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35
Court of Criminal Appeal 18 August 2005

Regina v Janceski

[2005] NSWCCA 288

HomicideTraffic & driving
CRIMINAL LAW SENTENCING CROWN APPEAL CAR CHASE THROUGH SUBURBAN STREETS CONCURRENT SENTENCES APPEAL ALLOWED

Citation: Regina v Janceski [2005] NSWCCA 288
Court: Court of Criminal Appeal, New South Wales
Date: 18 August 2005
Judge(s): Spigelman CJ; Hunt AJA; Howie J

Background

The respondent was convicted after trial of two counts of dangerous driving causing death under s 52A of the Crimes Act 1900, following a car chase through suburban Sydney. The pursuit began after the respondent's passenger recognised a vehicle allegedly stolen from a friend. After a threatening roadside confrontation, the driver of the chased vehicle fled and both vehicles pursued a fifteen-kilometre course through concentrated traffic, reaching speeds estimated at up to 150 kilometres per hour, running red lights, and narrowly avoiding multiple collisions.

The fatal impact occurred when the driver of the chased vehicle deliberately swerved into the respondent's vehicle, forcing it onto a median strip. The chased vehicle then lost control and struck a power pole, killing both its driver and passenger. The respondent argued that the deaths were not attributable to his driving because the other driver caused the impact. The trial judge rejected this defence, finding that the dangerous driving of both vehicles contributed to the collision.

At first instance, Judge Phelan in the District Court imposed concurrent sentences. The Crown appealed on the ground that those sentences were manifestly inadequate and failed to give sufficient weight to the respondent's culpability.

  • Whether the original concurrent sentences were manifestly inadequate for two counts of dangerous driving causing death.
  • Whether the trial judge gave sufficient weight to the respondent's culpability, including his role in initiating and maintaining the pursuit despite clear warning signs.
  • Whether the statutory defence under s 52A(8) of the Crimes Act 1900 (that the deaths were not attributable to the respondent's manner of driving) was properly rejected.
  • What the appropriate sentencing structure should be, including whether concurrent or cumulative sentences were warranted for two deaths arising from the same driving episode.

Decision

The Court of Criminal Appeal, constituted by Spigelman CJ, Hunt AJA, and Howie J, unanimously allowed the Crown appeal. Hunt AJA (with whom the other judges agreed) found that the sentencing judge had completely misjudged the appropriate sentences. The original concurrent sentences failed to adequately reflect the respondent's culpability in sustaining a dangerous pursuit after being warned of the risks, after his passenger remarked that the chased driver was likely to crash, and after the respondent's initial confrontation with a threatening weapon had contributed to putting the chased driver in fear.

The Court confirmed that the trial judge correctly rejected the s 52A(8) defence. Although the chased driver's deliberate swerve was the primary cause of the impact, the respondent's dangerous driving was also a contributing cause. The respondent had been put on notice of the escalating risks and did not desist.

On the question of sentencing structure, the Court found that two wholly concurrent sentences were inappropriate where two people died, even though both deaths arose from the same driving incident. Some degree of accumulation was warranted to reflect the distinct harm to each victim.

In fixing the new sentences, the Court applied the principle that, on a successful Crown appeal, double jeopardy is a relevant consideration and the new sentence should ordinarily sit at the lower end of the applicable range. The Court found special circumstances existed justifying an extended parole period relative to the non-parole period, consistent with the original judge's finding on that point.

Orders Made

  • The Crown appeal against the sentences imposed by Judge Phelan on 2 September 2004 was upheld and those sentences were quashed.
  • On the first count: imprisonment for four years, commencing 11 February 2004 and concluding 10 February 2008, with a non-parole period of two years concluding 10 February 2006.
  • On the second count: imprisonment for four years, commencing 11 February 2005 and concluding 10 February 2009, with a non-parole period of two years concluding 10 February 2007.
  • The respondent was made eligible for release on parole on 10 February 2007.
  • The three-year driving disqualification was confirmed.

Key Takeaways

  • Two deaths arising from a single dangerous driving episode do not automatically attract wholly concurrent sentences. The Court of Criminal Appeal confirmed that partial accumulation may be appropriate to reflect the separate harm caused to each victim.
  • Where a defendant's dangerous driving contributes causally to a fatal impact, the statutory defence that deaths were "not in any way attributable" to that driving (s 52A(8), Crimes Act 1900) will not succeed merely because another driver's deliberate act was the primary cause.
  • A sentencing court's failure to give sufficient weight to an offender's culpability, including sustained dangerous driving in the face of clear warnings, can ground a successful Crown appeal for manifest inadequacy.
  • In allowing a Crown appeal and resentencing, the Court applied the established principle that double jeopardy is a mitigating factor and the replacement sentence should ordinarily be fixed at the lower end of the appropriate range.
  • The respondent's ostensibly altruistic motive for the initial pursuit did not substantially reduce his culpability once the pursuit became prolonged and dangerous and warnings of imminent catastrophe had been communicated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51A, 52A (including s 52A(8))
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- Regina v McMillan [2005] NSWCCA 28
- Regina v Whyte (2002) 55 NSWLR 252
- Pearce v The Queen (1998) 194 CLR 610
- Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157
- Regina v Tadrosse [2005] NSWCCA 145
- Regina v Weldon (2002) 136 A Crim R 55
- Regina v Price [2004] NSWCCA
- Regina v Errington [1999] NSWCCA 18
- Regina v Whelan [2004] NSWCCA 379
- Regina v Jurisic (1998) 45 NSWLR 209
- Regina v Musumeci (Court of Criminal Appeal, 30 October 1997, unreported)
- Regina v Winchester (1992) 58 A Crim R 345
- Regina v Salameh (Court of Criminal Appeal, 9 June 1994, unreported)
- Regina v Holder & Johnston [1983] 2 NSWLR 245
- Regina v CJP [2004] NSWCCA 188