Citation: Whybrow v R [2008] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 19 November 2008
Judge(s): Hodgson JA, Kirby J, Hislop J (Hislop J delivered the principal judgment; the others agreed)
Background
The applicant pleaded guilty in the District Court to three offences arising from a single collision on 23 April 2006 at Warnervale. While driving with a blood alcohol concentration of 0.15g per 100ml, he crossed double unbroken centre lines on a 90 km/h road and collided head-on with an oncoming vehicle carrying a family of three. Two counts concerned causing death by driving under the influence (maximum 14 years each under s 52A(2) of the Crimes Act 1900): one for the death of Mrs Ann Thomas at the scene, and one for Mr Patrick Thomas, who died in hospital shortly after. The third count concerned causing grievous bodily harm to the couple's daughter, Kate Thomas (maximum 11 years under s 52A(4)).
At first instance, District Court Judge Nield sentenced the applicant to an aggregate non-parole period of five years and four months, with a total term of nine years. The sentencing judge applied a 15 percent discount for the guilty plea, found special circumstances permitting a 60/40 non-parole to parole ratio, and treated the sentences as partly concurrent and partly consecutive.
The applicant sought leave to appeal against sentence on several grounds, including that the sentencing judge had incorrectly applied an aggravating factor and had structured the sentences in error.
Legal Issues
- Whether the sentencing judge erred by treating the involvement of multiple victims as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, when that element was already inherent in the separate counts charged
- Whether the sentencing judge erred in the structure or quantum of the sentences, including the ordering and overlap of the concurrent and consecutive periods
- Whether the sentences, taken as a whole, were manifestly excessive or otherwise warranted appellate intervention
Decision
The Court of Criminal Appeal found that the sentencing judge had erred in treating the multiple-victim nature of the offences as an aggravating factor under s 21A(2)(g). Because each victim was the subject of a separate count, the plurality of victims was already accounted for by the fact of multiple convictions. Using it again as an aggravating factor within each count amounted to double-counting.
The Court also identified error in the structure of the original sentences, including the sequencing and overlap of the non-parole and parole periods across the three counts. These errors, taken together, justified the Court intervening to resentence the applicant afresh.
In resentencing, Hislop J took into account all relevant factors. These included the applicant's genuine remorse, his absence of prior criminal history, his strong prospects for rehabilitation (reinforced by a further affidavit indicating he was undertaking an engineering traineeship and planned tertiary study), the 15 percent guilty plea discount, extra-curial punishment arising from his own injuries and ongoing disabilities, and special circumstances based on it being his first time in custody and the need for an adequate rehabilitation period. No aggravating factor under s 21A(2)(g) was applied.
The revised sentences were structured with an earlier commencement for Count 3 (the grievous bodily harm count), and the two death-causing counts cascading thereafter with partial overlap. The aggregate effect reduced the overall non-parole period compared with the original sentences.
Orders Made
- Leave to appeal granted
- Appeal allowed
- All original sentences quashed and replaced as follows:
- Count 3 (grievous bodily harm): non-parole period of 1 year 6 months from 24 October 2007 to 23 April 2009; balance of term of 1 year to 23 April 2010
- Count 1 (death of Mrs Thomas): non-parole period of 3 years 3 months from 24 April 2008 to 23 July 2011; balance of term of 2 years 3 months to 23 October 2013
- Count 2 (death of Mr Thomas): non-parole period of 2 years 8 months from 24 April 2009 to 23 December 2011; balance of term of 2 years 10 months to 23 October 2014
- Earliest parole eligibility date: 23 December 2011
Key Takeaways
- Where separate counts are charged to reflect each individual victim of an offence, courts cannot also treat the plurality of victims as an additional aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 within those same counts. To do so constitutes impermissible double-counting.
- Structural errors in the sequencing and overlap of concurrent and consecutive sentences, where they affect the overall sentencing outcome, can independently warrant appellate intervention and resentencing.
- Extra-curial punishment, such as injuries and ongoing disabilities suffered by the offender as a direct consequence of the offending conduct, is a recognised factor in mitigation at sentencing in NSW.
- A guilty plea entered after the date fixed for trial attracted a 15 percent discount in these circumstances, reflecting the more limited utilitarian value of a late plea compared with an early one.
- Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can be established by a combination of factors, including a first period of custody, the particular circumstances of the offending, and the need for an adequate supervised reintegration period.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(2), 52A(4), 52A(7), 52A(9)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
Cases:
- R v Tzanis [2005] NSWCCA 274
- R v Solomon [2005] SASC 265; (2005) 153 A Crim R 32
- R v Chisari [2006] NSWCCA 19
- R v Previtera (1997) 94 A Crim R 76
- R v Daetz [2003] NSWCCA 216; (2003) 137 A Crim R 398
- Alameddine v R [2006] NSWCCA 317
- Christodoulou v R [2008] NSWCCA 102
- R v Bragias (1997) 92 A Crim R 330
- R v Price [2004] NSWCCA 186
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252