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7
Court of Criminal Appeal 21 June 2004

R v HOWCHER

[2004] NSWCCA 179

Also reported as (2004) 146 A Crim R 371
Traffic & driving

Citation: R v Howcher [2004] NSWCCA 179
Court: New South Wales Court of Criminal Appeal
Date: 21 June 2004
Judges: Grove J, Hulme J, Smart AJ

Background

The appellant pleaded guilty in the District Court to dangerous driving occasioning death in circumstances of aggravation. In May 1996, when he was 20 years old, he was demonstrating the performance of a modified Mazda Rotary Sedan to friends on a 60 km/h residential street near a children's playground. With a passenger in the vehicle, he deliberately accelerated rapidly to between 115 and 126 km/h. The car began to yaw, crossed onto the wrong side of the road, mounted a kerb, struck a gum tree, and split in two. The passenger was killed. At the time, the appellant was driving under the influence of cannabis, was unlicensed, had never held a licence, and was subject to an existing bond.

The appellant fled Australia in breach of bail in mid-1996, travelling to Lebanon. He entered a detoxification program in January 1997, completed an eight-month residential rehabilitation program, married, gained employment, and engaged in charity work. He returned voluntarily to Australia in May 2002 and was arrested on that day.

Judge Sides of the District Court sentenced the appellant to three and a half years' imprisonment, with a non-parole period of two years, commencing November 2002, along with a four-year driving disqualification. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, among other grounds.

  • Whether the sentence of three and a half years was manifestly excessive given all relevant circumstances
  • Whether the sentencing judge misapplied the principles established in MJR (2002) 54 NSWLR 368 regarding sentencing for dangerous driving offences
  • Whether the sentencing judge gave insufficient weight to the appellant's extensive rehabilitation since the offence
  • Whether the appellant's voluntary return to Australia (without the need for extradition) was inadequately recognised in the sentence
  • Whether the fact that the deceased was known to the appellant, rather than a stranger, warranted greater leniency

Decision

The Court of Criminal Appeal addressed each ground in turn and rejected all five, ultimately dismissing the appeal. On the question of the victim's relationship to the appellant, the Court held that the reference in R v Whyte to victims being strangers did not automatically mean leniency was warranted where the victim was known to the offender. Whether any leniency was appropriate depended on the actual circumstances, and on the facts here, no reduction was justified.

Regarding voluntary surrender, the Court acknowledged this was a relevant factor. However, it had already been taken into account by the sentencing judge alongside the guilty plea and other subjective matters. It did not warrant a greater reduction than was already reflected in the sentence imposed.

On rehabilitation, the Court accepted that the appellant's transformation since 1996 was genuine and praiseworthy. However, rehabilitation operates as a mitigating factor that can reduce a sentence from what it would otherwise be, not as a consideration capable of pushing a sentence below the minimum that the objective gravity of the offence demands.

The Court found no error in the application of MJR. The sentencing judge had correctly assessed the offence as falling towards the upper end of the range for this type of offending. Three significant aggravating features were present: the appellant was on a bond at the time, had never held a licence, and had a pattern of traffic and other offending that was far from isolated. The Court concluded that the sentence was not merely within the permissible range but was, in fact, the correct sentence. Smart AJ stated that a lesser sentence could not have been justified given the objective criminality of the offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Rehabilitation, even where genuine and extensive, cannot reduce a sentence below the floor set by the objective seriousness of the offence. It operates to lower a sentence from what it otherwise would be, not to override the minimum appropriate penalty.
  • In dismissing the ground based on the victim being known to the appellant, the Court of Criminal Appeal confirmed that the reference in R v Whyte to victims being strangers does not create a general rule that leniency flows automatically when the victim is a non-stranger. Context governs.
  • Voluntary surrender to authorities is a relevant mitigating factor, but it does not operate independently of other matters already considered by a sentencing court, and does not necessarily produce an additional reduction where it has already been weighed alongside other subjective features.
  • A pattern of prior offending, particularly traffic-related, is a proper consideration when assessing moral culpability for a dangerous driving offence. The absence of an isolated, uncharacteristic act is relevant under Veen (No 2) v R.
  • Where a sentencing judge has carefully and correctly weighed all aggravating and mitigating matters, an appellate court will not intervene merely because a different balancing was possible.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death or grievous bodily harm, including in circumstances of aggravation)

Cases:
- R v MJR (2002) 54 NSWLR 368
- R v Whyte (2002) 55 NSWLR 252
- Veen (No 2) v R (1987-88) 164 CLR 465
- AB v The Queen (1999) 198 CLR 111
- R v Eastway (unreported, CCA NSW, 19 April 1992)
- R v Shore (1992) 66 A Crim R 37