Ellis v R

HOEBEN CJ at CL:

The applicant also pleaded guilty to one offence of cause bodily harm by misconduct in charge of a vehicle contrary to s 53 of the Crimes Act. That offence has a maximum penalty of 2 years imprisonment. There is no standard non-parole period. There is an automatic disqualification of 3 years and a minimum of 12 months from holding a driver’s licence.

The applicant received an aggregate sentence of 3 years with a non-parole period of 18 months, commencing 30 October 2019, in respect of those offences. The indicative sentence for the dangerous driving offence was 2 years and 6 months. The indicative sentence for the cause bodily harm by misconduct in charge of a vehicle offence was 9 months.

The applicant relies upon the following grounds of appeal, namely:

Before the hearing of the application for leave to appeal against sentence, the Court was advised that Ground 2 would not be relied upon.

The following facts were agreed:

The applicant accepted that Ms Richards turned her indicator on at least 500m from the entry to the residence that she was proposing to drive into. It was conceded by the applicant that he did not see the brake light or indicator light.

The applicant submitted that he did not lose control of the vehicle and that there appears to have been a moment of inattention whilst he was driving above the speed limit and at a time when his vision may have been limited by the lengthy bonnet and the insect deflector. It was conceded that there was insufficient space between his truck and Ms Richards’ vehicle to allow him to brake and stop in time to avoid the collision.

It was accepted by the applicant that “[i]f it is not a case of momentary inattention the time and distance travelled without attention to the road was a relevant and aggravating factor”.

In written submissions the applicant submitted “[t]hat [his] moral culpability [was] at a lower level”. There was nothing to demonstrate that there [was] a total abandonment of responsibility. The applicant submitted that the act of momentary inattention was due to him checking his gauges. It occurred in the context of him driving his unloaded semi-trailer above the speed limit and at a distance from the victim’s vehicle which did not allow him to stop in a safe manner.

The following evidence was given by the applicant in the sentence proceedings:

It should also be noted that in an exchange with the sentencing judge, counsel for the applicant conceded that the accident was more serious than one involving momentary inattention (T19.29, 25.10.2019).

When considering the objective seriousness of the offences, the sentencing judge identified the following factors as relevant to an assessment of the applicant’s driving:

A number of those factors were commented on by the sentencing judge. His Honour accepted that he could not take into account the applicant’s failure to maintain his log book, as indicating that he was not properly rested, since there was no evidence to that effect.

By reference to the applicant’s evidence that although he did not see Ms Richards indicating a turn or coming to a stop he had almost missed hitting her vehicle, his Honour inferred that had the vehicle not been speeding, and had the brakes been working to their maximum efficiency, the collision may not have occurred.

His Honour concluded that the actions of the applicant just before the collision, i.e. checking his load, the sides of his vehicle, its speed and the fuel gauge, meant that the accident did not occur because of momentary inattention. His Honour inferred that the combination of those actions just before the applicant became aware of Ms Richards’ stationary vehicle was dangerous in circumstances where the truck was travelling 12km/h over the speed limit. His Honour rejected the applicant’s submission that “he was not speeding to a significant degree”. His Honour concluded that speed was a significant factor because of the degree of inattentiveness by the applicant and the distance between the truck and Ms Richards’ vehicle. His Honour regarded the braking deficiencies as significant. This was in circumstances where he was responsible for maintaining the truck and [h]ad noticed no response from the braking of that vehicle during the trip from Melbourne that should have caused him, as an experienced truck driver, to at least exercise a greater degree of care to ensure that the speed limits and the distance between vehicles were highlighted in the management of his truck on a public road.

His Honour had regard to the guideline judgment in Regina v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. His Honour noted the following aggravating factors in a typical dangerous driving case which were referred to in Regina v Whyte and which were relevant to this accident as follows:

His Honour identified the factors that impacted directly upon the applicant’s irresponsibility as follows:

His Honour noted that both offences arose out of the same collision and that there were two victims. His Honour discussed moral culpability and assessed the objective seriousness of the offending as follows:

His Honour took into account the “appalling” driving record of the applicant in New South Wales and Queensland as disentitling him to any leniency and emphasised the need for the sentence ultimately imposed to have a substantial element of specific deterrence. His Honour noted:

His Honour took into account the early plea of guilty and that the applicant was entitled to a reduction of 25 per cent from an otherwise appropriate sentence to recognise the utilitarian benefit of his pleas.

