Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hedges v Regina [2011] NSWCCA 263
• Hearing dates: 26 October 2011
• Decision date: 09 December 2011
• Before: Beazley JA at [1]; James J at [77]; Fullerton J at [78]

Decision

1. Appeal against conviction dismissed;

2. Grant leave to appeal against sentence;

3. Appeal against sentence allowed;

4. Quash the sentence imposed by the sentencing judge;

5. Order that the appellant be sentenced to a term of imprisonment comprising a non-parole period of 15 months commencing on 4 November 2010 and ending on 3 February 2012, on which date the appellant must be released on parole, with an additional term of 15 months ending on 3 May 2013.

• Catchwords: CRIMINAL LAW - appeal against conviction - dangerous driving occasioning death - whether verdict was unreasonable or could not be supported having regard to the evidence - Criminal Appeal Act 1912, s 6(1) - only inference available from the evidence was that the appellant's actions to overtake vehicle involved a conscious and deliberate decision - no inference consistent with innocence reasonably open on the evidence - appeal against conviction dismissed; CRIMINAL LAW - leave to appeal against sentence - sentencing judge erred in misapplication of guideline judgment in R v Whyte [2002] NSWCCA 343 - no aggravating features for consideration upon sentencing - judge's sentencing discretion not foreclosed by guideline judgment - sentence quashed and new sentence imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900; Criminal Appeal Act, 1912; Criminal Procedure Act 1986
• Cases Cited: Arun v Regina [2010] NSWCCA 214; Burrell v R [2009] NSWCCA 193; Fleming v R [1998] HCA 68; 197 CLR 250; Jiminez v R [1992] HCA 14; 173 CLR 572; Keir v R [2007] NSWCCA 149; M v R [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; R v Hillier [2007] HCA 13; 228 CLR 618; R v Jurisic (1998) 45 NSWLR 209; R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; Regina v Tadman [2001] NSWCCA 225; Regina v Whyte [2002] NSWCCA 343; 55 NSWLR 252; The Queen v Keenan [2009] HCA 1; (2009) 83 ALJR 243
• Category: Principal judgment
• Parties: Dylan Joseph Hedges (Appellant); Regina (Respondent)
• Representation: T Gartelmann (Appellant); J Pickering (Respondent); Ian Byrne Solicitors (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): CCA 2009/58392

Decision under appeal

• Citation: R v Dylan Joseph Hedges
• Date of Decision: 2010-12-15 00:00:00
• Before: Garling DCJ
• File Number(s): 2009/58392

Judgment

1 BEAZLEY JA : The appellant was convicted on 15 December 2010 in a judge alone trial before Garling DCJ of one count of drive in a manner dangerous occasioning death contrary to the Crimes Act 1900, s 52A(1)(c). He was sentenced to a term of imprisonment for 3 years and 7 months to date from 4 November 2010 and to expire on 3 June 2014, with a non-parole period of 2 years to date from 4 November 2010 and to expire on 3 November 2012.

2 The appellant appeals against his conviction on the ground that the verdict is unreasonable and cannot be supported by the evidence. The appellant also seeks leave to appeal against sentence on the basis that his Honour misapplied the guideline judgment in Regina v Whyte [2002] NSWCCA 343 ; 55 NSWLR 252.

Factual background

3 The collision giving rise to the charge occurred on 15 May 2009 on the Pacific Highway at Corindi at about 3 pm. The appellant was travelling in a southerly direction at the time and had crossed over double white lines onto the northbound carriage when he collided with the vehicle driven by the deceased.

4 The sole issue at trial was whether the Crown had established beyond reasonable doubt that the appellant had not fallen asleep whilst driving on the wrong side of the road. The issue was refined on the appeal so that the question became whether the Crown had established beyond reasonable doubt that the appellant had not fallen asleep when he first moved onto the wrong side of the road.

5 On the day of the accident, the appellant had driven his Holden Rodeo from his home in the Coffs Harbour area to Tenterfield where he had attended the funeral of a friend. On his return trip, the appellant stopped once to check and tighten the wheel nuts on one of his tyres and stopped a second time at Grafton to get petrol. From Grafton, for a period of about 20 minutes, the appellant followed a vehicle driven by a Mr Currie. Mr Currie had set his cruise control to 100 km/ph and said that the appellant travelled at varying distances behind him from between 10 m to 50 m. In turn, a vehicle driven by a Mr Tesch was travelling behind the appellant's vehicle.

6 As the vehicles approached Corindi, the southbound portion of the highway became two lanes, an inside lane described as 'the cruising lane' and an outside lane described as 'the overtaking lane'. All three vehicles were travelling in the cruising lane until shortly before the two southbound lanes merged into a single lane. At all times, the southbound and northbound lanes were governed by double white lines.

7 Shortly before the cruising and overtaking lanes merged, Mr Tesch decided to overtake both the appellant's vehicle and Mr Currie's vehicle. Shortly after that, the appellant overtook Mr Currie's vehicle. In doing so, he went on to the wrong side of the road and remained on the wrong side of the road until he collided with the vehicle driven by the deceased. The circumstances of his overtaking and the passage of the appellant's vehicle up to the point of the collision is a critical consideration in determining the issue on the appeal. I will turn to this in detail shortly. It is sufficient at this point to note that the appellant's vehicle travelled first in the northbound overtaking lane. Just before the collision, his vehicle went into the cruising lane, in which the deceased was travelling. The appellant's vehicle then moved back onto the northbound overtaking lane.

