Appeal Dismissed: Sentence Upheld for Dangerous Driving Causing Harm

The Court of Criminal Appeal dismissed an appeal challenging the sentence for dangerous driving causing grievous bodily harm. The appellant argued that the moral culpability was wrongly assessed as high, the totality principle was not applied, and the sentences were manifestly excessive. The court affirmed the sentence, finding it reasonable and not plainly unjust.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2013] NSWCCA 134 Hearing dates: 06/05/2013 Decision date: 05 June 2013 Before: Bathurst CJ at [1] [NAME] at [2] Campbell J at [45] Decision:

1. Leave to appeal granted.

2. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - two counts of driving in a manner dangerous occasioning grievous bodily harm - moral culpability - principle of totality - whether individual sentences and overall sentence were manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: R v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259 R v Read [2010] NSWCCA 78 R v [NAME] [2012] NSWDC 78 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53 R v Wilson [2005] NSWCCA 219 Category: Principal judgment Parties: [NAME] (Applicant) The [NAME] (Respondent) Representation: Counsel: [redacted] [NAME] ([NAME]) Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2009/62492 Decision under appeal Date of Decision: 2012-05-31 00:00:00 Before: Berman DCJ File Number(s): 2009/62492

Judgment 1BATHURST CJ: I agree with [NAME]. 2FULLERTON J: On 25 May 2012, following a judge alone trial, Berman DCJ convicted the applicant of two counts of driving in a manner dangerous to the public occasioning grievous bodily harm, contrary to s 52A(3) of the Crimes Act 1900 (see R v [NAME] [2012] NSWDC 78). 3The [NAME] injured in the driving episode that gave rise to the charges were back seat passengers in the applicant's four wheel drive four-seat convertible which became airborne when it was driven over a sand dune in [NAME] (a small private park at Kurnell) before impacting with the sand on its descent and flipping over. As a result of the collision [NAME] was rendered a tetraplegic and [NAME] suffered broken arms. At the time of the driving episode the vehicle had a canvas roof attached. No roll bars were fitted. 4The applicant was bail refused on 25 May 2012 and has been in continuous custody since that date. 5The offence of dangerous driving contrary to s 52A(3) of the Crimes Act attracts a maximum sentence of 7 years imprisonment. For the offence involving [NAME], and after a finding of special circumstances, the applicant was sentenced to a non-parole period of 1 year and a balance of term of 1 year. The sentence was ordered to date from 25 May 2012. For the offence involving [NAME], also after a finding of special circumstances, the applicant was sentenced to a non-parole period of 2 years and 6 months and a balance of term of 2 years. The sentence was ordered to commence on 25 May 2013. The sentences were partly accumulated resulting in an effective sentence of 5 years and 6 months, consisting of a non-parole period of 3 years and 6 months and a balance of term of 2 years. 6The applicant seeks leave to appeal against sentence and relied upon three grounds of appeal: Ground 1: [NAME] wrongly determined the applicant's moral culpability as high. Ground 2: [NAME] failed to apply the totality principle. Ground 3: The individual sentences and the overall sentence were manifestly excessive. 7The applicant was also disqualified from driving for four years commencing on 25 May 2012. There is no challenge to that order. 8His Honour published detailed reasons for the verdicts entered on both counts. His assessment of the objective gravity of the offending, and whether the features of aggravation relied upon by the [NAME] were made out for sentencing purposes, are necessarily related to the factual findings inherent in [NAME]'s finding of guilt. The appeal against sentence calls for some scrutiny of these findings. 9The applicant's subjective circumstances were the subject of evidence tendered on sentence only. The applicant gave evidence in the sentence proceedings. He did not give evidence at his trial.

