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Court of Criminal Appeal 21 June 2002

Regina v Bishop

[2002] NSWCCA 263

Traffic & driving
SENTENCING SENTENCES NOT EXCESSIVE

Citation: Regina v Bishop [2002] NSWCCA 263
Court: Court of Criminal Appeal, New South Wales
Date: 21 June 2002
Judge(s): Greg James J; Smart AJ

Background

The appellant, a 21-year-old man, was driving his girlfriend's Holden Commodore westbound on the Great Western Highway at St Mary's at night, travelling at more than 100 km/h in an 80 km/h zone. His vehicle collided with a Hyundai carrying five male teenagers who were turning right at a signalised intersection. The green light was in the appellant's favour, but the court found that the driver of the Hyundai was entitled to expect oncoming vehicles to be travelling within the speed limit.

The collision killed three of the teenagers and left two others with severe and permanent injuries. The appellant was acquitted of the more serious aggravated dangerous driving charges (which required proof of exceeding the speed limit by 45 km/h or more), but was convicted of three counts of dangerous driving occasioning death and two counts of dangerous driving occasioning grievous bodily harm.

In the District Court, Judge Viney imposed three concurrent six-year sentences (non-parole period three years) for the death offences, and two concurrent four-year sentences (non-parole period two years) for the grievous bodily harm offences. The appellant sought leave to appeal to the Court of Criminal Appeal on the ground that those sentences were manifestly excessive.

  • Whether the concurrent sentences of six years imprisonment (non-parole period three years) for dangerous driving occasioning death were manifestly excessive in all the circumstances.
  • Whether the sentencing judge correctly assessed the degree of the appellant's culpability and the extent of his favourable subjective circumstances.
  • Whether the sentencing judge erred in declining to treat the Hyundai driver's right-hand turn as a contributory factor reducing the appellant's culpability.
  • Whether the making of the sentences concurrent, rather than cumulative, adequately reflected the principle of totality.

Decision

Smart AJ, with Greg James J agreeing, dismissed the appeal. The Court found that the sentencing judge had conducted a careful and sympathetic assessment of all circumstances, including the appellant's good character, genuine contrition, youth, unstable childhood, promising football career now ended, and the emotional toll the accident had taken on him. None of these factors, individually or collectively, rendered the sentences excessive.

The Court upheld the finding that the Hyundai driver bore no contributory responsibility for the crash. A driver turning at an intersection is entitled to assume that oncoming traffic is travelling at or below the speed limit, and the sentencing judge was plainly entitled to reject any allowance for the Hyundai's manoeuvre.

The Court also rejected the submission that the total sentence was simply too high because it reflected three deaths. Smart AJ made clear that the sentencing judge had not adopted a mechanical or arithmetical approach by reference to the number of deaths. The judge had applied the principle of totality by making the sentences concurrent rather than cumulative, which itself represented a significant measure of leniency.

Both judges noted that the special circumstances finding was appropriate given the appellant's age, first time in custody, and good rehabilitation prospects, and expressed the view that he should be released at the expiration of his non-parole period. The sentences fell within the range of a sound discretionary judgment and disclosed no error warranting intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences for dangerous driving causing multiple deaths need not be assessed merely by reference to a single-death baseline, provided the sentencing judge applies a principled rather than mechanical approach to the multiplicity of harm.
  • A driver at an intersection has no obligation to anticipate that oncoming traffic will be exceeding the speed limit; the failure of a turning driver to clear the intersection before an overspeeding vehicle arrives does not reduce the culpability of the speeding driver.
  • Where a court makes multiple concurrent sentences rather than cumulative ones in a case involving several victims, this itself represents a direct application of the totality principle and can constitute a significant measure of leniency.
  • Significant mitigating circumstances, including genuine contrition, strong good character evidence, youth, and first time in custody, may influence the non-parole period and a finding of special circumstances, but do not necessarily bring a sentence within the range of excessive sentences where the objective gravity of the offending is high.
  • General deterrence carries particular weight in dangerous driving cases, given Parliament's deliberate increases to maximum penalties for this category of offence.

Legislation and Cases Referenced

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Musumeci (Court of Criminal Appeal, 30 October 1997, unreported)
- R v Slattery (1996) 90 A Crim R 519

Legislation: No specific legislation was identified by name in the provided text, though the offences prosecuted relate to dangerous driving occasioning death (maximum ten years imprisonment) and dangerous driving occasioning grievous bodily harm (maximum seven years imprisonment) under the applicable New South Wales provisions.