New South Wales Court of Criminal Appeal CITATION: Markham v Regina [2007] NSWCCA 295 HEARING DATE(S): 18/05/07 JUDGMENT DATE: 13 November 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Price J at 35 DECISION: Leave to appeal granted and appeal allowed. The sentence passed in the District Court is quashed and, in lieu, the applicant is sentenced to a term of imprisonment comprising a non-parole period of two years and three months, commencing on 15 June 2006 and expiring on 14 September 2008, and a balance of term of one year and nine months, commencing on 15 September 2008 and expiring on 14 June 2010. He will be eligible for release on parole on 14 September 2008. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - dangerous driving occasioning death - applicant driving heavy vehicle - approach to guideline in R v Whyte - whether sentence manifestly excessive LEGISLATION CITED: Crimes Act 1900 s52A(1) R v Whyte (2002) 55 NSWLR 252 CASES CITED: R v Jurisic (1998) 45 NSWLR 209 R v Clampitt-Wotton [2002] NSWCCA 383 Musgrove v R (2007) 167 A Crim R 424 PARTIES: Simon Colin Markham (applicant) Regina (respondent) FILE NUMBER(S): CCA 2007/3264 (formerly 2007/572) COUNSEL: T A Game SC (applicant) L M B Lamprati SC (Crown) SOLICITORS: David Phillip Giddy (applicant) Solicitor for Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/3071 LOWER COURT JUDICIAL OFFICER: Maguire DCJ IN THE COURT OF CRIMINAL APPEAL 2007/3264 (formerly 2007/572) McCLELLAN CJ at CL HIDDEN J PRICE J Tuesday, 13 November 2007 Simon Colin Markham v Regina Judgment 1 McCLELLAN CJ at CL: I agree with Hidden J. 2 HIDDEN J: The applicant, Simon Colin Markham, pleaded guilty before a magistrate to a charge of dangerous driving occasioning death, an offence under s52A(1) of the Crimes Act which carries a maximum sentence of ten years imprisonment. He was committed for sentence in the District Court and, in due course, was sentenced to imprisonment for six years, comprising a non-parole period of three years, commencing on 15 June 2006, and a balance of term of three years. The sentence dates from the day on which he was taken into custody following the proceedings on sentence in the District Court. His driver's licence was also disqualified for a period, but that is of no significance for present purposes. He seeks leave to appeal against the sentence. Facts 3 The offence arose from an accident in which the applicant was involved at Wetherill Park in the morning of 1 April 2005. The applicant worked as a truck driver and was driving a heavy vehicle. He had commenced his journey at Mildura the previous night. It will be necessary to examine the evidence concerning the course of that journey. 4 The facts of the offence were set out in an agreed statement, as follows: At about 10.15am on Friday 1 April 2005 the offender was the driver of a blue Kenworth prime mover with attached B double taut liner trailers. The offender travelled in a westerly direction along the Horsley Drive, Wetherill Park in lane 2 of two lanes at an estimated speed of between 50 and 60 kilometres per hour. As the offender approached the traffic lights at the intersection of Wetherill Street, he was faced with a red traffic control signal. The offender proceeded through the intersection and collided with the rear off side portion of white Subaru WRX sedan registered number AWD.80Y driven by the deceased victim Mr Banh Nguyen. Mr Nguyen was turning right into Horsley Drive from Wetherill Street. The green traffic control signal was facing Mr Nguyen's direction when he turned. This is corroborated by a number of witnesses. At the time of the accident it was daylight. The weather was fine. The road surface was dry and in good condition. The speed limit was 60 kilometres per hour. Mr Nguyen was transported to Liverpool Hospital where he underwent surgery for head and abdominal injuries and subsequently died on 4 April after the family in consultation with doctors decided to withdraw life support. The offender was breath tested at the scene with a negative reading. The offender's vehicle was mechanically examined at the scene by the New South Wales Police Vehicle Investigation Unit and it was determined that no mechanical fault or defect contributed to the accident. The offender participated in an electronically recorded interview in which he stated that he believed that the traffic control light facing him was green. 5 The applicant made a number of admissions during a recorded interview, which the learned sentencing judge recorded in his remarks as follows: 1. That his load was nearly sixty tonnes. 2. That his journey would have commenced at 9pm. 3. That he had a half hour break at Wagga Wagga. 4. That he had a three quarter hour break at Yass. 5. That his normal driving time from his depot to Sydney varies from ten and a half to thirteen hours. 6. That shortly before the collision he received a telephone call from the consignee of his cargo inquiring about his whereabouts. 