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Court of Criminal Appeal 25 August 2006

Richards v Regina

[2006] NSWCCA 262

Traffic & drivingPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCE OBJECTIVE CRIMINALITY OF S 314 OFFENCE S7(1A) CRIMINAL APPEAL ACT DISCUSSED SENTENCING

Citation: Richards v Regina [2006] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 25 August 2006
Judges: McColl JA, Adams J, Latham J

Background

The applicant pleaded guilty in the District Court to one count of dangerous driving occasioning death, three counts of dangerous driving occasioning grievous bodily harm, and one count of making a false accusation knowing the accused person to be innocent. All five offences arose from a single head-on collision near Oberon on 22 August 2003, in which one man died and his wife and two daughters were seriously injured.

After the crash, the applicant agreed to a scheme in which a passenger falsely claimed to have been driving. The applicant maintained that false account to police and ambulance officers. The false accusation charge under s 314 of the Crimes Act 1900 related to that conduct.

The applicant sought leave to appeal against the severity of the sentences imposed by Shadbolt DCJ. The Crown separately drew the court's attention to a procedural irregularity: the sentencing judge had never formally pronounced sentence on the s 314 offence, even though the intended sentence was identifiable from the record.

  • Whether the sentencing judge erred by sentencing the applicant on a factual basis that corresponded to a more serious offence than the one charged (the De Simoni principle)
  • Whether the sentencing judge failed to give adequate weight to the utilitarian value of the guilty plea
  • What the appropriate level of objective criminality was for the s 314 false accusation offence
  • Whether the failure to accumulate sentences on the dangerous driving counts warranted a lesser overall sentence on appeal
  • Whether the failure formally to pronounce sentence on the s 314 count required the Court of Criminal Appeal to intervene
  • The proper application of s 7(1A) of the Criminal Appeal Act 1912, which requires an appellate court to consider whether a lesser sentence is warranted in the circumstances

Decision

The Court granted leave to appeal but dismissed the appeal, substituting sentences that corrected the procedural defect without reducing the overall penalty.

On the De Simoni ground (sentencing on a basis more serious than the offence charged), the Court found no error warranting interference. The sentencing judge's approach did not impermissibly treat the applicant as having committed a more serious offence than those to which he had pleaded guilty.

The Court found that the sentencing judge had, in substance, taken the utilitarian value of the guilty plea into account, even if the expression of reasons was described by the applicant's own counsel as "opaque." No appealable error was established on that ground.

On the question of the s 314 offence and the accumulation of sentences, the Court held that any reduction in the sentence for the false accusation count would require a corresponding upward adjustment in the sentence for dangerous driving occasioning death. The sentencing judge had already reduced the principal sentence by one year to reflect totality, so a reduction in the s 314 sentence would unwind that adjustment. After all necessary adjustments, the overall sentence would not be lesser. The Court therefore dismissed the appeal under s 6(3) of the Criminal Appeal Act 1912.

The Court also observed, with some emphasis, that the Crown Prosecutor carries an obligation to assist the court to avoid appealable error, including procedural errors such as the failure formally to pronounce sentence. The Crown in this proceeding was credited with properly drawing that omission to the appellate court's attention.

Orders Made

  • Sentences imposed by Shadbolt DCJ on counts 1 to 4 (indictment dated 8 March 2005) and the s 314 count (indictment dated 22 April 2005) were quashed
  • Count 1 (dangerous driving occasioning death): imprisonment for four years and four months, commencing 22 April 2006, with a non-parole period of three years
  • Counts 2 to 4 (dangerous driving occasioning grievous bodily harm): imprisonment for four years on each count, commencing 22 April 2006, with a non-parole period of three years, all concurrent
  • s 314 count (false accusation): twelve months imprisonment, commencing 22 April 2005 and expiring 21 April 2006
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under the principle in R v De Simoni (1981) 147 CLR 383, a sentencing judge must not impose a sentence based on facts that would constitute a more serious offence than that charged; the Court of Criminal Appeal found no breach of that principle on these facts.
  • A failure by a sentencing judge formally to pronounce sentence is a procedural error that compels appellate intervention under s 43 of the Crimes (Sentencing Procedure) Act 1999, even where the intended sentence is identifiable from the record.
  • Where a sentencing judge has already reduced one sentence to reflect totality, reducing a related sentence on appeal requires a corresponding upward adjustment elsewhere; the Court of Criminal Appeal confirmed that the net result in this case did not produce a lesser overall sentence.
  • Section 7(1A) of the Criminal Appeal Act 1912 does not require an appellate court to take into account the leniency of independently imposed sentences that were not themselves the subject of a Crown appeal when assessing whether a lesser sentence is warranted on the appealed sentence.
  • Crown Prosecutors carry a professional obligation to assist the sentencing court to avoid appealable error, including drawing attention to formal defects such as the failure to pronounce sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 314
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Appeal Act 1912 (NSW), ss 6(3), 7(1A)
- Crimes (Public Justice) Amendment Act 1990 (NSW)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW)

Cases
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Erceg v District Court (NSW); Virgin v District Court (NSW) [2003] NSWCA 379; (2003) 143 A Crim R 455
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328
- R v Mobbs [2005] NSWCCA 371
- Mobbs v R [2005] NSWCCA 438
- R v Ohar [2004] NSWCCA 83; (2004) 59 NSWLR 596
- R H McL v R [2000] HCA 46; (2000) 203 CLR 452
- Ryan v The Queen [1982] HCA 30; (1982) 149 CLR 1
- Gobbett v R [2006] NSWCCA 46
- Various other NSWCCA decisions as cited in the judgment