R v Townsend - [2010] NSWCCA 336

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v TOWNSEND [2010] NSWCCA 336

FILE NUMBER(S):
2010/10098004

HEARING DATE(S):
15 December 2010

JUDGMENT DATE:
24 December 2010

PARTIES:
The Crown - Appellant
Scott Townsend - Respondent

JUDGMENT OF:
Giles JA Hislop J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2010/10098

LOWER COURT JUDICIAL OFFICER:
Williams DCJ

LOWER COURT DATE OF DECISION:
23 September 2010 (Sentence)

COUNSEL:
J Pickering - Appellant
E Ozen - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Appellant
MacLean & Co, Tamworth - Respondent

CATCHWORDS:
CRIMINAL LAW – appeal – sentencing – dangerous driving causing death – sentenced to 300 hours community service and disqualified from holding driver licence for 12 months – Crown appeal based substantially on alleged error in finding defendant not in a hurry and not speeding, with consequential or additional error in assessing low level of moral culpability and inadequacy of sentence – no impairment of offender’s driving ability – evidence of statements at the time by offender that he was late, in a hurry and should not have been speeding – gave evidence that not in hurry and to best of his knowledge not speeding – judge found distressed and upset at the time – no objective evidence of excessive speed – judge found not in a hurry – evidence of statements at the time not uniform – on analysis, statements lacked rationality – judge found momentary inattention or misjudgement – necessary to show error within principles stated in House v The King – findings reasonably open to judge – judge did not automatically reason to low level of moral culpability – assessment of low level of moral culpability open – no errors in relation to other grounds – sentence not manifestly inadequate.

LEGISLATION CITED:

CASES CITED:
Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a guideline judgment concerning the offence of high range prescribed concentration of alcohol under s9(4) of the Road Transport (Safety) and Traffic Management Act 1999 (No 3) of 2002 [2004] NSWCCA 303;
DPP v Samadi [2006] NSWCCA 308;
McBeth v R [2009] NSWCCA 235;
R v Foster [2001] NSWCCA 215;
R v Howland [1999] NSWCCA 10; (1999) 104 A Crim 237;
R v Jurisic (1998) 45 NSWLR 209;
R v Price [2004] NSWCCA 186;
R v Thomson [2000] NSWCCA 209; (2000) 49 NSWLR 383;
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252;
Thai v R [2009] NSWCCA 314.

TEXTS CITED:

DECISION:
Order previously made: Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2010/10098004
GILES JA
HISLOP J
R A HULME J
Friday 24 December 2010

