Regina v Clark
[2003] NSWCCA 288
•6 August 2003
CITATION: REGINA v CLARK [2003] NSWCCA 288 HEARING DATE(S): 6 August 2003 JUDGMENT DATE:
6 August 2003JUDGMENT OF: Wood CJ at CL at 20; Simpson J at 21; Adams J at 1 DECISION: Leave to appeal granted; Appeal upheld; Sentence quashed; In lieu thereof a sentence of eighteen months' imprisonment be imposed, suspended upn the condition that the offender enters into a good behaviour bond for a term not exceeding eighteen months, the sentence to commence on 8 February 2003. LEGISLATION CITED: s52A(3)(c) Crimes Act 1900 CASES CITED: R v Macintyre (1988) 38 A Crim R 135
R v Jurisic (1998) NSWSC 423
R v Swift unreported NSWCCA 11 April 1991
R v Whyte (2002) 55 NSWLR 252PARTIES :
Regina (Respondent)
Jon Joseph Clark (Applicant)FILE NUMBER(S): CCA 60144/03 COUNSEL: G Walsh (Solicitor) - Applicant
M Grogan - RespondentSOLICITORS: G Walsh - Applicant
S E O'Connor - Respondent
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/1141 LOWER COURT
JUDICIAL OFFICER :Christie J QC
IN THE COURT OF
CRIMINAL APPEAL
60144/03
WEDNESDAY 6 AUGUST 2003
1 ADAMS J: This applicant pleaded guilty to an offence under s52A(3)(c) of the Crimes Act 1900 and, on 30 January 2003, was sentenced in the District Court to a fixed term of imprisonment of two years, to be served by way of periodic detention. No non-parole period was specified.
2 The applicant seeks leave to appeal from this sentence on three grounds.
- (1) The learned sentencing judge erred in failing to specify a non-parole period;
(2) The learned sentencing judge erred by failing to consider an appropriate starting point for the assessment of the sentence to be imposed before allowing a discount in respect of the applicant’s plea of guilty; and
(3) The sentence imposed was manifestly excessive.
3 On the afternoon of 26 April 2002 the applicant was driving his vehicle in the city, near Wynyard station, with his wife as passenger. At the intersection of Jamison Street and George Street he stopped for some pedestrians, and then commenced to turn into Jamison Street.
4 The victim was in the roadway, having just stepped off the footpath. He was wearing earphones and may have been, or appeared to be, inattentive to the traffic. The applicant bipped his horn. It appears that the victim made a rude gesture and thumped one or both of his hands on the bonnet of the applicant’s car. The victim moved back towards the footpath and was at the left hand corner when the applicant accelerated forward, knocked the victim down and ran over his leg, up to his chest, and then reversed.
5 The victim suffered multiple injuries to his legs and chest, involving fractured ribs and a collapsed left lung. Fortunately, he made a complete and uneventful recovery. The learned sentencing judge appeared to accept that the applicant was only moving slowly when the car hit the victim and there was no cross-examination below to suggest that the applicant’s evidence that he was only moving, he thought, at 2-3 kilometres an hour was mistaken. On the other hand, some witnesses did discern acceleration. His Honour accepted that the victim had been aggressive towards the applicant. The applicant, and his wife, said that they thought that the victim was clear of the vehicle when it moved forward but his Honour observed what was obvious - that in fact he was not and commented that it behove the applicant to ensure that a person “confronting him ... giving him rude signs and apparently mouthing ... abuse at him ... was well clear before he should accelerate.”
6 His Honour said that he could not put the applicant’s actions as “highly” as road rage but it moved away from “momentary inattention”. His Honour said that “the evidence appears to me to indicate that Mr Clark was - I chose my words carefully - very unwise, to put it mildly, to have accelerated in the way he did, in the circumstances he did, when it must have been perfectly clear to him that this man was still in the vicinity. He had just only then whacked both his arms on his front bonnet.”
7 The judge noted that the applicant’s speed was uncertain but he accelerated in a way that “was almost unforgivable” rather than nudged. He described the applicant’s conduct as “a serious lack of judgment” and as having made “some errors of judgment that I suspect he will regret for the rest of his life.” His Honour concluded that he was “not prepared to find that he, the applicant, deliberately drove over this man, but it is touch and go that he deliberately accelerated the car whilst he must have known this man was very close in his vicinity and was aggressive towards him.”
8 The applicant gave evidence at the sentence proceedings. He said, in substance, that he saw some pedestrians who he stopped for, that he started to move forward, saw the victim moving rather fast, with earphones on, that he stopped again, that the victim kept moving, came in front of the car, banged on the bonnet and gestured, that he waved him on, he went out of his line of sight as he looked up Jamison Street and, as he accelerated to drive up the hill, he heard the bump as the car hit him. He said he was then going no more than two or three kilometres an hour. It was accepted by the cross examiner that, although the applicant “was not as diligent as he should have been on the road” driving on without looking out for the victim, he did think that the victim was clear of the vehicle. The case put to the applicant, which he denied, was that he accelerated up the hill because he was upset with the victim and wanted to get away from him.
