Reported Decision : 140 A Crim R 45 New South Wales Court of Criminal Appeal CITATION : R v CHRISTOFF [2003] NSWCCA 52 HEARING DATE(S) : 25 February 2003 JUDGMENT DATE : 17 March 2003 JUDGMENT OF : Sheller JA at 1; James J at 71; Smart AJ at 72 DECISION : 1 Appeal against conviction dismissed; 2 Leave to appeal against sentence granted but appeal against sentence dismissed. CATCHWORDS : Criminal Law - Motor Vehicle - Driving in a manner dangerous to another person - Whether driving dangerous - Case put to jury - Whether and to what extent resultant damage and injury may be considered - Criminal Law - Sentence - Factors to be taken into account - Driving offences - Driving occasioning death or grievous bodily harm - Guidelines for sentencing - Special circumstances - Relevant considerations - Where history of attitude of disobedience to the law LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Jiminez v The Queen (1992) 173 CLR 572 McBride v The Queen (1966) 115 CLR 44 R v Cameron (2002) 76 ALJR 382 R v Camilleri (unreported) CCA 8 February 1990 R v Hain (1966) 85 WN (Pt 1) 7 R v Howland (unreported) CCA 1999 10 R v Jurisic (1998) 45 NSWLR 209 R v Kalanj (1997) 98 A Crim R 505 CASES CITED : R v Kama (2000) 110 A Crim R 47 R v Marlin (unreported) CCA 10 September 1997 R v McDonald [1998] NSWCCA 60397/98 R v Qutami (2001) NSWCCA 353 R v Saunders (2002) NSWCCA 362 R v Simpson (2001) 53 NSWLR 704 R v Whyte (2002) 55 NSWLR 252 Veen v The Queen (No 2) (1988) 164 CLR 456 Wong v The Queen (2001) 207 CLR 584 PARTIES : Appellant - Scott William CHRISTOFF Respondent - Crown FILE NUMBER(S) : CCA 60078/02 COUNSEL : A C Haesler - Appellant G I O Rowling - Crown SOLICITORS : D J Humphreys - Appellant S E O'Connor - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0044 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60078/02 SHELLER JA JAMES JA SMART AJ REGINA v Scott William CHRISTOFF The appellant was convicted of dangerous driving occasioning the death of his de facto partner and sentenced to imprisonment for three years and eight months with a fixed non-parole period of two years and nine months. He appealed against both conviction and sentence. At trial, the Crown had urged the jury to consider the resulting damage to the car and the injury to the deceased in their consideration of whether the appellant's driving had been dangerous or not. The appellant complained that the Crown prosecutor had implied that the damage and injury themselves qualified the appellant's driving as being dangerous to the public. This complaint had not been squarely put to the trial Judge, nor had any complaint been made at the time about the summing up. The appellant had a lengthy criminal history including numerous offences of dishonesty and a series of driving offences, including a similar offence that had occurred two weeks prior and for which the appellant had been disqualified for twelve months and placed on a s9 bond for two years. There was evidence that he may not have seen a speed limit sign and also that he had been extremely upset about having caused the death of his girlfriend. HELD (by Sheller JA, James J and Smart J agreeing) That the Crown prosecutor's remarks did not lead to any miscarriage of the trial; R v Hain (1966) 85 WN (Pt 1 ) (NSW) 7 cited; McBride v The Queen (1966) 115 CLR 44 cons. The sentencing Judge erred in finding that the appellant ignored the speed limit sign and also in finding that the appellant showed no remorse or contrition and it was therefore open to the Court to review the sentence imposed at trial. The preferred expression of the guideline relevantly should be that where the offender's moral culpability is high, a full-time custodial head sentence of less than three years would not generally be appropriate. The appellant's manifest and continued disobedience of the law is an important consideration; R v Jurisic (1998) 45 NSWLR 209 cons., R v Whyte (2002) 55 NSWLR 252 foll. The sentencing Judge was required to impose a sentence that properly reflected the objective seriousness of the offence and to fix a sentence that would ensure that the time the appellant spent in prison reflected all the circumstances of the offence including its objective seriousness and the need for general deterrence and met the fundamental purpose of punishment, namely the protection of society; R v Simpson (2001) 53 NSWLR 704 cons. The discretion to treat matters as special circumstances is constrained by the requirement that the non-parole period appropriately reflect the criminality involved in the offence. In the present case it was not shown that the sentencing Judge erred in not finding special circumstances or that his decision not to do so miscarried. Legislation cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases: Jiminez v The Queen (1992) 173 CLR 572 McBride v The Queen (1966) 115 CLR 44 R v Cameron (2002) 76 ALJR 382 R v Camilleri (unreported) CCA 8 February 1990 R v Hain (1966) 85 WN (Pt 1) 7 R v Howland (unreported) CCA 1999 10 R v Jurisic (1998) 45 NSWLR 209 R v Kalanj (1997) 98 A Crim R 505 R v Kama (2000) 110 A Crim R 47 R v Marlin (unreported) CCA 10 September 1997 R v McDonald [1998] NSWCCA 60397/98 R v Qutami (2001) NSWCCA 353 R v Saunders (2002) NSWCCA 362 R v Simpson (2001) 53 NSWLR 704 R v Whyte (2002) 55 NSWLR 252 Veen v The Queen (No 2) (1988) 164 CLR 456 Wong v The Queen (2001) 207 CLR 584 ORDERS 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted but appeal against sentence dismissed. ********** IN THE COURT OF CRIMINAL APPEAL 60078/02 SHELLER JA JAMES J SMART AJ Monday, 17 March 2003 REGINA v Scott William CHRISTOFF Judgment 1 SHELLER JA: Introduction The appellant, Scott William Christoff, appeals against his conviction and sentence on a charge that on 26 February 2000 at Orange he drove a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact which occasioned the death of Beverley Ann Kennewell (the deceased). The appellant pleaded not guilty to the charge. The trial took place at Bathurst before his Honour Judge Bellear and a jury of twelve beginning on 29 January 2002. The jury returned a verdict of guilty on 6 February 2002. Judge Bellear sentenced the appellant to imprisonment for a period of three years and eight months to commence on 8 February 2002 and to expire on 7 October 2005 and fixed a non-parole period of two years and nine months expiring on 7 November 2004. 2 The offence charged was under s52A(1)(c) of the Crimes Act 1900 and carried a maximum penalty of ten years imprisonment. Facts 3 The appellant was born on 2 September 1974. The facts were that the appellant and the deceased, with whom he was then living, left Wagga on 26 February 2000 at approximately 1 pm in a 1993 white Commodore owned by the deceased. The appellant drove the vehicle to a friend's place at Cootamundra and then to a house at Millthorpe which belonged to the parents of one Troy Davis. They arrived there at approximately 7 pm. The appellant and the deceased waited until Troy Davis got dressed before leaving to drive to the house of one Charlene Howarth in Orange. Charlene was the girlfriend of Troy Davis and travelled with Troy in his vehicle on the trip to Orange. 