8 The deceased was travelling on the northbound carriageway, which at that point on the highway comprised two lanes, a cruising and an overtaking lane. The deceased was initially travelling in the cruising lane. It was apparent from the eyewitness reports, including that of Mr Currie, that the deceased, upon seeing the appellant's vehicle on the wrong side and moving into the cruising lane, swerved into the overtaking lane to avoid him. Unfortunately, the appellant braked and attempted to correct his direction but the two vehicles collided. The collision occurred in the northbound cruising lane, with the appellant colliding with the driver's side front portion of the deceased's car.

9 It was a fine clear day and there was no mechanical problem with either vehicle and the accident was not due to speed. The speed limit was 100 km/ph. It is likely that the appellant's vehicle was travelling at or slightly less than 100 km/ph and the deceased's vehicle was travelling at about 80 km/ph. At the point where the accident happened, there was an elongated gentle curve in the highway to the right. There was also a slight camber of the roadway to the right, that is, from the southbound across to the northbound side of the highway.

10 Measurements were taken at the scene which established that the collision occurred 140 m south of the last marker on the road where vehicles travelling south had to merge into a single lane. The point of impact was 330 m from the point where the appellant overtook Mr Currie's vehicle. Evidence as to the place and manner in which the appellant overtook Mr Currie's vehicle was given by Mr Currie and Mr Tesch.

11 The appellant had no memory of overtaking Mr Currie. His last memory was of seeing the deceased's vehicle coming towards him and making a decision to try to avoid it. In an electronically recorded record of interview (ERISP) given to the police on 19 May 2009, four days after the accident, in answer to Q 24 as to what had happened, the appellant stated that, having refuelled his car at Grafton and having telephoned his mother, he continued on his trip home. He then explained:

"[I] just exited not long before it happened, overtaking lanes into, indicated into the right from across to the, the normal lane. And I remember seeing a red car coming at me."

12 In his evidence-in-chief at trial, the appellant gave the following evidence:

"Q. ... what's the last thing you remember?

A. I remember trying to avoid the red car.

Q. ... prior to that what's your memory?

A. Staying behind a dark coloured medium sized car."

13 The appellant said that he tried to avoid the red car by swerving to his side of the road. He also said that he did not remember the collision itself and his next memory was waking in a CAT scan machine in hospital. He had no memory of speaking to anyone at the scene of the accident. The appellant also said that he remembered that there were a lot of overtaking lanes and that, prior to the last overtaking lane, he had not sought to overtake the car in front.

14 In cross-examination, it was suggested to the appellant that he had been travelling slightly downhill just before the accident and that when the road merged into one lane, he took that opportunity to overtake Mr Currie because his vehicle had built up enough momentum to do so. The appellant denied this and responded that his car was " well capable " of overtaking another car at any time.

15 The appellant was also referred to his answer to Q 24 in his ERISP. He said that when he said that he indicated " into the right ... to the normal lane ", he meant that he had indicated to change lanes, not to overtake Mr Currie. He said that he indicated at about the same time as the car in front of him indicated to change lanes. He also said " there's nothing in my memory ... urging me [to overtake Mr Currie's vehicle] ".

16 Mr Tesch commenced overtaking the appellant's vehicle before the two southbound lanes merged into a single lane. He said he made his decision to overtake because the appellant's vehicle was belching smoke and he had been travelling behind it for some time. It was not until he overtook the appellant's vehicle that he realised that Mr Currie's vehicle was travelling in front of the appellant. Mr Tesch said that the appellant's vehicle was very close to Mr Currie's vehicle and described the appellant's vehicle as " tailgating " Mr Currie's vehicle.

17 Mr Tesch said that he looked at the appellant as he overtook him and observed that he " was just driving ". Mr Tesch said that he kept looking in his rear vision mirror and the next time he saw the appellant's vehicle was when it was on the wrong side of the road. He estimated that he was approximately 30 m in front of the appellant's vehicle at the time of the collision.

18 Mr Currie said that the appellant had been driving behind him for about 20 minutes prior to the collision. Mr Currie said that he was driving at a consistent speed of 100 km/ph using the cruise control on his vehicle. He said that he had passed through 3 or 4 overtaking zones during this period but the appellant had not attempted to overtake him.

19 In the overtaking zone immediately prior to the accident, Mr Currie was driving in the cruising lane until about the point where there was an arrow on the road indicating that the lanes were merging. Mr Currie said that as he moved in to the right-hand lane, the appellant's vehicle " came with me ". He said that at that stage the appellant's vehicle was " pretty close " to his vehicle, and estimated a distance of about 5 to 10 m.

20 Mr Currie said that once he had merged into the right-hand lane, the appellant's vehicle, " pretty much decided to go around me straight away ". He said that this was " pretty instantaneous " from when he had moved into the single lane.

