New South Wales Court of Criminal Appeal CITATION : Regina v Whelan [2004] NSWCCA 379 HEARING DATE(S) : 29 October 2004 JUDGMENT DATE : 29 October 2004 JUDGMENT OF : McClellan AJA at 1,33,35; Adams J at 34; Smart AJ at 2 DECISION : See paras 31 and 32 CATCHWORDS : Dangerous driving occasioning grievous bodily harm - evidence to support judge's finding of minimal culpability as to offender's driving - suspended sentence permissible - two stage process involved with suspended sentence - non-parole period to be fixed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Dinsdale v R (2000) 202 321 at [79] GAS v The Queen, SJK v The Queen [2004] HCA32 at [30] R v Jurisic 45 NSWLR 209 CASES CITED : R v Blackman [2001] NSWCCA 121 R v Tolley [2004] NSWCCA 165 R v Whyte 55 NSWLR 252 R v Zamagias[2002] NSWCCA 17 at [27] PARTIES : Regina v Andrew Thomas Whelan FILE NUMBER(S) : CCA 2004/1813 COUNSEL : (A] H Dhanji (C) B Knox SC SOLICITORS : (A) S O'Connor (C) S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 04/11/0451 FILE NUMBER(S) : LOWER COURT McLoughlin DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 04/1813 McCLELLAN AJA ADAMS J SMART AJ F riday , 29 O ctober 2004 Regina v Andrew Thomas WHELAN JUDGMENT 1. McCLELLAN AJA: I will ask Smart AJ to deliver the first judgment. 2. SMART AJ: The Director of Public Prosecutions appeals against a sentence of imprisonment for two years suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 upon conditions imposed upon the offender for the offence of dangerous driving occasioning grievous bodily harm. 3. The offender has also sought leave to appeal against the sentence on the basis that the judge did not fix a non parole period and gave no reasons for not doing so. 4. About 10 pm on 23 April 2003 the offender was riding a motor cycle in a general southerly direction along Bank Street, Pyrmont with pillion passenger Christopher Sweeney, having travelled from the vicinity of Bowman Avenue. The route travelled along Bank Street consisted of a sweeping bend, including a number of apexes in the bend. The corner finishes about 77 metres north of the intersection of Quarry Master Drive. 5. Schaffern Audris Siow was driving in a northerly direction along Bank Street (away from the Fish Markets) towards the intersection of Quarry Master Drive. She said that she approached the intersection very slowly. There is a dip at the commencement of Quarry Master Drive. Her right indicator and the headlights were on. She said: "I checked for oncoming traffic from the opposite direction. There was no vehicle and the road was clear. I started to make the right turn into Quarry Master Drive when I heard a loud revving noise which sounded like it come from a motor vehicle. A very bright light shone and I caught it at a corner of my eye. My first instinct was to get out of the way so I completed the turn. At this moment I heard a loud screech followed by a bang. I quickly straightened my car to get out of the way and to avoid mounting the pavement to smash in to the column or swinging around completely right and risk smashing into the car on Quarry Master Drive waiting to turn left on Bank Street. This is how my car ended in the direction it stopped." 6. The police facts record that on approaching the intersection of Quarry Master Drive the motor cycle braked prior to coming down on its nearside, sliding across the roadway and colliding with the passenger side of the car. The offender and Sweeney came off the bike at impact. The bike travelled about some further 35 metres south along Bank Street. 7. Both the offender and Mr Sweeney suffered serious injuries. Each was hospitalised. The offender had no recollection of the incident. 8. The offender returned a blood alcohol reading of 0.122 grams of alcohol per 100 millilitres of blood. The applicable speed limit was 60 kph. Dr Irwin, who examined Mr Sweeney on his admission to hospital, has recorded: "Pillion passenger of motorbike travelling at around 60km/h, swerved to avoid car, crashing to ground. No loss of consciousness." 9. The judge found that there was no doubt that the offender drove knowing that there was within his blood an alcohol reading that would significantly impair his judgment as a road user. 10. The judge found that the police photographs confirmed that the route the offender travelled along Bank Street consisted of a long sweeping bend but that corner finished about 77 metres north of the intersection of Quarry Master Drive. The judge pointed out that: (a) the driver of the car, at the time of commencing to make her right hand turn should have had a view of approximately 75 metres north of the intersection; (b) the photographs indicate that the impact occurred very close to the middle of the road and on the offender's correct side of the roadway; (c) the photographs indicate that the motor cycle came into contact with the car immediately behind the front nearside door; (d) accepting that Ms Siow was driving at a very slow speed because of the hump and the steep road, the only reasonable conclusion was that Ms Siow had travelled a very little distance onto the incorrect side of the road when the impact occurred. The judge remarked that in the absence of a full exploration of the facts at an oral hearing the Court was reliant upon the surrounding circumstances as depicted in the photographs and the statements of the witnesses. The judge in evaluating the material before him said: "The photographs indicate a clear view from the middle of the intersection into which Ms Siow was turning for at least 75 metres. It beggars belief that the offender's vehicle was out of sight at the time she commenced to make the turn. Doing so she would have had to traverse two to three metres at best while the offender's vehicle travelled some 75 metres." 