Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: WHELAN, Heath Andrew v R [2012] NSWCCA 147
• Hearing dates: 21 May 2012
• Decision date: 04 July 2012
• Before: Allsop P at [1]; Davies J at [5]; Schmidt J at [6]

Decision

1.That the conviction appeal be dismissed.

2.That the sentence appeal be dismissed.

• Catchwords: CRIMINAL LAW - dangerous driving - foetus - child in utero - child born alive prematurely and later died - appeal against conviction - whether it was necessary to establish that the baby was injured in utero - whether it was necessary to establish that it was an intended act which caused the baby to be born - grounds not established - appeal against sentence - intensive correction order - whether sentence was manifestly inadequate - whether her Honour erred in determining the degree of moral culpability for this offence as being at a low level - grounds not established
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Crimes (Sentencing Procedure) Act 1999; Crimes (Sentencing Procedure) Regulation 2010
• Cases Cited: Attorney-General's Reference (No 3 of 1994) [1998] AC 245; Attorney General's Reference (No 3 of 1994) [1996] QB 581; Campbell v The Queen (1980) 2 A Crim R 157; Dinsdale v R [2000] HCA 54; (2000) 203 CLR 321; DPP v Samadi [2006] NSWCCA 308; Hedges v Regina [2011] NSWCCA 263; Hili v R [2010] HCA 45; Mitreski v R; R v Mitreski [2008] NSWCCA 301; SKA v R [2011] HCA 13; R v Bateson [2011] NSWSC 643; R v Boughen; R v Cameron [2012] NSWCCA 17; R v F (1996) 40 NSWLR 245; R v Iby [2005] NSWCCA 178; (2005) 154 A Crim R 55; R v Jurisic (1998) 45 NSWLR 209; [1998] 101 A Crim R 259; R v King (2003) 59 NSWLR 472; R v Khatter [2000] NSWCCA 32; R v Radley [2010] NSWCCA 64; R v Townsend [2010] NSWCCA 336; R v West [1848] 175 RE 329; 2 Car & P 784,; R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252; Royall v R [1991] HCA 27; (1991)172 CLR 378
• Texts Cited: Archbold, 43rd edition
• Category: Principal judgment
• Parties: Heath Andrew Whelan (Appellant/Respondent); Regina (Crown)
• Representation: Counsel: B Greenhill SC (Appellant/Respondent); J Pickering (Crown); Solicitors: WG McNally Jones Staff (Appellant/Respondent); S Kavanagh, Solicitor for Public Prosecutions (Crown)
• File Number(s): 2009/284939
• Publication restriction: None

Decision under appeal

• Jurisdiction: 9101
• Citation: 2009/284939
• Date of Decision: 2011-11-11 00:00:00
• Before: Quirk DCJ

Judgment

1 ALLSOP P: I have had the advantage of reading the reasons in draft of Schmidt J. I agree with the orders that her Honour proposes and with her reasons. I would only add the following.

2 Causation is an issue that has been the subject of much debate and some legislation in the civil sphere. In crime, it remains, in many contexts, a jury question and is governed by the test in Royall v R [1991] HCA 27; 172 CLR 378. The question is one of fact, dealt with by commonsense, appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter, and so the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility. The trial judge so directed the jury. The section (s 52A of the Crimes Act 1900 (NSW)) requires a causal connection between the vehicle (driven in the required way) and an impact, and the death of a person. Here, the person who died was an infant, who at the time of the impact could not be the victim of a crime of violence: Co. Inst, Pt III, Ch 7, p 50, cited in Attorney-General's Reference (No 3 of 1994) [1998] AC 245 at 254. Nevertheless, the impact that causes the premature birth of the foetus as the living child who, after a passage of time alive, dies because of an inability to withstand the rigours of his or her environment, can be said to have occasioned the death of a person, even though that person was not alive at the time of the impact. The causal connection is a factual one for the assessment of the jury. Here, no argument was put that the conclusion drawn by the jury was not reasonably and properly open beyond reasonable doubt.

3 As to the sentence imposed, it was not vitiated by any error. No rule of law, or principle, or precept required the imprisonment of this man. An intensive correctional order was available. The lack of likely repetition of the offence did not deny the relevance of two aspects of the order: the degree of denunciation implicit in the order to a person of Mr Whelan's character; and, secondly, the utility expressed in the assessment report of Mr Whelan undergoing a driving programme and a counselling programme.

4 The consideration and choice of a sentence for an offence contrary to s 52A(1) may be one of extraordinary difficulty. A sentencing judge may well be faced with an offender of otherwise good character who faces the potentially catastrophic consequences of imprisonment. Yet, that offender has taken the life of another by the kind of misconduct in paragraph (a), (b) or (c). The views expressed in many cases such as R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 reflect the fact that the charge of a motor vehicle is one that is of great responsibility. The community expects such instruments of danger to be controlled responsibly. General and specific deterrence are important as is the statement of the sentencing court of the public denunciation of dangerous driving. That does not, however, require that every error of judgment, tragic in its consequences, demands incarceration. If it be necessary to state it for any judicial officer, the Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1) requires that a court not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate. The evaluation, here, by the sentencing judge, of an appropriate non-custodial sentence was, in my view, both reasonable and just.

5 DAVIES J:I agree with Schmidt J and with the additional remarks of Allsop P.

6 SCHMIDT J: In May 2009, the appellant, Heath Andrew Whelan, was driving home from work at about 4.30am. He encountered a convoy of four 4 wheel drive vehicles, each towing a boat, heading in the same direction. After pulling out to overtake, he collided head on with a vehicle being driven in the opposite direction, by Mr Naresh Kumar. With Mr Kumar were his pregnant wife, Shweta Kapur, their 12 year old son and Mr Kumar's mother, Ms Rampyari. Ms Kapur was injured, suffering amongst other injuries, a placental abruption. Her baby, Samanvaya, was born prematurely about 4 days after the accident. He died on 23 June 2009.

7 The appellant was charged with two offences under s 52A of the Crimes Act 1900, one under s 52A(3) in respect of Ms Kapur and the other under s 52A(1)(c) in respect of Samanvaya. Sections 52A(1) and (3) provide:

"52A Dangerous driving: substantive matters

(1) Dangerous driving occasioning death

A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons.

A person convicted of an offence under this subsection is liable to imprisonment for 10 years.

...

(3) Dangerous driving occasioning grievous bodily harm

A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons."

8 The trial judge gave a directed verdict in relation to the offence concerning Ms Kapur, taking the view that the evidence that Ms Kapur had suffered placental abruption and bruising, was not evidence upon which the jury could conclude that she had suffered grievous bodily harm, as that term is defined in s 4 of the Crimes Act. That definition is:

"Grievous bodily harm includes:

(a) the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

(b) any permanent or serious disfiguring of the person, and

(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease)."

9 Her Honour refused to give such a direction in relation to the charge concerning Samanvaya, rejecting the case advanced for the appellant, that in order for an offence under s 52A(1)(c) to be established, the Crown had to prove beyond reasonable doubt, that his death was the result of injuries inflicted during the accident, while he was still a foetus in the womb.

10 On 12 August 2011, the accused was convicted by a jury of the charge concerning Samanvaya. On 11 November 2011, Quick DCJ sentenced the appellant to a term of imprisonment of 2 years, to be served by way of an intensive correction order.

11 The appellant appeals this conviction under s 5 of the Criminal Appeal Act 1912 and the Crown appeals the sentence imposed under s 5D. The grounds of the conviction appeal are:

"The learned trial Judge erred in law by holding that the Indictment presented against the Appellant was capable of sustaining a verdict of guilty upon a count of driving a motor vehicle in a manner dangerous to other persons whereby the vehicle was involved in an impact as a result of which the death of Samanvaya Kumar ("Samanvaya") was occasioned and, in holding there was a case for the Appellant to answer, misdirected herself as to the necessary elements of proof of that count.

Particulars:

1.Her Honour erred in holding that it was not necessary for an injury to be sustained by Samanvaya while a foetus in utero;

2.Alternatively, her Honour erred in holding that it was not necessary for an intentional act causing Samanvaya to be born in a state much less capable of living, being a situation in which he could not live, and afterwards dying in consequence of its exposure to the external world."

12 The grounds of the sentence appeal are:

"1.UPON THE GROUND that the sentence pronounced was manifestly inadequate.

2.Her Honour erred in determining the degree of moral culpability for this offence as being at a low level."