4 The appellant and the deceased were driving on Huntley Road generally in a northerly direction behind the vehicle driven by Troy Davis at a distance of about 100 metres. Both vehicles had their headlights on, the appellant's being on low beam. The appellant told police in an ERISP interview conducted after the accident that he and the deceased were talking during the trip. The radio was on but turned down low enough for each to hear the other. The appellant, who had grown up in the Blayney area, had driven to Orange on the same road before. He had driven on Huntley Road "a fair bit" but not for a long time. In the interview he stated he was aware of a dip in the road. The dip was in the area of a 'T' junction with Bloomfield Road which joined Huntley Road on the western or left hand side as the appellant was driving. He further told police that the speed limit on Huntley Road from Spring Hill was 100 kilometres per hour all the way up to the 60 kilometres per hour sign. As far as he knew the speed limit was 100 kilometres per hour before going into the dip, through the dip and out of the dip. He stated he was travelling at approximately 100 kilometres per hour going into the dip and reduced speed. 5 Troy Davis estimated the appellant's vehicle to be travelling between 110 and 115 kilometres per hour. Charlene, who had been a driver for five or six years, estimated the speed to be 110 to 120 kilometres per hour. In cross-examination she agreed he may have been travelling at 100 to 110 kilometres per hour. 6 The dip was south of a slight right hand bend. There were tyre marks on the incorrect side of the road and further skid marks on the correct side of the road where the car left the road, went through a paddock fence and rolled over several times. By the time it came to a stand still or shortly thereafter the passenger was dead. The appellant was injured. 7 Senior Constable Andrews of the Crash Investigation Unit observed the route of the car from markings on the roadway as follows: 1. On the eastern grass shoulder of Huntley Road about 29.2 metres north of the northern alignment of Bloomfield Road, he saw the commencement of a number of tyre marks. These tyre marks continued in a northerly direction on the eastern shoulder of the road. 2. On the eastern shoulder of Huntley Road about 53.3 metres north of the northern alignment of Bloomfield Road, he saw a white guidepost that had been knocked out of the ground. It had extensive damage occasioned to it. There was a tyre imprint on it. 3. On the eastern edge of the roadway about 81.9 metres north of the northern alignment of Bloomfield Road, the tyre marks on the eastern shoulder of the road crossed back onto the sealed section of the road and yawed across the road in an anti-clockwise direction to the north-west. 4. In the centre of Huntley Road about 104.7 metres north of the northern alignment of Bloomfield Road the tyre marks formed a crossover indicating that the vehicle was travelling sideways offside (driver's side) just across the carriageway. 5. About 116 metres north of the northern alignment of Bloomfield Road the tyre marks left the sealed section of roadway on the western alignment continuing across the grass strip at an angle to a break in the boundary fence. 6. Facing in a general southward direction in a grass paddock about 65.5 metres west of the break in the wire fence Senior Constable Andrews saw a white Holden Commodore sedan, registration BEV 192 (the vehicle driven by the appellant). 8 Detective Senior Constable Andrews made an assessment of the appellant's speed after examination of the crash site and said the speed before the vehicle lost control was not less than 100 kilometres per hour. "It could have been more". 9 Detective Sergeant Payne, the crime scene expert, gave evidence that as the vehicle negotiated the right-hand curve it veered onto the eastern shoulder just north of the intersection of Bloomfield Road. He said the vehicle went into a progressive drift across the road. 10 There was no street lighting for that area. The weather was fine and the bitumen road surface was dry and in good condition. A single lane was provided for traffic travel in each direction. The carriageway was separated by painted unbroken separation lines and was about 6.8 metres wide. The speed limit for the area was 80 kilometres per hour. There was an 80 kilometre per hour sign on Huntley Road 280 metres south of the dip. The appellant had not been looking at the speedometer. 11 In his remarks on sentence, Judge Bellear said that he understood that the jury was satisfied that the appellant was travelling at a speed of not less than 100 kilometres per hour in an 80 kilometres per hour speed zone immediately before leaving the road. 12 The appellant told police in his interview that something caught his eye on the left as he approached the 'T' intersection of Bloomfield Road and Huntley Road. He looked across to the left as he thought there was a car coming out of a side road and when he looked back he found that his car was going off the road on the right-hand side of the road. He told police he looked to the left for approximately half a minute. Judge Bellear accepted that his attention was diverted for a period significantly less than that stated, although it was for a considerable period at approximately 20 kilometres per hour above the indicated speed limit of 80 kilometres per hour. This was not significantly challenged. 13 According to the Crown, the evidence was that the appellant was driving the motor vehicle along Huntley Road towards Orange in an area of the road where the speed limit was 80 kilometres per hour at a speed of not less than 100 kilometres per hour. The appellant looked to his left, through the left-hand passenger window, when he saw what he thought was a car on a side road and when he looked back he found that his car was going off the right-hand side of the road. While the near-side wheels were on the surfaced area of the road and the off-side wheels were on the unsurfaced verge, the appellant lifted his foot from the accelerator, instead of accelerating, so that there occurred "back off overdrive" or "back off oversteer", by reason of which he lost control of the motor vehicle. It thereupon spun, hit a post, crossed the road to the further side and spun and rolled no less than three times as a result of which the passenger was killed. Remarks on sentence 14 In his remarks on sentence Judge Bellear said he was satisfied the jury's finding of guilt of driving in a manner dangerous causing death was based on the offender's inattention and speed of more than 100 kilometres per hour, being at least 20 kilometres per hour over the indicated speed limit. He was satisfied on the evidence that the 80 kilometres per hour speed- indication sign was in place at the time of the accident. There was no evidence at the trial as to when the sign was erected. 