11. The judge compared Ms Siow's account of what happened with what was shown in the photographs and said that her comment was not consistent with the contents of the photographs in that to accept it, the point of impact would have to have occurred almost into Quarry Master Drive. The judge added: "The photograph and blood on the roadway quite clearly depict a point of impact, with that and debris, in Bank Street and on the offender's correct side of the roadway." 12. The judge also relied on the statements of Mr Diliapis who had an elevated and unobstructed view of the incident. Mr Diliapis said: "I saw a car on Bank Street halfway through a right turn into Quarry Master Drive. When I first saw the car it was at an angle with the front of the vehicle facing the corner of Quarry Master Drive ... The car appeared to me to be moving very slowly into the intersection. I looked at the car wondering what was going on. I would say only a couple of seconds after I heard the horn, I heard a bright flash of bright yellow light ... I heard a scrape noise at the same time as I saw the flash of light. I was waiting to hear a skidding noise from a car. I didn't hear it and I admittedly thought it was a hit and run. I moved my car down the road to the intersection. By this time the car turning into Quarry Master Drive had moved further into Quarry Master Drive and stopped. It was facing the opposite kerb to where I was originally parked. It was on the same angle as when I originally saw it. It looked like it had just rolled forward." The judge concluded "...obviously the offender was in a situation where he saw the other vehicle move into its incorrect side at the roadway, he blew his horn but was unable to control his vehicle in that situation of danger to enable him to avert the accident. In those circumstances I would have thought the culpability of the offender, as to his driving, minimal. Although when one excludes for the purpose of that exercise the question of the alcohol within his bloodstream which must have had some effect on his driving and his ability to react in those circumstances. The principal cause of the accident is the failure by Ms Schaffern to make a right hand turn with safety and did not see the offender's bike when she should have done." 13. It remains a puzzle why Ms Siow did not see the offender and the motor cycle, especially having regard to the point of impact. The headlight on the motor cycle was apparently quite bright. 14. The Crown submitted that there was no evidence as to the cause of the collision other than the statement of Ms Siow. She said that when she entered the intersection she looked and did not see another vehicle. Accepting that she looked and did not see another vehicle, the question remains why, in view of her having a clear view for 75 metres and the point of impact. 15. The Crown submitted that there was no evidence to suggest that the collision was caused other than by the offender coming around the curve towards the intersection where the collision occurred, and that the strong inference was that he was travelling at high speed. The facts on which the Crown relies to suggest that the inference is available are: (i) the statement of Mr Sweeney that they were travelling too fast; (ii) the statement of Ms Siow that she looked in the direction from which the offender's motor bike came and could not see anything; (iii) the estimate of that distance as being about 77 metres; and (iv) the distance travelled by the bike after the collision, about 35 metres. 16. Mr Sweeney described his memory of the events of the day of the accident as patchy. He remembered both him and the offender putting on their helmets and getting on the motor bike. The statement continues: "The next memory I have is leaning to my left with the bike upright and in motion as if we were going around a corner. It felt like we were in that position for a sustained period of time. It felt like we were going too fast and the bike skidded. We were still in the corner when it skidded. The next thing I recall is lying on the road and feeling extreme pain in my right leg..." 17. Mr Sweeney was able to place his foot on his leg so it was straight on his leg and called an ambulance on his mobile telephone. 18. In my opinion the evidence falls short of establishing that the offender was travelling at high speed. Further, it does not do so beyond reasonable doubt. The judge was entitled to take the view of the facts which he did. This Court is a court of error and the hearing is not by way of rehearing. The sentencing judge finds the facts and decides the sentence: GAS v The Queen, SJK v The Queen [2004] HCA 32 at [30]. 19. The Crown submitted that this offence was aggravated by the offender driving with such a blood alcohol level with a pillion passenger, and the bike being unregistered and uninsured. He was unlicensed. These latter three matters were serious breaches of the traffic laws, but they do not bear upon the causes of the accident. The blood alcohol level was serious and would impact both upon a speedy reaction time to the emergency which had arisen, and effective evasive action. 