The evidence

13 The appellant did not give evidence at the trial, but admitted that he had driven in a manner dangerous to other persons. His admissions became exhibit A in the proceedings, which provided that:

"In respect of these criminal proceedings, on 8 August 2011 the abovenamed Accused makes the following admissions as to matters of fact pursuant to section 184/191 of the Evidence Act 1995 (NSW):

1.That, on 17 May 2009 at Oran Park in the state of New South Wales, Heath Andrew Whelan did drive a motor vehicle, namely a black Ford utility, registration AQ59YN in a manner dangerous to other persons whereby the vehicle was involved in an impact with a motor vehicle, namely a green Mitsubishi Magna, registration YJA177 in which Shweta Kapur was a passenger.

2.At the time of the impact Shweta Kapur was approximately 24 weeks pregnant.

3.On 21 May 2009 Shweta Kapur gave birth to a baby Samanvaya Kumar, who died on 23 June 2009."

14 Ms Kapur gave evidence, as did Mr Kumar and Ms Rampyari. The occupants of the vehicle which the appellant overtook, the driver Mr Piirlaid and his passengers, Mr Lucas Rosman and Mr Nicholas Rosman, were also called. The Crown also called evidence from Dr Ahmed, a senior registrar of obstetrics, who examined Ms Kapur at Liverpool Hospital after her admission; Dr Tobiansky, a neonatologist; Dr D'Cruz, who treated Samanvaya in hospital; Dr Evans, a neonatal paediatrician, head of the Department of Neonatal Medicine at Royal Prince Alfred Hospital and a clinical associate professor at the University of Sydney. Senior Constable Jenkins, the officer in charge of the investigation also gave evidence.

15 Samanvaya's birth was due in September 2009. Ms Kapur had been in India between 18 February and 24 March. While there she had an ultrasound, which did not detect any complications with the pregnancy. After her return she was referred by her doctor to Blacktown Hospital, where she saw a midwife for an ante natal check up, which was also normal.

16 On 17 May, Ms Kapur was in the front passenger seat, wearing a seatbelt, when the accident occurred. It was still dark at the time and the conditions were dry. She said that the car was travelling at between 60 and 65 km per hour, when she saw a ute crossing into their lane. Her husband blew his horn and swerved to the left to avoid a collision, but the vehicles hit. Ms Kapur then felt pain in the right side of her abdomen. Their car halted near a tree, blocking the passenger door, so that she could not get out. Her husband was also trapped, but people assisted Ms Rampyari and her son get out of the car.

17 Emergency service workers cut the tree and removed panels from the car, to get Ms Kapur out and she was taken by ambulance to Liverpool hospital between 6.00am and 6.30am. She had bruising on the right side of her abdomen, but the baby was found to be alive and she was given various medical treatment.

18 Samanvaya was born on 21 May, weighing only 750 grams. He went into neonatal intensive care, where initially he progressed well, being fed breast milk through a tube and putting on weight. After 33 days, he suddenly became ill and died. Because of the family's religious beliefs, no autopsy was performed.

19 Mr Kumar's evidence was that the appellant's car came suddenly across the unbroken line into his lane and he tried to avoid the accident, but they hit on the left side of the road. He was trapped in the car by the legs. His wife was not able to get out and was crying in pain in her stomach, but his son was able to get out.

20 Mr Piirlaid was in his car with Lucas and Nicholas Rosman. His evidence was that he was towing a 19 foot half cabin boat, travelling at the speed limit of 80 km, about 60 metres behind the car in front. He was on a sweeping right hand bend when he noticed the ute which the appellant was driving coming up behind him, quite quickly. They were about one quarter of the way through the bend, with the ute travelling at substantial speed, a lot faster than him, when the ute raced past him on the inside, and then passed him on double white lines around a blind corner, where there was only one lane in either direction. The next vehicle was still 60 metres in front. As the ute came up to the back of the boat of the car in front of him, he noticed a set of headlights coming the other way.

21 Mr Pirrlaid's evidence as to what then occurred should be quoted. He said:

"A. I saw the ute speed up as he was going past the boat and car and then tried to pull in between the cars, well just slightly tried to pull in, not a proper go and then get back into the wrong side of the lane and try and speed up again.

Q.And did it stay travelling in a straight line in the lane on the opposite side of the road or did you see it change direction at all?

A.No, only just when he tried to pull in. [STRIKE OUT BEGINS] I'm sure he would have observed the car coming the other way --[STRIKE OUT ENDS]"

22 Mr Piirlaid said that the ute spun around and ended up sideways in the middle of the road and the other car was on the side down an embankment. Mr Piirlaid stopped and went to that car.

23 Mr Lucas Rosman's evidence was to very different effect. He said that he was with Mr Piirlaid and his brother. The car was travelling 70-80km, doing the speed limit. His evidence about the appellant's car was that:

"A.He come around us, we noticed he went past, he put his foot down, he kept going around past the next car with boat and then kept going again and tried to overtake the third car with the boat and that's when the accident happened.

Q.And can you describe what you saw in terms of the two cars, colliding?

A.I seen the other car coming, I seen the headlights and then I've seen the tail lights and he was next to the car with the boat and then I seen the headlights veer off from the car coming towards us and then they both veered the same way and hit."

24 Mr Lucas Rosman then went to assist. The woman in the front seat said that she had pains in her stomach. In cross-examination, as to the speed of the car he was in, Mr Lucas Rosman said that it was 70, 80, 75 km.

25 Mr Nicholas Rosman's evidence was that the car which overtook them was going a lot quicker than they were and that;

"A.... and then all I remember is seeing the car ahead of us trying to veer to the left but he was next to another car and boat and then because he veered to the lift(sic) there were comes(sic) coming the other way, without headlights on the other car and then I just remember them quickly seeing them both veer to the right hand side of the road and then yeah they had the accident."

26 Mr Nicholas Rosman said that the accident happened in the right hand lane. He also explained why he could not go to the assistance of those involved.

27 Dr Ahmed's evidence was that on admission Ms Kapur was complaining of abdominal pain and was found to have bruising in her lower abdomen, but was not contracting and there was then no vaginal bleeding. On ultrasound examination, however, the placenta was found to have separated from the wall of the uterus. He explained that it was usual for pregnant patients in a motor vehicle accident to be observed for signs of placenta abruption. The baby was otherwise fine and blood flow was good, but given the significant placental separation, preterm delivery was anticipated. Considering the baby's extreme prematurity, steroid treatment was given to enhance the baby's lung maturity.

28 Dr Ahmed explained that Ms Kapur wanted everything done for her baby, but she progressed to preterm labour on 22 May.

29 It was Dr Ahmed's opinion that Ms Kapur suffered significant abdominal trauma from the accident, which resulted in the separation of a large area of the placenta from its attachment to the wall of the uterus, which led to preterm labour and delivery.

30 Dr Tobiansky gave evidence about the treatment which Samanvaya received during his 33 days in neonatal intensive care. He explained that a 25 week foetus is not well adapted to life outside the womb; their lungs and organs are not adapted, their brains are often immature and their eyes can get damaged from oxygen. It is difficult to feed them; they can get brain haemorrhages; they don't absorb milk readily and quickly; the bacteria in their bowels is not the same as that of full-term infants; and they have mucosa very susceptible to damage from infection and lack of oxygen,

31 Dr Tobiansky explained that it is usual for such babies to have immature lungs which require breathing support, which is provided by continuous positive airway pressure. This helps the lungs stay open, otherwise the lungs would collapse. This is a lesser form of support than ventilation. Samanvaya was treated for respiratory disease, jaundice and patent ductus arteriosus, all common problems of babies born at 25 weeks gestation.

32 Jaundice is a common condition in preterm babies, because of the immaturity of their liver, but it is a condition which even full-term babies suffer. It was treated with photo therapy. Patent ductus arteriosus is a condition where the connection between the pulmonary artery and aorta does not close in the usual way when the baby is exposed to oxygen and the placenta is taken away, with the result, circulation changes which close the ductus. This was treated with medication. Samanvaya also contracted a staph aureus infection in his blood on 31 May 2009, which was treated with antibiotics.

33 At day 33, Samanvaya developed a less common complication of prematurity, necrotizing enterocolitis ('NEC'), the result of a perforated intestine. Despite treatment, he died that day. In Dr Tobiansky's opinion, the cause of death was not the motor vehicle accident, but the NEC, which Dr Tonbiansky explained could be of differing severity. In this case, it was fulminant NEC, the very worst kind, resulting in a dead or perforated bowel, which requires surgery. That was not possible in Samanvaya's case. Blood cultures did not show that this NEC was caused by bacteria. X ray established that there was a hole in the bowel.

