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Court of Criminal Appeal 5 March 2002

REGINA v COUSINS

[2002] NSWCCA 81

Traffic & driving
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: [2002] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 5 March 2002
Judges: Spigelman CJ, Grove J, Smart AJ

Background

The respondent pleaded guilty in the District Court to aggravated dangerous driving occasioning death and aggravated dangerous driving occasioning grievous bodily harm, contrary to s 52A(2) of the Crimes Act 1900. The aggravated form of each offence arose because the driving occurred during a police pursuit. Two minor matters were taken into account on a Form 1.

The offending occurred on 5 April 2001. The respondent drove a stolen car at speeds exceeding 100 kilometres per hour through moderately to heavily trafficked suburban streets for approximately fourteen minutes, before running a red light at a busy intersection in Hurstville and colliding with a cement truck. The collision caused the death of a 24-year-old passenger and serious injuries to a 21-year-old passenger, who spent three weeks in hospital. The respondent had a criminal history described by the sentencing judge as "appalling," including numerous driving offences, and was a disqualified driver at the time.

The District Court sentenced the respondent to seven years imprisonment with a four-year non-parole period on the death count and a fixed term of four years on the grievous bodily harm count. The Crown appealed, arguing the sentences were manifestly inadequate.

  • Whether the sentence imposed was manifestly inadequate given the objective gravity of the offending and the weakness of the respondent's subjective case.
  • Whether the offence fell within the worst category of offences of its kind, warranting a sentence near the statutory maximum.
  • Whether a discount for the guilty plea was appropriate in circumstances where the plea reflected no genuine contrition, and what approach applied following Cameron v The Queen [2002] HCA 6.
  • Whether a finding of special circumstances (justifying a reduced non-parole period relative to the head sentence) was appropriate given the respondent's persistently defiant attitude towards the law.

Decision

The Court of Criminal Appeal, with reasons delivered by Spigelman CJ and Grove J and Smart AJ agreeing, allowed the Crown appeal and increased the sentence on the death count.

On objective gravity, the Court found the offending was extremely serious. The respondent had driven a stolen vehicle at very high speed through suburban streets during a fourteen-minute police pursuit, in defiance of police, while knowing his passengers were present, before colliding at an estimated 130 to 140 kilometres per hour. The Court considered the offence to be within the worst category of its kind, warranting a head sentence of ten years before any reduction for the guilty plea.

On the guilty plea, the Court acknowledged the longstanding principle that utilitarian value is a legitimate consideration, as affirmed in Siganto v The Queen and the guideline judgment in R v Thomson and Houlton. The Court noted that the recent High Court decision in Cameron v The Queen had apparently disapproved of the purely utilitarian approach, though the Court observed that s 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999 may distinguish New South Wales from that ruling. The Court proceeded on the basis that the respondent's preparedness to assist the administration of justice warranted a reduction, arriving at eight years after a discount from ten.

On special circumstances, the Court declined to depart from the statutory ratio between head sentence and non-parole period. The respondent's history of persistent defiance of the law and the absence of meaningful evidence that additional supervised release time would materially assist rehabilitation meant there was no proper basis for finding special circumstances. A six-year non-parole period was set in accordance with the standard ratio.

Orders Made

  • Appeal allowed.
  • Sentence for aggravated dangerous driving occasioning death quashed.
  • Respondent sentenced to eight years imprisonment commencing 5 April 2001, expiring 4 April 2009.
  • Non-parole period of six years, commencing 5 April 2001 and expiring 4 April 2007.
  • Sentence for aggravated dangerous driving occasioning grievous bodily harm (four-year fixed term) left undisturbed.

Key Takeaways

  • Extremely high objective gravity combined with a weak subjective case can place an offence within the worst category, justifying a sentence approaching the statutory maximum even after a guilty plea discount.
  • A guilty plea reflecting no contrition or remorse may still attract a sentencing reduction on the basis of the offender's preparedness to assist the administration of justice, though the Court of Criminal Appeal flagged uncertainty about how Cameron v The Queen interacts with s 22(1)(b) of the Crimes (Sentencing Procedure) Act 1999 in New South Wales.
  • Special circumstances cannot be established by rehabilitative prospects alone where an offender has demonstrated a persistent and longstanding pattern of defying the law.
  • In dismissing the relevance of the psychologist's report for special circumstances purposes, the Court observed that rehabilitation in such cases ultimately depends on the offender's own willingness to change, and that a marginal difference in supervised release time was unlikely to alter that outcome.
  • The standard statutory ratio between head sentence and non-parole period was applied strictly, reinforcing that departures from that ratio require a genuine and identifiable basis beyond speculative rehabilitative benefit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(2) and s 52A(7)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22(1)(b)

Cases:
- Siganto v The Queen (1998) 194 CLR 656
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Cameron v The Queen [2002] HCA 6