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Court of Criminal Appeal 23 September 2002

Michael FORSYTH v Regina

[2002] NSWCCA 393

Traffic & driving
SENTENCING NON

Citation: Michael Forsyth v Regina [2002] NSWCCA 393
Court: New South Wales Court of Criminal Appeal
Date: 23 September 2002
Judge(s): Smart AJ; Buddin J

Background

The appellant was sentenced in the District Court for driving in a manner dangerous occasioning death. The offence arose from a late-night incident in which the appellant drove his Ford XR8 at excessive speed along Fishery Point Road, lost control on a bend, and left the road. His passenger, the deceased, sustained injuries in the crash and later died.

The sentencing judge found that the cause of the accident was not a momentary lapse but an abandonment of responsibility: the appellant had been showing off, ignored repeated warnings from an earlier passenger to slow down, and performed wheel-spins in a car park immediately before the fatal drive. The judge also found that the appellant had consumed alcohol before the accident, though could not be satisfied beyond reasonable doubt that his blood alcohol exceeded the prescribed limit.

Cooper DCJ sentenced the appellant to three years and six months imprisonment with a non-parole period of two years and six months. The appellant sought leave to appeal, not against the head sentence, but on the basis that the non-parole period failed to give adequate weight to the special circumstances the judge had himself identified.

  • Whether the sentencing judge gave sufficient weight to his own finding of special circumstances when fixing the non-parole period.
  • Whether the non-parole period should be reduced to reflect those special circumstances more meaningfully.

Decision

The sentencing judge found special circumstances based on the appellant's age, the absence of any prior criminal convictions, the fact that this was his first time in custody, and the significant and ongoing remorse he exhibited. Those findings were not challenged on appeal, and the Court of Criminal Appeal agreed they were warranted.

The difficulty lay in how the judge had translated that finding into the sentence structure. The ordinary statutory ratio between a non-parole period and the total sentence is 75 per cent. Despite finding special circumstances, the judge set the non-parole period at approximately 71 per cent of the head sentence, representing an extra six weeks over the standard ratio. The Court found this amounted to no more than a nominal allowance, and that a genuine finding of significant special circumstances required a more substantial reduction.

The Crown argued that the seriousness of the offence made a lesser non-parole period unavailable. The Court acknowledged this submission had real force, but concluded that the strength of the special circumstances nonetheless required a more meaningful departure from the standard ratio. The head sentence was not disturbed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against the head sentence of three years and six months dismissed.
  • Non-parole period reduced from two years and six months to two years and three months, commencing 3 August 2001 and expiring 2 November 2003.

Key Takeaways

  • A finding of special circumstances carries an obligation to give it genuine effect in the sentence structure; a purely nominal reduction in the non-parole period is inconsistent with a finding that circumstances are substantial.
  • The standard ratio between a non-parole period and the total sentence in NSW is 75 per cent; a finding of special circumstances justifies departure below that ratio, but the degree of departure must be proportionate to the strength of those circumstances.
  • Relevant special circumstances in this case included the offender's youth, absence of prior criminal convictions, first-time custody, and demonstrated remorse of a kind that had materially affected his mental health and employment.
  • The seriousness of an offence does not automatically foreclose a meaningful reduction in the non-parole period where special circumstances have properly been identified; the two considerations must be weighed together.
  • In dismissing the challenge to the head sentence while reducing the non-parole period, the Court of Criminal Appeal confirmed that appeals of this kind can succeed in part, adjusting only the non-parole period without interfering with the overall term.

Legislation and Cases Referenced

Cases:
- R v Jurisic (1998) 45 NSWLR 209