The evidence at trial 10On the morning of 7 February 2009 the applicant drove to Kurnell to spend the day at the beach with [NAME] and another friend, [NAME]. After being at the beach for some unspecified time they went to nearby [NAME] where recreational four-wheel driving over sand dunes was an approved activity. The applicant drove while [NAME] and [NAME] occupied the rear passenger seats and [NAME] the front passenger seat. A speed limit of 20 kph was designated within the confines of the park. 11After entering the park (again at some unspecified time) the applicant drove up and over a sand dune. It had what was described as a flatter gradient on approach and a steeper gradient on the descent. Each of the three passengers were in the vehicle during that manoeuvre. It was executed without incident. The manoeuvre was then repeated. On this occasion, however, [NAME] got out of the vehicle before the ascent and positioned himself at the base of the descent to photograph the vehicle as it came over the crest of the sand dune. At the crest the wheels of the vehicle left the sand, pitched forward, and impacted with the descending face of the dune before rolling forward and onto its roof. 12The only issue in dispute at trial was whether the applicant was driving his vehicle in a manner dangerous to other people at the time that it impacted with the sand on its descent causing the injuries suffered by the back seat passengers. 13The [NAME] put its case on three bases: 1. [NAME] was driving at excessive speed; 2. [NAME]'s decision to drive the vehicle off such a steep sand dune was dangerous in itself, no matter what speed the vehicle was travelling; and 3. It was dangerous to drive this particular vehicle in that manner where it was not equipped with a protective roof or roll bar. 14As the trial judge, [NAME] approached the question as to whether the [NAME] had proved guilt by focusing on whether it had proved to the criminal standard that the applicant drove at excessive speed. [NAME] reasoned to the conclusion that if he were satisfied beyond reasonable doubt that the speed at which the applicant executed the driving manoeuvre over the sand dune was dangerous then he need not resolve whether the other features of the driving relied upon by the [NAME] were capable (alone or in combination) of constituting dangerous driving for the purposes of criminal liability. 15Both the [NAME] and the defence called expert evidence concerning the likely speed of the vehicle at the time it ascended and crested the sand dune. The [NAME] also relied upon the evidence of eyewitnesses to establish that the vehicle was "revving" on the ascent and that it became airborne as it breached the crest of the dune, and the evidence of an ambulance officer and a fire brigade officer that they saw no vehicle tracks on the descending gradient of the dune to further support the [NAME] case that the vehicle was airborne at the crest. 16The applicant gave an account to police in his ERISP that he was travelling on the approach to the dune at a "walking pace" and that as he approached the top of the dune he slowed down to "pretty much a stop". 17It was submitted on the applicant's behalf at trial that the evidence did not establish that the speed range at the point of the vehicle being effectively launched into the air (namely at between at least 22.6 and 25 kph as agreed between the experts) was an excessive speed when viewed against the speed limit in the park of 20 kph. It was also submitted that it was reasonably possible that the vehicle flipped forward at the crest of the sand dune (without becoming airborne) as a result of the vehicle breaking through the surface of the sand at the crest causing the front wheels to sink, thereby imparting rotational movement to the vehicle and causing it to flip over. 18His Honour found that the vehicle did become airborne at the crest of the dune such that the tyres lost contact with the sand, and that driving at a speed that achieved that result was driving in a manner that was dangerous to another person or persons. As to the issue of speed he said at [103]: It will be noted of course that I have not ascribed here a precise speed to the vehicle as it became airborne. This is because it largely does not matter. Whatever the precise speed was it was sufficient to cause the vehicle to become airborne. Thus whether the speed of the vehicle was 25 kilometres an hour or 22.6 kilometres an hour does not really matter. 19He went on to hold: [107] The manner of [NAME]'s driving, including the speed at which he travelled, was such as to cause the vehicle to become airborne as it went over the crest of the sand dune with the result that the vehicle rotated forwards and [NAME] could do nothing to prevent the vehicle falling under the influence of gravity, rotating as it did so, the significant vertical distance to where it hit the ground below. By causing the vehicle to become airborne [NAME] could not slow down its descent by using the brakes - in effect he had brought about a situation where he was unable to control the vehicle in any way whatsoever. And he brought about a situation where the vehicle would rotate as it flew through the air. [108] This created a real danger to the passengers in his vehicle. Driving in such a way that the vehicle became airborne as it went over this sand dune was a serious breach of the proper conduct of the vehicle. This was such a serious breach as to be in reality potentially dangerous to the passengers in his vehicle. [NAME] caused a situation to come about where his vehicle fell through the air, rotating as it did so, without being in contact with the sand, and without [NAME] being able to arrest the descent of the vehicle until it collided with the sand at the base of the dune, its momentum causing it to then overturn. 20Although not essential to the finding of guilt, [NAME] also found that the passengers expressed concern at the danger they perceived they would be exposed to were the applicant to repeat the driving manoeuvre (presumably under speed). [NAME] said: [110] [NAME] gave evidence that immediately before the vehicle went over the sand dune and overturned she asked to get out of the vehicle. Her evidence was that she was scared by what [NAME] had just done and by what he was planning to do. She gave evidence that she didn't actually get out because [NAME] asked her to "stay and hold my hand". [NAME] gave evidence that she too was scared and asked to get out of the vehicle and that she remembered [NAME] asking the same thing. She said that [NAME] did not reply to her request and the next thing she remembers was the vehicle nose diving. ... [112] [NAME] gave evidence that whilst initially [NAME] asked to get out when he did, she changed her mind. This is broadly consistent with [NAME]'s evidence. This suggests that [NAME]'s recollection, clearly affected by the awful injuries she suffered, may have been faulty in a minor way. In any case there is evidence from three of the four people in the vehicle that day that immediately before it overturned [NAME] asked to get out, two of the witnesses, including [NAME] herself, explaining that she didn't do so after changing her mind...

