New South Wales Court of Criminal Appeal CITATION : Regina v Sosefina KATOA [2000] NSWCCA 223 FILE NUMBER(S) : CCA 60781/99 HEARING DATE(S) : 2 June 2000 JUDGMENT DATE : 2 June 2000 PARTIES : Regina Sosefina KATOA JUDGMENT OF : Sully J at 1; Adams J at 31 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/0134 LOWER COURT JUDICIAL Karpin DCJ OFFICER : COUNSEL : M. Marien - Crown R. P. Greenhill SC - Appellant SOLICITORS : S. E. O'Connor - Crown W. G. McNally & Co. - Appellant LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 DECISION : Balance of term (17 months) to be served by way of periodic detention - no reduction in overall sentence of eighteen months. Court confirms disqualification imposed by Her Honour Judge Karpin. - orders in accordance with paras 1 - 7 of Short Minutes of Order. IN THE COURT OF CRIMINAL APPEAL 60781/99 SULLY J ADAMS J Friday 2 June 2000 REGINA v Sosefina KATOA JUDGMENT 1 SULLY J: The present applicant, Mrs Sosefina Katoa, pleaded guilty to a charge of having driven a motor vehicle in a manner dangerous to the public. Such an offence contravenes s 52A of the Crimes Act and attracts upon conviction a statutory maximum penalty of imprisonment for ten years. 2 The events giving rise to the charge occurred in Liverpool Road, Enfield, at about 5.45 p.m. on Friday 19 June 1998. The weather conditions at the time were fine and clear. The applicant was driving a four wheel drive motor vehicle west on Liverpool Road. She wished to make a right hand turn out of Liverpool Road into Wentworth Road. Liverpool Road was at the time a busy road with provision for three lanes of traffic travelling in each direction. There was an applicable speed limit of sixty kilometres per hour. 3 The intersection of Liverpool and Wentworth Roads was controlled at the time by traffic lights, and there was, to a vehicle travelling in the direction of the vehicle driven by the applicant, a designated right hand turn lane. It was dark, and vehicles in Liverpool Road were using their headlights. The intersection appears to have been reasonably well lit, having regard to a photograph identified as photograph 2, being a photograph giving a general night time view of the intersection, and being a photograph which was produced to this Court in aid of the arguments put to the Court in connection with the present application. 4 At the time at which the applicant came to the intersection, intending to make the right hand turn earlier described, a young man named David Bourke, was riding a motor cycle in an easterly direction in Liverpool Road; There appears to have been nothing in the slightest degree untoward about the manner of his driving that vehicle. The applicant, in fact, made to turn right out of Liverpool Road into Wentworth Road. As she did so the side of her vehicle and the front of the motor cycle driven by Mr Bourke came into collision. Mr Bourke was thrown from his motor bike and suffered injuries which proved to be fatal. 5 At the time of the collision the traffic control lights then installed at the intersection appear to have been working satisfactorily. They provided a green light and a green arrow in relation to right hand turning vehicles in Liverpool Road; but, apparently, only the round green light was showing at the time the applicant moved into her right hand turn in the direction of Wentworth Road. 6 The applicant was unable to give any logical explanation of her obvious failure to see the approaching motor cycle, except to suggest that in the traffic conditions obtaining at the relevant time, her perception of the presence of the motor cycle must have been obscured by the effect of the headlights of oncoming motor vehicles and, in particular, of an oncoming motor vehicle which was travelling a short distance behind the motor cycle. 7 Notwithstanding the inferences properly to be drawn from the bare fact of the applicant's plea, it became necessary for the learned sentencing Judge to make findings of fact bearing upon the question of the reasonable assessment of the culpability of the applicant for the particular collision. The learned sentencing Judge, her Honour Judge Karpin, dealt with this aspect of the case by making the following findings which are set out at p 5 of her Honour's remarks on sentence: "On the whole of the material which was tendered to the Court, I find that the (applicant) became stationary behind a vehicle waiting to turn right into Wentworth Road. Shortly thereafter, the first vehicle safely made a right hand turn in a car in the traffic. The (applicant's) vehicle remained stationary in the position where she had stopped behind the first vehicle, where she remained for a few seconds before accelerating quickly and making a right hand turn without again pausing at the stop line. She moved into the same gap in the traffic which the first vehicle had travelled through in making its turn. She safely negotiated the first two lanes of traffic, travelling east in Liverpool Road. However, as she travelled across the third lane the near side of her vehicle collided with the front portion of the Kawasaki motor cycle ridden by Mr Bourke." 