R v Fong (No. 2)

[2020] NSWDC 275

District Court

New South Wales

Medium Neutral Citation:	R v Fong (No. 2) [2020] NSWDC 275
Hearing dates:	04 June 2020
Date of orders:	04 June 2020
Decision date:	04 June 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 44-46
Catchwords:	CRIMINAL LAW – severity appeal – negligent driving occasioning grievous bodily harm offence – first time offence – impact of appellant’s remorse on sentence
Legislation Cited:	Crimes Act 1900 (NSW), s 52A Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 20 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 10, 23, 66, 73, 73A, 98 Road Transport Act 2013 (NSW), ss 117, 203
Cases Cited:	Blundell v R (2008) 70 NSWLR 660 Dyno Nobel Asia Pacific Pty Ltd v Environmental Protection Authority [2017] NSWCCA 302 Jodeh v R [2011] NSWCCA 194 Khoury v R [2011] NSWCCA 118 Le v R [2019] NSWCCA 181 R v Fong [2020] NSWDC 214 R v Kain [2004] NSWCCA 143 R v Mitchell (2007) 177 A Crim R 94 Thewlis v R (2008) 186 A Crim R 279 Veen v The Queen (No.2) (1987) 164 CLR 465
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr M Fong
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the appellant
File Number(s):	2019/139084
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 29 January 2020 Before: Magistrate E Ellis File Number(s): 2019/139084

Judgment

BACKGROUND

1. On 19 November 2018, between 4:30pm and 4:40pm, the appellant was reversing his white Ford Falcon Ute out from next to a petrol bowser at a 7-Eleven station at Toukley. His intention was to park his Ute in a parking bay some metres behind him. Whilst reversing, he backed into a pedestrian, Mrs Joan Horsey, who was in the process of returning to her car after going into the shop. Mrs Horsey suffered grievous bodily harm in the form of very serious injuries to her legs.

2. The appellant was charged and convicted in the Wyong Local Court of the offence of negligent driving occasioning grievous bodily harm, contrary to s 117(1)(b) of the Road Transport Act2013 (NSW) (‘RT Act’). For a first time offence of the kind in question in this case, the maximum punishment for negligent driving causing grievous bodily harm is imprisonment for 9 months and/or a fine of 20 penalty units. This maximum punishment falls below the Local Court’s general jurisdictional limit for trying indictable offences summarily.

3. On 29 January 2020, the appellant was sentenced to the imposition of an intensive correction order for 7 months. He was also disqualified from driving for 18 months. On the same day, the appellant filed an ‘all grounds’ appeal against both his conviction and sentence. Upon the filing of the appeal execution of that sentence was stayed.

4. On 15 May 2020, the appellant’s appeal against conviction was dismissed. He now pursues his severity appeal.

CIRCUMSTANCES OF OFFENDING

5. I described the circumstances of the offending when dismissing the appellant’s appeal against conviction: R v Fong [2020] NSWDC 214. To paraphrase, I found the appellant negligent when attempting the inherently risky manoeuver of reversing his truck from adjacent to the bowser to a parking bay behind him, in circumstances where the rear vision camera he installed did not provide full visibility and the visibility of the rear vision windscreen. He did not, and could not, see Mrs Horsey.

6. The nature of the injuries a victim suffers is relevant to the objective gravity since “grievous bodily harm” covers a wide range of injuries: R v Mitchell (2007) 177 A Crim R 94 at [27]. The objective seriousness is heightened by the severity of Mrs Horsey’s injuries. These included: a ‘degloving’ from the knee to the ankle joint on her left leg (meaning the tearing off of a substantial section of her skin, thus severing blood supply) and a chronic right heal wound or ulcer which required the debridement of the right heel wound (that is, removal of tissue) and the placement of a skin graft.

7. The degree to which an offender’s conduct offends against legislative objectives expressed in a statutory offence is a matter of significant weight in considering the objective gravity of the offence. Section 117(1)(b) falls amongst a range of provisions categorised as “dangerous driving” offences. The relevant mental element here is negligence. As noted in the reasons for dismissing the appeal, the offender was not charged with an offence under s 52A(3) of the Crimes Act1900 (NSW) – a much more serious offence than the offence upon which the offender has been convicted. It was also noted in the reasons for dismissing the conviction appeal that s 117(1)(b) of the RT Act identifies several states of mind: negligence, recklessness and furiousness. On this scale, negligence is less serious than the other states of mind.

