R v Do

[2000] NSWCCA 459

Reported Decision: [2000] 32 MVR 411

New South Wales

Court of Criminal Appeal

CITATION:	R v Do [2000] NSWCCA 459
FILE NUMBER(S):	CCA 60732/99
HEARING DATE(S):	09/08/2000
JUDGMENT DATE:	3 November 2000
PARTIES :	Regina Van Dieu Do
JUDGMENT OF:	Beazley JA at 1; Wood CJ at CL at 24; O'Keefe J at 25

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0855
LOWER COURT JUDICIAL OFFICER :	Davidson DCJ

COUNSEL :	Crown: R Cogswell SC Respondent: S R Norrish QC
SOLICITORS:	Crown: S E O'Connor Respondent: Voros & Associates
CATCHWORDS:	Manifestly inadequate sentence - character - double jeopardy - manslaughter
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW) Traffic Act 1909 (NSW) Crimes Act 1900 (NSW)
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Howland [1999] NSWCCA 10 R v Musumeci (unreported, NSWCCA, 30 October 1997) R v Rose (unreported, NSWCCA, 23 May 1996)
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60732/99

BEAZLEY JA
WOOD CJ at CL
O’KEEFE J
Friday, 3 November 2000

REGINA v Van Dieu DO

FACTS

This was a Crown appeal against the sentence imposed on the respondent in respect of his conviction on two counts of manslaughter. It was contended that the sentences were manifestly inadequate and that the sentencing judge placed too much weight on the respondent’s good character.

The respondent’s convictions arose from his involvement in a motor vehicle accident in which his fully laden truck, with a gross weight of 21 tonnes, ran out of control, collided slightly with one car, collided into a second car and then crashed into the front of a house. Both the driver of the second vehicle and a 13 year old occupant of the house were killed.

The respondent was found to have failed to observe a warning signal and had accelerated once he commenced his downward travel to reach high speed. However, the facts did not establish that the acceleration was deliberate.

The trial judge sentenced the respondent on the basis that he had been criminally negligent at some point and that there had been an initial abandonment of responsibility. He referred to the principles contained in the guideline judgment in R v Jurisic (1998) 45 NSWLR 209, but noted that they did not displace the exercise of discretion by a sentencing judge. His Honour also took into account the character of and matters personal to the respondent, which he described as ‘substantial’.

HELD

(i) per Beazley JA (Wood CJ at CL and O’Keefe J agreeing): Although the nature of the offences in the present case involve a level of seriousness greater than in R v Jurisic , and this should be a significant matter in determining the sentence to be imposed, it does not necessarily compel the conclusion that the sentence imposed was manifestly inadequate;

(ii) per Beazley JA (Wood CJ at CL and O’Keefe J agreeing): The trial judge did not place any undue weight on issues of character or on matters personal to the respondent;

(iii) per Beazley JA (Wood CJ at CL and O’Keefe J agreeing): Although the sentences were at the very bottom of the range, they were not manifestly inadequate;

(iv) per Beazley JA (Wood CJ at CL and O’Keefe agreeing): In determining whether the sentence is manifestly inadequate, the Court is required to have regard to the principle of double jeopardy. Even if the sentences did fall outside an appropriate discretionary range, when the principle of double jeopardy is applied the Court should not interfere.

ORDERS

Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60732/99


BEAZLEY JA
WOOD CJ at CL
O’KEEFE J
Friday, 3 November 2000




REGINA v VAN DIEU DO

JUDGMENT

BEAZLEY JA: Introduction

1 This is a crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed by Davidson DCJ on the respondent in respect of his conviction on two counts of manslaughter.

2    The manslaughter charges arose out of a motor vehicle accident on 5 June 1998, when the respondent’s fully laden Volvo tipper truck, which he was driving east along Mona Vale Road, ran out of control, collided slightly with one motor vehicle and then collided into another motor vehicle and crashed into the front section of a brick veneer home. The driver of the second motor vehicle was killed, as was a young 13 year old occupant of the house. The respondent was charged alternatively with dangerous driving occasioning grievous bodily harm.

Factual Background

3    The accident occurred in full daylight in fine conditions. The respondent was travelling east along Mona Vale Road towards the Mona Vale cemetery. At the time, the respondent’s truck was fully laden with a gross weight of 21 tonnes. Some little distance before the cemetery there is a hill followed by a large bend in the road where the road flattens out again. At the commencement of the downward grade of the hill, there is a sign that reads “Trucks must use low gear”.

4    The respondent was initially observed travelling up the hill within (and probably below) the speed limit. Upon reaching the downward grade of the roadway, he was seen to accelerate away very quickly, reaching a terrifyingly high speed. Witnesses described the respondent as trying to put the truck into gear and frantically endeavouring to control the vehicle. He also tried to warn others by flashing his lights and sounding the horn as the truck careered out of control.