8 There was some discussion during the course of argument on the present application concerning her Honour's reference to two lanes of traffic travelling east and to the relevance of a third lane. Nothing turns for present purposes upon those matters and the balance of the findings were certainly, in my opinion, open to her Honour. As to the assessment of the culpability of the acts occurring in accordance with those findings, her Honour made the following further findings which appear at pp 7 and 8 of the remarks on sentence: "In this case the course of driving which caused this accident was of short duration. There was no alcohol nor excess of speed involved. The dangerous manner of driving was more than momentary in attention but falls towards the bottom end of the scale for driving in a manner dangerous. The (applicant) made a right hand turn across three lanes of traffic without pausing at the stop sign (sic which I think it is intended to read 'line') to ensure that the road was entirely clear. She moved in one action from her stationary position in the right hand turn lane to make her right hand turn. She moved some five seconds at the most after the other vehicle had moved off. She did not see the motor cycle. There was nothing in the manner of riding the motor cycle which was unusual or which in any way contributed to this accident. Mr Bourke was a totally innocent victim. The prisoner failed in her duty to ensure that the intersection was clear and that she had adequate time to pass through it without endangering oncoming traffic." 9 In my respectful opinion, these findings were amply open to her Honour. 10 The subjective case that was made before her Honour, on the applicant's behalf, was a substantial and compelling one. It is not necessary to canvass the fine detail of the subjective case. It is sufficient to say that her Honour's remarks on sentence advert in all necessary detail to the relevant matters. 11 Her Honour brought the objective and subjective matters into balance in the form of a sentence of full time custody for a period of eighteen months apportioned between a minimum term of eight months and an additional term of ten months. Her Honour disqualified the applicant from driving for a period of three years from 22 November 1999. 12 It seems to me that her Honour was correct in her perception that the present case was not one of mere momentary inattention; and that it was not, either, a case in which it could be said that the applicant had simply abandoned her relevant responsibility as a driver on a public street. There is, of course, a very wide band of culpability between those two extreme points; and her Honour was faced with no easy task, if I may observe, in fixing at a proper point within that wide band, the culpability of the present matter. 13 As I have earlier remarked, her Honour came to the conclusion that the driving in question fell "towards the bottom end of the scale for driving in a manner dangerous". As I have earlier said, I respectfully agree that that assessment was amply open to her Honour. It seems to me that it then became necessary for her Honour to look with some care at what were in truth the two sentencing options available. One of them was a sentence of full time imprisonment. The other was a sentence of imprisonment ordered to be served by way of periodic detention. 14 I appreciate that, on a strict and pedantic view, there were available for consideration other penalties: for example, the making of a community service order, or the granting of a bond, or some non-custodial penalty of the kind. I myself do not think that it would have been a proper exercise of the relevant sentencing discretion in this case to have employed any of those other alternatives. It must be borne in mind that the offence of driving a motor vehicle in a manner dangerous to the public is not a trifling offence. When, as in the present case, it causes the death of another lawful user of the relevant highway, then, even more so, what has to be punished is a matter of real substance; and no weighting of the relevant subjective features can properly be allowed to extinguish a proper consideration of the compelling public interest to ensure that all people who are licensed to drive motor vehicles upon a public street, do it in a way which is not dangerous to other lawful users of the particular street. 15 Her Honour is, if I may observe, an extremely experienced primary Judge. I would not myself conclude readily, if indeed at all, that her Honour simply overlooked the availability of a sentence to be served by way of periodic detention as an option properly available for her Honour's consideration in the circumstances of the particular case. 16 Her Honour does not in terms mention that alternative; but, as I say, I would myself not infer from that, without more, that she simply did not advert to it at all. I think, however, that in a case of the present kind, where on what I consider to be a proper approach there are only the two available sentencing options, it is properly to be expected that a primary sentencing Judge will deal with each of them in turn in some specific way, especially when the end result is to be a sentence of imprisonment to be served by way of full time custody. I think that the failure to advert in a properly discriminating kind of way to the availability of periodic detention as a legitimate sentencing option for consideration in the present case manifests a sufficient error of law to warrant the intervention of this Court. 