34 Even though there had been no post-mortem undertaken, so that another cause of death could not be excluded, Dr Tobiansky's opinion was that there was no other substantial or significant cause of death than NEC. The clinical and radiological picture, as well as Samanvaya's symptoms, rapid deterioration and failure to respond to resuscitative treatment, all indicated the cause to have been NEC. Dr Tobiansky explained that preterm babies such as Samanvaya were at high risk of developing NEC because of the immaturity of key functions such as gastrointestinal motility, digestive ability, circulatory regulation, intestinal barrier function and immune defence. In his opinion NEC was the cause of death. Any other cause was unlikely. A possible cause such as fungal infection would not present in such a rapid manner as occurred here. In his opinion other causes were academic.

35 Dr Tobiansky also said that in his view the accident caused the placental abruption. There were other possible causes, but there was no evidence that they were present here. The likely contributing factors to the development of Samanvaya's NEC were lack of oxygen, blood supply to the gut, and maturity of the gut. The treatment of the duct into the pulmonary artery, could also cause decreased blood supply to the renal arties. Dr Tobiansky explained that the immaturity of the gut at 25 weeks made such babies more susceptible to such problems. The other difficulty for preterm babies was that prior to birth, they did not get the good bacteria which they required in their gut, which left them vulnerable to bad bacteria. This was why NEC was a disease of preterm infants, especially those with very low birth weights below 1500 grams. In term babies NEC was associated with different complications.

36 Dr Evan's evidence was that a baby born at 25 weeks gestation would die without intensive support. Support in the neonatal intensive care unit was directed to supporting the baby's life sustaining systems to allow them to grow to such a time that they could live independently. In a baby in Samanvaya's circumstances, that would often take several months.

37 Dr Evan's opinion was that this pregnancy was uncomplicated until the time of the accident. The baby was delivered in good condition, with various normal measures taken at birth. His sudden deterioration and death occurred, despite extensive resuscitative efforts, such as intubation, ventilation, adrenaline and alkaline treatment to improve blood circulation, drug treatment to help the heart and attempts at draining the peritoneal cavity.

38 Dr D'Cruz signed the death certificate identifying the cause of Samanvaya's death to be NEC 'due to extreme prematurity'. Dr D'Cruz explained the treatment he was given and his rapid deterioration, despite extensive resuscitative measures. It was Dr D'Cruz's opinion that the motor vehicle accident did not cause Samanvaya's death, it was caused by NEC, which was a well known complication of extreme prematurity. She agreed, in cross-examination, however, that because there was no autopsy or post mortem, some other cause of death could not be ruled out.

39 Ms Kapur's symptoms and the findings of ultrasound examination suggested that the likely cause of the placental abruption was the collision. Trauma was a well recognised cause of such abruption. While there could not be one hundred per cent certainty, the evidence made another cause unlikely in the extreme. It was highly unlikely that there would have been a premature birth, had Ms Kapur not been involved in this accident. NEC was predominantly a disease of babies born before 30 weeks, which occurred rarely in late preterm or term babies. NEC was a rare but well recognised condition. In Dr Evan's opinion in this case another cause of death was very unlikely. The symptoms pointed to infection. He explained that none of the body systems of a baby born this early, are ready for the outside world, including their immune systems. They are particularly vulnerable to infections, including NEC.

40 In cross-examination, Dr Evans explained that even if Samanvaya had survived the NEC, there were still other problems caused by his prematurity, but the odds would then have been in his favour. While there had been cases where a cluster of NEC cases had occurred in a prenatal ward, that was seen less nowadays than in the 1970s and 1980s. Dr Evans also described treatment of NEC by removal of a section of bowel, which depended on the baby's stability, the rate of onset of the NEC and the baby's ability to tolerate surgery. In the case of rapid onset of NEC, as here, an operation such as this was not possible.

41 Senior Constable Jenkins gave evidence about the scene of the accident, which she attended, where she found Ms Kapur and Mr Kumar trapped in their car and the appellant trapped in his. They were all extracted and taken to hospital. Video footage was taken from a police vehicle driven along the road, during daylight hours, at the scene of the accident. This video was played to the jury and to this Court on appeal. The video showed where the vehicles came to rest after the accident and the nature of the road, which at some points had double lines and at others, broken lines. Senior Constable Jenkins, in her evidence, explained what this footage showed. She had also prepared a map of the accident site, with various measurements there depicted, which was tendered.

42 The appellant gave evidence on sentencing. He was then aged 36 years. His evidence was that the accident occurred while he was driving home to Camden, from Penrith Panthers Leagues Club where he worked as a security guard. He was himself injured in the accident, suffering a fractured right femur and a pulmonary embolism. His vehicle, which was not comprehensively insured, was written off.

43 The appellant said that the accident occurred after he decided to overtake a vehicle towing a boat on a stretch of the road where there was a broken white line and he had a clear vision ahead, to the point of a corner ahead. After pulling out he found that the first car and trailer had closed up to the next car and trailer, so that there was no gap between them. He decided to continue overtaking, because he found that he could not move in between the last and second last vehicles. At that point he had not seen the oncoming car and thought he had time to overtake the second vehicle. When he saw the oncoming vehicle, he checked to see if he could move left, but did not have enough room and felt that he did not have enough time to brake and pull behind the car he had already overtaken. He decided to swerve off the road on the right side, to avoid the oncoming vehicle. The oncoming vehicle also swerved left and they then collided. He estimated that the time from when he went to overtake until the collision occurred, was approximately 20 seconds.

44 The appellant was hospitalised for some time and then on 20 June 2009 participated in an ERISP interview with police in which he admitted that he had overtaken the vehicle. He also made admissions as to his manner of driving and that he had made a bad decision to overtake. He said that he had apologised to Mr Kumar at the scene of the collision. He explained that he felt very bad about the baby's death and with the assistance of his family, had later provided financial support and other assistance to the Kumar family, when they encountered financial difficulties after the accident. This included lending them a car for some four months; later providing them money to purchase another car; paying their son's school fees; and assisting with the cost of an airfare for Ms Rampyari travel home to India. There was documentary material tendered which supported this evidence.

45 Evidence as to the appellant's army service record was also tendered. He had trained as a paratrooper; had served some 11 years; had twice been on active duty in East Timor and once in the Solomon Islands; and had been awarded a number of medals for his conduct. He was injured during training and as a consequence of his resulting incapacity, he could no longer meet the physical requirements of his job and had retired.

46 The applicant had a driving record, including most recently a license suspension in September 2005 for loss of points. There had also been an assault charge when he was aged 19.

47 The appellant was cross examined. He had seen the plan prepared by Senior Constable Jenkins and agreed as to the accuracy of the measurements she had made, but not her assessment of the distance from the corner, to where the accident occurred. His recollection was that it occurred before the corner. He had also seen the video which identified the tree where the vehicle came to rest, but believed that it was not the same tree. The appellant was questioned about the place that he commenced overtaking the vehicle ahead of him, which he said was as soon as the line became broken; the distance between him and the vehicle which he overtook, which he said was about 10 metres; the speed that the vehicle in front was travelling, which he said was not the speed limit of 80 when he began to overtake. He explained that the speed of Mr Pirrlaid's vehicle had earlier varied, slowing down and speeding up, depending on the road.

48 The appellant was also cross-examined as to his own speed. He said that was 80 or 85 km per hour; he said he did not recall travelling at 110 km; he insisted that he had only attempted to overtake one vehicle before he had become aware that the distance between it and the next vehicle had narrowed. The appellant agreed that he had often driven that road when he was younger and during the three weeks that he had worked at Penrith Panthers Leagues Club and that he was aware that there were regular overtaking lanes a couple of kilometres ahead. He agreed that he had visibility of some 330 metres, when he went to overtake, up to the corner and that he could not see what was around the bend. He was certain that from the time he pulled out to the time of the collision was about 20 seconds, explaining that it happened very fast and so could not have been more than that and not as long as 30 seconds. He did not agree that he had travelled in excess of 400 metres, before the accident occurred. He insisted that he was attempting to overtake one boat and vehicle, not three.

49 The appellant was also cross-examined about his driving record of about a dozen speeding offences and one disqualification. He agreed that he was on notice that this record would get him into trouble, if he drove above the speed limit.

50 It should be observed that various aspects of the appellant's evidence was corroborated by the evidence of Ms Kapur and Mr Kumar, Mr Piirlaid and Mr Lucas Rosman.

