Citation: R v Fong (No. 2) [2020] NSWDC 275
Court: District Court of New South Wales
Date: 4 June 2020
Judge: Abadee DCJ
Background
The appellant was convicted in the Wyong Local Court of negligent driving occasioning grievous bodily harm under s 117(1)(b) of the Road Transport Act 2013 (NSW). The offence arose from an incident in November 2018, when he reversed his utility vehicle at a petrol station and struck a pedestrian, Mrs Horsey, who was returning to her car. She suffered severe injuries to both legs, including degloving of the skin from knee to ankle on her left leg and a chronic wound requiring debridement and skin grafting on her right heel.
The Local Court sentenced the appellant to an intensive correction order of 7 months and disqualified him from driving for 18 months. He appealed against both conviction and sentence. His conviction appeal was dismissed on 15 May 2020 (reported as R v Fong [2020] NSWDC 214). The severity appeal proceeded before Abadee DCJ.
Legal Issues
- Whether the sentence imposed by the Local Court was manifestly excessive having regard to objective seriousness, culpability, and subjective circumstances
- How the appellant's degree of culpability should be assessed, given the precautions he had taken before reversing
- What weight to give the appellant's genuine remorse, good character, and cooperation with authorities
- Whether a non-conviction order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate, and what sentencing form would avoid the unintended consequence of automatic licence disqualification
Decision
Abadee DCJ characterised the objective seriousness of the offending as sitting slightly above the low range for an offence of this kind. The driving occurred over a very short distance, involved momentary inadvertence and misjudgement rather than planning, and the charge was one of negligence rather than the more serious mental states (recklessness or furiousness) also covered by s 117(1)(b). Nonetheless, the severity of Mrs Horsey's injuries elevated the objective gravity of the offence.
On culpability, his Honour drew a careful distinction between objective seriousness and moral responsibility. The appellant had taken some precautions before reversing, including checking over his shoulder and consulting his rear-vision camera. His culpability was reduced by the fact that he placed mistaken confidence in a flawed camera system. However, culpability remained because the appellant was actually aware of a blind spot in his rear vision before commencing the manoeuvre and proceeded anyway, prioritising obtaining a parking space over the safety of pedestrians behind him.
The subjective case in favour of the appellant was strong. He had no relevant prior offending, displayed genuine and immediate remorse by rendering aid to the victim, provided good character references from long-standing associates, and had suffered significant personal hardship including the theft and destruction of his business vehicle. His cooperation in volunteering an interview was acknowledged, though his Honour found it did not constitute "assistance" within the meaning of s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Having initially indicated that a community corrections order of 8 months was appropriate, his Honour was informed that this would automatically trigger a 12-month driving disqualification, an outcome inconsistent with the Court's intention to preserve the appellant's ability to drive for work and community purposes. Accordingly, the Court made an order under s 10(1)(b), finding the appellant guilty but declining to record a conviction, and imposed a conditional release order of 8 months. The earlier disqualification was set aside.
Orders Made
- The sentence was varied; the appellant was sentenced to a conditional release order for a term of 8 months, commencing 4 June 2020, subject to standard conditions under s 98 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- The order was made under s 10(1)(b): a finding of guilt was recorded, but no conviction was entered
- The continuation of the order was conditional on the appellant committing no further offences and appearing before the Court if required during the term
- The disqualification from driving was set aside
Key Takeaways
- Objective seriousness and culpability are conceptually distinct considerations in sentencing: serious injuries can elevate the former while the latter may remain comparatively low where the offender took some precautions and acted from momentary misjudgement rather than recklessness
- Under s 117(1)(b) of the Road Transport Act 2013 (NSW), negligence sits at the lower end of the scale of mental states covered by the provision, a factor relevant to assessing both objective seriousness and culpability
- Immediate assistance rendered to a victim after an accident is a recognised mitigating factor in sentencing, consistent with Thewlis v R (2008) 186 A Crim R 279
- Volunteering information to police in an ERISP interview does not constitute "assistance" for the purposes of s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Where a proposed sentencing order would carry an automatic consequence, such as licence disqualification, that is inconsistent with the sentencing court's intentions, the form of order may be reconsidered to reflect the court's actual purpose
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 10, 23, 66, 73, 73A, 98
- Road Transport Act 2013 (NSW), ss 117, 203
Cases:
- Blundell v R (2008) 70 NSWLR 660
- Dyno Nobel Asia Pacific Pty Ltd v Environmental Protection Authority [2017] NSWCCA 302
- Jodeh v R [2011] NSWCCA 194
- Khoury v R [2011] NSWCCA 118
- Le v R [2019] NSWCCA 181
- R v Fong [2020] NSWDC 214
- R v Kain [2004] NSWCCA 143
- R v Mitchell (2007) 177 A Crim R 94
- Thewlis v R (2008) 186 A Crim R 279
- Veen v The Queen (No 2) (1987) 164 CLR 465