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Court of Criminal Appeal 5 December 2003

Regina v Craig Besant

[2003] NSWCCA 388

Traffic & driving
CRIMINAL LAW SENTENCING DANGEROUS DRIVING CAUSING DEATH X2 DRIVER OVER TIRED WARNING TO DRIVER OF FATIGUE NUMBER OF PERSONS PUT AT RISK

Citation: Regina v Craig Besant [2003] NSWCCA 388
Court: New South Wales Court of Criminal Appeal
Date: 5 December 2003
Judge(s): Wood CJ at CL, Grove J, Dunford J

Background

The appellant was a professional long-distance truck driver who pleaded guilty to two counts of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900. He had driven his semi-trailer through the night from Sydney toward Brisbane on a tight schedule, stopping only briefly. His urine tested positive for amphetamines, and a bag of amphetamines was found under his driver's seat. Expert evidence indicated he was in the "coming down" phase of amphetamine use, a condition associated with severe fatigue.

The fatal collision occurred on the Pacific Highway at Tabbimoble on 1 February 2001 when the appellant fell asleep at the wheel. His truck veered into the oncoming lane, and the resulting collision killed a 54-year-old woman and her 20-year-old daughter who were passengers in another vehicle. Their husband and father, who was driving, survived with a broken jaw and bruising.

In the District Court, Judge Graham sentenced the appellant to a total of 6 years imprisonment (two partly cumulative 5-year head sentences) with a total non-parole period of 4 years. The appellant sought leave to appeal, arguing that insufficient weight had been given to the finding of special circumstances when fixing the non-parole periods.

  • Whether the head sentences of 5 years on each count (totalling 6 years) were within the proper range for the objective gravity of the offending
  • Whether the pleas of guilty entered on the fourth day of a pre-trial voir dire qualified as "early pleas" warranting a sentencing discount
  • Whether the sentencing judge gave sufficient weight to the finding of special circumstances when structuring the non-parole periods

Decision

The Court of Criminal Appeal confirmed the head sentences without alteration. Dunford J characterised the offending as involving an extremely high level of moral culpability. The erratic and dangerous driving extended over 50 to 58 kilometres and roughly half an hour before the collision, during which the appellant's truck endangered at least 10 other road users across eight distinct incidents. The appellant had been reported to police for his driving approximately 15 minutes before the fatal impact. In cases involving dangerous driving causing death, the Court noted that general deterrence is an important sentencing consideration.

On the question of early pleas, the Court found that pleas entered on the fourth day of a voir dire hearing could not properly be characterised as early. The appellant had originally pleaded not guilty, and the change of plea came only after several days of pre-trial proceedings. Any discount for a guilty plea in this context was therefore limited.

The Court accepted, however, that the sentencing judge had not given sufficient weight to the special circumstances that had been identified: the appellant's first time in custody, his depression and risk of self-harm, and the personal turmoil surrounding the breakdown of his marriage and loss of contact with his children at the time of the offending. Dunford J concluded, after considerable deliberation, that the non-parole periods should be reduced to better reflect those circumstances, even though the head sentences remained appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Head sentence on count 1 confirmed: 5 years imprisonment commencing 2 May 2002, expiring 1 May 2007
  • Head sentence on count 2 confirmed: 5 years imprisonment commencing 2 May 2003, expiring 1 May 2008
  • Non-parole period on count 1 varied to 3 years, commencing 2 May 2002, expiring 1 May 2005
  • Non-parole period on count 2 varied to 2 years and 6 months, commencing 2 May 2003, expiring 1 November 2005
  • First day eligible for release on parole: 1 November 2005
  • Disqualification from holding a driver's licence confirmed

Key Takeaways

  • A guilty plea entered partway through a voir dire, after an initial not guilty plea, does not constitute an "early plea" for the purpose of attracting a sentencing discount; the timing and context of the plea are assessed carefully.
  • Erratic dangerous driving over a prolonged distance and period before a fatal collision, coupled with evidence that the driver repeatedly woke on the wrong side of the road yet continued driving, significantly elevates moral culpability in fatigue-driving cases.
  • Where a sentencing court identifies special circumstances, those circumstances must be given meaningful weight in the actual structure of the non-parole period, not merely acknowledged in findings.
  • The Court of Criminal Appeal confirmed that general deterrence is a prominent consideration in sentencing for dangerous driving causing death, particularly where professional drivers are involved.
  • Amphetamine use that places a driver in a fatiguing "coming down" phase, even without proof of active intoxication, can properly be treated as an aggravating factor in sentencing for fatigue-related fatal driving.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 42A

Cases:
- Cameron v The Queen (2002) 209 CLR 339
- R v Musumeci (NSWCCA, 30 October 1997)
- R v Jurisic (1998) 45 NSWLR 209
- R v Sharma (2002) 54 NSWLR 300
- R v Whyte (2002) 55 NSWLR 252
- Wong v The Queen (2001) 207 CLR 584