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19
Court of Criminal Appeal 10 September 2009

SBF v R

[2009] NSWCCA 231

Also reported as (2009) 198 A Crim R 219
Traffic & driving
CRIMINAL LAW SENTENCE YEAR OLD DRIVER ON LEARNER’S PERMIT SOME IMPAIRMENT BY ALCOHOL COLLISION WITH POWER POLE 16 AND 17

Citation: SBF v R [2009] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 10 September 2009
Judge(s): Spigelman CJ, McClellan CJ at CL, Johnson J

Background

The applicant, identified only as SBF to protect his identity under child protection legislation, was 17 years old and held only a learner's permit when he drove a vehicle at grossly excessive speed through a residential area on 7 November 2006. He had consumed some alcohol. The vehicle struck a power pole, killing two teenage passengers (aged 16 and 17) and seriously injuring a third.

SBF denied being the driver until shortly before the trial date, then pleaded guilty in May 2008 to two counts of aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900. A third offence of aggravated dangerous driving causing grievous bodily harm was taken into account on a Form 1 (a procedural mechanism allowing related but uncharged offences to be considered on sentence without separate conviction). The aggravating circumstance in each offence was travelling more than 45 km/h over the speed limit.

At the Newcastle District Court, Judge Coolahan sentenced SBF to an overall term of seven years and ten months imprisonment, with a non-parole period of four years and three months. SBF applied to the Court of Criminal Appeal, out of time, for leave to appeal against those sentences.

The Court was asked to determine:

  • Whether the sentencing judge erred in assessing the aggravating features of the offences
  • Whether the sentencing judge made improper use of victim impact statements from the families of the deceased
  • Whether the sentencing judge breached the De Simoni principle by making factual findings that effectively sentenced the applicant for a more serious offence than that charged (specifically, whether the findings amounted to a finding of manslaughter)
  • Whether the sentences were manifestly excessive, having particular regard to the applicant's youth, inexperience, and immaturity
  • What weight general deterrence should carry when the offender is a juvenile

Decision

The Court unanimously dismissed the appeal. Johnson J delivered the principal judgment, with Spigelman CJ and McClellan CJ at CL agreeing. The Court found no error in the sentencing judge's assessment of the aggravating features, nor any improper use of the victim impact statements.

On the De Simoni question, the Court rejected the argument that the sentencing judge's findings crossed into territory reserved for manslaughter. The De Simoni principle prohibits a sentencing court from punishing an offender more severely by taking into account facts that would establish a more serious offence than the one for which the offender was convicted. The Court noted that the maximum penalty for the dangerous driving offences (14 years and 11 years respectively) is substantially lower than that for manslaughter (25 years), and the sentences actually imposed were far below even the lower maxima. There was nothing in the length or structure of the sentences to suggest the applicant had been treated as a manslaughter offender.

The Court acknowledged the inherent tension in sentencing a juvenile for offences of this gravity. While youth, inexperience, and immaturity are recognised mitigating factors, the Court confirmed that the objective seriousness of the offences and the need for general deterrence remained dominant considerations even where the offender is young. McClellan CJ at CL observed that a more severe sentence could have been imposed, and that the sentences as structured did not indicate any relevant error.

The Court was not persuaded that the sentences were manifestly excessive in the required sense, that is, unreasonable or plainly unjust. Statistical comparisons and other sentencing decisions were considered, but the Court noted that SBF's late pleas and late remorse distinguished his case from more typical examples, and that caution must be exercised in relying on sentencing statistics.

Orders Made

  • Time extended for the applicant to seek leave to appeal against the sentences imposed at the Newcastle District Court on 22 August 2008
  • Leave granted to appeal with respect to sentence
  • Appeal against sentence dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the objective seriousness of fatal dangerous driving offences and the need for general deterrence can outweigh an offender's youth and inexperience as mitigating factors, even where the offender is a juvenile.
  • The De Simoni principle requires courts to avoid sentencing an offender more harshly by treating uncharged and more serious conduct as effectively proven. The Court found no breach here, noting the sentences fell well below the maximum for the charged offences and were far removed from the range appropriate for manslaughter.
  • A late plea of guilty and late expression of remorse are factors that can legitimately reduce the mitigatory weight of those matters on sentence, distinguishing such cases from those involving early cooperation.
  • No error was established in the sentencing judge's use of victim impact statements or in the approach to aggravating features under s 52A of the Crimes Act 1900.
  • Sentencing statistics may be considered on appeal but carry limited weight; the Court emphasised that caution must be exercised in their use, particularly where the individual case involves multiple serious offences and distinguishing features.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(2), 52A(3)(c), 52A(4), 52A(7)(b)
- Children (Criminal Proceedings) Act 1987 (NSW), s 11
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Key Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v Jurisic [1998] 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- Markarian v The Queen (2005) 228 CLR 357
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465
- House v The King (1936) 55 CLR 499
- R v Bloomfield (1998) 44 NSWLR 734
- R v Merritt (2004) 59 NSWLR 557
- R v Borkowski [2009] NSWCCA 102
- Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422
- R v MMK (2006) 164 A Crim R 481
- Clarke v R [2009] NSWCCA 49
- SS v R [2009] NSWCCA 114