15 His Honour was satisfied that the jury did not accept the appellant's contention that he was not aware that 80 kilometres per hour speed- indicating signs were in place as indicated on the evidence. The Judge accepted that the appellant ignored the 80 kilometres per hour speed-indicating speed signs and maintained his speed of at least 100 kilometres per hour, being at least 20 kilometres per hour over the indicated speed. 16 He was further satisfied that the inattention of the appellant was more than just momentary inattention and was significant. In the interview the appellant said "something caught my eye and I looked to the left and cause I know that road was there and I thought it might have been another car coming out", (question and answer 133 and 134). "So you turned away from the road?" A. "Yeah. Looking up that other road, yeah", (question and answer 135) and "I looked nearly virtually straight out the left hand passenger window", (answer to question 139). 17 No person, passenger or bystander, either died or was injured in the incident other than the deceased, and the appellant, who suffered a broken shoulder and lacerations to his face. Judge Bellear was satisfied that alcohol played no part in the accident. A blood sample taken at Orange Base Hospital from the appellant resulted in negative alcohol in the blood. 18 There was no victim impact statement. 19 The appellant's criminal history began in 1993 with numerous offences of dishonesty. In 1995 he was convicted for offences of possess and self-administer a prohibited drug. In 1999 he was convicted for an offence of behaving in an offensive manner. In the same year he was convicted in the Victorian Magistrate's Court of trafficking amphetamines, using amphetamines, and exceeding 100 kilometres per hour speed limit in a heavy vehicle. 20 His driving offences began on 27 February 1992 with a charge of speeding for which he was fined. On both 15 January 1993 and 5 February 1993 he was charged with negligent driving and fined. On 27 March 1993 he again was charged with negligent driving. On 15 December 1993 the Magistrate at the Blayney Local Court fined him. He was disqualified from holding a licence for three months. On 4 February 1995 he was charged with mid-range PCA (prescribed concentration of alcohol) and on 27 February 1995 he was fined and disqualified for twelve months. On 22 April 1997 he was charged again with negligent driving and on 20 August 1997 he was fined. On 12 February 2000 he was charged with driving in a manner dangerous. On 9 May 2000 he was convicted in his absence with a warrant to issue. Also on 12 February 2000 he was charged with driving without using a monitoring device. On 9 May 2000 he was convicted in his absence and fined. Fourteen days later on 26 February 2000 the offence, the subject of this appeal, occurred. 21 The warrant for the offence of driving in a manner dangerous on 12 February 2000 was executed and the appellant appeared in the Blayney Local Court on 12 July 2000. He was placed on a section 9 bond for two years and ordered to accept the supervision of the Probation and Parole Service for the duration of the bond. He was also disqualified for twelve months. 22 Judge Bellear stated the facts relating to the offence of driving in a manner dangerous on 12 February 2000. At 1.45 am on Saturday, 12 February 2000, the appellant was the driver of a loaded B-double semi-trailer south on the Newell Highway approaching the bridge over the Hickey's Falls Creek when his speed was checked by a police radar at 135 kilometres per hour in 100 kilometres per hour maximum speed area. 23 Police pursued the appellant's vehicle and checked his speed on the checked speedo of the highway patrol vehicle at 120 kilometres per hour. As he approached a long right-hand bend at the bottom of Tap Hill the appellant veered across to the incorrect side of the road and remained in that position for approximately 300 metres as he rounded before veering back to his correct side of the road. 24 The appellant was then signalled to stop. He eventually stopped at the Tooraweenah Crossroads and was spoken to by police in relation to his manner of driving and speed. The speed limit applicable to his vehicle was 100 kilometres per hour. The roadway on which his speed was checked was subject to roadworks at the time. He travelled past two signs warning him of the roadworks before his speed was checked. Approximately 200 metres south of where his speed was checked there were four sections of roadway which had just been resealed and were covered by very loose blue metal gravel. The first loose gravel section over which he travelled at 135 kilometres per hour was situated on a blind left-hand corner. 25 The traffic flow at the time was light and consisted of both light and heavy vehicles. There were southbound vehicles travelling behind the appellant's vehicle. The section of road where the appellant's vehicle was checked had a single lane north and south and was bitumen sealed. On the western side there was a turning lane to provide access to Hickey's Falls rest area. The highway then travelled north on to the narrow concrete Hickey's Falls Bridge. The weather at the time was overcast with very light sprinkly rain. The bitumen roadway was slightly damp. It was night-time. 26 After the police stopped the appellant they told him that the events and circumstances described would be reported. 27 Judge Bellear was satisfied that the appellant's criminal record showed a continuing attitude of disobedience of the law and found this to be an aggravating circumstance indicating that a more severe penalty was warranted. His Honour referred to R v McDonald [1998] NSWCCA 60397/98 at 4 where Spigelman CJ referred to Veen v The Queen (No 2) (1988) 164 CLR 465 at 477. There the High Court stated: "The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." See also Ireland J (with whom Gleeson CJ and Bruce J agreed) in R v Kalanj (1997) 98 A Crim R 505 at 509. 28 Judge Bellear referred to R v Jurisic (1998) 45 NSWLR 209 at 231: "(1) A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment. (2) With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional." 