R v Scott TOWNSEND

Judgment

THE COURT: The respondent pleaded guilty to a charge of dangerous driving causing death (Crimes Act 1900, s 52A(1)(c)). The maximum penalty for the offence is imprisonment for ten years. It carries automatic disqualification from holding a driver licence for three years, subject to variation but with a minimum disqualification of twelve months (Road Transport (General) Act 2005, s 188(2)(d)).
On 23 September 2010 Williams DCJ sentenced the respondent to 300 hours of community service and disqualified him from holding a driver licence for twelve months.
By a notice of appeal filed on 26 October 2010 the Crown appealed pursuant to s 5D of the Criminal Appeal Act 1912. The appeal was in terms only against the sentence of 300 hours community service, on the sole ground that the sentence pronounced was manifestly inadequate.
The Crown’s written submissions for the hearing added to the grounds of appeal, and extended to the disqualification. The respondent did not object on either account. The grounds of appeal were -
“Ground 1:His Honour had no reasonable basis for rejecting the veracity and reliability of the statements made by the respondent to Irene Perry and Rosario Rizzuto.
Ground 2:His Honour erred in determining the degree of moral culpability for this offence as being at a low level.
Ground 3:His Honour attributed too much significance to his observations of the significance of the plea in light of his Honour’s claim of a weak Crown case.
Ground 4:His Honour erred in finding that the respondent ‘is not generally a careless or bad driver’.
Ground 5:His Honour did not attribute sufficient weight to general and specific deterrence.
Ground 6:His Honour erred by not imposing a longer disqualification, and in not providing reasons for reducing the automatic period.
Ground 7:The sentence is manifestly inadequate.”
The appeal was heard on 15 December 2010. At the conclusion of the hearing we ordered that it be dismissed, with our reasons to be given later. These are our reasons.
Facts
Prominent in the appeal was complaint that the judge had found that the respondent was not running late and was not speeding. We focus on the evidence material to that question.
On 13 July 2009 the respondent was driving his Toyota Landcruiser east along Carrington Road, Londonderry, towards the intersection with Bennett Road, intending to turn left into Bennett Road. The intersection was a Y intersection or “seagull junction”, with a triangular island used to separate turning traffic from through traffic. A driver approaching the intersection along Carrington Road from the west was faced with signs indicating the intersection about 100 metres and 60 metres before it, and then took a left hand bend through the intersection. The applicable speed limit was 80 kph. There were double unbroken centre lines along the relevant sections of Carrington Road and Bennett Road, with a gap for traffic turning out of Bennett Road.
Mr Korey Russell was driving his Ford utility south along Bennett Road, approaching the intersection. When taking the bend into Bennett Road, the respondent’s Toyota crossed the double unbroken centre lines and entered the southbound lane of Bennett Road. It collided with the driver’s side door of the Ford, causing extensive crush damage. Mr Russell was killed. From tyre marks, the impact was about two metres east of the centre lines, well on the respondent’s incorrect side of the road.
At the time of the collision it was daylight, and the weather was overcast and dry. The respondent was breath tested, with a negative result. A subsequent blood test revealed nothing from which it could be concluded that his driving ability would have been impaired. An examination of the Toyota detected no mechanical defects or failures that may have been a contributing factor to the collision.
The respondent had left his mother’s home to travel to Tamworth. He had stopped at the house of a friend to put a spotlight on the roof of the Toyota. After travelling a short distance along Carrington Road he had pulled over to adjust the passenger side mirror, and had then travelled about 800 metres to where the collision occurred.
The agreed statement of facts included, referring to a recorded police interview -
“12. The accused additionally told police that he had travelled on that road a few times. On this day he was travelling at about the speed limit and had decreased his speed to about 65 kph in order to turn the corner as ‘it’s a pretty tight hair bend’ [sic].
13. The accused could recall ‘coming around the corner’ and seeing the car driven by the deceased. The accused was unable to provide any further details as to how the collision occurred.”
The agreed statement of facts was supplemented by police statements of two persons who immediately came upon the accident, Ms Rosario Rizzuto and Ms Irene Perri. They, and a motor cyclist who also stopped, rendered aid. They saw a man, plainly the respondent, talking on a mobile phone, apparently having called 000.
In her statement Ms Rizzuto said -
“9.          I saw the younger guy on the phone again. He was using a lot of arm gestures. I heard him say, ‘I don’t know what I’ve done to deserve this, why is this happening to me?’ There was more traffic, so I turned to direct the traffic around.
10.          Irene was standing next to the ute, so I walked over to her. The young guy was a short distance away. He said to us, ‘I shouldn’t have stopped to get the lights on the car, ‘cause I’m running late now. I’m on my way to Tamworth. I don’t know what happened. Something happened to my steering. I shouldn’t have been speeding, I’m in a hurry.’
11.          I said, ‘It’s alright mate, just come over here. Everything is going to be ok.’ I tried to reassure him and not have him panic too much. He stood with me and I noticed he was shaking. He seemed to not know what was going on. It looked like he was trying to piece everything together, and that now he was thinking about things, it was starting to affect him.”
