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7
Court of Criminal Appeal 30 March 2007

Lawler v Regina

[2007] NSWCCA 85

Also reported as (2007) 169 A Crim R 415
HomicideTraffic & driving
CRIMINAL LAW SENTENCING MANSLAUGHTER BY USE OF A MOTOR VEHICLE NO LESS SERIOUS A CRIME PRE MEDITATION

Citation: Lawler v Regina [2007] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 30 March 2007
Judge(s): McClellan CJ at CL, Bell J, Price J

Background

The appellant was a truck driver who, on 22 October 2004, drove a heavily laden 1988 Volvo prime mover and trailer combination along the F3 Freeway near Calga, knowing the vehicle's braking system was severely compromised. Of twelve brakes on the prime mover and trailer, only two had any potential to retard the wheels. The appellant had loaded approximately 18 tonnes of timber and building materials and was returning to Newcastle on a Friday afternoon, a time he knew would bring heavy traffic on a road with a steep descent to the Mooney Mooney Bridge.

As the appellant crested the descent, he encountered traffic that had slowed to 10 to 20 kilometres per hour across three lanes. Unable to stop, he drove into the breakdown lane, passing approximately 100 stationary or slow-moving vehicles before merging back into traffic at the bridge entrance when the breakdown lane ended. His vehicle struck a Hyundai Excel from behind, wedging it under the prime mover. The Hyundai was pushed approximately 50 metres, burst into flames, and its driver, Ann Parker, was killed. The truck continued for a further 350 metres, colliding with 33 more vehicles before coming to rest.

The appellant was convicted in the District Court at Gosford on one count of manslaughter, and two counts of dangerous driving occasioning grievous bodily harm (to Joy Noble and Stephen Connell). He was sentenced to a total effective term of ten years and eight months, with a non-parole period of eight years. He sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge erred in characterising the offending as involving premeditation or a high degree of criminality
  • Whether the sentencing judge gave excessive weight to general deterrence
  • Whether the sentence imposed for manslaughter was manifestly excessive, having regard to comparable cases and the subjective circumstances of the appellant

Decision

The Court of Criminal Appeal found no error in the sentencing judge's characterisation of the appellant's conduct. The appellant had known before commencing his journey that the braking system was defective, that the heavy load would further reduce stopping capacity, and that the F3 Freeway involved a steep descent likely to require heavy braking. He proceeded anyway, for commercial gain. The Court agreed with the sentencing judge that this constituted a deliberate disregard for the safety of other road users in circumstances carrying a high risk of death or grievous bodily harm.

The Court affirmed that manslaughter is no less serious a crime because it is committed through the use of a motor vehicle. The sentencing judge's emphasis on general deterrence was held to be appropriate, given that heavily laden vehicles share busy roads with non-commercial traffic every day, and the consequences of operating an unsafe heavy vehicle can be catastrophic, as this case vividly demonstrated.

The Court also considered the appellant's subjective circumstances and found they had been given appropriate weight by the sentencing judge. Although the sentence was described as sitting at the top of the appropriate range, it was not found to exceed that range. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Manslaughter by motor vehicle carries the same gravity as other forms of manslaughter; the Court of Criminal Appeal expressly confirmed it is "no less serious a crime" because a vehicle is the instrument of death.
  • Where a driver knowingly operates a dangerously defective heavy vehicle on a busy road, knowing the load will further impair braking capacity and that road conditions require reliable braking, a sentencing court may properly characterise that conduct as involving a high degree of criminality and a deliberate disregard for road safety.
  • General deterrence is an important sentencing consideration in heavy vehicle cases, given the frequency with which large commercial vehicles share roads with non-commercial traffic and the scale of harm that can result from unsafe operation.
  • In dismissing the appeal, the Court found that a non-parole period of eight years within a total sentence of ten years and eight months for manslaughter in these circumstances was within the proper range, even sitting at its upper end.
  • Pre-sentencing conduct, including the deliberate decision to embark on a lengthy commercial journey in a vehicle known to be unroadworthy, is a legitimate factor in assessing the overall criminality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m)

Cases:
- Ian Gobbet v Regina [2006] NSWCCA 46
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Falzon [2000] NSWCCA 530
- Regina v Janceski [2005] NSWCCA 288
- R v Cramp [1999] NSWCCA 324
- R v Lynn [2004] NSWCCA 222
- R v McKenna (1992) 63 A Crim R 452
- R v Sutton [2004] NSWCCA 225
- R v Tadrosse [2005] NSWCCA 145
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Waqa (No 2) [2005] NSWCCA 33