Regina v Bishop

[2002] NSWCCA 263

CITATION:	Regina v Bishop [2002] NSWCCA 263
FILE NUMBER(S):	CCA 60722/01
HEARING DATE(S):	21 June 2002
JUDGMENT DATE:	21 June 2002
PARTIES :	Regina v Justin Steven Bishop
JUDGMENT OF:	Greg James J at 1, 29; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/21/1086
LOWER COURT JUDICIAL OFFICER :	Viney DCJ

COUNSEL :	(A) B T Stratton QC (C) L M B Lampratti
SOLICITORS:	(A) Beckers & Associates (C) S E O'Connor
CATCHWORDS:	Sentencing - Dangerous driving occasioning three deaths and dangerous driving occasioning grievous bodily harm to two persons -Sentences not excessive
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Musumeci CCA 30 October 1997 unrep R v Slattery (1996) 90 A Crim R 519 at 522
DECISION:	See para 28

IN THE COURT OF
CRIMINAL APPEAL

GREG JAMES J

SMART AJ

Friday 21 June 2002

REGINA v JUSTIN STEVEN BISHOP

JUDGMENT

1. GREG JAMES J: I will ask Smart AJ to deliver the first judgment.

2. SMART AJ: Justin Steven Bishop seeks leave to appeal against the asserted severity of three concurrent sentences of imprisonment for six years with a non parole period of three years for dangerous driving occasioning death and two concurrent sentences of imprisonment for four years with a non parole period of two years for dangerous driving occasioning grievous bodily harm. The applicant was acquitted of the more serious charges of aggravated dangerous driving (exceed speed limit by 45 kilometres per hour) occasioning death and aggravated dangerous driving, (exceed speed limit by 45 kilometres per hour) occasioning grievous bodily harm. The maximum penalties are ten years imprisonment for dangerous driving occasioning death and seven years for dangerous driving occasioning grievous bodily harm.

3. The deaths of three young people and the very serious permanent injuries to two other young people arose out of a fearful collision between two motor vehicles. The five victims were male teenagers in the prime of life. They were travelling in a Hyundai motor car east along the Great Western Highway about 9pm on 8 January 2000. The applicant was driving his girlfriend’s Holden Commodore sedan west on that highway at St Mary’s at a speed of more than 100 kilometres per hour but less than 125 kilometres per hour. It was an 80 kilometre per hour zone. The area in which the incident occurred was a six lane highway divided by a median strip with three lanes each way. An additional right hand turn lane was provided for traffic travelling east. It was a fine night and the road was straight.

4. At the intersection with Gipps St there were traffic lights. The Hyundai was turning right. The lights were green in the applicant’s favour and also for traffic travelling east. It seems that the jury took the view that the Hyundai had ample time to turn right and that the cause of the incident was the excessive speed at which the applicant was driving the Commodore. The judge rejected the submission that he should make an allowance for the Hyundai turning in front of the car the applicant was driving. The judge commented:

“The other driver was entitled to expect oncoming vehicles not to be travelling at 100 kilometres per hour in an 80 kilometre per hour zone and in those circumstances cannot be said to have contributed to the crash by turning in front of Mr Bishop”.

In my opinion the judge was entitled to make this finding and it is not one that is fairly open to challenge on appeal.

5. There were two Holden Commodore sedans travelling west and at considerable speeds. The judge was not satisfied beyond reasonable doubt that these two cars were racing each other. He thought that the cars travelling at such speeds may have been a coincidence.

6. The judge recorded that both counsel agreed that the dangerous driving was in what is called the middle range. I doubt if that helps very much except that it does emphasise that this was not a case of total abandonment of responsibility.

7. The judge regarded the tragic result of three deaths and two young men being severely and permanently injured as an aggravating factor. It was not only tragic but grim.

