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6
Court of Criminal Appeal 13 November 2007

Markham v Regina

[2007] NSWCCA 295

HomicideTraffic & driving
DANGEROUS DRIVING OCCASIONING DEATH APPLICANT DRIVING HEAVY VEHICLE APPROACH TO GUIDELINE IN R V WHYTE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Markham v Regina [2007] NSWCCA 295
Court: New South Wales Court of Criminal Appeal
Date: 13 November 2007
Judge(s): McClellan CJ at CL, Hidden J, Price J

Background

The applicant was a truck driver who, in the early hours of 1 April 2005, drove a heavy B-double vehicle from Mildura to Sydney overnight. At approximately 10:15 am at an intersection in Wetherill Park, he drove through a red traffic light at between 50 and 60 kilometres per hour and struck a vehicle that was lawfully turning. The driver of that vehicle died in hospital three days later.

The applicant pleaded guilty in the Local Court at the first available opportunity to dangerous driving occasioning death, an offence under section 52A(1) of the Crimes Act 1900 carrying a maximum of ten years imprisonment. He was then committed for sentence to the District Court.

In the District Court, Maguire DCJ sentenced the applicant to six years imprisonment with a non-parole period of three years, commencing 15 June 2006. The sentencing judge found the applicant had been driving for too long and had either fallen asleep or was so fatigued and stressed that he failed to process what he was seeing. The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge correctly applied the guideline for dangerous driving occasioning death established in R v Whyte (2002) 55 NSWLR 252
  • Whether the judge erred by extending the additional (balance) term when finding special circumstances, without making a corresponding downward adjustment to the non-parole period
  • Whether the six-year sentence was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal found the six-year sentence manifestly excessive and allowed the appeal. Hidden J (with whom McClellan CJ at CL and Price J agreed) concluded that, while the offence was serious and its consequences tragic, the sentence passed was significantly more severe than the objective gravity of the offending and the applicant's personal history warranted.

The Whyte guideline provides that, for a typical dangerous driving occasioning death offence involving high moral culpability (including conduct amounting to an abandonment of responsibility), a head sentence of less than three years would not generally be appropriate. Hidden J noted that the sentencing judge had applied that benchmark but had failed to give adequate weight to the fact that the applicant's early guilty plea in the Local Court was of real utilitarian value, which distinguished his case from the "typical" scenario identified in Whyte.

On the special circumstances ground, the Court found it unnecessary to resolve whether the judge had erred in that technical respect, because the conclusion of manifest excess required re-sentencing regardless. Hidden J accepted special circumstances existed, given this was the applicant's first experience of full-time custody and his rehabilitation prospects warranted an extended supervisory period.

On re-sentencing, the Court took into account the applicant's imperfect (but not seriously adverse) traffic record, evidence of otherwise good character from family and community, and continued family support. A total sentence of four years with a non-parole period of two years and three months was substituted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence of the District Court quashed
  • Applicant re-sentenced to four years imprisonment, comprising:
  • Non-parole period of two years and three months, commencing 15 June 2006 and expiring 14 September 2008
  • Balance of term of one year and nine months, commencing 15 September 2008 and expiring 14 June 2010
  • Eligible for release on parole on 14 September 2008

Key Takeaways

  • The Whyte guideline sets a general benchmark for dangerous driving occasioning death cases involving high moral culpability, but its "typical" scenario includes a guilty plea of limited utilitarian value. Where a plea is entered at the first opportunity in the Local Court, that feature of the guideline scenario may not apply, and the guideline's starting point warrants corresponding adjustment.
  • A finding of fatigue-induced failure to perceive traffic signals, in the context of an extended overnight heavy vehicle journey, can support characterising conduct as an abandonment of responsibility under Whyte, justifying treatment as a high-culpability case.
  • Where a sentencing court finds special circumstances and extends the balance of term, the Court of Criminal Appeal confirmed there may be an obligation to make a corresponding downward adjustment to the non-parole period, though this point was not ultimately determined because the appeal succeeded on manifest excess grounds.
  • No error was required to be isolated with precision before the Court of Criminal Appeal would intervene: a finding of manifest excess alone was sufficient to warrant quashing the sentence and re-sentencing.
  • In substituting a sentence of four years (non-parole period two years and three months), the Court of Criminal Appeal treated the early guilty plea, the applicant's first-time full custodial experience, positive character evidence, and rehabilitation prospects as significant mitigating features against the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1) (dangerous driving occasioning death)

Cases
- R v Whyte (2002) 55 NSWLR 252
- R v Jurisic (1998) 45 NSWLR 209
- R v Clampitt-Wotton [2002] NSWCCA 383
- Musgrove v R (2007) 167 A Crim R 424