21 Mr Currie explained what happened then in the following terms:

"... the vehicle did pass me, it sort of came up level with me and went in front of me a little bit but not much ...

... so what happened was we moved back into the lane and then the [appellant's vehicle] manoeuvred itself into the - over the double lines and into the overtaking lane for northbound traffic and it went a little bit in front of me."

22 Mr Currie said that the appellant's vehicle travelled about 10 or 20 m past him. Mr Currie said that he still had his cruise control on at this time and was travelling at a speed of 100 km/ph. Mr Currie said the next thing he recalled was the appellant's vehicle:

"... going to the cruising lane on the northbound traffic and ... nearly went completely off the other side of the road."

23 Mr Currie described the appellant's vehicle as " sort of swaying back and forth in that cruising lane ". He said it was not swaying much, perhaps " half a metre or so each side ". He could not recall how many times that occurred. Mr Currie said that he looked up at that stage and saw a red car coming around the corner in the cruising lane of the northbound traffic. Mr Currie said that when he saw the red car, he reduced his speed back to about 90 km/ph. He said that at about that stage the appellant's vehicle started coming back level with him.

24 Mr Currie said that the red car then changed lanes from the cruising lane into the overtaking lane of the northbound carriage. He said that at this point, the appellant's vehicle was still in the far right lane, that is, in the northbound cruising lane. Mr Currie's description of what then occurred was as follows:

"... the next thing I've noticed is the [appellant's vehicle] lurch[ed] forward. It was - it looked as though [the appellant's vehicle] had applied its brakes and it was at that stage [the appellant's vehicle] swerved back into - well swerved - it was - it was like it swerving back onto the other side of the road. At that time the red car also swerved back onto to try and go back into the left lane."

25 Mr Currie explained that the appellant's vehicle was attempting to come back into the northbound overtaking lane. He said that as the appellant's vehicle:

"... tried to go into the proper side of the road, the left-hand side of the road ... the red car has also tried to swerve back onto - into the cruising lane of the northbound traffic but there was a collision."

He said that the collision occurred " pretty much in line with me ".

26 It is convenient at this point to note that the evidence indicated that the appellant travelled approximately 330 m on the wrong side of the road prior to the collision. However, the evidence did not reveal the distance that the appellant travelled in the overtaking lane of the northbound carriageway before he commenced to drift off into the cruising lane of the northbound carriageway.

27 Mr Currie said that he stopped 50 to 100 m along the road and ran back towards the collision. Other cars had stopped by that time. He spoke to the appellant, who said that he could not remember anything.

28 Mr Currie was asked questions by the Crown Prosecutor as to whether he saw the appellant as the appellant's vehicle came level with him. Mr Currie said that he didn't see the appellant's face, but " just noticed that the driver looked like in a normal driving position ".

29 In cross-examination, Mr Currie gave the following evidence:

"Q. You've described to the Court that you start to merge ... the vehicle behind you had also merged behind you but it appeared to continue ... on - over the double unbroken separation lines?

A. That's right.

Q. Are you able to say for any period did you notice that when it merged behind you into that one lane, whether it stayed in that lane for a period or was it just one movement onto the wrong side?

A. We both came into the one lane together and then it sped up and sort of like come close to me and then - and then made its manoeuvre on to the other side of the road and then progressed a little bit further past me, so anyway, it was like it was overtaking me.

Q. The area that it was overtaking you ... would be an area that you would not ordinarily expect a driver to overtake if it had to continue to obey the rules?

A. That's correct

Q. Because it was on the wrong side of the separation lines?

A. Yes.

...

Q. You've described the vehicle as moving ahead about 10 to 20 metres at the most?

A. Yeah.

Q. It then moved into the cruising lane for a vehicle travelling north?

A. Yes.

Q. Was it a sudden manoeuvre or just like a veering across?

A. It was like a gradual, it wasn't a sudden movement, no, it was like a - yeah, it was like a gradual movement across."

30 Mr Currie confirmed that he slowed down to about 90 km/ph and said that the appellant's vehicle apparently slowed because it wasn't pulling ahead of him any more, " it was sort of coming back level with me ". He described the appellant's movement back into the northbound overtaking lane, after it had been in the northbound cruising lane, as a " sudden movement ".

31 Mr Currie said that when he spoke to the appellant immediately after the collision and the appellant asked him, " what happened? ", Mr Currie said to the appellant, " it looks as though you've fallen asleep ". He was asked what it was that he had observed that led him to that conclusion. Mr Currie said:

"... the way that the car was sort of moving back and forth and the fact that the vehicle didn't just progress past me and come back in to my line to overtake me. It veered around me and then went over to the other side of the road and then it was like the - and then the car came back in line with me and then the sudden sort of braking of the vehicle. I remember the car lurching forward and then the car swerving back in to - to try and get on to the other - sort of back on to the right side of the road had led me to believe that this looks though - looks as though the driver of the vehicle had fallen asleep because that's - my initial reaction is you wake up, you've fallen asleep, you put your foot on the brake because that's what goes through your mind, you think 'Oh this is where I am', put your foot on the brake and that'd be your first thoughts to try and come back into the right side of the road. That's just my opinion."