29 Judge Bellear pointed out that the appellant had been found guilty of driving in a manner dangerous under s52A(1)(c). The statutory circumstances of aggravation under s52A(7) did not apply. His Honour said that the threshold question to be determined was whether there was an "abandonment of responsibility". He accepted the Crown's contention that once the threshold had been reached the presence of additional aggravating features or their increased intensity would determine the actual sentence beyond the starting point. The concept of abandonment of responsibility focused on a subjective culpability as manifested in the aggravating circumstances of the case. 30 Judge Bellear was satisfied that in all the circumstances before the jury the appellant's inattention coupled with the excessive speed constituted an abandonment of responsibility; R v Howland (unreported) CCA 1999 10 at 50. The appellant pleaded not guilty to the offence of driving in a manner dangerous causing death and was convicted. Judge Bellear was satisfied that no benefit was to flow to the appellant for remorse or contrition as none had been shown. Appeal against conviction 31 The appellant's ground of appeal against conviction was that Judge Bellear erred in refusing to direct the jury to ensure they focused properly upon what the appellant actually did as distinct from the result of his driving. In McBride v The Queen (1966) 115 CLR 44 Barwick CJ said at 51: "The quality of the driving may be deduced from the resultant facts. But where it is sought to make out the relevant quality of the driving by inference from the contemporaneous impact and its consequences, it seems to me to be the more necessary to carefully apprise the jury of the matters to which I have called attention and to keep before them the precise issue they have to try." See R v Saunders (2002) NSWCCA 362 at 33. 32 Earlier in his judgment at 50 the Chief Justice said: "This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realised by the accused or not, which makes it dangerous to the public within the meaning of the section." 33 Mr Haesler of counsel for the appellant fastened on this passage to urge that the Crown prosecutor in addressing the jury had suggested, contrary to what the Chief Justice said, that the result, namely the damage to the vehicle and injury to the deceased, itself qualified the appellant's driving as being dangerous to the public. 34 The police scientific evidence supported a speed of 100 kilometres per hour where the vehicle left the road and when the appellant would have lost control. The evidence of the police at the scene put before the jury graphic detail of the debris. A demonstration was given of the path of the vehicle after it left the road by a model car and in a map. There was a view of the scene during the trial. 35 The passages in the Crown prosecutor's address which were complained of were these: "But you see ladies and gentlemen, that vehicle has to be in that position in that gravel and wheels on the track for that to occur and that's what the Crown says is the driving in a manner dangerous. That that coupled with his inattention and distraction and the speed he was doing would constitute with respect driving in a manner dangerous. So that the argument that not everyone can get out of that, that is the back off overdrive situation and you'll recall the evidence in relation to the highway patrol man and Senior Constable Andrews saying that he's not convinced that you can get out of it, but the situation is and I'd ask you not to lose sight of the fact that his manner of driving got him into that position and you're entitled to look at the resultant damage , you're entitled to look at the distance that vehicle – that 180 metres from point 'B' until it came to rest in your assessment as to the accused's manner of driving. Ladies and gentlemen, as I've indicated to you, manner of driving, as His Honour will tell you, includes all matters connected with the management and control of the vehicle when it's being driven. Inattention on the part of the driver which leads to some act or omission does constitute driving in a manner dangerous. That alone does constitute driving in a manner dangerous, but in this situation there is a culmination of facts and the speed that this man approached the dip and he's looking to his left, as he said, and the mere fact that he is on the incorrect side of the road, bearing in mind that it's 6.8 metres wide. You are entitled to deduce the accused's quality of driving from the resultant facts , that is from the results of what has transpired." (my emphases) 36 Subsequently, Mr Walsh, who appeared at the trial for the appellant, put this to Judge Bellear: "May it please the Court. Your Honour there's another matter that I raise arising out of the address by my learned friend he said this to the jury 'You're entitled to look at the result and [sc resultant] damages to whether [sic] he was driving in a manner dangerous, you're entitled to look at the result and damage as to whether he was driving in a manner dangerous' now the jury is not entitled to look at the result and damages to whether he's driving in a manner dangerous, damage to a motor vehicle can never be indicative of what speed someone might be driving at, whether someone is driving in a manner dangerous or whether they're driving negligently and I just ask your Honour to put the jury straight in relation to that because there's no evidence that the result and damage was linked to any manner dangerous." 37 The Crown prosecutor referred to the decision of R v Hain (1966) 85 WN (Pt 1) (NSW) 7. In that case at 11 this Court said: "7. … [T]he impact must occur whilst the vehicle is being driven in a manner which is dangerous to the public; but the interval of time between the driving which is in breach of the section and the impact may in all the factual circumstances of the case be so short that the offending driving can be regarded as proceeding to the moment of impact. 8. The quality of the driving may be deduced from the resultant facts proved in evidence and accepted by the jury." 38 Judge Bellear then asked Mr Walsh what he was objecting to. Mr Walsh replied: "All of that your Honour because in this particular case you have a situation where the vehicle once that back off overdrive occurs is out of control and of course the result and physical damage to the vehicle is a result really I would suggest primarily from the affect [sic] of the back off overdrive, of course what the jury's got to look at is the manner of his driving up until that point and of course it could be argued that the death is again the result of what happened after the back off overdrive because the evidence is that when from Constable Andrews when the vehicle made the first roll it landed heavily -- HIS HONOUR: It hit the post -- WALSH: Yes, yes. HIS HONOUR: But what do you say about the case raised by Mr Crown? WALSH: Well, that's one of the difficulties particularly in this particular case, the point eight as my