R v Y

[2002] NSWCCA 191

CITATION:	R v Y [2002] NSWCCA 191
FILE NUMBER(S):	CCA 60698/01
HEARING DATE(S):	16 May 2002
JUDGMENT DATE:	16 May 2002
PARTIES :	Regina - (Crown) (Appellant) Y - (Respondent)
JUDGMENT OF:	Stein JA at 1; Bergin J at 38; Carruthers AJ at 39

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/61/0078
LOWER COURT JUDICIAL OFFICER :	Andrews DCJ

COUNSEL :	P G Ingram (Crown) (Appellant) P G Berman SC (Respondent)
SOLICITORS:	S E O'Connor (Crown) (Appellant) D J Humphreys (Respondent)
CATCHWORDS:	CRIMINAL LAW - dangerous driving occasioning death - dangerous driving occasioning grievous bodily harm - appeal against inadequacy of sentence - juvenile - whether erroneous assessment of the objective seriousness of the offences - whether suspended sentence correctly imposed - abandonment of responsibility - weight to be given to subjective circumstances of offender - DISCRETION - delay in serving of Notice of Appeal - double jeopardy - D
LEGISLATION CITED:	Crimes Act 1900, s 52A(1)(c), s 52A(3)(c) Criminal Appeal Act 1912, s 5D Crimes (Sentencing Procedure) Act 1999, s 12
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321 R v Astill (Unreported, NSWCCA, 29 January 1990) R v Hallacoglu (1992) 29 NSWLR 67 R v Jurisic (1998) 45 NSWLR 209 R v Musumeci (Unreported, NSWCCA, 30 October 1997) R v Myers (Unreported, NSWCCA, 13 February 1990) R v Pham and Ly (1991) A Crim R 128 R v Zamagias [2002] NSWCCA 17
DECISION:	Appeal dismissed

60698/01

STEIN JA
BERGIN J
CARRUTHERS AJ

Thursday, 16 May 2002

R v Y

Judgment

1 STEIN JA:

Introduction

2 This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent by Judge Andrews in the Dubbo District Court on 17 August 2001. The respondent had pleaded guilty to an offence of Dangerous Driving Occasioning Death (s 52A(1)(c) Crimes Act 1900) and Dangerous Driving Occasioning Grievous Bodily Harm (s 52A(3)(c)).

3 The sentence imposed on the respondent for the most serious offence, carrying a maximum penalty of 10 years imprisonment, was a term of 2 years imprisonment to commence on 17 August 2001 and expire on 16 August 2003. The sentence was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. With respect to the second offence, the sentence passed was for a term of 18 months imprisonment, concurrent with the first sentence, and that sentence was also suspended.

4 The foundation for the appellant’s case is the submission that the sentences were manifestly inadequate. Three errors are alleged. First, that his Honour made an erroneous assessment of the objective seriousness of the offences. Secondly, that his Honour elided the two steps required when imposing a suspended sentence. Lastly, that his Honour made an erroneous assessment of the weight to be given to the respondent’s subjective circumstances.

5 Before turning to the facts of the motor vehicle accident which is the subject of the offences, it is convenient to set forth some relevant dates and circumstances.

6 The accident occurred on 20 July 2000 when the respondent was 17 years and 3 months old. He had had a provisional driver’s licence for 6 weeks and was driving home from part-time work in Dubbo late at night and alone.

7 The respondent was charged and appeared in Dubbo Local Court on 28 February 2001 when the presiding magistrate referred the case to the Children’s Court on 7 March 2001. On this date the respondent entered pleas of guilty and the case was adjourned to 18 June 2001 for sentence. However, on that date a different magistrate committed the respondent to the District Court for sentence. This occurred on 17 August 2001 before his Honour Judge Andrews.

8 On 31 August 2001 the Director advised the respondent that the Offices was considering whether to appeal to the Court of Criminal Appeal. It appears that some time in late November 2001 the Legal Aid Commission intimated to the respondent that it understood that an appeal had been filed. However, the respondent was not served with the Notice of Appeal until 2 April 2002 thus there was a delay of 7 months before the respondent was served. This is a significant delay in the circumstances of a non-custodial sentence and the explanation for the late service of the Notice of Appeal which has been proffered is not a very satisfactory one.