5    At the bottom of the hill the truck continued on towards a traffic roundabout, narrowly missing an oncoming car. It then mounted the concrete apron of the roundabout, crossed to the other side of the road and collided with the side of an oncoming car, causing minor damage. It then swung back to the correct side of the road, mounted a bank, left the ground and after hitting the ground again veered across an intersection, colliding with a car. The driver of the car was killed. This was the ground for the first count of manslaughter.

6    The truck continued through a barrier and a brick wall and then crashed into a brick veneer house which stood at the north eastern corner of the intersection of Mona Vale Road and Emma Street, causing extensive damage to the house. The truck there came to a halt. As I have already stated, a young occupant of the house was killed. This was the ground for the second count of manslaughter.

7    In finding the respondent guilty of each charge of manslaughter, the jury implicitly found that the respondent had failed to exercise proper control of his truck and was thus guilty of gross criminal negligence. On sentence, the trial judge found, on the balance of probabilities, that the respondent was “doing what [he] could … to bring [the truck] within control”. His Honour accepted however, that the jury’s verdict involving a finding of gross criminal negligence “necessarily connotes a finding of an initial abandonment of responsibility”.

Sentence

8    Manslaughter carries a maximum penalty of 25 years imprisonment. The respondent was sentenced on each charge to imprisonment for 4 years (comprising a minimum term of 3 years with an additional term of 1 year) His Honour ordered that the sentences be served concurrently, to date from 19 July 1999 and to expire on 18 July 2003. The respondent was also disqualified from holding a licence to drive under the Traffic Act 1909 (NSW) for a period of five years, also dating from 19 July 1999.

9    Evidence was adduced on sentence as to the respondent’s good character. The trial judge found he was a hard working and highly regarded person. He has always worked hard to maintain and support his family of four children, the youngest of whom was aged 11 at the date of sentencing. He has a well established reputation as a kind compassionate person who does good works in the community. He has no previous convictions. He does have some prior driving offences. However, the Crown conceded on sentence that having regard to the respondent’s occupation as a truck driver, his driving record was not a matter of serious concern and should not tell against leniency. The respondent was not affected by drugs or alcohol at the time of the accident and did not attempt to flee the scene, although his Honour noted that given the severity of the accident that was not possible.

The Crown Appeal

10    The Crown contended that the sentences are manifestly inadequate, (although no complaint is made as to the order that they be served concurrently) and that his Honour must have been led into error by placing too much weight on the respondent’s admitted good character. The Crown relied upon a number of matters to demonstrate the manifest inadequacy of the sentences imposed. Those matters reflected the matters considered relevant by the Court in its guideline judgment in R v Jurisic (1998) 45 NSWLR 209 It is thus convenient in the first instance to consider that decision.

11    Jurisic was a case involving a plea of guilty to an offence under s 52A of the Crimes Act 1900 (NSW) of driving in a manner dangerous (being the alternative offence with which the respondent was charged). The maximum penalty for that offence is 10 years imprisonment.

12    The Chief Justice at 231 listed the following matters which had been considered in the case law to be relevant to sentence for an offence against that section:

“(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) Degree of intoxication or of substance abuse.
(v) Erratic driving.
(vi) Competitive driving or showing off.
(vii) Length of the journey during which others were exposed to risk.
(viii) Ignoring of warnings.
(ix) Escaping police pursuit.”

However, as his Honour stated in R v Howland [1999] NSWCCA 10, the list is not exhaustive, but reflects the most commonly occurring aggravating factors in the commission of this offence.

13    Chief Justice continued in Jurisic at 231:

“Paragraph (i) and par (ii) [of the factors listed above] focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.
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 a 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 factor 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.”

14    The Chief Justice also referred with approval to R v Musumeci (unreported, New South Wales Court of Criminal Appeal, 30 October 1997) where Hunt CJ at CL observed that the legislature had always put a premium on human life and that the “courts must tread warily in showing leniency for good character in … cases [under s 52A]” (my emphasis). Hunt CJ at CL also stressed the importance of public deterrence in the case of the offence of driving in a manner dangerous and the need for there to be proportionality between the objective seriousness of the offence and the sentence imposed, notwithstanding that the court was dealing with a young offender of good character.

15    In his remarks on sentence in this case, the trial judge referred to Jurisic. He recognised that the case before him involved two far more serious crimes than was the case there, and that there was no plea of guilty here as was the case there. He noted, however, that the principles stated in Jurisic did not displace the discretionary exercise which a sentencing judge was required to undertake when imposing sentence on a particular offender. He considered that the matters personal to the respondent “were substantial” and that the respondent was entitled to have them taken into consideration on sentence. His Honour also considered that the two charges were closely linked and were part of the one course of conduct. His Honour, correctly, did not treat the circumstances in which the respondent’s family found itself as amounting to ‘special circumstances’.

