R v Craig Besant

[2003] NSWCCA 388

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Craig Besant [2003]  NSWCCA 388

FILE NUMBER(S):
60263/02

HEARING DATE(S):               05/12/03

JUDGMENT DATE: 05/12/2003

PARTIES:
Regina v Craig Besant

JUDGMENT OF:       Wood CJ at CL Grove J Dunford J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          01/51/0095

LOWER COURT JUDICIAL OFFICER:     Graham DCJ

COUNSEL:
E Wilkins (Crown)
R Bonnici (Appellant)

SOLICITORS:
SE O'Connor (Crown)
Neil J O'Connor & Associates (Appellant)

CATCHWORDS:
Criminal Law - Sentencing - dangerous driving causing death x2 - driver over tired - erratic driving over 50kms prior to fatal accident - warning to driver of fatigue - number of persons put at risk
Criminal Law - Sentencing - pleas of guilty - discount for "early pleas" - meaning of "early" - pleas after some days of voir dire hearing not "early"

LEGISLATION CITED:
Crimes Act 1900 s 52A(1)(c)
Crimes (Sentencing Procedure) Act 1999 ss 21A, 42A

DECISION:
Leave to appeal granted - appeal allowed - head sentences confirmed - non-parole periods varied

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60263/02

WOOD CJ at CL
GROVE J
DUNFORD J

MONDAY 5 DECEMBER 2003

REGINA  v  CRAIG BESANT

Judgment

1. DUNFORD J: This is an application for leave to appeal by Craig Besant against the sentences imposed on him by Judge Graham in the District Court at Sydney on 2 May 2002 in respect to two counts of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900, the maximum penalty for which is imprisonment for 10 years.  He had originally pleas not guilty but on the fourth day of the pre-trial voir dire, he changed his plea to guilty.

1. A Form 1 matter of refusing to provide a blood sample was taken into account on count 1.  On count 1 he was sentenced to imprisonment for 5 years commencing on 2 May 2002 and expiring on 1 May 2007 with a non-parole period of 4 years commencing on 2 May 2002 and expiring on 1 May 2006.

1. On the second count, he was sentenced to imprisonment for 5 years commencing on 2 May 2003 and expiring on 1 May 2008 with a non-parole period of three years commencing on 2 May 2003 and expiring on 1 May 2006.

1. Count 1 related to the death of Wendy Brazier, who was 54 years old at the time of her death.  Whilst count 2 related to the death of her daughter Heather, who was 20 years old at the time.  Mr Brazier, who was driving the vehicle hit by the applicant’s semitrailer, survived the impact, which killed his wife and daughter, suffering a broken jaw and bruising.  He could not remember the impact.

1. The sentence on count 2 was partly cumulative upon the sentence for count 1.  Thus the total period of imprisonment ordered was 6 years from 2 May 2002 to 1 May 2008 with a total non-parole period of 4 years from 2 May 2002 to 1 May 2006.

1. The sentencing Judge found special circumstances, namely that this was the applicant’s first time in custody; that he was in a psychological state of depression with a possible risk of self-harm and that he needed an acceptable period of parole for his treatment and supervision.  Although not reflected in the sentence on count 1, the special circumstances were reflected in the sentence on count 2 and, because of the way the sentences were structured, in the total sentence to be served.

1. The facts revealed an extremely high level of moral culpability in respect of the applicant.  The impact causing the death of the victims occurred on Thursday 1 February 2001 when the applicant was driving his semi-trailer north on the Pacific Highway at Tabbimoble.  The applicant was a professional truck driver.  He had set off between 8.30 pm and 9.00 pm the previous night from Blacktown in Sydney heading for Brisbane.  He was on a tight time schedule and said he needed to be in Brisbane within nine hours.  It is not clear from where the nine hours was, and he did not record any rest times in his log book. 

1. He told police he had stopped at Wyong for fuel, at the Shell Service Station at Port Macquarie and that he had slept at Woolgoolga near Coffs Harbour.  He had a passenger, who confirmed the stop at Wyong and a lunch stop at Woolgoolga, but said that the lunch stop was for about 10 minutes and they ate their lunch in the cabin of the truck because of the time constraints on the applicant.  The passenger was asleep at the time of the collision and throughout the part of the journey relied upon by the Crown as the dangerous driving. 

