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Court of Criminal Appeal 19 October 2005

REGINA v ERRINGTON

[2005] NSWCCA 348

Also reported as (2005) 157 A Crim R 553
Traffic & driving
SENTENCING DANGEROUS DRIVING CAUSING DEATH GUILTY PLEA LICENCE DISQUALIFICATION THREE YEAR AUTOMATIC STATUTORY PERIOD DRIVING BEHAVIOUR UNEXPLAINED

Citation: REGINA v ERRINGTON [2005] NSWCCA 348
Court: Court of Criminal Appeal, New South Wales
Date: 19 October 2005
Judges: Mason P, Grove J, Buddin J

Background

The appellant was a 49-year-old commercial truck driver with 22 years' experience and an essentially unblemished driving record. On 6 November 2003, while driving a loaded prime mover along General Holmes Drive at Mascot, he failed to brake before striking a line of stationary vehicles at a red light. The collision killed the driver of the lead vehicle and seriously injured a passenger in another car, triggering a chain reaction involving multiple vehicles.

The appellant pleaded guilty in the Local Court to dangerous driving causing death and dangerous driving causing grievous bodily harm. The cause of the collision was never explained: he was not speeding, not intoxicated, and his vehicle was in roadworthy condition. He told police his attention was diverted by a sound from the right side of the truck, but could not recall the 370-metre approach to the intersection.

At sentencing in the District Court, Balla DCJ imposed an aggregate term of two years and nine months imprisonment with a non-parole period of eighteen months. The judge also declined to reduce the automatic three-year licence disqualification below the statutory minimum. The appellant sought leave to appeal against both the custodial sentence and the disqualification.

  • Whether the District Court gave insufficient weight to the appellant's strong subjective case, including his exceptional driving record, good character, remorse, and early guilty plea
  • Whether the unexplained nature of the driving conduct properly grounded a finding that re-offending was not unlikely, thereby limiting the available mitigation
  • Whether the three-year automatic licence disqualification should have been shortened under the court's discretion
  • Whether the sentence was, overall, manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Mason P (with Grove and Buddin JJ agreeing) found no specific error in the primary judge's reasoning and no basis to conclude the sentence was manifestly excessive. The court acknowledged the considerable force of the appellant's subjective case, including his exemplary work history, community contributions, and genuine remorse, but found these did not displace the seriousness of the offending.

A central issue was whether the unexplained nature of the driving conduct properly limited mitigation. The court accepted the District Court's reasoning that, because there was no explanation for why the appellant failed to see a red light and stationary vehicles across an 18-to-20-second approach, it was not open to find he was unlikely to re-offend. This was not a case of momentary inattention in the ordinary sense: the approach covered 370 metres and the appellant had no recollection of it whatsoever.

The court considered how this case sat within the sentencing framework established in R v Whyte, which guides courts in calibrating sentences for dangerous driving offences. Conduct that involves an unexplained abandonment of responsibility, even without deliberate recklessness, falls into a more serious category than straightforward momentary misjudgement. The court noted that general deterrence retains relevance in such cases, notwithstanding the appellant's otherwise blameless character.

On the licence disqualification, Mason P noted that no submissions had been made at first instance when the primary judge invited them, and that the same uncertainty that precluded a finding of unlikely re-offending also precluded a positive finding that a shorter disqualification was appropriate. The court declined to interfere with the disqualification, leaving open the unresolved question of whether licence disqualification is punitive or protective in nature.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where the cause of dangerous driving remains wholly unexplained, a sentencing court may properly decline to find that re-offending is unlikely, even where the offender has a long and distinguished driving history.
  • An unexplained failure to respond to obvious road conditions across a sustained approach period is not equivalent to momentary inattention or misjudgement, and may attract greater sentencing weight under the R v Whyte framework.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a compelling subjective case does not automatically overcome the seriousness of unexplained dangerous driving causing death.
  • No error arises from declining to shorten the three-year statutory licence disqualification where the same factual uncertainty that informs the risk of re-offending also prevents a positive finding that a shorter period is warranted.
  • The question of whether licence disqualification serves a punitive or protective purpose remains unresolved in New South Wales, with the Court of Criminal Appeal noting it awaits definitive determination.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Road Transport (General) Act 1999 (NSW), s 25(2)(d)

Cases
- R v Whyte (2002) 55 NSWLR 252
- R v Jurisic (1998) 45 NSWLR 209
- Application by the Attorney General [2004] NSWCCA 303, 61 NSWLR 305
- R v Bailey [2001] NSWCCA 10
- R v Howland [1999] NSWCCA 10
- R v Hallocoglu (1992) 29 NSWLR 67
- Police v Cadd (1997) 69 SASR 150