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Court of Criminal Appeal 3 November 2000

R v Do

[2000] NSWCCA 459

Homicide
MANIFESTLY INADEQUATE SENTENCE CHARACTER DOUBLE JEOPARDY MANSLAUGHTER

Citation: R v Do [2000] NSWCCA 459
Court: Court of Criminal Appeal, New South Wales
Date: 3 November 2000
Judge(s): Beazley JA; Wood CJ at CL; O'Keefe J

Background

The respondent was a truck driver who, in June 1998, lost control of a fully laden 21-tonne Volvo tipper truck on a downhill stretch of Mona Vale Road. Witnesses observed the truck accelerating rapidly after the respondent passed a "Trucks must use low gear" sign, reaching terrifyingly high speed. The respondent was seen attempting to regain control, flashing his lights and sounding his horn, but the truck careered through an intersection and into a brick veneer house.

Two people died: the driver of a car struck by the truck at an intersection, and a 13-year-old occupant of the house into which the truck ultimately crashed. The respondent was convicted by a jury on two counts of manslaughter on the basis of gross criminal negligence.

At sentencing, the trial judge found on the balance of probabilities that the respondent had been attempting to control the truck, though he accepted the jury's verdict necessarily implied an initial abandonment of responsibility. The respondent had no prior convictions and was described as a hard-working, community-minded family man. Davidson DCJ sentenced him to concurrent terms of four years' imprisonment (comprising a minimum term of three years and an additional term of one year) on each count, plus a five-year licence disqualification.

  • Whether the sentences of four years' imprisonment on each count of manslaughter, served concurrently, were manifestly inadequate
  • Whether the sentencing judge placed excessive weight on the respondent's good character in determining the sentences
  • What role the principle of double jeopardy plays when a Crown appeal asserts manifest inadequacy

Decision

The Court of Criminal Appeal, in reasons delivered by Beazley JA (with Wood CJ at CL and O'Keefe J agreeing), dismissed the Crown's appeal. The Court acknowledged that the offences were objectively more serious than those considered in the guideline judgment of R v Jurisic, which addressed the lesser offence of dangerous driving. However, greater objective seriousness does not automatically render a sentence manifestly inadequate; it is a significant factor, but not a determinative one.

On the character issue, the Court found the sentencing judge had not given inappropriate weight to the respondent's personal circumstances. The trial judge had expressly identified those matters as ones the respondent was "entitled to have taken into consideration" and had correctly balanced them against the degree of criminality involved, which he characterised as an "initial" abandonment of responsibility. The sentences reflected that calibration, not an error of principle.

The Court accepted that the sentences sat at the very bottom of the appropriate range. Beazley JA was not persuaded they were manifestly inadequate, but went further to note that even if they had fallen outside the appropriate range, the principle of double jeopardy would nonetheless have precluded appellate intervention. That principle requires a court on a Crown appeal to impose the least sentence that could properly have been imposed at first instance, and its application would have prevented the Court from increasing the sentences in any event.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court confirmed that a sentence at the very bottom of the sentencing range is not automatically manifestly inadequate, even where the offence is one of considerable objective seriousness involving two deaths.
  • The guideline principles in R v Jurisic do not displace the sentencing judge's exercise of discretion; they inform it, and a greater degree of objective seriousness than was present in Jurisic does not compel any particular sentencing outcome.
  • Good character remains a legitimate mitigating consideration in serious criminal matters, provided the sentencing court does not give it disproportionate weight relative to the objective circumstances of the offending.
  • Under the principle of double jeopardy, a court hearing a Crown appeal is required to impose the least sentence that could properly have been imposed at first instance; this principle operates as an independent brake on appellate interference even where a sentence may have fallen outside the appropriate range.
  • Where the sole basis for a finding of gross criminal negligence is an "initial abandonment of responsibility" rather than sustained or deliberate dangerous conduct, that characterisation bears on the assessed degree of criminality and thus on the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW)
- Traffic Act 1909 (NSW)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Howland [1999] NSWCCA 10
- R v Musumeci (unreported, NSWCCA, 30 October 1997)
- R v Rose (unreported, NSWCCA, 23 May 1996)