Local Court of New South Wales CITATION: P v Sharman [2006] NSWLC 36 JURISDICTION: Criminal PARTIES: Police John George Sharman FILE NUMBER: PLACE OF HEARING: Manly Local Court DATE OF DECISION: 10/20/2006 MAGISTRATE: Magistrate A George CATCHWORDS: Sentence - Dangerous driving occasioning grievous bodily harm LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure0 Act CASES CITED: REPRESENTATION: Sargeant Morgan Mr Mcanulty ORDERS: Convicted. Good behavior bond under S.9 Crimes (Sentencing Procedure) Act imposed for 18 months.Disqualified from driving for a period of months. Sentencing Remarks The accused John George Sharman, with the benefit of legal advice, has pleaded guilty to a charge of Dangerous Driving occasioning grievous bodily harm. The offence is found in section 52 A of the Crimes Act 1900. Section 52 A has been reserved by Parliament for the most serious acts of dangerous driving. In order to be guilty of an offence an accused person must be shown to have driven a motor vehicle in a manner dangerous to the public involving a degree of negligence that places other road users at risk. That degree of negligence is something less than is necessary for the Crown to prove to establish manslaughter by gross criminal negligence. By what is an extraordinary coincidence of misfortune, the victim of this offence is a five year old child whose name is Sophie Delezio. This little girl has been the subject of considerable publicity because she had been one of the victims of an earlier terrible accident involving the negligent management of a motor vehicle. Her recovery from shocking injuries had seen her raised to national prominence as a benchmark for courage and resilience in the face of adversity. As a result of this accident Miss Delezio was again drawn to national attention particularly as her injuries were so severe that there were grave fears for her survival. Fortunately, if press reports are correct, it seems she has recovered to some extent but that her overall prognosis is uncertain. However it needs to be emphasised that while the victim of this offence makes this case newsworthy, the criminality of the offence is the same as it would be if the victim was any other little girl, or indeed any other person. This is important because it is evident at a number of levels that the case may be categorised as less serious than the ordinary case of a prosecution under section 52 A of the Crimes Act. The decision by prosecuting authorities to remit the matter to the local court for finalisation is a primary indicator of the degree of criminality perceived to be present. In fact Mr Sharman was also charged with Negligent Driving (Occasioning Grievous Bodily Harm) and "Not give way to pedestrian on crossing motor vehicle", offences under the Road Transport (Safety and Traffic And management) Act 1999 42 (1) (2) (b) and Regulation 81(2) of the Australian Road Rules. These charges were withdrawn by the prosecution following Mr Sharman's decision to plead guilty to the section 52 A offence. It seems to me there are reasons for discomfort about his decision because I suspect it has been coloured dramatically by the glare of publicity arising from the identity of his victim rather than as a realistic reflection of the true criminality of the offence. Consequently his guilty plea has considerable utilitarian value, given that it was entered at the earliest practicable opportunity. Mr Sharman is 81 the years old. His driving record dates from 1948. That record contains only one entry, a one point speeding offence from February 2004. He has no criminal record. He served with distinction in the R.A.A.F. during the Second World War as an electrical fitter and maintenance engineer, maintaining front-line aircraft engaged in the defence of Australia. Mr Sharman lives alone. His wife died in August 2003 after a prolonged battle with cancer. Mr Sharman's family physician has indicated that in August 2005 Mr Sharman was subjected to a medical examination at the request of the NSW Roads and Traffic Authority in accordance with their standard requirements for drivers of advanced years. That examination found that there were no significant abnormalities or relative/absolute contraindications to Mr Sharman lawfully holding a drivers licence. At its highest, the prosecution case is that the accused approached a pedestrian crossing on French's Forest Road at Seaforth at a speed 10 km an hour below the speed limit. He did not slow or stop at the crossing with the result that the passenger's side front portion of his Holden Apollo collided heavily with the stroller in which the little girl was seated. Another vehicle was stationary at the crossing, having given way to the child's carer who was pushing the three wheel stroller onto the crossing. It seems the child's carer proceeded across the crossing notwithstanding that the defendant's vehicle had not slowed or stopped. Her statement was that she did not see the defendant's vehicle before the impact. Mr Sharman stopped his vehicle approximately 40 m past the crossing. Mr Sharman was taken to Manly Hospital and treated for shock. After release from hospital he was taken to Manly Police Station where he was subjected to an electronically recorded interview. He