8. The applicant was born on 4 June 1978 and was thus aged 21 at the time of the collision. He had a prior record for driving offences. In August 1995 he was sentenced for the offence of special range PCA and that of unlicensed driver, being fined. In May 1997 he was fined for the offences of driving an uninsured motor vehicle and driving an unregistered motor vehicle. In July 1997 he was dealt with by traffic infringement notice for not complying with the conditions of a learner’s licence (two instances). In October 1997 he was dealt with by traffic infringement notice for not complying with the conditions of a restricted licence. The applicant was eighteen or nineteen years of age at the time. Nevertheless, it is neither a good record nor a bad record so far as complying with the traffic laws is concerned.

9. At the time of the accident the applicant had considerable potential to make the grade as a successful professional footballer. He had attracted attention and played for Penrith in higher grades. Since the accident he has not had any serious involvement in football. He has lost interest and his football career is finished.

10. The evidence from Mr Mark Fitzpatrick, the applicant’s supervisor at his place of employment with a large organisation, was that the applicant was an “excellent employee” who worked well and for long hours. He did anything he was asked and did not take time off except for the purposes of the trial. The supervisor said that the applicant was very contrite and sorry about the collision. The supervisor said that it was hard to get employees of the quality of the applicant and he would certainly be prepared to re employ him on his release from gaol. The supervisor described the applicant as being very conscientious and gentle by nature. He also attested to the close relationship between the applicant and his girlfriend’s family, whom he knew.

11. Ms Cindy Mackley, a police officer of eleven years experience knew the applicant well. She is a friend of his girlfriend. She described the applicant as honest, reliable and decent. He had been very distressed by the accident. Mr S C Ayoub, a sports manager, described the applicant as a really decent human being who adopts a responsible attitude to life and who would not deliberately do anything to hurt anyone.

12. The judge accepted all this evidence which provided powerful support for the applicant. The judge noted that the applicant had a quite unstable childhood but had managed to survive the emotional hardships. That is to his credit. The judge said:

“Since the tragic accident he has suffered emotionally. He did not renew his football career. He was so distraught he had to move away from the area and live on the Central Coast. His distress has continued to the present day as attested to by the report from his doctor and will no doubt haunt him for the rest of his life. I am satisfied he is genuinely contrite for the tragedy he has caused. He has the support of his girlfriend and family and has sincere love for his young daughter. True he did not plead guilty but as his counsel pointed out he was indicted for the aggravated form of dangerous driving and was found not guilty. So the benefit that might accrue for a plea of guilty is not totally lost.

I have taken into account all of the objective facts and I have taken into account the victim impact statements which reveal the surviving victims and all the families of the victims have suffered enormously from this tragedy. I have taken into account all the subjective material in favour of the prisoner as well as the pronouncements of principle in regard to sentencing for this type of crime. Among those principles one of the most significant is that of deterrence. The carnage on the roads has caused the Parliament to increase the penalties particularly in an attempt to bring home to drivers the grave responsibilities. Despite the youth of the prisoner that principle must be observed. He has to go to gaol and there has to be a condign punishment for these offences as a deterrent not only to Mr Bishop but to all other drivers who might be tempted to act in a similar way.

I am satisfied that special circumstances exist in his case. He is only twenty three. It is his first time in gaol. He is in a fragile emotional state and I am sure his contrition is sincere and he will require a lengthy period of parole supervision to re enter society.”

Since the hearing before the judge the applicant’s fiancée has given birth to a child and it is no doubt a matter of considerable distress to the applicant that he is not at home to help with the raring of that child.

13. The judge in his remarks has endeavoured to deal with the applicant as sympathetically as he could. However, he did not lose sight of the three deaths and two young men whose grave injuries will ruin their lives and the seriousness with which the law regards offences such as these.

14. Counsel for the applicant relied on the guideline judgment of this court in R v Jurisic (1998) 45 NSWLR 209 and these passages in the judgment of the Chief Justice at 231:

“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 ie 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”.

15. The judge in his remarks referred to Jurisic and endeavoured to apply the principles which emerge from that case to the facts of the present case.

16. There was no plea of guilty. Pleas of guilty could have been entered to the lesser charges. Such a course could have created tactical problems in view of the more serious charges. It must not be overlooked that the applicant’s evidence was broadly that he was driving within the speed limit or thereabouts and that when he reached the intersection he believed that the Hyundai would wait for him to pass before turning in front of him. These were the aggravating factors of the number of people put at risk and the degree of speed.

