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Court of Criminal Appeal 7 October 2020

Bates v R

[2020] NSWCCA 259

Assault & violenceHomicideTraffic & driving
CRIMINAL LAW SENTENCE APPEAL WHERE APPLICANT WAS DRIVING A B DOUBLE VEHICLE ALONG A MOTORWAY SERIOUS OFFENDING

Citation: Bates v R [2020] NSWCCA 259
Court: Court of Criminal Appeal, NSW
Date: 7 October 2020
Judge(s): Simpson AJA, Rothman J, Bellew J (judgment delivered by Bellew J)

Background

The applicant was an experienced professional truck driver who, in the early hours of 14 October 2017, was driving a Kenworth B-double truck northbound on the Hume Motorway at Berrima. While travelling at approximately 95 to 100 km/h, he took his eyes off the road and removed both hands from the wheel to retrieve a drink. His vehicle left the carriageway, crossed a wide median strip, and entered the southbound lanes.

The truck collided with an oncoming vehicle, killing the front-seat passenger and causing serious injuries to the driver, including multiple rib fractures, a spleen laceration, and injuries requiring surgical repair. Two other southbound drivers were forced to take evasive action and collided with the applicant's trailers after they came to rest across both southbound lanes.

The applicant pleaded guilty in the District Court to dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. He was sentenced to an aggregate term of 4 years and 6 months' imprisonment with a non-parole period of 3 years, plus a 5-year driving disqualification. He sought leave to appeal on the ground that the aggregate sentence was manifestly excessive.

  • Whether the applicant's conduct constituted mere "momentary inattention" within the meaning of the guideline judgment in R v Whyte (2002), which generally attracts sentences toward the lower end of the range for this class of offence.
  • Whether the sentencing judge erred in the level of notional accumulation applied when combining the two counts into an aggregate sentence.
  • Whether the aggregate sentence of 4 years and 6 months' imprisonment with a 3-year non-parole period was manifestly excessive, having regard to sentencing outcomes in comparable cases.

Decision

The Court rejected the argument that this was a case of mere momentary inattention. The sentencing judge had found, and the Court of Criminal Appeal agreed, that the applicant made a deliberate decision to take his eyes off the road and then removed both hands from the wheel to replace a lid on his drink. This was not a brief lapse but a conscious choice made while operating a large heavy vehicle on a motorway, which elevated his moral culpability beyond the "typical" low-end case contemplated by the Whyte guideline.

The Court affirmed that the Whyte guideline does not operate as a rule or presumption. It functions as a check or guide, and the sentencing discretion must be exercised according to the particular facts. Where, as here, the offending does not fit the typical profile, strict application of the guideline is not warranted.

On the question of notional accumulation, the Court found no error. The sentencing judge had appropriately reflected the distinct harm suffered by the injured driver, whose injuries were serious and required surgical intervention, by partially accumulating the sentences for the two counts. The resulting aggregate was not disproportionate.

The Court also examined two comparable decisions cited by the applicant and found both were plainly distinguishable on their facts. In particular, neither involved a B-double vehicle driven by a professional driver who had made a deliberate choice to divert attention from the road, nor did either involve the same combination of fatality and serious injury to multiple victims. The ground of manifest excess was not established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Whyte guideline for dangerous driving occasioning death or grievous bodily harm is a guide, not a rule. Where the facts do not match the "typical" case described in the guideline, a sentencing court is not bound to apply it strictly.
  • A deliberate decision by a professional truck driver to remove both hands from the wheel of a B-double to retrieve a drink, while travelling at freeway speed, was held to exceed momentary inattention and to carry higher moral culpability.
  • In dismissing the appeal, the Court confirmed that partial accumulation of sentences across counts is appropriate where the victims suffered distinct and serious harm.
  • Comparable sentencing decisions will not support a finding of manifest excess unless they are sufficiently similar in their facts. Age, driving history, number of charges, and the nature of the vehicle and circumstances are all potentially distinguishing factors.
  • No error was established in the aggregate sentence of 4 years and 6 months' imprisonment with a 3-year non-parole period, having regard to the gravity of the offending and the absence of truly comparable outcomes in the cases cited.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1) and 52A(3)(c)

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (guideline judgment on dangerous driving offences)
- R v Clampitt-Wotton (2002) 37 MVR 340; [2002] NSWCCA 383
- Preston v R (2011) 57 MVR 346; [2011] NSWCCA 25
- Moodie v R [2020] NSWCCA 160
- FL v R [2020] NSWCCA 114
- Vaiusu v R [2017] NSWCCA 71
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194