In her statement Ms Perri said -
12. … He was shaking and upset. I figured he was the driver of the larger ute. He didn’t seem to know where he was and asked me, ‘Where are we, what suburb are we in?’
13. He got off the phone and then put his hands on his head. He started freaking out and he said, ‘If I didn’t go and put the lights on, I wouldn’t be running late.’ I said to him, ‘What’s that got to do with what’s happened.’ He said, ‘I lost it, I just lost it.’
14. The motorcyclist came to me and told me to get him to sit down and watch him. I tried to get him to sit down and he wouldn’t. He was all edgy. Then he made another phone call, but I didn’t hear much of that conversation because I went back to the smaller car, and then I moved Rose’s car for her – out of the way.”
Ms Rizzuto and Ms Perri did not give oral evidence, and so were not cross-examined.
The respondent gave evidence at the sentencing hearing. He said that he did not have “a recollection of the actual collision”. His evidence in chief included -
“Q. You know sir from the brief of evidence that immediately after the collision there’s some suggestion that you’re talking about firstly the steering on your car and also being late to get to Tamworth because of some lights on your car?
A. Yes.
Q. Did you have lights put on your car that day?
A. I had a roof mounted spotlight put on.
Q. As far as you remember today sir, were you running late to get to Tamworth?
A. No.
Q. Were you, as far as you are aware, in a rush to get to Tamworth?
A. No.
Q. Can you recall anything about being at the scene of the collision?
A. All I can recall is going around the corner and then the next thing I knew that I was involved in an accident.
Q. Can you recall making a phone call to triple 0?
A. Yes.
Q. When you were going around that corner what do you say about your speed going around that corner?
A. To the best of my knowledge I was not speeding.”
In cross-examination the respondent gave the evidence -
“Q. You have very little memory of the event [sic] surrounding the collision itself?
A. Yes.
Q. You’re able to say that you don’t believe you were speeding?
A. Yes.
Q. What do you base that on?
A. Um, the corner is reasonably sharp going around. Um, the road leans, that corner is 80k’s. Normally when I was going – whenever I’d go around that corner, I would – I would be in fifth gear coming up to it and then drop back to fourth gear. I was in a 4.2 litre Land Cruiser, it was diesel. As soon as you take your foot off the accelerator the car would slow down dramatically.
Q. Is your memory dependent on what you had done on previous occasions?
A. It is something that I would have done on every occasion going around a corner.
Q. But you don’t have a specific memory of being in a particular gear doing a particular speed coming around that corner on that particular day, do you?
A. No.
Q. You could have been going faster than you would have done it on other occasions?
A. Yeah, I would have been doing no more than the speed limit.
Q. How can you say that?
A. Because the road’s a 80k’s.
Q. But you have no memory of it?
A. But yeah, it’s a 80k road, you don’t just -
Q. Are you familiar with that area of road?
A. Kind of, yes.
Q. Well, you’ve travelled it eight or nine times or ten times before?
A. Yes, that’s passenger or a driver.
Q. Yeah and you’re well aware that it’s not single lane traffic, that there is oncoming traffic along that particular stretch?
A. Yes.
Q. You’ve experienced that on previous occasions, either as driver or passenger, that there have been oncoming vehicles?
A. On the rare occasion, yes.
Q. And you know there’s warning signs leading up to that particular intersection?
A. Yeah, just showing you that it’s a curved road.”
His evidence in cross-examination also included -
“Q. Do you remember speaking to the two ladies?
A. I remember speaking to one.
Q. Do you remember what you said to her?
A. Um, no.
Q. You’ve read the statements that the two ladies have provided?
A. Yes.
Q. Did that assist your memory at all?
A. Um, they – to the best of my knowledge of what they had said, they’d said that I’d, um, been putting spotlights on my car or something like that and that I’d said that I was speeding and that I was in a rush. If I was in a rush to get to Tamworth, cause I had got to my mate’s place at about 10 o’clock in the morning, I didn’t leave there till about 2.30, if I was in a rush I would have put the spotlight up here in Tamworth, cause I had help up here to do it.
Q. One of those ladies by the name of Rizzuto says that you spoke to her and you said these words,
‘I shouldn’t have stopped to get the lights on the car cause I’m running late now. I’m on my way to Tamworth. I don’t know what happened. Something happened to my steering. I shouldn’t have been speeding, I’m in a hurry.’
Do you remember saying that?
A. No.
Q. Is that the case that you were in a hurry?
A. No, if I was in a hurry I would not have stayed at my mate’s house for about four hours to put my spotlight in.
Q. The other lady, a Miss Perry [sic], claimed you said to her, ‘If I didn’t go and put the lights on I wouldn’t be running late.’ She said, ‘What’s that got to do with what’s happened/’ She says you then said, “I lost it, I just lost it’?
A. No.
Q. You don’t remember saying that?
A. No.
Q. You have no explanation as to how your vehicle came to cross the centre of the roadway and some into collision with the oncoming vehicle?
A. No.”
The judge’s findings as to the respondent’s conduct
After a description of the accident, the judge said that the respondent had no memory of how the accident occurred, and that all that had been ascertained was that “in negotiating this left hand bend off Carrington Road, into Bennett Road, he drifted over the double separation lines and collided with the deceased’s vehicle on its correct side of the road”.
