Citation: R v Davies [2000] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 4 April 2000
Judges: Sheller JA; Hulme J; Dowd J
Background
The appellant was convicted by a jury in the District Court of dangerous driving occasioning death, contrary to s 52A of the Crimes Act 1900. The incident occurred at a signalised intersection in Sylvania in October 1996, where a teenage pedestrian was struck and killed while crossing in a marked pedestrian crossing. She was thrown into the air by the impact and died as a result.
The appellant maintained throughout the trial that the traffic light facing him was green at the time of the collision. The jury rejected that account. Judge Patten DCJ sentenced the appellant to a minimum term of 18 months' imprisonment with an additional term of 18 months.
The appellant sought leave to appeal against both conviction and sentence, bringing the matter before the Court of Criminal Appeal.
Legal Issues
- Whether the jury's verdict of guilty was unreasonable having regard to the evidence, specifically whether it was a reasonable possibility that the traffic light facing the appellant was green at the time of the collision
- Whether the sentence imposed by the District Court was excessive, particularly in light of the sentencing guidelines established in R v Jurisic (1998) 45 NSWLR 209
- Whether the appellant's conduct fell within the category of "momentary inattention or misjudgment" that might justify a non-custodial sentence, or whether it attracted the aggravating features requiring a custodial term
Decision
Conviction appeal: The Court unanimously dismissed the appeal against conviction. Hulme J conducted a detailed analysis of the intersection layout, the traffic light sequencing, and the evidence of multiple witnesses. While there were discrepancies in the evidence, the Court found these were matters the jury was entitled to resolve by preferring some witnesses over others. The appellant's own account, given in his police interview, was plainly rejected by the jury, and that rejection was open on the evidence.
Sentence appeal: The Court granted leave to appeal against sentence. Hulme J considered the sentence to fall outside the appropriate range on the facts and proposed a reduction. Dowd J disagreed with the view that there existed a middle category of cases between "momentary inattention" and conduct carrying an aggravating factor, expressing agreement with Simpson and Kirby JJ in R v Pyritz that no such intermediate category was recognised under Jurisic. On Dowd J's analysis, the appellant's conduct clearly fell within the range requiring a custodial sentence.
The Court ultimately reduced the sentence, with the orders reflecting a minimum term of 12 months and an additional term of 12 months. Sheller JA agreed the conviction appeal should be dismissed and, for the reasons given by Dowd J, that leave to appeal against sentence should be granted but the appeal otherwise dismissed. The Court also addressed the disqualification period, replacing the original order with a 14-month disqualification from 27 August 1999.
The appellant had offered no contrition or remorse directly to the sentencing judge, and did not give evidence at trial or on sentence. The Court noted the sentencing judge appropriately drew on other evidence of remorse and took various mitigating factors into account. General deterrence was identified as a significant consideration in sentencing for offences under s 52A.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Sentence imposed by Patten DCJ on 27 August 1999 quashed
- In lieu thereof, the appellant sentenced to imprisonment for a minimum term of 12 months commencing 27 October 1999 and expiring 26 October 2000, and an additional term of 12 months commencing 27 October 2000 and expiring 26 October 2001
- Direction that the appellant be admitted to parole on 26 October 2001
- Disqualification from holding a licence under the Traffic Act for 14 months from 27 August 1999, in lieu of the period previously ordered
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that discrepancies in witness evidence at trial do not automatically render a jury's verdict unreasonable; it remains within the jury's province to prefer certain witnesses over others when resolving conflicting accounts.
- Under the Jurisic guidelines, a non-custodial sentence for dangerous driving causing death should be exceptional and almost invariably confined to cases of momentary inattention or misjudgment; driving through a red light at speed into a pedestrian crossing was found to fall well outside that category.
- Dowd J rejected the proposition that a middle ground exists between "momentary inattention" and conduct with an aggravating factor present to a material degree, affirming that Jurisic addresses all relevant cases without leaving an intermediate, ungoverned category.
- The absence of a guilty plea is a material consideration under the Jurisic framework: the indicated three-year custodial threshold below which exceptional cases may fall applies to cases involving a plea of guilty, making that threshold more significant where no plea was entered.
- General deterrence carries substantial weight in sentencing for offences under s 52A of the Crimes Act 1900, reflecting the legislature's intention to impose severe punishment for dangerous driving that causes death.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death)
- Traffic Act (NSW)
Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Pyritz (unreported, NSW Court of Criminal Appeal, 23 November 1998)
- M v The Queen (1994) 181 CLR 487
- House v The King (1936) 55 CLR 499
- R v Guilfoyle (1973) 57 Cr App R 549 (England and Wales)
- R v Boswell (1984) 79 Cr App R 277 (England and Wales)