New South Wales Court of Criminal Appeal CITATION: Mitchell v R [2009] NSWCCA 95 HEARING DATE(S): 19 March 2009 JUDGMENT DATE: 8 April 2009 JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 12; Howie J at 13 DECISION: Grant leave to appeal but dismiss the appeal. CATCHWORDS: CRIMINAL LAW - appeal against sentence - negligent driving causing death - negligent driving causing grievous bodily harm - discretion of sentencing judge to vary automatic period of disqualification Crimes Act 1900 LEGISLATION CITED: Road Transport (Safety and Traffic Management) Act 1999 Road Transport (General) Act 2005 CATEGORY: Principal judgment CASES CITED : House v The King [1936] HCA 40; 55 CLR 499 PARTIES: Ross Mitchell (Applicant) The Crown FILE NUMBER(S): CCA 2007/3911 COUNSEL: A Radojev (Applicant) P A Leask (Crown) SOLICITORS: Phillip Cornwell Herrald (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/61/0040 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 3 August 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3911 McCLELLAN CJ at CL SIMPSON J HOWIE J WEDNESDAY 8 APRIL 2009 MITCHELL, Ross v R Judgment 1 McCLELLAN CJ at CL: The applicant was acquitted of two offences under the Crimes Act 1900; driving in a manner dangerous causing death (52A(1)(c) Crimes Act) and driving in a manner dangerous causing grievous bodily harm s 52A(3)(c) Crimes Act). Following the acquittals, the applicant was summarily convicted of two offences under the Road Transport (Safety and Traffic Management) Act 1999; negligent driving occasioning death (s 42(1)(a)) and negligent driving occasioning grievous bodily harm (s 42(1)(b)). 2 The maximum penalties for the offences are imprisonment for 18 months and/or 30 penalty units and imprisonment for 9 months and/or 20 penalty units respectively. For the offence of negligent driving causing death the sentencing judge imposed a sentence of 300 hours of community service. For the offence of negligent driving causing grievous bodily harm he imposed a sentence of 200 hours community service making a total of 500 hours community service. As a result of the convictions the applicant was automatically disqualified from holding a driver's licence for a period of three years (s 188(2)(d)(i) Road Transport (General) Act 2005). However, by s 188(2)(d)(ii), the court, if it thinks fit to do so, may order a shorter (but not shorter than 12 months) or longer, period of disqualification. 3 The applicant originally lodged an appeal against his conviction but that has been withdrawn. However, he has pursued an application for leave to appeal against the sentence imposed, confined to a complaint about the loss of his driver's licence for the period of three years, being the automatic period of disqualification. He claims that the discretion conferred by s 188(2)(d)(ii) ought to have been exercised in his favour, in order to reduce the period of disqualification. 4 In his reasons for judgment with respect to the conviction the trial judge recorded the relevant facts. His Honour said: "The matter concerns a collision between the truck driven by the accused and an F250 utility which is parked on the roadside on the Mid-Western Highway at Kings Plains at about 7.30 am on 17 June 2006. Ms Deborah Maher and Mr Neil Wylie were standing near to the utility at the time. Ms Maher was found a short time later to be deceased. Mr Wylie suffered quite catastrophic injuries. It was undisputed that the prime mover with a B-double configuration of trailers in tow had a gross weight of 55 tonnes. The accused was travelling at a speed of at least 80 kilometres per hour and he had the sun, which was in low in the sky, it being just after dawn, impairing his vision. He conceded in the evidence he gave before the jury that he had forward vision of only perhaps a couple of metres. He said that the steps he took to counter these difficulties were to have put on his sunglasses a few moments before and to have averted his eyes to the fog line. He was alternating his view from the fog line, directly to the fog line as it appeared in his near side external rear vision mirror, and occasionally forward. But as I just said, he conceded he could only see a couple of metres in front. I am satisfied that the accused had forewarning of this impending danger because it was apparent to him as he came around the sweeping left-hand bend that preceded the straight that he was coming to an area where the sun would be directly facing him low in the sky. From the end of this sweeping bend he then travelled some 280 metres, which would have taken him about 12 seconds until the point of collision. He was unfamiliar with the road and really did not know for how long he would be driving under such conditions. However, he did nothing effective to deal with the dangerous situation when there were things that he could and should have done; by adjusting the sun visors and perhaps if necessary his seat, and certainly by reducing his speed. I do not accept that he might have been expected to bring his vehicle to an immediate halt but prudence as a driver of such a vehicle would have it that he should have reduced his speed significantly. He should have been taking these steps as the danger must have become apparent as he preceded (sic) through the left-hand bend with the oncoming sun become (sic) more and more directly in his line of sight. What he did was entirely ineffective. There was a dispute at the trial as to precisely where the F250 utility was parked in relation to the fog line. The accused claimed that it was on the fog line whereas the prosecution evidence was that it was just to the left of it. I accept the evidence of Detective Keogh and Plain Clothes Senior Constable Hadley which was to the effect that the point of