Citation: Page v R [2008] NSWCCA 26
Court: New South Wales Court of Criminal Appeal
Date: 19 February 2008
Judge(s): McClellan CJ at CL, Hall J, Price J (Price J delivered the principal judgment)
Background
The appellant, a self-represented man with an extensive criminal history, pleaded guilty in the District Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900. The offence arose from a police pursuit in Bankstown on 3 June 2005, during which he drove a stolen vehicle at speed through a residential street and collided with a car reversing from a driveway. The passenger in that car died at the scene.
Several facts were disputed at a sentencing hearing held before Sweeney DCJ. The contested matters included the appellant's speed before impact, whether the morphine and codeine in his blood contributed to the crash, and whether the driver of the other vehicle had been contributorily negligent. After a three-day hearing, the sentencing judge resolved all disputed facts against the appellant.
The appellant was sentenced to imprisonment with a non-parole period of four years. A related charge of driving a conveyance without the owner's consent was taken into account on a Form 1. He sought leave to appeal the sentence on eight grounds, submitting the sentence to the Court of Criminal Appeal on written submissions, having not appeared at the hearing.
Legal Issues
- Whether the 10 per cent discount for the guilty plea was too low, given the timing of the Crown's disclosure and an adjournment of proceedings
- Whether the sentencing judge erred in finding no contributory negligence by the other driver, including as to the onus of proof on that question
- Whether the sentence was manifestly excessive, having regard to comparable cases
- Whether the sentencing judge gave inadequate weight to the appellant's drug addiction
- Whether the sentencing judge's findings on remorse were correctly made
- Whether the failure to tender a psychological report at the sentencing hearing resulted in a miscarriage of justice
Decision
The court granted leave to appeal but dismissed all grounds. On the guilty plea discount, the court found that the 10 per cent discount was within the permissible range. The sentencing judge had considered the circumstances of the plea and the relevant case law, and no error was demonstrated.
On the contributory negligence ground, the appellant argued the sentencing judge had wrongly placed the onus of proving contributory negligence on him. The Court of Criminal Appeal found that the sentencing judge had applied the correct standard, being satisfied beyond reasonable doubt that there was no contributory negligence by the other driver. The court noted that under the relevant authorities, the prosecution bears the onus of establishing facts in aggravation beyond reasonable doubt, while an offender bears the onus of establishing mitigating facts on the balance of probabilities. The judge's approach was consistent with those principles.
The court rejected the manifest excess ground. The sentencing judge had correctly identified the gravity of the offence, the appellant's significant criminal history, and his personal circumstances, including his long-term heroin use and participation in a methadone program while in custody. Comparable sentences supported the outcome reached.
As to the psychological report, the appellant submitted to the Court of Criminal Appeal a report from a forensic psychologist, obtained after sentencing, indicating he had developed symptoms of post-traumatic stress disorder following the accident. The court held that the onus was on the appellant to demonstrate that the failure to tender such a report caused a miscarriage of justice. No evidence was provided explaining why the report was not obtained for the original hearing. More importantly, the court was satisfied that the material in the report would not have warranted a lesser sentence, so no miscarriage of justice was established.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed the established onus of proof framework for disputed sentencing facts: the prosecution must prove aggravating circumstances beyond reasonable doubt, while an offender asserting a mitigating fact bears the onus on the balance of probabilities.
- A guilty plea discount of 10 per cent was upheld where the plea was entered relatively late, even accounting for Crown disclosure timing and a prior adjournment of proceedings.
- In dismissing the miscarriage of justice ground, the court held that a psychological report obtained after sentencing will not automatically found a successful appeal; the appellant must demonstrate both why the material was not placed before the sentencing court and that it would have produced a lesser sentence.
- No miscarriage of justice arose from legal representation at first instance where the transcript demonstrated competent representation and no evidence was tendered from former lawyers explaining the absence of the psychological evidence.
- A sentence of four years non-parole for aggravated dangerous driving occasioning death was not manifestly excessive, even where the offender pleaded guilty and had participated in rehabilitation programs while in custody, given a lengthy and serious criminal history and significant impairment by heroin at the time of the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A, 52A(2), 154A(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Nudd v The Queen (2006) 80 ALJR 614
- R v Jurisic (1998) 45 NSWLR 209
- R v McNaughton (2006) 66 NSWLR 566
- R v Olbrich (1999) 199 CLR 270
- R v Ryan (2003) 141 A Crim R 403
- R v Storey [1998] VR 359
- R v Thomson & Houlton (1999-2000) 49 NSWLR 383
- R v Whyte (2002) 55 NSWLR 252
- R v Woodward [2001] NSWCCA 90
- Regina v Fernando [2002] NSWCCA 28
- Thompson v R [2007] NSWCCA 299