His Honour said, “There is no objective evidence of excessive speed”. He referred to the evidence of Ms Rizzuto and Ms Perri, including setting out what they recalled the respondent saying about running late and that he “shouldn’t have been speeding” and was in a hurry. His Honour said -
“There is no evidence that alcohol or any other drug played any part in the accident despite Mr Townsend’s blood sample containing traces of THC. There is no evidence of deliberate bad driving or an abandonment of the responsibility to drive carefully. What appears to be the situation is that, either through inadvertence or mis-judgment of the road’s configuration relative to his speed, Mr Townsend has moved to the incorrect side of the road and a collision has occurred with tragic consequences.
…
Despite what is contained in the evidence of the two witnesses that I have referred to, Mr Townsend says before me that he was not in a hurry to get to Tamworth. I am inclined to accept that, having regard to the fact that excessive speed is not evident and the fact it is not a case of someone being late for work or for an appointment which might give some immediacy for a need to be driving too fast. A trip to Tamworth by car is long in both time and distance.
Mr Townsend was clearly in a disturbed state of mind at the scene. In evidence he said, ‘All I can remember is driving around the corner and then there was a crash. To the best of my knowledge I was not speeding.’
Whilst the expression ‘momentary inattention’ or ‘mis-judgment’ is somewhat generic rather than definitive of a particular course of driving, it clearly is meant to include driving that, whilst at least negligent, is not of such a deliberative or dangerous nature as to necessarily require punishment by way of full-time imprisonment, but instead is offending that can be punished in a less draconian fashion.
There is obviously a significant difference in the responsibility for momentary inattention if a vehicle is travelling at a high speed than there is if the vehicle is travelling at a low speed. The circumstances of any particular course of driving is important to the consideration of the degree of fault that attaches to momentary inattention or mis-judgment. The more difficult any driving task is, the greater the requirement to pay attention and to exercise appropriate attention and judgment.
The area where this tragedy occurred is semi-rural and would not be classed as a built-up area. I am satisfied that Mr Townsend’s driving on this occasion was not other than momentary inattention or momentary mis-judgment over a short time and distance and, whilst deliberative, was not a case of deliberate and intentional risk-taking where there was significant potential danger to other road users.”
After reference to other sentencing considerations and a number of cases, his Honour came to his conclusion -
“Having regard to what was said in Jurisic [R v Jurisic (1998) 45 NSWLR 209] and Whyte [R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252], namely that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or mis-judgment, and having regard to the Crimes (Sentencing Procedure) Act and the facts and circumstances of this case, I am not satisfied that a sentence of imprisonment is either called for or appropriate. However, because of the consequence of Mr Townsend’s actions, and to affirm the premium the law places on a human life, there needs to be a degree of punishment greater than what would be, for him, a fairly nominal punishment, by way of a bond.”
His Honour then convicted the respondent and sentenced him to the 300 hours of community service.
Ground 1: His Honour had no reasonable basis for rejecting the veracity and reliability of the statements made by the respondent to Irene Perry [sic] and Rosario Rizzuto.
The Crown submitted that the evidence of Ms Rizzuto and Ms Perri showed that there was a far greater abandonment of responsibility by the respondent than was found by his Honour. It submitted that it was clear from the respondent’s evidence that he was unable to dispute his statements to Ms Rizzuto and Ms Perri as recalled by them, and that he had no recollection of how the accident occurred and so his evidence “to the best of my knowledge I was not speeding” was of little cogency. It was submitted that what the respondent said to Ms Rizzuto and Ms Perri was contemporaneous and spontaneous, and was not likely to be unreliable because he was distressed and upset at the time, and that his Honour’s preference for the evidence of the respondent to that of Ms Rizzuto and Ms Perri was unreasonable. It was submitted that there was occasion for the respondent to have been speeding, because he was running late having stopped to have the spotlight fitted to the Toyota.
These submissions should be addressed having well in mind this Court’s function in relation to fact finding by a sentencing judge. The principles were recently restated by McCallum J, with whom McClellan CJ at CL and Hidden J agreed, in McBeth v R [2009] NSWCCA 235 -
“30 Many of the applicant’s grounds concern the sentencing Judge’s findings of fact. It must be recalled, however, that the task of this Court is confined to determining whether there was error in the sentencing of the applicant on the principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. This Court’s power to substitute its own findings of fact for those of the trial judge arises only if the Judge “mistakes the facts” in the sense there understood. It is necessary to establish that there is no evidence to support the finding, or that the evidence is “all one way”, or that the Judge has misdirected himself: R v O’Donoghue (1988) 34 A Crim R 397 at 401 per Hunt J, Carruthers and Wood JJ agreeing.”