impact indicated that the F250 was parked with its driver's side extremity just to the left of the fog line. I might add, although it is unnecessary given the finding I have just indicated, that I would still be satisfied that the accused's driving was negligent and that this negligence caused the death and the grievous bodily harm, if the utility was slightly over onto the road side of the fog line. It was stationary and, even on the accused's case, only marginally intruding onto the roadway. Any driver with a modicum of forward vision would have been able to see it and avoid it. The problem, however, was not where the F250 was parked. It was that the accused was driving with virtually no forward vision at all with no effective attempts being made to deal with that situation. It is all the worse that he was driving such a potentially lethal weapon as a 55 tonne B-double where there is clearly a greater duty of care called for. I find that this was driving in a fashion that was negligent. I find that it was driving in this fashion that caused the collision with the F250 utility and thereby caused, or to use the language of the legislation, 'occasioned' the death of Ms Deborah Maher and grievous bodily harm to Mr Neil Wylie." 5 In his remarks on sentence his Honour, correctly in my view, described the offences as serious. The applicant was driving a prime mover with a B-double trailer configuration of which the gross laden weight was 55 tonnes. He entered upon a section of road where because of the sun he could not see more than about 2 metres in front of him. Notwithstanding the danger inherent in these circumstances he did not reduce his speed and came into collision with Ms Maher and Mr Wylie. Ms Maher was killed and Mr Wylie suffered what the sentencing judge described as "catastrophic injuries." His Honour concluded that the driving of a heavy vehicle of this type required a significantly greater level of responsibility than was exhibited by the applicant. 6 His Honour was of the opinion that the seriousness of the offences justified a sentence of full time imprisonment. However, his Honour was also satisfied, particularly having regard to the exemplary prior record of the offender, including a lack of motor traffic infringements, that the matter could be "best dealt with by the imposition of a community service order." 7 As I have indicated before this Court the applicant's challenge to the sentencing judge's decision was confined to the period of disqualification. His Honour declined to exercise his discretion to order a shorter period of disqualification. He said that he saw no reason why the automatic period ought not to apply. For the applicant to succeed it is therefore necessary to establish, on the principles stated in House v The King [1936] HCA 40; 55 CLR 499, that the exercise of discretion miscarried. His counsel emphasised that the appellant had no previous traffic violations and had served the community as a volunteer in the Rural Fire Service. It was submitted that disqualification for a three year period, which would preclude him from driving a fire truck, would impose a penalty on the applicant and also upon the community. Although the loss of his licence has no impact upon his employment it was submitted that it had a social impact upon him, arising in particular from the fact that he could not drive his teenage daughter to events where she rode her horse. 8 In my opinion the applicant's submission must be rejected. The offence which he committed was serious and led to the death of one person and very serious injury to another. Being the driver of a heavy vehicle configured as a B-double trailer he had an obligation to other users of the road to ensure that he responded appropriately where, for any reason, the driving conditions were compromised. As the sentencing judge emphasised if the driver's visibility had been restricted because of heavy rain he was obliged to slow to a speed which would enable him to bring his vehicle to a halt without injuring others in the event of an emergency. When his vision was impaired by the sun he had a similar obligation to slow his vehicle to a speed which would allow him to stop or manoeuvre his vehicle to avoid a collision. 9 Every person who uses the road accepts a risk of injury even when other users drive appropriately. However, they are entitled to expect that the law will operate to punish those who by negligence cause serious injury to others. 10 As the Parliament has made plain an important component of the punishment for the instant offence is the suspension of the offender's licence to drive. It is a salutary reminder that a licence to drive a vehicle is a privilege which will be removed when negligence occasions the death of another. The Parliament intended that when a licence holder breached the section disqualification from driving for a three year period would normally occur. There will be occasions when the circumstances of the offender or of the particular offence justify a lesser period of disqualification. However, the reasons identified by the applicant are not sufficient in my opinion to displace the automatic period. At the very least the Parliament anticipated that the suspension of a driver's licence would have social consequences for an offender. Furthermore, I do not doubt that there will be others prepared and able to drive a fire truck. In the meantime the applicant can, when the occasion arises, carry out other duties. No error in the exercise of discretion is demonstrated. 11 Although I would grant leave to appeal the appeal should be dismissed. 12 SIMPSON J: I agree with McClellan CJ at CL. 13 HOWIE J: I agree with McClellan CJ at CL. ********** 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.