New South Wales Court of Criminal Appeal CITATION : R v Melas [2004] NSWCCA 198 HEARING DATE(S) : 17 June 2004 JUDGMENT DATE : 17 June 2004 JUDGMENT OF : Grove J at 1; Dowd J at 2; Sperling J at 22 DECISION : Leave to appeal granted; appeal dismissed CATCHWORDS : Severity appeal - drive in a manner dangerous occasioning death - no lesser sentence warranted LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 R v Jurisic (1999) 101 A Crim R 259 CASES CITED : R v Thompson (2000) 49 NSWLR 383 R v Whyte [2002] NSWCCA 343 PARTIES : Joshua Melas Crown FILE NUMBER(S) : CCA 60090/04 COUNSEL : Appellant: Mr A. Bellanto QC Respondent: Ms J. Girdham SOLICITORS : LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0824 FILE NUMBER(S) : LOWER COURT Shadbolt DCJ JUDICIAL OFFICER : - 5 - IN THE COURT OF CRIMINAL APPEAL 60090/04 GROVE J DOWD J SPERLING J Thursday 17 June 2004 REGINA v JOSHUA MELAS Judgment 1 GROVE J: We are in a position to give judgment and I will ask Dowd J to give the first judgment. 2 DOWD J: This is an application for leave to appeal from a sentence imposed on 18 August 2003 on a charge of Driving In A Manner Dangerous Occasioning Death contrary to s52A(1)(c) of the Crimes Act 1900, the maximum penalty for which is ten years' imprisonment. A plea of guilty was entered on 20 November 2002. 3 The applicant, who is some twenty-three years of age, had a sentence imposed by Shadbolt DCJ of three years' imprisonment to commence on 18 August 2003 and to expire on 17 August 2006, with a non-parole period of fifteen months to commence on 18 August 2003 and to expire on 17 November 2004. 4 This was a matter in which it was conceded that the plea of guilty, because of the previous conduct of the proceedings in relation to another charge, was entered at the earliest opportunity. 5 The charge arose out of the following facts. At 4.40pm on Monday, 10 September 2001, the applicant was driving a 2001 model blue Ford Falcon sedan along Constitution Road, Meadowbank in a southward direction. As he approached the intersection of Constitution Road and Federal Road, a 17-year-old, Matthew Marshall, was proceeding to cross a road using a pedestrian refuge marked by metal barricades in the centre of the roadway. There were further metal barricades on the roadway towards either side of the edge of the roadway. 6 He was at the centre of the traffic lane on the eastern side when the applicant hit him, throwing him up into the air so that his body came to rest approximately some fifty metres beyond the pedestrian refuge. The victim died instantly from the injuries sustained. It was a warm, sunny day and the road was dry and in good condition. 7 There was some dispute as to the speed at which the respective experts opined the offender was travelling, but ultimately it was agreed that he was travelling at between 90 and 100 kilometres per hour as he approached the intersection. 8 There was considerable dispute in relation to the tyre marks, and specifically to the issue as to whether they were fifty-one metres or thirty-eight metres in length. It is clear, whatever that distance was, that the applicant saw the deceased, saw what the deceased was doing, registered that he was approaching him at a considerable speed, and that he braked. His Honour, in his remarks on sentence, made certain findings as to the distance of the skid marks. His Honour found there was no erratic or aggressive driving, saying at p 6 of his remarks: "There was no erratic or aggressive driving. If driving in excess of 90 kilometres per hour through a pedestrian refuge killing a young man in the process is not aggressive, then there is none." 9 The issues addressed by the applicant's counsel in relation to the sentence are the speed at impact, the observation by the appellant of the cyclist prior to the impact, and the opportunity for the applicant to observe the cyclist prior to impact. 10 There was considerable evidence in the debate on sentence, and a number of submissions have been put, as to some of the remarks which his Honour made concerning the conduct of the applicant. It has been put before the Court with some cogency that insufficient credit was given to the applicant in relation to his plea of guilty, and that his Honour gave considerably more weight to the applicant's previous driving record than perhaps is warranted. 11 However, the obligation under s6(3) of the Criminal Appeal Act 1912 ("the Act") is to looked at in terms of the own peculiar circumstances of each case. The circumstances in this case include the fact that the accident clearly occurred in broad daylight; the existence of the refuge barriers; the speed at which the appellant was travelling; and that the collision was with a cyclist who was perhaps seated and who may have been propelling himself by foot across the roadway. The applicant clearly saw the victim. 12 There is some significance in the submission put before the Court concerning the question of discount for the utilitarian value of the plea. In considering this matter it is appropriate for the Court to take cognisance of a number of decisions to which, in terms of s52A of the Act, the Court must give consideration. 13 In R v Thompson (2000) 49 NSWLR 383, the Court underscores the fact that there are two critical aspects which are to be taken into consideration: firstly, the criminality of the conduct involved and its consequences and, secondly, the primary objective of reducing the number of serious motor vehicle accidents. 14 I have had regard to the decision in R v Jurisic (1999) 101 A Crim R 259 per Spigelman CJ at 274, and particularly to the decision in R v Whyte [2002] NSWCCA 343. The Legislature has given an indication of the seriousness of this offence, when looking at the loss of human life and the fundamental value placed upon it by society, in terms of the maximum penalty that is imposed. This offence is not just about dangerous driving, but about dangerous driving in association with the taking of human life. 15 In this particular case, each of the grounds, if taken at their highest, requires the Court to look on the function that it performs in this appeal under s6(3) of the Act. Section 6(3) states that the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal. 16 What has to be said about this appeal, and the various matters that have been quite properly placed before the Court, is that the grounds of appeal are not in totality about the seriousness of this offence. Even if all of these matters were made out, I am of the opinion that this does not in fact warrant any less severe penalty in law, and I am of the view that no other sentence should have been passed that is lower than that which has been passed. 17 In that event, my view is that the application should be granted but the appeal should be dismissed. 18 GROVE J: I agree with Dowd J. I wish only to add, for the purpose of specifying it, that I have considered some remarks about one matter which was advanced by senior counsel in argument, which I would regard as made out. Tendered at the hearing were some points of agreement, (there is a mistake in the transcript, they were in fact marked exhibit F rather than exhibit E) and there was a specific concession by the Crown in terms that the offender pleaded guilty at the first opportunity. 19 In dealing with this matter in his remarks on sentence, his Honour referred to the submission that the plea of guilty had been at the first reasonable opportunity but then said, somewhat cryptically, "if the day of the trial is the first reasonable opportunity, then this is so". In my view that remark does indicate his Honour did fail to take into account the concession as he ought to have done. 20 Having said that, however, I agree with the observation of Dowd J that even if one took that matter and all the other matters advanced on behalf of the applicant at their highest, the conclusion would nevertheless have to be reached that no less severe sentence was warranted in the circumstances of this crime. 21 I agree that the appeal should be dismissed. 22 SPERLING J: I agree for the reasons stated by Grove J and Dowd J. 23 GROVE J: The order of the Court is that leave to appeal is granted but the appeal is dismissed. ********** Last Modified: 07/14/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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