The Crown case at trial

32 The trial was conducted on the basis that the Crown was required to establish either that the appellant was consciously driving the vehicle at the time of the collision or, alternatively, that he did not have a genuine and reasonable belief that it was safe for him to drive in the circumstances.

33 As that issue was formulated for the purposes of the appeal, it was whether the only rational and reasonable inference to be drawn from the evidence was that the appellant's driving immediately preceding the collision was conscious and voluntary: see Jiminez v R [1992] HCA 14; 173 CLR 572.

34 In this regard, the appellant conceded that if the appellant was conscious at the time that his vehicle first crossed over onto the wrong side of the road in the commencement of an overtaking manoeuvre, that would constitute driving in a manner dangerous. The question for determination therefore, was whether that was the only rational inference available from the circumstances established by the evidence. This concession was correctly made: see Jiminez at 577, where it was recognised that, where a driver falls asleep at the wheel, the relevant period of driving, in determining whether a person is driving in a manner dangerous, is the period that immediately precedes the driver falling asleep.

35 The appellant's concession was a departure from the manner in which the matter was conducted before the trial judge. Before the trial judge, two arguments were in contention. The first was premised upon the appellant having fallen asleep: having fallen asleep, the appellant overtook Mr Currie's vehicle driving over double white lines and then continuing in the overtaking lane on the northbound carriageway, passing Mr Currie's vehicle and then drifting to the right, as described in Mr Currie's evidence. The second contention was that the accused consciously overtook Mr Currie's vehicle. This contention is the subject of the concession on the appeal.

Trial judge's reasons

36 As to the first contention, the trial judge noted that the defence case was that the appellant fell asleep without warning at about the time of his last memory. His last memory was moving into the right-hand lane on the southbound carriageway behind Mr Currie's vehicle. His next memory was then of the moment immediately before the collision. His Honour also referred to the appellant's answers in the ERISP.

37 His Honour next referred to the appellant's argument that the Crown had not been able to prove beyond reasonable doubt that the appellant:

"... was in conscious control of his vehicle from that point and that, whilst asleep ... he pulled out, went into the next lane, moved forward for some distance until he got to about 10 to 20 metres in front of Mr Currie's car, he then either slowed at that [point] or around that time and moved to the right consistent with sleep, he was not accelerating any more ... and at some stage came out of that sleep .... on [the appellant's] evidence, it has got to be at the time he regains control of his car ..."

38 His Honour noted the argument that if the appellant had been conscious at the time of the overtaking manoeuvre, he would have moved back onto the southbound carriageway once he passed Mr Currie's vehicle. His Honour also noted that the appellant had never at any point subsequent to the accident said that he had fallen asleep. Rather, the suggestion that he was asleep had come from Mr Currie's evidence, to which I have referred above.

39 His Honour concluded his reasoning on this version of the accident as follows:

"If I was to accept that I would have to find that, whilst asleep, [the appellant] was able to unconsciously make a movement overtaking Mr Currie's vehicle, driving straight in the line next to Mr Currie for a distance, enough to get in front of him and then to drive to the right hand side.

... there was no expert evidence in this case as to when the driver can fall asleep or how they can fall asleep or what happens when they fall asleep. But I have got to say that I could not accept, on the evidence in this case, that [the appellant] could have fallen asleep whilst behind Mr Currie's vehicle and then overtaken that vehicle the way in which I have found."

40 Although on the appeal the appellant does not rely on the second version of how the accident happened it, it is relevant to note that his Honour considered that the appellant must have been in a state of alertness, given that he had decided to follow Mr Tesch's vehicle and overtake Mr Currie's vehicle at a speed slightly in excess of 100 km/ph. In the end result, his Honour did not accept that the appellant had fallen asleep at all.

Was the verdict unreasonable?

41 The sole ground of the appeal was that the verdict was unreasonable or could not be supported having regard to the evidence. Pursuant to the Criminal Appeal Act 1912, s 6(1) on an appeal against conviction, the appellate court is required to allow the appeal if, relevantly, it is of the opinion that the verdict of the jury " should be set aside, or cannot be supported having regard to the evidence ". This is usually referred to as the first limb of s 6(1).

42 The principles governing this ground of appeal are to be found in the plurality judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v R [1994] HCA 63; 181 CLR 487 at 493-5. The High Court said that where an appellate court is asked to conclude that a verdict was unreasonable or could not be supported having regard to the evidence, the court:

"... is required to determine for itself whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused is guilty." (citations omitted)

See also MFA v The Queen [2002] HCA 53; 213 CLR 606 at 614-615 [25], 623 [55]-[57].

43 In this case, there are two further considerations: first, that the case against the appellant was purely circumstantial and secondly, that the trial was a judge alone trial.

44 Where the Crown case was a circumstantial one, the Court is required to consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence: R v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 per Gummow, Hayne and Crennan JJ at 637-638; The Queen v Keenan [2009] HCA 1; (2009) 83 ALJR 243 at 267 per Kiefel J, Hayne, Heydon and Crennan JJ agreeing; Burrell v R [2009] NSWCCA 193 at [59]-[61] per Giles JA, Howie and Buddin JJ agreeing.