7. That he did not apply the brakes as heavily as he might have as the configuration of the three vehicles for which he was responsible was such that to do so could cause the second trailer to jack knife and endanger road users other than the victim. He denied having consumed any prohibited drug. 6 The applicant gave evidence in the sentence proceedings. The sentencing judge accepted that he had mistakenly believed the traffic control light to be green, but concluded that that was because he had been driving for too long. His Honour found that the applicant's failure to see either the amber light or the red light led to "the inevitable conclusion that either he fell asleep or he was so tired and stressed by the journey that he simply failed to comprehend what his eyes must have been telling him". He saw the case as more than one of momentary inattention or misjudgement. He characterised the applicant's conduct as amounting to an abandonment of responsibility, despite a concession to the contrary by the Crown prosecutor before him (who did not appear in this court). Subjective case 7 The applicant was twenty-eight years old at the time of the offence and is now thirty-one. He has an old criminal record which could fairly be described as minor, and which is of no present significance. However, he has several entries on his traffic record, including a traffic infringement notice alleging his driving a car at 150km per hour in a 100km per hour zone in December 2005. That offence, of course, was later than the offence with which we are concerned. 8 Otherwise, his background appears to be stable. There is no need to recite it. There was evidence that, following the accident, he had been suffering from depression and had undergone a personality change. His own evidence, and that of others, was that he was remorseful. His Honour was somewhat guarded about his expression of remorse, finding that it did not sit comfortably with the subsequent serious speeding offence to which I have referred. His Honour found special circumstances, considering that his prospects of rehabilitation "would be enhanced by an extended period of supervision". The application 9 The third ground of the application is that the sentence is manifestly excessive. This is said to be the result of errors asserted in the first and second grounds. These are, firstly, that the sentencing judge erred in his application of the guideline set out in R v Whyte (2002) 55 NSWLR 252 and, secondly, that his Honour erred in giving effect to the finding of special circumstances by extending the additional term with no downward adjustment of the non-parole period. The applicant was represented by Mr Game SC. 10 There is no need to set out the now familiar guideline in Whyte. It is to be found in the judgment of Spigelman CJ at [215] ff, where the Chief Justice re-examined and developed the guideline in R v Jurisic (1998) 45 NSWLR 209. It is sufficient to say that for a typical offence of dangerous driving occasioning death, where the offender's moral culpability is high, the guideline is that a head sentence of less than three years would not generally be appropriate. A case would involve high moral culpability if the circumstances were such that it could be said that the offender had abandoned responsibility for his or her conduct: [228] – [229]. 11 The sentencing judge found that the case involved the "factors contemplated" in the Whyte guideline but that there were "no additional aggravating factors". One of the features of a typical case identified by the Chief Justice in Whyte was a plea of guilty of limited utilitarian value: [204] (vii). Mr Game pointed out that that could not be said of the plea of guilty in the present case, which had been entered in the Local Court and was accepted to have been at the first opportunity. He argued that, in the light of that plea and the fact that his Honour found no additional aggravating factors, a sentence which is double the three year guideline could not be justified. Indeed, he argued, the sentence should have been below the guideline. 12 Mr Game submitted that this was a sufficient basis for the Court to intervene and re-sentence. In that event, he challenged the sentencing judge's assessment of the applicant's moral culpability and invited us to reach our own conclusion about it. This involves an examination of aspects of the applicant's evidence about his journey from Mildura and the circumstances of the accident. 13 Although he had told police that he left Mildura at about 9.00 pm, he gave evidence that it was "probably" between 7.00 and 8.00 pm. He drove to Wagga via Hay, and thence to Yass. He did not recall having stopped at Hay but said that "most likely" he would have had a break there which, he thought, would "probably" have been for an hour. He said that he had a half hour break at Wagga and that he stopped briefly at Yass. 14 He gave his logbook to police when he was arrested, and the officers who interviewed him had the book with them during the interview. The page of the logbook for 1 April 2005, the day of the accident, was in evidence. It provided for entries for the twenty-four hours from midnight. It would seem that the page for the previous day, which would have contained any entry between his departure from Mildura and midnight, was not able to be produced. The document in evidence records a stop at Wagga for half an hour, between 3.30 and 4.00 am. It records a later stop at an unspecified location for three-quarters of an hour, between 6.00 and 6.45 am. Presumably, that was the break at Yass, which must have been significantly longer than the applicant recalled. 15 It appears that there had been some delay in the vehicle being driven to Mildura, where the applicant was to pick it up for the journey to Sydney. As a result, and because the engine of the vehicle was not performing as it should, he was running late in arriving at the depot in Sydney where he was to deliver his cargo. It will be remembered that the accident occurred at about 10.15 am. He was supposed to have been at his destination by 6.30 am, although he said that he maintained contact with the depot and reported his progress. 16 He denied having been fatigued at the time of the accident. It remained his recollection that, as he approached the intersection where it occurred, the traffic light was green in his favour. He said, however, that he was looking for an intersecting street into which he had to turn from the Horsley Drive and that he must have been distracted, so as not to see the light change from amber and then to red. He said that he was travelling at no more than fifty kilometres per hour, and accepted that his attention must have been diverted for several seconds. 