friend says in Hain's case it says 'The quality of the driving may be deduced from the result and facts proved in evidence accepted by the jury.' Now in this particular case the result and damage whether it be the physical damage or the death in my respectful submission are not necessarily linked to the manner dangerous because of that intervening act if you like of the back off overdrive certainly quality of his driving -- HIS HONOUR: It's as a result of what occurred on the -- WALSH: That's right, that's exactly right the back off overdrive results -- HIS HONOUR: But isn't Mr Crown saying then the result and damage can be also looked at? WALSH: Well yes but in this case the result and damage is not necessarily co-related if you like to the quality of his driving before the back off overdrive. HIS HONOUR: Well look isn't – I mean if put this case aside, if someone was roaring along at say 150 kilometres an hour and skidded went off the road then and you know death was occasioned surely they're able to look at what happened after it went off the road because as soon as it goes off the road under what you're saying it's out of control -- WALSH: That's right. HIS HONOUR: -- but they're entitled to look at that. WALSH: Well yes but in this particular case I think it's agreed that whilst the back off overdrive occurs the accused really doesn't have effective control and management of the vehicle." 39 These submissions suggest that Mr Walsh was advancing an argument that from the moment the appellant lost control there was an intervening act or series of events in the way the vehicle behaved which caused the impact. Hence the vehicle was not being driven in a manner dangerous at the time of the impact which occasioned death; see Jiminez v The Queen (1992) 173 CLR 572 at 578. That argument was not pursued in this Court no doubt because it was recognised that the preceding period of driving in a dangerous manner up to the point when the appellant lost control was so nearly contemporaneous with the impact as to satisfy this element of the offence; see Jiminez at 578. 40 It is not clear that the point now relied upon was put to the trial Judge. 41 The Crown submitted the jury was entitled to look at the damage to the vehicle and to form an opinion as to the overall manner of driving. The manner of driving started when the appellant got into the car and continued until the car came to rest. Counsel for the appellant submitted that this was a case in which the jury, not properly instructed, might well have reasoned, impermissibly, from the graphic detail of the path of the vehicle after it left the road and the resultant damage to the vehicle and the blood and flesh left in it that the appellant's driving up to that point must have been dangerous. It was submitted that the trial Judge did nothing to deflect the jury from slipping into this error. 42 In a careful summing up Judge Bellear pointed out that the issue that was most in contention was whether at the time of impact the appellant was driving in a manner dangerous to another person or persons. (Summing up 8.5). His Honour said: "In order to determine whether the accused was driving in a manner dangerous, you must first decide in what manner he was driving. You must then consider the circumstances in which he was driving, these are both simple fact finding exercises." 43 Then it was necessary for the jury to decide whether that manner of driving was in those circumstances dangerous to another person or persons. His Honour explained what was meant by the circumstances in which the driving took place and how they will vary from case to case. It was for the Crown to prove the manner of driving that it said was dangerous and it was for the Crown to prove any particular circumstance which it claimed made that manner of driving dangerous. His Honour said: "It is not permissible to say simply because there has been an accident the manner of driving must have been dangerous (10.9-11). You must consider the facts as disclosed by the evidence and ask yourselves whether they establish the manner of driving was dangerous." 44 The trial Judge summarised the evidence relating to back off overdrive or oversteer and the submissions of the appellant's counsel that the manner of driving pointed to by the Crown did not amount to driving in a manner dangerous to another person or persons. No application was made by counsel for the appellant for any re-direction on this matter. His Honour told the jury that the Crown relied upon inattention and speed. The Crown submitted that this sufficiently directed the attention of the jury to the issue on the Crown case. His Honour was not obliged to do more and his directions in this respect were not defective. 45 In the passage quoted from the Chief Justice's judgment in McBride at 50 it is pointed out that the resultant damage does not give the previous driving the quality of dangerous driving. Thus in the present case the fact that the vehicle was badly damaged and the passenger grievously injured and killed does not of itself mean that the driving was dangerous. But, it is evidence which may be taken into account in determining whether the vehicle was being driven at excessive speed which itself may be indicative of dangerous driving. The expert, Senior Constable Andrews, referred to the vehicle going through the fence, to the damage to it and the impact gouging on the ground, and the way in which the vehicle progressed between the point where control was lost and the point where it came to rest. This material, together with a good deal more by way of observation, enabled him to answer the following questions in cross-examination by the appellant's counsel: "Q. Now, from your experience, given that the vehicle has travelled the distance of 93.6 metres as you've described, would that be consistent with a vehicle prior to the vehicle losing control travelling at approximately about 100 kilometres an hour? A. Certainly not less than 100 kilometres an hour and it could be more. Q. Could be more? A. Yes. Q. Could be less? A. I don't think so. Q. You're not sure, though? A. I'm not – I don't think so. Q. But you're not sure? A. I don't think so." 46 I agree with the appellant's counsel that in two places in the passage quoted from the Crown prosecutor's address arguably an impermissible link was suggested between, on the one hand, the damage to the vehicle and the injury to the deceased and, on the other, the quality of the driving. But read as a whole I think it was plain enough that the Crown prosecutor was doing no more than pointing out, as this Court had pointed out in Hain, that the quality of the driving may be deduced from the resultant facts proved in evidence. The point now made was not squarely put to the trial Judge and no complaint was made about the summing up. Bearing these matters in mind I am not persuaded that the Crown prosecutor's remarks led to any miscarriage of the trial. Accordingly, in my opinion the appeal against conviction fails. The appeal should be dismissed. Leave to appeal against sentence 47 The appellant also sought leave to appeal from the sentence. 