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District Court 8 December 2016

Babineau v R

[2016] NSWDC 354

Traffic & driving

Citation: Babineau v R [2016] NSWDC 354
Court: District Court of New South Wales
Date: 8 December 2016
Judge: Judge Henson

Background

The appellant, a 73-year-old woman with no prior criminal history, was charged with negligent driving occasioning grievous bodily harm and failing to give way to an oncoming vehicle. The charges arose from an incident on 18 April 2016 in Nicholson Street, Crows Nest, when the appellant turned her vehicle across the path of an oncoming motorcycle. The rider was thrown from the motorcycle and suffered severe injuries to his right leg, including a compound fracture, dislocated knee, torn ligaments and open wounds, requiring hospitalisation from 18 April to 13 May 2016 and major surgery.

In the Local Court, Her Honour recorded convictions on both charges and imposed a fine of $1,000 for the negligent driving offence and $400 for the give-way offence. The automatic three-year licence disqualification was reduced to the statutory minimum of 12 months.

The appellant appealed to the District Court on severity grounds, seeking to have both convictions dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999, which would have avoided the recording of convictions entirely.

  • Whether the Local Court's penalties were too severe in the circumstances.
  • Whether either or both offences were appropriate for dismissal without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, having regard to the objective seriousness of the offending and the appellant's subjective circumstances.
  • What weight should be accorded to the appellant's good character, age, remorse, rehabilitation, and the consequences of disqualification when balancing those factors against general deterrence, denunciation, and the impact on the victim.

Decision

Judge Henson found that the appellant's failure to keep a proper lookout was above the mid-range of objective seriousness for negligent driving occasioning grievous bodily harm. The road conditions were clear, the incident occurred in daylight, and there was no environmental impediment to the appellant seeing the motorcycle. The Court noted that an independent observer would find it extremely difficult to understand how the appellant failed to see the approaching motorcycle if she had been keeping the lookout required by law.

The Court accepted several subjective factors in the appellant's favour: an early guilty plea warranting a 25% utilitarian discount, genuine remorse, participation in a Traffic Offender Programme, and a realistic insight into the harm she caused. However, drawing on the Court of Criminal Appeal's reasoning in R v MacIntyre (1988), the Court held that good character carries limited weight in serious driving offences, and that no material distinction exists between the driving conduct of older and younger offenders.

Applying the principles in R v Mauger [2012] NSWCCA 51, the District Court confirmed that section 10 has limits and cannot operate to displace the requirement that the penalty reflect the objective seriousness of the offence. Where general deterrence and denunciation are important considerations, the scope for section 10 narrows considerably. The Court concluded that applying section 10 in this case would fail to give practical meaning to the impact on the victim, general deterrence, and denunciation.

The appeals were dismissed. The District Court confirmed the Local Court's convictions, fines and licence disqualification, with the disqualification to take effect forthwith.

Orders Made

  • Both severity appeals dismissed.
  • Convictions recorded by the Local Court on both charges confirmed.
  • Fine of $1,000 for negligent driving occasioning grievous bodily harm confirmed.
  • Fine of $400 for the give-way offence confirmed.
  • Licence disqualification for the minimum period of 12 months confirmed, to take effect forthwith.

Key Takeaways

  • The District Court confirmed that section 10 of the Crimes (Sentencing Procedure) Act 1999 is not available as a general remedy in serious driving matters where the offending is above the mid-range of objective seriousness and where general deterrence and denunciation are significant sentencing considerations.
  • Upholding the sentence, the Court applied the principle from R v Mauger [2012] NSWCCA 51 that the penalty must reflect the objective seriousness of the offence, and that section 10 cannot operate to overshadow that requirement simply because conviction carries personal consequences for an offender.
  • A favourable subjective case, including advanced age, no prior convictions, genuine remorse, and completion of a Traffic Offender Programme, does not automatically make a serious driving offence suitable for a section 10 dismissal.
  • Under the principles in R v MacIntyre (1988), good character carries reduced weight in serious driving cases, and courts are cautioned against allowing leniency on that basis where the result would suggest that persons of good character may escape meaningful sanction for causing serious harm by irresponsible driving.
  • The impact of a criminal conviction on a defendant's personal circumstances, including loss of a licence and associated hardship, is a relevant consideration but cannot displace the need for the sentence to reflect the gravity of the harm caused to the victim.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeals and Review) Act 2001 (NSW), ss 11, 20(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A, 22
- Road Transport Act 2013 (NSW), s 117(1)(b)
- Road Rules 2014 (NSW), s 63(3)
- Child Protection (Working with Children) Act 2012 (NSW)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v MacIntyre (1988) 38 A Crim R 135
- Cobiac v Liddy (1969) 119 CLR 447
- R v Mauger [2012] NSWCCA 51
- Tsakonas v R [2009] NSWCCA 258
- R v Stephenson [2010] NSWSC 779
- R v Toigias [2001] NSWCCA 522
- R v Edwards (1996) 90 A Crim R 510
- R v Wirth (1976) 14 SASR 291
- R v Fing (unreported, NSWCCA, 4 October 1994)
- R v Handford (unreported, NSWDC, 20 November 2012)