involved in an impact with a four year old child who suffered quadriplegia and brain damage, the applicant was charged with two offences under section 52A of the Crimes Act; one alleged that he was under the influence of amphetamine at the time, and the second that he was driving in a manner dangerous. He pleaded not guilty, but after the parties and the jury were taken out for a view of the scene, he changed his plea in the case of the second count.
The Crown agreed to accept that plea in full satisfaction of the indictment, and in due course Judge Taylor sentenced the applicant to imprisonment for two years from the date of sentence, that term to include a non-parole period of 12 months. The applicant was disqualified from holding a driver's licence for three years.
In the course of his remarks on sentence, his Honour made findings that so far as are presently relevant in include the following:
"There was an undulation in the road which prevented the applicant from observing the child until the two were 43 metres apart. The area was a residential one. A 60 kilometre per hour speed limit applied. It was daylight and the weather was fine. The applicant was travelling at about 60 kilometres an hour."
It is I think common ground, and his Honour found, that the applicant did not apply his brakes for one and a half seconds but skidmarks indicate that from the expiration of that time his vehicle was skidding and swerving. His Honour concluded that:-
"In accordance with the reaction tables tendered in evidence, his reaction time was poor. The court has concluded that the offender's manner of driving goes beyond momentary or casual lapse of attention, and as he travelled over a crest of a hill after a period of loss of vision and poorly reacted to the danger presented to him."
I should perhaps add that the reaction tables which were tendered are, if my recollection is correct, to be found also in Leslie and Brett's Motor Vehicle Practice.
It should probably be recorded that at the time the applicant indicated his intention to plead guilty to the charge for which he was sentenced, and in the course of statements made to the jury at that time, it seems to have been accepted by the applicant, and indeed to have been common ground, or certainly a basis upon which he had been guilty of driving in a manner dangerous, was inattention and failure to keep a good lookout. There is no specific reference to such inattention or failure to keep a good lookout in his Honour's reasons.
It is submitted that it is impossible to characterise the one and a half second reaction time as indicating more than momentary or casual lapse of attention. The tables which were tendered record as good reaction times seven-eighths of a second to one second, very good reaction times of three-quarters of a second or less, and poor reaction times from one and a quarter to two seconds. I may add that there is a decision of the Court of Appeal McKern v Burke (1986) 3MVR 279 at 281 which indicates that the court is entitled to take into account by way of judicial notice reaction times.
The tables of reaction times were tendered by the applicant and thus one may legitimately accept what they say. The difference between a good reaction time of one second and the one and a half seconds his Honour recorded as the delay in application of the brakes is obviously but half a second. It was submitted that one could not regard such a delay as other than indicative of a momentary or casual lapse of attention. That is a proposition with which I would agree. If momentary or casual lapse of attention is an expression intended to have any operation at all, it must at least include inattention for matters as small as half a second. However, I do not think that that half second or so delay can be regarded as all that his Honour was referring to.
He talked in a passage which I have quoted of "the offender's manner of driving as he travelled over the crest of a hill after a period of lost vision" and it seems to me that in his Honour's reference to momentary or casual lapse of attention being exceeded, recognition must be given to those further factors. It may well be that considered in isolation each of the elements of the applicant's driving to which I have referred would not have constituted dangerous driving, but someone who is travelling in a residential street at the 60 kilometre an hour speed limit, where there is limited visibility, is under a particular requirement of good, and one might fairly say very good, attention.
As I read his Honour's remarks on sentence, particularly in the light of what was said at the time the plea was entered and said on behalf of the applicant, his Honour was entitled to reach the conclusion that he did and that either through speed or lack of attention or lack of vision or a combination of all three, the applicant's method of driving was dangerous. Certainly his plea indicates as much.
For reasons which I indicated in R v Davies 2000 CCA Reports (NSW) 84, I do not regard the descriptions of circumstances of abandonment of, responsibility and momentary inattention as covering the whole field, although I must recognise the majority in that case took a different view, but I need not pursue that. The applicant pleaded guilty to driving in a manner dangerous to the public and his Honour found and was entitled to find that his driving went beyond momentary or casual lapse of attention.
The applicant was 18 when the offence occurred. A large number of character references were tendered and his Honour seems to have accepted that, subject to the topic of his driving, the applicant was of good character. The applicant expressed contrition and his Honour accepted that he was entitled to credit for his plea of guilty.
There was evidence in the form of a probation report that the applicant had been traumatised by the accident and his Honour accepted that it was a catastrophic event in his life. However, his Honour also recorded that notwithstanding the horrific consequences of the accident, the applicant had continued to drive contrary to the traffic laws so much so that he had had his licence suspended. His Honour noted that the applicant's record since the accident gave his Honour no confidence that the applicant recognised the seriousness of his actions.
As has been observed in numerous decisions in this area of the law, the task faced by sentencing judges is an unenviable one for they are forced to consider the sentence to be imposed on persons who, except perhaps in one matter, driving for a short time, are of otherwise unblemished character. However, the horrendous consequences which accidents may, or as in this case do, cause, has led the legislature to impose the penalties which it has. It has led this court in R v Jurisic to indicate by way of guideline the approach which sentencing judges should take. In practical terms, both Parliament and the courts have recognised that there has to be a severe sanction to encourage drivers to observe the maximum possible care on the road.
When the findings his Honour made are accepted, then in light of what has been decided, albeit only as a guideline in Jurisic, it seems to me that the sentence which was imposed was one which was fairly open to his Honour in the exercise of his sentencing discretion. In that regard, it must be recognised that this Court's entitlement to interfere arises only if error in what his Honour did has been demonstrated, not merely circumstances where the judges of this court might take and I do not suggest I would have taken a different view.
In my view, the applicant should have leave to appeal but the appeal should be dismissed.
BARR J: I agree with the orders proposed for the reasons given by the presiding judge.
HULME J: Accordingly, the orders of the court are leave to appeal granted but the appeal is dismissed.

LAST UPDATED: 20/10/2000