We do not accept the Crown’s contention that it was not reasonably open to the judge to find as he did.
The judge did not find that the statements as recalled by Ms Rizzuto and Ms Perri were not made by the respondent, but he found that the respondent was “in a disturbed state of mind at the scene” and accepted that he was not in a hurry to get to Tamworth. The respondent had said in cross-examination that, if he had been in a hurry, he would not have stopped to have the spotlight put on, and it was not put to him that he was in a hurry because he had spent the four hours putting the spotlight on.
The judge did not specifically find that the respondent was not speeding, nor did he particularly rely on the respondent’s evidence that to the best of his knowledge he was not speeding as evidence of that fact. However, his Honour was entitled to have regard to the respondent’s evidence of the circumstances of his driving as he approached the intersection even though the respondent had no recollection of “the actual collision”, and to his evidence that he was not in a hurry. There were sound reasons for his Honour to treat the statements by the respondent, as recalled by Ms Rizzuto and Ms Perri, with some circumspection, particularly given that the respondent was disturbed and upset. From Ms Rizzuto’s recollection the respondent was speaking to them both at the time of his statements, but her recollection of what he said and that of Ms Perri differed. If what the respondent said be analysed it is not particularly rational, with running late and speeding mixed up with having lost it and with something happening to the steering.
Speeding is relative to the conditions. The applicable speed limit was 80 kph and there was no evidence of a sign advising a lesser speed for the left hand bend. The judge found that the accident occurred due to “inadvertence or misjudgment of the road’s configuration relative to his speed”, and accepted that the respondent was not in a hurry and so driving “too fast”. This recognised the relativity. In our opinion, it was open to his Honour to so find, and to conclude that there was not deliberate and intentional risk-taking. We do not think that error within the principles stated in McBeth v R has been established.
Ground 2: His Honour erred in determining the degree of moral culpability for this offence as being at a low level
The Crown accepted that this ground relied substantially on acceptance of ground 1, but submitted that the judge “nevertheless erred in relation to the respondent’s moral culpability by virtue of his finding of momentary inattention”.
The Crown submitted that a finding of momentary inattention did not lead automatically to low moral culpability, referring in particular to the reasons of McClellan CJ at CL in Thai v R [2009] NSWCCA 314 where his Honour said -
“4 When considering the moral culpability of an offender a finding of momentary inattention is plainly of significance. However, it may not and generally will not be an adequate description of the circumstances relevant to the offence. Momentary inattention when driving at low speed or on an isolated country road may involve culpability of a significantly lower order than momentary inattention when driving on a freeway or in an urban environment where the traffic is dense with intersections controlled by traffic signals.
5 Momentary inattention when travelling at the speed limit, 60 kph towards an intersection controlled by traffic signals can, as happened in the present case, result in the tragic death of others. … ”.
The Crown submitted that, although the accident occurred in a semi-rural area, there was a speed limit of 80 kph; that warning signs indicated the intersection, with which the respondent was in any event familiar; that there were double unbroken lines; and that the collision occurred well on the respondent’s incorrect side of the road and was in the nature of a head-on collision, with likelihood of the fatality which occurred. It was submitted that, in these circumstances, the respondent’s moral culpability was such as to call for a custodial sentence.
The judge was alive to the “generic” nature of a finding of momentary inattention or mis-judgment, and to the “significant difference” in responsibility for momentary inattention if a vehicle was travelling at high speed and the importance of the circumstances of any particular course of driving in considering the degree of fault attaching to the momentary inattention or mis-judgment. His Honour did not move automatically from his finding of momentary inattention or mis-judgment over a short time and distance. He described it as not being a case of deliberate and intentional risk taking where there was significant potential danger to other road users. One of the cases to which he referred prior to concluding that there was a low level of moral culpability and a custodial sentence was not called for was Thai v R, including setting out the relevant passage from the judgment of McClellan CJ at CL.
Similar principles to those described in McBeth v R apply. In our opinion, it was open to his Honour to conclude that the respondent’s moral culpability was such that a custodial sentence was not called for.
Ground 3: His Honour attributed too much significance to his observations of the significance of the plea in light of his Honour’s claim of a weak Crown case
The judge’s remarks on sentence included -
“Mr Townsend pleaded guilty at the earliest opportunity and is thus entitled to a discount of twenty-five per cent. The plea in the circumstances of this case is not inconsequential. There was a back-up charge of negligent driving causing death and there may well have been difficulty in the Crown securing a conviction of the more serious offence before a jury.”
At a later point his Honour said, when addressing the respondent’s remorse and good character, that “[h]e has pleaded guilty at the earliest opportunity when it was not a straightforward case”.
The Crown accepted that the respondent was entitled to a 25 per cent discount for his plea of guilty. It was submitted, however, that in observing that there may well have been difficulty in the Crown securing a conviction and that it was not a straightforward case, his Honour erroneously gave additional weight or greater significance to the plea; and that in any event it would not have been a difficult case for the Crown.