20. The Crown relied heavily on the offender's previous record. In September 1995 the offender was fined for exceeding the speed limit. In August 1997 he was fined for negligent driving and being an unlicensed driver. He was again fined in November 1997 for being an unlicensed driver and never having held a licence. In February 1998 he was fined for driving while unlicensed. In May 1998 he was fined for negligent driving and for driving while never having held a licence. In August 1999 he was fined for a low range PCA and for driving while never having held a licence. There was no further offence between 1999 and the occurrence of the subject offence. 21. The offender's continued driving over the years whilst unlicensed shows disregard for the traffic laws. It is not a record "with no or limited prior convictions". The judge was conscious of the offender's record. However, he was largely guided by what he held was the offender's minimal culpability as to his driving for the collision. Thus the judge did not deal with the offender's record. Nor did the judge refer to the aspect of general deterrence. I would not assume that he overlooked this. 22. The judge stated that because of his findings and the views he had reached, it was "not appropriate for the offender to serve a period of incarceration". The judge added, "It would be appropriate that the offender be dealt with by way of a suspended sentence". 23. The judge accepted that the offender was a person of good character and that the offender had been significantly affected by the unfortunate and sudden death of his mother several years ago. The judge also accepted that the offender was remorseful for the injury to his friend, Mr Sweeney, and for having driven in the circumstances in which he did, and reiterated that it was appropriate to deal with the matter by way of a suspended sentence. 24. The Crown submitted that the correct approach following Dinsdale v R (2000) 202 CLR 321 at [79] was to adopt a two stage process. The first is the primary determination that a sentence of imprisonment and not some lesser sentence is called for. The second is the determination that such term should be suspended for a period set by the Court. See also R v Zamagias [2002] NSWCCA 17 at [27] and R v Blackman [2001] NSWCCA 121. 25. The judge tended to elide these two stages and did not follow the required two step process. That does not necessarily mean, as the Crown recognised, that the sentence was manifestly inadequate. That was the ground on which the Crown appeal was based. 26. The Crown submitted, following Jurisic 45 NSWLR 209 and Whyte 55 NSWLR 252 that on the factual findings of the judge as to the applicant's blood alcohol level, and his driving, and taking into account his record, and failure to heed the traffic laws, a sentence of full time custody unsuspended was required. I do not agree. 27. On the findings made by the judge it was permissible for him to impose a term of imprisonment and then suspend it. Overall, the sentence imposed by the judge was a lenient one. It was at the bottom of the permissible range, perhaps even just below it. However, the sentence was not so low as to warrant the intervention of this Court. The Crown appeal against sentence should be dismissed. 28. I turn to the offender's application for leave to appeal. Relying on sections 12(3) and 44 of the Crimes (Sentencing Procedure) Act 1999 and R v Tolley [2004] NSWCCA 165, the offender asks this Court to fix a non parole period. That is an application to which this Court should accede. There is no good reason not to do so. Under the current legislation a non parole period should be fixed first. 29. Driving a motor bike with a blood alcohol level of 0.122, carrying a pillion passenger, being involved in an accident causing serious bodily injury and being less able to react quickly and take evasive action, merits a term of imprisonment, including a non parole period of twelve months. The balance of the term of imprisonment should be a further twelve months. Special circumstances exist. 30. This is a case in which the sentence should be suspended. We have had the advantage of the affidavit of the applicant of 27 October 2004. That affidavit reveals that since his appearance before the sentencing judge he has been searching for help and needs assistance and supervision. 31. I propose the following orders: 1. Crown appeal against sentence dismissed. 2. Leave to the offender to appeal against sentence granted. Appeal allowed. 3. Sentence imposed in the District Court quashed. 4. In lieu thereof the applicant is sentenced to imprisonment comprising a non parole period of twelve months and the balance of a term of imprisonment of twelve months, such sentence and non parole period to commence on 18 June 2004; direct the offender be released on parole on 17 June 2005. 5. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 execution of the sentence is suspended for the term of the sentence, upon the conditions specified by McLoughlin DCJ on 18 June 2004. 6. Confirm the automatic disqualification period of three years from driving. 32. In addition to those conditions it would be appropriate in view of what has happened since the sentencing by the judge for the applicant to report to the officer in charge of the Probation and Parole Service, Commonwealth Street, Sydney and accept his reasonable directions and supervision. 33. McCLELLAN AJA: I agree with Smart AJ. 34. ADAMS J: I also agree. 35. McCLELLAN AJA: The orders of the Court will be as Smart AJ announced. ********** Last Modified: 11/09/2004 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.