The sentencing judge accepted that the applicant was genuinely remorseful and had accepted responsibility for his behaviour. His Honour was satisfied that the collision had finally brought home to the applicant the importance of complying with road rules. His Honour noted that the applicant in the course of giving his evidence had directly apologised to Ms Richards who was also in court.

His Honour had regard to the following subjective matters relating to the applicant. He was born in June 1960 and was one of nine children raised in Maroochydore. His childhood was marked by physical abuse and discipline from his strict father. His father, however, was hard working and provided for the family. The applicant left school in year nine and home at the age of 15. He has had a variety of jobs comprising labouring, process work, air craft refueler, tarmac controller, interstate truck driver and welder, which is his current occupation.

At the age of 18, the applicant left Brisbane and moved to Sydney. He spent 10 years in Sydney and returned to Brisbane when he was aged 27. From a young age, he suffered several motorcycle accidents and falls from riding horses. This resulted in physical problems, injuries and medical operations.

The applicant had a long-standing relationship with a Ms Ranson which started when he was aged 28. The applicant is unable to father children and although Ms Ranson had two children from other partners, he treated them and raised them as his own. He has maintained a continuing relationship with these children.

The applicant came to live in Sydney in 2016 after his business collapsed. In 2017, his company was put into liquidation. This was a result of a downturn in the building industry in South Eastern Queensland. He had a relationship with a Ms Rae which lasted for three and a half years, and although that has ended, Ms Rae was in court with him and wrote a letter to the court advising that she was prepared to have him reside at her home as a lodger.

The applicant was diagnosed with Post Traumatic Stress Disorder and his general practitioner has identified a mental health plan for him. The applicant was currently working as a welder but had considerable debts.

A Sentencing Assessment Report assessed the applicant at a low risk of reoffending. In reaching that conclusion, the author of the report noted that the applicant had ceased driving trucks. The applicant was regarded highly by his present employer. The applicant had surrendered his licence to police and had no intention of renewing his truck licence. The Post Traumatic Stress Disorder from which he suffers developed as a result of this collision.

His Honour said:

By reference to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour took into account the following considerations. There was a need for a degree of specific deterrence to be included in the sentence because speeding was a significant part of the offences. His Honour found that general deterrence should also be given emphasis. This was because large heavy vehicles are driven on public roads on a daily basis. This was in a context where other road users were driving less substantial vehicles. The effects of a collision between a semi-trailer and a car were likely to cause significant injuries. His Honour concluded:

His Honour was satisfied that despite the applicant’s age and history, there was a need for a slightly longer period to be served in the community to ensure the success of his rehabilitation and to address his Post Traumatic Stress Disorder.

In relation to totality, his Honour took into account that the two offences were due to the same acts and omissions by the applicant. His Honour also noted that there were two victims who suffered injuries of differing degrees of seriousness. His Honour concluded that while there should be a degree of significant concurrency in the sentence, there was still a need for some accumulation.

His Honour disagreed with the submission that an Intensive Correction Order should be made rather than the imposition of a custodial sentence. This was because of the objective seriousness of the offending.

At the outset of the hearing of the appeal, counsel for the applicant submitted that it was his understanding that the concepts of “the objective seriousness of offending” and “moral culpability” were synonymous. It was for that reason that he had referred to moral culpability in the first ground of appeal. He had done so even though the sentencing judge had not in terms made an assessment of moral culpability. The assessment which his Honour did make was of the objective seriousness of the offending. It was for that reason that the Court allowed the applicant to amend his grounds of appeal to add Ground 1A.

