Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: WW v R [2012] NSWCCA 165
• Hearing dates: 30 July 2012
• Decision date: 09 August 2012
• Before: Hoeben JA; at [1]; Johnson J; at [92]; Button J; at [93]

Decision

Leave to appeal is granted.

The appeal is dismissed.

• Catchwords: CRIMINAL LAW - sentence appeal - driving in a manner dangerous occasioning the death of a person and failing to stop after occasioning the death of a person - whether open to sentencing judge to make findings of fact adverse to offender - whether contents of psychological report properly taken into account - whether offender's youth properly taken into account - whether guideline judgment in Regina v Whyte properly taken into account - whether sentences individually and in total manifestly excessive.
• Legislation Cited: Crimes Act 1900
• Cases Cited: Aoun v R [2011] NSWCCA 284; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28; Hedges v Regina [2011] NSWCCA 263; Hili v The Queen [2010] HCA 45; 242 CLR 520; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Preston v Regina [2011] NSWCCA 25; Regina v Errington [2005] NSWCCA 348; 147 A Crim R 553; R v AB [2011] NSWCCA 229; R v Gardiner [2004] NSWCCA 365; R v Khatter [2000] NSWCCA 32; R (Cth) v Petroulias (No 36) [2008] NSWSC 626; R v Scott [1999] NSWCCA 233; R v Shumack [2008] NSWCCA 313; 191 A Crim R 513; Regina v Whyte [2002] NSWCCA 343; 33 NSWLR 202; R v Woodland [2007] NSWCCA 29; Regina v Berg [2004] NSWCCA 300; TG v Regina [2010] NSWCCA 28
• Category: Principal judgment
• Parties: WW - Applicant; Regina - Respondent Crown
• Representation: Counsel: Mr S Odgers SC - Applicant; Ms J Girdham - Respondent Crown; Solicitors:Legal Aid of NSW - Applicant; S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown
• File Number(s): 2009/230937

Decision under appeal

• Date of Decision: 2011-04-19 00:00:00
• Before: Conlon DCJ
• File Number(s): 2009/230937

Judgment

1 HOEBEN JA:

Offences and sentence

The applicant was charged with two counts.

(a)On 17 October 2009 driving in a manner dangerous occasioning the death of Jason Stortz, contrary to s 52A(1)(c) Crimes Act 1900 for which the maximum sentence is imprisonment for 10 years.

(b)On 17 October 2009 failing to stop after occasioning the death of Jason Stortz, contrary to s 52AB(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years.

2 The trial with respect to those counts was fixed for hearing before Conlon DCJ and a jury on 9 February 2011. Before the trial commenced, the applicant entered a plea of guilty to the second count but not guilty in respect of the first. The trial then proceeded in relation to the first count. On 23 February 2011 the jury returned a verdict of guilty in respect of the first count.

3 On 19 April 2011 the applicant was sentenced as follows: In respect of the second count (failing to stop) he was sentenced to a fixed term of imprisonment of 2 years and 9 months, commencing 1 January 2011. On the first count the applicant was sentenced to imprisonment with a non-parole period of 4 years, commencing 1 January 2012 and expiring 31 December 2015, with a balance of term of 3 years expiring 31 December 2018. The overall sentence was a non-parole period of 5 years, with a balance of term of 3 years. His Honour also imposed a licence disqualification of 6 years commencing 19 April 2011.

4 The applicant seeks leave to appeal from those sentences. There are eight grounds of appeal.

Ground of Appeal 1 - The sentencing judge erred in finding beyond reasonable doubt that the collision was causally connected to the applicant sending a text message on his phone.

Ground of Appeal 2 - The sentencing judge erred in not finding that the offender's ADHD contributed to the commission of the offences in a material way.

Ground of Appeal 3 - The sentencing judge erred in failing to take into account the offender's ADHD in relation to his likely experience of imprisonment.

Ground of Appeal 4 - The sentencing judge erred in the way that the offender's youth was taken into account.

Ground of Appeal 5 - The sentencing judge erred in failing to give proper consideration to the applicable sentencing guideline in respect of the offence of culpable driving causing death.

Ground of Appeal 6 - The sentence in respect of the offence of culpable driving causing death is manifestly excessive.

Ground of Appeal 7 - The sentence in respect of the offence of fail to stop is manifestly excessive.

Ground of Appeal 8 - The overall sentence is manifestly excessive.

Background

5 On the morning of 17 October 2009 Jason Stortz (the deceased) set off from his home in Kiama riding a new Pinarello bicycle. He was an experienced triathlete and had competed in the Port Macquarie Ironman Triathlon in 2006, 2007 and 2008. Ironman events involve a 3.8 km swim, a 100 km bike ride and a full marathon (a 42 km run). The deceased had been in training for a half Ironman event, scheduled for early November and he intended to compete in 2010 Port Macquarie Ironman.

6 On this morning, he was undertaking a time trial with the intention of riding to Berkeley and then undertaking a return journey. Jamie Williams was a training partner and gave evidence that this was a usual ride and would take him through Albion Park, onto Calderwood Road and onto Marshall Mount Road (the collision scene).

7 On that same morning, Alan Onions, another triathlete, was also out on a training ride and when travelling south, saw the deceased cycling towards him on Calderwood Road. When near the Illawarra Christian School, he stopped and had a conversation with the deceased about their training and what they were doing that morning. He believed that they parted company at about 8.45am.

