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Court of Criminal Appeal 22 December 2009

Thai v R

[2009] NSWCCA 314

Traffic & driving
CRIMINAL LAW DANGEROUS DRIVING CAUSING DEATH MOMENTARY INATTENTION TERM OF PERIODIC DETENTION WHETHER MANIFESTLY EXCESSIVE

Citation: Thai v R [2009] NSWCCA 314
Court: NSW Court of Criminal Appeal
Date: 22 December 2009
Judge(s): McClellan CJ at CL, Simpson J, Hidden J

Background

The applicant pleaded guilty in the District Court to dangerous driving causing death under s 52A(1)(c) of the Crimes Act 1900. The offence occurred in September 2006 when he was driving at 60 km/h on the Cumberland Highway at Smithfield and, through momentary inattention, failed to observe an amber then red traffic light at an intersection. His vehicle collided with another car lawfully entering the intersection on a green light, fatally injuring that driver.

The District Court (Murrell DCJ) sentenced the applicant to 2.5 years' imprisonment, comprising a non-parole period of 22 months and a balance of 8 months, to be served by way of periodic detention. Periodic detention is a form of part-time custody where the offender serves their sentence on set days rather than in continuous full-time custody.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, given the Crown's concession that the inattention was momentary and his otherwise strong subjective circumstances, including no prior criminal or traffic history, sole care of two children, and significant personal losses in the period before the offence.

  • Whether the sentence of 2.5 years' imprisonment was manifestly excessive for dangerous driving causing death involving momentary inattention
  • Whether the sentencing judge erred in her approach by failing to properly apply the sentencing guidelines established in R v Jurisic and R v Whyte
  • Whether the manner in which a sentence is to be served (i.e. by periodic detention rather than full-time custody) is relevant when assessing manifest excess on appeal

Decision

The Court of Criminal Appeal found that the sentence was manifestly excessive. Both McClellan CJ at CL and Simpson J concluded that the sentencing judge had erred in her approach, applying the guideline judgments in Jurisic and Whyte incorrectly. Those decisions establish that where moral culpability is high, a sentence of less than three years is generally inappropriate. However, at the lower end of the culpability range, including cases of momentary inattention, a less severe sentence may be warranted.

The Court noted that momentary inattention is not a uniform concept. Inattention while driving at speed through a signalised intersection in an urban environment carries greater culpability than the same lapse on an isolated road at low speed. In this case, while a custodial sentence remained necessary, the 2.5-year term was too high given the conceded momentary nature of the inattention and the applicant's subjective circumstances.

McClellan CJ at CL addressed the question of how the mode of serving a sentence (such as periodic detention or home detention) bears on an appeal against sentence. He observed that a sentence served otherwise than in full-time custody is more lenient than one requiring full custody, and that leniency can be significant when assessing whether the overall sentence was appropriate.

Hidden J agreed with the orders proposed by Simpson J but declined to express a concluded view on the extent to which periodic detention should influence a manifestly excessive assessment, treating that question as unnecessary to decide in this case.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • In lieu of the District Court sentence, the applicant was sentenced to a fixed term of 15 months' imprisonment commencing 18 April 2009 and expiring 17 July 2010, to be served by way of periodic detention
  • No separate non-parole period was set

Key Takeaways

  • Momentary inattention in a dangerous driving causing death case can justify a lower level of moral culpability, but does not automatically lead to a non-custodial sentence. The context of the inattention, including speed, road type, and traffic conditions, remains relevant to the assessment.
  • The guideline judgments in R v Jurisic and R v Whyte continue to anchor sentencing for dangerous driving causing death in NSW. Where culpability is at the lower end, the applicable range is substantially below the three-year benchmark associated with high moral culpability.
  • A sentence of 2.5 years by way of periodic detention was held to be manifestly excessive for a momentary-inattention offence involving no prior record, significant personal circumstances, and conscientious compliance with periodic detention orders since sentencing.
  • The Court of Criminal Appeal confirmed that the mode in which imprisonment is served, whether by periodic detention, home detention, or suspension, is a relevant factor when assessing an appeal against sentence, as such orders produce a more lenient outcome than full-time custody.
  • In re-sentencing, the Court declined to set a non-parole period, citing the nature of the offence, the applicant's character, and the punishment already undergone during eight months of periodic detention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 45, 66

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Hallocoglu (1992) 29 NSWLR 67; 63 A Crim R 287
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Zamagias [2002] NSWCCA 17
- Reed v R [2007] NSWCCA 4
- R v Pangallo (1991) 56 A Crim R 441
- R v Overall (1993) 71 A Crim R 170
- R v Roberts, Lewis and McVean (1994) 73 A Crim R 306
- R v Wegener [1999] NSWCCA 405