Bates v R

1. [1]

   SIMPSON AJA: I agree with Bellew J.

2. [2]

   ROTHMAN J: I agree with Bellew J.

3. [3]

   BELLEW J: On 23 July 2019 Jeffrey Wayne Bates (the applicant) pleaded guilty before the District Court of New South Wales to an indictment containing the following counts:

   1. (1)

      On 14 October 2017, at Berrima in the State of New South Wales, did drive a vehicle, namely VV92HV, when it was involved in an impact occasioning the death of Tyson Fardy, and at the time of the impact the said Jeffrey Bates was driving the vehicle in a manner dangerous to another person (count 1).

   2. (2)

      On 14 October 2017, at Berrima in the Stare of New South Wales, did drive a vehicle, namely VV92HV, when it was involved in an impact occasioning grievous bodily harm to Royce Collis, and at the time of impact the said Jeffrey Bates was driving the vehicle in a manner dangerous to another person (count 2).

4. [4]

   The offending in count 1 was contrary to s 52A(1) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 10 years’ imprisonment. The offending in count 2 was contrary to s 52A(3)(c) of the Act and carried a maximum penalty of 7 years’ imprisonment.

5. [5]

   On 8 November 2019 the sentencing judge gave the following indicative sentences:

6. [6]

   The applicant was sentenced to an aggregate sentence of 4 years and 6 months’ imprisonment with a non-parole period of 3 years’ imprisonment. In addition, he was disqualified from driving a motor vehicle for 5 years.

7. [7]

   The applicant now seeks leave to appeal against that sentence on the single ground of appeal more fully discussed below.

THE FACTS OF THE OFFENDING

1. [8]

   The sentencing judge found the facts of the offending to be as follows. [1]

2. [9]

   At about 3:59am on 14 October 2017 the applicant was driving a Kenworth B-double truck with two attached trailers in a northerly direction along the Hume Motorway at Berrima, a dry, sealed and fully marked stretch of roadway consisting of three northbound lanes and two southbound lanes with a posted speed limit of 110km per hour. The three northbound lanes sat higher than the two southbound lanes, and were separated by a wide nature strip which was the approximate width of four lanes. There was no street lighting on either side.

3. [10]

   The applicant’s truck suddenly left the motorway via the eastern road shoulder and travelled down, and then across, the nature strip and onto the southern bound carriageway. As this was occurring, Royce Collis was driving his vehicle in a southerly direction along the motorway, with his friend Tyson Fardy in the front passenger seat. As the applicant's truck crossed onto the southern carriageway, an impact occurred between the first trailer of his truck and the vehicle being driven by Mr Collis. The applicant's truck then continued across the motorway, travelling up a steep embankment on the eastern side of the motorway and rolling onto its nearside, before coming to rest on the embankment with the undercarriage facing south and the trailers lying across both southbound lanes.

4. [11]

   The impact caused the death of Mr Fardy, and grievous bodily harm to Mr Collis. There was no medical evidence before the sentencing judge which set out, in precise terms, the nature and extent of the injuries sustained by Mr Collis. However, his victim impact statement set out his injuries as:

5. [12]

   Jodie Croker was driving her vehicle, with a passenger in the front seat, in a southbound direction behind Mr Collis. As a consequence of the collision, she was required to take evasive action by steering her vehicle towards the nature strip, which resulted in a collision between the front near side of her vehicle and the rear roof portion of the second trailer attached to the applicant's truck.

6. [13]

   Vikramjit Singh was driving a semi-trailer with two attached trailers, also in a southerly direction. Upon sighting the stationary vehicles across the southbound lanes, Mr Singh applied his brakes but was unable to avoid an impact with the roof of the applicant's second trailer.

7. [14]

   Following the collision, the applicant was observed outside his truck looking through a backpack and walking around with logbooks in his hand. A number of witnesses described him as appearing to be disorientated, “bouncing around” and walking unusually. He told Mr Singh that he ran off the road because he was “just grabbing [his] drink”.

8. [15]

   The applicant was taken to hospital. The clinical notes taken at the time including the following:

9. [16]

   The applicant was then taken to the police station where he participated in an electronically recorded interview. Whilst that interview was not before the sentencing judge, the agreed facts tendered on sentence included the following: [2]

10. [17]

    In the course of the interview the applicant provided police with information regarding his recent driving and sleeping patterns. He denied feeling tired or experiencing any symptoms of fatigue at the time of the collision and there was no evidence to the contrary. He also told police that although he had been prescribed medication for an injury to his hand, he had not taken it for some days because it could not be ingested when operating heavy machinery. Call charge records established that the applicant was not using his mobile telephone to make calls or send messages at the time of the collision, and an analysis of a blood sample taken at the hospital evidenced no impairment of his driving due to drugs or alcohol.

