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Court of Criminal Appeal 3 September 2004

R v Price

[2004] NSWCCA 186

Traffic & driving
CRIMINAL PRACTICE AND PROCEDURE SENTENCING APPLICATION OF R WHYTE RELEVANCE OF THE NUMBER OF DEATHS SENTENCED.

Citation: R v Price [2004] NSWCCA 186
Court: New South Wales Court of Criminal Appeal
Date: 3 September 2004
Judge(s): Hulme J; Simpson J; Howie J

Background

The respondent was convicted by jury of two counts of dangerous driving causing death, contrary to s 52A of the Crimes Act 1900, each carrying a maximum penalty of 10 years imprisonment. The deaths resulted from the respondent's vehicle leaving the road and striking a tree, killing two passengers. The jury rejected the respondent's claim that he had swerved to avoid another vehicle, and the sentencing judge found beyond reasonable doubt that no other vehicle was involved.

The Crown case established that the respondent had a blood-alcohol reading of approximately 0.1 (twice the legal limit of 0.05) and was driving at excessive speed. Despite adequate lighting and a good road surface, he failed to negotiate a relatively gentle curve after only five minutes of driving, skidding approximately 38 metres before the fatal impact.

Acting Judge Ducker sentenced the respondent to two years imprisonment with a non-parole period of 12 months on each count, to be served concurrently from 27 November 2003. The Crown appealed, contending those sentences were manifestly inadequate.

  • Whether the sentences imposed by Acting Judge Ducker were manifestly inadequate having regard to the guideline judgment in R v Whyte
  • Whether the sentencing judge gave sufficient weight to the respondent's moral culpability, including his blood-alcohol level and the nature of his driving
  • Whether the existence of two deaths required some upward adjustment to the sentence beyond what would be appropriate for a single victim
  • What sentence the Court of Criminal Appeal should now impose, having regard to the respondent's progress in custody and the double jeopardy principle applicable on a Crown appeal

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentences manifestly inadequate. The guideline in R v Whyte established that, for a typical case of dangerous driving causing death where the offender's moral culpability is high, a full-time custodial head sentence of less than three years would not generally be appropriate. Hulme J noted that the guideline itself assumed an offender entitled to a guilty plea discount; because the respondent had not pleaded guilty, this pointed toward a sentence at or above the three-year benchmark.

All three judges agreed the respondent's moral culpability was high. His blood-alcohol concentration was approximately double the legal limit, and the manner of his driving, losing control on a gently curving, well-lit road after a short journey, demonstrated grave inadequacy regardless of whether speed or inattention was the primary cause.

Simpson J and Howie J acknowledged a separate but important point about multiple victims. The sentencing judge's imposition of wholly concurrent sentences was not inherently erroneous under the principles in Pearce v The Queen, but his Honour had given the wrong reason for doing so and had failed adequately to reflect the increased criminality arising from there being two deaths. Some increment in the overall sentence was required to account for that fact.

In determining the resentence, Simpson J and Howie J declined to increase the non-parole period beyond the original 12 months. By the time of the appeal hearing, the respondent was approaching the expiry of that period. The Court accepted evidence of genuine rehabilitation and considered it would now be unduly harsh to extend his time in custody. The judges explicitly noted, however, that the sentence they imposed was not what they regarded as appropriate punishment for these offences, but was the product of the particular circumstances of the Crown appeal and the double jeopardy considerations it attracts.

Orders Made

  • The appeal is allowed and the sentences imposed by Acting Judge Ducker are quashed.
  • In respect of each count, the respondent is sentenced to 3 years imprisonment with a non-parole period of 12 months, commencing 27 November 2003.
  • The non-parole period expires on 26 November 2004, the date on which the respondent is to be released to parole.
  • It is a condition of parole that the respondent place himself under the supervision of the Probation and Parole Service.

Key Takeaways

  • The guideline in R v Whyte establishes that a head sentence of less than three years for dangerous driving causing death, where moral culpability is high, will not generally be appropriate. The Court of Criminal Appeal confirmed this benchmark applied on the facts here.
  • An offender who proceeds to trial rather than pleading guilty receives no plea discount. Because the Whyte guideline minimum assumed a plea of at least limited utilitarian value, a trial conviction points toward a sentence at or above that threshold.
  • Where a single driving incident causes the deaths of more than one person, sentencing must reflect the increased criminality arising from the multiple deaths. A sentencing court's failure to adequately account for this constitutes an error, even if concurrent sentences are not inherently impermissible.
  • On a Crown appeal, double jeopardy considerations can justify a sentence below what the Court of Criminal Appeal would otherwise regard as appropriate. Simpson J and Howie J expressly noted that the resentence did not reflect the sentence they believed the offending warranted.
  • Rehabilitation progress made during an already-served non-parole period is a relevant consideration when a Crown appeal is heard close to the date of the prisoner's scheduled parole release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A (dangerous driving causing death or grievous bodily harm)

Cases
- R v Whyte (2002) 55 NSWLR 252 (CCA guideline judgment on dangerous driving)
- R v Jurisic (1998) 45 NSWLR 209 (earlier guideline judgment)
- Pearce v The Queen (1998) 194 CLR 610 (cumulative versus concurrent sentencing)
- R v Sullivan [2004] NSWCCA 99
- R v Carr (2002) 135 A Crim R 171
- R v Skrill [2002] NSWCCA 484
- R v Hammoud (2000) 118 A Crim R 66
- Wilkins (1988) 38 A Crim R 445
- Gorman [2002] NSWCCA 516