17 His Honour was referred to certain regulatory provisions whereby the applicant was required to have a half hour's rest after five hours driving and to drive for no more than twelve hours in a twenty-four hour period. His Honour was satisfied that he had commenced his journey no later than 8.00 pm, so that some fourteen-and-a-quarter hours elapsed before the accident. His Honour rejected his evidence that he had stopped at Hay, noting that he had not said anything of the kind in his police interview and that it was not supported by any entry in the logbook. He found that the logbook entries did not corroborate "the fact of or the length of" the breaks said to have been taken at Wagga and Yass. 18 His Honour added that, even if he accepted the evidence about those breaks, the applicant had "put in thirteen hours actual driving time". He noted that this put him outside the time permitted by the regulations. His Honour continued: Clearly he was obliged to stop and commence a twelve hour rest period not later than 9.15 am. That should have happened at a point well south of the suburbs of Sydney and long before he arrived in heavy traffic in a suburban street where he was unsure of his precise location and when he was under pressure from the consignee of his cargo. 19 It was in the light of these findings that his Honour concluded that the applicant's failure to see that the traffic light was red was attributable to fatigue or to the stress of a long journey. He made no reference to the applicant's evidence about being distracted while looking for an intersecting street and appears, impliedly, to have rejected it. 20 Mr Game challenged these findings. He argued that the page of the logbook in evidence did establish that adequate breaks were taken both at Wagga and at Yass. It should also be noted that, insofar as his Honour's rejection of the evidence that the applicant probably took a break at Hay was based upon the absence of a logbook entry, it may be that there was such an entry on the page of the logbook which was not in evidence. 21 It seems that the applicant was accustomed to the drive from Mildura to Sydney and Mr Game relied upon his evidence, apparently unchallenged, about the usual driving time for stages of the journey. He said that the entire trip normally took about eleven-and-a-half hours, including the breaks required by the regulations. The trip from Mildura to Wagga, he said, took about five and three-quarter hours. As I have said, the page of the logbook in evidence discloses his arrival at Wagga at 3.30 am. That being so, Mr Game argued, it is more likely that he left Mildura at the time he told the police, about 9.00 pm. Even allowing for his slower than usual progress because of the condition of the engine, the period of six-and-a-half hours between his departure from Mildura and the time of his arrival at Wagga was also consistent with his having stopped for a significant break at Hay. 22 In all the circumstances, Mr Game submitted, this Court should not be satisfied that the pattern of the applicant's driving was such that the accident could be explained only by his having fallen asleep at the wheel or by the fatigue and stress engendered by the journey. Rather, he said, we should assess his culpability upon the basis that he was distracted for the reason he gave in evidence. Mr Game acknowledged that even that would be a serious breach of proper conduct on the part of a professional driver in control of a large, heavily laden vehicle. He argued, however, that it falls short of an abandonment of responsibility, as that expression has been used in the authorities. 23 I can see the force of these arguments, but it is not easy for this Court to make its own assessment of this issue. It turned largely on the oral evidence of the applicant. His Honour made no comment in his remarks about his demeanour or his credibility generally, but he had the undoubted advantage of having seen and heard him give evidence. The Crown prosecutor in this Court submitted that it was open to his Honour to have found an abandonment of responsibility on the part of the applicant. 24 All that said, I think that there is force in the Crown prosecutor's alternative submission, developed orally, that it may not be necessary to decide the issue in determining the outcome of the application. He pointed out that, even if the accident was attributable to the applicant having been distracted while looking for an intersecting street, the offence remained a serious one for the reason fairly acknowledged by Mr Game. His Honour referred, appropriately, to the responsibility of drivers of heavy vehicles and the need for deterrent sentences for offences of this kind. 25 The expressions "abandonment of responsibility" and "high moral culpability" employed in the guideline judgment in Whyte are useful, but they are necessarily flexible. It was not intended that they become terms of art in this branch of sentencing law. The Crown prosecutor referred us to R v Clampitt-Wotton [2002] NSWCCA 383, which was a Crown appeal in a tragic case arising from an accident in which the respondent had been driving a heavy truck. It is not necessary to refer to the outcome of that case or the facts of it, except to observe that the sentencing judge had found the accident to be the result of inattention on the part of the respondent somewhat similar to that asserted by the applicant in evidence in the present case. In delivering the leading judgment, I said at [18]: His Honour's unchallenged findings … were that the respondent took a calculated risk in taking his eyes from the road and that, given the volume of traffic and conditions at the time, he was in serious disregard of his obligation as the driver of a heavy vehicle. That is the measure of his blame-worthiness, and nothing would be gained by an attempt to assign to his conduct some position within a notional scale of culpability. 