New South Wales Court of Criminal Appeal CITATION : Regina v Daniel Clifford Brandt [2004] NSWCCA 3 HEARING DATE(S) : 03/02/2004 JUDGMENT DATE : 3 February 2004 JUDGMENT OF : James J at 18; Buddin J at 1 DECISION : Leave to appeal granted. Appeal dismissed. CATCHWORDS : Dangerous driving occasioning grievous bodily harm - application of guideline judgments - procedure relating to Form 1 offences. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Felton [2003] NSWCCA 443 CASES CITED : R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 PARTIES : Regina Daniel Clifford Brandt FILE NUMBER(S) : CCA 60363/03 COUNSEL : B Knox SC (Crown) D Thiering (Applicant) SOLICITORS : S Kavanagh (Crown) S O'Connor (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 02/51/0146 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60363/03 JAMES J BUDDIN J TUESDAY 3 FEBRUARY 2004 REGINA v DANIEL CLIFFORD BRANDT Judgment 1 BUDDIN J: The applicant pleaded guilty in the Local Court to a charge of dangerous driving occasioning grievous bodily harm. He adhered to that plea in the District Court and was sentenced to a term of 3½ years' imprisonment with an associated non-parole period of 2 years. The maximum penalty for the offence is 7 years' imprisonment. 2 The facts giving rise to the offence may be shortly stated. Late in the evening of the day in question, the applicant drove his vehicle along the Pacific Highway at a point where it passes through the CBD of Coffs Harbour. He was apparently travelling on the inside lane. He drove through a red light which had stopped the south bound traffic at an intersection. He proceeded through the red light and, in doing so, passed at least one vehicle which was stationary at the traffic lights. He continued through the intersection and on the southern pedestrian crossing his vehicle struck the victim, who was at the time about a metre from the eastern kerb. It was raining heavily at the time, and visibility was poor. The victim was thrown onto the bonnet of the applicant's vehicle. The impact caused the left hand section of the windscreen to shatter together with one of the headlights. The victim was thrown many metres into the air and ultimately ended up on the roadway some distance south of the pedestrian crossing. There were apparently two other pedestrians upon the crossing at the time of the accident 3 Notwithstanding the accident, the applicant did not stop or even slow down. He drove to a motel where he abandoned his vehicle. He then caught a taxi home. The following morning he rang the police and falsely claimed that his car had been stolen. He subsequently attended the police station and provided a statement to that effect. 4 The applicant was arrested several days later. He then fully admitted his involvement in the offence and acknowledged that he was the driver and sole occupant of the vehicle. The applicant told police that he thought that a brick or a similar object had struck the windscreen. As a result, he said that he had panicked and kept driving because he had believed that it may have been thrown by someone involved in the drug milieu. He said that he had subsequently stopped to inspect the damage and had only then realised that he had struck a pedestrian. He said that at no stage had he seen the victim. Nor, he maintained, had he seen the traffic lights or the stationary vehicles. 5 The victim was transferred to Royal North Shore Hospital, where surgery was performed upon him. As a result of the collision he suffered a broken neck with two fractured vertebrae, six broken ribs, a punctured lung, a broken collarbone and a serious compound fracture to the leg. He was on a life-support system for some time after the accident and suffered permanent injuries as a result of it. He was still on crutches some ten months after the accident. His quality of life has dramatically decreased as a result, and he is now somewhat dependent upon his elderly parents. He is also reported to suffer from depression and other psychological difficulties as a result of the accident. 6 Although there was evidence that the applicant was driving through a 60 km speed zone at an estimated speed of 75 km, the sentencing judge proceeded upon the basis that he was not in fact exceeding the speed limit. 7 There were a number of matters which were advanced by the applicant in mitigation of the otherwise appropriate sentence. They were as follows: (i) his plea of guilty (albeit not one entered at the first available opportunity) and his remorse, on account of which the sentencing judge allowed an overall discount of 15%; (ii) the absence of any prior criminal convictions, although he did have a traffic record. Of particular significance is that he was an unlicensed driver at the time of the offence and indeed had been so since 1995; (iii) the fact that he had had a very difficult family life and that he was endeavouring to address his drug and alcohol problems; (iv) the fact that he had lost 90% of vision in one eye as a result of having been hit by a pellet from an airgun in his childhood. The pellet apparently is still lodged at the base of his brain. It still causes him to suffer from migraines and affects his capacity to work. His loss of vision significantly reduced his capacity to drive a car although, as the sentencing judge observed, he would be expected in those circumstances, to exercise even greater caution when driving; (v) he had been in some distress at the time of the accident as he had been returning from visiting his sister who shortly thereafter died of ovarian cancer; and (vi) the fact that he was endeavouring to obtain custody of his son who had apparently been physically abused both by his own mother and by a foster carer. The sentencing judge's conclusion that "special circumstances" existed was clearly a finding that was well open on the evidence which was before the Court. 