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Court of Criminal Appeal 2 March 2011

Preston v Regina

[2011] NSWCCA 25

Traffic & driving
CRIMINAL LAW SENTENCE LOW MORAL CULPABILITY

Citation: Preston v Regina [2011] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 2 March 2011
Judge(s): Beazley JA; Hidden J; RA Hulme J (all agreeing)

Background

The appellant was a truck driver convicted by a jury of dangerous driving occasioning death under s 52A(1) of the Crimes Act 1900. The offence arose from a collision at a T-intersection where the appellant, driving a laden 42-tonne semitrailer, failed to stop at a give way line before entering the Castlereagh Highway. He did not observe the deceased's oncoming vehicle until approximately three seconds before impact. The deceased, who was not wearing a seatbelt, was fatally injured when her vehicle rolled.

The intersection had a documented partial blind spot on the right-hand side, which the RTA subsequently remedied by clearing vegetation and earth embankment after the collision. The road conditions were otherwise clear, the appellant was not affected by alcohol or fatigue, and his vehicle was roadworthy.

At first instance, Blackmore DCJ in the Sydney District Court sentenced the appellant to 4 years imprisonment with a non-parole period of 3 years, and imposed a 5-year licence disqualification commencing from the expected date of parole. The appellant sought leave to appeal both the custodial sentence and the disqualification period.

  • Whether the sentencing judge erred in his assessment of the aggravating features of the offence, specifically the finding that the appellant was motivated by a "time imperative" to avoid stopping at the intersection.
  • Whether the total sentence of 4 years imprisonment with a 3-year non-parole period was manifestly excessive.
  • Whether the 5-year licence disqualification was warranted in the circumstances.

Decision

The Court of Criminal Appeal accepted that the sentencing judge was correct to find the offence was not a case of momentary inattention. The appellant had made a deliberate decision to drive through the give way line at a speed insufficient to stop if required, on a road where he knew vehicles regularly travelled at 100 km/h. That finding was properly supported by the evidence.

However, the Court found no evidentiary basis for the further finding that the appellant was driven by a "time imperative," that is, a desire to avoid the delay of stopping a heavy, loaded truck on a gradient. Beazley JA held this finding, which elevated the appellant's moral culpability significantly, was speculation unsupported by any evidence from the trial. On that basis, the sentencing judge erred in assessing the aggravating features of the offence.

Applying the guideline judgment in R v Whyte, the Court assessed this as a case of low moral culpability. The appellant had an excellent driving record spanning many years, and several features of the offence mitigated its objective seriousness, including the blind spot at the intersection and the substandard sight distances that did not meet the relevant Austroads and RTA requirements. The sentence of 4 years was manifestly excessive, and the Court re-sentenced the appellant to a total term of 3 years imprisonment, comprising an 18-month non-parole period and an 18-month balance of term.

On the licence disqualification, the Court held that 5 years was unwarranted given the appellant's extensive and unblemished driving history. The purposes of disqualification, impressing upon the offender the seriousness of the offence and the need to comply with road rules, had already been substantially served by the conviction and imprisonment. The Court reduced the disqualification to 2 years, dated from the commencement of the sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed by the sentencing judge set aside.
  • Appellant re-sentenced to imprisonment comprising an 18-month non-parole period and an 18-month balance of term, dating from 24 November 2009, with parole release on 23 May 2011.
  • Licence disqualification of 5 years set aside.
  • Licence disqualification of 2 years imposed, dating from 24 November 2009.

Key Takeaways

  • A sentencing judge's finding regarding an offender's subjective motivation, here a "time imperative" to avoid stopping, must be grounded in evidence from the proceedings; without that foundation, the finding constitutes an error that can vitiate the sentence on appeal.
  • The Court of Criminal Appeal confirmed that the absence of momentary inattention does not automatically place an offender at the higher end of the moral culpability spectrum for dangerous driving occasioning death; other factors, including road design deficiencies and driving history, remain relevant.
  • Under the R v Whyte guideline framework, low moral culpability remains available as a finding even where the offender made a deliberate decision to proceed through a give way line, provided the overall circumstances support it.
  • Licence disqualification periods must be proportionate to identifiable sentencing purposes; where those purposes are already substantially served by conviction and imprisonment, a period below the automatic disqualification threshold may be appropriate (subject to the statutory minimum of 12 months).
  • The Road Transport (General) Act 2005 provides for an automatic 3-year disqualification for this category of offence, with the court retaining discretion to order a shorter period, but not less than 12 months.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1) (dangerous driving occasioning death)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Road Transport (General) Act 2005 (NSW), s 188(2)(d)(i) and (ii)

Cases:
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (guideline judgment on s 52A offences, moral culpability assessment)