8 A very short time after this, Peter Mullen, also a triathlete, saw the deceased riding towards him on Calderwood Road. He slowed down and they exchanged a few words, with the deceased telling him that he was heading to Berkeley.

9 Shortly thereafter, the deceased was cycling in a northerly direction along Marshall Mount Road. The applicant was travelling south on that same road, towards Albion Park, having picked up a friend, Katie Williams, from her home in Dapto. He was driving his Ford Falcon sedan when he came into collision with the deceased killing him instantly. At the collision scene, Marshall Mount Road was a straight stretch of rural roadway, with clear unobstructed vision in both directions for hundreds of metres (up to 800 metres). The exhibited photographs make that clear and the nature of the unobstructed vision was confirmed when the Court visited the scene of the accident during the trial.

10 It was a clear sunny day with excellent visibility. Marshall Mount Road had an 80 kilometre speed limit.

11 Telephone records indicated that the applicant sent a text message at 8.53am to Katie Williams, telling her that he was at the front of her home. The distance from that location to the collision scene was about 4.6 kilometres. Telephone records indicated that the applicant sent a text message to Adam McKenna at 8.58am. At 9.02am a text message was sent from the applicant's telephone to his mother. This was at a time following the collision.

12 Although the applicant was aware that he had collided virtually head on with the cyclist, he did not stop but continued in a southerly direction along Marshall Mount Road. This was despite pleas from Ms Williams to stop. The evidence was that following the accident, the applicant was driving at speed and erratically (there was no evidence of erratic driving prior to the collision).

13 Mr Robert Downs, a farmer, was driving in a northerly direction and when near the entrance gate to "Magella Farm" (1.4 kilometres south of the collision scene) he saw the offender's vehicle coming towards him around a bend. He said:

"He oversteered, he came back off the road and he was sort of half on the road and half on the grass and I sort of saw that, you know, like he accelerated and he straightened up and I was more or less watching to get out of the road a bit. I looked in the rear vision mirror then I seen he got back onto the tar."

14 The next person to see the applicant's car was Jarrod Howarth, another cyclist, who was also travelling north. He said:

"I could hear a car approaching from the opposite direction and then I saw the car and I noticed that the car was driving very fast for this section of road, so I pulled myself off the side of the road to let the car get past me, sort of ... It travelled past me at quite a high speed for that area of the road and as it went past I noticed it had a smashed window screen .... and then waited 'til it had gone past me and off into the distance and then I started to cycle again."

15 Mr Downs brought his vehicle to a stop when he came upon the collision scene. He observed various parts of the bike and also noticed three bike riders cycling towards him about 400 metres ahead. He then saw something in his mirror and he reversed back to where he observed the deceased on the western grass verge. He got out of his ute and he walked to the deceased. Three bike riders then arrived, got off their bikes and walked over to Mr Downs, who was then at the back of his ute. They had a conversation with him and he pointed out the deceased on the grass verge. After having a close look, one of the riders asked Mr Downs if he had called an ambulance. Mr Downs said he had not. Mr Thomas then obtained a mobile telephone from one of the cyclists and called 000. That call was made at 9.04.28.

16 Meanwhile the applicant drove his car a distance of 7.2 km south to Mellows Road where he drove it into a tree.

17 Telephone records show the applicant receiving the call from his mother at 9.04.14 which lasted 42 seconds, concluding at 9.04.56. He then received a further call from his mother at 9.06.58 (1 minute 54 duration), from his father at 9.09.03 (43 seconds) and a 000 call was made by the applicant at 9.11.21.

18 In that 000 call he said: "Just fuckin' hit someone in a car, I've got no licence and I think I'm fucken going to gaol." When the operator asked him why he was going to gaol he said "Because the cunt's dead, I think he's dead, I took off, I freaked and took off".

19 After further telephone calls, one being from his father at 9.19.45 (1 minute 52 duration) the applicant was collected and driven to the intersection (Yallah Road) south of the accident scene. There he was placed under arrest by police and said: "The bike was in the middle of the road and I hit him". He declined to be interviewed.

20 The following two conversations were recorded while the applicant was in a detention centre on remand. On 19 October 2009 his mother asked "Where did it happen, was it on the straight?" to which the applicant replied:

"It was on the straight, I don't know how it happened, like it's definitely got to be fate for the poor bloke because honestly all of a sudden he was just there, I couldn't even see him".

21 On 3 November 2009 he said to his father:

"I wasn't speeding, they can't, how can they tell if I was speeding. They've already got one thing wrong, they think that I hit from behind, from behind, that's wrong. I know for a fact that is wrong because I seen his face at the last second before he hit like, like a metre in front of my car, that's why I swerved and tried to avoid it but like he was, like I would have hit him dead centre but I moved, like because I swerved, I hit him on the, I hit on the edge".

22 The passenger, Ms Williams, was not able to assist as to how the collision occurred. The reason for this was that she was concentrating on her own mobile telephone throughout the trip. She said that while she was logged onto "Myspace", she was actually playing songs from "My Music". She was not observing the road ahead. She said:

"I was looking down at my phone when I felt the car swerve and I heard a bang and then the glass smash ... I turned around and looked back and I just saw the bike".