17 I would wish to say for myself, that I consider the case in that regard to be a borderline case; but the consequences to the applicant are of such a kind, that if there is any room for doubt about the matter, I think it is fair that she should have the benefit of it. 18 This Court must then consider for itself whether in terms of the Court's remit under s 6(3) of the Criminal Appeal Act, some other and less severe sentence than that imposed is warranted in law. Once again, I have to say that for myself, I consider the matter a borderline case. 19 That I have come to the conclusion, as I have, that the statutory question should be answered in a way favourable to the applicant does not convey any view of mine that the objective gravity of the offence here in question was insignificant, whether one speaks of it as being at the lower end, the middle end, the upper end, or some other arbitrarily denominated point in the relevant scale of culpability. 20 The considerations which in the end tip the scales in favour of this Court's intervention in fact, are the matters referred to in the two pre-sentence reports which have been placed before this Court. 21 One of them is dated 1 June 2000. The earlier one is dated 20 October 1999. The summary in the later of those reports is very brief and it is useful to cite it. It reads: "Although enduring difficult periods in life, Mrs Katoa has made positive contributions to the community and remained generally law abiding. Whilst accepting responsibility for the events, Mrs Katoa struggles to comprehend how she failed to see the victim in the reasonable driving conditions where she was not under the influence of any substance. It is considered that Mrs Katoa will benefit from ongoing counselling in relation to the offence and in an attempt to regain control over her life." 22 There are to be added to those considerations, family obligations, which are in the case of this applicant very compelling in their incidents. 23 I note that the applicant has served in custody one month of the eighteen months of her aggregate sentence. She was granted by a Judge of this Court, - although not, I should perhaps, add a member of the present Bench, - bail pending appeal to this Court. That cannot have been done, given the terms of s 30AA of the Bail Act, without a positive finding by the Judge who granted the bail of "special or exceptional circumstances" of the kind contemplated by that section of the Bail Act. 24 That itself is a further vouching for the unusual circumstances of this case which, I would wish to emphasise for myself, stands in an unusual situation such as would not justify its being regurgitated endlessly hereafter as some kind of precedent for an assertion that the Court is weakening in its previously declared stance concerning the seriousness with which dangerous driving will be viewed, and the substantial way in which it will normally be punished. 25 For myself, I think that justice would be done in the present case if the balance of the term imposed by her Honour Judge Karpin, that is to say the balance of seventeen months, were served by way of periodic detention. 26 Short minutes of order have been prepared to give effect to that conclusion. A copy of them will be signed by my brother Adams J and by myself and will be attached, for ease of reference, to the engrossment of the present judgment. 27 I would not myself countenance any reduction in the overall sentence of eighteen months. What I have previously said, in the course of these reasons, will sufficiently indicate why I hold that view. 28 Neither would I countenance any reduction in the disqualification that was imposed by her Honour. No particular reference is made in the short minutes of order to that matter; and it should, therefore, be noted that the orders now made do not in any way interfere with the disqualification; but that, on the contrary, this Court confirms the disqualification ordered in the lower Court. 29 I propose, therefore, that orders be made in accordance with pars 1 to 7 of the short minutes of order signed by both members of the present Bench; and that there be a further order confirming in terms the licence disqualification ordered in the Court below. 30 I propose orders accordingly. 31 ADAMS J: I agree with the learned presiding Judge but I wish to add some short remarks of my own. The nub of this case seems to me to be that the appellant did not see the motor cycle driven by the unfortunate young man. The reason for that seems to have been the driving conditions at the time, in particular the lights of the oncoming vehicle which led to a confusion of her perception. If she had been driving properly, however, and stopped at the stop line, this accident would not have happened. It happened because of haste. Even so, it is markedly different from the circumstance where a person sees a danger and then decides to risk the collision which is plainly potentially present. 32 I am quite satisfied that the sentence which this Court proposes falls fairly and squarely within the decision of this Court in R v. Jurisic (1998) 45 NSWLR 209. The culpability demonstrated here is at the bottom end of the scale. I do not think that anything in the orders of this Court suggest any departure from the guidelines set out in that authority. Having said that, I agree with the orders set out and specified in the short minutes and I also agree that the order concerning disqualification should be confirmed. 33 SULLY J: There will be orders accordingly. ********** 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.