45 The second consideration is that this was a judge alone trial: see the Criminal Procedure Act 1986, s 132. Pursuant to the Criminal Procedure Act , s 133, a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. The section further provides that any such finding has, for all purposes, the same effect as a verdict of a jury: s 133(1).

46 The principles that apply when there is an appeal from the verdict of a judge sitting without a jury were considered by this Court in R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 at [3]-[5], where Wood CJ at CL (Foster AJA and Adams J agreeing) stated:

"[3] The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic CCA (NSW) 26 February 1996 unreported.

[4] Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial Judge (S 17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (S 6(1) Criminal Appeal Act 1912), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: M (1994) 181 CLR 487 at 493, and Jones (1997) 149 ALR 598. In that event error permitting the substitution of a verdict of acquittal is established: Coombe CCA (NSW) 24 April 1997 at pp 11 and 12.

[5] What is required in this respect is attention to the matters identified in Fleming (1998) 158 ALR 379, Giam (1999) 104 A Crim R 416, and Gipp (1998) 194 CLR 106."

47 In Fleming v R [1998] HCA 68; 197 CLR 250 the High Court observed, at [26] 262, that the first limb of s 6(1) must be seen through the prism of the Criminal Procedure Act , s 33(1). The Court continued:

"The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing [the question is] is that finding 'unreasonable' or one which 'cannot be supported'?"

48 The High Court considered it unnecessary to determine whether in cases under the first limb on an appeal from a judge alone an appellate court will only intervene, relevantly, where there was no evidence to support a particular finding, or the evidence was all one way. See also Keir v R [2007] NSWCCA 149 ; Arun v Regina [2010] NSWCCA 214. That is not the case here. I consider that the Court should approach the matter by asking the question whether, upon the whole of the evidence, it was not open to the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant.

49 In my opinion, on the whole of the evidence, it was open to the trial judge to be satisfied beyond reasonable doubt of the guilt of the appellant, including being satisfied that there was no inference consistent with the innocence of the appellant reasonably open on the evidence. The evidence established that the appellant was conscious when he moved into the overtaking lane behind Mr Currie. He then travelled past Mr Currie's vehicle, Mr Currie observing that he appeared " normal " at that stage, and got about 20 m ahead of Mr Currie before he started to drift to the right. It is inconceivable that a vehicle could pull out from behind another vehicle and then travel within the bounds of a marked road lane for what must have been between 150 m and approximately 300 m, at a speed exceeding slightly more than 100 km/ph, while the person was asleep. I should add that in coming to this conclusion, it has not been necessary for me to decide whether the appellant in fact fell asleep when his vehicle drifted further to the right on the northbound lane.

50 It follows, that the appeal against conviction should be dismissed.

Appeal against sentence

51 The trial judge sentenced the appellant to a term of imprisonment of 3 years and 7 months, consisting of a non-parole period of 2 years, commencing on 4 November 2010 and expiring on 3 November 2012 and an additional term of 1 year and 7 months expiring on 3 June 2014. The appellant was also disqualified from driving for a period of 5 years from 15 March 2010.

52 The appellant submitted that his Honour's sentencing discretion miscarried because he misapplied the guideline judgment in Whyte . Whyte was a guideline judgment in respect of, inter alia, sentencing for an offence under the Crimes Act , s 52A dangerous driving occasioning death.

53 Spigelman CJ, at [204], noted that a frequently recurring case in respect of an offence under the Crimes Act , s 52A had the following characteristics:

"(i) Young offender.

(ii) Of good character with no or limited prior convictions.

(iii) Death or permanent injury to a single person.

(iv) The victim is a stranger.

(v) No or limited injury to the driver or the driver's intimates.

(vi) Genuine remorse.

(vii) Plea of guilty of limited utilitarian value."

54 The Chief Justice indicated, at [214], that a custodial sentence will usually be appropriate unless the offender had a low level of moral culpability, as in the case of momentary inattention or misjudgment.

55 At [215], Spigelman CJ referred to the earlier guideline judgment in R v Jurisic (1998) 45 NSWLR 209 at 231 in respect of the same offence, where his Honour had noted that in the case of the 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."

56 At [216]-[217], Spigelman CJ set out those matters that would aggravate the offence, including the extent and nature of the injuries inflicted, the degree of speed, the degree of intoxication or substance abuse, erratic driving, competitive driving or showing off, escaping police pursuit, the degree of sleep deprivation and failing to stop.

57 Spigelman CJ also noted his earlier comments in Jurisic that the question, whether any relevant aggravating feature manifested in the particular case, indicated that the offender had abandoned responsibility for his own conduct, involved an element of judgment by the trial judge and in respect of which different trial judges could differ. It is in that context, that is, in the consideration of the appropriate sentence in circumstances where there were aggravating features, that Spigelman CJ noted that:

"The period of three ... 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."

58 His Honour continued, at [228], that the aggravating features to which he had referred were frequently recurring elements which directly impinged upon the moral responsibility of the offender at the time of the offence. His Honour considered that:

"Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct."