When the Crown accepted that the respondent was entitled to the 25 per cent discount, it is difficult to see how a ground complaining of the reasons given for that discount can be upheld. We do not think that the judge impermissibly gave additional weight or significance to the plea. We understand his Honour to have used what he saw as a difficult case for the Crown as a measure of the utilitarian value of the plea, although perhaps it would have been better had his Honour expressed himself differently. A plea may also be “a very simple expression of remorse” (R v Thomson [2000] NSWCCA 209; (2000) 49 NSWLR 383 at [48]), and we understand that to have been the occasion for its later mention. Remorse was not in question. Whether or not it would truly have been a difficult case for the Crown does not matter.
Ground 4: His Honour erred in finding that the respondent ‘is not generally a careless or bad driver’
The Crown submissions were directed to the italicised sentence in the passage in the remarks on sentence -
“I accept that Mr Townsend is truly remorseful and will not offend in this way again. He is not a generally careless or bad driver. As far as rehabilitation is concerned it is difficult to see that in an offence of this nature it has much applicability. He has pleaded guilty at the earliest opportunity when it was not a straightforward case. He is of good character … ”.
The respondent was aged 25 at the time of sentencing. He had obtained a learner licence on 11 May 2007 and a provisional licence on 14 August 2007. On 23 November 2007 he had been fined for exceeding the speed limit by more than 15 kph but not more than 30 kph. This earned demerit points which brought automatic suspension of the provisional licence from 2 February 2008 until 2 May 2008. He received an unrestricted licence on 12 November 2008. (References in the traffic record report to issuing a provisional licence on 27 March 2009, and to not displaying P plates against the date 27 February 2008, were unexplained; the Crown did not rely on them.)
The respondent was not asked anything about his driving record, in chief or in cross-examination.
The Crown submitted that, while the respondent did not have a bad traffic history, the most that could be said was that he was an inexperienced driver who did not have an unblemished record. It submitted that “to elevate [the driving record] to the status his Honour did, amounts to error”.
A bad driving record could not increase the otherwise appropriate sentence, but could disentitle the respondent to leniency. It is not clear that the judge had in mind entitlement to leniency; in our view, he probably had in mind likelihood of reoffending. The respondent had the one driving offence prior to the offence in question. The judge had concluded that the offence in question was an occasion of momentary inattention or mis-judgment. In our opinion, it was open to his Honour to take the view that the respondent was “not a generally careless or bad driver”.
Ground 5: His Honour did not attribute sufficient weight to general and specific deterrence
Specific and general deterrence are amongst the purposes for which an offender may be sentenced: Crimes (Sentencing Procedure) Act 1999 s 3A(b). General deterrence has been recognised as a matter of importance in dangerous driving offences.
The Crown submitted that the judge made no reference to the need for personal or general deterrence. It was submitted that, while failure to refer to a matter did not necessarily mean error, failure to refer to a matter of such importance was indicative of error. The Crown referred to R v Price [2004] NSWCCA 186, where Simpson and Howie JJ commented at [29] on the failure of the sentencing judge to mention general deterrence in a case of dangerous driving causing death, but were not prepared to find that the sentence of full time imprisonment would not act as a deterrent or sufficient deterrent to other young persons in the community. It was submitted that the same could not be said in the case of the sentence imposed on the respondent, and that it should be concluded that his Honour failed to give adequate or any weight to deterrence.
We do not accept that his Honour failed to pay adequate regard to the sentencing considerations of personal and general deterrence.
As to specific deterrence, Honour found that the respondent is “truly remorseful and will not offend in this way again”, and that rehabilitation did not have “much applicability”.
As to general deterrence, the cases to which the judge referred included R v Howland [1999] NSWCCA 10; (1999) 104 A Crim R 237, a case of dangerous driving causing death, from which his Honour quoted a passage from the judgment of Spigelman CJ at [41] referring to the need to denounce such conduct in the strongest terms, and to Parliament’s wish to denounce and deter and the importance of deterring others engaging in conduct which might lead to commission of the offence. The passage as set out in the remarks on sentence includes as its last sentence, “The need to deter others from engaging in a conduct [sic] which might lead to the commission of this offence is also important”. This sentence is in fact not found in R v Howland, and must have been the judge’s sentence mis-transcribed as part of the quotation. The judge did pay express regard to general deterrence.
In R vJurisic (1998) 45 NSWLR 209 and R vWhyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, guideline judgments plainly to the forefront of the judge’s attention, deterrence is a prominent consideration. While not being satisfied that a sentence of imprisonment was called for, his Honour considered it necessary to impose the punishment he did “because of the consequence of [the respondent’s] actions, and to affirm the premium the law places on a human life”.
In our opinion, the judge did not overlook or fail to give attention to personal and general deterrence in coming to the sentence imposed on the respondent. The weight given to those considerations, and in this case more particularly to general deterrence, was a matter for his Honour unless there was manifest inadequacy in the result. The Crown‘s submissions came down to the ground that the sentence was manifestly inadequate: see below.
Ground 6: His Honour erred by not imposing a long disqualification, and in not providing reasons for reducing the automatic period
We repeat that no point was taken that this ground went beyond the notice of appeal.
The respondent lived in Tamworth. The sentencing proceedings were heard in Tamworth on 31 August 2010 and were adjourned to 23 September 2010 in Sydney for completion. Counsel for the respondent said that he proposed to call a further witness, the respondent’s partner. Submissions would then be received.