Additional factual findings on sentence 21For sentencing purposes [NAME] made additional findings of fact. He found [NAME]'s injuries to be in the worst category of grievous bodily harm. He made no assessment of [NAME]'s injuries. This was not the subject of any criticism or comment on the appeal. In his assessment of the objective gravity of the offending (which I take to be comprehended by both counts), [NAME] found that although the applicant was driving on the sand dune at well in excess of a safe speed, the offence was not of the same gravity where serious injury has resulted from a driver travelling at high speed and becoming airborne due to an uneven road since a driver in those circumstances should be taken to appreciate the high risk of an accident and consequential injury to other road users. By contrast, [NAME] expressed the view that the consequences of driving over a sand dune at high speed are not widely known. While he accepted that in one sense the offences were a consequence of the applicant's youthful exuberance and his failure to appreciate the danger to others (and himself) of driving as he did, [NAME] was also satisfied beyond reasonable doubt that the applicant failed to heed the warnings and concerns of his passengers on approach to the second ascent. He also found that the applicant was "showing off" by driving intentionally at an excessive speed so that the vehicle would become airborne (in the sense that all four wheels would leave the surface of the sand). 22In considering the interplay of these factors as aggravating circumstances for the purposes of applying the guideline judgment in R v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259, [NAME] assessed the applicant's moral culpability as high. In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53 at [223], Spigelman CJ regarded the moral culpability of an offender as one way of describing an abandonment of responsibility and which, when present to a material degree, is a matter relevant to determining an appropriate sentence. 23In further consideration of the list of aggravating factors identified in Jurisic at 231E (set out in full at [28] of this judgment) [NAME] noted the seriousness of the injuries suffered by [NAME] and the fact that more than one person was put at risk because of the two passengers in the rear seat. It will be necessary to consider whether [NAME] was in error in taking both factors into account for the purposes of assessing moral culpability, as contended for by the applicant's counsel in support of the first ground of appeal, and/or whether [NAME] was entitled to have regard to the risk that presented to the two injured people as an aggravating factor at all.

Subjective circumstances 24The applicant was 27 at the time of sentence and 24 at the time of committing the offences. He was a [COMPANY] and was in full-time employment in that capacity at the time of the trial. He was the father of a [NAME] child with a [NAME] partner and of an [NAME] with his current partner. He had considerable family support. His expressed remorse on sentence was accepted as genuine. 25The applicant had no relevant criminal record but had regularly infringed traffic laws resulting in a loss of his licence. These infringements included relevantly, so far as the question of speed is concerned, the following: 11 August 2003: Exceed speed limit by more than 15km/h but not more than 30km/h; 12 April 2005: Exceed speed limit by not more than 15km/h; 2 June 2008: Exceed speed limit by more than 15km/h but not more than 30km/h; 24 August 2009 (after the accident): Exceed speed limit by more than 15km/h but not more than 30km/h. 26His Honour concluded that although the applicant was [NAME] his traffic history distinguished him from the typical case of a [NAME] offender with good character with limited or no prior convictions for the purposes of the guideline judgment.