1. The fatal impact occurred when the applicant fell asleep while driving his semitrailer.  It veered onto the southern carriageway of the Pacific Highway narrowly missing two oncoming cars.  The applicant woke up and swerved back to the correct side of the road to avoid hitting the victims’ car, which was travelling south on the Pacific Highway.  At the same time, Mr Brazier, also swerved to the northern carriageway to try and avoid being hit by the applicant’s truck, which, until Mr Brazier swerved, had been coming towards him in the wrong lane.  The vehicles collided.  The main force of the impact was to the passengers’ side of Mr Brazier’s car where his wife and daughter were seated.  That side of the car was destroyed and Wendy and Heather Brazier died as a result of the impact.

1. The applicant refused to undergo a blood test, claiming he had a fear of needles.  He provided a urine sample that was positive to the presence of amphetamines, and a bag of white powder containing amphetamines was found under the driver’s seat cover of his vehicle.  The applicant denied to police having taken any drugs in the 24 hours prior to the collision and denied any knowledge of the drugs found in his vehicle. 

1. The expert evidence on the voir dire was to the effect that the course of the applicant’s driving prior to the collision was consistent with the applicant being affected by fatigue due to amphetamine use.  The expert witnesses said that as the urine sample did not provide any details as to quantity, it could not be said that the applicant was under the influence of the drug at the intoxication stage, but rather in the subsequent “coming down” phase where symptoms of fatigue were likely.

1. The sentencing judge found that the principal cause of the applicant’s fatigue was his lack of sleep caused by working all day and driving through the night with inadequate rest stops during his journey.  A contributing factor to that fatigue was his use of amphetamines.

1. The applicant’s drug use was one aggravating feature of the case.  Another aggravating feature was the prior driving of the applicant.  For a distance of between 50 and 58 kilometres leading up to the collision over about half an hour, the applicant drove his vehicle in a highly erratic and dangerous manner.  Three witnesses, who were driving three separate cars in the area, provided evidence of eight occasions when the applicant either drove onto the wrong side of the Pacific Highway and then corrected erratically, overtook dangerously or pulled out onto the highway without warning.  Fatalities were only prevented by the other drivers involved taking emergency action to avoid being hit by the applicant’s semi-trailer.  One driver, Mr Lewis, was forced onto the wrong side of the highway by the applicant. 

2. In addition to these incidents, immediately before the collision two other cars travelling southbound on the Pacific Highway were narrowly missed by the applicant before he hit the victims’ car.  One of these cars had to swerve off the road into a ditch to avoid being hit by the applicant’s semi-trailer and the other had to swerve left to avoid him, missing the semi-trailer by inches. 

3. Leaving aside the people in the victims’ vehicle, 10 other persons (11 if one includes the applicant’s passenger) were lucky to escape with their lives as a result of the applicant’s driving.  One of these people, Mr Armstrong, had obtained the registration number of the applicant’s semi-trailer and reported his dangerous driving to the Grafton Police at 2.43pm on 1 February 2001, about 15 minutes before the fatal collision.

1. The applicant’s course of dangerous driving was aggravating in itself.  However, an additional aggravating feature in respect of it was that it demonstrated that throughout this part of his journey the applicant had lost and then regained control of his vehicle in circumstances where he must have known he had fallen asleep and was a danger to other road users.  He clearly woke up on numerous occasions on the wrong side of the road and then corrected violently.  Nevertheless, he continued his journey in heavy rain; the weather conditions at the time described by one witness Mr Lewis as “almost cyclonic” and “quite appalling”.  The applicant’s speed, although not by and large above the legal speed limit, was too fast for these conditions. 

1. His Honour took these matters into account and, in sentencing the applicant, said:

   “Those witnesses provided compelling evidence of a course of erratic – and seriously erratic –  driving on the part of the offender, stretching over a substantial period of time and over a distance in excess of fifty kilometres.  Whilst it is true the driving was not erratic over every moment of that journey, the number, nature and the spread of those incidents observed by the various witnesses establishes that the incident, which occurred at Tabbimoble could not be regarded as an isolated incident but was consistent with an earlier pattern of driving and consistent, also, with the driver of that prime mover having had a number of warnings, arising out of these incidents, which would have caused any responsible motorist, let alone one driving a heavy semi-tailer, to take stock of the situation, stop and obtain sufficient rest.  That course of driving ought to have made it perfectly plain to the offender that he simply could not have continued his journey no matter how urgent the necessity for him to reach Brisbane to deliver his load.”