gave free and frank answers to all questions and was plainly doing all that he could to assist police. In the course of that interview the accused stated that the sun was in his eyes affecting his vision. He was wearing prescription glasses at the time of the kind that tinted when in the sun. He indicated that the sun visor was down. Mr Sharman stated that he did not see the stationary vehicle to his left on the westbound carriageway nor did he see pedestrians crossing the road. I am informed by counsel for Mr Sharman that his vision was tested after the accident to ensure that his glasses were properly prescribed and that following that examination no difficulties were found with the prescription. In his record of interview Mr Sharman states that the angle of the sun was such as to compromise proper vision of the road. The evidence of other drivers on the road at the same time tends to support that assertion. In the circumstances I think it can be accepted that sun glare was a significant factor in the accident. According to the police fact sheet, the pedestrian crossing is approximately 100 m west of the sharp bend in French's Forest Road near the Seaforth Public School. Police say that the road is in good condition and that westbound traffic negotiates a moderate ascending gradient of approximately 5.7 -- 6.0%. Police say at the time of the accident there were three pedestrian crossing advisory signs facing westbound traffic as well as long zigzag lines painted in the westbound lanes one and two prior to the crossing. It is significant to note that this was the position prior to the accident but within a matter of hours thereafter the Roads and Traffic Authority substantially increased the visibility of the warnings surrounding the crossing and ultimately installed traffic lights. This would seem to constitute recognition that the pre-existing signage was inadequate and that the crossing was dangerous. Accordingly it must be inferred that the dangerous, inadequately marked crossing was also a significant factor contributing to the accident. Contrition. There is no question of Mr Sharman's contrition. Immediately after he was released from hospital he gave police a full and frank interview concerning the events. I have been provided with a copy of a letter he wrote to the next day to Sophie Delezio and her parents expressing his devastation at what had occurred and praying for Sophie's full recovery. He has pleaded guilty to the most serious charge preferred against him by police. Mr Sharman was suspended from driving by police on the fifth of May 2006 and he has not sought reissue of the licence. Penalty The defendant is an 81 year old man with no criminal convictions and a driving record with one blemish in 60 years of driving. He is obviously sincerely contrite. On any reasoned analysis of his manner of driving it is difficult to conclude that this case has elements that would place it beyond the lower level of criminality for a charge under Section 52A of the Crimes Act. It is relatively unusual for cases of this kind to be concluded in Local Courts. The available statistics from the Judicial Commission of New South Wales indicate that there have only been 10 cases involving defendants over 50 years of age, who pleaded guilty, finalised in Local Courts since April 2002. Of those cases one defendant was sentenced to full-time imprisonment, one defendant was sentenced at home detention two defendants were dealt with by suspended sentences, one defendant performed community service, two defendants were bound over under section 9 of the Crimes (Sentencing Procedure) Act and three defendants were dealt with by fines. In fact over the same period there were only 110 such guilty pleas for all age categories of offender dealt with in Local Courts. The penalties applying to all categories of offenders ranged from bonds under section 10 (no conviction) through to full-time custodial sentences. Only nine defendants in total were sentenced to full-time prison. This is a surprising statistic given the Court of Criminal Appeal's guideline judgment in R v. Whyte which produces the proposition that in cases of dangerous driving a "custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement." The inference is that in the 101 cases dealt with in Local Courts, that did not result in a full-time custodial sentence, there was a low level of moral culpability. This might be suggestive of prosecutions being instituted for more serious offences than were really represented by the facts asserted. There seems to be no other logical consequence of such a statistical anomaly if, in fact, the law is being applied properly in all cases. In Whyte, the Court of criminal appeal identified eleven aggravating factors which would increase the moral culpability of a defendant. They are: i. Extent and nature of the injuries inflicted. ii. The number of people put at risk. iii. Degree of speed. iv. Degree of intoxication or of substance abuse. v. Erratic or of aggressive driving. vi. Competitive driving or showing off. vii. Length of the journey during which others were exposed to risk. viii. Ignoring of warnings. ix. Escaping police pursuit. x. Degree of sleep deprivation. xi. Failing to stop. It seems to me that it is