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15
Court of Criminal Appeal 23 July 2003

Regina v Ryan

[2003] NSWCCA 202

Also reported as 141 A Crim R 403
Traffic & driving
CRIMINAL LAW AND PROCEDURE SENTENCE LEAVING SCENE OF COLLISION FURTHER OFFENCE ON FORM 1 AVOIDANCE OF DOUBLE PUNISHMENT NOTICE IF SOUGHT TO BE CONTROVERTED

Citation: Regina v Ryan [2003] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 23 July 2003
Judges: Ipp JA, Grove J, Shaw J

Background

The appellant had pleaded guilty in the District Court to aggravated dangerous driving causing death under s 52A(2) of the Crimes Act. The aggravating circumstance was driving at more than 45 kilometres per hour over the speed limit. Witnesses estimated his speed at between 90 and 160 kilometres per hour along a suburban road in Miranda before his vehicle struck a stationary car at a red light, killing the driver.

A second offence, knowingly failing to stop and give assistance after a collision involving death or injury under s 70 of the Road Transport (Safety and Traffic Management) Act 1999, was taken into account on a Form 1. After the collision, the appellant left the scene, went to a friend's house, and telephoned his mother. He was spoken to by police at home approximately five hours later.

At first instance, Blackmore DCJ sentenced the appellant to seven years and six months imprisonment with a non-parole period of five years, and imposed a 15-year driving disqualification. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the Form 1 offence of failing to stop and assist was properly treated as separate conduct warranting an increase in penalty, rather than as part and parcel of the principal offence.
  • Whether the sentencing judge erred by imposing punishment for what amounted to double-counting of the Form 1 conduct.
  • Whether the sentencing judge had breached the principle that an offender must be given notice before a potentially mitigating assertion is controverted.
  • Whether the sentencing judge properly took into account the appellant's prior otherwise good character.
  • Whether the overall sentence was consistent with established sentencing patterns for this category of offence.
  • Whether the 15-year driving disqualification reflected a proper exercise of discretion.

Decision

The Court rejected the argument that the failure to stop and assist was "part and parcel" of the principal offence. The departure from the scene was a distinct, independent act that occurred after the collision was complete. It was therefore appropriate to treat the Form 1 offence as genuinely aggravating the principal sentence.

On double punishment, the Court examined the approach required where a Form 1 offence is taken into account. No separate conviction arises and no standalone penalty is imposed, but the facts of the Form 1 conduct may increase the penalty for the principal offence. The Court confirmed that care must be taken to avoid punishing conduct twice when that conduct is already embedded in the facts of the principal charge.

The Court found that the sentencing judge had not adequately observed established sentencing patterns for this class of offence and had failed to properly account for the appellant's otherwise good character. A further concern arose regarding the principle that, where an offender asserts a potentially mitigating circumstance, the Crown must give notice if it intends to controvert that assertion rather than simply ignoring it. These errors together warranted resentencing.

The Court declined to interfere with the 15-year driving disqualification. Although a significant portion of it would run during the appellant's period of custody, the appellant's traffic record and the severity of his driving behaviour on the occasion justified the order.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed and replaced with six years imprisonment, commencing 13 September 2002 and expiring 12 September 2008.
  • Non-parole period of four years, commencing 13 September 2002 and expiring 12 September 2006.
  • First date of eligibility for parole specified as 12 September 2006.
  • Fifteen-year disqualification from holding a driver's licence from 13 September 2002 confirmed.

Key Takeaways

  • A Form 1 offence is properly treated as separate aggravating conduct where it arises from an independent act that occurs after the principal offence is complete, rather than forming an integral part of it.
  • Under the Form 1 procedure, no standalone conviction or penalty is recorded for the secondary offence, but its facts may legitimately increase the sentence for the principal offence, provided the sentencing court avoids double punishment for conduct already captured by the principal charge.
  • Where an offender asserts a potentially mitigating circumstance, the Crown must give adequate notice if it intends to contest that assertion. Silently disregarding the assertion without challenge is procedurally insufficient.
  • Prior otherwise good character must be properly weighed in sentencing, and failure to do so may constitute an error warranting appellate intervention.
  • Consistency with established sentencing patterns for a particular class of offence is a material consideration, and a departure from those patterns without cogent reason may support a finding of manifest excess on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(2)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 70
- Road Transport (General) Act 1999 (NSW), s 25(3)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- In Re The Attorney General's Application No 1 of 2002 [2002] NSWCCA 518
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Ryan v The Queen (2001) 206 CLR 267
- The Queen v Olbrich (1999) 199 CLR 270
- R v Bloomfield (1998) 44 NSWLR 734
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- R v Cousins [2002] NSWCCA 81
- R v Rayne [2002] NSWCCA 309
- R v Vukic [2003] NSWCCA 12
- R v Reeves [1999] NSWCCA 269
- R v Sen [1999] NSWCCA 199
- R v Tadman [2001] NSWCCA 225
- R v Woodward [2001] NSWCCA 90
- R v Black, unreported, CCA, 23 July 1998
- R v Kalanj, unreported, CCA, 18 December 1997
- R v McKinney, unreported, CCA, 10 March 1999