23 Ms Williams acknowledged that the applicant had his telephone in the car. When asked "Do you know whether he did use it at all?" she responded "Not sure but I didn't see him". She said that she was the one who messaged the applicant's mother (at 9.02). She said that his telephone was near the handbrake. When his mother called it was the applicant who spoke with her and he did this while driving.

24 There was evidence from the Police Crash Investigation Unit and from an expert in motor accident reconstruction, Mr Grant Johnston, that the tyre marks on the road and the debris from the car and the bike were consistent with the car and the bike colliding at an angle and with the point of impact being on the incorrect side of the road from the applicant's point of view by at least three-quarters of a metre across the centre line. Mr Johnston estimated that the minimum time that the deceased would have been capable of being observed by the applicant at the accident site was between 6 and 9 seconds.

Sentence proceedings in the District Court

25 His Honour made further findings of fact in the sentence proceedings. His Honour was satisfied beyond reasonable doubt that the applicant was not paying attention to the road ahead. His Honour said:

"He caused his vehicle to move to the incorrect side of the roadway and impact with Mr Stortz's cycle. Those recorded conversations in the detention centre are, in my view, unequivocal. He only saw him at the last second before he hit about a metre in front of his car. He said he swerved and as a result didn't "hit me dead centre" but hit him "on the edge".

The evidence of Senior Constable Warren and Mr Grant Johnston satisfied the court beyond reasonable doubt that the front right hand side of the offender's vehicle impacted Mr Stortz's cycle and it did so at an angle. Had the offender been observing the road ahead he would have seen Mr Stortz and would have been able to manage his vehicle so it remained on its correct side of the roadway and not stray to the incorrect side.

Was there any evidence to indicate what had diverted the offender's attention from the road ahead? Ms Williams was totally focused on her own phone. A text message was sent from the offender's phone at 8.58am to Adam McKenna's phone. Adam McKenna acknowledged that he had received telephone calls from the offender earlier that morning. He could not specifically recall what was said in those conversations but generally it was about the offender picking up Katie Williams and driving to Adam McKenna's place at Albion Park. Adam McKenna could not recall what was in the text message at 8.58am.

Evidence at trial indicated that records in respect of text messages referred only to the minute at which they were sent. Accordingly, a text recorded at 8.58am could have been sent at any time between 8.58 and 8.58.59 seconds.

...

Ms Williams gave evidence that the offender messaged her at 8.53am "to come out the front". She said that she walked out the front and he "pulled up just as I came out the front". They then travelled to the scene.

Senior Constable Warren gave evidence that he drove from Ms Williams' address to the collision scene and it took 4 minutes and 40 seconds. He measured the distance as 4.6 kilometres. He drove at the relevant speed limit. He conceded if he had to stop at a traffic light along the way the journey would have taken about 5 minutes (I have also considered the evidence of Colin Wingrove on this issue).

I am satisfied on the evidence beyond reasonable doubt that when the offender was sending the text message to Adam McKenna at 8.58am he was driving his car south on Marshall Mount Road."

26 His Honour then analysed the movements of Mr Downs from when he first saw the applicant until driving to the scene of the accident and then the call being made to 000 at 9.04.28. His Honour took into account the evidence of Mr Thomas (a cyclist) and Ms Jervis (another cyclist) as to their movements to the accident scene.

27 His Honour concluded:

"Of course I have also considered the evidence of Mr Onions that he parted company with Mr Stortz at about 8.45am from the Illawarra Christian School. The distance from there to the collision site was 6.1 kilometres. Jamie Williams gave evidence that he attempted to replicate the ride and stated that the deceased would have ridden that stretch at about 32 to 33 kilometres per hour. Of course this can only be a guide but under those conditions Mr Stortz would have taken about 11 minutes to get to the collision scene. That provides further support for the probability of the collision occurring before 9am.

Accordingly I am satisfied beyond reasonable doubt that the only rational inference in the circumstances is that shortly before the collision the offender's attention was directed at sending a text message. After sending the text message the phone is obviously placed in the console and by the time that his attention then turns back to the roadway he has moved to the incorrect side of the road and collided with Mr Stortz."

28 In relation to moral culpability, his Honour referred to the observations of Simpson J in R v Khatter [2000] NSWCCA 32:

"Offences under s 52A 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."

29 His Honour referred to the guideline judgment in Regina v Whyte [2002] NSWCCA 343; 33 NSWLR 202. In relation to aggravating factors, his Honour noted that Regina v Errington [2005] NSWCCA 348; 147 A Crim R 553 made it clear that the aggravating factors in Whyte were not meant as a check list but as a guide. His Honour regarded those aggravating factors as "illustrative not definitive".

30 In relation to abandonment of responsibility, his Honour took into account that the applicant was never licensed to drive and had previously been dealt with by the courts in respect of two charges of driving while unlicensed. His Honour took into account on that issue the applicant's failure to stop after the collision. His Honour was satisfied that this failure to stop arose from the combination of his consciousness of wrongdoing and his panic. On those issues, his Honour referred specifically to R v Woodland [2007] NSWCCA 29 at [39] and R v Shumack [2008] NSWCCA 313; 191 A Crim R 513 at [2] - [4].