Facts

9 I turn to the essential facts of the accident as found by his Honour. It is convenient to quote sections from his Honour’s reasons on sentence. His Honour said:

At about 11.45pm on 20 July 2000 the young person was driving a 1987 Ford Falcon station sedan, registration QFC 411, in an easterly direction on the Golden Highway towards Dunedoo and approximately ten kilometres east of Dubbo he has attempted to overtake a truck which was being driven by the witness O’Sullivan. He attempted to overtake on an uphill section of roadway and in doing so crossed double unbroken separation lines near the crest of a hill. At the time the victims Peter and Lydia So were travelling in a 1995 Toyota Camry sedan, registration number QLY 888 which Peter So was driving in a westerly direction and which has crested the hill and a head [-on] collision has occurred between the two vehicles.
This collision occurred wholly on the incorrect side of the road for the direction of travel of the young person’s vehicle. As a result of the collision Lydia So who was a passenger in the front seat suffered fatal injuries and was pronounced dead on arrival at Dubbo Base hospital. The driver of the truck had stopped and contacted police and ambulance who have attended a short time later. The young person was also conveyed to Dubbo Base hospital as was Peter So who was trapped in the vehicle for a short time after the accident.
The highway was blocked for approximately three hours. As a result of the collision the victim Peter So suffered multiple rib fractures, fractured a right femur, right tibula, multiple fractures to the right ankle, lacerations to the left knee, multiple fractures to the left ankle and bruising to one of his lungs causing breathing difficulties.
The young person suffered facial injuries which required surgery for correction and is also receiving ongoing treatment as is Mr So.

10 In considering the objective seriousness of the offences his Honour said:

… there is no dispute that the road was bitumen, it was dry and the weather was clear. Visibility was described as reasonably good due to the moonlight. The speed limit was 100 kilometres per hour. The prisoner passed one vehicle prior to the accident probably a few kilometres beforehand. The driver of the overtaken vehicle said that she was travelling about 60 kilometres per hour and the prisoner’s vehicle passed her quickly. The truck which the prisoner attempted to overtake consisted of a prime mover and a single trailer which was loaded with wheat. The driver of the truck said that he was travelling about 95 to 97 kilometres per hour as he went up the hill to where the accident happened. He was travelling at about 90 kilometres per hour near the top of the hill. He said that the prisoner’s vehicle pulled out onto the incorrect side of the road and at that time there were double lines and he was approaching the crest of the hill. The prisoner cannot shed any light on the matter as he has now has no recollection of the accident due to the injuries which he suffered.
He was at this time a school boy. He was working in Dubbo at night at a Kentucky Fried Chicken shop. He was travelling home in his father’s car as they lived about 42 kilometres out of Dubbo on the Dunedoo Road. He had a provisional licence for six weeks which meant that he could not exceed 80 kilometres per hour. He had driven this route a few times before at night. Given the speed of the truck which he was overtaking, it was apparent that he was driving somewhat in excess of 90 kilometres per hour at the time of the accident, although I cannot make a finding necessarily that he was exceeding the speed limit of 100 kilometres per hour.

11 It will be noted from this extract that the sentencing judge’s reasons that his Honour found that the speed of the respondent was in excess of 90 kph at the time of the accident but not in excess of the 100 kph speed limit.

12 His Honour continued:

I note from the photographic evidence and other evidence that it is a comparatively short distance from the commencement of the double unbroken line to the scene of the accident. Given that distance and the speed of the truck which was around 90 kilometres per hour and the speed of the prisoner’s vehicle, I am not necessarily convinced that the prisoner pulled out to overtake after the commencement of the double unbroken lines. It may be that he commenced to overtake when there was an unbroken line and that either due to the presence of a large truck in front of him and due to inexperience he made an error of judgment which meant that he was across the double unbroken line and on the incorrect side of the road and near to the crest of the hill at the time of impact.

13 One feature of the roadway referred to by his Honour was the widening of the road from two lanes to four from the commencement of the centre unbroken line. His Honour said that this could possibly have given the impression to an inexperienced driver at night of the road opening up to four lanes. I would have thought, judging by the photographic exhibits, that the purpose of the widening of the road was to allow slow vehicles, such as trucks, to move over to the new left lane on climbing the hill. The driver of the wheat truck did not do this.

14 The other matter which I mention is that it is my understanding that the maximum speed permissible for a provisional driver is 90 kph and not 80 kph referred to by his Honour and which seems to have been assumed by all concerned in the District Court. During argument on the appeal, it has been conceded that the position is that a provisional driver, such as the respondent, is restricted to a maximum speed of 90 kph by reason of his provisional licence. However, this error probably matters not.