I am of the opinion that the concepts of the objective seriousness of offending and moral culpability are quite different. As was made clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:

In contrast, the concept of “moral culpability” is considerably broader than that of the objective seriousness of a particular offence or offending. It includes the objective seriousness of the offending but goes beyond that and also includes matters personal to the offender such as profound deprivation and being raised in an atmosphere of alcohol abuse and violence (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44]). Generally speaking, subjective considerations which have been recognised by the courts as bearing directly upon the exercise of the sentencing discretion will often, if not always, form part of the assessment of moral culpability.

Since the matter was not fully argued before the Court, I would go no further than to say that moral culpability is a broader concept than the objective seriousness of an offence and may well include that factor together with others of a subjective kind.

For the purposes of this application, however, it was his Honour’s assessment of the objective seriousness of the offending and not his assessment of moral culpability which was challenged.

It follows that the relevant ground of appeal is Ground 1A.

The applicant submitted that there was no evidence that he was aware of a problem with the brakes on the semi-trailer. The applicant submitted that no questions had been asked on that issue by the Crown and that the only evidence came from the applicant when answering the following question from his Honour:

The applicant submitted that the effect of that answer was that he had not noticed any problem with the brakes while he was travelling from Victoria to Penrith.

The difficulty with that proposition is that the braking deficiency was an agreed fact, i.e.:

It also needs to be kept in mind that the applicant was aware of a problem with the brakes and he was the person responsible for maintaining them. It follows that he should not have been driving a semi-trailer on busy roads when he knew there was a problem with the brakes. The fact that he claimed not to have experienced any problems on the trip to and from Melbourne is largely irrelevant in circumstances where a defect was known to exist.

This part of Ground 1A has not been made out.

The applicant submitted in relation to the second aspect of Ground 1A, that the applicant gave evidence of checking the “gauges” but at no time during the sentence hearing did he say, or was it put to him, that he did or did not check the speedometer before the accident. The applicant submitted that on that state of the evidence, his Honour’s finding that he ignored what was shown by the speedometer, was not open.

This ground is misconceived. It was an agreed fact that the applicant’s truck was travelling at a speed 12kph above the speed limit. There were two possibilities open, i.e. the applicant did not look at the speedometer or that he did look but ignored the reading. On either basis, his Honour’s finding was open. If he checked the gauges but failed to check the speedometer he was at fault. That of itself would constitute dangerous driving, given the busy road conditions at the time. Alternatively, if he did look at the speedometer but ignored the reading, he would again be at fault.

Given the applicant’s evidence to the police and in the sentence proceedings, that he checked everything that he was supposed to check, this must implicitly have included the speedometer which in the circumstances, i.e. a busy highway, was the most important of all the gauges. It was certainly more important than the fuel gauge.

It follows that in the circumstances of this case it was open to his Honour to find beyond reasonable doubt that if the applicant did not look at the speedometer, he should have, and if he did look at the speedometer and did nothing, the only inference available is that he must have ignored the reading.

This aspect of Ground 1A has not been made out.

The applicant submitted that manifest excess can be demonstrated through the inability to reconcile the ultimate sentence with the findings of objective seriousness. The applicant submitted that the sentencing judge had assessed the objective seriousness of both offences as falling “towards the lower end of the broad range of midrange objective seriousness”. The applicant submitted that contrary to this finding, the nominal starting point for the indicative sentence for the s 53 offence was precisely the mid-point (half of two years less 25 per cent equalled nine months) and fractionally below the mid-point for the s 52A offence (half of seven years less 25 per cent equalled two years seven and a half months). The applicant submitted that his Honour made multiple favourable findings in mitigation for him. The applicant submitted that despite these findings, the indicative sentences were consistent with sentences at mid-range, rather than the lower end of the broad mid-range. The applicant submitted that, as a result, the indicative sentences demonstrated that no weight had been given to the matters found in mitigation.

The applicant submitted that while acknowledging the limitations of comparative cases, the sentence imposed on him was more consistent with the sentences imposed upon truck drivers where accidents occasioned death. In support of that proposition, the applicant set out a table of 14 cases from 1997 to 2019 where sentences were imposed upon truck drivers for offences of drive in a manner dangerous occasioning death. The applicant noted that this offence carries a maximum penalty of 10 years and was strictly indictable. The applicant submitted that the sentences were similar to that imposed in this case but for much more serious offending.