The matter took an unusual course. From the Crown’s inquiries, and confirmed by the respondent’s counsel who had been counsel at the sentencing hearing, on 23 September 2010, in Sydney the judge immediately delivered his remarks on sentence, and convicted and sentenced the respondent. It appears that neither the Crown nor the respondent’s counsel reminded his Honour that further evidence remained to be called (if it still did), or that there had not been the opportunity to put submissions.
This unfortunate procedural lapse could have founded complaint of denial of procedural fairness, but it did not and was no part of the Crown’s appeal. It may explain why the judge’s sentencing remarks said of disqualification only, “He is disqualified for 12 months from holding or obtaining a licence under the relevant legislation to date from 22 September 2010 to expire on 21 September 2011.” None of the materials before the judge had been directed to disqualification, it may have appeared to his Honour as a matter not of great moment in the Crown’s case, and there were no submissions to bring it to importance.
The Crown submitted that, in the absence of reasons, it could only be taken that the judge regarded disqualification for three years as a maximum where there had been high moral culpability, and that his Honour had reduced the disqualification period because of his finding of a low level of moral culpability. It was submitted that the three years should not be seen as a maximum, since there can be disqualification for a longer period (Road Transport (General) Act, s 188(2)(d); see for example, R v Hei Hei [2009] NSWCCA 87). The three year period is the “default” period: Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act for a guideline judgment concerning the offence of high range prescribed concentration of alcohol under s 9(4) of the Road Transport (Safety) and Traffic Management Act 1999 (No 3) of 2002 [2004] NSWCCA 303 at [126], to be increased or reduced if there is occasion to do so, but there should be “sufficient and appropriate reasons” for reducing the period before that is done: ibid at 127. The Crown particularly noted what was said in that case -
“128. This means that there will almost invariably be hardship, or at least inconvenience, caused to the offender deprived of his or her licence for such a lengthy period as Parliament has prescribed. This is particularly so in country areas and other places where public transport is rare or non-existent. Of course licence disqualification can have a severe impact upon the ability of a person to obtain or maintain employment. But the focus is here on a criminal offence that Parliament considers to be one of the most serious summary offences … ”.
No evidence was given concerning hardship which would be occasioned to the respondent from disqualification from holding a driver licence, and we have difficulty in accepting without evidence that his location in Tamworth of itself involves an additional burden from deprivation of his licence compared to the general class of offenders exposed to the automatic disqualification. However, the judge’s favourable findings in relation to the accident could of themselves warrant reduction in the period of disqualification.
Where the Crown did not intervene on 23 September 2010 to put submissions upon (amongst other matters) the period of disqualification, but left the judge to unassisted assessment of any variation from the automatic disqualification in the light of his findings as to the circumstances of the accident, we do not think that we should uphold the Crown’s appeal in this respect. That is not to endorse readiness to reduce a period of disqualification without good reason. It is an exercise of this Court’s residual discretion in the particular circumstances.
Ground 7: The sentence is manifestly inadequate
The ground was directed to the sentence of 300 hours community service. We intend no disrespect to the Crown’s submissions in dealing with it briefly. It is a difficult ground to make out in the absence of success in the preceding grounds.
The Crown recognised that, from the Judicial Commission statistics, less than half all offences of dangerous driving occasioning death had received full time custodial sentences, and that a small percentage had received community service orders.
The Crown referred to the assessment of moral culpability discussed in R v Jurisic and R v Whyte, and to the consideration by Latham J (with whom Mason P and Sully J agreed) in DPP v Samadi [2006] NSWCCA 308 which included -
“16 The promulgation of the guideline [in R v Whyte] was in the following terms, namely that where the offender’s moral culpability is high, a full-time custodial head sentence of less than three years in the case of death would not generally be appropriate. However, in the case of a low level of moral culpability, a lower sentence will be appropriate. It should also be noted that the guideline was predicated on a plea of guilty, so that the proposed sentencing range assumes a 10% discount of the sentences that might otherwise apply.
17 Since Whyte, a number of decisions of this Court have explored the above formulation. In R v Errington [2005] NSWCCA 348, Mason P commented that :-
There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment [of responsibility]. It is not required that cases be assigned to one or other of two pigeon holes marked respectively ‘momentary inattention or misjudgment’ and ‘abandoned responsibility’. In R v Khatter [2000] NSWCCA 32, Simpson J (dissenting) held (at [31]:
Offences under s52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.
Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal.
18 In R v Price [2004] NSWCCA 186, Simpson and Howie JJ (at par 37) said:-
It is clear that the Chief Justice in both Jurisic (1998) 45 NSWLR 209 and Whyte was not attempting to identify all the matters that might impact upon the assessment of the moral culpability of an offender in any particular case. For example, the type of vehicle being driven might be an aggravating factor that goes to the moral culpability or the abandonment of responsibility of the driver in a particular case.
19 To similar effect is the following passage from the judgment of Howie J in Gonzalez v R [2006] NSWCCA 4 (at par 13) :-
There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte. However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis [2005] NSWCCA 274 at [25]. The list of factors is illustrative only and not definitive: Errington at [36].”