8. There was plainly no planning. The dangerous driving occurred over a very small distance, measured in no more than a metre or two. To some degree, the conduct involved momentary inadvertence or misjudgement and subordination by the driver to what was truly important – the welfare of pedestrians behind the vehicle – to the driver’s short term gain of obtaining a park, with the offender thinking he could essay the manoeuver. I return to this again when addressing culpability, which I consider is the more appropriate frame for reference to considering the appellant’s state of mind.

9. I would characterise the offending at being at a point between being slightly above the low range of offending for an offence of this kind.

SUBJECTIVE CIRCUMSTANCES

Culpability

10. Culpability focusses upon an offender’s moral responsibility for offending. It is conceptually distinct from the objective seriousness of an offence, which, as here, may be higher when significant harm has been caused.

11. For an offence like this, the level of culpability is linked to the degree to which the offender abandoned responsibility. A relevant circumstance here is that it is not the position that the appellant took no precaution before he reversed. As I found in the conviction appeal, he did look behind his right shoulder. He also looked at his camera. To a degree, the appellant reposed a confidence in the efficacy of his camera which was mistaken or misconceived. This does not negate his responsibility in the commission of the offence, but it does lessen his culpability. Unfortunately for him, and very sadly for Mrs Horsey, as I found in the reasons dismissing the appeal against conviction, the ‘system’ that he deployed to guard against the risk of harm when reversing his car was flawed for those pedestrians who were unfortunate enough to fall within the blind spot.

12. The existence of that blind spot was, as I also found, something that the appellant was aware of before he commenced to reverse his car. Having regard to that awareness, in my view, for reasons that were not explained, the appellant gave primacy to his desire to obtain a park in the parking bay to giving proper consideration to the risk that in reversing into that spot, he might cause injury or damage to pedestrians or other vehicles in his path (although the risk of injury to pedestrians was much more significant). It is this which makes the appellant’s conduct culpable, but it is culpability at a lower level than that which is commonly found for offences of this kind.

Appellant’s background

13. The appellant has been happily married for 22 years. As indicated below, his wife prepared a written testimonial. That reference noted that the appellant had suffered a challenging upbringing – when aged 3, his father died and his mother abandoned him. He was brought under the care of relatives who reportedly mistreated him. His wife mentioned these things to indicate his progression to a caring, moral and strongly religious man.

14. He is self-employed as a sub-contractor to the NBN, as a qualified broadcasting technician and communications rigger. Unfortunately, after police had seized the truck which was used in the offending, the truck and the equipment had been stolen and burnt; causing the appellant to suffer a substantial financial loss – the truck was used for the purposes of the appellant’s small business.

Antecedents

15. There were no prior offences of like kind. There was a very minor traffic infringement over a decade before the offending conduct.

Remorse

16. There is no doubt at all that the appellant was genuinely remorseful. It was to his credit that immediately after the collision, his impulsive concern was to give aid to Mrs Horsey. Immediate assistance to a victim is a factor a Court may take into account in mitigation: Thewlis v R (2008) 186 A Crim R 279.

17. Before the Local Court, the appellant relied upon a written reference of his wife, Holly. She spoke, amongst other things, of his since having suffered nightmares and panic attacks.

Good character

18. In addition to the reference from his wife, the appellant relied upon a reference from an overseer and instructor for the Jehovah’s Witnesses, Mr Stephen Scanlon. He said that the appellant had been a volunteer Christian Minister for 25 years; spending around 20 hours each week teaching Bible readings for no cost. Having known him for nearly 20 years, Mr Scanlon opined negligence and disregard for another human life was totally out of character for the appellant.

19. A similar written reference was supplied by George Alexiuc, a Minister of Religion. Mr Alexiuc has known the appellant for a much smaller period of time than Mr Scanlon. The reference emphasised his devotion to worship and his caring and considerate nature to others.

Co-operation to authorities

20. Although he did not enter a plea, the appellant volunteered to give an ERISP interview. This yielded some utilitarian benefit in the investigation, as was illustrated when the Crown later relied upon what he said in that interview to assist it to prove its case. I referred to some of that evidence in my reasons for dismissing the appeal against conviction, especially on the issue of the appellant’s awareness of the adequacy, or lack thereof, in his vision of what was behind the car. Against that, I do not consider that the Crown would have been unable to prove its case without this evidence. At any rate, information volunteered by an offender does not constitute “assistance” for the purpose of s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”): Le v R [2019] NSWCCA 181.

