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Court of Criminal Appeal 30 October 2002

Regina v Clampitt-Wotton

[2002] NSWCCA 383

Traffic & driving
CRIMINAL LAW: SENTENCE CROWN APPEAL EFFECTIVE SENTENCE 2 YEARS, NON PAROLE PERIOD 1 YEAR.

Citation: Regina v Clampitt-Wotton [2002] NSWCCA 383
Court: NSW Court of Criminal Appeal
Date: 30 October 2002
Judge(s): Levine J, Hidden J, Howie J (Hidden J delivered the principal judgment; Levine and Howie JJ agreed)

Background

The respondent was a professional truck driver who, on 14 September 1999, failed to stop his heavy vehicle at a line of cars waiting at an intersection on Cowpastures Road, West Hoxton. The collision struck the rear of a Holden Gemini sedan carrying a mother and her four children. Two of the children, aged two and four, died. The two surviving children suffered serious injuries, including a compound skull fracture and mild traumatic brain injury in one case, and leg fractures resulting in permanent shortening of the limb in the other.

Witness evidence established that the respondent had looked away from the road immediately before impact, glancing downward and to his left on more than one occasion. The sentencing judge found that the respondent had made a deliberate decision to look away, taking a calculated risk, and rejected the characterisation of his conduct as mere momentary inattention.

The respondent was found guilty at trial of two counts of dangerous driving occasioning death and two counts of dangerous driving occasioning grievous bodily harm. In the District Court, Urquhart DCJ imposed an effective sentence of two years' imprisonment with a non-parole period of twelve months. The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentences were manifestly inadequate.

  • Whether the effective sentence of two years with a twelve-month non-parole period was manifestly inadequate, having regard to the seriousness of the offending and the applicable sentencing principles
  • Whether the sentencing judge gave adequate weight to general deterrence and to the fact that the offence of dangerous driving causing death involves the taking of human life, not merely dangerous driving
  • Whether ordering all four sentences to run concurrently was appropriate given the totality of the respondent's criminality
  • What sentence should be substituted, bearing in mind the principle of double jeopardy in Crown appeals (that the court should impose the least sentence that could properly have been passed at first instance)

Decision

The Court of Criminal Appeal allowed the appeal, finding that the original sentences were manifestly inadequate. Hidden J, with whom Levine and Howie JJ agreed, observed that the sentencing judge had not had the benefit of the Court's then-recent decision in R v Whyte [2002] NSWCCA 343, which revisited the guideline judgment in R v Jurisic (1998) 45 NSWLR 209 for offences under s 52A of the Crimes Act 1900. The Whyte decision identified features typical of cases in this category and set clearer benchmarks for sentencing.

The Court accepted that the respondent had genuine subjective mitigating factors. These included his age (34 at the time of the offences), absence of prior convictions, evident remorse, the severe psychological effects of the accident on him and his family, the collapse of his business through harassment connected to publicity about the incident, and his good conduct in custody. Psychological evidence confirmed what was described as remnants of a severe post-traumatic stress disorder and assessed the respondent as profoundly remorseful.

Despite those mitigating circumstances, the Court concluded that the sentences failed to reflect the gravity of the offending. The respondent had driven a heavy vehicle while deliberately diverting his attention from the road in conditions of normal traffic, with fatal and serious consequences. The Court noted that the offence of dangerous driving causing death carries a maximum of ten years' imprisonment and that general deterrence is a significant consideration in this category of offence. The sentences passed were disproportionate to the seriousness of what had occurred.

Applying the double jeopardy principle, the Court identified the least sentence that could properly have been imposed at first instance as four years' imprisonment with a non-parole period of two years. It increased the sentences on the two death charges accordingly and confirmed the concurrent six-month fixed terms on the grievous bodily harm charges. The Court found that special circumstances existed justifying the extended ratio between the non-parole period and the total sentence, a point the Crown did not dispute.

Orders Made

  • Appeal allowed
  • Sentences on the first two counts (dangerous driving occasioning death) quashed and substituted with four years' imprisonment each, with a non-parole period of two years, commencing 11 April 2002
  • Sentences on the third and fourth counts (dangerous driving occasioning grievous bodily harm) confirmed at six months' fixed term, also commencing 11 April 2002
  • All sentences to be served concurrently, producing an effective sentence of four years with a non-parole period of two years

Key Takeaways

  • The Court of Criminal Appeal confirmed that dangerous driving offences causing death are not assessed solely on the manner of driving: the taking of human life is an integral part of the gravamen of the offence and must be reflected in the sentence.
  • A finding that a driver made a deliberate decision to look away from the road, rather than experiencing a momentary lapse of attention, significantly elevates the seriousness of the offending within the dangerous driving category.
  • General deterrence carries substantial weight in sentencing for dangerous driving causing death, even where the offender has strong subjective mitigating factors including genuine remorse, good character, and significant personal hardship flowing from the offence.
  • In Crown appeals, the double jeopardy principle limits the Court to imposing the least sentence that could properly have been passed at first instance, rather than the sentence the appellate court might independently have imposed.
  • Sentencing courts are expected to apply the guidelines established in R v Jurisic and subsequently elaborated in R v Whyte when dealing with offences under s 52A of the Crimes Act 1900, and failure to have regard to those benchmarks may produce a sentence vulnerable to Crown appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c) and 52A(3)(c)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Whyte [2002] NSWCCA 343
- R v Jurisic (1998) 45 NSWLR 209
- R v Mansour [1999] NSWCCA 180
- R v Foster [2001] NSWCCA 215
- R v Oddie [2001] NSWCCA 524
- R v Allpass (1994) 72 A Crim R 561
- R v Dhanhoa [2000] NSWCCA 257
- R v Musumeci (CCA, unreported, 30 October 1997)