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Court of Criminal Appeal 28 October 2005

Regina v Cameron

[2005] NSWCCA 359

Also reported as (2005) 157 A Crim R 70
HomicideTraffic & driving
CRIMINAL LAW AND PROCEDURE SENTENCE MANSLAUGHTER (3 COUNTS) CROWN APPEAL INADEQUACY OF SENTENCES GROSS CULPABILITY OF OFFENDER

Citation: Regina v Cameron [2005] NSWCCA 359
Court: NSW Court of Criminal Appeal
Date: 28 October 2005
Judge(s): McClellan CJ at CL, Grove J, Hislop J

Background

In the early hours of 21 March 2004, the respondent, a young man with no driving licence, was permitted to drive a powerful V8 Commodore sedan belonging to an acquaintance in and around Parkes, NSW. Despite repeated requests from passengers to slow down, he drove well in excess of 100 km/h in a 50 km/h zone while his capacity to drive was markedly impaired by alcohol (blood alcohol reading of 0.114 mg/100 mL, with expert opinion placing it higher at the time of impact). He lost control on a sweeping bend, and the vehicle struck a telegraph pole with such force that it split in two.

Three passengers died: Joshua Klower (who suffered brain damage and died two days later), Daniel Tuxford (who died almost instantly from multiple injuries), and Jennifer Rea (whose body was incinerated when the rear section of the vehicle caught fire). A fourth passenger, Cassandra Gibson, sustained fractures and other injuries described as minor.

The respondent pleaded guilty in the Orange District Court to three counts of manslaughter and one count of aggravated driving in a manner dangerous causing grievous bodily harm. The Crown appealed the sentences imposed by Charteris DCJ as manifestly inadequate.

  • Whether the sentencing judge erred by assessing the manslaughter sentences as though a single offence had caused three deaths, rather than treating each count as a discrete offence requiring separate sentencing consideration
  • Whether the sentences imposed were manifestly inadequate given the objective gravity of the offending and the respondent's gross culpability
  • The appropriate distinction between manslaughter and the statutory driving offence under s 52A of the Crimes Act 1900 when structuring cumulative sentences
  • The extent to which the principle that a Crown appeal should result in a sentence at the lower end of the available range applied to the resentencing exercise

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the original sentences were manifestly inadequate. The sentencing judge had fallen into error by effectively treating the three separate manslaughter counts as a single offence resulting in multiple deaths, rather than recognising that each death constituted a discrete count carrying its own sentencing weight. The principle established in Pearce v The Queen required that each offence be sentenced separately, even where the same act gives rise to multiple charges.

Grove J, with whom McClellan CJ at CL and Hislop J agreed, undertook a detailed resentencing exercise. His Honour emphasised the extraordinary objective gravity of the conduct: driving at grossly excessive speed in a residential speed-limited zone, while significantly intoxicated, without a licence, and after ignoring explicit warnings from passengers. The respondent's commission of these offences while already subject to a good behaviour bond was treated as a further aggravating factor.

Grove J identified a further error in the original sentencing: the sentencing judge had not adequately distinguished between the manslaughter counts and the s 52A statutory driving offence. The proper approach required structuring cumulation between the separate manslaughter sentences to reflect the principle that each death demanded separate recognition in the overall sentence.

McClellan CJ at CL observed that, but for the applicable Crown appeal principle requiring resentencing at the lower end of the available range, a significantly greater sentence may have been appropriate. The resentenced terms were described by his Honour as the minimum appropriate in the circumstances.

Orders Made

  • Crown appeal allowed
  • Sentences imposed in the District Court quashed
  • Respondent resentenced as follows:
  • Manslaughter of Joshua Klower: non-parole period of 4 years (commencing 13 August 2004), balance term of 3 years
  • Manslaughter of Jennifer Rea: non-parole period of 4 years (commencing 13 August 2005), balance term of 3 years
  • Manslaughter of Daniel Tuxford: non-parole period of 4 years (commencing 13 August 2006), balance term of 3 years
  • Aggravated dangerous driving causing grievous bodily harm: fixed term of 3 years (commencing 13 August 2004, concurrent)
  • Earliest parole eligibility date set at 12 August 2010 (effective minimum custody of 6 years)
  • Respondent disqualified from holding any relevant driving licence for 10 years from 1 June 2005

Key Takeaways

  • Each separate count on an indictment must be sentenced as a discrete offence. Where a single act causes multiple deaths, treating the resulting counts as effectively one offence constitutes a sentencing error, as confirmed by the Court of Criminal Appeal applying Pearce v The Queen.
  • A meaningful distinction exists between manslaughter and the statutory driving offence under s 52A of the Crimes Act 1900. Proper sentencing structure requires that these offences be treated separately, not conflated when constructing cumulative terms.
  • Under the established Crown appeal principle, resentencing following a successful Crown appeal is to be conducted at the lower end of the available range, rather than at the level the court might otherwise have imposed. McClellan CJ at CL expressly noted this constrained the result.
  • Objective gravity in driving-related manslaughter is significantly heightened where the offender drove without a licence, at grossly excessive speed in a residential zone, while substantially intoxicated, and ignored repeated requests from passengers to slow down.
  • Commission of serious offences while subject to an existing good behaviour bond is a recognised aggravating factor in sentencing, and was treated as such in this case.

Legislation and Cases Referenced

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

Cases:
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- Olbrich v The Queen (1999) 199 CLR 270
- Pearce v The Queen (1998) 194 CLR 610
- The Queen v De Simoni (1981) 147 CLR 383
- R v Buttsworth (1983) 1 NSWLR 658
- R v Holton [2002] NSWSC 775; [2004] NSWCCA 214
- R v Ryan (2003) 39 MVR 395
- R v Vukic [2003] NSWCCA 13
- R v Simpson (2001) 53 NSWLR 704