Regina v Meyers [2002] NSWCCA 116

New South Wales Court of Criminal Appeal

CITATION : Regina v Meyers [2002] NSWCCA 116 FILE NUMBER(S) : CCA 60207/01; 60231/01 HEARING DATE(S) : 20 March 2002 JUDGMENT DATE : 20 March 2002

PARTIES : Regina v Benjamin Patrick Meyers JUDGMENT OF : Dunford J at 23; Carruthers AJ at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0049 LOWER COURT JUDICIAL His Honour Judge Gibson OFFICER :

COUNSEL : Crown - P. Ingram Applicant - C.B. Craigie SC SOLICITORS : Crown - S.E. O'Connor Applicant - D.J. Humphreys CATCHWORDS : Sentence appeal - dangerous driving - no question of principle. LEGISLATION CITED : Crimes Act 1900 s52A(1)(c) CASES CITED: Regina v Jurisic (1998) 45 NSWLR 209 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60207/01 60231/01

DUNFORD J CARRUTHERS AJ

Wednesday, 20 March 2002 REGINA v Benjamin Patrick MEYERS Judgment 1 CARRUTHERS AJ: The applicant, Benjamin Patrick Meyers, seeks leave to appeal against a sentence imposed on him by Gibson DCJ at the Bathurst District Court on 5 April 2001. The Court has found this to be a troublesome appeal and one demanding anxious consideration, particularly bearing in mind the youth of the applicant. 2 The applicant was arraigned for trial before Gibson DCJ and a jury of twelve on 12 February 2001, upon an indictment which contained one count, viz dangerous driving occasioning death pursuant to s 52A(1)(c) of the Crimes Act 1900. This offence carries a maximum penalty of imprisonment for ten years. 3 The offence was alleged to have been committed on Kangarooby Road, Gooloogong. On 15 February 2001 the jury returned a verdict of guilty. In his remarks on sentence his Honour was satisfied to the requisite standard that the applicant was convicted because he was driving, to a significant extent, on the incorrect side of the road, approaching the crest of a hill in a situation where he had no view of approaching traffic until such time as it was necessary for him to take evasive action to avoid an oncoming motorcyclist on his correct side of the road. Regrettably the evasive action that was taken was at too late a stage. There was a violent collision in which the motorcyclist, a married man with a family, lost his life. 4 That must be taken to be the basis upon which his Honour sentenced the applicant and although the matter has been canvassed at great length by counsel before this Court, I am satisfied that it was clearly open to his Honour to conclude that the jury were satisfied that, at the relevant time the applicant was driving in a manner dangerous, as outlined above. Further that such driving occasioned the death of the motorcyclist, approaching the crest of the hill on his correct side of the road. 5 His Honour sentenced the applicant to imprisonment for a term of four years commencing on 5 April 2001 and expiring on 4 April 2005, and fixed a non-parole period of two years to expire on 4 April 2003. 6 The applicant was born on 30 March 1980 and accordingly was twenty-one years of age when he stood for sentence. According to his Honour the applicant was educated to Year 10 and left school because there was no Year 12 at his particular school. His Honour said he had always been a hard worker, performing labouring type work and work with horses in the country and was prepared to go out and find work when it was not easily available in his area. He lived at Gooloogong and at the time of the accident was residing with a young woman, in obviously inadequate premises, in the applicant's parents' home. She was pregnant at the time of the commission of the subject offence and, presumably, the child has now been born. 7 It is clear from the evidence that the road upon which this incident occurred was one which was well known to and often traversed by the applicant. Regrettably, despite his youth the applicant did not have a good prior driving record. On 19 August 1997 he was convicted at Cowra Children's Court of dangerous driving and a fine of $1000 with court costs was imposed and he was disqualified from driving for eighteen months. On the same date the applicant was convicted of not making a U-turn with safety and again fined $1000 with costs. He lodged an appeal against both these convictions, which came before the Cowra District Court on 1 April 1998. In relation to the drive manner dangerous charge the appeal was dismissed and the conviction confirmed. In lieu of the fine imposed by the learned magistrate, however, a fine of $700 was imposed plus court costs; and the period of disqualification was reduced to twelve months as from 1 April 1998. As it transpired it was only two months after the applicant was re-issued with a provisional licence following the disqualification that this offence was committed. In relation to the make U-turn without safety charge, the appeal was also dismissed and the conviction confirmed. The fine was reduced to $500 plus court costs. 8 The facts in relation to the offences dealt with by the Cowra Children's Court at first instance were before his Honour and they demonstrated an extremely serious disregard by the applicant for his responsibility to other road users and the six or seven passengers who were, at the time, travelling in his vehicle. However, as Gibson DCJ correctly pointed out, this bad prior driving record does not justify increasing the sentence by reason thereof. However, the benefit of a good prior record to be taken into account in mitigation of the sentence for the subject offence was not available to him. 9 A pre-sentence report dated 23 March 2001, under the hand of Mark Martin, Probation and Parole Officer of Young District Office, was before his Honour. Under the heading "Attitude to Offence" Mr Martin recorded the following: "Mr Meyers indicated that he did not accept the verdict of guilty and maintained that he had been driving in a safe manner in inherently dangerous circumstances. He claimed that he had been involved in an unavoidable, unfortunate and 'freak' accident and that 'I wouldn't change the way I drove that day'. However, he indicated that, on the basis of legal advice and the costs involved, he would not pursue an appeal and would accept the consequences of the guilty verdict. Mr Meyers expressed his regret for his offence in terms of the death of the victim and the effect upon the victim's family, and the legal and personal consequences for himself, including the prospect of imprisonment. He stated that he had 'been set back a year and three quarters of my life'." 