Citation: Regina v Skrill [2002] NSWCCA 484
Court: NSW Court of Criminal Appeal
Date: 20 November 2002
Judge(s): Heydon JA; Hulme J; Carruthers AJ
Background
The respondent, a 22-year-old man with no prior criminal history, pleaded guilty to aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm, following a fatal crash on 11 March 2001. At the time of the crash, his blood alcohol reading was 0.203 grams per 100 millilitres, well above the prescribed concentration, and he was also under the influence of drugs. Two passengers were in the vehicle: one died and one suffered grievous bodily harm.
In the District Court, Judge Shillington QC sentenced the respondent to five years imprisonment (non-parole period of two years) on the first count, with an identical concurrent sentence on the second count. The sentencing judge found special circumstances based on the respondent's youth, absence of prior convictions, anticipated difficulties in custody, and need for psychiatric treatment.
The Crown appealed, contending that the sentences were manifestly inadequate and that the sentencing judge erred in imposing identical concurrent sentences for two distinct offences with different maximum penalties.
Legal Issues
- Whether the sentencing judge erred by imposing concurrent, identical sentences for two offences that differed in seriousness and attracted different maximum penalties
- Whether the head sentence of five years on the first count was manifestly inadequate given the objective gravity of the offending
- Whether the non-parole period of two years was too low
- Whether the Court of Criminal Appeal should exercise its discretion to intervene in a Crown appeal, having regard to double jeopardy considerations
Decision
The majority (Hulme J and Carruthers AJ) upheld the Crown appeal, finding several errors in the original sentencing. The sentencing judge imposed identical sentences for offences that did not merit identical treatment, one carrying a maximum of 14 years and the other 11 years. The failure to accumulate the sentences, or to provide adequate explanation for not doing so, was also identified as an error. The non-parole period was found to be too low given the criminality involved.
Carruthers AJ, with whom Hulme J agreed on outcome, accepted that the subjective circumstances were genuinely strong. The respondent had suffered significant psychological harm as a result of the crash, had no prior convictions, and this was his first custodial sentence. These matters warranted a more generous non-parole period than would otherwise apply, but did not justify the extent of the discount reflected in the original sentences.
Hulme J added that the three-year head sentence proposed for the second count was itself probably too low given the degree of intoxication involved, a combination of high-level alcohol and drugs. His Honour noted this without seeking to alter the outcome, but flagged that the figure should not be treated as a precedent for similarly serious cases.
Heydon JA dissented, concluding the appeal should be dismissed. His Honour considered the subjective circumstances, particularly the lasting psychological damage the respondent had suffered, were powerful enough to justify the original sentences. His Honour also noted that even if the failure to accumulate was an error, it was arguably offset by the second count sentence being set too high, and that double jeopardy considerations militated against intervention.
Orders Made
- Appeal allowed by majority
- Sentences imposed by Shillington DCJ quashed
- Second count: head sentence of three years, commencing 12 July 2002 and expiring 11 July 2005; no separate non-parole period fixed
- First count: head sentence of six years, commencing 12 January 2003 and expiring 11 January 2009; non-parole period of two and a half years, commencing 12 January 2003 and expiring 11 July 2005
- Disqualification from holding a driver's licence for three years from 10 March 2001 confirmed
- Crown requested to ensure the Department of Corrective Services receives a copy of Dr Roberts' psychiatric report to facilitate specialist treatment for the respondent's depression
Key Takeaways
- Imposing identical concurrent sentences for offences with different maximum penalties and different levels of harm will ordinarily constitute a sentencing error, particularly in the absence of a reasoned explanation.
- Under the principle in Pearce v The Queen, courts must approach separately the sentencing for each distinct offence and consider whether at least partial accumulation is required to reflect the full criminality of the conduct.
- Strong subjective circumstances, including genuine psychological harm suffered by the offender as a consequence of the offending, can support a departure from the standard range, but do not justify sentences that fail to reflect the objective seriousness of conduct causing death and serious injury.
- In Crown appeals, the Court of Criminal Appeal retains a discretion not to intervene even where error is established, with double jeopardy considerations remaining a relevant factor.
- The Court of Criminal Appeal noted that the three-year sentence on the second count should not be taken as a precedent for cases where an offender drove with a very high blood alcohol reading combined with drug intoxication, signalling that such compound intoxication warrants closer attention at sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(2) and 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343
- R v AEM; KEM; MM [2002] NSWCCA 58
- R v Hammoud (2000) 118 A Crim R 66
- R v Dunlop [2001] NSWCCA 435
- R v Gleeson [2000] NSWCCA 101
- R v Hanlon [2000] NSWCCA 55
- R v Sen [1999] NSWCCA 199
- R v McKinney (1999) NSWCCA 51
- R v Kalanj (1997) 98 A Crim R 505
- R v Comber (Unreported, CCA, 11 November 1998)
- R v Musumeci (Unreported, CCA, 30 October 1997)