The Crown submitted that the judge had proceeded upon a dichotomy of momentary inattention and abandonment of responsibility, and from the finding of momentary inattention had placed the respondent at the lowest end of moral culpability rather than at a point on the continuum which it truly warranted. It was submitted that his Honour had further failed to provide appropriate denunciation and general deterrence. However, the submissions included in the factors elevating the respondent’s offending in the continuum that he was concerned that he was running late and was therefore speeding.
It is necessary once more to recall this Court’s function. Apart from any additional consideration in a Crown appeal, it is sufficient to refer to R v Foster [2001] NSWCCA 215 at [16] -
“ … [T]his Court is not justified in interfering merely because its own assessment of the proper level of sentence might exceed that at which his Honour arrived. This Court interferes only in the case of error and absent an error of principle, only if, it appears that the sentence imposed below was manifestly too lenient.”
As earlier described, the judge was well aware that his conclusion as to momentary inattention or mis-judgment was not automatically equated with low moral culpability. In our opinion, his Honour did not approach the matter as if there were a dichotomy rather than a continuum. As we have noted, the respondent received very favourable factual findings, which we have held were open to him. We consider that in the particular circumstances it was also open to the judge to come to the finding of a low level of moral culpability such that a custodial sentence was not warranted.
None of the grounds of appeal is upheld. Hence the dismissal of the appeal on 15 December 2010.
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LAST UPDATED:
2 February 2011