R v Woodward [2001] NSWCCA 90

New South Wales Court of Criminal Appeal

CITATION : R v Woodward [2001] NSWCCA 90 FILE NUMBER(S) : CCA 60105/00 HEARING DATE(S) : 21 March 2001 JUDGMENT DATE : 23 March 2001

PARTIES : Regina v Christopher Paul Woodward JUDGMENT OF : Studdert J at 1; Barr J at 37

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1158 LOWER COURT JUDICIAL Wall DCJ OFFICER :

COUNSEL : L.M.B. Lamprati (Crown) P. Byrne SC/J. Andrews (Applicant) SOLICITORS : S.E. O'Connor (Crown) Aitken McLachlan &Thorpe (Applicant)

LEGISLATION CITED : Crimes Act R v Sen [1999] NSWCCA 199 R v Jaworowski 108 A Crim R 489 R v Dhanhoa [2000] NSWCCA 257 CASES CITED: R v Gleeson [2000] NSWCCA 101 R v McKinney [1999] NSWCCA 51 R v Khatter [2000] NSWCCA 32 R v Hanlon [2000] NSWCCA 55 R v Kalanj (1997) 98 A Crim R 505 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60105/00

STUDDERT J BARR J

Friday 23 March 2001

REGINA v CHRISTOPHER PAUL WOODWARD

JUDGMENT

1 STUDDERT J: The applicant, Christopher Paul Woodward, stood trial in the District Court before Acting Judge Wall QC and jury charged with aggravated dangerous driving occasioning death. The applicant was convicted and sentenced to a term of imprisonment of eight years. His Honour found special circumstances and, accordingly, set a minimum term of five years and an additional term of three years imprisonment. 2 The applicant seeks leave to appeal against the sentence imposed. 3 The relevant facts as found for sentencing purposes were as follows: 4 On 10 January 1999 at about 11.30 pm the applicant was driving a motor vehicle on Barrenjoey Road. He had a passenger in the vehicle named Thomas Lang. The applicant was driving in a northerly direction when the vehicle left the road, eventually colliding with a power pole on the north-western corner of Polo Avenue which forms a T intersection with Barrenjoey Road on the western side of Barrenjoey Road. The passenger, Thomas Lang, died from injuries sustained in the collision. Blood analysis revealed that the applicant had a blood alcohol level at the relevant time of 0.216, which is over four times the prescribed limit. 5 The applicant and his now deceased passenger had worked together in a car dealer's yard. On the evening of Sunday 10 January 1999 the applicant drove the deceased to the Newport Arms Hotel where the applicant had a quantity of beer. Then the applicant and his passenger went to a café at Collaroy where they stayed until about eleven o'clock. Whilst in that café the applicant drank a quantity of beer and a quantity of vodka tonics. Having left the café, the applicant set off to drive his passenger home, and had travelled some 8-10 kilometres before the accident occurred. 6 The sentencing judge referred to the features of the roadway in the vicinity of the accident and I draw on what his Honour had to say in this regard. The applicant travelled along Pittwater Road, a main arterial road which became Barrenjoey Road at Mona Vale. The applicant proceeded through the intersection of Darley Street and Barrenjoey Road and had to negotiate a sweeping left hand bend to reach the point where Barrenjoey Road intersects with Polo Avenue. The applicant's vehicle was seen to be travelling at a speed described by an eye-witness as normal speed as it approached the left hand bend. The vehicle then proceeded in a sliding sideways movement, with the front of the vehicle pointing to the west and the boot to the east, continuing in that way until the front wheels impacted with the western kerb of Barrenjoey Road to the south of the intersection with Polo Avenue. The vehicle continued to move across the intersection with Polo Avenue, still sliding sideways, then mounted the kerb, crossed the grass verge and struck the telegraph pole. Then the vehicle left the ground and spun around, coming to rest beside the pole on the north side, with the engine facing east. 7 At his trial the applicant admitted he was the driver of the motor vehicle, that the vehicle was involved in a collision causing death and that at the time of that collision he was under the influence of intoxicating liquor in circumstances of aggravation. The only issue litigated was whether the death of the deceased was attributable to the fact that the applicant was under the influence of intoxicating liquor. The issue was a defence raised under s 52A(8) of the Crimes Act, it being contended on behalf of the applicant that the true cause of his vehicle leaving the road was a mechanical defect. 8 The finding by the jury that the applicant was guilty did not eliminate the need for the learned judge to consider whether the mechanical condition of the car played a role in the accident when he came to his task of sentencing the applicant. I shall refer later to the finding the judge made as to whether any mechanical failure occurred. 9 Turning to the subjective features of the case, the applicant was a young man twenty-four years of age at the time of the offence. He had no criminal record of any significance and the sentencing judge assessed the subjective circumstances as being "highly favourable" but for his very poor driving record. The applicant had first obtained a provisional licence at the age of eighteen but he lost that by reason of accumulation of demerit points after nine months. He obtained a further provisional licence in 1993 but lost that through the accumulation of demerit points in 1996. A probationary licence was issued that same year but that was lost also within a matter of months, for the accumulation of demerit points and in 1996 the applicant was convicted of driving with a high range prescribed concentration of alcohol and was disqualified for a period of twelve months. A probationary licence issued again in September 1997, and in December 1998 the applicant was issued with an unrestricted licence which he had only held for a matter of some three weeks before the fatal accident. His Honour rightly described the applicant's record as "a disturbing traffic record for a young driver." 10 That subjective circumstance apart, his Honour's assessment of the subjective features was, as I have already recorded, a highly favourable one. He had a history of regular employment and a history of regular engagement in voluntary community work. He enjoyed a reputation of being of good character, being highly regarded in his social circumstances. The judge found from material put in evidence that the applicant had manifested strong remorse and contrition for what had occurred and he found that the applicant was suffering from, and receiving treatment for, post traumatic stress disorder brought on by his reaction to the accident and to the death of his acquaintance. 11 Against this background, I turn to consider the submissions advanced on behalf of the applicant. 12 It was submitted that the overall sentence was manifestly excessive for these reasons: