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Court of Criminal Appeal 25 June 1999

R v Mansour

[1999] NSWCCA 180

Traffic & driving
CRIMINAL LAW SENTENCING SENTENCE ABOVE PERMISSIBLE RANGE

Citation: R v Mansour [1999] NSWCCA 180
Court: New South Wales Court of Criminal Appeal
Date: 25 June 1999
Judge(s): Spigelman CJ, Studdert J, Adams J

Background

The appellant pleaded guilty in the District Court to dangerous driving occasioning death under s 52A(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of ten years imprisonment. The offending involved sustained high-speed driving on a wet road, including overtaking a truck at speed and cutting in front of an oncoming vehicle, ignoring warning signs and repeated flashing of lights from other drivers. The appellant's vehicle ultimately crossed to the wrong side of the road and struck another vehicle, killing the driver.

District Court Judge Viney sentenced the appellant to a minimum term of two years and an additional term of two years. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had impermissibly taken victim impact material into account.

  • Whether the sentencing judge took irrelevant material into account by referring to the "immeasurable grief" suffered by the victim's family
  • Whether the sentence of four years total (minimum two, additional two) was manifestly excessive in light of the subjective features of the case
  • Whether the sentencing judge was required to apply, or articulate reasons for departing from, the guideline judgment in Jurisic
  • Whether the circumstances were exceptional enough to justify a non-custodial sentence, home detention, or periodic detention

Decision

On the first ground, the Court rejected the argument that the reference to "immeasurable grief" demonstrated reliance on irrelevant material. Spigelman CJ distinguished the present case from Bollen, where the sentencing judge had expressly stated that he had "borne in mind" specific victim impact statement contents and the particular effects on family members. Here, nothing in the judgment indicated that Viney DCJ gave the grief reference any weight in fixing the sentence. The remark amounted to an appropriate public acknowledgment of the impact of crime, not an impermissible factor in the sentencing calculus.

On the second ground, the Court found the sentence was manifestly excessive. The Court noted that guideline judgments such as Jurisic are not binding precedents, and a failure to apply a guideline does not itself constitute a legal error warranting appellate intervention. However, in considering all the circumstances, the Court concluded the total sentence of four years was outside the permissible range.

The Court accepted that a custodial sentence was plainly required. The driving was more than momentary inattention and caused the death of an innocent person. However, the sentencing judge's own finding that the appellant had not "abandoned responsibility for her conduct" was a significant subjective consideration. Balancing the objective seriousness of the offending against those subjective features, the Court exercised its discretion afresh and reduced the sentence.

A finding of special circumstances was made, justifying an additional term equal to the minimum term. The two-year disqualification from driving imposed by the District Court was left undisturbed.

Orders Made

  • Appeal allowed
  • Original sentence quashed
  • Substituted sentence of two years imprisonment, comprising a minimum term of 12 months (commencing 6 November 1998, expiring 5 November 1999) and an additional term of 12 months (commencing 6 November 1999, expiring 5 November 2000)
  • Direction for release on parole at the expiration of the minimum term pursuant to s 24 of the Sentencing Act 1989 (NSW)
  • Two-year driving disqualification order affirmed

Key Takeaways

  • A sentencing judge's acknowledgment of grief suffered by a victim's family does not automatically constitute impermissible reliance on victim impact statements. The distinction lies in whether the material was given actual weight in fixing the sentence, as opposed to being noted as a recognition of the human cost of the offending.
  • Guideline judgments in NSW (such as Jurisic) are not binding precedents on lower courts. Failure to follow a guideline is not in itself a ground of appeal, though a sentencing court departing from a guideline should articulate its reasons.
  • Where the Court of Criminal Appeal finds a sentence manifestly excessive and intervenes, it exercises the sentencing discretion afresh rather than making minor adjustments to the original sentence.
  • A finding that a dangerous driving offender had not "abandoned responsibility" for their conduct, though the driving was plainly irresponsible, can constitute a significant subjective factor relevant to the length of a custodial sentence.
  • Sustained dangerous driving causing death requires a custodial sentence; the Court confirmed that conduct going well beyond momentary inattention will not attract a non-custodial disposition.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)
- Sentencing Act 1989 (NSW), s 24

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Bollen (1998) 99 A Crim R 510
- R v Previtera (1997) 94 A Crim R 76
- R v Henry (1999) NSWCCA 111