Regina v MENZIES [1999] NSWCCA 222

New South Wales Court of Criminal Appeal CITATION : Regina v MENZIES [1999] NSWCCA 222 FILE NUMBER(S) : CCA 60472/98 HEARING DATE(S) : 2 August 1999 JUDGMENT DATE : 2 August 1999

PARTIES : The Crown (Appellant) William John Menzies (Respondent) JUDGMENT OF : Newman J at 1; Sperling J at 24; Greg James J at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1225 LOWER COURT JUDICIAL OFFICER : Coleman DCJ

COUNSEL : P G Berman (Crown) J S Andrews (Respondent) SOLICITORS : S E O'Connor (Crown) T A Murphy (Respondent) CATCHWORDS : Crown appeal; Dangerous driving causing death; Home detention ACTS CITED : Crimes Act 1900 R v Smith (1997) 95 A Crim R 373 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 Everett v R (1994) 181 CLR 295 DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60472/98 NEWMAN J SPERLING J GREG JAMES J

MONDAY, 2 AUGUST 1999

REGINA v William John MENZIES

JUDGMENT

1 NEWMAN J: This is an application for leave to appeal by the Crown against a sentence imposed by his Honour Judge Coleman in the District Court on 14 August 1998. 2 The respondent had pleaded not guilty before the District Court to a charge of dangerous driving causing death contrary to the provisions of s 52A(1)(C) of the Crimes Act 1900. 3 After a trial which lasted between 22 April and 28 April 1998 the jury had found the respondent guilty of the offences charged. Under that section of the Crimes Act a maximum penalty of ten years penal servitude is allowed. 4 In the event his Honour sentenced the respondent to a minimum term of imprisonment of twelve months, commencing on 14 August 1998 and expiring on 13 August 1999, with an additional term of six months commencing on 14 August 1999 and expiring on 13 February 2000. His Honour also ordered that the term was to be served by way of home detention. It is the Crown's submission that his Honour's sentence was manifestly inadequate and that this Court should intervene. 5 I shall later in the reasons turn to the progress of this matter before this Court, a matter which I am of the view is of some importance. 6 However, I presently turn to the facts of the matter as found by his Honour. His Honour in determining the matters of fact when passing sentence made a number of minor errors which in my view do not affect the considerations of this Court. His Honour found quite properly that the offence took place at Luxford Road, Shalvey, a suburb of Sydney. He correctly found that the respondent was driving his car in the kerb side lane on the northern side of the roadway where there were two lines of traffic travelling east. 7 The collision took place on the pedestrian crossing approximately 21 metres east of the western kerb alignment of Hopman Crescent. At the point where the pedestrian crossing intersected the median strip there were three lanes for traffic travelling west, in the opposite direction. 8 The victim of the accident was walking north across Luxford Road away from the school which was located on the north-eastern corner of Hopman Crescent. She was struck when approximately three paces short of completing the crossing. 9 The respondent was travelling east in Luxford Road in the lane nearest the kerb side strip at a speed in excess of 70 kilometres per hour. His Honour rightly found that other traffic was moving on the road at that time at about that speed. 10 His Honour found that the respondent did not see the pedestrian on the crossing until he was in the intersection of Hopman Crescent and Luxford Road. His Honour, again in my view correctly, found that at the time he saw the pedestrian she was moving between the car that was stationary on the pedestrian crossing and the median strip of Luxford Road. 11 Though the respondent applied his brakes it is claimed that the respondent failed to keep a proper lookout. Indeed his Honour so found for the following reasons: after the respondent had turned the corner on the western side of Sedgman Crescent he had an open view for at least 150 metres. The motorist travelling behind the respondent was able to see the pedestrian on the crossing and also the vehicle which had stopped by the median strip slowing before coming to a stop. 12 It is claimed that his Honour's finding that the respondent had failed to keep a proper lookout was one well and truly supported by the evidence at the trial and in my view the failure of the respondent to keep a proper lookout was one of considerable significance in terms of criminal culpability. 13 I might add that his Honour in determining the facts concluded that the Crown had not proved a second allegation of culpability, namely that the respondent should have been aware that the brakes on his vehicle were not operating as they should have. I say no more other than to observe that his Honour in so finding appears to me to have committed no error. 14 His Honour took into account a number of matters including the respondent's driving history. Suffice it to say that the driving history of the respondent, who is a young man, having been born on 26 January 1971, is an appalling one, including convictions for disobeying traffic lights, speeding, and in driving without any licence and driving with a blood alcohol content above that prescribed by law. 15 His Honour in determining that this was a case which was suitable for home detention, followed the decision of this Court in R v Smith (1997) 95 A Crim R 373. At 376 this Court observed: "An order for home detention is a collateral order to a sentence of imprisonment and accordingly is not a matter to be taken into account by this Court in assessing the adequacy of a term of imprisonment imposed in the court from which the appeal is brought." 