The sentencing judgment

51 Her Honour noted that she was obliged to form her own view of the facts, so long as they did not conflict with that of the jury, its verdict not identifying the precise facts which it must have accepted, in order to convict the appellant.

52 Her Honour began by observing that while there was some conflicting evidence as to the speed at which the appellant was driving, the Crown explained in its submissions on sentencing, that it was the manner of the appellant's driving and not his speed, which was relied on. Her Honour explained that she understood from those submissions, that it was the overtaking of a vehicle or vehicles in the way alleged by some of the Crown witnesses, which constituted the dangerous driving.

53 Her Honour explained the circumstances in which the accident occurred, in terms which were not challenged. She then referred to the appellant's evidence as to the circumstances in which the accident occurred and his admissions as to dangerous driving, which had the result that the Crown had not called expert or scientific evidence to prove the dangerous driving in question. Her Honour noted the evidence called from Constable Jenkins, but observed that 'there is no scientific evidence before me to establish a number of propositions put by the Crown, including the location of the collision.

54 Her Honour then turned to the evidence of Mr Piirlaid and Lucas and Nicholas Rosman, Mr Kumar and Ms Kapur. She observed that:

"Although the Crown contends that the offender continued driving on the wrong side of the road a distance of some 450 metres before the collision occurred, this version appears to be inconsistent with the evidence of Shweta Kapur and her husband Naresh Kumar, namely that the ute suddenly moved onto their side of the road. Their version is more consistent with the offender's version, that he tried to regain his correct side of the road but was unable to do so because of lack of space and decided to overtake the second vehicle when he thought he had time to do so. Clearly he was in error when he made that decision.

Although the three men travelling in the last car of the convoy gave evidence of a significant gap between their vehicle and the vehicle in front of them, they were not particularly impressive witnesses. Mr Pirrlaid in particular was keen to volunteer evidence that he thought would discredit the offender. He had an interest in denying travelling too close to the vehicle ahead of him and thus avoiding any blame for the accident.

I accept the offender's version that he had intended to overtake only one vehicle, and did so at a time when he had a clear vision and an unbroken centre line in his direction but was unable to regain his correct side of the road because of insufficient room between that vehicle and the vehicle in front of it. I accept the estimate of speed given by the offender, which was around eighty to eighty-five kilometres per hour. As I have said, there is no scientific or expert evidence called because of the admission by the offender and evidence. This is not meant as a criticism of the Crown, as it was not an issue which needed determination by a jury.

55 Her Honour then turned to the evidence as to the injuries which Ms Kapur suffered; and the baby's birth, treatment and death. She then dealt with the appellant's subjective features, noting the contents of a presentence report and the evidence which the appellant had given, including his acceptance of his responsibly for his actions and the assistance which he had provided the Kumar family. Her Honour said that:

"When giving evidence before me, the offender impressed me as genuine, straightforward and someone who is sincerely deeply remorseful for his offending behaviour."

56 Her Honour then noted authorities which bound her, quoting from R v Jurisic (1998) 45 NSWLR 209; (1998) 101 A Crim R 259 and R v Whyte [2002] 55 NSWLR 252. She noted the guidance there provided, in the context of the appellant's circumstances, as well as the Chief Justice's observations in Whyte, that in the case of an offence such as here in question, 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 misjudgement' (at [214]. Her Honour also referred to Simpson J's explanation in R v Khatter [2000] NSWCCA 32 at [31] of the shades and grades of moral culpability in different instances of a s 52A offence and the need to recognise a continuum, rather than a dichotomy, when assessing moral culpability.

57 Her Honour noted that the Crown's case was that the appellant's moral culpability was high, amounting to an abandonment of his responsibility, which over a period of approximately 30 seconds exposed the occupants of at least four other vehicles to significant danger. The Crown relied on three aggravating factors to advance this case, namely the number of people put at risk, the erratic nature of the driving and the length of time that others were exposed to risk.

58 Her Honour did not accept that it had been established that the time in question was 30 seconds, that figure resting on calculations made by Senior Constable Jenkins; or that the occupants of four other vehicles were put at risk; or that there was erratic or aggressive driving. Her Honour concluded that the evidence established that the occupants of two other vehicles had been put at risk by the appellant's dangerous driving.

59 Her Honour referred to the appellant's driving record, in determining the appropriate sentence, and also had regard to issues of personal and general deterrence and retribution. She also noted the Crown submission that a minor reduction in sentence should result from the admissions made prior to trial, which had obviated the need to called extensive expert evidence, which had shortened the trial markedly.

60 Her Honour then noted the case advanced for the appellant and concluded that the evidence had established that in the course of lawfully overtaking, the appellant had found himself in a situation where there were motor vehicles ahead and he was unable to regain his correct side of the road, because of lack of space. As to his record, her Honour noted an offence in May 2010 of driving with a hand held mobile, which led her to the view that his pattern of committing traffic offences on a regular basis appeared to have come to an end in 2005 when he achieved some maturity, but that this latter offence did not permit the view that the appellant was unlikely to re-offend in any way. Her Honour concluded, nevertheless, that the evidence did leave open a finding that he had good prospects of rehabilitation.

61 Her Honour also accepted that the evidence established that the appellant was profoundly remorseful for the death he had caused and that his acceptance of his responsibility and his remorse had been demonstrated in a number of ways, which she described. Her Honour noted the importance of general deterrence and retribution featuring in the sentence imposed, but also noted that there was in this case no drugs, alcohol or of the other aggravating factors discussed in Whyte present. In the result her Honour came to the view that the appellant's offending involved a low level of moral culpability.

62 Her Honour then turned to the JIRS statistics, noting that 45% of some 182 offenders had received a full-time custodial sentence, for a s 52A(1) offence, 19% had received periodic detention, 18% a suspended sentence and the remainder bonds, community service or home detention.

63 Having in mind the low level of moral culpability which she had found, the mitigating matters she had outlined and the appellant's strong subjective circumstances, her Honour came to the view that the appellant's sentence should be served by way of an intensive correction order under s 7(1) of the Crimes (Sentencing Procedure) Act 1999. The appellant had been assessed as suitable for such an order. Various conditions were imposed by her Honour, including as to reporting and surveillance, community service, undertaking activities to address his offending, as defined in the assessment report. Her Honour also imposed an 18 month license disqualification.

The conviction appeal

1.Her Honour erred in holding that it was not necessary for an injury to be sustained by Samanvaya while a foetus in utero;

2.Alternatively, her Honour erred in holding that it was not necessary for an intentional act causing Samanvaya to be born in a state much less capable of living, being a situation in which he could not live, and afterwards dying in consequence of its exposure to the external world."

64 Both grounds of appeal may conveniently be dealt with together. In my view neither ground was established.

65 In written submissions the case advanced for the appellant accepted that a child injured in utero, during an impact with a motor vehicle in which the child in utero was being conveyed, who was subsequently born alive, lived independently and dies as the result of the injuries sustained in the accident, is a person for the purposes of s 52A of the Crimes Act (see R v F (1996) 40 NSWLR 245).

66 Relying on R v F and Attorney General's Reference (No 3 of 1994) [1996] QB 581 at 583, it was submitted, however, that her Honour had erred in not accepting that the occasioning of an actual injury to the foetus in utero was fundamental to the question of criminal liability, in the case of a charge under s 52A. In the alternative, it was submitted that it was necessary for the Crown to prove that the state of the child was such that when born, it was unlikely or unable to survive.

67 It was also submitted that the elements essential to be established on the Crown case were:

"a.an intentional act causing the child to be born in a state much less capable of living,

b.being a situation in which it cannot live, and

c.the child afterwards dying in consequence of its exposure to the external world."

68 In the result, it was argued, in this case her Honour erred in not directing the jury to find the accused not guilty of the s 52A(1) charge relating to Samanvaya, given that he had not been injured in the accident and had lived and thrived for 33 days, before his death. This submission rested on R v West [1848] 175 ER 329; 2 Car & P 784, Attorney General's Reference (No 3); various texts, as well as R v Iby [2005] NSWCCA 178; (2005) 154 A Crim R 55 at 64.