48 Correctly, the sentencing Judge took account of the Jurisic guidelines. On 15 November 2001 the High Court gave judgment in Wong v The Queen (2001) 207 CLR 584 reversing the guideline decision given by this Court in that case for sentencing those knowingly involved in the importation of narcotics. On 20 August 2002 this Court gave its decision in R v Whyte (2002) 55 NSWLR 252. The Court re-considered Jurisic in light of the reasoning in Wong. Reference was made to s37A of the Crimes (Sentencing Procedure) Act 1999 as inserted in 2001 empowering the Court of Criminal Appeal to give a guideline judgment on its own motion "in any proceedings considered appropriate by the Court". Spigelman CJ said that the Court of Criminal Appeal should amend some of the terminology of the Jurisic guideline which might suggest a degree of prescription beyond its use as an "indicator" as originally stated in Jurisic. Reference was also made to s5 of the Crimes (Sentencing Procedure) Act, enacted after this Court's decision in Jurisic, which provides: "5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. (2) A court that sentences an offender to imprisonment for six months or less must indicate to the offender, and make a record of, its reasons for doing so, including: (a) its reasons for deciding that no penalty other than imprisonment is appropriate …" 49 In 286 para 215 of Whyte the Chief Justice set out the second limb of the guideline in Jurisic which Judge Bellear quoted in his remarks on sentence. The Chief Justice, continued: "216 I had earlier set out a list of aggravating factors which had been established in the authorities as follows: '(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk (viii) Ignoring of warnings. (ix) Escaping police pursuit.' 217 Further consideration of the authorities would cause me to amend this list by changing (v) to read 'erratic or aggressive driving' and adding: (x) Degree of sleep deprivation. (xi) Failing to stop. 218 I went on to say at 231: 'Paragraph (i) and par (ii) focus on the occurrence, whereas pars (iii)-(ix) refer to the conduct of the offender. The presence of these latter factors may indicate that the offender has abandoned responsibility for his or her own conduct. When the presence of such a factor can be so described, then it can be said to be present to a material degree for purposes of determining an appropriate sentence.' 219 It was after this passage that the two limbs of the guideline in Jurisic were set out. 220 I said at 231 that the formulation of whether 'the relevant aggravating factor manifest[s] in the circumstances of the case, that the offender has abandoned responsibility for his or her own conduct' involves an element of judgment on which sentencing judges could reasonably differ. 221 I also said at 231: 'The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.' 222 As indicated above, Kirby J's reasoning in Wong turned in part on the impermissibility of judicial creation of a subcategory or subset of an offence defined by statute. Also as indicated above, the joint judgment made comments critical of such conduct, but its reasoning did not turn on this proposition. The statutory power to give guidelines now vested in the Court by s37A should not be exercised in such a way that the guideline can be categorised as a 'subcategory' or 'subset' of an offence defined by statute. It was submitted that the Jurisic guideline was of this character because of the reference to 'abandonment of responsibility'. 223 As set out above, the guideline in Jurisic was expressed in terms of an aggravating factor involving the offender's conduct being present 'to a material degree'. The factors identified all related to the moral culpability of the offender. The reference to 'abandonment of responsibility' was one formulation for describing a high degree of moral culpability. The case law subsequent to Jurisic does not suggest that it has been applied as if it were a statutory test. 224 The joint judgment in Wong referred with approval at [61]-[62] to the judgment in Police v Cadd (1997) 69 SASR 150 which identified a relevant differentiating factor for sentencing purposes to be 'the ordinary case of contumacious offending', as explained in the judgment of Mullighan J. This appears to me to perform a similar function to the formulation 'abandoned responsibility for his or her own conduct' in Jurisic . 225 I should note that no issue of quantum arose in Cadd. This is understandable as the maximum sentence for the offence with which the Court was there concerned was only six months imprisonment. 226 In Wong , the 'subset' or 'subcategory' point arose in the context of considering the Canadian case of McDonnell , in which the majority identified the references in prior Canadian intermediate appellate decisions to 'major sexual assault' as such a category. It is desirable to reformulate the Jurisic guideline to ensure that it does not suffer from the same inadequacy and is more clearly of the character of 'contumacious offending' referred to in Cadd. 227 Furthermore, the terminology of the second limb of the Jurisic guideline may be seen to have an undesirably prescriptive tone, notwithstanding the express observations that it was not to be prescriptive. Again a reformulation is suggested. 228 In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion. 229 The guideline for offences against s52A(1) and (3) for the typical case identified above should be: 'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.' 230 In the case of a low level of moral culpability, a lower sentence will, of course, be appropriate. 231 In the case of the aggravated version of each offence under s52A, an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required. Other factors, such as the number of victims, will also require an appropriate increment. 232 The guideline is, to reiterate, a 'guide' or a 'check'. A sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act. 233 This guideline focuses attention on the objective circumstances of the offence. The subjective circumstances of the offender also require consideration. For the reasons I have given above, when discussing the proportionality cases, particularly Dodd , this approach reflects the principle of proportionality as discussed in those cases. No submission was made to this Court that the new s21A of the Crimes (Sentencing Procedure) Act inserted by the 2002 Act, affects this line of authority. 