R v Duff No. Sccrm-03-10
[2003] SASC 106
•11 April 2003
R v DUFF
[2003] SASC 106Court of Criminal Appeal: Doyle CJ, Lander and Martin JJ (ex tempore)
DOYLE CJ, LANDER & MARTIN JJ: This is an application for leave to appeal against sentence.
The applicant was convicted after the trial before a judge and jury on one count of causing grievous bodily harm by dangerous driving and on a further count of causing bodily harm by dangerous driving.
He faced maximum penalties of ten years imprisonment (with a minimum licence disqualification of five years) and four years imprisonment (with a minimum licence disqualification of one year) respectively.
The judge imposed a single sentence of imprisonment for three years six months. He set a non-parole period of one year six months.
The complaint is that the sentence is excessive.
A judge of this court refused leave to appeal.
The applicant has requested that his application for leave to appeal be considered and determined by the Full Court. The applicant did not ask the Full Court to order that the application be listed of oral argument.
The application for leave to appeal has been considered by the court in private. The court for that purpose comprised the Chief Justice, Lander J and Martin J.
The court has considered the sentencing remarks, the transcript of argument before the single judge and the reasons of the single judge.
The applicant did not submit any written material for the consideration of the court.
The applicant was employed as a long distance truck driver. He was driving in the course of that employment when the offences were committed. Prior to the accident he had driven from Sydney to Melbourne, then Melbourne to Adelaide then to Elizabeth and then back to Adelaide where his truck was loaded. He then began to drive to Melbourne. Over the 24 hour period before the accident the applicant had at most eight and one-half hour’s rest, although the judge found that it was probably less than that.
The judge sentenced the applicant on the basis that he was either so tired that he lost concentration or that he fell asleep at the wheel of his vehicle.
The applicant was driving a large truck. The accident happened in daylight on a freeway. Visibility was good.
The applicant drove his truck into the rear of a slow moving vehicle that was travelling in the same direction as the applicant and measuring the thickness of the road surface. This vehicle was described as a large vehicle, yellow in colour, with appropriate warning lights and a sign on it. The applicant had driven past another vehicle which had a sign on it warning road users that ahead of them was a slow moving vehicle. Before the single judge there was an argument that this earlier vehicle was so far back from the vehicle with which the applicant collided, that this might have given rise to some uncertainty as to which vehicle was the slow moving vehicle about which the warning was given.
However, the judge’s findings on these topics are not open to challenge. As well, the applicant did not give evidence. The judge was entitled to sentence on the basis that there was no excuse at all for the accident.
Accordingly, the applicant stood to be sentenced on the basis that his driving was completely inexcusable. There was simply no reason at all why he did not see and avoid the slow moving vehicle. There was plenty of room to do so. It is not uncommon to encounter maintenance and other vehicles on a highway, moving at a slow speed.
The accident had tragic consequences. Mr Fatchen, one of the passengers in the vehicle with which the truck collided, is now a paraplegic. His life has been completely changed, and his injuries have had a significant effect on his whole family.
The other passenger was Mr Gregory. He also suffered serious injuries.
The applicant himself was badly injured. He was 32 years of age at the time and was a man of good character. He was a first offender and was truly contrite.
The judge took into account all material facts. He was obviously influenced by the very bad driving, by the dreadful consequences of the accident and by the need to impose a deterrent sentence. He clearly took account of the relevant matters in mitigation.
The sentence that the judge imposed is heavy compared with some other sentences involving this offence and involving the offence of causing death by dangerous driving. But this was a piece of exceptionally bad driving for which there was no excuse. The injuries inflicted were very severe. This was the sort of case in which deterrence was important. Professional drivers, and in particular those driving large trucks at high speeds, must face up their responsibilities to other road users. The judge was entitled to take this matter into account.
The sentence imposed was within the appropriate range, while towards the upper end. There is no arguable error of principle on the part of the judge, nor is it arguable that the judge has erred in any way in relation to the facts. It is not arguable that the sentence is excessive. It is within the appropriate range.
Accordingly, leave to appeal is refused.
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