59 His Honour then confirmed what he had said in Jurisic : that where in the case of dangerous driving involving death, the offender's moral culpability was high, a full-time custodial head sentence of less than three years would not generally be appropriate. His Honour also noted that in the case of a low level of moral culpability, a lower sentence would be appropriate.

60 Finally, Spigelman CJ, at [232]-[233], reiterated that the purpose of a guideline judgment was as a " guide " or a " check ". His Honour confirmed the basic principle of sentencing, namely, that the sentence imposed was the result of the exercise of a broad discretion, taking into account all the factors required to be taken into account by the Crimes (Sentencing Procedure) Act 1999, s 21A. The purpose of the guideline was to focus attention on the objective circumstances of the offence. It was also necessary to take into account the subjective circumstances of the offender.

61 This was not a case where the accident was due to excessive speed. However, the trial judge found that the appellant abandoned responsibility to the extent that he overtook Mr Currie's vehicle in circumstances where he crossed double white lines to do so. His Honour stated:

"[The appellant] put himself or his vehicle into a position where it was travelling on the incorrect side of the road towards other vehicles and, in particular, the vehicle being driven by the deceased. I am satisfied that is how he breached the law, that is the way he was driving in a manner dangerous and there were no other aggravating factors other than that." (Appeal book 53-54)

62 His Honour referred to Whyte , noting the reference in that case to the typical case of an offender with the characteristics referred to in the guideline at [204] (see above at [53]). His Honour stated that apart from the fact that he did not plead guilty, the appellant fitted into that typical case. His Honour stated that had there had been a plea of guilty, the guideline suggested that the appropriate sentence was a term of imprisonment of 3 years. His Honour noted that a court was required to consider any aggravating factors, but found that there were not " really any aggravating factor s" in this case.

63 His Honour concluded, as this was a typical case, had the appellant pleaded guilty, he would have sentenced him to 3 years imprisonment.

64 His Honour's understanding of Whyte was wrong in two significant respects. As is clear from the guideline judgment, the indicative full-time custodial head sentence of 3 years is in respect of a case where an offender's moral culpability is high, that is, where there was at least one aggravating factor, but more usually a number of aggravating factors acting in combination. Spigelman CJ adverted to this in Regina v Tadman [2001] NSWCCA 225, at [14], when his Honour, referring to the guideline judgment in Jurisic , said:

"... it was only the presence of aggravating factors 'to a material degree', which reached the level where it could be said that the offender abandoned responsibility for his or her own conduct, that the guideline indicated that a total sentence of less than three years should be regarded as exceptional."

65 In this case, his Honour found that there were no aggravating factors which he was required to consider. Leaving aside for the moment the question that in this case the appellant did not plead guilty, his Honour's understanding, that the starting point for a case where there were no aggravating features was 3 years imprisonment, was incorrect.

66 The second error related to the manner in which his Honour dealt with the fact that the appellant had not pleaded guilty. His Honour considered that usually, for an early plea, a discount of 25 per cent was appropriate. He concluded that a fairer way of approaching the matter in this case was to adopt a discount of 20 per cent, which he considered to be " a more typical plea ". His Honour calculated the term of imprisonment to be imposed by multiplying the indicative 3 year term suggested in the guideline judgment by 20 per cent in order to arrive at what he considered was the nominal starting point before the allowance of any discount.

67 In approaching the matter this way, his Honour failed to recognise that the typical case to which the guideline was directed was expressly predicated upon a plea of guilty of limited utilitarian value. In such circumstances, the discount for the plea would have been considerably less than the 20 per cent upon which his Honour's sentence was based: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [161].

68 Further, his Honour, in finding that but for the plea of guilty, he would have sentenced the appellant to 3 years full-time custodial sentence, given that this was a " very typical case ", appears to have failed to recognise that he was required to independently exercise his sentencing discretion, notwithstanding the indicative term of imprisonment suggested in the guideline judgment.

69 The Crown accepted that the matters upon which the appellant relied were indicative of error in the sentencing process. The Crown accepted that it appeared his Honour approached the guideline judgment in a prescriptive manner and, in particular, failed to make an assessment of the relevant moral culpability of the appellant in the commission of the offence. The Crown recognised that in all the circumstances of this case, it was difficult to say that no lesser sentence was warranted in law.

70 Accordingly, it falls to this Court to re-sentence the appellant.

71 The appellant was 19 years of age at the time of the accident. His Honour found that he was a young man of good character. He was in full time employment at the time of the accident. His Honour referred to testimonial evidence from persons who knew him well, all of whom spoke extremely highly of him. He was involved in community and sporting activities in his local area. His family was supportive. His father, who appears to have been an admittedly strict parent, described his son as " respectful and honourable " and " a good, decent young man ". This description of the appellant was reflected in the other testimonials, including that of his employer at the time of the accident. His employer indicated that the company would do whatever possible to support the appellant in the future.

72 Since the accident, the appellant has been diagnosed as suffering from Post Traumatic Stress Disorder and associated depression, which was assessed at an extremely severe level. He has expressed remorse and contrition. In particular, from the outset, he has expressed concern for the impact of the accident on the deceased's family.