15 His Honour recorded that alcohol was not a factor in the accident and that neither excessive speed not erratic driving was involved. Rather, the respondent made an error of judgment. His Honour said it was ‘certainly greater than momentary inattention’. Rather, his Honour thought that it was something more, given the respondent’s deliberate decision to overtake. His Honour said that it was a misjudgment based on inexperience. Serious as it was, it could not in his view be categorised as an abandonment of responsibility. His Honour said:

I would assess the objective gravity of the offence as greater than momentary misjudgment, but closer to that level of culpability than to an abandonment of responsibility.

16 After reference to the respondent’s subjective circumstances, his Honour concluded as follows:

By taking all of these matters into consideration I consider that the objective seriousness of the offence being greater than momentary misjudgment means that a sentence of full time custody is warranted. But as the conduct is considerably less than reaching the threshold of abandoning responsibility and in view of the youth of the prisoner and in light of all of the subjective matters outlined, I propose in all of these circumstances to suspend those sentences.

Abandonment of responsibility

17 It is the appellant’s submission that, properly categorised, the respondent had abandoned responsibility for his conduct. In so submitting, the appellant challenges his Honour’s findings that excessive speed and erratic driving were not relevant factors.

18 However, given the evidence before the court, I am unable to see how his Honour’s findings on speed and erratic driving were not findings which were open to him to make on the evidence. It would be a brave appellate court which intervened and rejected findings of fact available on the evidence. Here there are no particular features which are apparent in the evidence to lead me to conclude that his Honour’s factual findings should be overturned.

19 His Honour found that the respondent was driving in excess of the speed which he was permitted to drive with a provisional licence but not above the speed limit of 100 kph. I would not understand that such a ‘degree of speed’, as explained by Spigelman CJ in R v Jurisic (1998) 45 NSWLR 209 at 231, would indicate that the respondent had abandoned responsibility for his conduct. The same comment may also be made about the allegation of ‘erratic driving’.

20 As his Honour the sentencing judge said, what caused the accident was an error of judgment due to inexperience. Nonetheless, it was in my opinion, a fairly massive error of judgment. It had devastating and tragic consequences. To pull over onto the incorrect side of the road to overtake a truck while approaching the crest of a hill where he could not see over the hill, was a major error, even if caused by inexperience. But can it amount, of itself, to an indication of abandonment of responsibility? In the circumstances of this case, and without excessive speed, erratic driving or other indicia, I do not think that it can so qualify. Interestingly enough, such driving is not specifically included in the list of factors collected by the Chief Justice in Jurisic as circumstances of aggravation which may indicate an abandonment of responsibility. I accept, of course, that other circumstances may qualify and it is the circumstances in the context in which the particular conduct occurs which are relevant.

21 Counsel for the respondent made the point that while the consequences of his client’s actions were grave in the extreme, his moral culpability was low. He was not drunk or affected by drugs, he was not showing off or travelling at a grossly excessive speed. He was not driving whilst tired but driving home from work after he concluded his part-time job. In attempting to overtake the truck he made an error of judgment as to how long it would take him to safely complete the manoeuvre.

22 In my opinion, it was open to his Honour to find that the respondent did not abandon responsibility for his conduct. Nor do I accept the appellant’s submission that the driving of the respondent was very close to an abandonment of responsibility, rather than where it seems his Honour located the respondent’s conduct on the continuum.

Eliding the two steps

23 It is the appellant’s submission that, having first determined that a sentence of imprisonment is the only appropriate sentence, the court must determine the length of the sentence. It is only after this step that the court considers the manner in which the term is to be served. It is submitted that his Honour elided the steps. Reliance is placed on Dinsdale v The Queen (2000) 202 CLR 321 and R v Zamagias [2002] NSWCCA 17.

24 It is not evident to me that his Honour necessarily elided the steps. It would, of course, have been clearer if his Honour had said that he chose a two year term of imprisonment independently of the criteria for suspension.

25 I do not accept the submission that if his Honour had set the term of imprisonment consistent with the objective seriousness without regard to whether it should be suspended, he would have assessed a custodial term significantly below a 2 year term. In my view, a two year term of imprisonment was justified on his Honour’s findings. It may be noted that a somewhat similar argument was rejected by the court in R v Blackman and Walters [2001] NSWCCA 121 at [50] to [54].

