New South Wales Court of Criminal Appeal CITATION : R v Tomson [1999] NSWCCA 308 FILE NUMBER(S) : CCA 60273/99 HEARING DATE(S) : 11 August 1999 JUDGMENT DATE : 11 August 1999 PARTIES : Regina v Jonathan Konstantine Tomson JUDGMENT OF : Meagher JA at 1; Simpson J at 8; Smart AJ at 11 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0012 LOWER COURT JUDICIAL OFFICER : Ducker DCJ COUNSEL : Crown: R.D. Ellis Respondent: P Byrne SC SOLICITORS : Crown: S E O'Connor Respondent: T A Murphy CATCHWORDS : Sentencing - whether custodial sentence appropriate in circumstances. ACTS CITED : s.52A Crimes Act 1900, S 5D Criminal Appeal Act , 1912, CASES CITED: R v Jurisic (1998) 101 A.Crim.R 259,. DECISION : Appeal dismissed. - 4 - IN THE COURT OF CRIMINAL APPEAL CCA: 60273/99 MEAGHER JA SIMPSON J SMART AJ Wednesday 11 August 1999 REGINA v JONATHON TOMSON JUDGMENT 1 MEAGHER JA: This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeals Act 1912 against the sentence imposed on the respondent, Mr Tomson, by his Honour Ducker QC DCJ at the District Court at Lismore on 30 April 1999. He had pleaded guilty before his Honour Blanch DCJ on 31 March 1999 at the District Court at Lismore to one count of dangerous driving occasioning death pursuant to section 52A of the Crimes Act 1900. 2 The proceedings were adjourned for sentence to Lismore District Court on 30 March 1999 where they came before his Honour Ducker DCJ. 3 His Honour received evidence and heard submissions before convicting and sentencing Mr Tomson to a recognisance imposed in the sum of $1000 and supervision by the Probation & Parole Service for six months. His Honour disqualified Mr Tomson for driving for the minimum term of six months and thereafter for twelve months he be restricted to driving to and from his place of employment. 4 The facts are simple and tragic. Mr Tomson was driving his de facto wife southwards along Pottsville Road behind another car for some time. The other car was going too slowly and he elected to endeavour to pass that other car and get in front of it. Unfortunately this manoeuvre involved crossing double yellow lines and what he did not realise was that there was another car coming in a northerly direction with which he came into collision. It was a tragic collision because it resulted in the death of his companion. The weather at the time of impact was fine and visibility was clear. 5 His Honour's judgment recognised that in these circumstances it would be most unusual not to impose a custodial sentence. There are very good reasons why this should be so. The crime under section 52 of the Crimes Act is a very serious one, is regarded as serious by parliament, regarded as serious by the Court and regarded as serious by the public. Mr Tomson knew of the double yellow lines; he knew it was illegal to cross them and his act must be said to have been intentional. However, his Honour found a number of circumstances which persuaded him not to send Mr Tomson to gaol. The following were amongst them: one was that Mr Tomson had a good driving record and was of an excellent character. He entered a plea of guilty. He suffered genuine remorse. That he had not taken either drugs or alcohol. That he was not driving at an excessive speed. That no passenger had issued any warning to him. That he was not committing any concurrent offence, that is to say, an offence in addition to the offence with which he was charged. That there was no failure to stop, no sense of abandonment of responsibility and he was not driving a heavy vehicle more lethal than the ordinary motor car that he was driving. 6 To these must be added one further matter, his Honour found that Mr Tomson's fatal mistake was due to momentary reckless error of judgment. It is important, in view of the language used in this Court in R v Jurisic (1998) 101 A.Crim.R 259, that that is exactly what his Honour found. His Honour did not find that there was momentary inattention and he could not so find but he did find that there was a momentary reckless error of judgment. With that finding I can see no possible error. 7 In those circumstances his Honour was, I think, persuaded to come to the extremely lenient result to which he did come. For similar reasons I would be in favour of dismissing the appeal, particularly if one adds to that the traditional prejudice against double jeopardy. That is the order which I propose to be made. 8 SIMPSON J: I agree. This is not a case which by reason of the decision of this Court in R v Jurisic (1998) 101 A.Crim.R 259, demands a custodial penalty. Jurisic was not intending to provide a bludgeon nor a straitjacket for sentencing Judges. It exclusively recognised the need and capacity in District Court Judges to exercise individual discretion in each case. It is, as it is identified, a guideline judgment. 9 The important features that take this case out of the second guideline pronouncement in Jurisic are the absence of any aggravating features and the presence of many mitigating features. This truly was a case of misjudgment and more readily fits within the first of the guidelines in Jurisic. It is the consequences of the act more than the act itself that makes this a serious case. The consequence of the tragic death of Ms Thomas cannot be minimised in its seriousness but it would not be right to look only at that consequence without having regard to the fact that the person who lost her life was also the de facto wife of the respondent. I cannot imagine that imprisonment would add to the deterrent quality that already attends this case. 10 I agree with the order proposed by the Presiding Judge. 11 SMART AJ: The respondent was driving his motor vehicle along a stretch of road behind a utility. He had done so for some considerable time and had been unable to pass. He then decided to pass the vehicle in front of him at a point where there were clearly marked double yellow lines upon the road. He made a deliberate decision to move out and pass on the wrong side of the road and in doing so to cross the double yellow lines. The respondent was familiar with this stretch of road. 12 The photographs which have been taken of the scene show that he was coming around a left-hand bend with a restricted view and that there was also a dip in the road. The purpose of double yellow lines is to warn of danger and that is emphasised by the physical topography. As a result of the action taken by the respondent his fiancee was killed. 13 This particular section under which the prosecution is brought has two critical parts to it: first of all the criminality of the conduct involved and the consequences and it is designed to reduce serious motor vehicle accidents. 14 In my opinion the sentence imposed does not reflect the objective gravity of the offence which I regard as exceedingly serious. It is not the worst type of case but it is, in my opinion, a case which warrants a custodial sentence. 15 I accept the subjective features are strong, as the Crown has submitted, but I would add a word of caution about attaching too much weight to psychiatric and psychological difficulties flowing from the impugned conduct. 16 For my part I would allow the appeal. We have not heard any of the material which the respondent would wish to place before the Court in re-sentencing so it is inappropriate for me to indicate, in the absence of that, the precise sentence which I would have in mind. 17 MEAGHER JA: The order of the Court therefore by majority is the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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