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Court of Criminal Appeal 25 November 2020

Ellis v R

[2020] NSWCCA 303

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL COLLISION BETWEEN SEMI TRAILER AND TWO CARS APPEAL AGAINST SENTENCE DISMISSED.

Citation: Ellis v R [2020] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 25 November 2020
Judge(s): Hoeben CJ at CL; Harrison J; Bellew J

Background

The appellant was a semi-trailer driver who, in the afternoon of 1 December 2017, struck a stationary vehicle from behind on the Northern Road near Penrith. The collision pushed that vehicle into oncoming traffic, where it struck a second car. One victim suffered serious abdominal and orthopaedic injuries requiring multiple surgeries; the other sustained a spinal fracture.

The appellant had been driving at no less than 92 km/h in an 80 km/h zone, following too closely, and briefly looked away from the road to check his fuel gauge. The truck also had a defective braking system and a lengthy bonnet fitted with an insect deflector that obscured 14 metres of road immediately ahead. Although the braking defects extended the stopping distance, expert analysis confirmed the collision would still have occurred without them.

The appellant pleaded guilty in the Penrith District Court to driving in a manner dangerous occasioning grievous bodily harm (s 52A(3), Crimes Act 1900) and causing bodily harm by misconduct in charge of a vehicle (s 53, Crimes Act 1900). He received an aggregate sentence of three years with a non-parole period of 18 months. He sought leave to appeal, arguing the sentencing judge erred in assessing objective seriousness and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the appellant's moral culpability, or the objective seriousness of the offending, was aggravated by his actual knowledge of or recklessness as to the braking deficiencies in the vehicle
  • Whether the sentencing judge erred in treating the appellant's ignoring of the speedometer reading as an aggravating factor going to objective seriousness or moral culpability
  • Whether the aggregate sentence of three years with an 18-month non-parole period was manifestly excessive

Decision

On Grounds 1 and 1A, the Court of Criminal Appeal found no error in the sentencing judge's approach. The appellant was a professional truck driver who had driven the vehicle for an extended journey from Victoria. He was in a position to appreciate both the braking deficiencies and that he was travelling above the speed limit. The sentencing judge was entitled to treat awareness of these matters as elevating the objective seriousness of the offending, even accepting that the braking defects alone would not have prevented the collision.

The court noted that whether framed as moral culpability or objective seriousness, the sentencing judge's findings were open on the evidence. The distinction between the two concepts did not affect the outcome, as the same factual findings supported either characterisation.

On Ground 3, the court compared the aggregate sentence against a range of comparable cases involving dangerous driving causing serious injury, including decisions involving professional heavy vehicle drivers. None of the comparable decisions demonstrated that the aggregate sentence of three years was unreasonable or plainly unjust. The court concluded the sentence fell within the available range and was not manifestly excessive.

Ground 2, concerning the rejection of an Intensive Correction Order and the adequacy of reasons for that rejection, was abandoned by the appellant before the hearing.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal against sentence is dismissed.

Key Takeaways

  • A professional truck driver's awareness of braking defects and of travelling above the speed limit are matters a sentencing court may treat as aggravating factors going to the objective seriousness of dangerous driving offences, even where the mechanical defect alone would not have prevented the collision.
  • No error arises where a sentencing judge treats the same factual matters as relevant to both moral culpability and objective seriousness, provided those findings are open on the evidence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of three years with an 18-month non-parole period for dangerous driving occasioning grievous bodily harm and related offending by a professional driver was within the permissible range.
  • Comparing the sentence to a range of analogous cases is the appropriate methodology when assessing a claim of manifest excess; no single comparable case is determinative.
  • Under ss 52A(3) and 53 of the Crimes Act 1900, there is no standard non-parole period for either offence, leaving the court with a broad discretion in fixing the non-parole period within the statutory maximum.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 66
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- AB v The Queen (1999) 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Bugmy v The Queen (2013) 249 CLR 571
- Costello v R [2017] NSWCCA 32
- Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
- Edwards v R [2020] NSWCCA 141
- JM v R (2014) 246 A Crim R 528
- Markarian v The Queen (2005) 228 CLR 357
- Markham v Regina [2007] NSWCCA 295
- Mitreski v R; R v Mitreski [2008] NSWCCA 301
- Morabito v Regina [2007] NSWCCA 126
- Muldrock v The Queen (2011) 244 CLR 120
- Obeid v R (2017) 350 ALR 103
- Preston v Regina [2011] NSWCCA 25
- R v Jurisic (1998) 45 NSWLR 209
- Regina v Clampitt-Wotton [2002] NSWCCA 383
- Regina v Craig Besant [2003] NSWCCA 388
- Regina v Errington (2005) 157 A Crim R 553
- Regina v Gardiner [2004] NSWCCA 365
- Regina v Whyte (2002) 55 NSWLR 252
- Thornton v R [2020] NSWCCA 257