31 His Honour concluded:

"As a consequence of my abovementioned findings I do not regard the collision occurred as a result of a momentary lapse of attention. A clear objective indicator of abandonment of responsibility must relate to a circumstance where a driver deliberately uses a phone to text message or otherwise use in a way that causes him to lose control of the vehicle so that the driver is totally oblivious to the fact that his car has moved onto the incorrect side of the road. Accordingly, he has abandoned his responsibility to other users of the roadway and his moral culpability is high." (ROS 10.2)

32 With respect to the s 52AB(1) offence, his Honour quoted from the Second Reading Speech of September 2005 where it was said:

"Failure to stop and assist in serious accidents should invite significant punishment." (ROS 10.9)

33 His Honour was satisfied from what the applicant told his father, from the severe damage to the windscreen directly in front of his face and from the evidence of the expert Mr Grant Johnston as to the trajectory of the deceased's body on impact and the presence of body matter inside in the car, that the applicant was well aware that he had seriously injured the cyclist. His Honour noted that despite the pleas of Ms Williams and his mother, he continued driving to Mellows Road. His Honour said:

"When the 000 call was eventually made it appeared his concern was predominantly for himself." (ROS 11.4)

His Honour concluded that objectively this was a most serious offence.

34 His Honour then considered the applicant's subjective case. At the time of sentencing the applicant was 18. He was 17 and 3 months when the accident occurred. He would turn 19 in three months. His Children's Court record showed continuous offending since early 2007. The offences included offensive behaviour, offensive language, three counts of enter premises without lawful excuse, two counts of remain on prescribed premises without lawful excuse and one count of intimidation of school staff. He had received good behaviour bonds in relation to those matters. While on those bonds, he had committed a common assault for which he received another bond. While on that bond in January 2008, he had committed a robbery and was placed on probation for 12 months. Two months later while on probation, he committed an aggravated break and enter and commit a serious indictable offence in company and received a further probation order of 12 months. Again while on probation, he committed offences of taking and driving a conveyance without the consent of the owner. There were also the two offences of driving while unlicensed, to which reference has already been made.

35 His Honour referred to the pre-sentence report. This showed the following matters. He had a supportive and uneventful childhood until his mid teenage years. His behaviour then deteriorated and he was expelled from school for being disruptive. He had been using cannabis from the age of 14 until approximately four weeks before the accident. He regularly consumed alcohol, but denied that he had a problem. In discussions with the Probation Officer, the applicant expressed his sorrow for the victim and the victim's family. This evidence of remorse was supported by the evidence of his mother.

36 A report from Mr Mahoney, a psychologist, was placed before the court. The applicant informed him that he had been diagnosed with ADHD while in primary school. He said that he had been medicated on Ritalin but had ceased that medication some time around year 8. Having reviewed the applicant's medical records, the psychologist concluded that he had suffered from both ADHD and oppositional defiance disorder (ODD) from a young age.

37 As a result of tests administered by him, the psychologist concluded that it was "highly probable" that the applicant was suffering from ODD. He then said:

"It is extremely difficult to determine to what extent Mr W's ADHD may have caused or contributed to either his inattention at the time of the accident or his leaving the scene of the accident."

38 His Honour was not prepared to find that the ADHD had been affecting the applicant at the time of the accident. In that regard, his Honour referred to the evidence of the applicant's mother to the effect that in the four weeks leading up to the accident, he had been behaving very well, had been drug free and had obtained employment with a rigging company. His employer, who had known the family for many years, confirmed the evidence of the applicant's mother to the effect that to his observation the applicant had matured considerably.

39 His Honour concluded:

"I cannot be satisfied on the balance of probabilities that his ADHD contributed to the commission of these crimes in any material way." (ROS 15.5)

40 In relation to the applicant's youth, his Honour determined that the usual considerations that punishment and general deterrence might be given less weight in favour of rehabilitation, did not have the same application when sentencing for offences that were regularly committed by young persons. His Honour said:

"Inexperience and immaturity in persons aged 17 years and over cannot operate as mitigating factors where the offender commits grave driving offences with fatal consequences (TG v R [2010] NSWCCA 28 per Howie J at [33])."

In the circumstances of this case his Honour regarded "general deterrence as very important and in fact a "dominant" factor."

41 Because the applicant had pleaded guilty, albeit somewhat late to the

s 52AB(1) offence, his Honour assessed the utilitarian value of the plea at 10 percent.

42 His Honour was satisfied that the applicant had demonstrated some remorse and that he had good prospects of rehabilitation. Nevertheless, his Honour was satisfied that nothing other than a custodial sentence was appropriate. His Honour said:

"The message needs to be delivered that when a driver causes his car to pass onto the incorrect side of the road causing a head on collision resulting in death, it is not merely bad luck, it is criminal conduct that should attract significant punishment. It is an all too common occurrence that innocent people die at the hands of drivers who do not keep their vehicles on their side of the roadway." (ROS 16.9)

Ground 1 - The sentencing judge erred in finding beyond reasonable doubt that the collision was causally connected to the applicant sending a text message on his phone.

43 The applicant submitted that on the evidence looked at as a whole, it was not reasonably open to his Honour to be satisfied beyond a reasonable doubt that there was a connection between the making of the text message at 8.58am and the collision.

