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Court of Criminal Appeal 29 May 2001

REGINA v TADMAN

[2001] NSWCCA 225

HomicideDrugsTraffic & driving
CRIMINAL LAW DANGEROUS DRIVING OCCASIONING DEATH WHETHER SENTENCE MANIFESTLY EXCESSIVE R V JURISIC (1998) 45 NSWLR 209

Citation: Regina v Tadman [2001] NSWCCA 225
Court: Court of Criminal Appeal, New South Wales
Date: 29 May 2001
Judge(s): Spigelman CJ; Hulme J; Howie J

Background

The appellant pleaded guilty in the Local Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900. The offence arose from an evening in September 1998 when the appellant drove from Cabramatta back to Baulkham Hills after injecting heroin. Witnesses observed erratic, unsteady driving along the Cumberland Highway at Wentworthville, including repeated contact with the median strip.

The appellant's vehicle veered into an adjacent lane and struck a Mazda sedan on the driver's side. The Mazda spun into oncoming traffic and collided with a taxi. The driver of the Mazda died, and the taxi driver suffered head injuries. Two further offences were taken into account on a Form 1 schedule: self-administration of heroin and failing to stop after the accident. After the collision, the appellant fled and actively evaded a pursuing motorist by turning off his headlights and manoeuvring around the pursuer's vehicle.

The matter was referred to the District Court for sentencing. Mahoney DCJ imposed a total of seven years imprisonment, comprising a minimum term of four years and an additional term of three years. The appellant sought leave to appeal, contending that the sentence was manifestly excessive and that the sentencing judge had misapplied the guideline established in R v Jurisic.

  • Whether the sentence of seven years imprisonment was manifestly excessive in light of the appellant's strong subjective circumstances.
  • Whether the sentencing judge incorrectly applied the guideline judgment in R v Jurisic (1998) 45 NSWLR 209 by treating three years as a minimum starting point to which aggravating factors were then added, rather than as a threshold figure already incorporating those factors.
  • Whether the procedural approach of incorporating pre-prepared draft documents into the reasons for sentence was permissible.

Decision

Application of the Jurisic guideline: Spigelman CJ found that the sentencing judge had misapplied the guideline in R v Jurisic. The three-year figure in that guideline was not a bare minimum to which aggravating factors were then mechanically added. Rather, the guideline already contemplated the presence of aggravating factors that demonstrated an abandonment of responsibility. Once that threshold was reached, three years was a starting point, with the actual sentence determined by the number and intensity of aggravating features. The sentencing judge erred by treating three years as a floor and then layering additional increments on top of it.

Procedural approach: Spigelman CJ accepted that incorporating pre-prepared draft documents by reference was an unusual course but found no fundamental error in it. The documents were treated as incorporated into the reasons, and the judge had, on at least one issue, departed from a preliminary view expressed in the draft after hearing the evidence and submissions.

Subjective features and the reduced sentence: The majority (Spigelman CJ and Howie J) allowed the appeal and reduced the sentence to five years and three months, with a non-parole period of two years and eight months. This reduction was grounded in the appellant's lack of any significant prior traffic record, his early plea of guilty, strong evidence of genuine remorse, and compelling evidence of rehabilitation prospects placed before the Court on appeal. Howie J emphasised that this sentence was at the very bottom of what the objective facts could justify, and that it was driven entirely by the exceptional subjective circumstances.

Dissent on outcome: Hulme J dissented from the reduction in sentence. His Honour considered that the objective seriousness of the offence, combined with the need for general deterrence and the maximum penalty of fourteen years set by Parliament, required a minimum term of four years and a total sentence of or close to seven years. The majority's approach did not find favour with Hulme J, who would have dismissed the appeal.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence of the District Court of 21 April 1999 quashed.
  • Appellant sentenced to five years and three months imprisonment commencing 12 April 1999, expiring 11 July 2004, with a non-parole period of two years and eight months commencing 12 April 1999 and expiring 11 December 2001.

Key Takeaways

  • The Jurisic guideline does not establish three years as a bare minimum to which aggravating factors are then added incrementally. The three-year starting point already reflects the presence of aggravating factors sufficient to demonstrate an abandonment of responsibility; further factors or their heightened intensity then determine the actual sentence.
  • A sentencing judge may incorporate pre-prepared draft documents into reasons for sentence by reference, provided those documents are clearly identified as forming part of the reasons and the judge remains open to departing from preliminary views expressed in them.
  • Exceptional subjective features, including an absence of prior traffic offending, an early guilty plea, genuine remorse, and strong rehabilitation prospects, can justify a sentence at the lower end of the available range even where the objective circumstances of an offence are serious.
  • Howie J explicitly cautioned that the sentence imposed was not to be taken as a general guide for offences of comparable objective seriousness. It reflected the minimum justified by the particular combination of subjective factors in this case.
  • Where a dissent exists on the ultimate sentencing outcome, as here with Hulme J, the majority's reduced sentence carries force only within its own factual context. Hulme J's concern about the need for general deterrence and Parliament's prescription of a fourteen-year maximum remained on the record.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(2), 52A(4), 52A(7)
- Justices Act 1902 (NSW), s 51A

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Thomson (2000) 49 NSWLR 383
- R v Comber (NSWCCA, 11 November 1998, unreported)
- Ibbs v The Queen (1987) 163 CLR 447