Citation: Regina v Khatter [2000] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 29 February 2000
Judges: Sully J, Simpson J, Carruthers AJ
Background
The respondent was sentenced in the District Court following a conviction for dangerous driving causing death, an offence under s 52A(1) of the Crimes Act 1900. The offence involved the respondent driving while intoxicated after consuming alcohol for approximately two hours. On his own evidence, he acknowledged he knew he was unfit to drive but did so after being pressed by the deceased passenger to take him to Bankstown.
The primary judge imposed a sentence that did not involve full-time custody. The Crown appealed, arguing the sentence was manifestly inadequate in light of the guideline judgment in R v Jurisic, which indicated that sentences of less than three years for dangerous driving causing death should be exceptional.
The respondent's subjective circumstances were significant. He had no prior criminal history and was described as a productive member of the community. His wife was expecting their second child imminently, was experiencing pregnancy complications, and the couple had no family or friends in Australia available to assist.
Legal Issues
- Whether the primary judge erred in failing to give adequate weight to the respondent's moral culpability in knowingly driving while intoxicated
- Whether the sentence imposed was manifestly inadequate given the guideline in R v Jurisic
- Whether the respondent's subjective circumstances, including family hardship, could justify a non-custodial outcome
- Whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal despite identifying errors below
Decision
The Court divided two to one on the outcome. Sully J (with whom Carruthers AJ agreed) allowed the Crown appeal and re-sentenced the respondent. Simpson J would have dismissed the appeal, accepting that the unusual combination of subjective factors placed the case at the most exceptional end of the spectrum.
Sully J acknowledged that moral culpability exists on a spectrum and that the respondent's case did not represent a simple, comprehensive abandonment of personal responsibility. However, his Honour found the primary judge had failed to give sufficient weight to the fact that the respondent had deliberately driven knowing he was unfit to do so. That deliberate choice carried real moral culpability which could not be adequately addressed by a non-custodial sentence.
On the question of an appropriate re-sentence, Sully J departed from an approach involving minimum and additional terms, finding that no genuinely extended rehabilitation period was required in this case. The respondent appeared to be a person who had made a serious but isolated error. The sentencing objective was described as delivering a short, sharp period of full-time custody to deter reoffending and reinforce the public policy reflected in the Jurisic guideline, while allowing for the constraints that attend any Crown appeal.
Simpson J, in dissent, would have dismissed the Crown appeal by exercising the Court's residual discretion. Her Honour accepted that errors had occurred below but considered the respondent's circumstances, particularly the imminent birth of his child and his wife's complications, to be highly exceptional. She emphasised that courts deal with human beings and that a continuum of moral culpability, rather than a binary approach, is the appropriate framework.
Orders Made
- Crown appeal against sentence allowed
- Original sentence quashed
- Respondent re-sentenced to imprisonment for a fixed term of 3 months, commencing on the date of judgment (29 February 2000)
Key Takeaways
- A deliberate decision to drive while knowingly intoxicated carries real moral culpability, even where the offender was subject to social pressure from another person, because the offender retained the ability to refuse.
- Under the guideline in R v Jurisic, custodial sentences of less than three years for dangerous driving causing death should be exceptional; a non-custodial outcome requires compelling and unusual circumstances to avoid being manifestly inadequate.
- Family hardship, including a partner's imminent and complicated childbirth, may be taken into account as a sentencing factor, but only where the circumstances are highly exceptional (R v Edwards).
- Where a sentencing court fails to give sufficient weight to a significant objective feature of the offence, such as knowingly driving while unfit, the Court of Criminal Appeal will identify that as a specific error warranting intervention.
- In imposing a re-sentence, the Court of Criminal Appeal may depart from a minimum/additional term structure and impose a fixed term where extended post-custody rehabilitation is not required and the sentencing objective is a short, deterrent period of full-time custody.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(1)
- Sentencing Act 1989 (NSW), s 5 and s 5(2)
Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment on dangerous driving causing death)
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Howland [1999] NSWCCA 10; 104 A Crim R 273
- R v Edwards (1996) 90 A Crim R 510 (family hardship as a sentencing factor)