73 The one matter of concern is the appellant's poor driving record. He has convictions for driving whilst suspended, speeding, driving recklessly, furiously or at a speed or in a manner dangerous, and for not complying with the conditions of his learner's permit and his provisional driver licence. His licence was suspended at the time of this accident.

74 The trial judge found special circumstances and there was no dispute about that. For the reasons given by the trial judge, special circumstances should be found on the re-sentence and the Court should maintain approximately the same ratio between the non-parole period and the additional term found by the trial judge.

75 In my opinion, a custodial sentence should be imposed comprising a non-parole period of 15 months commencing on 4 November 2010 and ending on 3 February 2012 with an additional term of 15 months concluding on 3 May 2013. As the sentence of imprisonment is for a term of 3 years or less, the Crimes (Sentencing Procedure) Act 1999, s 50, provides that the Court must make an order directing the release of the offender on parole at the end of the non-parole period.

76 Accordingly, I propose the following orders:

1. Appeal against conviction dismissed;

2. Grant leave to appeal against sentence;

3. Appeal against sentence allowed;

4. Quash the sentence imposed by the sentencing judge;

5. Order that the appellant be sentenced to a term of imprisonment comprising a non-parole period of 15 months commencing on 4 November 2010 and ending on 3 February 2012, on which date the appellant must be released on parole, with an additional term of 15 months ending on 3 May 2013.

77 JAMES J : I agree with Beazley JA.

78 FULLERTON J : I have had the advantage of reading the judgment of Beazley JA. I adopt her Honour's statement of relevant principle without qualification. While I also gratefully adopt her Honour's summary of the evidence with some augmentation, I am unable to agree with her Honour's ultimate conclusion at [49] that the only available inference on the evidence is that the appellant's actions in commencing what her Honour referred to as 'the overtaking manoeuvre' (thereby crossing the unbroken separation lines) involved a conscious and deliberate decision to overtake Mr Currie's vehicle.

79 In coming to that conclusion her Honour found that after crossing the unbroken separation lines the appellant's vehicle travelled 'within the bounds of a marked road lane' for between 150 m and 300 m at speed a little in excess of 100 km/ph. Were the evidence capable of supporting that finding of fact I would also have difficulty accepting that the appellant was asleep when he crossed the unbroken lines. In my view, however, the evidence is only capable of supporting a finding that after crossing the unbroken separation lines the appellant's vehicle traveled some indeterminate distance within the northbound overtaking lane before it veered or drifted or gradually moved to the right into the cruising lane and across it until, according to Mr Currie, it went almost 'completely off the other side of the road' before 'lurching forward and then swerving back into ... the right side of the road'.

80 Her Honour did not regard it as necessary to decide whether the appellant fell asleep as his car drifted across the northbound overtaking lane and the cruising lane. I regard that question as inextricably linked to the question whether the only rational inference available from the circumstances established by the evidence is whether the appellant was awake seconds earlier when he crossed the unbroken separation lines. It seems to me that the only rational explanation for the car drifting or veering off the road and not completing what was described as the 'the overtaking manoeuvre' is that the appellant was asleep at that time. This is supported by Mr Currie's observation of the appellant's car braking suddenly and swerving back to the left, and the impression he formed, in that moment, that the appellant had been jolted awake from sleep:

Q. So exactly what was the conversation, you went up to him and you said, "How are you?"

A. Yes

Q. What did he say?

A. "What happened?"

Q. "What happened?"

A. Yes

Q. What did you say?

A. I said "It looks like you've fallen asleep."

Q. What was it about what you had observed led you to that conclusion?

A. Okay well being - the way that the car was sort of moving back and forth and the fact that the vehicle didn't just progress past me and come back into my line to overtake me. It veered around me and then went over to the other side of the road and then it was like the- and then the car came back in line with me and then the sudden sort of braking of the vehicle. I remember the car lurching forward and then the car swerving back in to- to try and get on the other- sort of back on to the right side of the road had led me to believe that this looks though- looks as though the driver of the vehicle had fallen asleep because that's- my initial reaction is you wake up, you've fallen asleep, you put your foot on the brake because that's what goes through your mind, you think, "Oh this is where I am", put your foot on the brake and that'd be your first thought to try and come back into the right side of the road. That's just my opinion.

81 Importantly, Mr Currie estimated the time that elapsed from when the appellant moved across the unbroken separation lines to when he was almost completely off the extreme right hand side of the northbound lane as 'about 5 seconds'. He said, 'It was pretty quick'. Quite apart from the distance the appellant might have travelled in that timeframe, at a speed slightly in excess of 100km/ph, for my part I regard it as unlikely to the point of improbable that having decided to overtake across unbroken separation lines at a speed exceeding 100 km/ph, and in what must have been a state of heightened alertness, the appellant did not complete the manoeuvre but effectively fell asleep while the manoeuvre was being executed and before it was completed.