16    The sentences imposed by his Honour here were not substantially greater than that considered as the starting point by the Chief Justice in Jurisic. In that case there was a plea of guilty, as well as conduct of the type the Chief Justice had identified as indicating an abandonment of responsibility. It is thus necessary to return to the matters upon which the Crown relied to demonstrate the manifest inadequacy of the sentence imposed. As I have already mentioned, those matters were drawn from Jurisic. The Crown submitted that this case involved circumstances and conduct far more serious than that considered by the Court in Jurisic, so that, using that case as a benchmark, it was obvious that the sentence was manifestly inadequate. Here, there were two fatalities, not one as in Jurisic; there was no plea of guilty as there was in that case; and there were two aggravating features of the type identified in Jurisic (only one - speed - being present in Jurisic), namely speed and failure to obey a warning signal, such that this case should also be treated as involving an abandonment of responsibility. I would add that in any event, as the trial judge accepted, the verdicts of manslaughter of themselves imported a finding of abandonment of responsibility. The Crown relied on two additional matters. The first was the fact that manslaughter carries a far heavier maximum penalty than does an offence under s 52A and that should be reflected in the penalty imposed. The sentences here did not reflect the seriousness of the offences of which the respondent was found guilty. The second was that his Honour placed undue weight upon the respondent’s good character, contrary to the principles stated in Musumeci and Juirisic.

17    There can be no doubt that this case involved a level of seriousness, including the nature of the offences involved, greater than was the case in Jurisic. That is a significant matter in determining the sentence which should have been imposed, but does not necessarily compel the conclusion that the sentence imposed was manifestly inadequate so as to either permit or require this Court to intervene.

18    It is necessary at this point to return to the two central attacks made by the Crown on the sentence. First, and this was the case it had advanced at trial, the Crown submitted that this was a case of deliberate acceleration. Senior counsel for the Crown submitted that this conclusion followed from the evidence that when the respondent commenced going down the hill, the truck accelerated quickly, and that the truck had gone out of control, reaching speeds estimated variously as 120 kilometres per hour and (I would interpolate an improbable) 250 kilometres per hour.

19    In my opinion, the evidence does not establish that this was a case of deliberate acceleration. The only evidence of acceleration was that to which I have referred - of acceleration once the respondent commenced his downward travel. The acceleration could have been explained on a number of bases and it would have required something more, by way of evidence, including circumstantial evidence, for his Honour to have been able to make a finding of fact to sentence on that basis. It is apparent that the basis upon which his Honour sentenced the respondent was that there had been a criminally negligent act at some point, probably at the commencement of the downgrade, involving an “initial abandonment of responsibility”. In my opinion, on the evidence, this was the only basis upon which his Honour could have sentenced the respondent. A case of deliberate acceleration is also inconsistent with the immediately subsequent actions of the respondent in trying to bring the vehicle under control.

20    The Crown further submitted that his Honour was led into error by giving too much weight to character which led him to impose a sentence which was manifestly inadequate. Although in Musumeci and Jurisic the court cautioned that the court had to “tread warily in showing leniency for good character” in offences involving circumstances such as here, character is not irrelevant to the sentencing judge’s task. The subjective circumstances of the respondent are not in dispute. He has been a hard working family man and a productive member of the community. Although his Honour considered that these matters were “substantial” I do not consider that he placed any undue weight on them. He stated that they were matters which the respondent was “entitled to have taken into consideration”. His approach in that regard was correct. The sentences imposed do not reflect that his Honour gave undue weight to character. Rather, they reflect the basis upon which his Honour sentenced the respondent, namely by having regard to the degree of criminality involved, which he identified as involving “an initial abandonment of responsibility” (emphasis added). His Honour also took into account (finding that it had been proved beyond a reasonable doubt) that the respondent was travelling well beyond the speed limit when the truck reached the flat area of the roadway but noted that the aggravating circumstances which were frequently present in a case of this kind, were absent. His Honour then had regard to the matters personal to the respondent. There is nothing in the manner in which his Honour has expressed his reasons, or in his description of the relevant personal matters as “substantial” which indicates that his Honour gave inappropriate weight to character.

21    The question remains however, regardless of whether any specific error can be identified, whether the sentence is manifestly inadequate, given the objective seriousness of the offence and the principles referred to in Musumeci and Jurisic (dealing as they do with the lesser offence of driving in a manner dangerous). In determining that question on appeal, the Court is required to have regard to the principle of double jeopardy. That principle requires the Court on a Crown appeal to impose “the least sentence that could properly have been imposed upon the respondent at first instance”: R v Rose (unreported, New South Wales Court of Criminal Appeal, 23 May 1996) at 3; Jurisic at 232; R v Howland at 7.

22    In my opinion, the sentences imposed by the trial judge were not manifestly inadequate, although I consider them to be at the very bottom of the range. However if, contrary to my view, the sentences did fall outside an appropriate discretionary range, I am of the opinion that when the principle of double jeopardy is applied, this Court should not interfere.

23    I would therefore dismiss the appeal.

24    WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Justice Beazley. I agree with her reasons and the orders she proposes.

25    O’KEEFE J: I agree that the appeal should be dismissed for the reasons set out in the judgment of Beazley JA.

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