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Court of Criminal Appeal 16 May 2002

R v Y

[2002] NSWCCA 191

HomicideTraffic & driving
CRIMINAL LAW DANGEROUS DRIVING OCCASIONING DEATH APPEAL AGAINST INADEQUACY OF SENTENCE JUVENILE ABANDONMENT OF RESPONSIBILITY DISCRETION

Citation: R v Y [2002] NSWCCA 191
Court: New South Wales Court of Criminal Appeal
Date: 16 May 2002
Judge(s): Stein JA; Bergin J; Carruthers AJ

Background

A 17-year-old provisional driver was travelling home alone late at night along the Golden Highway near Dubbo when he attempted to overtake a loaded semi-trailer on an uphill section of road near the crest of a hill. In doing so, he crossed double unbroken centre lines. A vehicle travelling in the opposite direction crested the hill simultaneously, resulting in a head-on collision. The passenger in the oncoming vehicle died from her injuries, and the driver suffered multiple serious fractures and other significant injuries.

The respondent pleaded guilty in the Dubbo District Court to dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, offences under s 52A(1)(c) and s 52A(3)(c) of the Crimes Act 1900. The sentencing judge imposed terms of two years and 18 months imprisonment respectively, running concurrently, but suspended both sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate.

  • Whether the sentencing judge made an error in assessing the objective seriousness of the offences
  • Whether the sentencing judge incorrectly applied the two-step process required before imposing a suspended sentence
  • Whether the sentencing judge gave too much weight to the respondent's subjective circumstances
  • Whether, even if sentencing error was established, the Court of Criminal Appeal should exercise its residual discretion to refuse to intervene, given delay in prosecuting the appeal and the principle of double jeopardy

Decision

Stein JA considered the objective circumstances of the driving: a provisional licence held for only six weeks, travelling above 80 km/h (the limit for provisional drivers), attempting to overtake a large truck near the crest of a hill across double centre lines late at night. His Honour acknowledged the conduct was serious and represented an abandonment of responsibility to other road users. However, after analysing the sentencing judge's reasons at length, Stein JA was not persuaded that the sentencing judge's approach was so erroneous as to require intervention on the grounds of manifest inadequacy.

On the question of suspended sentences, the Court examined whether the sentencing judge had properly worked through the required two steps: first, determining that imprisonment was the appropriate penalty, and second, considering whether that sentence should be suspended. The majority did not find this process to be fatally flawed in the circumstances.

A critical issue was the delay between sentencing and the service of the Notice of Appeal. The respondent was not served with the Notice of Appeal until approximately seven months after sentence was imposed. Stein JA described this delay as significant and noted the explanation offered for it was unsatisfactory. Combined with the double jeopardy principle, which weighs particularly heavily where a non-custodial sentence was originally imposed, the delay was treated as a powerful discretionary factor against intervention.

Carruthers AJ took a different view on the merits, expressing the opinion that the manner of driving was so dangerous that a full custodial sentence ought to have been imposed at first instance. However, his Honour nonetheless joined in dismissing the appeal in the exercise of residual discretion, noting that the respondent had been at liberty for almost two years since the offence and that nearly nine months had passed since sentencing. Bergin J agreed with Stein JA. The appeal was dismissed unanimously.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal affirmed that delay in serving a Crown appeal notice is a powerful discretionary factor that can justify refusing to intervene even where a majority of the bench identifies sentencing error.
  • The double jeopardy principle carries particular weight in Crown sentence appeals where the original sentence was non-custodial, since the respondent faces the genuine prospect of imprisonment for the first time on appeal.
  • A provisional licence holder who drives at speeds exceeding the conditions of that licence and attempts to overtake in dangerous circumstances may be found to have committed offences of significant objective seriousness, even where speed does not technically exceed the general road limit.
  • Carruthers AJ's reasons illustrate that residual discretion to dismiss a Crown appeal can be exercised even where a judge concludes there was actual sentencing error, provided the circumstances, including delay and time at liberty, justify that course.
  • Where a juvenile offender is sentenced in the District Court after committal from the Children's Court, the considerable subjective circumstances available to young offenders remain relevant to the sentencing exercise, though they must be weighed carefully against objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Astill (Unreported, NSWCCA, 29 January 1990)
- R v Hallacoglu (1992) 29 NSWLR 67
- R v Jurisic (1998) 45 NSWLR 209
- R v Musumeci (Unreported, NSWCCA, 30 October 1997)
- R v Myers (Unreported, NSWCCA, 13 February 1990)
- R v Pham and Ly (1991) 55 A Crim R 128
- R v Zamagias [2002] NSWCCA 17