Citation: Hughes v Regina [2008] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 10 March 2008
Judge(s): McClellan CJ at CL; Grove J; Simpson J
Background
The appellant was a truck driver who, in August 2005, drove a heavy prime mover on the New England Highway north of Aberdeen while under the influence of cannabis. His vehicle drifted onto the wrong side of the road and collided with a crash barrier. The prime mover overturned and caught fire. Despite the appellant's attempts to free her, his 18-year-old partner, who was three months pregnant and travelling as a passenger, died from burns. The foetus also did not survive.
The appellant pleaded guilty to dangerous driving causing death under s 52A(1)(a) of the Crimes Act 1900, on the basis that he was under the influence of cannabis at the time. He was sentenced in the District Court to imprisonment with a non-parole period of three years commencing 13 February 2007, and a balance term of 18 months.
The appellant sought leave to appeal against the severity of that sentence, raising several grounds including the weight given to his genuine remorse, the relevance of the victim's pregnancy to sentencing, and whether credit had been given for time spent in residential rehabilitation programs before sentence was imposed.
Legal Issues
- Whether the sentencing judge erred in treating the victim's pregnancy as an aggravating factor, given the appellant had no prior knowledge of it
- Whether the relationship between the appellant and the deceased (they were partners, not strangers) was properly treated as a mitigating or aggravating factor
- Whether the death of the foetus was relevant to the sentence for an offence whose essential element was causing fatal injury to the mother
- Whether the sentencing judge gave sufficient weight to the appellant's genuine remorse for the death of his partner
- Whether time spent in residential rehabilitation programs (WHOS and the Salvation Army Bridge Programme) before sentence was imposed should have been credited as a form of quasi-custody, by backdating the commencement of the sentence
Decision
Grove J (with whom McClellan CJ at CL and Simpson J agreed) found that the sentencing judge had erred on several grounds, and that the resulting sentence was excessive.
On the victim's pregnancy, the Court held that because there was no evidence the appellant knew his partner was pregnant, the pregnancy could not properly aggravate his moral culpability. The death of the foetus was a consequence of the fatal injury to the mother, and since causing that fatal injury was itself the very element of the offence, the foetus's death was not a separate aggravating circumstance. It could not, therefore, be layered onto the sentence as an additional factor.
The Court also found that the fact the deceased was the appellant's partner, rather than a stranger, called for careful analysis rather than automatic aggravation. The relationship was relevant to the depth of the appellant's remorse, and the sentencing judge had not given that genuine remorse sufficient weight. The appellant's grief, his post-traumatic stress disorder, and the circumstances of Ms Cook's family's continuing contact with him after her death all pointed to authentic and profound remorse.
On the rehabilitation issue, the Court held that time spent in residential rehabilitation programs, which significantly restrict a participant's liberty, can constitute a form of quasi-custody. Such time is preferably recognised by backdating the commencement of the sentence rather than treating it as a matter of discretion. The Court refused to dismiss this ground as de minimis, backdating the sentence commencement to 23 December 2006 to account for just over 50 days in those programs.
Orders Made
- Leave to appeal against sentence granted, and appeal allowed
- Sentence imposed in the District Court quashed
- Appellant resentenced to imprisonment with a non-parole period of two years commencing 23 December 2006 and expiring 22 December 2008, with a balance term of one year commencing 23 December 2008
- Appellant ordered to be released to parole on 22 December 2008
- Automatic licence disqualification maintained
Key Takeaways
- Where there is no evidence that an offender knew of a victim's pregnancy at the time of the offence, the pregnancy cannot be used to elevate the offender's moral culpability at sentencing.
- The death of a foetus, where it results from a fatal injury to the mother that is itself the essential element of the charged offence, does not constitute a separate aggravating factor for sentencing purposes.
- A close personal relationship between an offender and the deceased is not automatically an aggravating circumstance; it may instead be highly relevant to the genuineness and depth of the offender's remorse, which is itself a mitigating factor.
- Time spent in residential rehabilitation programs that substantially restrict a person's liberty before sentence is imposed may be treated as quasi-custody, and is preferably recognised by backdating the commencement date of the sentence rather than by a discretionary allowance.
- In assessing total sentence for dangerous driving causing death, the Court of Criminal Appeal reduced the sentence by applying a 25 percent discount for a prompt guilty plea, resulting in a total term of three years.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Daniels v R [2007] NSWCCA 372
- Harrild v Director of Public Prosecutions [2003] 3 NZLR 289
- R v Boswell and Other Appeals (1984) 3 All ER 353
- R v Douglas (unreported, NSWCCA, 4 March 1997)
- R v Eastaway (unreported, NSWCCA, 19 May 1992)
- R v F (1996) 40 NSWLR 245
- R v Howcher [2004] 146 A Crim R 371
- R v Iby (2005) 63 NSWLR 278
- R v Jurisic (1998) 45 NSWLR 209
- R v King [2003] NSWCCA 399
- R v McHugh (1985) 1 NSWLR 588
- R v Pham [2005] NSWCCA 94
- R v Sullivan and Lemay [1991] 1 SCR 489
- R v Tzanis [2005] NSWCCA 274
- R v Whyte (2002) 55 NSWLR 252