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Court of Criminal Appeal 6 August 2010

Rose v R

[2010] NSWCCA 166

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE GUILTY PLEAS ENTERED WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Rose v R [2010] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 6 August 2010
Judges: McClellan CJ at CL, Simpson J, Fullerton J (joint judgment of Fullerton J, with others agreeing)

Background

The applicant pleaded guilty in the District Court to three counts of aiding and abetting dangerous driving occasioning death, and one count of aiding and abetting dangerous driving occasioning grievous bodily harm. The offending arose from the applicant permitting a 14 to 15 year old unlicensed and inexperienced driver to operate his vehicle on a dirt road, while six passengers travelled unrestrained in the rear tray. Three people died and one suffered grievous bodily harm as a result.

The District Court imposed sentences totalling 3 years and 8 months, with a non-parole period of 2 years and 10 months, with individual sentences partially accumulated. The sentencing judge found special circumstances warranting a departure from the standard statutory ratio between non-parole period and balance of term, but the applicant contended this finding was not properly carried through into the final sentence structure.

The applicant sought leave to appeal on grounds that the sentencing judge failed to give effect to the special circumstances finding, erred in identifying certain aggravating factors, and imposed sentences that were manifestly excessive. The applicant's intellectual disabilities were also relevant to the sentencing exercise.

  • Whether the sentencing judge erred by failing to give effect to his own finding of special circumstances, given that the effective non-parole period exceeded the statutory ratio after partial accumulation of the four counts
  • Whether the sentencing judge erred in identifying the following as aggravating factors under the Crimes (Sentencing Procedure) Act 1999:
  • Substantial injury caused by the offences
  • Substantial emotional harm to victims' families
  • Multiple victims
  • Disregard for public safety
  • Whether the total sentences were manifestly excessive
  • The proper role of the applicant's intellectual disabilities in calculating the sentence

Decision

Special circumstances and the statutory ratio: The Court accepted that the sentencing judge's finding of special circumstances was not properly reflected in the sentence once the partial accumulation of counts was applied. The effective non-parole period exceeded the statutory ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999, which was inconsistent with giving effect to that finding. This constituted error.

Aggravating factors: The Crown conceded two errors. First, disregard for public safety is an inherent element of the offence of dangerous driving under s 52A of the Crimes Act 1900, and cannot be used as a separate aggravating factor. Second, where four separate counts had already been charged involving four separate victims, treating "multiple victims" as a further aggravating factor amounted to impermissible double counting. The Court also examined whether the deaths and the emotional harm to families had been impermissibly treated as aggravating the sentence, ultimately finding that the sentencing judge's references to those matters were directed at characterising the seriousness of the offending rather than formally identifying a statutory aggravating factor.

Intellectual disability: The applicant's intellectual disabilities were treated as a significant mitigating factor. The Court noted that intellectual disability does not reduce moral culpability in a straightforward way, but it is relevant to the nature and extent of the sentence, particularly in assessing the applicant's prospects of rehabilitation and the utility of supervision on parole. The applicant had been referred to a disability service provider for assessment for a structured living skills program, and this was taken into account in the resentencing exercise.

Resentencing: The Court quashed all four sentences and resentenced the applicant. A 25 per cent discount for the guilty pleas was applied to each count. The new sentences were structured to properly give effect to the special circumstances finding, adjusting the ratio between non-parole period and balance of term across the aggregate sentence. The total effective sentence was reduced to 2 years and 7 months, with a non-parole period of 1 year and 10 months.

Orders Made

  • Leave to appeal granted
  • Sentences on all four counts quashed
  • Count 1: 2 years and 3 months imprisonment, comprising an 18-month non-parole period from 4 March 2009 (expiring 3 September 2010) and a 9-month balance of term expiring 3 June 2011
  • Count 2: 2 years and 3 months imprisonment, comprising an 18-month non-parole period from 4 May 2009 (expiring 3 November 2010) and a 9-month balance of term expiring 3 August 2011
  • Count 3: 2 years and 3 months imprisonment, comprising an 18-month non-parole period from 4 July 2009 (expiring 3 January 2011) and a 9-month balance of term expiring 3 October 2011
  • Count 4: Fixed term of 12 months from 4 July 2009, expiring 3 July 2010
  • Total effective sentence: 2 years and 7 months, with a non-parole period of 1 year and 10 months and a balance of term of 9 months; parole eligibility from 3 January 2011

Key Takeaways

  • A sentencing judge's finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 must be carried through consistently into the final sentence structure, including after partial accumulation of multiple counts; failure to do so is a sentencing error.
  • Under s 52A of the Crimes Act 1900, disregard for public safety is an inherent element of dangerous driving and cannot be treated as a separate statutory aggravating factor at sentencing.
  • Where an offender has been charged with separate counts for separate victims, applying "multiple victims" as an additional aggravating factor constitutes impermissible double counting.
  • An applicant's intellectual disability is a relevant mitigating consideration in sentencing, informing both the assessment of rehabilitation prospects and the structure of the sentence, even where the disability does not straightforwardly diminish moral culpability.
  • Sentencing courts may refer to the devastating impact of fatal offences on victims' families to characterise seriousness and the community's interest in retribution, without that reference necessarily constituting an impermissible application of a statutory aggravating factor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 21A(2)(i), 21A(2)(m), 44
- Criminal Appeal Act 1912 (NSW)

Cases:
- Ayton v R [2008] NSWCCA 13
- Bhuiyan v R [2009] NSWCCA 221
- Binnie v R [2010] NSWCCA 14
- R v Elchami (NSWCCA, 15 December 1995, unreported)
- R v Errington [2005] NSWCCA 348
- R v Hei Hei [2009] NSWCCA 87
- R v Hemsley [2004] NSWCCA 228
- R v Jurisic (1998) 45 NSWLR 209
- R v Palu [2002] NSWCCA 381
- R v Price [2004] NSWCCA 186
- R v Whyte [2002] NSWCCA 343
- TG v R [2010] NSWCCA 28
- Whybrow v R [2008] NSWCCA 270