Weight to be given to subjective circumstances

26 It is submitted by the appellant that his Honour gave too much weight to the youth and prior good character of the respondent. Reliance is placed on remarks of Hunt CJ at CL in R v Musumeci (Unreported, NSWCCA, 30 October 1997) referred to by the Chief Justice in Jurisic [at 228]. In particular, that the youth of the offender should be given less weight than in other types of cases. Also, that so far as youthful offenders of good character are guilty of dangerous driving, the sentence must be seen as having a reasonable proportionality to the objective factors and inadequate weight should not be given to those objective factors.

27 I do not conclude that his Honour gave too much weight to the youth of the respondent or to his previous good character. Nor did his Honour lose sight of a reasonable proportionality with the objective facts as he found them. The character evidence concerning the respondent was very strong and could not be ignored.

28 It follows from the above that I am not persuaded that his Honour made any error in the sentences which he imposed on the respondent.

29 Insofar as the appellant submits that the suspension of the sentences led to a manifestly inadequate sentence being imposed, I do not accept this submission. On the facts as found by the sentencing judge which were open to him, the plea of guilty entered at the earliest opportunity and the subjective features, the sentence imposed was within the permissible range.

30 It may be noted that his Honour did not have periodic detention availability to him as a sentencing option since there is no facility in the Dubbo area.

Discretion and Delay, Double Jeopardy

31 While I am not satisfied of error by the sentencing judge, even if there was error, it would not in my view be appropriate for the court to intervene and resentence the respondent.

32 First, there was a considerable delay by the appellant in serving the Notice of Appeal, which I have already referred to. As I mentioned, it was not served until 2 April 2002, some 7 ½ months after the sentence was passed. The explanation for this delay is far from convincing. However, it appears from what we were told by counsel for the respondent at the hearing of the appeal, that the Legal Aid Commission told the respondent in mid to late November that it was aware that the Director had lodged an appeal, thus there was a delay in him being aware of the appeal of around 3 months. Gleeson CJ in R v Astill (Unreported, NSWCCA, 29 January 1990) stressed the need for prompt notification of an appeal by the Crown. In that case the delay was around 2 months.

33 A number of other cases have been referred to by counsel for the respondent including R v Myers (Unreported, NSWCCA, 13 February 1990) in which the delay was around 3 months; R v Hallacoglu (1992) 29 NSWLR 67, where the delay was 2 ½ months; and R v Pham and Ly (1991) 55 A Crim R 128, where the delay was around 2 months. Delay is in my opinion a powerful discretionary factor and it must be kept firmly in mind that the delay is in fact to be measured from 20 July 200 when the accident occurred. I have already referred to the steps taken along the way in the processing of this case.

34 The delay which I have referred to above must also be viewed together with the element of double jeopardy, which is particularly important and onerous where a non-custodial sentence is passed at first instance. Given that the respondent was a juvenile at the time of offence, the case was at one stage to be dealt with at the Children’s Court. However, this did not come to pass.

35 It has now been over 9 months since the sentences were imposed and getting on for two years since the accident. The accumulation of delays have also had consequences for the respondent, as the evidence demonstrates. There is also evidence before the court of events in the respondent’s life since the sentence was passed, his continued remorse as well as his further good works in the community.

36 Given the element of double jeopardy and the extensive delays in the process, which have not in any way been contributed to by the respondent, if there be error I do not believe that this court should intervene. Rather it should dismiss the appeal in the exercise of discretion.

37 Accordingly, I would propose that the appeal be dismissed.

38 BERGIN J: I agree

39 CARRUTHERS AJ: In my view, for the reasons advanced by Mr Ingram, counsel for the Crown, the manner of driving by the respondent was so dangerous to other road users that these matters called for a full custodial sentence to be imposed at first instance. By that I do not necessarily mean a full custodial sentence of two years. However, as Justice Stein has pointed out, it is now almost two years since the offence occurred and 9 months since the subject sentence was imposed upon the respondent. The respondent has been at liberty for almost two years since the offence. In these circumstances, in the exercise of the court’s residual discretion, I would dismiss the appeal notwithstanding that I consider that there was sentencing error by Judge Andrews. I therefore join in the order proposed by the presiding Judge.

40 STEIN JA: The order of the court is that the appeal be dismissed.

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