11. [18]

    The applicant's truck and trailers were seized for mechanical examination. Leaving aside the damage caused by the collision, no mechanical defects were detected. The brake readings on both trailers were within an appropriate range. Crash investigators were unable to locate any brake marks leading up to the applicant's vehicle. According to the applicant, he had been travelling between 95 and 100km/h at the time his vehicle left the north bound lane. That assertion was not contradicted.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. [19]

   The sentencing judge concluded that the objective seriousness of the offending in respect of both counts fell at, or slightly below, the middle of the range for offences of this kind. In reaching that conclusion her Honour said: [3]

2. [20]

   Having made reference to photographs reproduced within the agreed facts which showed the path travelled by the applicant's truck, her Honour continued: [4]

THE APPLICANT’S SUBJECTIVE CASE

1. [21]

   The applicant was born in the United States and was aged 65 at the date of sentence. He was educated in New Zealand but left before completing high school. He was an average student who experienced no disciplinary issues. Following school he worked as a painter and decorator for a period before entering the trucking industry. During the 1980s he lived between Australia, New Zealand and the United States before returning to settle in Australia permanently in 1988. [5] At the time of the offending he had worked in the trucking industry for more than 45 years. [6] He gave evidence that as a consequence of what had occurred on this occasion he would not drive a truck again, and had made an application to suspend his licence to drive a heavy vehicle. [7]

2. [22]

   In the course of giving evidence, the applicant was asked about the circumstances in which he entered the pleas of guilty: [8]

3. [23]

   The sentencing judge found that the applicant's pleas of guilty, having been entered on the day of his trial, warranted a discount “in the order of 10%". [9]

4. [24]

   When asked whether he wished to say anything in particular about his offending, the applicant said: [10]

5. [25]

   In a letter addressed to the sentencing judge which was tendered in his case, the applicant said:

6. [26]

   Her Honour observed that whilst the applicant’s pleas of guilty were not entered at an early stage, [11] she was nevertheless satisfied that when they were eventually entered they conveyed some evidence of remorse. [12] Her Honour generally accepted that the applicant was genuinely remorseful. [13]

7. [27]

   The applicant’s criminal history included convictions for receiving stolen property, attempted false pretences, assault, destroying property, and possessing a prohibited drug. In respect of that history her Honour said: [14]

8. [28]

   The applicant had a significant traffic record which included entries for:

9. [29]

   Having noted the applicant’s driving history, her Honour continued: [15]

10. [30]

    The sentencing assessment report to which her Honour referred also recorded that the applicant: [16]

11. [31]

    Testimonials from the applicant’s daughters Tylah Bates and Marion Bates-Ratcliffe, along with a further testimonial from Bruce Davis, were tendered before the sentencing judge. All spoke of the emotional and financial support the applicant had consistently provided to his family, and the remorse that he had expressed for his offending. Her Honour found that the applicant's strong family ties and his employment history were such that, as far as she could predict, he had reasonable to good prospects of rehabilitation. [17] Her Honour found special circumstances on the basis that this was the applicant's first sentence of imprisonment, and that he would require assistance upon his release from custody to reintegrate into the community. [18]

12. [32]

    Her Honour concluded that in sentencing for offending of this nature, there was a need for strong denunciation and general deterrence, and that such factors would ordinarily outweigh the subjective considerations of an offender. [19] Her Honour also observed that any sentence was required to reflect the objective gravity of the offending and the applicant's moral culpability. [20] Her Honour concluded: [21]

Submissions of the applicant

1. [33]

   Counsel for the applicant advanced two specific submissions in support of the ground of appeal, the first of which centred upon the judgment of this Court in R v Whyte. [22] Counsel accepted that whilst it was the aggregate sentence which was to be considered in determining the ground of appeal, it remained relevant to consider the indicative sentences, and pointed out that the indicative sentence for each count exceeded the guideline which was expressed in Whyte as being applicable to what was described as a “typical case”. Counsel emphasised that the sentencing judge had specifically found that there were no aggravating factors of the kind referred to in Whyte, and had also found that the applicant's moral culpability had not risen to a level which constituted a complete abandonment of responsibility. It was submitted that all of these factors supported the conclusion that the sentence was manifestly excessive.

