Citation: Morabito v Regina [2007] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 20 April 2007
Judge(s): Mason P, Hidden J, Rothman J
Background
The appellant was a truck driver convicted in the District Court on four counts of dangerous driving, three causing death and one causing grievous bodily harm, following a serious multi-vehicle crash on the Pacific Highway near Bulahdelah on 5 March 2004. He was driving a Volvo prime mover towing a trailer loaded with steel pipes at approximately 90 kilometres per hour in fine, dry conditions on a straight stretch of road.
A Toyota Hilux ahead of him had stopped in the lane to turn right, with its indicators on and the driver pumping the brakes as a warning signal. The appellant failed to observe either a Land Rover that had already passed the stopped vehicle on the left, or the Hilux itself. His vehicle struck the rear of the Hilux, which was pushed into oncoming traffic. The collision ultimately caused the deaths of three members of one family and serious permanent injuries to another person.
The appellant was sentenced by Coolahan DCJ to 3 years and 3 months imprisonment with a non-parole period of 15 months. He appealed both his conviction and his sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the jury's verdicts on all four counts were unsafe or unsatisfactory, applying the test in M v The Queen (1994) 181 CLR 487 and Weiss v The Queen (2005) 224 CLR 300
- Whether the verdicts were open to a jury acting reasonably on the evidence
- Whether the sentence of 3 years 3 months imprisonment (with a 15-month non-parole period) was manifestly excessive
- Whether the sentencing judge assessed the appellant's moral culpability at the correct level
Decision
The Court unanimously dismissed both the conviction appeal and the sentence appeal, with all three judges agreeing with the reasons of Mason P.
On the conviction appeal, the central issue was whether the evidence supported a finding of dangerous driving rather than mere inattentiveness. The appellant's defence was that his windscreen had shattered before the initial impact, depriving him of visibility. The Crown argued, and the jury accepted, that the windscreen only shattered in the collision itself, and that in any event the appellant's prior inattention was the operative cause. The Court held that the jury's verdicts were open on the evidence and were not unsafe or unsatisfactory. Mason P noted that crash investigators found no tyre lockup marks or other physical evidence of events occurring before the point of impact, and that the appellant himself admitted he had not seen the stationary Hilux or the vehicle that had already diverted around it.
On the sentence appeal, the appellant argued that the sentencing judge had erroneously characterised the inattention as more than momentary, and that the overall sentence was manifestly excessive. The Court rejected this. Mason P observed that the appellant was operating a large, heavy vehicle at speed on a busy highway and, on his own admissions, failed to observe two obvious visual cues over a period of at least several seconds. The Court found no error in the sentencing judge's analysis of the facts or in the exercise of the sentencing discretion.
The Court emphasised that its role on a sentence appeal is not to re-sentence but to identify whether the sentencing judge erred. It found no such error.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but that appeal also dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that where two factual hypotheses are each capable of supporting a conviction, a jury may convict on either, provided the manner of driving causative of death or serious injury was dangerous on an objective test.
- A conviction for dangerous driving causing death does not require proof that the driver knew they were driving dangerously; the test applied by the jury was an objective one, focused on whether there was a serious breach of the proper conduct of a vehicle on the road.
- In dismissing the conviction appeal, the Court applied M v The Queen and Weiss v The Queen and found the jury's verdicts were open on the whole of the evidence, including physical evidence from the crash scene and the appellant's own admissions.
- No error was established in the sentencing judge's assessment of moral culpability; even inattention of only a few seconds' duration was treated as carrying significant weight given the size and speed of the vehicle and the conditions on a busy highway.
- The appellate court's function on a sentence appeal is limited to identifying error in the sentencing discretion, not to substituting its own view of the appropriate sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487
- Weiss v The Queen (2005) 224 CLR 300