Citation: Bailey v R [2001] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 14 February 2001
Judge(s): Wood CJ at CL, Dunford J, Carruthers AJ
Background
The appellant, Paul Wayne Bailey, was convicted in the District Court of dangerous driving causing death under s 52A(1)(c) of the Crimes Act 1900. The conviction arose from a 1995 collision in North Epping in which a motorcycle carrying Bailey and his friend David Rice struck and killed a pedestrian crossing the road. Rice died before the trial.
Two matters were contested at trial. First, whether Bailey or Rice was the driver of the motorcycle at the relevant time. Second, whether the manner of driving at the moment of impact was dangerous to other persons. Bailey claimed he was the pillion passenger and that Rice was driving.
Following conviction, Bailey received a sentence of imprisonment with a minimum term of three years and an additional term of one year. He sought leave to appeal against both the conviction and the sentence. The appeal against conviction was conducted without legal representation; the sentence application was argued by senior counsel.
Legal Issues
- Whether the trial judge's summing up was adequate, specifically whether it identified with sufficient precision the particular conduct alleged to constitute dangerous driving
- Whether the evidence was sufficient to establish that Bailey was the driver, not the pillion passenger
- Whether the sentence imposed was within the proper exercise of the sentencing discretion, having regard to the guideline judgment in R v Jurisic
- Whether the sentencing judge erred in finding no special circumstances existed to justify a longer additional term
Decision
Conviction appeal: The Court dismissed the conviction appeal. The eyewitness evidence strongly identified Bailey as the driver. One witness described the driver as wearing a black singlet and light-coloured shorts with a short "marine style" haircut and noted the driver addressed the passenger as "Dave." This matched Bailey's appearance and clothing on the day, while Rice's appearance matched the pillion passenger described by witnesses. The Court also addressed the adequacy of the summing up, noting the obligation on a trial judge to identify specifically the matters relied upon as constituting dangerous driving, rather than leaving the jury to speculate. On the facts, however, no miscarriage of justice resulted from the summing up as given.
Sentence appeal: Leave to appeal against sentence was granted by majority. The Court examined sentencing patterns before and after Jurisic, observing that while the proportion of offenders receiving custodial sentences had risen significantly post-Jurisic (from 33% to 65%), the evidence suggested sentencing courts may still not be giving sufficient weight to deterrence in dangerous driving causing death cases. Despite this concern, the Court found the head sentence was within the available sentencing discretion.
On the question of special circumstances, the sentencing judge had found none existed, noting that supervision would not amount to special circumstances. The Court of Criminal Appeal acknowledged it would have been open to find special circumstances given that only four and a half months separated the expiry of Bailey's Victorian sentences and the commencement of the current sentence. However, the Court found the sentencing judge had not erred in law by declining to make that finding, and the minimum term was within the proper exercise of discretion.
By majority, the Court granted leave to appeal against sentence but ultimately dismissed the appeal.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted (by majority)
- Sentence appeal dismissed; original sentence of minimum term of three years with additional term of one year confirmed
Key Takeaways
- A trial judge summing up in a dangerous driving causing death case must specifically identify the particular conduct alleged to constitute dangerous driving, rather than leaving it to the jury to determine what conduct might qualify.
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that strong circumstantial evidence of identity, including clothing, physical appearance, and behaviour at the scene, can sufficiently establish who was driving a vehicle at the relevant time.
- Under the Jurisic guideline judgment, the proportion of offenders receiving custodial sentences for dangerous driving causing death increased markedly, though the Court expressed concern that the deterrence element may still be insufficiently weighted in some sentencing decisions.
- Where a gap of only a few months exists between the expiry of earlier sentences and the commencement of a new sentence, it may be open to a sentencing court to find special circumstances justifying a longer additional term, though the failure to do so does not necessarily constitute an error of law.
- No error was established in either the conviction or the sentence, and the appeals were dismissed notwithstanding the Court's observations about sentencing trends in this category of offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases:
- R v Oliva (1965) 49 Cr App R 298
- Jiminez v The Queen (1992) 173 CLR 572
- R v Hain (1966) 85 WN (Pt 1) (NSW) 7
- Fleming v R [1998] HCA 68; 197 CLR 250
- R v Giam [1999] NSWCCA 53; 104 A Crim R 416
- M v The Queen (1994) 181 CLR 487
- Alford v Magee (1952) 85 CLR 437
- R v Zorad (1990) 19 NSWLR 91
- R v Tillott (1991) 53 A Crim R 46
- R v Jurisic (1998) 45 NSWLR 209
- R v Howland [1999] NSWCCA 10; 104 A Crim R 273
- R v Carrion [2000] NSWCCA 191; 49 NSWLR 149
- R v MacIntyre (1988) 38 A Crim R 135