2. [34]

   Counsel’s second submission related to the level of notional accumulation applied by the sentencing judge. Whilst accepting that some accumulation was warranted in order to acknowledge the harm done to Mr Collis, counsel for the applicant submitted that in circumstances where there was no offending conduct in count 2 over and above that in count 1, the notional accumulation of 12 months fortified the conclusion that the aggregate sentence was manifestly excessive.

3. [35]

   These submissions were supplemented by reference to two particular decisions of this Court, namely R v Clampitt-Wotton [23] and Preston v R. [24] Counsel submitted that the manifest excess of the sentence imposed upon the applicant was further supported by the sentences imposed in each of those cases, bearing in mind the recent observations of Bell P in Moodie v R [25] regarding the use to which such material can be put.

Submissions of the respondent

1. [36]

   Counsel for the respondent submitted that the circumstances of the applicant’s offending were such that this was not a typical case of the kind which attracted the strict application of the guideline referred to in Whyte, and that her Honour’s finding in that respect was entirely correct. It was further submitted that there was no error in her Honour's conclusion that the applicant’s offending involved his having taken a “calculated risk". It was submitted, in particular, that there was no error in her Honour’s finding that this was not a case of momentary inattention, and that the evidence supported a conclusion that the applicant's distraction was far more significant.

2. [37]

   Counsel for the respondent also pointed out that the legislature had set a maximum penalty of 10 years for the offending in count 1 and a maximum penalty of 7 years’ imprisonment for the offending in count 2. It was submitted that taking into account these statutory guideposts, the objective seriousness of the offending, and the applicant's subjective case, the sentence did not fall outside the permissible range of sentencing discretion, and was neither unreasonable nor plainly unjust.

CONSIDERATION

1. [38]

   In order to establish the complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust. In Vaiusu v R [26] R A Hulme J summarised the relevant principles in the following terms:

2. [39]

   As I have noted, the first of the submissions advanced on behalf of the applicant was based upon the decision of this Court in Whyte. In that case, Spigelman CJ observed: [27]

3. [40]

   His Honour then made reference to aggravating factors often seen in this type of offending: [28]

4. [41]

   His Honour concluded: [29]

5. [42]

   The “typical case” to which his Honour referred was a case which had the characteristics set out in the passage extracted in [39] above.

6. [43]

   The sentencing judge specifically referred to the judgment of this Court in Whyte and correctly observed that the judgment was not prescriptive. Her Honour found that this was not a case of momentary inattention, and was not a “typical” case of the kind referred to by Spigelman CJ in Whyte. In my view, no error is demonstrated in those findings, for a number of reasons.

7. [44]

   To begin with, the applicant’s offending arose from his having made a conscious decision to take his eyes off the road and, at least for a period of time, to remove his hands completely from the steering wheel before using the edge of his right hand to steer a heavy vehicle. Such conduct, which was directed to retrieving a drink and replacing the cap on the bottle, was obviously extremely dangerous. These actions are not properly described as momentary inattention. Moreover, and leaving aside the death of Mr Fardy and the injuries to Mr Collis, the applicant’s actions placed other drivers in immediate peril, as evidenced by the necessity for Ms Croker and Mr Singh to take evasive action.

8. [45]

   The applicant was not, at the age of 65, a young offender. Even taking into account the testimonials tendered on his behalf, he was not a person of good character with no or limited prior convictions. He had long history of offending which included an unenviable driving history.

9. [46]

   Further in my view, the accumulation applied by the sentencing judge does not support a conclusion that the aggregate sentence is manifestly excessive. The level of accumulation was a matter for her Honour’s discretionary determination, by reference to the principle of totality. [30] It is apparent that in making that determination her Honour was, quite properly, mindful of the injuries sustained by Mr Collis. [31]

10. [47]

    In oral submissions before this Court, counsel for the applicant pointed out that before the sentencing judge, the Crown had categorised the harm suffered by Mr Collis as falling towards the lower end of the scale. [32] It was submitted, in effect, that even accepting that the injuries sustained by Mr Collis were relevant to the issue of accumulation, they did not, in view of the Crown’s categorisation of them, warrant the level of accumulation that the sentencing judge had adopted.

