AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 13 October 2017

Wells v R

[2017] NSWCCA 242

Traffic & driving
CRIMINAL LAW CONVICTION APPEAL NEGLIGENT DRIVING OCCASIONING DEATH NOT GIVING WAY WHEN MAKING U TURN WHERE EMERGENCY VEHICLE

Citation: Wells v R [2017] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 13 October 2017
Judges: Gleeson JA, Harrison J, Button J (unanimous)

Background

The appellant was a volunteer Rural Fire Service driver who, late at night in October 2012, was operating a fire tanker on the F3 freeway north of Sydney. He was directed to return to a hazardous materials incident and, while performing a U-turn at a designated emergency vehicle turning bay, his tanker collided with a Toyota Corolla travelling in the northbound lanes. The Corolla came to rest unlit and stationary in the live traffic lane.

A second vehicle, a Mazda sedan, subsequently struck the stationary Corolla. That second collision directly caused the death of a passenger in the Corolla. The first collision, between the tanker and the Corolla, did not itself directly cause the death.

The appellant was tried by jury on charges including dangerous driving causing death but was acquitted on all counts. With the parties' consent, two wholly summary offences were then placed before the District Court judge: negligent driving occasioning death, and making a U-turn without giving way. His Honour found the appellant guilty of both. The appellant was sentenced to 12 months' imprisonment by way of an Intensive Correction Order (ICO) for the primary offence, a $1,000 fine for the secondary offence, and a 12-month driving disqualification.

  • Whether the convictions were unreasonable and unsupported by the evidence
  • Whether the trial judge erred in construing s 42 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed) and rr 78 and 79 of the Road Rules 2008 (NSW) (repealed), including whether those provisions applied to an emergency vehicle
  • Whether the trial judge denied procedural fairness by making findings that diverged from the agreed facts
  • Whether the sentencing judge failed to take into account a relevant consideration
  • Whether the ICO of 12 months was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all grounds of appeal against conviction. Button J (with whom Gleeson JA and Harrison J agreed) found no error in the trial judge's construction of the relevant legislation. The provisions governing U-turns and the obligation to give way applied in the circumstances, and no basis existed to disturb the verdicts as unreasonable or unsupported by evidence.

On the procedural fairness ground, the Court rejected the submission that the trial judge had impermissibly departed from the agreed facts. The agreed facts framed the factual background but did not bind the judge to particular conclusions on the ultimate issues of liability.

Regarding the rule 306 argument, which formed part of one of the conviction grounds, the Court upheld the trial judge's rejection of the defence submission that a specific provision of the Road Rules afforded the appellant a complete answer to the charges. The Court found no error in how his Honour approached that question.

On sentence, the Court found that the ICO of 12 months was within the available range and, on one view, could be regarded as rather lenient. The sentencing judge had correctly identified the maximum penalty, treated the offence as a first offence, and engaged in an orthodox sentencing synthesis. No relevant consideration had been omitted, and the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal against conviction granted to the extent necessary
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A conviction for negligent driving occasioning death requires proof that the conduct represented a marked departure from the standard of care that a reasonable person would have exercised, sufficient to merit criminal punishment.
  • The provisions of the Road Rules 2008 (NSW) governing U-turns and the obligation to give way were held to apply to an emergency vehicle driver performing a U-turn at a designated emergency vehicle bay on a freeway.
  • Agreed facts placed before a court define the undisputed factual background but do not, of themselves, constrain a judge from making further findings on the ultimate questions of guilt; no denial of procedural fairness arose on those facts.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that an ICO, while formally a sentence of imprisonment, carries a large degree of inherent leniency built into it, consistent with the approach in R v Pogson (2012) 82 NSWLR 60.
  • No error was established in the sentencing judge's approach where he correctly identified the applicable maximum penalty, applied an orthodox instinctive synthesis, and imposed a conditional liberty sentence in circumstances where the appellant showed no remorse and had a prior traffic record including an earlier negligent driving conviction.

Legislation and Cases Referenced

Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed), s 42
- Road Rules 2008 (NSW) (repealed), rr 38, 78, 79, 306
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 5AA, 5AD, 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 21A(3)(i)
- Rural Fires Act 1997 (NSW)
- State Emergency and Rescue Management Act 1989 (NSW), s 4

Cases:
- R v Wells [2016] NSWDC 169 (reasons for verdict below)
- R v Wells (No 2) [2016] NSWDC 313 (sentencing remarks below)
- R v Pogson (2012) 82 NSWLR 60
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Moffatt [2000] NSWCCA 174
- Royall v R (1991) 172 CLR 378; [1991] HCA 27