REGINA v Stephen John SANDISON

[2003] NSWCCA 320

CITATION:	REGINA v Stephen John SANDISON [2003] NSWCCA 320
HEARING DATE(S):	29 August 2003
JUDGMENT DATE:	29 August 2003
JUDGMENT OF:	Mason P at 1; Hidden J at 37; Shaw J at 38
DECISION:	Appeal dismissed.
CATCHWORDS:	Criminal appeal - sentencing - Crimes Act 1900, s52A(3)(c) - custody dispute contributed to dangerous driving hitting pedestrian - victim known to driver - White guideline - "abandonment of responsibility". ND
PARTIES :	REGINA v Stephen John SANDISON
FILE NUMBER(S):	CCA 60243/03
COUNSEL:	Appellant: R J Button Respondent: D C Frearson
SOLICITORS:	Appellant: Legal Aid - Mr Healy Respondent: S E O'Connor - Crown Prosecutor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/11/0335
LOWER COURT JUDICIAL OFFICER :	Davidson ADCJ

CCA 60243/03

MASON P
HIDDEN J
SHAW J

Friday 29 August 2003

REGINA v Stephen John SANDISON

Judgment

1 MASON P: Mr Button has put the applicant’s case well and at its highest. I am, however, unpersuaded that the sentencing judge fell into any appellable error in this matter.

2 The applicant was arraigned on an indictment containing two counts:

1. malicious wounding with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900 ;
2. in the alternative, driving a motor vehicle in a manner dangerous to another person or persons where by the vehicle was involved in an impact causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 .

3 The offences charged occurred on 17 April 2001 and the victim was Mr Peter Mawer. To this indictment the applicant pleaded not guilty to the first count, but guilty to the second count in the presence of the jury. The plea was not accepted by the Crown. A trial ensued spanning several days.

4 The jury returned a verdict of not guilty on the first count, not guilty on the statutory alternative to the first count of malicious wounding, and guilty on the second count, which had been the one to which the applicant had originally pleaded guilty.

5 The maximum penalty for the offence on which the applicant was found guilty is seven years imprisonment.

6 The victim, Mr Peter Mawer, had been in an ongoing custody dispute with the applicant’s girlfriend, Ms Gaffney, in relation to a ten year old daughter of the couple, Tymara. Ms Gaffney had two other children, one of them an infant child by the applicant. The three children were living with Ms Gaffney.

7 Ms Gaffney had planned to move with the three children to live in Port Macquarie. Mr Mawer obtained an interim injunction preventing the move so far as Tymara was concerned. The custody dispute came on for final determination in the Family Court on the morning of 17 April, that is, the date of the offence. An order was made by consent that Tymara’s custody be vested in Mr Mawer’s mother, with whom Mr Mawer resided. This order was to take effect from 1 pm the following day.

8 During the afternoon of 17 April, Tymara had gone to the pictures with her older half-sister. The arrangement was that when the girls got back to Mortdale station, they would ring home to Ms Gaffney to arrange to be picked up by car. This happened and Ms Gaffney asked the applicant, who was at her home at the time, to pick up the children. The applicant knew of the consent orders made in the Family Court that day. The prospect of losing custody of Tymara was a serious disappointment to Ms Gaffney and her emotional upset was shared by the applicant. This factor, it seems to me, is relevant to the issue of moral culpability, but it tends to point in two directions.

9 As it turned out, unbeknown to the applicant in advance, Mr Mawer was also at the station speaking to Tymara at the roadside. He was recognised by the applicant. The applicant struck him with the car and severely injured him. The precise details of the accident and the inferences to be drawn as to the applicant’s intention were key issues in the trial.

10 The sentencing judge had to act consistent with the jury’s verdicts and its view of the facts adverse to the applicant, if established beyond reasonable doubt. The learned sentencing judge held that the verdicts had acquitted the applicant of intention to cause grievous bodily harm to Mr Mawer, and had also excluded a deliberate or reckless act of wounding.

11 Davidson ADCJ was, however, satisfied beyond reasonable doubt that the applicant recognised the man speaking to the two children as Mr Mawer. He further concluded that it was this which, added to his knowledge of what had transpired in the Family Court earlier that day, caused him to drive in the unlawfully dangerous manner that the jury found he did.

12 Mr Mawer was speaking to the two girls near a telegraph pole, which was just on the kerb at a point where Morts Road formed a T-intersection with streets running to its left and right. There is a relatively small area of road where cars can park near the kerb in order to pick up and let down passengers. Just before the turning area there is a raised pedestrian ramp, obviously designed to slow down traffic to enable a left or right hand turn to be made.

