R v Demasi No. Sccrm-99-94 Judgment No. S325

R v DEMASI
[1999] SASC 325

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ. This is an appeal against a sentence imposed by the District Court.
The appellant was found guilty by a jury of causing bodily harm by driving in a manner dangerous to the public.
The maximum penalty for that offence is imprisonment for four years, and licence disqualification for at least one year.
The judge sentenced the appellant to imprisonment for two years and fixed a non-parole period of three months. He declined to suspend the sentence. He disqualified the appellant from holding or obtaining a driver’s licence for three years.
The offence was committed on 21 November 1997. The appellant was driving a loaded semitrailer. He was driving west on Grand Junction Road and approaching a railway level crossing.
The evidence must have satisfied the jury that at the relevant time the warning lights at the level crossing were flashing. The evidence suggested that the crossing was well lit, and that the warning lights were plainly visible. The lights were therefore indicating the presence of an approaching train. At least one car travelling east had stopped at the level crossing.
The appellant was travelling at a moderate speed. It is clear that he failed to see the warning lights. On the evidence, there was plenty of time for him to have brought his truck to a safe halt at the level crossing. The appellant claimed that the warning lights began to operate only as he entered the level crossing, but the jury must have rejected that claim. The District Court Judge noted that the warning lights had been operating for 52 seconds when the collision occurred.
The appellant drove onto the level crossing without stopping, and almost immediately collided with the locomotive of the approaching train.
The locomotive was derailed, as were some of the rolling stock. The judge does not quantify the amount of damage done to the locomotive and to the rolling stock, but it must have been considerable.
Luckily the crew of the locomotive were not badly hurt. Hence the charge of causing only bodily harm.
The appellant is 41 years of age. He appears to be a hardworking man who has always looked after himself and his family. He is at present on worker’s compensation for injuries that he sustained in the accident. He has suffered a number of problems as a result of the accident.
The appellant has a few minor traffic convictions, but nothing of any significance.
There is no suggestion that alcohol or drugs played a part in this accident.
The appellant was sentenced on the basis of a short term, but serious lapse in attention. There were no aggravating circumstances such as excessive speed or bad driving in other respects. There is no suggestion of a deliberate attempt to beat the train. It is a case of a failure to keep a proper look-out, but a failure that, in the circumstances, amounted to dangerous driving.
Nevertheless, the offence remains serious. Drivers of motor vehicles, and especially drivers of heavy vehicles like this, must be alert to the damage that they can cause. They must be reminded of the need to ensure that they remain fully alert.
It is fortunate for the appellant that the injuries to the railwaymen were not more severe. He could easily have faced much more serious charges that would have resulted in a more substantial term of imprisonment. There is also the factor of the substantial damage to property.
However, allowing for all that, I consider that a sentence of one half of the maximum was too heavy under all the circumstances.
It is appropriate to draw a distinction between those who knowingly and recklessly cause disaster through bad driving, or through the consumption of drugs and alcohol, and those whose crime lies in a momentary and inadvertent failure to exercise proper care. To say that is not to say that the offence is not serious. It is merely to say that when there are not aggravating features, there is greater room for leniency.
I agree that deterrence plays a major part in sentencing for this offence. It is a not uncommon offence. However, an offence like the present one does not attract the public outrage that is attracted by offences involving reckless driving or drugs or alcohol.
I do not consider that there is anything inconsistent between what I have said and what was said by this Court in R v Hicks (1987) 45 SASR 270 and R v Van der Heyden (1990) 55 SASR 316.
I would set aside the sentence imposed, and substitute a sentence of imprisonment for one year.
The judge fixed an unusually low non-parole period of three months. That reflects the appellant’s good character and poor health. Although I have reduced the head sentence substantially, I would fix the same non-parole period. I consider that a lesser non-parole period would not adequately reflect the gravity of the offence.
Finally, in all of the circumstances I would suspend the sentence. In declining to suspend the sentence that he imposed, the District Court Judge was much influenced by the need to send a clear message to drivers of heavy vehicles to ensure that they are alert and suffer no fatigue.
That is an appropriate consideration. But the appellant’s personal circumstances argue strongly for suspension. So does the absence of any aggravating features. These matters have to be put in the scales, along with the need for deterrence. The absence of aggravating features was regarded as a factor favouring suspension in the cases to which I have referred.
Accordingly, I would allow the appeal. I would set aside the sentence imposed by the District Court. I would substitute a sentence of imprisonment for one year, and in relation to that head sentence fix a non-parole period of three months. I would suspend the sentence upon the appellant entering into a bond to be of good behaviour for a period of two years, on his own undertaking in the same of $500. I would order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of three years.
BLEBY J. I agree with the reasons of the Chief Justice.
WICKS J. I agree with the reasons of the Chief Justice.

[1999] SASC 325

22 July 1999