69 The Crown's case was that both grounds of appeal raised aspects of causation. In oral submissions, it was accepted for the appellant that the Crown's submissions as to causation, resting as they did on the test for causation discussed in Royall v R [1991] 172 CLR 378, had force. That must be accepted. There the High Court was concerned with the directions given a jury in a murder trial, including the directions as to the particular acts, any one of which the jury might regard as the cause of the deceased's death in that case. Causation was put to the jury as a matter of fact, which they had to decide. At 387 it was observed by Mason CJ:

"The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt C.J. in Campbell v. The Queen, at p 290; (1980) 2 A Crim R 157, at p 161, that it is "enough if juries (are) told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter"; see also Timbu Kolian v. The Queen [1968] HCA 66; (1968) 119 CLR 47, per Windeyer J. at p 69. That is the test that has been applied in negligence cases by this Court: see March v. E and M.H. Stramare Pty. Ltd. [1991] HCA 12; (1991) 65 ALJR 334; 99 ALR 423. Although the trial judge's direction was not so explicit, the jury would have plainly understood it in the sense expressed in the statement just quoted."

70 Dawson and Dean JJ also referred to Burt CJ's observation in Campbell v the Queen, adding at 412:

"It may not be possible to take the matter usefully much beyond that. No doubt in some cases of murder it may assist the jury if the trial judge points out not only that there must be a causal connection between the acts (or, more rarely, omissions) of the accused and the death of the deceased, but that the causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused. However, in many cases of murder, particularly where a single act such as shooting or stabbing is alleged, it may be unnecessary to elaborate the requirement that the death should have been caused by the accused. In other cases it may be appropriate to point out that the causal chain must not be broken by some intervening event which operates to relieve the accused of responsibility, but such a direction would ordinarily be better put by reference to the actual facts of the case than couched in abstract terms."

71 In this case, at trial the defence case was that while the appellant had admitted dangerous driving, the jury would not be satisfied beyond reasonable doubt that causation had been proven, given the evidence that the baby had been healthy at birth, but had later died after developing NEC. It was submitted that the evidence was that the accident had caused the premature birth, but not the baby's death. It was also argued that the Crown had not shown that the appellant occasioned or caused the baby's death, because on the evidence, another substantial or significant cause of death could not be excluded.

72 Whether or not the causal chain on which the Crown relied was established on the evidence, was a matter for the jury. The trial judge directed the jury that:

"As to "occasioned or caused the death" the law is, as the Crown opened to you, and the question you are to determine, applying your commonsense, understanding that you are deciding legal responsibility in a criminal trial, is whether the motor vehicle accident was a substantial or significant cause of the death of Samanvaya Kumar. That is basically what the Crown said to you yesterday.

Another way to put the question is whether the motor vehicle accident is so connected with the death of Samanvaya that it must be regarded as having sufficiently substantive casual effect, which continued up to the time of his death or the happening of his death, without being spent or sufficiently interrupted by another act or another event. If you find beyond reasonable doubt that the impact of the motor vehicle collision significantly or substantially contributed to the death of Samanvaya, then the appropriate verdict is guilty. If you have a reasonable doubt that the impact made a significant or substantial contribution uninterrupted by some other event or act then the appropriate verdict is not guilty."

73 Her Honour also directed that the jury would have to be satisfied beyond reasonable doubt that the accident resulted in the placental separation; that it was the cause of the premature labour, another link in the chain of causation; and that the baby who was born alive prematurely, died of a complication of prematurity some 5 weeks later, NEC being a rare condition, primarily a disease of preterm infants, which can also occur in full term babies. Her Honour also explained that the accident did not have to be the sole or direct and immediate cause of death, but that it must make a substantial or significant contribution.

74 Her Honour also explained the Crown case and the appellant's case. As to the Crown case she directed:

"The Crown case is that the links in the chain are made out and that you would be satisfied beyond reasonable doubt that following the impact the mother, Shweta Kapur, had a "placenta abrupta" at that time, and not at any other time - that it was occasioned by the motor accident, and that was followed by the premature birth, and that the FNEC was a complication of his prematurity rather than anything else.

'''

The Crown submission to you is that the act of the accused in these circumstances, when you consider all of what occurred following the impact in commonsense way, you would find that the motor accident, which was caused by an act of the accused, significantly contributed or substantially contributed to the death of Samanvaya."

75 As to the appellant's case she directed:

"Mr Greenhill, on the other hand, said the baby was doing very well, he was a healthy premature neonate, he was progressing well, he had had complication but he was getting through those."

76 After dealing with other matters, her Honour directed:

"In summary then, the Crown argues that the condition developed by the baby Samanvaya was an ultimate consequence of the motor accident and that the motor accident was a substantial or significant cause of the death and that you would be satisfied of that beyond reasonable doubt.

Mr Greenhill's argument is that another substantial or significant cause of death can not be excluded. If one cannot be excluded then there must be a verdict of not guilty.

If you are satisfied beyond reasonable doubt that the motor accident was a significant or substantial cause of the death of Samanvaya then the appropriate verdict is guilty'. P 23"

77 On appeal it was not suggested that there was any error in these directions. They accorded with the High Court's approach in Royall v R. Causation was a question of fact to be determined by the jury on the evidence.

78 As discussed in Attorney General's Reference (No 3 of 1994) at 591 in the context of a murder charge, 'In law the foetus is treated as a part of the mother until it has a separate existence of its own. Thus to cause injury to the foetus is just as unlawful as any assault upon any other part of the mother.' Consistently with this approach, in s 52A of the Crimes Act a distinction has been drawn between an impact which results in the death of a foetus in utero, which, if the other elements of the offence are established, will result in an offence under s 52A(3); and an impact which results in a baby who is born alive, but who dies later as the result of the impact, which will result in a s 52A(1) offence. If the evidence establishes that the impact was a substantial cause of the death of the foetus after birth, the s 52A(1) offence will be established, whether the death is caused by pre-birth injury, or by the prematurity of the child at birth itself.

79 It must not be overlooked that in the case of an impact which results in the death of a foetus in utero, it is a s 52A(3) offence in respect of the mother which will arise, if the other elements of the offence are present. That is an offence concerned with dangerous driving which results in grievous bodily harm. Importantly, the definition of 'grievous bodily harm' includes in paragraph (a) 'the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm'.

80 The appellant argued that in order for an offender to be convicted of an offence under s 52A of the Crimes Act, in circumstances where a child is born preterm but later dies, the evidence must establish that there was an actual injury to the foetus in utero, prior to its birth. Given the elements of the dangerous driving offences created by s 52A, this submission may not be accepted.

81 Contrary to the submissions advanced for the appellant, the elements of a s 52A(1) offence do not alter in a case where the death in question is that of a baby who is born alive after an impact. No matter the age of the victim, such an offence will be proven if the evidence establishes that:

1 a person drove a vehicle

2 the vehicle was involved in an impact

3 the impact occasioned the death of another person

4 the driver was, at the time of the impact, driving the vehicle:

(a) under the influence of intoxicating liquor or of a drug, or

(b) at a speed dangerous to another person or persons, or

(c) in a manner dangerous to another person or persons.

82 As to the third element of a s 52A(1) offence, in the case of a child delivered alive after an impact, the evidence will establish that the impact caused its death, if it is shown beyond reasonable doubt:

firstly, that the child was in utero at the time of the impact;

secondly, that as the result of the impact it was born alive; and

thirdly, that its later death was the result of that impact. That is, that the impact was a substantial or significant cause of its death.

83 Such a substantial or significant cause of death may be shown in one of two ways, or by a combination of the two. The first is by evidence which establishes that the impact injured the foetus in such a way that those injuries were a substantial or significant cause of its death, after its birth. The second is by evidence which establishes that the impact caused the baby's birth preterm and that its prematurity at birth was a substantial or significant cause of its death, after birth.

84 When the authorities on which the appellant relied are considered, it can be seen that they support this approach to the operation of s 52A. R v F (1996) 40 NSWLR 245; 89 A Crim R 250, was concerned with a particular question of law, namely:

"Is a child in utero who is injured through impact with a motor vehicle or through impact with any object of a motor vehicle in or on which that child in utero was being conveyed, is subsequently born, lives independently and then dies as a result of the injuries sustained, a person for the purposes of s 52A of the Crimes Act 1900?" "

85 There it was concluded that a baby who is born alive, is a person within the meaning of s 52A. Grove J observed at 253, that subject to the condition of being born alive, a baby was capable of being the victim of homicide and at common law, a claimant for damages for injuries sustained in utero (see Attorney General's Reference (No 3 of 1994) at 589-90). In R v F, the baby had suffered injuries in utero as a result of the accident, had been born alive, but had later died of those injuries. That was not this case. Here, there was no injury in utero caused by the accident, rather, the impact caused Samavaya's extremely premature birth, at only 24 weeks gestation. That was at a time when his organs were not sufficiently developed to enable him to survive outside the womb, without successful medical intervention.

