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Court of Criminal Appeal 18 December 2009

Reubin Gary YOUNG v R

[2009] NSWCCA 298

HomicideTraffic & driving
CRIMINAL LAW MANSLAUGHTER (MOTOR VEHICLE) PLEA OF GUILTY DISCOUNT FOR PLEA OF GUILTY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Reubin Gary Young v R [2009] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judges: McClellan CJ at CL, Hidden J, McCallum J

Background

After a dispute beginning inside a Newcastle hotel in the early hours of 17 March 2006, a 22-year-old man (the applicant) drove his Nissan Patrol four-wheel drive vehicle deliberately towards the deceased, who was standing on a footpath. The applicant's stated intention was only to frighten the deceased. However, heavily intoxicated, he lost control of the situation: the vehicle mounted the footpath, struck the deceased, and the deceased died from massive head injuries.

The applicant reversed and fled the scene at speed before being apprehended by police. He was initially charged with murder, but entered a plea of guilty to manslaughter shortly before trial. Matthews AJ in the Supreme Court sentenced him to eight years imprisonment, with a non-parole period of five years.

The applicant sought leave to appeal against that sentence on three grounds: that the discount for his guilty plea was insufficient, that the sentencing judge incorrectly assessed the objective seriousness of the offence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in allowing a discount of only approximately 12.5% for the utilitarian value of the guilty plea, having regard to the factual dispute that still required witnesses to be called on sentence
  • Whether the sentencing judge was correct to assess the offence as among the more serious examples of motor vehicle manslaughter, given the deliberate nature of the applicant's conduct
  • Whether the overall sentence of eight years imprisonment (non-parole period of five years) was manifestly excessive

Decision

Discount for guilty plea: The applicant argued that the sentencing judge wrongly reduced the utilitarian discount by reference to the fact that a factual dispute remained, requiring several witnesses to give evidence at the sentencing hearing. Hidden J noted some uncertainty about whether this consideration is properly relevant to the utilitarian value of a plea, as opposed to remorse. However, his Honour found it unnecessary to resolve that question. A discount of 12.5% was well within the available range for a late plea, and even on the most generous assessment, no more than 15% could have been justified. The difference was not significant enough to establish error.

Objective seriousness: The sentencing judge applied factors drawn from the guideline judgment in R v Whyte, identifying three aggravating features: the severity of the deceased's injuries, the applicant's degree of intoxication, and his failure to stop after the collision. The judge placed particular weight on the deliberate nature of the conduct, distinguishing the case from others in the schedule of comparable decisions. The Court of Criminal Appeal found this assessment was well open to the sentencing judge and disclosed no error.

Manifestly excessive: The applicant suggested an appropriate sentence would have been around six years with a non-parole period of four years. Hidden J rejected this, describing such a sentence as inadequate to reflect the applicant's criminality, even allowing for his favourable subjective circumstances (no prior convictions, genuine remorse, good rehabilitation prospects, and offending out of character). A review of comparable motor vehicle manslaughter decisions confirmed that the sentence imposed fell within the proper exercise of discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the assessment of a discount for the utilitarian value of a guilty plea is a matter of considerable discretion for the sentencing judge, and small differences within the available range will not establish appellable error.
  • Whether the continuation of a factual dispute on sentence (requiring witnesses to be called) bears upon the utilitarian discount, rather than only upon remorse, was left open by the Court as an unresolved question.
  • Deliberate conduct in a motor vehicle manslaughter case, even where the intention was only to frighten rather than injure, is a significant aggravating feature that can properly place an offence among the more serious of its kind.
  • A favourable subjective case, including youth, absence of prior convictions, genuine remorse, and strong rehabilitation prospects, does not alone render a substantial sentence manifestly excessive where objective criminality is high.
  • In dismissing the appeal, the Court reinforced that the range of sentences in comparable motor vehicle manslaughter decisions is wide, and a sentence will only be disturbed where it falls outside the bounds of the proper exercise of sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A (aggravated dangerous driving causing death)

Cases:
- R v Borkowski [2009] NSWCCA 102
- R v Thompson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Cameron [2005] NSWCCA 359; 157 A Crim R 70
- R v Do [2000] NSWCCA 459
- R v Falzon [2000] NSWCCA 530
- R v Lavender [2004] NSWCCA 120
- Lawler v R [2007] NSWCCA 85; 169 A Crim R 415