234 Insofar as this guideline involves a 'two step' approach to sentencing it is, in my opinion, as a 'check' for the reasons given above, consistent with an ultimate decision that involves the exercise of a broad discretion, sometimes referred to as an instinctive synthesis." 50 In the light of the decision in Whyte the preferred expression of the guideline relevantly should be that where the offender's moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) would not generally be appropriate. Quite apart from excessive speed and inattention, an important aspect of the sentencing process was the well-justified conclusion that the sentencing Judge reached, namely that in the language of Veen (No 2) at 477 the appellant had manifested in his commission of the offence charged a continuing attitude of disobedience of the law. It was quite open to the sentencing Judge to conclude that retribution, deterrence, and protection of society indicated in this case that a more severe penalty was warranted than if in the guideline language the appellant was a young offender of good character with no or limited prior convictions. Looked at from that point of view alone I would not be persuaded that the sentence was so severe as to suggest error. 51 There are, however, two other matters that are significant. Judge Bellear was satisfied that the jury did not accept the appellant's contention that he was not aware that 80 kilometres per hour speed limit signs were in place as indicated on the evidence. The judge found that the appellant had ignored the 80 kilometres per hour speed limit sign. There was no evidence to support that finding and it was not essential to the verdict of guilty. With respect, the sentencing Judge could not take into account such a deliberate and culpable refusal to pay regard to a speed limit sign unless it was proved beyond reasonable doubt. To the contrary, in so far as there was evidence, it was that at the time of the accident the appellant was not aware of such a sign. Neither, according to his unchallenged evidence, was the other driver, Troy Davis. 52 The second matter of concern is his Honour's statement that no benefit was to flow to the offender for remorse or contrition as none had been shown. In this respect the sentencing Judge was not helped by the appellant giving no evidence on sentence. 53 It was submitted that the appellant's admission of all elements of the offence save the dangerousness of his driving showed both contrition and willingness to facilitate the course of justice; R v Cameron (2002) 76 ALJR 382 at 385. In addition there was uncontradicted evidence from several witnesses that the appellant was distressed to the point of being suicidal by the death of his de facto partner and was truly contrite for having caused that death. It was submitted that a plea of not guilty particularly where a loved one is killed and the issue is one of degree of negligence involved does not preclude either remorse or contrition. 54 The sentencing Judge in his remarks on sentence referred to this evidence. The appellant's mother, Mrs Christoff, said that her son had known the deceased for approximately twelve months before the accident and had lived in a de facto relationship with her for about eight months. Since the accident the appellant had become quieter and not as happy- go- lucky as he once was. Immediately after the accident he became very depressed and remained in his bedroom for long periods. While he was residing with Mrs Christoff's daughter, Debra, it came to her notice that the appellant had been talking about committing suicide. Members of the family placed him under constant observation. The appellant had not had any medical or professional help in this regard since the accident. Mrs Christoff said that her son was "Kind, loving, do anything for anybody. Nothing was too much trouble for him. He's always been a good son. Always tried to make sure I was looked after". 55 Ms Judith Amanda Holmes, the licensee of the Royal Hotel at Mandurama, gave evidence that she had known the appellant for approximately 13 to 14 years and that the accident causing the death of Ms Kennewell totally devastated him. It was his first real girlfriend with whom she said he was totally in love. She observed after the accident that he became very withdrawn and "almost suicidal". Ms Holmes said that the appellant was one of the good guys in the community, that he was loyal, trustworthy, and she would not hesitate to leave him with the children. She was aware of the appellant's criminal record and his traffic record and she still had no hesitation in saying what she said. 56 Mr Gregory Ulph lived at Lindhurst. He had known the appellant for 20 years or more and had seen him grow up in the area. He had also worked with him at the abattoirs and went guarantor for him to purchase a motor vehicle. He said the appellant never missed one payment when paying off the vehicle by instalments. Over the 12 months before sentencing Mr Ulph had seen a lot of the appellant. He described him as a very good friend. "Just like a pair of brothers that, you know, who just get on well and you know, he respects me and I respect him". The appellant would go out of his way to help you out and you appreciated that very much because of Mr Ulph's disability. He described him as a very gentle person. "Like I say, he'd give you the last dollars or the shirt off his back, you know". 57 Mrs Debbie Ruth Turner also gave evidence on the appellant's behalf. She knew him well as she grew up in a house near where he, his mother and his sister lived. The appellant would assist her and her children when they were growing up, particularly after she and her husband separated. He was like a big brother to the children and assisted them with their homework. She gave evidence that she could not fault him. After the fatal accident she said she noticed a change in him, that he seemed reserved, very quiet and she had worried about him. She was concerned as she knew how deeply he was hurting and at times she was worried he might self-harm. 58 None of the witnesses gave evidence that the appellant had expressed remorse or contrition. They did, however, give uncontradicted evidence about their observations of him. I do not accept that the evidence did not demonstrate remorse by the appellant, that is to say, deep and painful regret for his wrongdoing. Indeed, in this case, such evidence may be more powerful than a self-serving statement by the appellant from the witness box. I do not accept that the evidence did not demonstrate contrition in the sense that the appellant was sincerely penitent for what he had done. The appellant would have to be an inhumanly hard-hearted person not to be remorseful and contrite for having killed the deceased, whom Ms Holmes described as "his first true love". 