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Court of Criminal Appeal 11 December 2008

MITRESKI v R; R v MITRESKI

[2008] NSWCCA 301

HomicideTraffic & driving
CRIMINAL LAW CONVICTION APPEAL DANGEROUS DRIVING CAUSING DEATH WHETHER VERDICTS WERE UNREASONABLE EFFECT OF JURY VERDICTS

Citation: MITRESKI v R; R v MITRESKI [2008] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 11 December 2008
Judge(s): Giles JA, Latham J, Mathews AJ

Background

The appellant was a semi-trailer driver convicted after trial on two counts of Dangerous Driving Occasioning Death under the Crimes Act 1900. In the early hours of 8 October 2005, he was descending a steep, winding section of the Great Western Highway near Hartley when his prime mover crossed into the path of an oncoming vehicle. Both vehicles left the road and collided, killing the two occupants of the other car.

The section of road imposed a 40 km/h speed limit on trucks and buses, with a requirement to use low gear. The appellant was driving in a significantly higher gear than required and, on his own account to police, was travelling well above that limit. He told police he had swerved to avoid the other vehicle, which he said was on the wrong side of the road.

Two appeals came before the Court of Criminal Appeal together. The appellant challenged his conviction, arguing the verdicts were unreasonable. The Crown separately appealed the sentences, contending they were manifestly inadequate.

  • Whether the jury's verdicts of guilty on both counts were unreasonable or unsupported by the evidence, particularly given disputed expert evidence about the appellant's actual speed
  • Whether the sentencing judge was required to make a specific finding as to the appellant's speed before imposing sentence
  • Whether the sentencing judge had erroneously characterised the respondent's culpability as involving mere momentary inattention
  • Whether the sentencing judge had failed to properly apply the relevant guideline judgment on dangerous driving offences

Decision

Conviction appeal dismissed. The appellant argued that because doubt had been cast on the Crown expert's speed estimate, the jury was bound to accept his version of events. The Court rejected this reasoning. Even on the appellant's own account, he was travelling approximately 20 km/h above the applicable speed limit. Speed was only one of several factors the Crown relied upon to establish dangerous driving. The jury was entitled to consider the appellant's gear selection, his failure to use the primary brake on a steep wet descent, and other aspects of his driving. The verdicts were open on the evidence.

Crown sentence appeal allowed. The Court found the sentencing judge made several errors. First, the judge had incorrectly characterised the appellant's culpability as arising from momentary inattention, a description inconsistent with the jury's verdicts. The jury's findings reflected more than a brief lapse of attention. Second, the judge had failed to apply the guideline judgment in R v Jurisic and R v Whyte, which required structured consideration of where the offending fell within the range of such cases.

The Court found the respondent's criminality sat slightly below mid-range for this type of offence. While the respondent's health was a relevant consideration capable of grounding a finding of special circumstances, it did not justify the level of leniency inherent in the original orders for periodic detention. The Court resentenced the respondent to full-time imprisonment, with a non-parole period of two years on each count served consecutively.

Orders Made

  • Appeal against conviction dismissed
  • Sentences imposed by Graham ADCJ on 13 June 2008 quashed
  • First count: non-parole period of two years from 21 June 2008, expiring 20 June 2010; balance of term of one year, expiring 20 June 2011
  • Second count: non-parole period of two years from 21 October 2008, expiring 20 October 2010; balance of term of one year, expiring 20 October 2011
  • Disqualification period of three years from 3 April 2008 confirmed

Key Takeaways

  • In a conviction appeal based on the unreasonableness of a jury verdict, the Court of Criminal Appeal will examine the whole of the Crown case, not just the disputed element the appellant nominates as decisive.
  • Where a dangerous driving accused's own admissions establish speeding well above the relevant limit, doubt about the precise speed found by a Crown expert does not automatically render guilty verdicts unreasonable.
  • A sentencing judge's characterisation of a dangerous driving offence as involving momentary inattention must be consistent with the jury's actual findings; a characterisation at odds with those findings constitutes a sentencing error.
  • The guideline judgments in R v Jurisic and R v Whyte require sentencing courts to situate dangerous driving offences within the established range; failure to engage with that framework is a separate and distinct error.
  • Poor health may support a finding of special circumstances at sentencing, but it does not of itself justify a departure from full-time custody where the offending is of sufficient gravity and the correctional system can provide adequate care.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)

Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment on dangerous driving)
- R v Whyte (2002) 55 NSWLR 252 (guideline judgment on dangerous driving)
- R v Khatter [2000] NSWCCA 32
- R v Davies [2000] NSWCCA 84
- R v Dunlop [2001] NSWCCA 435
- R v Romanic [2000] NSWCCA 524
- R v Guilfoyle (1973) 57 Cr App R 549
- R v Musumeci (unreported, NSWCCA, 30 October 1997)
- R v Bailey [2001] NSWCCA 10
- R v Sopher (1993) 70 A Crim R 570