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9
Court of Criminal Appeal 4 July 2012

WHELAN, Heath Andrew v R

[2012] NSWCCA 147

Also reported as (2012) 228 A Crim R 1
Traffic & driving
CRIMINAL LAW DANGEROUS DRIVING FOETUS CHILD IN UTERO APPEAL AGAINST CONVICTION GROUNDS NOT ESTABLISHED

Citation: Whelan v R [2012] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 4 July 2012
Judges: Allsop P, Davies J, Schmidt J

Background

In May 2009, the appellant was driving home from work in the early hours of the morning when he attempted to overtake a convoy of vehicles and collided head-on with an oncoming car. Among the occupants of the oncoming vehicle was a pregnant woman who suffered, among other injuries, a placental abruption. Her baby, Samanvaya, was born prematurely approximately four days after the accident and died on 23 June 2009.

The appellant was charged with two offences under s 52A of the Crimes Act 1900 (NSW): dangerous driving occasioning grievous bodily harm in respect of the pregnant mother, and dangerous driving occasioning death in respect of the baby. The trial judge directed a verdict on the charge relating to the mother, finding the evidence of her injuries was insufficient to establish grievous bodily harm as defined in s 4 of the Crimes Act. The charge concerning the baby proceeded to jury trial, and the appellant was convicted on 12 August 2011.

On 11 November 2011, the sentencing judge imposed a two-year term of imprisonment to be served by way of an intensive correction order. The appellant appealed the conviction, and the Crown separately appealed the sentence as manifestly inadequate.

  • Whether the Crown was required to prove that the baby sustained physical injury while still a foetus in utero, in order to establish dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900.
  • Alternatively, whether the Crown was required to prove an intentional act that caused the premature birth before criminal liability could attach.
  • Whether the sentence of a two-year intensive correction order was manifestly inadequate.
  • Whether the sentencing judge erred in assessing the appellant's moral culpability as low.

Decision

On the conviction appeal: The Court dismissed both grounds. The central question on causation was whether the impact that caused the premature birth, and the baby's subsequent inability to survive outside the womb, could be said to have occasioned the death of a person within the meaning of s 52A(1). The Court held that causation in this context is a question of fact for the jury, assessed by commonsense, and that the causal connection need only be sufficiently substantial to support criminal responsibility. Allsop P noted that, although the baby was not legally a person at the time of the impact, the chain of events from the impact through to the premature birth and subsequent death was a factual causal connection properly available to the jury.

The Court rejected the argument that in-utero injury must be independently established. It also rejected the alternative contention that an intentional act causing premature birth was a necessary element of the offence. No argument had been put at trial that the jury's conclusion was not open beyond reasonable doubt on the evidence.

On the sentence appeal: The Crown argued the intensive correction order was manifestly inadequate and that the sentencing judge had wrongly assessed moral culpability as low. The Court disagreed on both grounds. Schmidt J found that her Honour had properly engaged with the statutory framework under the Crimes (Sentencing Procedure) Act 1999 (NSW), including the requirement under s 5(1) that a court must not impose imprisonment unless satisfied no other penalty is appropriate. The sentencing judge had concluded that imprisonment for a term likely to be under two years was appropriate, referred the appellant for assessment, and then, finding him suitable, imposed a structured intensive correction order with conditions including supervision, community service, and participation in driving and counselling programmes.

The Court accepted that the intensive correction order reflected a degree of leniency, but held that it remained a substantial punishment. The sentencing judge's assessment of low moral culpability was open on the facts and did not constitute error. Allsop P observed that not every error of judgment, however tragic in its consequences, demands incarceration, and that general and specific deterrence do not inevitably require a custodial sentence.

Orders Made

  • The conviction appeal was dismissed.
  • The sentence appeal was dismissed.

Key Takeaways

  • Under s 52A(1) of the Crimes Act 1900 (NSW), the Crown is not required to prove that a foetus sustained independent physical injury in utero; it is sufficient that the impact caused a premature birth and the baby subsequently died as a result of an inability to survive outside the womb.
  • Causation in dangerous driving offences remains a question of fact for the jury, governed by a commonsense assessment of whether the causal connection is sufficiently substantial to support criminal responsibility.
  • A foetus is not a legal person at the time of an impact, but this does not prevent criminal liability for dangerous driving occasioning death where the foetus is subsequently born alive and then dies from causes directly linked to that impact.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that an intensive correction order can constitute an appropriate sentencing outcome for dangerous driving occasioning death where a sentencing judge legitimately assesses moral culpability as low, even where a death has resulted.
  • Section 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a court to affirmatively find that no penalty other than imprisonment is appropriate before imposing a custodial sentence; the sentencing framework does not mandate full-time custody for every offence of this nature.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 52A(1), 52A(3)
- Criminal Appeal Act 1912 (NSW), ss 5, 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 67, 69(2)
- Crimes (Sentencing Procedure) Regulation 2010 (NSW)

Cases:
- Attorney-General's Reference (No 3 of 1994) [1998] AC 245 (House of Lords)
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Royall v R [1991] HCA 27; 172 CLR 378 (referenced in reasons)
- Dinsdale v R [2000] HCA 54; (2000) 203 CLR 321
- SKA v R [2011] HCA 13
- Hili v R [2010] HCA 45
- R v Iby [2005] NSWCCA 178; (2005) 154 A Crim R 55
- R v Boughen; R v Cameron [2012] NSWCCA 17
- Hedges v Regina [2011] NSWCCA 263
- DPP v Samadi [2006] NSWCCA 308
- R v F (1996) 40 NSWLR 245