Bonsu v R [2009] NSWCCA 316

New South Wales Court of Criminal Appeal

CITATION: Bonsu v R [2009] NSWCCA 316

HEARING DATE(S): 19/11/2009 JUDGMENT OF: Howie J at 1

EX TEMPORE JUDGMENT DATE: 19 November 2009

DECISION: The appeal is allowed, the sentence imposed in the District Court is quashed. In lieu the applicant is to enter into a good behaviour bond for a period of 12 months.

CATCHWORDS: CRIMINAL LAW - Sentence - breach of community service order - offence dealt with under s 166 of Criminal Procedure Act - whether discretion on resentence after breach miscarried - sentencing for negligent driving causing death.

Crimes Act 1900 - s 52(A)1(c) Road Transport (Safety and Traffic Management) Act 1999 - s 42(1)(a) LEGISLATION CITED: Criminal Procedure Act 1986 - s 166 Crimes (Administration of Sentences) Act 1999 - s 115 Crimes (Sentencing Procedure) Act 1999 - ss 9, 10A

CATEGORY: Principal judgment

PARTIES: Samuel Bonsu v Regina

FILE NUMBER(S): CCA 2006/12701

COUNSEL: F Veltro - Crown H Dhanji - Applicant

SOLICITORS: S Kavanagh - Crown Murphy's Lawyers - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2006/12701

LOWER COURT JUDICIAL OFFICER: Johnstone DCJ

LOWER COURT DATE OF DECISION: 24/02/2009

IN THE COURT OF CRIMINAL APPEAL 2006/12701

HOWIE J

THURSDAY 19 NOVEMBER 2009 Samuel BONSU v REGINA Judgment 1 HOWIE J: This is an application for leave to appeal against sentence that arises in somewhat unusual circumstances. The parties agree that for the purposes of determining the application a single Judge should constitute the Court. 2 The applicant was originally charged with dangerous driving causing death contrary to s 52(A)1(c) of the Crimes Act. The offence was alleged to have been committed at Kellyville on 7 September 2005. He pleaded not guilty and the matter was dealt with by a judge alone trial conducted by Judge Morgan. The allegation was that the applicant was driving dangerously at about 3.10 pm in a public street on a weekday when he lost control of his vehicle or in some other way he allowed his vehicle to come in contact with the deceased. He was at the time performing duties as a traffic controller and standing alongside a cement truck. He was pinned by the applicant's vehicle against the truck and died of his injuries The Crown alleged that the applicant was engaged in some type of manoeuvring of the motor vehicle that resulted in him striking the hapless deceased. 3 The applicant gave evidence before her Honour to the effect that for some reason he had a momentary blackout, the result of which was that he was not in control of his vehicle at the time that it struck the deceased. Her Honour came to the view that she was not satisfied beyond reasonable doubt that the factual circumstances relied upon by the Crown were made out and, therefore, she could not be satisfied beyond reasonable doubt the applicant was driving dangerously. Rather, she came to the view that the evidence was, in her words, "more suggestive of momentary inattention" which in the circumstances of this particular case her Honour did not believe amounted to dangerous driving for the purposes of the charge for which the applicant was being tried. 4 The result was that her Honour found that the applicant was not guilty of the s 52A offence. As a consequence she was asked to deal with, what was in effect, a back-up charge under s 166(1)(b) of the Criminal Procedure Act 1986 of negligent driving occasioning death. That is an offence contrary to s 42(1)(a) of the Road Transport (Safety and Management) Act. It is a summary offence for which the maximum penalty in the applicant's case was imprisonment for 18 months. 5 Her Honour imposed a community service order of two hundred hours. The sentencing remarks of her Honour amount to no more than the imposition of the sentence. They do not attempt to explain why her Honour imposed the sentence that she did. However, she did make it known that she was sentencing the applicant on the basis of momentary inattention. This paucity of the sentencing remarks is perhaps understandable because, generally speaking, the pronouncement of the sentence would have been the end of the matter. However, the history thereafter shows why a Judge should give properly reasoned sentencing remarks even when dealing with a matter under s 166 of the Criminal Procedure Act. 6 The applicant ultimately failed to complete his community service order. In fact he served only 11 hours. The reason for that is probably both a lack of commitment by him and some medical problems, one of which, in the view of the community service officer, would have disentitled him to such an order had he disclosed the injury at the time he was being assessed. There was also an injury that the applicant suffered during the period while the community service order was on foot. The result was that, after much to-ing and fro-ing over a lengthy period of time, the order was ultimately revoked. 7 The matter was re-listed before the District Court and, for reasons that are presently irrelevant, the applicant failed to appear on the hearing date. A bench warrant was issued and the applicant appeared before the Parramatta District Court on 24 February 2009 in custody. The judge hearing the proceedings was not Judge Morgan. There followed a hearing of sorts that, it has to be said, were completely unsatisfactory as a way of determining to take away a citizen's liberty. I think it is important to set out what happened in some little detail because the present proceeding is an application for leave to appeal against what purports to be the exercise of a sentencing discretion. 8 It is important to understand that the applicant was aged 28 years when he came before the District Court as a result of the breach of the community service order. In effect he had no criminal record and a very minor traffic record. The offence occurred over four years earlier. He had given evidence before Judge Morgan that he had been working as a courier driver at the time. He expressed remorse for the killing of the deceased to the family that was in the court and related how the death had affected him. 9 The proceedings for the breach was governed by s 115 of the Crimes (Administration of Sentences) Act 1999. The relevant part of the provisions for present purposes is s 115(3) which is as follows: