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Court of Criminal Appeal 20 November 2014

Adam v R

[2014] NSWCCA 265

Traffic & drivingPublic order & justice offences
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE S 52AB CRIMES ACT 1900 (NSW) OFFENCES PROPER CONSTRUCTION OF S 52AB WHETHER LESSER OFFENCE RELEVANT RELEVANCE OF NEGLIGENT DRIVING

Citation: Adam v R [2014] NSWCCA 265
Court: NSW Court of Criminal Appeal
Date: 20 November 2014
Judge(s): Meagher JA, Fullerton J, Schmidt J (Schmidt J delivering the principal judgment)

Background

The appellant was charged following a collision that occurred late at night in Fairfield on 2 April 2011. He was driving significantly above the 60 km/h speed limit when his vehicle struck another car completing a turn at an intersection. One occupant of the other vehicle died and a second was critically injured. The appellant got out of his car and left the scene without rendering assistance to any of the four occupants in the other vehicle.

The appellant was initially charged with dangerous driving occasioning death and grievous bodily harm under s 52A of the Crimes Act 1900 (NSW), as well as two offences of failing to stop and render assistance after a vehicle impact under s 52AB(1) and (2). He pleaded guilty to the s 52AB offences after the dangerous driving charges were withdrawn. The agreed facts established that his driving had been negligent but that the Crown could not prove it rose to the level of dangerous driving.

The sentencing judge in the District Court imposed an aggregate sentence of 32 months with a non-parole period of 20 months, after a 25% discount for the guilty plea. The appellant sought leave to appeal to the Court of Criminal Appeal on the basis that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by taking the appellant's negligent driving into account as part of his criminality for the s 52AB offences
  • Whether the judge failed to give adequate weight to the fact that the s 52AB charges could have been dealt with summarily, and the lower maximum penalties that would have applied in that jurisdiction
  • Whether the s 52AB offences were "tethered to" dangerous driving such that, absent dangerous driving, the relevant comparator was the lesser offence under s 70 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW), with its maximum penalty of 30 penalty units and/or 18 months imprisonment
  • Whether the sentence was, in all the circumstances, manifestly excessive

Decision

Schmidt J (with whom Meagher JA and Fullerton J agreed) granted leave to appeal but dismissed the appeal, finding the sentence was neither unreasonable nor plainly unjust, the test established by the High Court in Dinsdale v R.

On the negligent driving point, Schmidt J noted that at the sentencing hearing the appellant's counsel had not objected to the Crown's submission that negligent driving was properly part of the criminality to be assessed. Indeed, counsel had made submissions accepting its relevance. The Court held it was too late on appeal to argue the opposite position. The sentencing judge had not treated the absence of a dangerous driving conviction as an aggravating factor; he had simply taken the agreed facts about the manner of driving into account, which was a proper sentencing exercise.

The Court rejected the argument that the s 52AB offences were "tethered to" dangerous driving in a way that imported the lesser penalty regime under s 70 of the Road Transport Act. On its proper construction, s 52AB applies wherever there is an impact involving a vehicle, without reference to the quality of the driving that caused it. The section draws a meaningful distinction between impacts that occasion death (s 52AB(1), maximum 10 years) and those causing grievous bodily harm (s 52AB(2), maximum 7 years), but it does not limit itself to cases involving dangerous driving.

The Court also rejected the submission that the possibility of summary disposal should have operated as a mitigating factor. The s 52AB offences were not Table 1 offences and had been committed to the District Court while dangerous driving charges were still on foot. Once the Director elected to proceed in the District Court, the applicable maximum penalties were those prescribed for indictable proceedings. Schmidt J found the sentencing judge's assessment of objective seriousness was appropriate given the agreed facts, and that a custodial sentence was plainly warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 52AB of the Crimes Act 1900 (NSW) applies to all vehicle impacts of the prescribed kind, regardless of whether the driving that caused the impact was dangerous or merely negligent. The provision is not confined to cases involving dangerous driving.
  • A concession made at a sentencing hearing that a particular factual matter is relevant to criminality will ordinarily preclude an appellant from arguing the opposite position on appeal. No error arose from the sentencing judge taking negligent driving into account where that was the agreed position below.
  • The s 52AB offences do not attract the lesser penalty regime under s 70 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) simply because the underlying driving was negligent rather than dangerous. Those provisions operate independently.
  • In dismissing the appeal, the Court confirmed that the possibility of summary disposal does not automatically operate as a mitigating factor when the Director has lawfully elected to proceed on indictment in the District Court.
  • No error was established in the sentencing judge's approach; an aggregate sentence of 32 months, after a 25% guilty plea discount, was open on the evidence for offences of failing to stop and render assistance following a fatal collision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 52AB(1) and (2)
- Criminal Procedure Act 1986 (NSW), Schedule 1
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 42(1), 70(1)
- Road Transport Act 2013 (NSW)

Cases:
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
- GAS v R [2004] HCA 22; 217 CLR 198
- McCullough v R [2009] NSWCCA 94
- R v El Masri [2005] NSWCCA 167
- Sheen v R [2011] NSWCCA 259; 215 A Crim R 208
- Shumack v R [2008] NSWCCA 311; 191 A Crim R 513
- Vuni v R [2006] NSWCCA 171
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460