Citation: TG v Regina [2010] NSWCCA 28
Court: New South Wales Court of Criminal Appeal
Date: 2 March 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J
Background
A 17-year-old provisional licence holder was driving four friends in the early hours of 22 October 2006 when he overtook another vehicle across double unbroken lines at over 100 km/h on a wet road at night. He then lost control on a bend, and the car travelled approximately 60 metres before striking a tree at between 95 and 111 km/h. All four passengers were killed; the driver suffered only minor injuries.
The applicant was charged with four counts of aggravated dangerous driving causing death. After a trial commenced and a jury was empanelled, negotiations between the parties led to the applicant entering pleas to alternative counts of dangerous driving causing death, each carrying a maximum of 10 years' imprisonment. The District Court imposed an aggregate sentence of 4 years with a non-parole period of 2 years, and ordered that the applicant serve his sentence as a juvenile offender until the age of 21.
The applicant sought leave to appeal against the sentences on multiple grounds, arguing that the sentencing judge made errors in assessing objective seriousness, failed to give adequate weight to mitigating factors, and should have reduced the sentence so the applicant could remain in a juvenile facility beyond the statutory age limit.
Legal Issues
- Whether the sentencing judge erred in finding the applicant's moral culpability was above mid-range seriousness
- Whether the sentencing judge impermissibly used the fact that four deaths occurred as an aggravating feature across multiple sentencing considerations
- Whether adequate weight was given to the applicant's extracurial (outside the formal punishment) suffering, youth, immaturity, and rehabilitation prospects
- Whether the sentencing judge erred in applying s 19 of the Children (Criminal Proceedings) Act 1987 in deciding the age to which the applicant should serve as a juvenile offender
- Whether the total sentence was manifestly excessive
Decision
Howie J, with whom McClellan CJ at CL and Harrison J agreed, found that none of the grounds of appeal had merit and refused leave to appeal. The Court noted that the overall sentence of 4 years was, if anything, lenient rather than excessive given the gravity of the offending.
On objective seriousness, the Court upheld the sentencing judge's finding that the driving fell above the mid-range of culpability. The applicant had exceeded his provisional speed limit, crossed double unbroken lines to overtake, and had conceded he paid little attention to speed limits or road conditions. The Court accepted that any 17-year-old of average maturity would know not to drive at excessive speed, cross unbroken lines, or fail to reduce speed before bends.
On the use of the four deaths as an aggravating factor, the Court confirmed that the number of persons killed is a recognised aggravating factor, and that partial accumulation of sentences across the four counts was the correct mechanism for reflecting total criminality. There was no double-counting error in the way the sentencing judge approached this.
On the section 19 question, the real purpose of the appeal became apparent: the applicant wanted the Court to reduce the sentence so that he could remain in a juvenile detention facility past the age at which the statutory scheme would otherwise require his transfer to an adult facility. The Court held that reducing a sentence to achieve that outcome was entirely unprincipled and declined to do so. The Court also rejected psychiatric evidence about adolescent brain development as a mitigating factor, confirming the approach taken in earlier authorities that a person old enough to be licensed to drive must be assumed capable of complying with its conditions.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the number of victims in dangerous driving cases is a legitimate aggravating factor, and partial accumulation of sentences across multiple counts is the correct method for reflecting the full extent of criminality.
- A sentence will not be reduced merely to enable a juvenile offender to remain in a juvenile detention facility beyond the age at which transfer to an adult facility would otherwise occur. Such a reduction would be unprincipled.
- Psychiatric evidence about the general immaturity of adolescent males and their tendency toward risk-taking does not operate as a mitigating factor in serious driving offences with fatal consequences, at least where the offender is of licensable age.
- In dismissing the appeal, the Court reinforced that general deterrence is a prominent sentencing consideration in fatal dangerous driving cases involving young offenders, precisely because of the known tendency of that cohort toward recklessness.
- No error was established in the sentencing judge's assessment of objective seriousness where the driving involved excessive speed, illegal overtaking manoeuvres at night on a wet road, and an admitted disregard for speed limits and road conditions.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(1) (dangerous driving causing death)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(1)
- Children (Detention Centres) Act (NSW), s 28
Cases
- R v Whyte [2002] NSWCCA 543; (2002) 55 NSWLR 252 (guideline judgment on dangerous driving)
- R v Zamagias [2002] NSWCCA 17
- Rosenthal v R [2008] NSWCCA 149
- Attorney General (No 3 of 2002) (High-Range PCA Guideline) [2004] NSWCCA 303; (2004) 61 NSWLR 305
- R v Price [2004] NSWCCA 186
- R v Janceski [2005] NSWCCA 288
- SBF v R [2009] NSWCCA 231; 53 MVR 438
- DPP v Neethling [2009] VSCA 116; (2009) 53 MVR 422