44 The applicant supported this submission by reference to the calculations which the judge had used, starting with the applicant's text to Ms Williams that he was outside her house at 8.53am and concluding with Ms Williams' use of the telephone at 9.02am. The applicant referred to the imprecision and lack of detail underlying those figures. In particular, it was not known how long it took Ms Williams to move from her house to the car and when it was that the car actually left her house. Similar criticisms were made of the estimates of time and movement by the police officer who retraced the applicant's route to the accident scene and the movements of Mr Thomas, Mr Downs and Mr Onions. The applicant's submission was that the number of unknowns and lack of precision in those calculations meant that they could not support a finding beyond reasonable doubt.

45 The applicant submitted that in its submissions at trial, the Crown had not only put to the jury the possibility that the applicant had been texting at or about the time of the collision, but that he may have been distracted by his girlfriend. The applicant submitted that this was an equally likely hypothesis.

46 The approach which this Court should adopt to challenges to fact finding of this kind was examined in Aoun v R [2011] NSWCCA 284. Whichever approach is followed, the task confronting the applicant is a difficult one. There Basten JA said:

"5The present case involved findings by way of inference drawn from a statement of facts, agreed between the parties. No relevant oral evidence was adduced.

6On the basis of the conversation between the Applicant and the undercover operative, occurring in circumstances otherwise revealed by the agreed facts, the sentencing judge inferred, beyond reasonable doubt, that the Applicant had access to and was in a position to supply the ecstasy tablets which he had offered to supply.

7It is not in doubt that such a finding was open to the trial judge. Nor was it in doubt that the trial judge fully understood that such a finding, being adverse to the interests of the offender, could only be made if the facts were established beyond reasonable doubt: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ). His Honour used that language and, being an experienced trial judge, undoubtedly understood what was required.

8At times the Applicant's submissions appeared to adopt the proposition that if an alternative reasonable inference were open, the finding could not stand. That statement, however, elides the distinction between the assessment made by the sentencing judge and that which might be made by this Court, if it were to form and act upon its own view of the agreed facts. If his Honour were not bound to accept the alternative inference, but was entitled to dismiss it as not raising a reasonable doubt in his mind, he was entitled to reach the impugned finding. The boundary between a difference of opinion and a finding of error may not be a bright line, but it involves a distinction which must be respected."

47 Johnson J, with whom Adams J agreed, said:

"33Ground 1 seeks to challenge a finding made by the sentencing Judge. This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108.

34It is important to keep in mind the limits of the jurisdiction of this Court where a finding of a first-instance Judge is challenged on appeal. A frequently cited and applied statement of principle is that of Hunt J (Carruthers and Wood JJ agreeing) in R v O'Donoghue at 401:

"It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this court is not by way of re-hearing. An appeal which is not by way of re-hearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice: see Regina v Merritt & Roso (1985) 19 A Crim R 360 at 372-373; Regina v Kyriakou (1987) 29 A Crim R 50 at 60-61."

35This statement has been applied in a multitude of cases, including sentence appeals where a finding of fact is challenged on appeal: R v Khouzame [2000] NSWCCA 505 at [38]-[41]; R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [60]-[61]; Kardoulias v R [2005] NSWCCA 456; 159 A Crim R 252 at 265 [56]; Camm v R [2009] NSWCCA 141 at [68]-[70]; SBF v R [2009] NSWCCA 231; 198 A Crim R 219 at 335 [75]."

48 The submissions made by the applicant concerning the lack of detail and therefore lack of precision in the various estimates made by his Honour concerning the timing of movements of various people and in particular, the movement of the applicant between Ms Williams' house and the accident site, have some force. However, they misunderstand the purpose for which his Honour was using those estimates and they refer to only part of the evidence on which his Honour relied in making his findings.

49 It is clear from the calculations to which his Honour referred that a reasonable estimate of the movements of the persons to which his Honour referred, in particular the applicant, are consistent with the accident occurring somewhere along an 8.58 - 8.59am timeline. As his Honour appreciated, that is as precise as the figures and estimates would allow. It is when those estimates are taken with the other persuasive evidence that it becomes clear that his Honour's finding was open to him.

50 The other evidence comprised the findings of the Crash Investigation Unit and the engineering expert, Mr Johnston. Their evidence made it clear that the point of impact was on the applicant's incorrect side of the road. There was evidence from the applicant's statements to other persons and from Ms Williams that there was a sudden swerve by the applicant's car immediately before impact. Even so, impact occurred at an angle on the incorrect side of the road.

51 Consistent with the expert opinion and those statements, it was open to his Honour to conclude that immediately before the accident, the applicant's vehicle was on its incorrect side of the road and that at the last moment the applicant became aware of that fact and swerved to bring the vehicle back onto its correct side of the road.

52 Given the 800 metres of open road and clear observation available to the applicant, some explanation more than momentary inattention (covering the 6 - 9 second minimum timeframe) needed to be identified which would allow his vehicle to have moved substantially onto its incorrect side of the road, requiring a sharp swerve to correct the situation. The only reasonable explanation was that arrived at by his Honour, i.e. that it was part of the texting process - either the texting itself and/or replacing the telephone afterwards - which had allowed the vehicle to substantially stray onto its incorrect side of the road.

53 There was a compelling inference that it was this sequence of events which caused the accident and it was well open to his Honour to make the finding which he did beyond reasonable doubt. The inference was fully consistent with the post accident comments of the applicant and there was no evidence to contrary effect.