16 That statement of principle was criticised and in my view effectively overruled by this Court in R v Jurisic, (1998) 45 NSWLR 209. At p 249 Sully J set out a number of matters which represents the common law of this State in relation to the imposition of a sentence of home detention: "1. The judge in question should bear in mind that there is nothing dutiful, and there is certainly nothing humane, in holding out to any offender what amounts to a false promise. This Court is called upon on far too many occasions to uphold a Crown appeal against sentence; and thereupon to commit to prison an offender who has been given some form of bond, or the benefit of some form of community service order, or the benefit of periodic detention, in a context where no dutiful performance of the primary sentencing function could reasonably have justified such leniency. 2. It follows, therefor, that before exercising the relevant statutory discretion in favour of making the reference for assessment, the judge should take carefully into account the considerations: (a) that, in the real world, it will be assumed, whatever the judge might say to the contrary, that a favourable assessment will entail the making, in fact, of a home detention order; (b) that the making of such an order will entail, conformably with the principles earlier herein discussed, a significant watering down of the sentence of imprisonment; and, therefore, a significant diminution in the effectiveness of the sentence in terms of proper retribution; of proper personal deterrence; and of proper general deterrence; (c) that the consequence of making a home detention order might result in the converting of a sentence that is effectively unappellable because it is within the range of a proper sentencing discretion, into a sentence which is properly appellable because it has been turned, effectively, into a sentence that is no longer within such a range." 17 The head sentence passed by the learned trial judge, were it not for the fact that he ordered that the minimum term be served by way of home detention, in my view would not have been one made in error. It is in my view at the lower end of the range of sentence which should be passed for such matters. However, it is plain from what has fallen from this Court in Jurisic that his Honour did in fact fall into error and this is not a case where home detention ought to have been ordered as a sentencing option. Let me say that one could hardly be critical of his Honour for so doing because Jurisic had not been decided by this Court at the time when his Honour passed sentence. However, the fact is that Jurisic has now been decided and it is apparent that this is not an appropriate case where home detention should have been ordered. Accordingly, error has been demonstrated. 18 However, a matter of discretion arises. In Everett v R (1994) 181 CLR 295 the question was exercised of the discretion of the court in matters involving Crown appeals At p 385 Brennan, Deane, Dawson, and Gaudron JJ stated: "As has been said above, the deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellant's had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation." 19 This case involves questions of the exercise of discretion because, as I have said, the sentence of home detention expires on 13 August, 1999 that is in eleven days time. In other words, the respondent has practically served the home detention, less onerous, I stress, than a sentence of full-time imprisonment. 20 His Honour originally when determining the length of sentence which should be passed, made his determination on 19 June 1998. After receiving a report from the Probation Service indicating that home detention was an available option, his Honour again passed sentence on 14 August. The court file indicates part of the transcript was received by this Court on 23 October 1998. Remarks on sentence were received on 4 November 1998, it was listed for hearing on 6 November 1998 and adjourned. The balance of transcript was received on 19 November 1998 and it was not until 29 March 1999 that the matter was listed for hearing today. 21 There is in fact no adequate explanation to explain why there was such a delay in supplying transcript of the remarks on sentence and also perhaps no real explanation of why the delay occurred after the adjournment. It seems to me that this is a case where the system has failed to properly bring the matter before the court at a proper time. While I stress that there is nothing before this Court which enable this Court to point to any particular person or party as being at fault, however the fact is that delay has occurred which has resulted in the appeal coming on very shortly before the expiration of the minimum term. 22 In my view even though error has occurred in this matter and that in fact a full-time custodial sentence should have been imposed, the delay which has occurred in my view falls squarely within the considerations expressed by the High Court in Everett and which have been followed by this Court thereafter. 23 In my view therefore this is a case where as a matter of discretion the court should not grant leave to the Crown to appeal. 24 SPERLING J: I agree. 25 GREG JAMES J: I also agree. In my view the Crown appeal should be dismissed. 26 NEWMAN J: The order of the court is that leave to appeal is not allowed.