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Court of Criminal Appeal 22 March 2002

R v O'Dea

[2002] NSWCCA 91

HomicideTraffic & driving
CRIMINAL LAW SENTENCING DANGEROUS DRIVING CAUSING DEATH

Citation: R v O'Dea [2002] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 22 March 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant pleaded guilty in the District Court at Parramatta to three counts of driving under the influence of alcohol and drugs causing death, contrary to s 52A(1)(a) of the Crimes Act 1900. The offences arose from a single motor vehicle accident on 1 August 1999 in which three passengers in her car were killed. The applicant had never held a valid driver's licence and had a blood alcohol reading of 0.133, along with cannabis in her system. Evidence also suggested her drink had been spiked with a small amount of methylamphetamine.

On the night in question, the applicant had driven a group of friends and acquaintances from Blacktown after an evening of drinking. Witnesses observed her vehicle travelling at high speed and tailgating another car. She lost control approaching an intersection, skidded into a gutter and then struck a power pole. Two passengers were ejected through the vehicle and a third died inside.

District Court Judge Karpin imposed concurrent sentences of six years' imprisonment with a non-parole period of three years and five months. The applicant sought leave to appeal, raising several grounds relating to the adequacy of weight given to her personal circumstances, including an undisclosed pregnancy and the impact of imprisonment on her young children.

  • Whether the sentencing judge erred by failing to take into account the applicant's pregnancy, which had not been disclosed at the time of sentencing
  • Whether insufficient weight was given to the applicant's subjective circumstances, including her role as the primary carer of two young children
  • Whether insufficient weight was given to the degree to which the applicant was coerced or pressured into driving
  • Whether insufficient weight was given to the applicant's "self-punishment" arising from her remorse and distress following the accident
  • Whether the sentence of six years with a non-parole period of three years and five months was manifestly excessive

Decision

The Court granted leave to appeal out of time but ultimately dismissed the appeal and confirmed the sentence. On the question of pregnancy, the Court noted that the applicant had been pregnant at sentencing but had not disclosed this to the sentencing judge. Because the pregnancy was not before her Honour, it could not have been a factor in the sentencing, and its omission could not constitute an error. The Court indicated the proper vehicle for such a matter, if it caused genuine hardship, would be a petition to the executive rather than an appeal.

On the family impact ground, the Court acknowledged the applicant's young children and the serious disruption that imprisonment causes to families. However, it found that her Honour had already taken these matters into account. The Court reiterated that, while the effect on children is always a matter of concern, it cannot be allowed to reduce sentences for serious offences to a point inconsistent with the objective gravity of the conduct.

The Court rejected the submission that the applicant had been effectively coerced into driving. She owned the car, held the keys, and made no attempt to avoid driving even though she was intoxicated and unlicensed. The sentencing judge had described the conduct as a "gross abandonment of responsibility," and the Court of Criminal Appeal agreed this characterisation was appropriate.

On the question of self-punishment, the Court distinguished the case from precedents involving diagnosed psychiatric conditions. While the applicant demonstrated genuine remorse, there was no evidence of a psychiatric disorder comparable to those found in the cases cited. The Court confirmed that remorse and contrition had already been properly taken into account by the sentencing judge. Given all of these findings, the Court concluded that no identifiable error existed in the sentencing judge's reasoning and that the sentence was not manifestly excessive for offences of this seriousness.

Orders Made

  • Leave to make application for leave to appeal out of time: granted
  • Leave to appeal: granted
  • Appeal: dismissed
  • Sentence: confirmed

Key Takeaways

  • A pregnancy not disclosed to the sentencing judge cannot ground an appeal on the basis that it was overlooked; the appropriate remedy in such circumstances is a petition to the executive.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the effect of imprisonment on an offender's children, while always relevant, cannot reduce a sentence to a level inconsistent with the objective gravity of the offence.
  • Where an offender owns the vehicle, retains the keys, and makes no effort to avoid driving while intoxicated and unlicensed, a characterisation of "gross abandonment of responsibility" is open to a sentencing court even if the offender felt social pressure to drive.
  • Genuine remorse and distress following a fatal accident do not, without supporting psychiatric evidence of a diagnosed disorder, constitute a form of "self-punishment" that independently reduces an otherwise proportionate sentence.
  • Under s 52A(1)(a) of the Crimes Act 1900, where multiple deaths result from a single episode of dangerous driving, the courts treat the taking of human life as the central feature of the offence and apply significant caution before extending leniency on the basis of good character alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(a)

Cases:
- R v Goodwin (1990) 51 A Crim R 328
- R v Fordham (unreported, CCA, 2 December 1997)
- R v Swindale (unreported, CCA, 22 July 1998)
- R v Abbott (1985) 17 A Crim R 355
- R v Ihm (unreported, CCA, 9 January 1993)
- R v Clarke [2000] NSWCCA 150
- R v Edwards (1996) 90 A Crim R 510
- R v White [1999] NSWCCA 60
- R v Day (1998) 100 A Crim R 275
- R v Byrne (1998) 104 A Crim R 456
- R v Tiki (unreported, CCA, 24 August 1994)
- R v Niga (unreported, CCA, April 1994)
- R v Jurisic (1998) 101 A Crim R 259; 45 NSWLR 209
- R v Dhanhoa [2000] NSWCCA 257
- R v Musumeci (unreported, CCA, 30 October 1997)