21. The main significance of the appellant’s assistance was to re-inforce my impression of his strong remorse.

Likelihood of re-offending

22. Before the Local Court, the appellant relied upon a report from the Wyong Community Corrections Office dated 29 January 2020. The community corrections officer recorded the appellant’s observation that he could have done more to mitigate the risk. What “more” he could have done was not elaborated in the report. That was, I thought, somewhat inconsistent with his stance during the conviction appeal, where he sought to portray the event as a freak accident and where he was entitled to assume that pedestrians, like Mrs Horsey, would take steps to protect themselves.

23. Despite his abundant remorse, I am troubled whether, on the basis of the stance he took at trial, the appellant has a full insight into the nature of his offending. I am conscious that the corrections officer assessed his prospect of re-offending to be low. Nevertheless, I was concerned about the stance he took at trial, which I have just outlined, to the extent that it evinced an attitude that, as a motorist, he is entitled to assume that pedestrians in the vicinity of his motor vehicle will look after their own safety. The way an offender conducts a trial may be taken into account as a subjective factor: R v Kain [2004] NSWCCA 143 at [43] (in relation to remorse). I consider it relevant to considering the level of insight into offending which itself is relevant to the prospect of re-offending.

24. Nevertheless, before me, his legal representative indicated that since the offending occurred, the appellant has installed reversing buzzers, intended to provide a further level of protection against this type of problem occurring in the future.

25. Further, I am satisfied that the appellant’s experience of the criminal justice system has produced a very sobering effect upon him. I therefore am inclined to agree with the view of the correctional officer that the prospects of his re-offending are low.

Sentencing assessment report

26. Relevantly, the report affirmed the appellant’s concern and empathy for Mrs Horsey and awareness of how his actions have impacted her and her family; as well as those people who witnessed the accident.

27. The corrections officer opined that he was suitable to undertake community service work.

Hardship to others

28. The appellant’s wife noted that she is a dependent upon the appellant. She is unable to work because of what a neurologist diagnosed as atypical hemiplegic migraines and a benign brain tumour which produces multiple stroke-like episodes. The appellant does the vast majority of driving for them both.

29. Mr Scanlon noted that the appellant also drove every day; not only for his work but also as part of his service to the Ministry. Mr Alexiuc also noted that the loss of his drivers’ licence would impact upon his ability to look after his family, his work and his capacity to deliver pastoral care.

30. In my opinion, the dependence of his wife and his congregation upon the appellant’s use of a vehicle enlivens the sentencing principle of mercy (Blundellv R (2008) 70 NSWLR 660 at [48]).

NATURE OF APPEAL

31. The Court’s powers on a severity appeal are to set aside, vary or dismiss the appeal (Crimes (Appeal and Review) Act2001 (NSW), s 20(2)). By ‘varying’ a sentence, the Court may set aside the sentence of the Local Court and impose some other sentence of a more or less severe nature (Crimes (Appeal and Review) Act, s 3).

32. The Court is required to exercise the sentencing discretion afresh. Being an appeal by way of rehearing, ordinarily, the Court would recognise any advantage that the Magistrate had, but, as I indicated in the appeal against conviction, there was no oral evidence in the Local Court. In any event, the Magistrate’s order on penalty was based on facts before the Magistrate, not all of which were accepted by me in my decision on the appeal against conviction.

33. In this case, the learned Magistrate imposed an intensive corrections order. That reflected her Honour’s view that no penalty other than imprisonment was appropriate (s 5(1) of the Act), but also that the sentence could be served by way of intensive correction in the community (s 7(1) of the Act). It also reflected a view that community safety was paramount (s 66(1) of the Act). Her Honour imposed the standard conditions (s 73(1) of the Act) and imposed, as an additional condition, that the appellant perform 80 hours of community service work (s 73A(2)(d) of the Act). Her Honour then imposed the additional punishment of a disqualification of the appellant’s drivers’ license, (pursuant to s 204(1) of the RT Act).

CONSIDERATION

34. I take the maximum punishment for this offence as a legislative guidepost.

35. I have also given close consideration to the various principles under s 3A of the Act. This case is a vivid illustration of the truism that these sentencing principles can pull in different directions (Veen v The Queen (No.2) (1987) 164 CLR 465 at 476).