82 The expert evidence led at trial was from a police officer associated with the Ballina Crash Investigation Unit. He attended the scene on 19 May 2009 for the purposes of preparing his report. His report of 21 May 2009 was tendered by the Crown. He also gave evidence. Despite his qualifications and experience, his evidence in so far as bears upon the distance the appellant travelled within the northbound overtaking lane before veering off, was deficient in material respects. The only measurement he reported upon was the distance between where the southbound lanes finally merged into one lane and the point of collision identified by a gouge mark on the road surface being. That measurement was fixed at 140 m. It appears that he did not take into account the information Mr Currie gave to police concerning the movement of the appellant's vehicle at any time or the relative distance across the roadway that the vehicle must have travelled.

83 In addition, no attempt was made until trial (18 months later) to have Mr Currie nominate where the appellant crossed the double lines which he did at that time by marking a photograph where he believed that occurred relative to where he believed he and the appellant first merged to the right to take up a position in the merged single southbound lane. That became photograph 9 at trial, a copy of which was made available on the appeal. Given the curve of the roadway and the available perspective to the south in the photograph, designating a particular point of the road surface necessarily involves a risk of parallax error. Because no scaled or photogrammetric map of the relevant portion of the roadway was produced, this carries, in my view, the very real potential to undermine the reliability of this aspect of Mr Currie's evidence. His evidence that the time from crossover to where the appellant's car veered or drifted further to the right such that the car was almost 'completely off the other side of the road', was something in the order of five seconds, also undermines the accuracy of his mark on the photograph since, even accepting that the appellant was travelling at something slightly in excess of 100 km/ph at the point of crossover, he would have only travelled something in the order of 150-170 m before being almost completely off the road. Notwithstanding the potential for the mark on the photograph to be wrong or misleading, the distance from that point to where the two lanes finally merged into one was measured during a view convened by the trial judge to be 189.75 m. This, together with the 140 m from the commencement of the southbound single lane to the point of collision, then became a critical measurement upon which her Honour placed reliance in concluding that the appellant travelled within a marked lane for some very considerable distance before veering or drifting to the right.

84 Finally, although the photographs of the scene taken by the police officer four days after the accident reveal a curve to the right of the road in the direction the appellant was travelling at or near when he crossed the unbroken lines, neither the length nor the radius of the curve nor the camber of the road, also angled to the right and slightly downhill, was measured. I regard these measurements as important, having the potential to impact upon an assessment of the movement of the car as Mr Currie observed it and whether the appellant was in control of it.

85 In addition to the concerns I have expressed about the sufficiency of the evidence to support the proposition that the appellant travelled for between 150-330 m at 100 km/ph in the northbound overtaking lane, I am of the opinion that the competing inference for which the appellant contended on the appeal, namely that he was asleep as the vehicle crossed the unbroken separation lines and woke only when he had crossed to the northbound cruising lane, is reasonably open on the evidence for other reasons. I have used the phrase 'crossed over the unbroken separation lines' throughout and deliberately to avoid adopting, uncritically, the words Mr Currie used in his evidence when describing what the appellant's car did immediately after both vehicles merged to the right. The critical question is whether the evidence supports a finding that he crossed over the double lines having decided to overtake Mr Currie.

86 I accept that the evidence compels a finding that the appellant was awake and in control of his car when he and Mr Currie merged right from the southbound cruising lane to a single lane. The appellant gave evidence that he recalled indicating his intention to merge. In addition, in the process of completing that merging manoeuvre Mr Currie observed the appellant's car travelling behind him at a distance of 5-10 m. He gave no evidence that the car did anything other than maintain that course over some distance. Mr Tesch also gave evidence that he actually saw the appellant as he overtook both Mr Currie's car and the appellant's car in the southbound overtaking lane and that the appellant was 'just driving'.

87 However, the evidence as to the movement of the appellant's car thereafter (at least up until it is seen by Mr Currie to lurch forward and swerve back to the left) is also consistent with the appellant having fallen asleep immediately before, or at the time his car crossed over the unbroken separation lines. Mr Currie's evidence was the only evidence bearing upon that question. Although the appellant had no memory of the episode after remembering merging right into the single lane, he gave evidence that there was nothing motivating him to overtake Mr Currie. While this is in a sense self serving evidence, it is consistent with the objective evidence that the appellant and Mr Currie had been travelling for about 20 minutes in the southbound cruising lane before being directed by the road signage to merge into a single lane without the appellant having made any attempt to overtake Mr Currie in the available overtaking lane over that time.

88 In reviewing Mr Currie's evidence I regard it as essential that a distinction be maintained between what Mr Currie saw and what conclusions he drew (or was permitted to draw) from what he saw. Although there was no objection taken to those parts of his evidence where he said that the appellant had 'decided' to overtake him or ('decided') to go around him I am alert to the risk of that evidence overwhelming the question that falls to be answered on the appeal. I consider that it is reasonably open that Mr Currie's evidence that the appellant's car manoeuvred around his car 'pretty instantaneous(ly) after they merged right' and that the car then passed him 'a little bit, but not much' was not a driving manoeuvre (or might not have been) but the appellant's first surrender to sleep.

89 I would allow the appeal and quash the conviction. It is not necessary in these circumstances for me to express any view about the outcome of sentence appeal.

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Decision last updated: 09 December 2011