86 On the evidence, in the case of a pregnancy which would have continued to full-term, but for the impact, a premature birth may involve a very considerable injury to a foetus. Even if born alive, such a birth can itself involve an injury, just as serious as other injuries caused to a baby in utero by an impact, which may result in its death after birth.

87 In this case, consistently with common sense, the expert evidence was that a premature birth can make a baby vulnerable, not only to illness and injury, but also to death, given its immaturity at preterm birth. The extent of such a baby's vulnerability at birth depends on the degree of its prematurity and the extent to which its organs and systems have developed in utero prior to birth. Even nowadays, when sophisticated means of medical intervention may be available to support such infants after they are born, some premature babies are still incapable of living independently, given the time of their birth. In the case of extremely premature babies, such as those born at 24 weeks, even with such medical intervention and significant treatment when conditions which result from their prematurity develop, they succumb to the risk of death which their premature birth has subjected them to.

88 In terms of causation, it follows that even if premature birth is not itself considered to be an injury to a foetus, if the child is born alive as the result of the impact, but later dies because of the immaturity of its organs and systems at the birth which the impact caused, such a death may be treated as if it were the result of the impact. Such a child is capable of being the victim of a s 52A(1) offence. Evidence that the death was the result of the prematurity of the baby at the birth caused by the impact will establish that an offence under s 52A(1) was committed, if the other elements of the offence are proven.

89 As discussed in R v King [2003] NSWCCA 399; (2003) 59 NSWLR 472, the offence created by s 52A does not contain intention as an element. It is concerned only with the question of whether a particular death was caused by an impact. In a case where the evidence establishes that rather than a particular injury to the foetus in utero, the impact caused a premature birth, which resulted in a baby who was born alive, but who later died as the result of the prematurity of the birth caused by the impact, the offence will be committed.

90 This approach to s 52A(1) accords with the common law position on which the appellant relied, resting on the headnote in The Queen v West, referred to In Archbold, 43rd edition at 20-11, where it was said:

"... Thus, if a person, intending to procure abortion, does an act which causes a child to be born so much earlier than the natural time, that it is born in a state much less capable of living, and afterwards dies in consequence of its exposure to the external world; the person who, by this misconduct, so brings the child into the world; and puts it thereby in a situation in which it cannot live, is guilty of murder; and the mere existence of a possibility that something might have been done to prevent the death would not render it the less murder: R v West (1848) 2 C. & K. 784."

91 It was accepted that if the appellant's submissions on the law failed, on the evidence it was open to the jury to conclude that the s 52A(1)(c) offence had been proven. It is accordingly unnecessary to consider the evidence any further, other than to observe that it was the commonly held view of the experts that the accident caused the premature birth and that the baby's death was the result of it succumbing to NEC, because of the immaturity of its organs and systems on birth, at a time of extreme prematurity. While another cause of death could not be completely excluded, it was entirely unlikely. NEC is a life threatening condition to which extremely premature babies are vulnerable, because of the immaturity of their organs and immune systems at birth. In this case, because of his prematurity, Samanvaya died as the result of the sudden onset of a condition to which premature babies such as he are vulnerable, despite considerable medical endeavours to save his life.

92 On that evidence there could, in my view, be no question that the appellant was guilty of the offence of which he was convicted (see SKA v R [2011] HCA 13).

The sentence appeal

"1.UPON THE GROUND that the sentence pronounced was manifestly inadequate.

2.Her Honour erred in determining the degree of moral culpability for this offence as being at a low level."

93 Again, both grounds of appeal may conveniently be dealt with together.

94 The Crown accepted that this was a difficult sentencing task. It was not disputed that the appellant had not only expressed, but had shown genuine remorse by his actions and that he had a strong subjective case, even though his driving record was not good. The Crown's case was however, that a lenient sentence was not available, merely because of the presence of strong subjective factors and that on the objective facts, there was a need for general deterrence, given her Honour's error as to the appellant's moral culpability. Nevertheless, the Court's residual discretion to decline to interfere with the sentence, even if it was erroneously lenient, was acknowledged.

95 It was also accepted that to establish either ground, the Crown had to show that her Honour's findings were not open, or that error in the sense referred to in House v R was established (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321). This required the Crown to establish that there had been some misapplication of principle (see Hili v R [2010] HCA 45). In particular, it was submitted that her Honour had erred in imposing an intensive correction order, inconsistently with the approach to such orders discussed by Simpson J in R v Boughen; R v Cameron [2012] NSWCCA 17.

96 In my view, neither ground of this appeal was made out.

97 Her Honour was obliged to come to a view as to the appellant's moral culpability. There was an issue between the parties as to that characterisation, which rested in part on a conflict in the evidence. That conflict was resolved by her Honour, who accepted the appellant's evidence as to how the accident had come to occur, namely that he had lawfully overtaken the first of the vehicles towing a boat that he encountered; that when he then attempted to return to his side of the road, he found that the gap between that vehicle and the one in front of it had closed; he then decided to overtake the second vehicle; that when he first noticed the oncoming vehicle, he did not have time to brake and fall behind the first vehicle; and that he then decided to steer onto the shoulder, on the right side of the road where the collision occurred.

98 The appellant's evidence as to his unsuccessful attempt to regain his side of the road was supported in various respects by evidence given by Mr Kumar, Ms Kapur and Mr Piirlaid. His evidence as to the speed that the vehicle he was overtaking had been travelling, was supported by that given Mr Lucas Rosman. His evidence conflicted with that of Mr Piirlaid and Mr Lucas Rosman in other respects.

99 Her Honour was in the best position to come to a conclusion as to what findings should be reached on the conflicting evidence. She was clearly impressed by the evidence given by the appellant. He had not only made admissions in relation to dangerous driving, he had accepted that he had made a serious error of judgment in deciding to overtake as he did, and in cross examination, he also made various other concessions, although disagreeing with certain matters put to him, including in relation to the speed of the vehicles, the place of the collision, and the time and distance over which he was on the incorrect side of the road before the impact occurred. By way of contrast, her Honour was not at all satisfied with the evidence given by Mr Piirlaid. His evidence was inconsistent in certain relevant respects with the evidence of the appellant, Mr Kumar and Mr Lucas Rosman. Her Honour resolved the conflicts in evidence, as to how the collision occurred, in favour of the appellant, as she was entitled to do, in the circumstances.

100 No error has been shown in the factual findings which her Honour made. The submission that her Honour ought to have accepted the Crown case as to the speed at which the appellant must have been driving, rested on certain mathematical calculations which had regard to measurements made by Senior Constable Jenkins. In my view that submission should not be accepted. The calculations rested not only on measurements which she had made and which the appellant accepted, but also on certain assumptions, including as to the place of the collision and the speed at which the vehicles were travelling, which he disputed and which her Honour concluded had not been established. The appellant's evidence was in part supported by other evidence. On that evidence her Honour was clearly entitled to come to the view which she reached, as to the case which the Crown had advanced.

101 Nor does the evidence leave open the conclusion that her Honour's view, that the level of the appellant's moral culpability was low, was not one reasonably open. As the Crown accepted, this was a discretionary conclusion which her Honour reached, having in mind the factors discussed in the authorities which bound her.

102 The conclusion that the accident was the result of an error of judgment, in the course of a lawful attempt to overtake one vehicle towing a boat was clearly open. No error was shown in that regard. In reaching a conclusion as to the appellant's moral culpability, as the Crown submitted, her Honour also had to consider that this collision occurred early in the morning, in the dark, before a curve in the road. The appellant accepted that his decision to overtake the second vehicle, when he could not move back onto his side of the road, because the gap between the vehicles had closed, involved a serious error of judgment.

103 It must be accepted on the evidence that it was a decision made quickly. Also to be considered was that it had very serious consequences, namely a head-on collision, which the appellant and Mr Kumar both unsuccessfully sought to avoid, with the result not only serious injuries for the appellant and Ms Kapur, but the eventual premature birth and death of a baby, who otherwise would have lived to full term.

104 Her Honour did not overlook any of the relevant considerations. Her conclusion as to the appellant's moral culpability rested on the view to which she came as to what had contributed to the collision, as well as her consideration of the matters discussed in Jurisic and R v Whyte. No error was shown in her Honour's approach. It must be considered that in Whyte Spigelman CJ said at [228] - [230] that:

"228 In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. 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. That is not the only way of expressing such a conclusion.