8 The applicant was also charged with various summary offences, namely driving whilst unlicensed, failing to stop after an accident and falsely report that his vehicle had been stolen. It is clear that it was intended by the parties that those matters should be taken into account on a Form 1 by the sentencing judge. The applicant was not however asked whether he admitted his guilt in respect of those matters or indeed whether he wished them to be taken into account. In those circumstances, the procedure set out in s 33(2) Crimes (Sentencing Procedure) Act 1999 was apparently not complied with. It ought to have been. See R v Felton [2003] NSWCCA 443. Nevertheless, no point was taken in respect of this irregularity presumably because it had no practical significance to the case given that the sentencing judge had regard, and properly so, to those matters in assessing the overall objective gravity of the applicant's conduct in relation to the principal offence. 9 The main focus of the applicant's submissions was a contention that the sentence imposed upon him was manifestly excessive. In support of that argument it was submitted that it can be inferred that insufficient weight was given to the subjective features of the applicant's case, in part because the sentencing judge did not explicitly refer in any great detail to all the material which had been placed before him. In my view, the references which the sentencing judge made in his ex-tempore remarks on sentence were quite sufficient to indicate that His Honour did take into account in the applicant's favour those matters which were capable of ameliorating the otherwise appropriate sentence. 10 Allied to the argument that insufficient weight was given to the applicant's subjective case was a submission that too much emphasis was placed on the objective gravity of his conduct. That the sentencing judge had placed undue emphasis upon that aspect of the matter was apparent, it was contended, from His Honour's characterisation of the offence as going "above the fifty percent line". 11 In R v Whyte (2002) 55 NSWLR 252 Spigelman CJ observed that "[a] frequently recurring case of an offence under s 52A has the following characteristics: (i) Young offender (ii) Of good character with no or limited prior convictions (iii) Death or permanent injury to a single person (iv) The victim is a stranger (v) No or limited injury to the driver or the driver's intimates (vi) Genuine remorse (vii) Pleas of guilty of limited utilitarian value." (at 284) The present case fits that profile. 12 In R v Jurisic (1998) 45 NSWLR 209, Spigelman CJ said that "[a] non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment." (at 231) It was not contended, and nor could it have been, that this was such a case. The Chief Justice in Jurisic went on to express the following numerical guideline: "[w]ith a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence … 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." His Honour then identified the following list of aggravating factors: (i) extent and nature of the injuries inflicted; (ii) number of people put at risk; (iii) degree of speed; (v) degree of intoxication or of substance abuse; (v) erratic driving; (vi) competitive driving or showing off; (vii) length of the journey during which the others were exposed to risk; (viii) ignoring warnings; (ix) escaping police pursuit. 13 In Whyte the Chief Justice made the following additions to that list: (x) degree of sleep deprivation (xi) failing to stop 14 In Jurisic, His Honour went on to say: 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. His Honour concluded that "[t]he 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." (at 231) 15 The sentencing judge's assessment was that it was "a very serious offence". His Honour said, [t]he facts themselves are bad enough, but when you take into consideration the fact that he not stay, that he tried to put the police off on a false scent and that the injuries that were occasioned to the victim were extensive, severe, and, to an extent, permanent, that the way he drove was indeed dangerous in going past a red light, well firstly going past a parked vehicle at a pedestrian crossing, which is bad enough, but there was a red light facing him, and he said that he never saw all these things. Well, either he was not keeping a proper lookout or he did not care in the circumstances. 16 It is conceded on behalf of the applicant that the features of the case to which the sentencing judge made particular reference were matters properly to be taken into account as factors which aggravated the offence. It is submitted however that notwithstanding the presence of those features, the sentence is nonetheless manifestly excessive. It was submitted that the sentence was more appropriate for an aggravated form of the offence or for an offence in which a death was occasioned. Counsel referred to other decisions of this Court which were said to bear some comparability to the present case. The Court was also taken to JIRS statistics which reveal that in 80% of all cases post Jurisic in which offenders were imprisoned, sentences of three years or less were imposed. In other words, the applicant's sentence is in the top 20% of all offenders within the relevant category. That material simply serves however to confirm my own preliminary view that the present sentence, whilst being towards the upper end of the range properly available for this offence, is nonetheless not outside the legitimate scope of His Honour's broad sentencing discretion. 17 Accordingly I propose the following orders: 1. Leave to appeal granted 2. Appeal dismissed. 18 JAMES J: I agree with the judgment and with the orders proposed by his Honour. The orders proposed by his Honour will be the orders of the Court. ********** Last Modified: 02/06/2004 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.