2. Those findings were open, if not inevitable, on the evidence and, in my view, accurately sum up the proper basis for sentencing the applicant. 

3. The applicant relies on a number of grounds and the submissions relating to them overlap to a considerable degree.  Although little purpose is to be served in dealing with them all individually, one matter that does call for some particular comment is Ground 1 to the effect that his Honour misdirected himself by placing too much emphasis on the judgment in R v Whyte (2002) 55 NSWLR 252. In that case, this Court revised and reformulated the guidelines laid down for cases of this nature in R v Jurisic (1998) 45 NSWLR 209 in the light of what had been said by the High Court in Wongv The Queen (2001) 207 CLR 584 and Cameronv The Queen (2002) 209 CLR 339 and by this court in R v Sharma (2002) 54 NSWLR 300. It also took into account the provisions of s 21A (particularly s 21A(4)) and s 42A of the Crimes (Sentencing Procedure) Act1999, both of which require the Court to have regard to guideline judgments as well as other matters specified in s 21A. Section 21A has since been replaced but subs (4) remains the same.

1. In his written submissions, counsel for the applicant in relation to this ground appears to identify the principles of sentencing with those subjective matters favourable to the applicant. This is a mistake. The principles of sentencing, including those set out in s 21A(2)(a), include objective features of the offence, the need for general and personal deterrence, protection of the community, the need for punishment, as well as subjective features both favourable and unfavourable, see in particular s 21A(2)(i) and (j).

1. I do not see in his Honour’s Remarks on Sentence any failure to take into account the subjective considerations favourable to the applicant.  He accepted and took into account that the applicant had been depressed at the time of the offences due to the turmoil in his personal life, and that his offending (including previous and subsequent offending) was a manifestation of this turmoil.  This was reflected in both the head sentences and the finding of special circumstances. 

2. The sentencing judge also accepted that the applicant was remorseful.  He had expressed remorse to a psychologist, Miss Kathleen Barrier, and to Ms Lynch of the Probation and Parole Service.  His Honour was prepared to accept the applicant’s remorse as genuine despite the fact that the applicant had not complied with previous probation requirements, had driven whilst disqualified twice since the present offences, and had been described by Ms Lynch, as a man who:

   “has difficulty in accepting responsibility for his offending behaviour by his continued blaming of the system and his poor choice of associates.  The offender has also failed to take advantage of the opportunities afforded him by both the court and this Service by way of a previous supervised Section 9 bond”.

3. One matter that I would like to comment on is that his Honour regarded this as an early plea of guilty.  I do not see it in that way.  The position from the day of the accident was that the applicant had driven onto the incorrect side of the road and, in attempting to correct, had collided with a vehicle, which had been forced by his driving to take evasive action.  He could have pleaded guilty at the committal and argued any disputed issues of fact in the sentencing proceedings.  Instead of that he pleaded not guilty on arraignment and disputed the pharmacological evidence and the evidence of a number of witnesses relating to his earlier driving.

1. The examination of these witnesses took something like two and a half days and it was only on the morning of the fourth day that he changed his pleas to guilty. This change of pleas certainly had a utilitarian value and he is entitled to have it taken into account in his favour.  It saved probably four or five days of the actual trial before a jury, but to describe it as "an early plea" is, in my view, a misuse of the word "early".

1. R v Whyte and R v Jurisic deal with typical cases as outlined in para [204] of Whyte, but this was not such a typical case.  He was not such a young offender, being aged 31 at the time.  He had been of generally good character, but in the months before these offences he had been charged with, and was subsequently convicted of, driving a conveyance without the consent of the owner, 2 counts of goods in custody, possessing a prohibited drug, larceny, and failure to allow a blood sample to be taken.

1. He also had a bad driving record.  His Honour did not regard it as so bad for a truck driver, but it certainly cannot be classified as a good one.   In the two years prior to this unfortunate accident, there were three fines for exceeding the speed limit by more than 15 kilometres an hour, another exceeding the speed limit and one of negligent driving.  There were 2 persons, not 1, who had been killed, and they were both strangers.

1. The applicant suffered no sufficient injuries, but his Honour did find genuine remorse and a plea of limited utilitarian value.