229 The guideline for offences against s52A(1) and (3) 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.

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

105 The aggravating factors to which the Chief Justice referred, were factors directed to the two limbs identified in Jurisic. As to this the Chief Justice said:

"213 Since the decision of this Court in Jurisic the Parliament has enacted s5 of the Crimes (Sentencing Procedure) Act 1999 which provides:

"5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

(2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including its reasons for deciding that no penalty other than imprisonment is appropriate."

This statutory directive requires an amendment to the first limb of the Jurisic guideline.

214 The guideline this Court should give pursuant to s37A 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.

The Numerical Guideline

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:

"Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(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."

106 On appeal the Crown relied on Latham J's discussion in Mitreski v R; R v Mitreski [2008] NSWCCA 301 at [53] - [54]:

"53 It is important to return to what was said by the Chief Justice in Jurisic in order to understand the ambit of "momentary inattention". The first reference to "momentary inattention or misjudgement" in Jurisic at 223 derives from R v Guilfoyle (1973) 57 Cr App R 549 at 552. There, the distinction was drawn between cases falling into two broad categories, namely, momentary inattention and "those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users."

54 The Chief Justice in Jurisic also referred to R v Musumeci (unreported) NSWCCA 30 October 1997, which was "in many respects .. a guideline judgment". Following the introduction of s 52A, which almost tripled the maximum penalty formerly applying to this offence, Hunt CJ at CL in Musumeci summarised the considerations to be taken into account on sentence. In the course of that summary, his Honour said that where "the offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence,..... but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence." (bold not in original)

55 Consistent with this formulation, the guideline promulgated by Jurisic characterised non-custodial sentences for an offence against s 52A as "exceptional and almost invariably confined to cases involving momentary inattention or misjudgement". Whilst the Chief Justice did not say "no more than momentary inattention", it is implicit, in my opinion, from the references to Guilfoyle and Musumeci. (See also R v Howland [1999] NSWCCA 10 at [39] "mere momentary inattention" ; R v Dunlop [2001] NSWCCA 435 at [42] "more than momentary inattention") Next, and most importantly, the guideline went on to state that "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 of less than three years [in cases of death] ... should be exceptional."

107 In my view no error was shown in her Honour's conclusions about these matters. The evidence established that this was a serious misjudgement, putting a number of people at risk and resulting in a death. She also concluded that this had occurred in circumstances where it was not only the appellant who had contributed to what had occurred and that the circumstances were not such that the view could properly be taken that the appellant had abandoned responsibility for his conduct. Her Honour's view as to the absence of other aggravating fact was, in my view, also open.

108 I am not persuaded that her Honour erred in the conclusions which she reached, having in mind what was discussed in DPP v Samadi [2006] NSWCCA 308 at [16] - [19]:

"16 The promulgation of the guideline was in the following terms, namely that where the offender's moral culpability is high, a full-time custodial head sentence of less than three years in the case of death would not generally be appropriate. However, in the case of a low level of moral culpability, a lower sentence will be appropriate. It should also be noted that the guideline was predicated on a plea of guilty, so that the proposed sentencing range assumes a 10% discount of the sentences that might otherwise apply.

17 Since Whyte, a number of decisions of this Court have explored the above formulation. In R v Errington [2005] NSWCCA 348, Mason P commented that :-

There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment [of responsibility]. It is not required that cases be assigned to one or other of two pigeon holes marked respectively "momentary inattention or misjudgment" and "abandoned responsibility". In R v Khatter [2000] NSWCCA 32, Simpson J (dissenting) held (at [31]:

Offences under s52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability.

Sully J (Carruthers AJ concurring) agreed with these remarks, while differing from her Honour in the disposition of the appeal.

18 In R v Price [2004] NSWCCA 186, Simpson and Howie JJ (at par 37) said:-

It is clear that the Chief Justice in both Jurisic (1998) 45 NSWLR 209 and Whyte was not attempting to identify all the matters that might impact upon the assessment of the moral culpability of an offender in any particular case. For example, the type of vehicle being driven might be an aggravating factor that goes to the moral culpability or the abandonment of responsibility of the driver in a particular case.

19 To similar effect is the following passage from the judgment of Howie J in Gonzalez v R [2006] NSWCCA 4 (at par 13) :-

There is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) set out in Whyte. However, there may be other factors that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis [2005] NSWCCA 274 at [25]. The list of factors is illustrative only and not definitive: Errington at [36]."

109 It was also submitted for the Crown that there were marked disparities with the sentences imposed in other cases, where similar offences arose for consideration, such as Hedges v Regina [2011] NSWCCA 263, although it was acknowledged that there had been unsuccessful crown Appeals in R v Radley [2010] NSWCCA 64, where a periodic detention sentence had been imposed and R v Townsend [2010] NSWCCA 336, where a community service order had been imposed.

110 As to the imposition of an intensive correctional order, the Crown relied on the observations of Simpson J in R v Boughen; R v Cameron [2012] NSWCCA 17 at [110] - [111], a case concerning Commonwealth tax offences. Simpson J, with whom Hislop and Latham JJ agreed, discussed the purpose of intensive correction orders at [109]:

"109First, the use of Intensive Correction orders in these circumstances demonstrates a misconception of the nature of this, relatively new, form of punishment. Section 7 of the Sentencing Procedure Act was inserted by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010, with effect from 1 October 2010. It is apparent that there has not been time for any significant judicial consideration of the circumstances in which its application is appropriate, certainly not at appellate level. However, it is clear that the principal focus of this sentencing option is rehabilitation. In the second reading speech the Attorney-General said:

"The Bill introduces a new sentencing option - the intensive correction order - designed to reduce the offender's risk of re-offending through the provision of intensive rehabilitation and supervision in the community.

It also abolishes the sentence of periodic detention, giving effect to recommendations from the NSW Sentencing Council and calls from the victims of crime representatives.

Essentially, an intensive correction order is a sentence of imprisonment for up to 2 years which is ordered to be served in the community, where offenders can be subject to a range of stringent conditions including 24 hour monitoring, regular community work and a combination of tailored educational, rehabilitative and other related activities.

...

While it is not intended to be a direct replacement of periodic detention, the power of the courts to make a periodic detention order will cease upon the commencement of the new intensive correction order.

...

The restriction of the court setting a non-parole period for an ICO was an essential feature of the model recommended by the Sentencing Council, on the basis that the offender should be subject to supervision and conditions of the order for its full term. This would ensure that the rehabilitative focus of the order is maintained from beginning to end." (Parliamentary Debates (Hansard), Legislative Council, 22 June 2010, P 24426 and following.)"

111 In that case Simpson J was of the view that rehabilitation was an irrelevant consideration, there being no, or minimal, prospect of either of the respondents re-offending. In her Honour's view that rendered the use of the intensive correction order inappropriate, it being an order which should not be used as a substitute for the now unavailable option of periodic detention. In the circumstances, which concerned tax evasion, her Honour also took the view that such an order, which has inherent in it a high degree of leniency, was unwarranted. On the evidence and her Honour's findings, it is apparent that this was a different case.

112 In this case her Honour was bound by s 5 of the Crimes (Sentencing Procedure) Act 1999 which provides:

"5 Penalties of imprisonment

(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."

113 The possible alternatives available on sentencing, included that provided by s 7, which provides:

"7 Intensive correction orders

(1) A court that has sentenced an offender to imprisonment for not more than 2 years may make an intensive correction order directing that the sentence be served by way of intensive correction in the community.

(2) If a court makes an intensive correction order directing that a sentence be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.

(3) This section is subject to the provisions of Part 5."

114 An order under s 7 is not restricted to any particular class of offending. Her Honour was also obliged to observe the provisions of s 69 in Part 5 of he Act, which provides:

"69 Referral of offender for assessment

(1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community.

(2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years."

115 Her Honour made such a reference, having been addressed by the parties on the nature of the appellant's moral culpability and whether a sentence of imprisonment was appropriate. In that respect s 67 provides:

"67 Suitability of offender for intensive correction order

(1) An intensive correction order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied:

(a) that the offender is of or above the age of 18 years, and

(b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and

(c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and

(d) that the offender has signed an undertaking to comply with the offender's obligations under the intensive correction order.

(2) In deciding whether or not to make an intensive correction order, the court is to have regard to:

(a) the contents of the assessment report on the offender (prepared under section 70), and

(b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order.

(3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report.

(4) A court may make an intensive correction order with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community.

(5) If a court declines to make an intensive correction order with respect to an offender's sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so.

(6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5)."