26 It is also important to bear in mind what the Chief Justice said in Whyte at [232]: The guideline is, to reiterate, a "guide" or a "check". The 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 . I would be content to approach the present case on the basis that the offence is serious, whether the accident be attributable to the applicant's distraction or his fatigue after a long journey. 27 Mr Game raised another factual matter, related to the applicant's subjective case rather than the objective gravity of the offence. As I have said, his Honour appears to have questioned the genuineness of the applicant's expressions of remorse in the light of his subsequent speeding offence. In evidence, he explained that on that occasion he had been driving a private car. Asked in cross-examination what speed he had been doing, he said, "I think it was 150 kilometres an hour". Later, when he was recalled to give further evidence, he explained that by that answer he was not admitting that he had driven that fast but was merely saying that that was the speed he was "booked for". He said that he believed that he had only been travelling at 105 kilometres an hour, not much above the speed limit in the relevant area. 28 The point Mr Game made was that his Honour appears to have treated it as established that the applicant had been driving at 150 kilometres an hour when, in fact, the applicant disputed that speed. However, as Mr Game also acknowledged, it is not entirely clear what weight his Honour gave to this matter. He does not appear to have rejected out of hand the applicant's claim to be remorseful, saying no more than that he was "not entirely satisfied of the basis" of it. Apart from the applicant's own evidence that he was remorseful, that was also the impression of the author of a pre-sentence report and of two witnesses who gave evidence, the applicant's father and a Catholic priest who had been associated with the family. There appears to have been adequate evidence of remorse, which also found some support in his early plea of guilty. 29 Let me turn, then, to the second ground of appeal, which can be dealt with briefly. In sentencing the applicant, his Honour set what he described as a "minimum term" of three years imprisonment and a "further term" of three years. Mr Game argued that it should be inferred that his Honour determined the non-parole period without regard to the appropriate head sentence, and then gave effect to his finding of special circumstances by increasing the balance of term above that which would have attached to a non-parole period of three years if the usual statutory proportion had been applied to it. This Court has said more than once that such an approach is erroneous. It is sufficient to refer to the recent decision of Musgrove v R (2007) 167 A Crim R 424, per Simpson J at [39] – [45]. 30 It is not entirely clear that his Honour did approach the matter in that way. However, I find it unnecessary to deal with this ground of appeal because I am, in any event, persuaded that we should intervene and re-sentence the applicant. 31 The Crown prosecutor fairly acknowledged that the six year sentence is high. I am satisfied that it is manifestly excessive. In so saying, I do not deny the seriousness of the offence or its tragic consequences. A young man is dead. One can only feel the greatest sympathy for his partner, Ms Huynh, who expressed her loss so eloquently in a victim impact statement. Nevertheless, having regard to the guideline in Whyte for the purpose for which it was intended, the sentence which his Honour passed is significantly more severe than was warranted. It could not be justified by the objective gravity of the offence, and there is nothing in the applicant's antecedent history which called for it. Re-sentence 32 When considering re-sentence, I am mindful of the fact that the applicant's traffic record is not unblemished, although it contains nothing approaching the gravity of the present offence. It appears from the evidence of his father and the Catholic priest, and for a number of testimonials, that he is otherwise a person of good character. His father's evidence was that he continues to enjoy the support of his family. 33 He appears to have good prospects of rehabilitation, notwithstanding the more recent speeding offence. Nevertheless, given that this is his first experience of full time custody and in the interests of fostering his rehabilitation, I share his Honour's view that there are special circumstances. In all the circumstances, and taking into account the guideline, I think that the appropriate sentence is imprisonment for four years with a non-parole period of two years and three months. 34 Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, I would sentence the applicant to a term of imprisonment comprising a non-parole period of two years and three months, commencing on 15 June 2006 and expiring on 14 September 2008, and a balance of term of one year and nine months, commencing on 15 September 2008 and expiring on 14 June 2010. He would be eligible for release on parole on 14 September 2008. 35 PRICE J: I agree with Hidden J. ********** 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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