10 His Honour also had before him a report from Duffy Barrier Robilliard, psychologists, dated 21 March 2001. Ms Anna Robilliard, who signed the report, administered a series of psychometric tests. Under "Conclusions" she stated (inter alia): "It is opined that Ben's particular personality and behaviour would make him a target should he be placed in custody. His relative inability to relate to others could see him victimised and very isolated. His age alone would make him vulnerable." 11 That is naturally a matter of concern. Earlier in the report she said under "Clinical Opinion": "This young man is of sound average cognitive ability. His profile on the personality test given described marked schizoid attributes and compulsive behavioural elements. A lack of social aptitude and desire for close social involvement and an apparent deficit of emotional responsiveness is characteristic of such individuals. At a reactive level Ben also tested out as extremely anxious and he is experiencing symptoms consistent with post-traumatic stress disorder." 12 At p 5 of the report the applicant's father was referred to: "In a separate interview Ben's father confirmed that since the accident his son had been withdrawn and seldom goes out to socialise. He said Ben had said very little about the accident to him. He noticed Ben had lost about 15 kg in weight since the accident occurred despite the fact he appears to eat well." 13 There is no doubt that the applicant has expressed regret at the death of the motorcyclist and spoken briefly about how he imagined the man's family would feel. According to Ms Robilliard his statements were sincere but not deeply emotional, as was characteristic of this young man "as will be described later in the report". She then goes on to describe his having marked schizoid attributes and compulsive behavioural elements. 14 When questioned by counsel for the Crown in the sentence proceedings before Gibson DCJ the appellant was referred to the parole officer's report. It was then put to him (p 5): "Q. In a section factors relating to the offending the parole officer comments you do not accept the verdict of guilty, you maintain you've been driving in a safe manner, you were involved in an unavoidable, fortunate (sic) freak accident? A. Yes. Q. Do you still stand by that? A. Yes." 15 The applicant was then questioned by his Honour as follows (p 6): "HIS HONOUR: Q. And you also said I wouldn't change the way I drove that day is that right? A. I'm not sure your Honour but if I said it it'd be on that paper. Q. Well that's what she (sic) says you said, did you say that? A. Yes your Honour. Q. Is that your view? A. No not really because -- Q. I would hope not you see surely you don't suggest that you should drive on the incorrect side of the road approaching a curve such as you're approaching it and coming up a hill, do you? A. No your Honour." 16 In written submissions on behalf of the applicant it was submitted by Mr Craigie SC that it would seem that the applicant's offence could best be characterised as an example of exercising bad judgment, whilst on a poor and potentially dangerous road. These submissions were then developed. They do not, however, with respect, satisfy me that the finding by his Honour was in error, in view of the jury's verdict. 17 Reference was, of course, made to the guideline judgment in Regina v Jurisic (1998) 45 NSWLR 209, where reference is made by the Chief Justice to the most severe punishment being appropriate for offenders, in relation to this offence, who have abandoned responsibility for their driving. Mr Craigie contended that this case cannot fall within that rubric. Learned counsel for the Crown, on the other hand, contended that it was capable of falling within that rubric and, if not, it was approaching very closely to it. 18 I certainly, with respect, am unable, despite the extremely persuasive argument that was put before this Court, to accept that this was really an example of exercising bad judgment whilst on a poor, potentially dangerous road. Indeed, the exhibits before the Court, including photographs and a large map or chart prepared by the appropriate experts in the New South Wales Police Service, demonstrate in my view that this was a serious breach indeed. Albeit, it may well not be an abandonment of responsibility, nevertheless as the Crown contended it is high in the scale. It has been explained to us that at the point where the skid marks from the Magna sedan driven by the applicant commence to the area of impact falls within the following measurements: at the point where the skid marks commence the applicant's vehicle was only one metre from the far side of the right hand side of the road, and at the area of the point of impact, the skid marks were only 1.2 metres from the right hand edge of the road. 19 The applicant was denied, by his plea of not guilty, which he was perfectly entitled to enter, to a discount which would have been attracted by a plea of guilty and, indeed, his Honour acknowledged no additional penalty could possibly have been imposed arising from the maintaining of a plea of guilty. 20 His Honour said during his remarks on sentence, "I think he is sorry". 21 Statistical material has been placed before us in relation to prior sentences for the subject offence where there have been pleas of guilty. Those statistics relate both to the head sentence and the non-parole period. They are of course, as Mr Craigie fairly acknowledged, subject to the well known qualifications that have been expressed by this Court in a number of cases. They certainly indicate that these sentences are towards the high end of the range, both from a head sentence point of view and perhaps, more particularly, from a non-parole period point of view. 22 The special circumstances found by his Honour were the applicant's youth and good prospects of rehabilitation. 23 Having carefully considered the evidence and the written and oral submissions by both parties, for which the Court is very much indebted in a difficult case, I am nevertheless unpersuaded that the sentences imposed by his Honour, either from a head sentence point of view or a non-parole period point of view were outside the sentencing discretion which was available to his Honour. 24 I would propose therefore that leave to appeal be granted but that the appeal be dismissed. 25 DUNFORD J: I agree. The orders of the Court will therefore be as proposed by Carruthers AJ. I note that there is also on file an appeal against conviction and there is a notice of abandonment as to conviction only, dated 1 January 2002. In the circumstances the Court will note the notice of abandonment of appeal as to conviction only and the appeal against conviction will be dismissed. ***********