Ground 1: [NAME] wrongly determined the applicant's moral culpability as high 27The applicant's counsel did not submit that the sentencing judge's factual findings concerning the offender's conduct were not open on the evidence. The focus of his submission was that those findings, in particular that the applicant was "showing off" and that the speed he was driving at was excessive, needed to be significantly tempered when assessing his degree of moral culpability, in part because of [NAME]'s related finding that the offences were not of the same gravity as offending which involved high speed travel along a public road and because the speed at which the applicant's vehicle was travelling was only marginally above the speed limit set by the [NAME]. 28In Whyte, when considering the second limb of the guideline judgment in Jurisic, Spigelman CJ said the following: [215] The second limb of the guideline in Jurisic at 231 was as follows: "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." [216] I had earlier set out a list of aggravating factors which had been established in the authorities as follows: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit." [217] Further consideration of the authorities would cause me to amend this list by changing (v) to read "erratic or aggressive driving" and adding: (x) Degree of sleep deprivation. (xi) Failing to stop. [218] I went on to say at 231: "Para(i) and para(ii) focus on the occurrence, whereas para(iii)-para(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence." [219] It was after this passage that the two limbs of the guideline in Jurisic were set out. [220] I said at 231 that the formulation of whether "the relevant aggravating factor manifest[s] in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct" involves an element of judgment on which sentencing judges could reasonably differ. [221] I also said at 231: "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." ... [223] As set out above, the guideline in Jurisic was expressed in terms of an aggravating factor involving the offender's conduct being present "to a material degree". The factors identified all related to the moral culpability of the offender. The reference to 'abandonment of responsibility' was one formulation for describing a high degree of moral culpability. The case law subsequent to Jurisic does not suggest that it has been applied as if it were a statutory test. 29In my view, it was open to the sentencing judge to regard the combination of excessive speed (iii); showing off (vi); and ignoring warnings (viii) as constituting moral culpability of a high order. [NAME] regarded driving at excessive speed in a private park as in a different category of offending to where drivers travel at excessive speed on a public road, as I see it, the critical finding supporting the assessment of a high degree of moral culpability was his finding that the applicant drove at excessive speed with the intention that the vehicle would become airborne and that it was this that led directly to the rear seat passengers suffering grievous bodily harm. It is an unexceptional observation that a safe speed depends upon a range of factors, including the posted speed limit and prevailing conditions. In this case, in my view, a safe speed had little to do with what [NAME] considered might be an appropriate speed for recreational driving, or the fact that the applicant exceeded that limit by a relatively modest margin. To drive at a speed which was intended to launch the vehicle over the crest and into the air was dangerous on any view. I would also add that for my part, although [NAME] gave the applicant the benefit of a finding that the consequences of driving over a sand dune at high speed might not be widely known, I regard the dangers inherent in driving a car (with or without a hard roof) under speed up and over a sand dune, with the intention that all four wheels leave the ground thereby depriving the driver of any control over the vehicle or how it might land, as obvious. 30Counsel also submitted that the significance of the concern expressed by the two passengers should be similarly tempered since the evidence was that this occurred immediately before the vehicle went over the sand dune and therefore at a time when there was nothing the applicant could do to heed the warning. This submission is contrary to the evidence summarised by [NAME] and set out in [20] above. 31In considering whether there is error in the way [NAME] dealt with the nature of the injuries and the degree of risk to others as aggravating features, it is necessary to set out that part of [NAME]'s sentencing remarks: A number of aggravating factors were also suggested for consideration relating to the moral culpability of the offender. I have mentioned repeatedly because of its importance in the sentencing decision the terrible injuries suffered by [NAME]. [NAME] concedes that it is an aggravating circumstance that more than one person was put at risk with [NAME] driving over that dune with two girls in the back of his vehicle. 32I am persuaded that it was not open to [NAME] to find that more than one person was put at risk because of the [NAME] in the rear seat of the applicant's vehicle and to treat it as an aggravating circumstance under the guideline judgment, whether in the assessment of moral culpability or as aggravating the occurrence of the offence. The applicant's trial counsel was in error in making that concession. In promulgating the guideline judgment in Jurisic, where the nature and extent of the injuries inflicted has been recognised as a discrete aggravating factor and where, as here, the suffering of grievous bodily harm is an element of the offence of dangerous driving, I am satisfied that the number of persons who may have been exposed to risk by the offender's dangerous driving must refer to people other than those identified as victims in the particulars of charge. Were it otherwise there is a danger of double counting and a corresponding risk that the sentence imposed will be excessive. In addition, even were there evidence of other park users being put at risk (which in this case there was not) this would not have been relevant to the moral responsibility of the applicant but rather to the consequences of his conduct (see [218] of Jurisic). The first ground of appeal is made out. 33However, in taking into account the extent and nature of the injuries that were sustained by [NAME] as an aggravating feature for the purpose of determining sentence on the count that concerned her (as [NAME] was entitled to do under the guideline judgment), I am not persuaded that in the reasons for sentence or in the sentences imposed it is open to infer that those injuries were taken into account in the sentence imposed on the count involving [NAME]. To the extent that the applicant submitted that this was an additional basis for upholding the first ground of appeal, I would reject it.

