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Court of Criminal Appeal 16 April 2004

R v Dandachli

[2004] NSWCCA 100

HomicideTraffic & driving
CRIMINAL LAW DANGEROUS DRIVING CAUSING DEATH APPEAL AGAINST SEVERITY OF SENTENCE WHERE PLEA OF GUILTY MANNER OF DETERMINING NON PAROLE PERIOD

Citation: Dandachli v R [2004] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 16 April 2004
Judge(s): Sperling J, Hidden J, Howie J

Background

The applicant, a 20-year-old university student, pleaded guilty in the District Court to two offences arising from a serious motor vehicle collision on the M4 motorway on 6 May 2002. He had been driving at speeds up to 160 km/h, changing lanes erratically, and ignoring repeated requests from passengers to slow down. When he moved into the breakdown lane to overtake a truck, he collided with a stationary council vehicle and a tyre fitter's truck. A female rear-seat passenger was killed, and the front-seat passenger suffered serious injuries.

The applicant himself sustained neck and back injuries and faced a poor long-term prognosis for those injuries. His subjective circumstances were otherwise favourable: no prior criminal history, good academic record, strong family support, genuine remorse, and a 20 per cent discount on sentence for his guilty plea. The first count had been reduced from manslaughter to dangerous driving causing death following negotiations with the prosecution.

In the District Court, Dodd DCJ sentenced the applicant to four years imprisonment with a three-year non-parole period on the first count, and a concurrent fixed term of three years on the second count. The applicant sought leave to appeal, arguing that the non-parole period was excessive because the sentencing judge had erred in declining to find special circumstances.

  • Whether the sentencing judge erred by declining to find "special circumstances" that would justify reducing the non-parole period below the statutory default under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether, even if error in the sentencing approach were established, a lesser sentence was in fact "warranted in law" under s 6(3) of the Criminal Appeal Act 1912

Decision

Sperling J (with whom Hidden J and Howie J agreed) applied the reformulated Jurisic guideline from Regina v Whyte (2002) 55 NSWLR 252. That guideline treats a custodial sentence as normally appropriate for dangerous driving offences unless the offender's moral culpability is low, as in cases involving only momentary inattention or misjudgement.

The Court found this case was far from one of low moral culpability. Eight of the eleven aggravating categories identified in Whyte were present, including fatal and serious injuries to multiple victims, exposure of a large number of road users to risk, significantly excessive speed, erratic driving over a sustained period, competitive driving or showing off, and the deliberate ignoring of passenger warnings. The only absent aggravating factors related to intoxication, police pursuit, sleep deprivation, and failing to stop.

Even accepting that the sentencing judge may have approached the non-parole period question with some error, Sperling J considered it unnecessary to resolve that question definitively. The critical inquiry under s 6(3) of the Criminal Appeal Act 1912 is not whether error occurred, but whether a lesser sentence is "warranted in law and should have been passed." The Court of Criminal Appeal held that a non-parole period of less than three years would be inadequate to reflect the seriousness of the offending in all the circumstances.

The subjective mitigating factors, including the applicant's age, remorse, good character, personal injuries, and any matters potentially constituting special circumstances, did not bring the case below the threshold where a lesser non-parole period was warranted. The appeal was dismissed without the Court needing to decide the special circumstances ground on its merits.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form a positive opinion that a lesser sentence is "warranted in law and should have been passed" before it can intervene. A finding of error in the sentencing process alone is not sufficient to require resentencing if no lesser sentence would result.
  • In dismissing the appeal, the Court confirmed that where a lesser sentence is clearly not warranted on the objective facts, the Court may decline to resolve a specific error ground, as doing so would serve no practical purpose.
  • A high degree of moral culpability in dangerous driving cases is established where multiple Whyte aggravating factors are present, including sustained dangerous conduct, excessive speed, multiple persons put at risk, and ignored passenger warnings.
  • Favourable subjective circumstances, including genuine remorse, youth, good character, personal injuries suffered by the offender, and a guilty plea discount, do not automatically generate a finding of special circumstances or otherwise mandate a reduced non-parole period where the objective gravity of the offending is high.
  • The Whyte guideline operates as a check, sounding board, or guide for sentencing in dangerous driving cases under s 52A of the Crimes Act 1900, not as a binding rule or presumption.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Regina v Jurisic (1998) 45 NSWLR 209
- Regina v Whyte (2002) 55 NSWLR 252
- Simpson v R (2001) 53 NSWLR 704
- Power v The Queen (1974) 131 CLR 623