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Court of Criminal Appeal 21 June 2023

Peberdy v R

[2023] NSWCCA 144

Traffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE ON VEHICLE COLLISION

Citation: Peberdy v R [2023] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 21 June 2023
Judges: Davies J, Ierace J, R A Hulme AJ

Background

The appellant was a licensed driver who, in March 2020, was travelling on the Golden Highway near Dunedoo with cruise control set at 97 km/h. While engaged in repeated mobile phone calls (hands-free) with his wife during a period of poor reception, his vehicle crossed onto the wrong side of the road and struck an oncoming vehicle head-on. Two people in the oncoming vehicle died at the scene: the driver, Shannon Sibley (who was eight to ten weeks pregnant), and an infant passenger referred to as John. A toddler referred to as Anna suffered serious spinal injuries. Two other occupants sustained injuries requiring hospitalisation.

The appellant pleaded guilty to two counts of dangerous driving occasioning death and two counts of dangerous driving occasioning grievous bodily harm under s 52A of the Crimes Act 1900 (NSW). He was sentenced in the District Court to an aggregate term of five years' imprisonment with a non-parole period of three years.

He sought leave in the Court of Criminal Appeal to appeal against his sentence on two grounds: that the sentencing judge made factual errors about his driving conduct, and that her Honour mis-characterised the objective seriousness of the offences.

  • Whether the sentencing judge mistook key facts about the appellant's driving conduct, causing the sentencing discretion to miscarry.
  • Whether the sentencing judge erred in her assessment of the objective seriousness of the dangerous driving offences.

Decision

Ground 1: Alleged factual error

The appellant argued that the sentencing judge wrongly concluded this was "not one of momentary inattention," contending that the available evidence pointed only to a brief departure from his lane as the vehicle tracked straight through a slight left-hand bend. Ierace J rejected this. The tyre mark evidence showed that, at the point the appellant began evasive action, more than 60 per cent of his vehicle's width was already on the incorrect side of the road. The Court found the sentencing judge was entitled to treat any alternative explanation (that the vehicle had simply tracked straight through a curve) as speculative and insufficient to reduce culpability. The finding that the incursion lasted "a matter of seconds" was described as a conservative estimate.

Ground 2: Objective seriousness

The appellant also argued that the sentencing judge overstated the seriousness of the offences and wrongly assessed his moral culpability as "significant." The Court applied the familiar principle from House v The King that appellate intervention in sentencing requires error of a specific kind, not merely a different view of the appropriate sentence. Ierace J found the judge's assessments were within the bounds of reason and supported by the evidence. Although none of the specific aggravating factors identified in R v Whyte was present, the sentencing judge remained entitled to make the findings she did given the overall circumstances.

The Court unanimously granted leave to appeal but dismissed the appeal on both grounds.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's assessment of objective seriousness will not be disturbed on appeal unless the appellant establishes error of the kind identified in House v The King, meaning something more than a disagreement about the appropriate weight given to the facts.
  • A finding that a dangerous driving incident was "not one of momentary inattention" can be supported where physical evidence (such as tyre marks showing sustained lane departure) is inconsistent with a momentary lapse, even if an alternative speculative explanation is available.
  • The absence of specific aggravating factors identified in R v Whyte does not preclude a sentencing court from characterising a defendant's moral culpability as significant, provided that characterisation is consistent with the overall evidence.
  • Under s 52A of the Crimes Act 1900 (NSW), dangerous driving occasioning death carries a maximum of 10 years' imprisonment, and dangerous driving occasioning grievous bodily harm carries a maximum of seven years; neither offence carries a standard non-parole period.
  • Speculative explanations for a vehicle's movement that are not established by evidence carry little mitigatory weight when agreed facts point to a sustained and substantial departure from the correct lane.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c) and s 52A(3)(c)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Fuller v R [2022] NSWCCA 203