54 This ground of appeal has not been made out.

Ground 2 - The sentencing judge erred in not finding that the offender's ADHD contributed to the commission of the offences in a material way.

Ground 3 - The sentencing judge erred in failing to take into account the offender's ADHD in relation to his likely experience of imprisonment.

55 The applicant submitted that his Honour erred in relation to his treatment of the ADHD condition when he said:

"Little information has been provided as to whether the offender continued to be affected by the said disorder at around the time of the offence". (ROS 14.8)

56 The applicant submitted that there was no question that he was diagnosed with ADHD at the age of six, and that when tested in April 2011 it was "highly probable that he continues to suffer from ADHD". Mr Mahoney described some of the symptoms of ADHD which was "characterised by the co-existence of attentional problems impulsivity and hyperactivity". Having reviewed the applicant's medical history, Mr Mahoney expressed the opinion that it was likely that his ADHD affected him to some degree at the time of the offence, particularly around the area of inattention on the road. The applicant submitted that his Honour erred when he failed to take account of that opinion of Mr Mahoney.

57 The applicant submitted that his Honour erred in failing to have any regard to the opinion of Mr Mahoney that "individuals with ADHD may have particular difficulty in conforming to the expectations of this environment such as attending to instructions on taking on tasks that require extended periods of attention". The applicant submitted that his Honour should have taken that opinion into account on the question of whether his experience of imprisonment would be more difficult than that of the general prison population. The applicant submitted that this was an important principle to be taken into account on sentencing. Its importance had been recently affirmed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

58 His Honour was entitled to treat the evidence of Mr Mahoney in the way in which he did. On that issue, the cautionary observation of Johnson J in R (Cth) v Petroulias (No 36) [2008] NSWSC 626 is pertinent. There his Honour said:

"164A number of psychologists gave oral evidence. In approaching their evidence, I keep in mind that it is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52."

59 An analysis of the report of Mr Mahoney indicates that he did cross that line. Having reviewed the applicant's medical history, Mr Mahoney said:

"In relation to the offending behaviour, it is extremely difficult to determine to what extent Mr W's ADHD may have caused or contributed to either his inattention at the time of the accident or his leaving the scene of the accident. In part this is also due to the fact that Mr W has significant difficulty remembering details of the accident due to his own trauma around the event. What is clear is that he was not receiving treatment (medication) at the time of the offending behaviour. It is also clear that throughout his life (including at the time of the offences) he has had general problems with inattention and impulsivity. Therefore it is likely that Mr W's ADHD condition affected him to some degree at the time of the offence, particularly around the area of inattention on the road. There is little evidence to suggest he would have intended to have caused harm to the victim. It is highly probable that his impulsiveness (also a factor in ADHD) contributed to his rash decision of leaving the scene of the accident immediately after it occurred.

With regard to commenting on the impact of a custodial sentence on Mr W given his history of ADHD, there is some research about the vulnerabilities of people with ADHD in the prison system. In detention, individuals with ADHD may have particular difficulty in conforming to the expectations of this environment, such as attending to instructions or taking on tasks that require extended periods of attention. People with ADHD symptoms who are incarcerated have been found to be more disruptive (verbal aggression, damage to property) than a non-ADHD control group."

Of significance is a further observation by Mr Mahoney that despite his ADHD "he does not suffer from a serious mental illness".

60 It was open to Mr Mahoney to test the applicant for indications that at the time of testing he was suffering from ADHD. He could describe the characteristics of the condition of ADHD. What he could not do as a psychologist was to express an opinion as to whether and to what extent the ADHD condition affected the applicant at the time of the offence. Counsel for the applicant, in the sentencing proceedings, could make a submission to his Honour linking the test results and the characteristics which can be experienced by somebody with ADHD. His Honour could accept that submission but was not obliged to do so.

61 In this case, his Honour placed greater weight as he was entitled to do, on the observations of the applicant's mother and Mr Chesher that the applicant's demeanour and behaviour in the four weeks before the accident indicated a significant improvement in his approach to life and maturity.

62 In relation to Mr Mahoney's evidence concerning the impact of a custodial sentence on a person with ADHD, Mr Mahoney was entitled to bring to his Honour's attention some research on that issue. That research indicated that "individuals with ADHD may have particular difficulty in certain aspects of their imprisonment". He could not say and did not say that this would affect the applicant in such a way. There was no evidence to that effect.

63 No error has been identified in how his Honour dealt with the evidence of Mr Mahoney. These grounds of appeal have not been made out.

Ground 4 - The sentencing judge erred in the way that the offender's youth was taken into account.

Ground 5 - The sentencing judge erred in failing to give proper consideration to the applicable sentencing guideline in respect of the offence of culpable driving causing death.

Ground 6 - The sentence in respect of the offence of culpable driving causing death is manifestly excessive.

Ground 7 - The sentence in respect of the offence of fail to stop is manifestly excessive.

Ground 8 - The overall sentence is manifestly excessive.