9 It is not altogether easy to understand precisely what the learned sentencing judge concluded as to the state of mind of the applicant. I take the sense of the passage last quoted above to mean that, although it looked as though the applicant had deliberately accelerated, reckless whether the victim was in danger, this is not what happened. If his Honour had found that the applicant had accelerated as an act of aggression aimed at the victim or reckless whether the victim might be struck, that would be a very significant finding and could not, of course, be decided as a matter of “touch and go”. I think it is necessarily implicit from his Honour’s reasons that he accepted that the applicant had misjudged the position of the victim and accelerated forward to move up the hill without looking to ensure that he could do so safely.
10 Following the collision, the applicant attended at the police station at the request of police. A brief analysis demonstrated a reading of 0.065 grams of alcohol per 100 ml of blood. At the time of the collision the concentration would have been between 0.075 and 0.085 grams per 100 ml of blood. The applicant said he drank three glasses of beer, half light, half full strength. However, he had attended a function the previous night where he drank what his Honour described as “twenty beers”. His Honour thought that the applicant was mildly intoxicated but said “whether it caused him to involve himself in such a serious lack of judgment is debatable.”
11 The applicant had been driving since 1974 and had a number of traffic offences on his record, including having the prescribed concentration of alcohol in his blood, though his Honour did not regard his offences as being particularly significant.
12 There were strong subjective features in the case. The applicant’s youngest child is twenty-seven years old and suffers from Down’s syndrome. He and his wife together looked after her special needs.
13 For over fifteen years the applicant was involved in a substantial way in the Down’s Syndrome Association and the Special Olympics. He has helped with the World Down’s Syndrome Congress and, with his wife and daughter, was one of the initiators of the Up Club, which is a club where Down’s syndrome teenagers and young adults develop a social agenda for the year and organise to implement it. Much of his life, and that of his wife, has been devoted to supporting his daughter’s participation in many sporting, public speaking and recreational events. He has been actively involved in the North Narrabeen Surf Club for forty years, doing surf lifesaving patrols and helping with the juniors to help them achieve their bronze medallions. He has coached the local rugby league team for seventeen years.
14 His wife suffers from insulin dependent diabetes and Bell’s palsy and from February 2000 to September 2002, was almost constantly in hospital. In October and November 2003 she suffered aneurysms in both eyes. The applicant, of course, is her principal carer. Although his Honour referred to the applicant’s involvement in community affairs, he did not advert to the inevitable and substantial impact that a prison sentence would have on this man who, for so many years, has devoted himself to the care of his family. I do not doubt that the knowledge that his daughter, especially, would not have his care and help must render imprisonment especially harsh. The impact of the loss of his licence on his ability to help his wife, and particularly his daughter, is also far greater than mere inconvenience.
15 To my mind the impact of his imprisonment upon his family is, in the circumstances of this case, exceptional and should have been taken into account. The learned sentencing judge noted that the applicant had pleaded guilty at an early, if not the earliest, stage and was genuinely remorseful and contrite. His Honour considered that the plea had very definite utilitarian value.
16 The learned sentencing judge noted the importance of giving due weight on the one hand to the guideline given by this Court in sentencing for offences of this kind - see Jurisic; Whyte – and, on the other, to exercise the judge’s independent discretion to do justice in the individual case. There is no automatic response to any particular set of facts. However, I am troubled by his Honour’s statement that a fixed term of two years’ imprisonment “is the minimum term I would be allowed to impose pursuant to the guidelines.” I am unable to discern how, applying the guidelines, such a conclusion can follow in the circumstances here. In the end, if this was a case of momentary misjudgement, if not momentary inattention, it was not much worse than that. The fact of mild intoxication was, I think, an aggravating factor since the misjudgement otherwise may not have been made.
17 Taken together, his Honour’s remarks about what sentence was allowed, and the two years said to be the minimum permissible term, it seems to me, with respect, the learned sentencing judge has misapplied the Jurisic consideration.
18 In dealing with the subjective features of the case, however, it seems to me that his Honour gave the applicant’s substantial voluntary involvement in worthy community activities insufficient weight. It is one thing to be a law abiding citizen of good character. It is quite another to make a voluntary and significant contribution to the good of the community. I do not consider that the admonition by the Chief Justice in R v Whyte (2002) 55 NSWLR 252 at 145 and other remarks to similar effect by Lee CJ at CL in R v Swift NSWCCA 11 April 1991 and Macintyre (1988) 38 A Crim R 135 at 139 are intended to suggest that such good works should be disregarded when sentencing for offences such as the present or, for that matter, any sentence.
19 I have come to the view that the learned sentencing judge did err in the exercise of his sentencing discretion. I would, therefore, propose that leave to appeal be granted, the appeal upheld, the sentence quashed and, in lieu thereof, a sentence of eighteen months imprisonment be imposed, suspended upon the condition that the offender enters into a good behaviour bond for a term not exceeding eighteen months, the sentence to commence on 8 February 2003. I note that the applicant has already served a little over six months of the term imposed.
20 WOOD CJ at CL: I agree.
21 SIMPSON J: I also agree.
22 WOOD CJ at CL: The order of the Court will be as Adams J has proposed.
Last Modified: 10/13/2003
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