only i. (the extent and nature of the injuries inflicted) and viii. (the ignoring of warnings) which may have any application to the circumstances of this case. It is beyond question that the little girl's injuries were extremely severe and that because of them, there were real fears for her survival. The defendant's management of his motor vehicle very nearly caused the child's death. However it is surprising that no formal Victim Impact Statement was provided with the prosecution materials and the court does not have medical evidence of the long-term impact, if any, of the accident on the child's future. At lunchtime today I was given a statement from the informant that provides some details of Sophie Delizio's ongoing treatment as result of both the terrible accidents, and of the impact on the rest of her family. I will not repeat the detail here but it is clear that there are very difficult times ahead and that the whole family has been traumatised by these events. The extent to which Mr Sharman has "ignored" warning signs is uncertain because it appears it has to be accepted that sun glare was a factor in the commission of the offence. His "momentary inattention" is the foundation of the offence. If he was distracted from seeing the pedestrian on the crossing and the car stopped on the left lane, it is probable that he was also distracted from seeing any warning signs as well. The fact that the warning lights and signs at the scene were substantially upgraded within 24 hours is testament to their inadequacy at the time of the accident. It seems to me that no reasoned assessment of the level of criminality or moral culpability of this defendant could reach a conclusion that he should be sentenced to imprisonment for this offence. This man has led a blameless life, he has served his country in wartime, he has expressed the sincerest contrition by his words, conduct and his plea of guilty to this charge under section 52 A of the Crimes Act, and his life has been changed forever by these events. The probation officer's report confirms both Mr Sharman's contrition and the degree to which the accident and its aftermath have impacted on him. Consequently there is absolutely no benefit to the community in seeing this elderly man punished by a sentence of imprisonment. Sadly, the offence for which he has entered a plea of guilty is so serious that it would be inappropriate for him to be dealt with under section 10 of the Crimes (Sentencing Procedure) Act, that is without proceeding to a conviction. The objectives of sentencing have been described as rehabilitation, denunciation and deterrence. In this instance I see no need for Mr Sharman's rehabilitation, and the sequence of events together with the attendant publicity has by itself taken care of the second objective. However given the terrible injuries suffered by Sophie Delezio as a result of his momentary inattention, as a measure of deterrence to the community at large, Mr Sharman must be convicted. Parliament has determined that a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act is an appropriate alternative to a custodial sentence. I believe that the community's interest in seeing appropriate punishment for this offence will be satisfied by the defendant entering such a bond to be of good behaviour and to appear for sentencing if called upon during the next 18 months. Conviction for this offence brings with it a mandatory disqualification from driving. Disqualification is in part as a punishment but also a protection for the community from drivers who commit the more serious offences under the traffic laws. Mr Sharman was first issued with a drivers licence in 1948. His driving record reveals one speeding offence in 2004. His drivers licence was suspended by police following the offence. Again, nobody could sensibly suggest that a driving record of that kind reflects a person who is a threat to the community. He has shown over a long period of time that he is a responsible, careful and law-abiding driver. While the law suggests that he should be disqualified for three years, I believe that such a period is unreasonable in the circumstances. It would essentially mean that he might never drive again. With respect to the defendant, he is certainly at an age when his capacity to manage a motor vehicle might ordinarily be under review, but I do not believe that disqualification for an extended period of time would be fair to him or in the best interests of the community. He will be disqualified for the minimum period provided for under the law of twelve months from the date that police suspended his driver's licence. I would however recommend that the Roads and Traffic Authority subject him to appropriate testing for age drivers before reissuing a drivers licence to him in the future. This is an extraordinary and distressing case. Its impact on Sophie Delizio and her family, and on the defendant, will not be diminished by anything the Criminal Justice system can achieve. I would urge those in the media, who must inevitably report its conclusion, to be sensitive to that reality, and to resist the temptation to sensationalise or dramatise these tragic events. Magistrate Andrew George DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.