11. [48]

    Two observations may be made in relation to that submission. Firstly, the injuries sustained by Mr Collis were such that in my view the Crown's categorisation of them was, to say the least, generous to the applicant. Secondly, and in any event, her Honour made express reference to Mr Collis’ injuries in the context of considering accumulation and obviously took those injuries into account in determining the extent of any accumulation that was to be applied. Such an approach does not reflect error. Moreover, and however one might categorise them, the nature and extent of Mr Collis’ injuries were such that I am not satisfied that the level of accumulation adopted by her Honour supports a conclusion that the sentence is manifestly excessive.

12. [49]

    It remains to consider the two cases to which counsel for the applicant referred and which, it was submitted, supported a conclusion that the sentence was manifestly excessive. In doing so, I am mindful of the observations of Bell P (with whom Davies and N Adams JJ agreed) in Moodie [33] about the use to which sentences imposed in cases of like offending can be put, and of his Honour’s disagreement with the differing views expressed in respect of that issue in FL v R. [34] However, irrespective of what view might be taken, two propositions relevant to the use of such material are beyond dispute. The first, is that consistency in sentencing requires consistency in the application of relevant legal principles, as opposed to mathematical equivalence. [35] The second, is that whilst sentences imposed in cases of like offending may establish a range of sentences which have been imposed, they do not establish that such range is the correct range, nor do they establish that the upper and lower limits are the correct upper and lower limits of such range. [36] This is particularly relevant in circumstances where the Court was referred to, and counsel for the applicant relied upon, sentences imposed in two other cases. Two cases obviously do not establish a range.

13. [50]

    In any event, for the reasons that follow, an examination of these cases establishes that they can be distinguished from that of the applicant in a number of respects.

14. [51]

    In Clampitt-Wotton the offender, who was the respondent to a Crown appeal against inadequacy had been found guilty by a jury of two charges of dangerous driving occasioning death and two charges of dangerous driving occasioning grievous bodily harm. The offender had failed to stop whilst driving a heavy vehicle, and collided with the rear of another vehicle killing two young children, and injuring two others. There was no dispute that the offender had not applied his brakes before the collision, that he was not driving at excessive speed and that had he been keeping a proper lookout, he should have been able to stop in time. Evidence was given that the offender had taken his eyes off the road and had looked downwards and to his left just before the impact.

15. [52]

    The sentencing judge found that the offender had not been looking ahead but had been “intent upon doing something else, whatever that may have been". [37] The sentencing judge did not view the offending as being one of momentary inattention. He found that the offender had taken a calculated risk in taking his eyes off the road and that in doing so he had seriously disregarded his obligations as the driver of a heavy vehicle. [38]

16. [53]

    The offender was 34 years of age. He had no prior convictions and had what this Court described as a “minor traffic record which [the sentencing judge] treated as of no significance. [39] This Court set aside concurrent sentences of imprisonment of 2 years with a non-parole period of 12 months on the most serious charges and imposed, in lieu thereof, a sentence of 4 years’ imprisonment with a non-parole period of 2 years in each case.

17. [54]

    The offender in that case was substantially younger than the applicant, and his traffic record was minor. In each of those respects, the applicant’s case is markedly different. Further, this Court re-sentenced the offender in circumstances where the principle of double jeopardy remained applicable, a matter in respect of which Hidden J said: [40]

18. [55]

    In Preston, the offender had been found guilty by a jury of one count of dangerous driving occasioning death. Whilst driving a 42-tonne semi-trailer, the offender failed to stop at a Give Way sign, proceeded directly onto a highway, and failed to observe the presence of the vehicle driven by the deceased, which had been approaching from his right, until about three seconds before colliding with it. This Court set aside the sentence of 4 years’ imprisonment with a non-parole period of 3 years which had been imposed by the sentencing judge and substituted, in lieu thereof, a non-parole period of 18 months and the balance of term of 18 months.

19. [56]

    In doing so, this Court observed that the offender’s driving record over 40 years was “excellent” which was viewed as an important factor given the number of kilometres he had driven. [41] It was also observed that the offender, at the age of 60, had been convicted after leading a “blameless life". [42] Moreover, the offender faced only one charge. In all of those respects, that case is plainly distinguishable from that of the applicant.

20. [57]

    In all of these circumstances, and given the numerous distinguishing features in each, I am not satisfied that either of the two cases to which this Court was referred supports a conclusion that the sentence imposed on the applicant was manifestly excessive.

21. [58]

    For all of the reasons I have expressed I am not satisfied that the ground of appeal has been made out.

CONCLUSION

1. [59]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.