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Court of Criminal Appeal 10 March 1999

Regina v McKINNEY

[1999] NSWCCA 51

HomicideTraffic & driving
CRIMINAL LAW SENTENCING APPEAL BY CROWN PRINCIPLES OF GENERAL DETERRENCE PRINCIPLE OF DOUBLE JEOPARDY CRIMINAL LAW

Citation: Regina v McKINNEY [1999] NSWCCA 51
Court: Court of Criminal Appeal, New South Wales
Date: 10 March 1999
Judge(s): Spigelman CJ, Abadee J, Adams J

Background

The respondent pleaded guilty to aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was a blood alcohol concentration of 0.243 grams per 100 millilitres of blood at the time of testing, well above the 0.15 gram threshold that triggers the aggravated offence. The maximum penalty for that offence is fourteen years' imprisonment.

The accident occurred on 10 December 1997 on Henry Lawson Drive, Lansvale. Multiple eyewitnesses described the respondent's truck swerving uncontrollably between lanes, veering onto gravel, almost striking oncoming vehicles, and ultimately leaving the road at speed before colliding with trees. The respondent's wife, who was a passenger, died as a result. The couple had that morning visited an alcohol rehabilitation centre in Redfern, which the deceased had attended to seek treatment for her own alcohol dependency.

At first instance, Acting Judge Cantrill sentenced the respondent to three years' imprisonment to be served by way of periodic detention. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in principle by failing to give appropriate weight to general deterrence for the offence of aggravated dangerous driving causing death.
  • Whether the sentence of three years' periodic detention was manifestly inadequate for an offence of this gravity.
  • What sentence was appropriate once the principle of double jeopardy (which operates to moderate the sentence imposed on a Crown appeal) was taken into account.

Decision

The Court of Criminal Appeal upheld the Crown appeal. Spigelman CJ, with whom Abadee J and Adams J agreed, found that the sentencing judge had not given appropriate weight to general deterrence, which is a significant sentencing consideration for this category of offence. The sentence of periodic detention was held to be manifestly inadequate, effectively disclosing an error of principle.

The Court acknowledged the respondent's genuine rehabilitation efforts since the accident, including addressing his alcohol dependency and working to re-establish a relationship with a child he had treated as his own. These matters were accepted as relevant to the form and structure of the new sentence, but the Court held they did not displace the need for a period of full-time custody.

Adams J added a short observation clarifying the Court's position: tempering justice with mercy is not inappropriate, but the sentencing judge had gone too far toward leniency in a way that overlooked both the seriousness of the offence and the requirements of general deterrence.

Applying the principle of double jeopardy, which constrains a court on a Crown appeal to impose a sentence somewhat below what it would otherwise consider appropriate, the Court fixed the sentence at three years' imprisonment with a minimum term of eighteen months and an additional term of eighteen months.

Orders Made

  • The Crown appeal against sentence is upheld.
  • The sentence imposed by Acting Judge Cantrill is quashed.
  • The respondent is sentenced to imprisonment for three years, comprising a minimum term of one year and six months commencing 30 September 1998 and expiring 30 March 2000, on which date the respondent is to be released on parole, and an additional term of one year and six months commencing 31 March 2000.
  • The respondent is disqualified from holding a driver's licence for three years from 30 September 1998.

Key Takeaways

  • General deterrence carries significant weight in sentencing for aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900, and a sentencing court that fails to give it adequate consideration commits an error of principle sufficient to ground a Crown appeal.
  • A sentence that is manifestly inadequate can itself disclose the error of principle required for appellate intervention on a Crown appeal, without the need to identify a separate discrete error.
  • Where a respondent has made genuine rehabilitation efforts between the original sentence and the Crown appeal, those efforts are relevant to the structure of any new sentence but do not necessarily preclude full-time custody.
  • The double jeopardy principle applies on Crown appeals to moderate the sentence the appellate court would otherwise impose, producing a sentence below what the court might independently regard as optimal.
  • Periodic detention was found to be an inappropriate vehicle for a sentence of this nature, given the gravity of the offending and the demands of general deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(2), s 52A(7), s 52A(9)

Cases
- R v Jurisic (NSWCCA, 12 October 1998)
- R v Kalanj (1997) 98 A Crim R 505