13 If such turn is not made with safety, there is a clear potential danger to pedestrians on the footpath opposite the intersection and near the telegraph pole. At the time in question there were a number of people in that area, as well as Mr Mawer and the two daughters of Miss Gaffney. Davidson ADCJ made the following findings about the accident:

“There were eyewitnesses who attested to the speed at which the prisoner approached and traversed the pedestrian cross speed bump. Although there was a good deal of discrepancies in this part of the evidence, as is frequently the case in a charge of this sort, I am satisfied beyond reasonable doubt that it was a speed which exceeded that which was safe in all the circumstances.


If the prisoner was intending to make a right hand turn in order to park close to and parallel with the kerb so he could take aboard the children, then he failed to do so. Instead, he continued on over the intersection and collided with the pole and also with Mr Mawer’s leg, causing painful injury to Mr Mawer.

Although there was some factual dispute traversed at the trial, whether he hit the pole and then Mr Mawer, I, in my view, find it unnecessary to determine this, although the objective circumstances of Mr Mawer’s injuries seem to me to clearly point to the car coming into contact with Mr Mawer’s leg and his leg coming into contact then with the pole.

The prisoner’s behaviour after the incident in which Mr Mawer, in obvious and extreme pain, hobbled in a bleeding state to a nearby tobacconist, was indicative, in my view, of no remorse for what had occurred as a result of his handling of this motor vehicle.

Indeed, the evidence of witnesses as to his behaviour towards Mr Mawer indicated that he regarded Mr Mawer as having got his just desserts for daring to speak to Tymara Lee, when in the prisoner’s mind he had no right to do so until the following day at about 1 pm.”

14 His Honour approached the sentencing discretion with the guideline judgments of R v Jurisic (1998) 45 NSWLR 209 and Queen v White (2002) 55 NSWLR 252 in view. He recognised the judgments were not prescriptive like a statute. It is unnecessary to set out the details of the reasoning in the two cases, because the matter at issue in this application for leave to appeal relates to his Honour’s characterisation of the facts which he found. I do not understand the applicant to contend for appealable error if that characterisation was properly made.

15 The sole ground of appeal is that the sentencing judge erroneously characterised the driving of the applicant immediately prior to the impact as an “abandonment of responsibility”. That ground was, of course, developed in ways which I shall address.

16 In R V White the leading judgment was given by the Chief Justice. The Chief Justice’s discussion of the factors calling for custodial sentence is at pages 284-6. He concluded at page 286:

“.... The guideline this Court should give pursuant to section 37A of the Crimes (Sentencing Procedure) Act 1999 with respect to the typical case identified above is: 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 misjudgment ... “.

17 The Chief Justice then offered the numerical guidelines. He referred at page 286 to the second limb of the guideline in R v Jurisic (at 231E) as follows:

“... With a plea of guilty, however, 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....”

18 A list of aggravating factors are then mentioned, including:

“(i) Extent and nature of the injuries inflicted.
(ii) Number of people put at risk.
(iii) Degree of speed.
(iv) ....
(v) Erratic driving
....”

and eight other factors. The Chief Justice pointed out that references to passages in Jurisic that the question whether or not there was an abandoning of responsibility involved an element of judgment on which sentencing judges could reasonably differ.

19 After discussing various cases the Chief Justice said at 287 [229] – [230]:

“...The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case identified above should be:

“Where the offender’s moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.’

In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate.”

20 I return to the reasons of Davidson ADCJ. His Honour held that from the time the applicant recognised Mr Mawer, who was standing at the roadside:

“... his driving from there on, I find may properly be described within the meaning of the guideline judgment in White’s case, was erratic, in that his emotive impasse was to allow him to take over the role of his motor vehicle to an extent. I do not use the words ‘road rage’ to describe the circumstances as I find them, but there was, in my view, a strong emotive content to his handling of the vehicle from that point on.”

21 After referring to the particular circumstances of the accident and its immediate aftermath, the learned sentencing judge said:

“... In those circumstances, I am unable to approach this matter as one in which there was low moral culpability, as indicated by circumstances of momentary inattention or misjudgment, a view of the facts which Mr Crawford-Fish presses upon me.

There was, although for a short period whilst the prisoner was driving along Morts Road, and certainly from the time he negotiated the speed bump, an abandonment of his responsibility.

