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Court of Criminal Appeal 2 April 2009

HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI

[2009] NSWCCA 87

Traffic & driving
CRIMINAL LAW SENTENCING APPEAL AGGRAVATING FEATURE INHERENT IN ELEMENTS OF CRIME NO LESSER SENTENCE WARRANTED

Citation: HEI HEI, Marcus Joseph v R; R v Marcus Joseph HEI HEI [2009] NSWCCA 87
Court: New South Wales Court of Criminal Appeal
Date: 2 April 2009
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

The appellant had pleaded guilty in the District Court to aggravated dangerous driving causing death. The aggravating circumstance was a blood alcohol concentration of 0.162 g per 100 ml, recorded approximately two and a half hours after a crash in which his stepdaughter was killed. Judge Bennett DCJ sentenced him to a non-parole period of three years followed by a two-year balance of term, and disqualified him from driving for three years commencing at the conclusion of the non-parole period.

The appellant challenged both the imprisonment term and the commencement date of the disqualification. The Crown did not seek a heavier sentence, but lodged its own appeal confined to the disqualification order. The Crown's concern was that the sentencing judge's intended approach to the disqualification period might be undermined if the appellant's appeal succeeded, and it sought to ensure the original intent was preserved in a form that clearly conformed with the statutory framework.

  • Whether the sentencing judge erred by treating "disregard for public safety" as an aggravating feature under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999, when that factor is already inherent in the elements of the offence of aggravated dangerous driving causing death
  • Whether the sentence of imprisonment was manifestly excessive
  • Whether the disqualification period was correctly fixed, and in particular whether it was open to the judge to set it to commence from the end of the non-parole period rather than from the date of conviction
  • Whether the Court of Criminal Appeal had jurisdiction to hear an appeal against a disqualification order

Decision

Ground 1: Double-counting of disregard for public safety

Rothman J (with whom McClellan CJ at CL and Buddin J agreed) acknowledged the well-established principle that a court must not treat as an aggravating factor something that is already inherent in the elements of the offence itself, as this amounts to double-counting. The Court accepted that disregard for public safety is ordinarily inherent in the offence of aggravated dangerous driving causing death where the aggravation is alcohol-related. However, reviewing the sentencing remarks as a whole, the Court was not persuaded that the sentencing judge had in fact given the factor additional weight beyond what was already reflected in the nature of the offence. No identifiable error was established on this ground.

Ground 2: Manifest excess

The Court dismissed the contention that the sentence was manifestly excessive. The offending was serious, involving a high blood alcohol level, driving on the wrong side of a major thoroughfare, and resulting in the death of a passenger. The mitigating factors, including genuine remorse, a solemn cultural promise to abstain from alcohol, community outreach to students, and the close relationship between the appellant and the deceased, were matters the sentencing judge had clearly taken into account. No error was shown.

The disqualification issue

The more technically complex aspect of the case concerned the disqualification order. The sentencing judge had purported to disqualify the appellant for three years commencing after the non-parole period. Under the Road Transport (General) Act 2005, a court has power to fix a disqualification period that is either shorter or longer than the automatic period. The Court found that the method used by the sentencing judge, while reflecting a clear intent, did not conform precisely with the statutory mechanism. The appropriate course was to give effect to that intent by expressly invoking the power under s 188(2)(d)(ii) to fix a longer period, producing a disqualification expiring on 19 February 2014, being three years after the conclusion of the non-parole period. The Crown appeal on this point was allowed and the order was reframed accordingly.

Orders Made

  • Leave to appeal granted
  • The appellant's appeal against sentence dismissed
  • The Crown's appeal against the disqualification order allowed; in lieu of the original order, the appellant was disqualified from driving pursuant to s 188(2)(d)(ii) of the Road Transport (General) Act 2005 for a longer period than three years, concluding on 19 February 2014

Key Takeaways

  • A sentencing court must not treat disregard for public safety as a separate aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 where that quality is already inherent in the elements of the offence charged, as doing so amounts to impermissible double-counting.
  • In dismissing the sentence appeal, the Court confirmed that genuine remorse, cultural undertakings, and post-offence rehabilitative conduct are properly weighed in mitigation, but cannot reduce a sentence below a level appropriate to the objective gravity of the offending.
  • Under s 188 of the Road Transport (General) Act 2005, a court's power to fix a disqualification period requires it to determine expressly whether a shorter or longer period than the automatic period is warranted. A purported order that produces a period identical in length to the automatic disqualification but commencing from a future date does not conform with the statutory mechanism and requires correction.
  • A disqualification from driving imposed on conviction is a "penalty" and constitutes a "sentence" within the meaning of the Criminal Appeal Act 1912, making it amenable to appeal in the Court of Criminal Appeal.
  • Where a sentencing judge's intent as to a disqualification period is clear but the method used does not comply with the statute, the Court of Criminal Appeal may correct the order to give effect to that intent in a form that is indisputably consistent with the legislative framework.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 43
- Criminal Appeal Act 1912 (NSW)
- Road Transport (General) Act 2005 (NSW), including ss 187, 188

Cases
- Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSWCCA 303; (2004) 61 NSWLR 305
- Elyard v R [2006] NSWCCA 43
- Ex parte Thomas; Re Arnold (1966) 84 WN (Part 1) NSW 493
- Gardner v R [2003] NSWCCA 199
- Kutchera v R [2007] NSWCCA 121
- R v Abboud [2005] NSWCCA 251
- R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540
- R v Finnie (No 2) [2004] NSWCCA 150
- R v McMillan [2005] NSWCCA 28
- R v Moore; Ex parte Graham [1977] HCA 20; (1977) 138 CLR 164
- R v Presard [2004] 147 A Crim R 385
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Stewart [2005] NSWCCA 290
- R v Wall [2002] NSWCCA 42
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168