Ground 2: [NAME] failed to apply the totality principle 34On sentence it was the agreed position of counsel that partial accumulation of the sentences was necessary in order to ensure that the totality of the criminality involved in the single episode of dangerous driving was reflected in the sentences imposed. On the appeal it was submitted that [NAME]'s sentencing discretion miscarried because the non-parole periods were wholly accumulated and, by that approach, there was a failure to account for the overlapping features in the separate offences. In the result, so it was submitted, the total sentence exceeded what was necessary to reflect the gravity of the overall offending. 35The [NAME] submitted that this case was unusual in that there was a marked difference in the nature and extent of the injuries suffered by the [NAME]. The [NAME] submitted that, unlike other cases of dangerous driving involving multiple victims (but where death was not occasioned), where the injuries sustained are such that comparable or similar sentences are imposed with a marked degree of concurrence, in this case there was a principled basis for the sentence for the offence involving [NAME] to be markedly less than for the sentence for the offence involving [NAME], and for the non-parole periods to be accumulated to reflect the very grave injuries [NAME] suffered despite the commonality of circumstances in which her injuries, and those of [NAME], were sustained. 36The [NAME] emphasised that it is also evident from the sentencing order (that is, by sentencing the counts in reverse order to the way they appeared on the indictment) that [NAME] was concerned to ensure that the periods of mandatory custody specific to each count were fully served. 37This Court has repeatedly emphasised that, subject to the application of established principle, questions of accumulation (and necessarily the extent of any order for partial accumulation) are discretionary (see R v Wilson [2005] NSWCCA 219 at [38]). Given the catastrophic nature of the injuries suffered by [NAME], and the injuries suffered by [NAME] which were also serious, a period of mandatory custody in the overall sentencing order attributable to the particular harm each [NAME] woman suffered was appropriately reflected in the effective sentence imposed. While the effect of the sentencing order is that the minimum periods of mandatory custody have been wholly accumulated, there has been partial accumulation of the total sentences of imprisonment. I am not satisfied that there has been any failure to apply the totality principle or that [NAME]'s discretion miscarried in its application.

Ground 3: The individual sentences and the overall sentence were manifestly excessive 38The applicant submitted that the sentences imposed on both counts were excessive and the effective sentence was also excessive having regard to the applicant's subjective circumstances and what counsel described as the applicant's misjudgement as the overriding feature of the offending. He also submitted that, contrary to [NAME]'s findings, the applicant's moral culpability was not high. I have already resolved to the view that the assessment of moral culpability in that degree was a finding open to [NAME]. Furthermore, I am unable to see how, in all the circumstances, the applicant's actions can be fairly viewed as reflecting an error of judgment. While the applicant's subjective circumstances were entitled to weight, his traffic record was not unblemished. 39Counsel also submitted that the guideline judgment operated such that a head sentence of less than 2 years and 8 months should not be imposed where an offender is convicted after trial even where moral culpability was found to be high. 40The guideline judgment in Jurisic, and the further consideration given to it in Whyte, is not designed to operate in the way contended for by counsel. In so far as the guideline judgment refers to a numerical guideline it is directly referable to a typical case (which this case was not). Guideline judgments are not absolute directions for sentencing judges and not to be applied as if they operate as a minimum sentencing or standard sentencing regime. In accordance with the procedure provided for in s 37A of the Crimes (Sentencing Procedure) Act 1999, guideline judgments are attempts to achieve consistency in sentence with the ultimate goal of achieving equality and justice and to provide an opportunity for this Court to analyse sentencing principles for those offences where some unevenness or uncertainty of sentencing practice has emerged. Whilst guideline judgments are to be regarded as persuasive, they are not prescriptive (see R v Read [2010] NSWCCA 78 at [49]). 41In this case the applicant was given the benefit of a finding of special circumstances on both the individual counts which was also applied to the effective sentence, thereby altering the statutory ratio to a significant degree. [NAME] provided no reasons for that approach, it had the effect of reducing the time the applicant is required to serve in custody and extending the time on parole. It is not to the point when considering whether a ground of manifest excess is made out that this Court might have exercised its sentencing discretion differently. The question is whether the sentence imposed was unreasonable or plainly unjust. 42I am not persuaded the sentences imposed are unreasonable or plainly unjust. I would dismiss this ground of appeal.

Re-sentence 43Since the applicant has made out error in the risk posed to the passengers in the vehicle being treated as an aggravating circumstance, the question then arises whether the applicant should be re-sentenced or whether, despite the error, no lesser sentence is warranted in law (s 6(3) of the Criminal Appeal Act 1912). For my part, given the interplay of other aggravating factors about which there is no sustained challenge, I am not satisfied that the error is reflected in any material way in the sentences imposed. I am of the view that no lesser sentences were warranted in law. 44The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed. 45CAMPBELL J: I agree with [NAME].

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