36. On the one hand, general deterrence, keeping the offender accountable and the need for recognising the very serious harm done to Mrs Horsey are all very important considerations. However, given the appellant’s reduced culpability for the offending – relying as he did upon ineffective camera coverage – his remorse (evidenced virtually from the moment he first saw that Mrs Horsey was injured), his otherwise good character, his first-time offending (for an offence of this kind) for a driver who uses his car regularly (on a daily basis) for work, as well as religious and other domestic purposes and finally, his low likelihood of re-offending are circumstances which individually and, in combination, constitute a powerful subjective case which diminish the significance to the principles of specific deterrence, protection of the community and the value of denunciation or retribution. I further note that the principles of retribution and denunciation may have a lesser role to play in an offence which has negligence as the fault element in any event, even where there are serious consequences (compare Dyno Nobel Asia Pacific Pty Ltdv Environmental Protection Authority [2017] NSWCCA 302 per Simpson JA (Hulme JA and Wilson J agreeing) at [53]-[54]).

37. I also consider that it is more likely than not that the subsequent burning of the appellant’s vehicle and his tools, which have wrought significant economic loss to the appellant, may be regarded as connected to the offending conduct. I do not infer that this event was entirely co-incidental. This matter further serves to diminish the considerations of specific deterrence and retribution. It serves as a reminder to the offender of his offending conduct and left him with an ‘affliction’ consequent from (that is connected to) his offending (Jodeh v R [2011] NSWCCA 194 per McCallum J (as her Honour then was, McClellan CJ at CL and Johnson J agreeing) at [49]).

38. The appellant’s legal representative submitted that the s 5 threshold was not crossed. The Crown did not seek to be heard to contradict that submission. In my view, the nature and circumstances of this offending conduct is such as to not exceed the threshold of s 5 of the Act. To hold that the threshold was crossed is to give excessive weight to the need for retribution and denunciation. But even if I was of the view that the s 5 threshold was crossed, in my view, given that this is first-time offending for the subject of offence, for an offender who has had a long driving history, without any real blemish, I am not satisfied that the concern of community safety is paramount, so as to warrant the imposition of an intensive correction order.

39. The appellant’s legal representative submitted that an order under s 10 was appropriate. The Crown did not argue against that submission.

40. I am not persuaded, having regard to the very serious nature of the injuries, the offending can be regarded as trivial. Further, although I have noted that there is a reduced culpability, the finding of negligence made at trial and on the conviction appeal reflects the view that the serious injuries resulted from failing to act upon a risk that was actually known to the appellant.

41. In my opinion, having regard to my overall synthesis of the considerations I was inclined to think that a community corrections order of 8 months under s 8(1) of the Act would be appropriate. Such order contains punitive and denunciative, as well as rehabilitative elements (Khoury v R [2011] NSWCCA 118 per Simpson J at [11], Davies J and Grove AJ agreeing). It also makes the appellant accountable; whilst also generally allowing the appellant to continue his livelihood as a self-employed tradesperson, for his own benefit and that of his wife; as well as servicing his religious community. On that basis, the standard conditions would apply (s 88 of the Act).

42. However, subsequent to that indication being provided during my delivery of reasons, I was informed by the lawyers that such order would carry the automatic consequence that the appellant would be subjected to a period of disqualification for a period of 12 months. Such result does not reflect the Court’s intention; which is to ensure that the appellant is not prevented from being able to drive his vehicle on account of the automatic consequence of a conviction. The legal representative for the appellant, without opposition from the Crown, submitted that an order under ss 9(1)(b) and 10(1)(b) of the Act should be made.

34. On reflection, I am inclined to think that an order should be made under s 10(1)(b) of the Act, which means that he is guilty of the offence, but the Court does not proceed to conviction. What I have earlier said about the aspects of extenuating circumstances is accordingly modified.

ORDERS

44. For these reasons, I vary the sentence so that the appellant is sentenced to a conditional release order for a term of 8 months, commencing 4 June 2020, subject to the standard conditions under s 98 of the Act.

45. The appellant is to understand that the result that he is not convicted of the offence is conditional upon his not committing any offence during the said period of the order and that he must appear before the Court, if he is required to do so, during the term of the order.

46. For the avoidance of doubt, I set aside the penalty that the appellant is subject to a period of disqualification from driving.

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Decision last updated: 05 June 2020