116 The appellant was assessed to be suitable for an intensive correction order. The report was later tendered. In that respect s 70 provided:

"70 Assessment of suitability

(1) When an offender is referred for assessment, the Commissioner of Corrective Services is to investigate and report to the court on the matters referred to in section 67 (1) and such other matters as the regulations may require.

(2) An offender's assessment report:

(a) must take into account, and specifically address, the matters prescribed by the regulations, and

(b) may indicate the nature of any conditions that it would be appropriate for the court to impose on an intensive correction order if such an order is made.

(3) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part."

117 The report was governed by Regulation 14 of the Crimes (Sentencing Procedure) Regulation 2010, which provides:

"14 Assessment reports

(1) An offender's assessment report must take into account, and specifically address, the following matters:

(a) any criminal record of the offender, and the likelihood that the offender will re-offend,

(b) any risks associated with managing the offender in the community (taking into account the offender's response to supervision in the community on previous occasions),

(c) the likelihood that the offender will commit a domestic violence offence,

(d) whether the offender will have suitable residential accommodation for the duration of an intensive correction order,

(e) whether any circumstances of the offender's residence, employment, study or other activities would inhibit effective implementation of an intensive correction order,

(f) whether the persons with whom it is likely the offender would reside, or continue or resume a relationship, understand the requirements of an intensive correction order and are prepared to live in conformity with them, so far as may be necessary,

(g) whether the making of an intensive correction order would place at risk of harm any person who would be living with or in the vicinity of the offender,

(h) any dependency of the offender on alcohol or drugs, or other substance abuse, that would affect the offender's ability to comply with the offender's obligations under an intensive correction order,

(i) any physical or mental health conditions of the offender that would affect the offender's ability to comply with the offender's obligations under an intensive correction order,

(j) the existence and extent of any self-harm risk, including the likely impact of an intensive correction order on that risk, and the availability in the community of the support and treatment services necessary to manage the risk.

(2) If a child under the age of 18 years would be living with an offender serving a sentence of imprisonment by way of intensive correction, the assessment report must take into account, and specifically address, the effect on the child of that fact.

(3) If it appears to the officer preparing the assessment report that the offender is homeless:

(a) all reasonable efforts must be made by the Commissioner of Corrective Services, in consultation with the offender, to find suitable accommodation for the offender, and

(b) the report is not to be finalised until those efforts have been made.

(4) An offender's assessment report must also include an assessment of:

(a) factors associated with his or her offending that would be able to be addressed by targeted interventions under an intensive correction order, and

(b) the availability of resources to address those factors by targeted interventions under an intensive correction order, and

(c) any issues relevant to the administration of an intensive correction order in respect of the offender that may be relevant to the court's determination of an appropriate date to be fixed for the commencement of the sentence."

118 The report identified that the appellant had been assessed as suitable for an intensive correction order; that he had signed the necessary undertaking; and that the factors to be targeted if the order was made were a driving programme and a counselling programme. The parties then made further submissions as to the appropriate sentence, before her Honour sentenced the appellant.

119 In R v Bateson [2011] NSWSC 643 Buddin J also discussed intensive correction orders in the context of Commonwealth offences, there observing at [67] to [75]:

"67It is common ground that an ICO has been available as a sentencing option for Commonwealth offences since 29 October 2010: Crimes Amendment Regulations 2010 (Cth) (No.4).

68To assist my understanding of the operation of such orders, the parties provided me with a considerable amount of background information. Material provided by Corrective Services NSW suggests that a curfew may be imposed upon the offender in addition to the other conditions to which I have referred. As I understand the situation, the ICO consists of 4 stages, commencing with the most restrictive conditions and progressively working towards fewer restrictions.

69Because ICOs have been available in Victoria for some time, and particularly as there appears to be little difference between the two schemes, the parties drew my attention to some aspects of the scheme which operates in that State. Section 19 of the Sentencing Act 1991 (Vic) enables a court, in the circumstances set out in ss (1), to impose a sentence of imprisonment of not more than one year and order that it be served by way of intensive correction in the community. Section 20(1) sets out the core conditions of an ICO and ss (2) provides that an ICO must have all the core conditions attached to it.

70Core condition (d) requires that the offender attend at a specified community corrections centre, or as otherwise directed by a community corrections officer, for twelve hours during each week of the period of the order or a shorter period specified in the order for the purpose of -

(i) performing unpaid community work as directed by the Regional Manager for not less than eight of those hours; and

(ii) spending the balance (if any) of those hours undergoing counselling or treatment for a specified psychological, psychiatric, drug or alcohol problem as directed by the Regional Manager.

71In DPP v Nikolic [2008] VSCA 226, Warren CJ, with whom Vincent JA agreed, said that

[a]n intensive correction order is not a light sentence. It is intended to be, and ordinarily will be, burdensome and will substantially contribute to the punishment of an offender, including where condign punishment is warranted. [at para 21].

72In DPP v Karazisis & others [2010] VSCA 350, in the context of dismissing Crown appeals against the inadequacy of sentences in which ICOs had been imposed at first instance, a majority of the Court of Appeal in Victoria said:

In any case, it is well established that an Intensive Correction Order must be regarded as a significantly punitive disposition. The conditions of any such order are extremely onerous. Any breach is likely to have dire consequences. [at para 184]

73In R v Lanteri [2006] VSC 225, Gillard J said:

An Intensive Correction Order seeks to meet the objects of sentencing. There is no doubt that it is a form of penalty in that it will intrude into your life for the next 12 months. It will require you to provide your services to the community on an unpaid basis, and further will constantly remind you over the next 12 months of the evils of criminal conduct. It will be an appropriate adjunct to your rehabilitation and a constant reminder to you to never again involve yourself in criminal conduct. [at para 116].

74In Aitken v Moten-Connor (Supreme Court of Victoria, unreported, 9 February 1995) Smith J said:

It becomes necessary then to identify the important features of an Intensive Correction Order. It might be argued that major features of the Intensive Correction Order are the imposition of the term of imprisonment and the treating of the order as a sentence of imprisonment. From the legal point of view that is a very significant aspect of the order. Plainly, however, it is the requirement that the sentence of imprisonment be served by intensive correction that gives an Intensive Correction Order its identity. To remove the latter is to change the character of the Order so that it ceases to be an Intensive Correction Order. [at p 5]

75In Dimitrovski v Jones (Supreme Court of Victoria, unreported 23 August 1994) Mandie J said:

In his Second Reading Speech relating to the Sentencing Bill in the Legislative Assembly on 19 th March 1991, the then Attorney-General said this: "The Bill introduces a new sanction - the intensive correction order. This measure is designed to provide a severe punishment just short of imprisonment but more severe than a community-based order." [at p4]"

120 It seems to me that the Crown's submission that an intensive correction order reflects a significant degree of leniency may be accepted, but that still it may not be overlooked that such an order involves a substantial punishment, properly available to be imposed in a case such as this, where her Honour came to the view that the appellant's offending was at the lower end of moral culpability. As discussed in the authorities, there will be cases where an error of judgment occurs in circumstances where the evidence establishes that an offender's moral culpability is low, even when a death has occurred. The authorities to which the Crown referred demonstrate that in some such cases, the imposition of a non-custodial sentence will not involve error.

121 In this case, having come to the view dealt with in s 69(2) of the Act, namely that no sentence other than imprisonment was appropriate and that the term of such a sentence was likely to be less than 2 years, her Honour referred the appellant for an assessment in relation to an intensive correction order. He was assessed to be suitable. Her Honour was thus obliged to give consideration to the factors specified in s 67. She was required to consider the assessment report and to consider whether the applicant was a suitable person to serve the sentence by way of intensive correction order and whether in the circumstances, service of the sentence in the community by way of such an intensive correction order was appropriate.

122 I am not persuaded that her Honour erred in coming to the conclusion which she reached. Her Honour's view was that in circumstances where she had assessed the appellant's moral culpability to be low, it was appropriate for the appellant to serve his sentence by way of an intensive correction order, for which he had been assessed as being suitable, on terms which were crafted by her Honour not only to have regard to appropriate and stringent conditions in relation to, for example, supervision, surveillance and community service, but also as to participation in programmes designed to address his serious offending in relation to the operation of motor vehicles. It seems to me that view was well open to her Honour as a matter of discretion, in the circumstances of this offender.

123 It follows that this appeal must also be dismissed.

Order

124 I would order:

1.That the conviction appeal be dismissed.

2.That the sentence appeal be dismissed.

**********

Decision last updated: 04 July 2012