64 These Grounds of Appeal raise essentially the same issue and are dealt with together.

65 The applicant accepted that when sentencing for driving offences, because of the tendency of young drivers to drive dangerously and thus the greater prevalence of driving offences committed by young persons, general deterrence might be regarded as a "prominent factor". He submitted, however, that his Honour erred in this case when he said that he regarded general deterrence as "a dominant factor". The applicant submitted that "prominent" was not the same as "dominant" and that his Honour erred in substantially subordinating considerations relating to his youth to the concept of general deterrence. The applicant submitted that his youth and the need to foster rehabilitation had to be given appropriate weight. In this case his Honour's finding was that the applicant had "good prospects of rehabilitation".

66 The applicant submitted that although he referred to the guideline judgment in Whyte, his Honour had failed to properly apply it. A consideration of the "typical case" referred to by Spigelman CJ at [204] would have shown that the applicant had most of those characteristics. The applicant submitted that by reference to the aggravating factors referred to by Spigelman CJ at [216], it was clear that few applied to him. That being so, the marked contrast between the sentence imposed by his Honour of 7 years for the first count when the guideline referred to 3 years indicated that his Honour had failed to take the guideline judgment properly into account.

67 In relation to manifest excess, the applicant referred to three decisions Hedges v Regina [2011] NSWCCA 263; Preston v Regina [2011] NSWCCA 25 and Regina v Errington. The applicant submitted that those three cases involved facts very similar to this case, but the sentences imposed were considerably less, i.e. 2 ½ years - 3 years. In Hedges a 19 year old driver had failed to pay attention to oncoming traffic and had deliberately crossed over double lines, resulting in a head on collision causing death. In Preston a 50 year old with a good driving record had deliberately driven through a 'give way' sign in circumstances of limited visibility resulting in a collision and death. In Errington a 49 year old truck driver had failed to give proper attention to a red light signal and collided with cars causing death. In Hedges and Preston there were pleas of not guilty and in Errington there was a plea of guilty.

68 The applicant submitted that in relation to the fail to stop offence, a fixed term of 2 years and 9 months was equivalent to a non-parole period so that the head sentence would have been 3 years and 8 months. He submitted that such a sentence was manifestly excessive, bearing in mind the maximum penalty of 10 years and the guilty plea. The applicant also relied upon the fact that he eventually made a 000 call and that even if he had stopped, he could have done nothing for the deceased.

69 The distinction sought to be made by the applicant between the words "dominant" and "prominent" is a matter of semantics, rather than principle. Whichever word is used, the effect of what his Honour did is clear, i.e. that in relation to this offence because of the prevalence of young offenders, general deterrence is to be regarded as more important than the need for rehabilitation. In R v Scott [1999] NSWCCA 233 Levine J (with whom Smart AJ agreed) referred to the importance of general deterrence in the following terms:

"17 His Honour paid particular regard to the consideration which is of paramount importance in a case in respect of this offence, namely general deterrence. Offences under section 52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished."

70 Although this was a decision of the Court with a bench of two judges, there is nothing contrary to principle in that statement, which was applied and adopted by a three judge Court in R v AB [2011] NSWCCA 229 at [101]..

71 In TG v Regina [2010] NSWCCA 28 Howie J, with whom McClellan CJ at CL and Harrison J agreed, observed to similar effect:

"33 Thirdly, evidence from a psychiatrist as to the immaturity of young males of the age of the applicant was irrelevant. If a young male is old enough to be licensed to drive a motor vehicle, he is to be assumed to be mature enough to comply with its conditions and the traffic rules. In SBF v R [2009] NSWCCA 231; 53 MVR 438 at 151 Johnson J stated:

"[151] Ms Francis referred in submissions to the Applicant "having little appreciation of his own mortality" (T5.35, 22 June 2009). The Applicant's counsel in the District Court had submitted that "it is also a fact of life that people at this tender age tend to - their brains tend to not allow them to deal with the responsibility that they sometimes demand so vocally". In a similar vein, the sentencing Judge in the Victorian County Court in Neethling at [51] had observed that the offender "like many young men ... saw [himself] as 'bullet proof'." The fact that young men (in particular) may have such perceptions is a significant reason for general deterrence to be a prominent factor in cases such as these. Inexperience and immaturity, in persons aged 17 years and over, cannot operate as mitigating factors where the offender commits grave driving offences, with fatal consequences, as exemplified by Neethling and this case."

The reference to "Neethling" was a reference DPP v Neethling [2009] VSCA 116; (2009) 52 MVR 422."

72 In any event, his Honour did not ignore rehabilitation but made specific findings which were favourable to the applicant in relation to it. A matter to which his Honour did not refer but which was relevant was specific deterrence. Even though the applicant appeared to have improved his behaviour somewhat in the weeks leading up to the accident, his poor criminal record and persistent driving while unlicensed made that principle relevant and applicable.

73 Accordingly, his Honour did not err in the way in which he took into account the applicant's youth.

74 There was no error in his Honour's approach to Whyte to which he specifically referred. In Regina v Berg [2004] NSWCCA 300 Howie J said:

"21 But the factors in the list set out in Whyte, as indicative of a typical case, do not operate as a checklist, the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed. They merely describe the typical case and were not intended to circumscribe the sentencing judge's discretion in the way the applicant suggests. If the applicant does not fall within a typical case for whatever reason, then the guideline is of less assistance than it might otherwise have been. The applicant fell outside the typical case of an offender to be sentenced for dangerous driving for a number of reasons and, therefore, the guideline had less influence upon the exercise of his Honour's sentencing discretion."

