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9
Court of Criminal Appeal 6 August 2010

Bombardieri v R

[2010] NSWCCA 161

Also reported as (2010) 203 A Crim R 89
HomicideTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE ESCAPING PURSUIT BY A POLICE OFFICER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Bombardieri v R [2010] NSWCCA 161
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2010
Judge(s): Beazley JA, Buddin J, Barr AJ

Background

The applicant pleaded guilty in the District Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900. The charge carried a maximum penalty of 14 years imprisonment. The aggravating circumstance was that the applicant was escaping pursuit by a police officer at the time of the offending.

The applicant drove at speeds of up to 160 km/h over a significant distance, including through 80 km/h and 100 km/h zones, before a collision that killed one person. The sentencing judge assessed the pre-plea appropriate sentence at 12 years imprisonment and, after applying a discount of approximately 16.66 per cent for the guilty plea, imposed a sentence of 10 years imprisonment.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive having regard to the objective seriousness of the offence and the mitigating factors found in his favour.

  • Whether the sentence of 10 years imprisonment for aggravated dangerous driving occasioning death was manifestly excessive
  • Whether the sentencing judge gave adequate weight to the mitigating subjective factors found in the applicant's favour, beyond the guilty plea
  • Whether the sentencing judge erred by commencing the sentencing exercise at or near the statutory maximum in the absence of a finding that the case fell into the worst offending category
  • How sentences for aggravated dangerous driving occasioning death compare with those for motor manslaughter, and whether the sentence crossed the threshold appropriate only for that more serious category

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the sentence of 10 years imprisonment was manifestly excessive. The Court observed that, while the objective gravity of the offending was undoubtedly significant given the high speeds, the extended duration of dangerous driving, the number of persons put at risk, and the police pursuit context, the sentence fell within a range more appropriate for motor manslaughter. That observation carried particular weight because the Crown had elected not to proceed with a motor manslaughter charge, which is axiomatically more serious than the s 52A(2) offence.

Beazley JA emphasised that sentencing requires reasonable proportionality between the sentence and the circumstances of the offence, and that excessive focus on objective seriousness without proper regard to mitigating factors constitutes sentencing error. The sentencing judge had found the applicant had good prospects of rehabilitation and had shown genuine remorse. These subjective factors, the Court found, were either effectively ignored or given insufficient weight.

The Court also found the sentencing judge erred by commencing the sentencing exercise at or very near the maximum penalty in the absence of a finding that the case fell into the worst category of the offence. Buddin J was fortified in the conclusion of manifest excess by reference to comparable decisions, which indicated the original sentence was disproportionately severe for an offence of this statutory classification. Barr AJ agreed with Buddin J.

On resentencing, the Court confirmed the sentencing judge's finding of "special circumstances" (a term used in NSW sentencing law to justify a longer-than-standard ratio of parole to non-parole period) and had regard to evidence in an affidavit from the applicant indicating productive use of time in custody.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant resentenced to a total term of 9 years imprisonment, comprising a non-parole period of 5 years and 9 months commencing 12 August 2007 and expiring 11 May 2013, with the balance of sentence expiring 11 August 2016
  • Applicant eligible for release on parole on 11 May 2013

Key Takeaways

  • A sentence for aggravated dangerous driving occasioning death that falls within the range ordinarily reserved for motor manslaughter will be vulnerable to reduction on appeal, particularly where the Crown did not elect to prosecute the more serious offence.
  • Under sentencing principle, commencing a sentencing exercise at or near the statutory maximum requires a finding that the case falls into the worst category of the offence; absent such a finding, that approach constitutes an error of principle.
  • Mitigating subjective factors identified by a sentencing court, including good prospects of rehabilitation and genuine remorse, must be given meaningful weight in the final sentence and cannot effectively be disregarded.
  • The Court of Criminal Appeal confirmed that proportionality between the sentence and the objective circumstances of the crime is a fundamental sentencing requirement, with statutory expression in the Crimes (Sentencing Procedure) Act 1999, s 3A.
  • In assessing sentences for s 52A offences, the guideline judgments in R v Jurisic and Regina v Whyte provide the relevant framework of aggravating factors, including speed, erratic driving, length of the dangerous journey, ignoring warnings, and escaping police pursuit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- Regina v Whyte [2002] NSWCCA 343
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- House v The King (1936) 55 CLR 499
- R v Borkowski [2009] NSWCCA 102
- R v Jarrold [2010] NSWCCA 69
- Allen v Regina [2008] NSWCCA 11
- Page v R [2009] NSWCCA 26
- Young v R [2009] NSWCCA 298
- Whybrow v R [2008] NSWCCA 270
- Thompson v R [2007] NSWCCA 299
- R v Cameron (2005) 157 A Crim R 70
- R v Ryan (2003) 141 A Crim R 403
- R v Falzon [2000] 33 MVR 128
- R v Cramp (1999) 110 A Crim R 198
- R v Oliver (1980) 7 A Crim R 174
- R v Camilleri (NSW CCA, 8 February 1990, unreported)
- R v Scott [2005] NSWCCA 152
- R v Way [2004] NSWCCA 131
- SBF v R [2009] NSWCCA 231
- Lawler v The Queen (2007) 169 A Crim R 415
- R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
- Regina v Tait and Bartley (1979) 46 FLR 386