REGINA v Stephen John SANDISON [2003] NSWCCA 320

New South Wales Court of Criminal Appeal

CITATION : REGINA v Stephen John SANDISON [2003] NSWCCA 320 HEARING DATE(S) : 29 August 2003 JUDGMENT DATE : 29 August 2003

JUDGMENT OF : Mason P at 1; Hidden J at 37; Shaw J at 38 DECISION : Appeal dismissed.

CATCHWORDS : Criminal appeal - sentencing - Crimes Act 1900, s52A(3)(c) - custody dispute contributed to dangerous driving hitting pedestrian - victim known to driver - White guideline - "abandonment of responsibility". ND PARTIES : REGINA v Stephen John SANDISON FILE NUMBER(S) : CCA 60243/03 COUNSEL : Appellant: R J Button Respondent: D C Frearson SOLICITORS : Appellant: Legal Aid - Mr Healy Respondent: S E O'Connor - Crown Prosecutor

LOWER COURT District Court JURISDICTION : LOWER COURT DC 02/11/0335 FILE NUMBER(S) : LOWER COURT Davidson ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL CCA 60243/03

MASON P HIDDEN J SHAW J

Friday 29 August 2003

REGINA v Stephen John SANDISON Judgment 1 MASON P: Mr Button has put the applicant's case well and at its highest. I am, however, unpersuaded that the sentencing judge fell into any appellable error in this matter. 2 The applicant was arraigned on an indictment containing two counts: 1. malicious wounding with intent to do grievous bodily harm, contrary to s 33 of the Crimes Act 1900 ; 2. in the alternative, driving a motor vehicle in a manner dangerous to another person or persons where by the vehicle was involved in an impact causing grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900 . 3 The offences charged occurred on 17 April 2001 and the victim was Mr Peter Mawer. To this indictment the applicant pleaded not guilty to the first count, but guilty to the second count in the presence of the jury. The plea was not accepted by the Crown. A trial ensued spanning several days. 4 The jury returned a verdict of not guilty on the first count, not guilty on the statutory alternative to the first count of malicious wounding, and guilty on the second count, which had been the one to which the applicant had originally pleaded guilty. 5 The maximum penalty for the offence on which the applicant was found guilty is seven years imprisonment. 6 The victim, Mr Peter Mawer, had been in an ongoing custody dispute with the applicant's girlfriend, Ms Gaffney, in relation to a ten year old daughter of the couple, Tymara. Ms Gaffney had two other children, one of them an infant child by the applicant. The three children were living with Ms Gaffney. 7 Ms Gaffney had planned to move with the three children to live in Port Macquarie. Mr Mawer obtained an interim injunction preventing the move so far as Tymara was concerned. The custody dispute came on for final determination in the Family Court on the morning of 17 April, that is, the date of the offence. An order was made by consent that Tymara's custody be vested in Mr Mawer's mother, with whom Mr Mawer resided. This order was to take effect from 1 pm the following day. 8 During the afternoon of 17 April, Tymara had gone to the pictures with her older half-sister. The arrangement was that when the girls got back to Mortdale station, they would ring home to Ms Gaffney to arrange to be picked up by car. This happened and Ms Gaffney asked the applicant, who was at her home at the time, to pick up the children. The applicant knew of the consent orders made in the Family Court that day. The prospect of losing custody of Tymara was a serious disappointment to Ms Gaffney and her emotional upset was shared by the applicant. This factor, it seems to me, is relevant to the issue of moral culpability, but it tends to point in two directions. 9 As it turned out, unbeknown to the applicant in advance, Mr Mawer was also at the station speaking to Tymara at the roadside. He was recognised by the applicant. The applicant struck him with the car and severely injured him. The precise details of the accident and the inferences to be drawn as to the applicant's intention were key issues in the trial. 10 The sentencing judge had to act consistent with the jury's verdicts and its view of the facts adverse to the applicant, if established beyond reasonable doubt. The learned sentencing judge held that the verdicts had acquitted the applicant of intention to cause grievous bodily harm to Mr Mawer, and had also excluded a deliberate or reckless act of wounding. 11 Davidson ADCJ was, however, satisfied beyond reasonable doubt that the applicant recognised the man speaking to the two children as Mr Mawer. He further concluded that it was this which, added to his knowledge of what had transpired in the Family Court earlier that day, caused him to drive in the unlawfully dangerous manner that the jury found he did. 12 Mr Mawer was speaking to the two girls near a telegraph pole, which was just on the kerb at a point where Morts Road formed a T-intersection with streets running to its left and right. There is a relatively small area of road where cars can park near the kerb in order to pick up and let down passengers. Just before the turning area there is a raised pedestrian ramp, obviously designed to slow down traffic to enable a left or right hand turn to be made. 13 If such turn is not made with safety, there is a clear potential danger to pedestrians on the footpath opposite the intersection and near the telegraph pole. At the time in question there were a number of people in that area, as well as Mr Mawer and the two daughters of Miss Gaffney. Davidson ADCJ made the following findings about the accident: "There were eyewitnesses who attested to the speed at which the prisoner approached and traversed the pedestrian cross speed bump. Although there was a good deal of discrepancies in this part of the evidence, as is frequently the case in a charge of this sort, I am satisfied beyond reasonable doubt that it was a speed which exceeded that which was safe in all the circumstances.