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Court of Criminal Appeal 24 October 2007

Thompson v R

[2007] NSWCCA 299

Traffic & driving

Citation: Thompson v R [2007] NSWCCA 299
Court: NSW Court of Criminal Appeal
Date: 24 October 2007
Judge(s): Hodgson JA, Hislop J, Latham J

Background

The appellant was driving a high-performance Ford Falcon utility in the early hours of 15 August 2003 near Couridjah, NSW. Travelling at 120 km/h in a 60 km/h zone, he failed to stop at a railway crossing stop sign, became airborne, and struck a tree, killing his two passengers, aged 18 and 19. He was significantly affected by alcohol at the time, knew neither passenger was wearing a seatbelt, and left the scene without calling for help, not contacting police until approximately seven hours later.

The appellant pleaded guilty in the District Court to two counts of dangerous driving occasioning death in circumstances of aggravation, specifically exceeding the speed limit by more than 45 km/h. The Crown accepted those pleas in full satisfaction of an indictment that had also included manslaughter counts. On 27 June 2006, Judge Marien of the District Court sentenced the appellant to eight years imprisonment with a five-year non-parole period on each count, partially accumulated, producing a total effective sentence of seven and a half years' non-parole period and a three-year balance of term.

The appellant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing the sentences were manifestly excessive and that the sentencing judge had made errors in applying the guilty plea discount and in structuring the sentences around a finding of special circumstances.

  • Whether the individual and aggregate sentences were manifestly excessive having regard to the facts and comparable cases
  • Whether the sentencing judge erred in applying only a minimal discount for the guilty pleas, given the pleas were entered effectively at the commencement of trial following a voir dire
  • Whether the sentencing judge erred in failing to apply an adequate discount for the appellant's assistance to authorities
  • Whether the sentencing judge erred in structuring the sentences in a way that effectively negated the finding of special circumstances

Decision

Manifest excess. The Court acknowledged that while the individual non-parole periods sat in the top seven per cent of sentences for this offence category, sentencing statistics are not determinative. The Court also noted the distinction between manslaughter and the aggravated form of dangerous driving causing death can be a fine one. Having regard to the particular circumstances, including speed, alcohol, the appellant's knowledge of the road, his failure to render assistance, and the deaths of two young people, the Court found no error in the sentences imposed.

Guilty plea discount. The pleas were entered effectively at trial, after a voir dire had been completed. The Court confirmed the sentencing judge was correct to place the utilitarian discount at the lower end of the range established in R v Thomson & Houlton. No error was established on this ground.

Assistance to authorities. The Court found the sentencing judge had considered this matter and given it appropriate weight. No error was demonstrated.

Special circumstances and sentence structure. The sentencing judge had found special circumstances based on the appellant's limited literacy and the anticipated difficulty of his reintegration into the community. However, the Court found that a three-year parole period, which resulted from the aggregate sentence structure, was adequate for rehabilitation purposes. The Court concluded the sentencing judge had intentionally structured the sentences to produce the aggregate non-parole period he imposed, and that this reflected no error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing statistics from the Judicial Commission can be relevant to a manifest excess argument, but they are not determinative; a sentence in the upper range is not necessarily excessive where the objective facts support it.
  • A guilty plea entered effectively at the commencement of trial, following a voir dire, properly attracts a discount at the lower end of the R v Thomson & Houlton range.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the boundary between the aggravated form of dangerous driving causing death and manslaughter can be narrow, and that this proximity does not automatically render a substantial sentence excessive.
  • No error was established merely because an aggregate sentence structure produced a lower proportional balance of term than that applied to the individual sentences, provided the resulting parole period remained adequate for rehabilitation.
  • The Court of Criminal Appeal will only interfere with a sentence where error is established and it forms the positive opinion that a less severe sentence was warranted in law, consistent with the standard in R v Simpson (2001) 53 NSWLR 704.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Thomson & Houlton (1999-2000) 49 NSWLR 383
- R v Cameron (2005) 157 A Crim R 70
- R v Vukic [2003] NSWCCA 13
- R v Jaworowski (1999) 108 A Crim R 489
- R v Woodward [2001] NSWCCA 90
- Markarian v The Queen (2005) 215 ALR 213
- R v Simpson (2001) 53 NSWLR 704