75 In this case, the applicant did not conform to the "typical case" in three respects. He was not of good character with no or limited prior convictions and there was no plea of guilty. In relation to genuine remorse, his Honour found some remorse but that finding was not unqualified.

76 It should also be noted that the Court in Whyte was careful not to be unduly prescriptive in setting out a range of sentences for a "typical case". The Court made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case below which a sentence would not generally be appropriate. The Court said:

"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.""

77 As was made clear in Regina v Errington, the critical consideration to emerge from Whyte is the assessment of moral culpability, ranging from low (momentary inattention) to high (an abandonment of responsibility). As his Honour noted in his reference to R v Khatter, there is a continuum between those two extremes along which a court has to make an assessment of moral culpability. His Honour assessed the moral culpability of the applicant in this case as high.

78 In oral submissions that assessment by his Honour was criticised. The applicant submitted that texting was not to be considered in the same way as excessive speed, or driving when one's ability to control a car had been substantially affected by drugs or alcohol. It is clear that opinions might differ on such matters. As Spigelman CJ said in Whyte:

"220 I said [at 231F] 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." (the reference to 231F is to R v Jurisic [1998] 45 NSWLR 209).

79 In assessing moral culpability, his Honour appropriately took into account that the applicant was never licensed to drive, had been convicted on two occasions of driving while unlicensed and yet shortly before the accident had purchased the car which was involved. The applicant's failure to stop was relevant, although its importance was limited given that it formed the basis of the second offence (Shumack v R [2008] NSWCCA 311; 191 A Crim R 513 at [32] - [34]).

80 His Honour considered that the deliberate use of a telephone to text a message so that the driver was totally oblivious to the fact that the car had moved onto the incorrect side of the road and had thereby lost control of the car, was an important factor in his assessment of the moral culpability of the applicant as high. That was a conclusion well open to his Honour.

81 Contrary to the oral submissions of the applicant, an activity which so occupies the attention of a driver that he does not or cannot observe the road for at least six - nine seconds and allows his vehicle to veer onto the wrong side of the road is tantamount to driving with one's eyes closed. It is an activity deliberately undertaken and it is an activity which is highly dangerous. The fact that many young people misguidedly engage in such an activity while driving does not reduce the moral culpability of the conduct. On the contrary, as his Honour appreciated, it is a further justification for why general deterrence was so important in this matter.

82 It follows that the ground of appeal asserting a failure on his Honour's part to follow Whyte has not been made out.

83 The imposition of a fixed term of 2 years and 9 months with just 12 months to serve after an adjustment for concurrency and after a 10 percent discount for his late plea has not been demonstrated to be wrong or plainly unjust.

84 His Honour accepted that there was an element of panic in the applicant's decision to continue driving. There was, however, as his Honour also appreciated, the motivation of avoiding detection. It required a considerable amount of intervention by his girlfriend, his mother and his father before the applicant was prepared to accept some responsibility for what he had done.

85 The applicant's responsibility for failing to stop after the accident is not mitigated because in practical terms there was little he could have done for the deceased. The applicant did not know that for certain. All that he knew was that there had been a very serious collision and that at the very least, the deceased would have been seriously injured. As the second reading speech to which his Honour referred made clear the focus of the offence is to ensure that assistance for victims of serious motor vehicle impacts is provided as soon as possible. Such assistance may save life, minimise injury, improve the prospect of recovery and relevantly in this instance, preserve the dignity of the deceased.

86 Ground of Appeal 7 has not been made out.

87 The applicant's submission that the sentence for the s 52A(1)(c) offence is manifestly excessive is based on the three cases to which the Court's attention was drawn and on the general proposition that, by reference to statistics generally, this was one of the heaviest sentences imposed for such an offence.

88 Little assistance is given by a close examination of the facts in the three decisions relied upon by the applicant. As those decisions themselves make clear, each was very much dependent upon its own facts. In this case, his Honour examined the precise nature of the offending in considerable detail. His Honour concluded, as he was entitled to do, that this was a particularly serious example of such an offence. In contrast to the somewhat dismissive way in which texting while driving was dealt with in submissions, his Honour regarded that activity as involving a serious dereliction of a driver's responsibility to other road users. Not only was it open to his Honour to make such an assessment of the objective seriousness of the circumstances surrounding this accident but he was justified in doing so. The moral culpability of the applicant was as his Honour found, high. His Honour's focus was on the actual facts of the case before him, not on statistics or the facts on which decisions in other cases were based.

89 The limited function of statistics was reaffirmed by the High Court in Hili v The Queen [2010] HCA 45; 242 CLR 520. The Court noted that "care must be taken however in using what has been in other cases" [53]. The Court approved the observations of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28.

"54In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said:

"Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts."

But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence". When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned"."

90 With that guidance in mind and by reference to the particular facts of this case, the applicant has not demonstrated that the sentence of 7 years with a non-parole period of 4 years with respect to the s 52A(1)(c) offence was manifestly excessive. It follows that Grounds of Appeal 6 and 8 have not been made out.

91 The orders which I propose are:

(1)Leave to appeal is granted.

(2)The appeal is dismissed.

92 JOHNSON J: I agree with Hoeben JA.

93 BUTTON J: I agree with Hoeben JA.

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Decision last updated: 09 August 2012