New South Wales
Court of Criminal Appeal
19 June 2015
Colville v R  NSWCCA 149
Ward JA, Johnson and Garling JJ
Today the Court of Criminal Appeal granted leave to Mr Colville (the applicant) to appeal against the sentence imposed on him in the District Court of New South Wales for two counts of dangerous driving, one occasioning death, the other occasioning grievous bodily harm. His appeal was dismissed.
The offences occurred at around 11.28am on 9 December 2012 when the car Mr Colville was driving crossed over to the wrong side of the road and collided, head-on, with another vehicle. The driver of the other vehicle died as a result of the collision and the passenger was seriously injured. Mr Colville pleaded guilty to the offences and was sentenced to a term of imprisonment of 3 years and 5 months, with a non-parole period of 2 years and 3 months for the offence occasioning death and a fixed term of imprisonment of 2 years and 6 months for the other offence. There were successive periods of disqualification from driving imposed.
At the sentencing hearing, it was agreed that there was no clear explanation for Mr Colville's vehicle crossing to the wrong side of the road. The road was in good condition. It was dry. Mr Colville's vehicle had no mechanical defects. Both cars were travelling within the speed limit, no braking was observed by witnesses prior to the collision and the only skid marks on the road were believed to be post impact. The evidence before the sentencing judge included an expert pharmacological report which identified various substances (including methylamphetamine) in blood samples taken from Mr Colville on the afternoon of the collision, and a statement by Mr Colville that on the morning of the collision he had driven from around 4.30 to 5.30am and that the last time he had consumed illicit substances was at least 24 hours prior to the crash. Also in evidence was a psychological assessment report of Mr Colville.
On appeal, Mr Colville submitted that it was not open to the sentencing judge on the evidence to conclude beyond reasonable doubt that he was driving whilst sleep deprived and that his fatigue was exacerbated by the after effects of illicit drugs he had consumed at least 24 hours prior. He also submitted that he was not afforded procedural fairness as the sentencing judge provided no indication that she intended to sentence Mr Colville upon a higher degree of culpability based on her findings of sleep deprivation.
The Court found that the sentencing judge's assessment of Mr Colville's moral culpability was not shown to have been in error and that Mr Colville was not denied procedural fairness. It was open on the evidence to infer that the sleep deprivation and secondary effects of the illicit substances that were in his system were the cause of his failure to keep his car on the correct side of the road; and that it was neither a fleeting moment of inattention, nor an unexplained accident. Sleep deprivation and the secondary effect of illicit substances were matters raised before the Court and Mr Colville had an adequate opportunity to address thereon.
Mr Colville also submitted that the sentencing judge erred in rejecting background material related to a deprived early childhood as contained in the psychological report. The sentencing judge admitted the report but determined that no great weight should be accorded to the account of Mr Colville's childhood having regard to his unreliability as a historian and the fact that the veracity of that account could not be tested. The Court found that no error warranting appellate intervention was demonstrated.