59 The evidence about the appellant can be distinguished from that provided to the Court in R v Qutami (2001) NSWCCA 353 which led to Smart AJ's observation at 58-59: "In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements." Spigelman CJ agreed with these observations at 79. 60 In my respectful opinion, the sentencing Judge erred in finding that the appellant ignored the speed limit sign and showed no remorse or contrition and, accordingly, it is open to this Court to review the sentence he imposed. 61 The question for the Court is whether the Court, on the evidence before the sentencing Judge and on the additional evidence that has been placed before the Court in the form of an affidavit sworn by the appellant on 20 February 2003, would itself impose a sentence less than that imposed by Judge Bellear. 62 In his affidavit of 20 February 2003, admitted on re-sentencing, the appellant demonstrated that his behaviour while in custody since 8 February 2002 has been impeccable and that he has proved himself a conscientious worker first in the afforestation bush gang and now in the education block. He has also undertaken educational courses successfully. He says that he has referred himself for psychological assistance regarding his feelings of grief over the death of Ms Kennewell. Unfortunately he is not regarded as a sufficient priority within the constraints of available psychology services. He says that he has had contact with alcohol and other drug services but has been referred for only one course. What he has achieved is worthy and I take it into account. 63 Judge Bellear was satisfied that the objective seriousness of the offence far outweighed the subjective factors. He referred to R v Marlin (unreported) CCA 10 September 1997 where Priestley JA accepted that: "One of the main purposes of punishment is to protect the public from the commission of crimes by making it clear to the offender and persons with similar impulses that if they yield to them they will meet with severe punishment. R v Radich (1954) NZLR 86 at 87. … The gravamen of the offence of dangerous driving occasioning death is not just dangerous driving. It is the dangerous driving in association with the taking of human life ( R v McIntyre (1988) 38 A Crim R 135 at 139). It is to be regarded as a crime of some seriousness ( R v Murnim (unreported) CCA 16 August 1985)." 64 The sentencing Judge was required to impose a sentence that properly reflected the objective seriousness of the offence and to fix a sentence that would ensure that the time the appellant spent in prison reflected all the circumstances of the offence including its objective seriousness and the need for general deterrence and met the fundamental purpose of punishment, namely the protection of society; R v Simpson (2001) 53 NSWLR 704 para 65; R v Camilleri (unreported) CCA 8 February 1990. 65 The Crown case against the appellant on the matters in respect of which he made admissions namely, that he was the driver of the vehicle, that the vehicle was involved in an impact and that the impact occasioned the death (30/1/02 page 12) were beyond dispute and did not amount to pre-trial disclosures for the purpose of a trial so as to entitle the appellant to any lesser penalty in accordance with the provisions of s22A of the Crimes (Sentencing Procedure) Act. The Crown submitted that this was not a case in which the appellant had shown willingness to facilitate the course of justice. (Compare R v Cameron para 15). 66 In setting a non-parole period pursuant to s44 of the Crimes (Sentencing Procedure) Act, subs (2) of which provides that the balance of the term of the sentence must not exceed one-third of the non-parole period unless the Court decides there are special circumstances for it being more, Judge Bellear was not satisfied that special circumstances existed. 67 It was submitted on behalf of the appellant that there were special circumstances. The trial Judge had before him a young man facing his first time in custody. It was submitted that the sentencing Judge's discretion miscarried in his assessment that no adjustment should be made (R v Simpson). It is not, in my opinion, sufficient in the circumstances of this case to justify a finding of special circumstances that the appellant was young and serving his first period in custody; see R v Kama (2000) 110 A Crim R 47 at 50. 68 The discretion to treat matters as special circumstances is constrained by the requirement that the non-parole period appropriately reflect the criminality involved in the offence; R v Simpson para 63. In the present case, it is not shown that the sentencing Judge erred in not finding special circumstances or that his decision not to do so miscarried. I am not persuaded that in the case of the appellant there are special circumstances. 69 The appellant was driving the vehicle at 100 kilometres per hour or above which was at least 20 kilometres per hour above the speed limit. He believed that the speed limit was 100 kilometres per hour. He was distracted by what he believed was a car coming from the side road. In that instant he lost control of the car. There was no element of alcohol or other substance abuse. There was no element of racing or showing off. He was a comparatively young man who had not previously been imprisoned. In the result, he killed his de facto partner to whom he was much attached. I have no reason to believe that after this dreadful event he is not capable of rehabilitating himself and regard him as unlikely to re-offend. 70 Unfortunately, his past history and particularly the events of 12 February 2000, suggest an attitude to the law and particularly the law relating to driving on the roads which has been one of indifference to the point of deliberate disobedience. The approach of the legislature and I believe of the public at large to such driving is that people who engage in it in a way that results in the death of another human being should be deterred from repeating such conduct. The appellant must be deterred from putting himself in the position by dangerous driving where he may kill or harm other human beings. So also must others minded to behave in the same way. Balancing all these matters, in my opinion, the Court should impose no lesser sentence than that imposed by Judge Bellear. For that reason, I would grant leave to appeal against the sentence imposed but dismiss the appeal. Orders 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted but appeal against sentence dismissed. 71 JAMES J: I have had the advantage of reading in draft the judgment of Sheller JA. I agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed and that, while leave to appeal against sentence should be granted, the appeal against sentence should be dismissed. 72 SMART AJ: I agree with Sheller JA. ********** Last Modified: 03/18/2003 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.