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Court of Criminal Appeal 21 March 2001

R v Hemsworth

[2001] NSWCCA 86

Traffic & driving

Citation: R v Hemsworth [2001] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 21 March 2001
Judges: Studdert J; Barr J

Background

The applicant was a young man in his early twenties who drove his V8 Commodore south along Pittwater Road and Condamine Street in Sydney's northern beaches area on 25 August 1996. Witnesses observed him changing lanes aggressively, cutting in front of other vehicles, and travelling at speeds estimated at up to 100 kilometres per hour in a 70 km/h zone. His passenger was his girlfriend, with whom he had been in a relationship for several months.

Near the crest of a hill where he would not have been able to see oncoming hazards, the applicant was travelling at approximately 90 km/h behind a utility vehicle. When the utility braked hard after encountering a parked car just over the crest, the applicant swerved, lost control, mounted the median strip, and crossed into oncoming traffic. The collision killed his passenger instantly and left him with serious and permanent injuries. A blood sample taken at hospital revealed the presence of cannabis metabolites, and expert evidence accepted by the sentencing judge established that cannabis had impaired his reaction time and his perception of time, distance, and speed.

The applicant was acquitted of manslaughter and two counts of dangerous driving occasioning grievous bodily harm, but convicted of dangerous driving occasioning death. District Court Judge Morgan sentenced him to five years imprisonment with a minimum term of three years. He then sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was excessive.

  • Whether the sentencing judge failed to take into account relevant mitigating factors, including the applicant's youth, personal circumstances, and the impact of his own serious injuries.
  • Whether the sentencing judge erred in finding that the applicant had abandoned responsibility for his conduct by his manner of driving.
  • Whether the sentencing judge gave insufficient weight to the rehabilitation the applicant had achieved.
  • Whether the sentence was manifestly excessive, particularly when compared with the range indicated by Judicial Commission statistics and the facts in comparable cases such as R v Jurisic.

Decision

The Court of Criminal Appeal dismissed each of the four grounds advanced on behalf of the applicant. Studdert J (with Barr J agreeing) found that the sentencing judge had conducted a thorough and careful analysis, addressing all relevant sentencing principles and weighing both the objective seriousness of the offence and the applicant's personal circumstances.

On the question of abandoned responsibility, the Court upheld the sentencing judge's characterisation. The applicant's dangerous driving, at approximately 90 km/h approaching a blind crest he knew could conceal hazards such as parked cars, placed him entirely at fault for the position in which he found himself. The fact that he took evasive action in the moments before impact did not reduce his culpability; his predicament was of his own making.

Regarding rehabilitation, the Court was satisfied that the sentencing judge did have regard to the applicant's progress, including favourable reports from a parole officer and a clinical psychologist. This ground was found not to have been made out.

On manifest excess, the Court rejected the comparison with Judicial Commission statistics and the facts in Jurisic. The Court emphasised that each case turns on its own facts and that its role was to identify error in the sentencing process, not to substitute its own view of the appropriate sentence. No error was found. As Studdert J put it plainly: "It was a severe sentence but it was a bad offence."

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's reasoning, notwithstanding that the sentence sat at the top of the range for the offence of dangerous driving occasioning death.
  • A convicted person cannot reduce their culpability by pointing to evasive action taken in the final moments before an accident where their own dangerous driving created the conditions leading to that need to evade.
  • The Court of Criminal Appeal confirmed that its function on a sentence appeal is to identify error in the sentencing process, not to determine what sentence it would itself have imposed.
  • Rehabilitation is a relevant sentencing consideration, but a sentencing judge who expressly refers to it in remarks on sentence will not be taken to have ignored it merely because the sentence remains severe.
  • Aggravating circumstances, including cannabis impairment, a poor traffic record (including a prior offence of exceeding the speed limit by more than 45 km/h), and driving at high speed over a blind crest, can combine to support a sentence at the upper end of the range even for a young offender of otherwise good character.

Legislation and Cases Referenced

Cases:
- R v Musemeci (unreported, NSWCCA, 30 October 1997)
- R v Jurisic (1998) 45 NSWLR 209
- R v Dhanhoa [2000] NSWCCA 257

Legislation: No specific legislation was cited in the text provided, though the offence of dangerous driving occasioning death is found in the Crimes Act 1900 (NSW).