In order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Markarian); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in a context where there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]. Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: Obeid v R (2017) 350 ALR 103 at [443]; [2017] NSWCCA 221.

There will be a range of possible sentences that could be imposed without error: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].

Further “it is only if this Court concludes that no judge properly exercising his or her sentencing discretion could have arrived at the same result that it is able to give any consideration to quashing the sentence and imposing a different one”: see Harrison J (with whom Johnson J and Hamill J agreed) in Edwards v R [2020] NSWCCA 141 at [23].

The applicant submitted that a comparison of the sentencing judge’s findings in relation to objective seriousness and the indicative sentences nominated reflected a sentence that was manifestly excessive. In support of this, the applicant applied a mathematical process of determining the mid-point of the maximum penalty for each offence minus the 25 per cent discount.

Such a mathematical approach to the assessment of the aggregate sentence ignores the broad principle that sentencing is not an arithmetic process of adding and subtracting for aggravating and mitigating factors, but instead is a process of instinctive synthesis of all the relevant facts and circumstances (Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [74]-[76]; [2001] HCA 64; Markarian at [39]).

Contrary to the applicant’s submission, a mathematical equation of the sentencing judge’s findings in relation to the objective seriousness of the offences with the maximum penalties does not establish manifest excess, nor does it disclose that the aggregate sentence was unreasonable or plainly unjust. In any event, indicative sentences are not themselves amenable to appeal but may be a guide as to whether error is established in relation to the aggregate sentence (JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]).

Here, neither the indicative sentences nor the aggregate sentence were so unreasonable or plainly unjust as to constitute a manifestly excessive sentence. This is supported by following features:

The applicant, while acknowledging the limitations of comparative cases, provided a table of cases involving truck drivers sentenced between 1997 and 2019 for the offence of dangerous driving occasioning death contrary to s 52A(1) Crimes Act.

In Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83]:

In relation to the cases included in the table by the applicant, none is sufficiently comparable with the applicant’s case such as it would demonstrate that his sentence was unreasonable or plainly unjust. It is noted that the cases relate to an offence contrary to s 52A(1) for offences involving death and not the two offences for which the applicant was being sentenced. Also, the first four cases listed pre-date the guideline judgment of Whyte. In relation to the remaining cases, the following features distinguish them from that of the applicant:

In Thornton v R [2020] NSWCCA 257, this Court recently considered an appeal in respect of a sentence in relation to two offences of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c). The offender was sentenced to an aggregate term of 3 years and 8 months, with a non-parole period of 2 years. The indicative sentences for each offence after application of a 25 per cent discount for a plea of guilty were 2 years and 1 month and 2 years and 7 months. The driver of the vehicle, while not a professional truck driver, collided with a stationary police car, injuring two police officers who were standing outside their vehicle setting up an RBT. The fact that the victims were police officers was not taken into account as an aggravating factor pursuant to s 21A(2)(a) Crimes (Sentencing Procedure) Act 1999.

The applicant in Thornton was not speeding but was found to have been inattentive to his responsibilities as a road user as a result of looking at his mobile phone for a period of 300m, or 10 to 20 seconds prior to the collision. He had also been using his phone earlier in his journey. The injuries to the victims were extensive and required substantial medical attention, including a through knee amputation in relation to one and the insertion of a titanium rod from knee to ankle for the other. There was also permanent scarring, psychological impacts and impact on employment and quality of life. The applicant was 23 years of age, of prior good character and was found to be remorseful and with good prospects of rehabilitation. His moral culpability was assessed as high and the accident was not caused by momentary inattention or misjudgment.

It follows from the above that none of the cases in the table and discussed above demonstrate that the aggregate sentence in this matter is unreasonable or plainly unjust. It also follows that the aggregate sentence has not been shown to be manifestly excessive.

The orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL.

BELLEW J: I agree with Hoeben CJ at CL.