Citation: Elphick v R [2021] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 21 July 2021
Judge(s): Basten JA, Walton J, Adamson J
Background
The applicant was driving south along the Old Hume Highway near Tumblong when he crossed into the westbound lanes of the Hume Highway (M31), a divided freeway with a 110 km/h speed limit. He failed to give way at clearly signed intersections despite having an unobstructed view of approximately one kilometre in both directions. His vehicle struck the driver's side of a white four-wheel drive towing a campervan, causing it to roll onto its roof.
The driver of the struck vehicle died at the scene. His wife, a passenger, suffered a fractured collarbone requiring surgery, ongoing nerve damage, musculoskeletal pain, and Post Traumatic Stress Disorder. The applicant had no alcohol in his blood and was familiar with the road, having travelled it regularly. His only explanation was that an "A" pillar on his vehicle may have obscured his view, though he later admitted that proper observation would have revealed the oncoming vehicle.
The applicant pleaded guilty to dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm under the Crimes Act 1900 (NSW). The District Court at Wagga Wagga sentenced him to an aggregate term of three years' imprisonment with a non-parole period of two years, after a 25% discount for his early guilty plea and a finding of special circumstances.
Legal Issues
- Whether the sentencing judge overstated the applicant's moral culpability by characterising the conduct as more than "momentary inattention"
- Whether the sentencing judge properly assessed and rejected the application for the sentence to be served by way of Intensive Correction Order (ICO)
- Whether the aggregate sentence of three years' imprisonment was manifestly excessive, given the applicant's subjective circumstances
Decision
Ground 1: Moral culpability. The Court of Criminal Appeal rejected the submission that the conduct amounted to mere momentary inattention. The sentencing judge had correctly identified several compounding factors: the applicant was on one of Australia's busiest roads, was familiar with the intersection, knew vehicles would be travelling at or near 110 km/h, stopped at the median strip for less than a second (if at all), and admitted he would have seen the approaching vehicle had he looked properly. The Court confirmed this conduct constituted an egregious want of care, creating a substantial risk of collision with catastrophic consequences. No error of principle or fact was established.
Ground 2: ICO application. An ICO (Intensive Correction Order) is a custodial sentence served in the community under strict conditions, available as an alternative to full-time imprisonment. The sentencing judge had assessed the applicant's risk of reoffending as low regardless of whether an ICO or full-time custody was imposed, but concluded that the purposes of general deterrence would not be sufficiently served by an ICO. The Court of Criminal Appeal described the sentencing judge's treatment of the ICO application as "model," and the ground was not made out.
Ground 3: Manifest excess. A sentence is manifestly excessive where the result is unreasonable or plainly unjust, even without demonstration of a specific identifiable error. The Court found that the starting points for the indicative sentences (three years for the death offence, two years for the grievous bodily harm offence, before the guilty plea discount) were well within the available range given the maximum penalties of ten and seven years respectively. Because the challenge to the moral culpability assessment had failed, there was no foundation for the broader argument that the subjective case outweighed the objective seriousness. The aggregate sentence was open to the sentencing judge and was not manifestly excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A failure to look properly before crossing a high-speed freeway, in circumstances of clear visibility and no intoxication, can constitute an egregious want of care rather than mere momentary inattention, supporting a finding of high moral culpability.
- The distinction between "momentary inattention" and more serious negligent driving depends on the nature of the road, the driver's familiarity with conditions, the visibility available, and the foreseeable consequences of the failure to observe.
- Refusal of an ICO was upheld where, despite a low assessed risk of reoffending, the sentencing court found the purposes of general deterrence required full-time custody. General deterrence can independently justify imprisonment even where personal deterrence is not a significant factor.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that where a challenge to the objective seriousness assessment fails, it becomes correspondingly difficult to establish that subjective circumstances alone render the sentence excessive.
- Under s 52A of the Crimes Act 1900 (NSW), the gist of the relevant offences includes both the dangerous character of the driving and the consequences caused. The Court treated the taking of one life and infliction of grievous bodily harm on another as weighty factors in assessing the overall sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death and grievous bodily harm)
- Criminal Appeal Act 1912 (NSW), s 5 (leave to appeal against sentence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 66 (sentencing purposes; Intensive Correction Orders)
Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 (manifest excess as a conclusion not requiring demonstration of patent error)
- Thai v R [2009] NSWCCA 314 (moral culpability and momentary inattention on the Hume Highway)