1. Turning to the list of aggravating factors set out in paras [216] and [217] of Whyte, I have already referred to the fact that 2 persons were killed.  The number of persons put at risk extended beyond those killed and included Mr Brazier, the drivers and passengers of the two vehicles ahead of Mr Brazier's vehicle, who had to take evasive action to avoid collision, the persons who gave evidence on the voir dire of their observations of the applicant driving for a half hour and 50 kilometres prior to the collision and, indeed, any other persons, at least those travelling south, who were on the relevant part of the roadway at the time.  His Honour found the speed was not excessive in the sense of beyond the speed limit, but a bit too high having regard to the weather conditions.

1. I have already referred to the amphetamines and their “coming down” stage and to the length of time during which others were exposed to risk.  The degree of sleep deprivation and the ignoring of warnings can be considered together and I won't repeat the facts relating to that but, in summary, the applicant had very little sleep for close to 18 hours, and should have realised that he was too tired to continue driving.

1. Beyond that, there was the driving described by the witnesses over the previous 50 kilometres.  This obvious difficulty in controlling the vehicle must have brought home to the applicant that he was simply too fatigued to drive, and to continue driving in those circumstances constituted a complete negation of his responsibilities to his fellow road users. It would not have been surprising if more people had been killed.

1. This is not a case of simply one or two aggravating factors such as referred to in Whyte and Jurisic, but the combination of a significantly large number of such matters.  It does not lessen the moral culpability to say that the applicant was not intoxicated.

1. As Whyte and Jurisic make clear, where there are a number of such aggravating factors and the moral culpability is high, a sentence higher than the three years indicated as a guideline may be appropriate.  In my view, this was such a case.

1. As pointed out, and Mr Bonnici referred to this, in Jurisic at 228 citing R v Musumeci (CCA – 30/10/1997), the legislature has always placed a premium upon human life, the real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life, or in this case, two human lives, there is a need for public deterrence in this type of case, the courts must tread warily in showing leniency for good character in such cases, and persuasive subjective circumstances must not lead to inadequate weight being given to the objective seriousness of the offence. 

2. Although it has undoubtedly been said many times before, it bears repeating yet again that motorists must not drive when they are over tired and this applies particularly to long distance truck drivers in control of heavy vehicles attempting to meet deadlines.  In cases such as the present, general deterrence is an important element in the sentencing process.

3. For these reasons, I am satisfied that the head sentence of 6 years was well within the range of a proper sentencing discretion.

1. Counsel for the applicant has made special reference in his submissions to his Honour's finding of “special circumstances” and has submitted that, the way the sentence was structured, insufficient weight was paid to them.

1. I have already referred to the considerations that his Honour referred to when finding special circumstances.  They are set out in more detail in the report of Katherine Barrier, which was exhibit 1 before the learned sentencing Judge.

1. These offences occurred at a time when his life had become somewhat chaotic with his attempts to save his marriage, but its ultimate breakdown, his engagement of other drivers to do the driving of his truck for him, and the fact that those attempts also turned out to be disastrous.  There was the loss of his children and he ultimately went back to long distance driving when he was depressed and, as I say, his life was in a state of turmoil.

1. In those circumstances, I have ultimately - and after a lot of thought - come to the conclusion that the special circumstances, including his depression, the fact that he had not previously been in gaol and that, until this turmoil in his life, he had not committed any offences other than the traffic matters for which he had been fined, although his Honour found special circumstances and took them into account, in all the circumstances, he should have taken them into account to a degree more favourable to the applicant and that, accordingly, some adjustment of the nonparole period is appropriate.

1. I would, therefore, propose that the application for leave to appeal be granted.  I would confirm the head sentences in each case.  I would set aside the nonparole periods.  On count 1 I would fix a nonparole period of three years commencing on 2 May 2002 and expiring on 1 May 2005, and in respect of count 2, I would fix a nonparole period of two and a half years commencing on 2 May 2003 and expiring on 1 November 2005. I would confirm the order for disqualification from holding a driver's licence.

1. WOOD CJ at CL:  I agree.  I only add that I would specify the first day in which the applicant will be eligible for release on parole would be 1 November 2005.

1. GROVE J:  I agree.

1. WOOD CJ at CL: The orders of the Court will be as stated.

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LAST UPDATED:               22/12/2003