In my view the prisoner not only put at potential risk Mr Mawer, but perhaps the children and perhaps other persons who were on the footpath in the vicinity of the telegraph pole by his manner of driving.... “

22 Later the offence was characterised as follows:

“...The offence was a serious one involving, as I have said, not an insignificant level of moral culpability. It involved for a short period in any event, after he traversed the speed bump in Morts Road until the impact an abandonment of responsibility occasioned by his permitting emotive factors to overcome his control, proper control of the vehicle... “

23 Consistently with the White guideline his Honour also addressed the extent and nature of the injuries suffered by Mr Mawer. Considerable attention had been paid to this in the sentencing proceedings. There had been a victim impact statement and extensive cross-examination. His Honour found that Mr Mawer had suffered serious injuries in the sense that they resulted in pain and an element of continuing disability. That disability had affected Mr Mawer’s capacity to continue in employment, at least to a degree.

24 His Honour also adverted to the fact that the applicant’s driving had put at risk not only Mr Mawer but the two children standing nearby, and perhaps also others. This is indicated as an aggravating factor within the White (supra) guideline.

25 Davidson ADCJ allowed a 20 per cent reduction having regard to the guilty plea, adding that it would have been an acceptance of the inevitable. He then addressed matters personal to the applicant and dealt with them in a manner attracting no criticism in this Court. Good character was taken into account as well as the material concerning the applicant’s current family and psychological state. The applicant is aged forty-two, and is suffering from a level of depression.

26 His Honour determined that the custodial sentence was appropriate and he declined to suspend it. He considered the available Judicial Commission statistics, observing that 47 per cent of persons convicted received a sentence of other than full time custody. His Honour said that he considered a suspended sentence did not meet the objective circumstances of the offence.

27 The sentence was backdated to take account of the period of pre-trial custody. Davidson ADCJ imposed a sentence of two years imprisonment to date from 20 August 2002 and set a non-parole period of eighteen months. He declined to displace the statutory term of licence disqualification.

28 The applicant does not dispute the primary findings of fact with regard to speed, recognition of the victim by the applicant and emotion on the part of the applicant. It is accepted that the applicant was going too fast when he went over the speed bump, losing control in the process. Counsel did, however, refer us to evidence at trial to the effect that the speed at the time of impact was between 5 and 15 kilometres an hour. He did not, however, suggest that the finding that that speed was too dangerous in the circumstances was erroneous.

29 The applicant submitted, however, that it was an error on the sentencing judge’s part to have described the unexpected entering into an emotional state for a matter of seconds as an abandonment of responsibility. He submitted that this phrase must have a “more potent meaning” in the Jurisic/White context. Counsel submitted his Honour’s conclusions were not reasonably open in light of the primary facts. He submitted that this was not a case of high moral culpability, or an abandonment of responsibility.

30 It seems to me that this submission involves the type of close parsing of the guideline judgments that is incompatible with their fair reading and inconsistent with the emphasis they make upon the concept of “abandonment of responsibility” involving an element of judgment on which sentencing judges could reasonably differ. Sentencing remains a product of a particular appropriately informed discretion, sometimes referred to as an intuitive synthesis.

31 I am not persuaded that the sentencing judge erred in his characterisation of the particular offence, or his decision to apply the White guideline. There were aggravating features, including substantial injury to Mr Mawer, erratic behaviour, excessive speed and the putting at risk of several people.

32 The conclusion of substantial moral culpability was well open in light of the primary facts. Merely because the dangerous driving was of only a few seconds duration, does not preclude such characterisation. This case involved more than momentary inattention.

33 In White at 284 [205], the Chief Justice said:

“... in determining the appropriateness of full time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.”

34 In this case the sentencing judge gave close attention to the degree of moral culpability involved. He did not approach the matter in a mechanistic way. No error has been shown. The Crown is correct to assert the relevance of the fact that this victim was not a stranger and the very qualified remorse of the offender.

35 Although not a substantial ground of appeal, counsel took us to the sentencing statistics. Those statistics do not really bolster the primary attack, nor cast any doubt on the exercise of the sentencing discretion. For one thing, they are not an indicator of individual levels of moral culpability in this range of offences. For another, they show that the custodial sentence that was imposed is at least within the range to the extent that one can speak of a range from those statistics.

36 For those reasons I would grant leave, but dismiss the appeal.

37 HIDDEN J: This was a most unusual case, posing a very difficult sentencing exercise for the trial judge. I must say that this application has troubled me. However, for the reasons identified by the President, it does seem to me that his Honour’s assessment of the applicant’s moral culpability was one which was open to him, and that the sentence imposed was clearly within the range of his Honour’s discretion. I agree with the orders proposed.

38 SHAW J: In my view judicial discretion in sentencing is a vital element of the criminal justice process, and that is so whether other minds might think a sentence was too lenient or too severe. I might not have given a sentence in this case, but that is not the relevant question, and in all the circumstances I agree with the reasons and orders proposed by Mason P.

39 MASON P: The orders of the Court will be as I have indicated.

Last Modified: 09/05/2007