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Court of Criminal Appeal 15 April 2010

R v RADLEY

[2010] NSWCCA 64

HomicideTraffic & drivingPublic order & justice offences
CRIMINAL LAW AND PROCEDURE DANGEROUS DRIVING OCCASIONING DEATH SENTENCE ORDER FOR SERVICE BY PERIODIC DETENTION VEHICLE ENGAGED IN OVERTAKING MANOEUVRE RURAL ROAD

Citation: R v RADLEY [2010] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 15 April 2010
Judge(s): Beazley JA, Grove J, Hislop J

Background

The respondent pleaded guilty in the District Court to dangerous driving occasioning death, with a further offence of doing an act to pervert the course of justice taken into account on a Form 1. The charges arose from a collision at dawn on a rural road at Mirannie, NSW, in July 2007, when the respondent attempted to overtake a vehicle and crossed into the oncoming lane, striking a motorcyclist who died at the scene. The respondent subsequently attempted to persuade witnesses to say the motorcycle, not his vehicle, had been on the wrong side of the road.

North DCJ sentenced the respondent to two years' imprisonment with a non-parole period of one year and four months, to be served by periodic detention. The Crown appealed, contending the sentence was manifestly inadequate because it failed to give proper weight to the objective seriousness of the offence.

  • Whether the sentence of imprisonment served by periodic detention was manifestly inadequate for an offence of dangerous driving occasioning death
  • Whether the sentencing judge gave proper weight to the objective seriousness of the offence
  • Whether any of the aggravating factors identified in R v Whyte were present so as to attract the guideline requiring a custodial element of not less than three years

Decision

The Court of Criminal Appeal dismissed the Crown appeal, finding the single ground of manifest inadequacy had not been established. Grove J (with whom Beazley JA and Hislop J agreed) accepted that the sentencing judge had expressly and carefully considered the objective seriousness of the offence and had correctly identified the applicable sentencing principles from Jurisic and Whyte.

The sentencing judge found the respondent's culpability arose from misjudgment rather than any deliberate or reckless disregard for road safety. Crucially, there was no breach of any road rule or restrictive signage at the point of overtaking, and the Crown conceded that none of the aggravating factors listed in Whyte were present in this case.

The Court confirmed that the Jurisic guideline permitting a non-custodial or lenient sentence in cases involving misjudgment was applicable here. Grove J also noted that a sentence served by periodic detention is not wholly non-custodial, but does carry a significant degree of leniency. The Court held that, whichever analytical approach from Thai v R was applied to assessing a sentence ordered to be served by periodic detention, the Crown's ground still failed.

The Form 1 offence of perverting the course of justice was treated by the sentencing judge as a clumsy attempt made in the heat of the moment and quickly abandoned. That characterisation was not challenged on appeal.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the Jurisic guideline does not require the word "momentary" to qualify "misjudgment" in every case, though it may be apt in some circumstances.
  • Where no aggravating factors from the Whyte schedule are present and the offending arises from misjudgment, a sentence served by periodic detention for dangerous driving occasioning death may fall within the acceptable range.
  • The Court of Criminal Appeal left open the question of which approach, as between McClellan CJ at CL and Simpson J in Thai v R, should govern the assessment of sentence adequacy where periodic detention is ordered, finding it unnecessary to resolve that difference on the facts.
  • A finding that the offender's culpability derived from misjudgment, rather than abandonment of responsibility, places a case at the lower end of the moral culpability spectrum for dangerous driving occasioning death.
  • Death of the victim is a necessary ingredient of the charge of dangerous driving occasioning death and does not itself constitute an additional aggravating factor under the Whyte framework.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Hallocoglu (1992) 27 NSWLR 67
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- Thai v R [2009] NSWCCA 314