17. The Chief Justice spoke of a custodial sentence of less than three years being exceptional. That does not mean that a custodial sentence of three years should necessarily be imposed. In some cases greater sentences will be appropriate. The sentences must depend on the facts of the case. An overall sentence of three years for a case involving high speed approaching traffic lights and a collision in which three people are killed would be manifestly inadequate.

18. In Jurisic at 228 the Chief Justice referred, with approval, to the judgment of Hunt CJ at CL in R v Musumeci CCA 30 October 1997 unreported. That pointed out that the legislature had always placed a premium on human life, that the taking of a human life by driving a motor vehicle dangerously was a crime of some seriousness, that the substance of the offence was not just the dangerous driving but the dangerous driving in association with the taking of a human life, that the need for public deterrence is so great that the youth of the offender is given less weight and that the courts must tread warily in showing leniency for good character in such cases. Hunt CJ at CL concluded that with youthful offenders of good character:

“...the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime and persuasive subject circumstances must not lead to inadequate weight being given to those circumstances.”

Those propositions apply with considerable force in the circumstances of the present case.

19. The applicant submitted that this was not a case of total abandonment of responsibility and that there were no aggravating factors additional to the number of people put at risk and the degree of speed. Accordingly, it was submitted that the periods of three years and two years mentioned in the passage earlier cited from Jurisic was not a starting point but the sentences which should have been imposed in the present case. I have earlier indicated why I do not regard that passage as governing this case.

20. In Jurisic at 231 it was pointed out that the extent and nature of the injuries inflicted are of great importance. In that regard the present case is a gross case.

21. In R v Slattery (1996) 90 A Crim R 519 at 522 Hunt CJ at CL said:

“So significant is the loss of life that where there is more than one human life taken, it is not obligatory for the judge to impose concurrent sentences...”.

22. The greater the number of deaths and the greater the number of persons injured the greater the crime of dangerous driving becomes. Similarly, the greater the nature and extent of the injuries the greater the crime of dangerous driving becomes.

23. Mr Stratton urged on us that while, because there were additional deaths, it would be appropriate for a sentence to be imposed above three years, six years was just simply too much. He submitted that although the sentence should not be the normal one which would apply if there was one death, absent other features, it should not simply be doubled because there were three deaths. I do not think the judge adopted a simplistic approach. His remarks on sentence indicate a very careful and sympathetic consideration of all the circumstances of the case and the applicant’s position.

24. I should interpolate that while we were referred to Judicial Commission Statistics, they are not of great assistance in the circumstances of the present case.

25. The judge correctly found that there were special circumstances and set a relatively low non parole period. The special circumstances included that this was the applicant’s first time in custody, his good prospects of rehabilitation and his comparatively young age.

26. It is sad indeed to see a young man with much promise and many good qualities caught up in these offences but they had devastating consequences for the five victims and their families. Many people have been seriously affected. Offences with these consequences require stern punishment so as to deter young men from driving dangerously.

27. In making the sentences concurrent rather than cumulative the judge extended a significant measure of leniency to the applicant. This represented a direct application of the principle of totality. The sentences imposed were within the correct exercise of a sound discretionary judgment. This is pre-eminently a case where, at the expiration of the non parole period, the applicant should be released.

28. As matters of substance have been fully argued, leave to appeal should be granted. The appeal should be dismissed.

29. GREG JAMES J: I agree. I particularly wish to associate myself with what has been said by Smart AJ concerning the tragedy that was occasioned on this evening not only to those who died, those who were injured and to their families, but also to the appellant and his family.

30. I also wish to associate myself with his remarks concerning the release of the applicant at the expiration of his non parole period. I share his view, however, that in the performance of this Court’s function to decide whether the sentence was in error such that some other sentence was warranted in law and should have been passed, this is a matter in which the Court is constrained to dismiss the appeal.

31. The orders, therefore, will be as his Honour proposed.

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