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Court of Criminal Appeal 23 November 2011

Justin Smith v R

[2011] NSWCCA 290

HomicideTraffic & driving

Citation: Smith v R [2011] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 23 November 2011
Judges: McClellan CJ at CL, Blanch J, Hislop J

Background

The appellant pleaded guilty in the Albury District Court to aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. The offence arose from a late-night crash in Albury in September 2009, in which the appellant drove his utility vehicle at between 80 and 100 km/h in a 60 km/h zone, ran a red light, and then attempted to negotiate a bend signposted at 35 km/h at a speed of approximately 92 km/h. The vehicle left the road, struck a culvert and rolled over.

The appellant's girlfriend, who was a passenger, died at the scene from massive head injuries. The appellant was found to have a blood alcohol concentration of 0.188 grams per 100 millilitres and had told officers at the scene that he had been showing off. He had a prior criminal and driving history, including multiple PCA offences, and his Victorian driver's licence was disqualified at the time of the offence.

The District Court sentenced the appellant to eight years imprisonment with a non-parole period of six years. He sought leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge had made specific errors in his approach to aggravating factors and remorse.

  • Whether the sentencing judge erred by treating the appellant's remorse over the death of his intimate partner as only a minor mitigating factor
  • Whether road signs, including the red traffic light and the advisory speed sign, were properly characterised as "warnings" for the purpose of identifying an aggravating factor
  • Whether the judge erred in finding "competitive driving" (or showing off) as an aggravating factor
  • Whether the overall sentence of eight years with a six-year non-parole period was manifestly excessive, having regard to comparable cases and sentencing statistics

Decision

Remorse and the intimate relationship: The Court rejected the first two grounds of appeal. Blanch J found that the sentencing judge had in fact allowed some consideration for the appellant's remorse and contrition arising from his grief at the death of his girlfriend, consistent with the principle in Hughes v R (2008) 185 A Crim R 155 that leniency may flow not from the relationship itself but from the quality and depth of remorse it generates. The authorities impose no fixed weight on this factor, and no error was demonstrated in the judge's assessment of it as minor relative to other sentencing factors.

Aggravating factors: The Court dismissed the challenges to the aggravating factors. Running a red light at excessive speed immediately before the crash was properly regarded as a warning the appellant ignored. The advisory speed sign for the bend was equally a warning, consistent with the approach taken in Preston v R [2011] NSWCCA 25, where road signs and markings were treated as warnings. The ground relating to "competitive driving" was abandoned by the appellant, given that R v Whyte (2002) 55 NSWLR 252 expressly lists "showing off" as an established aggravating factor.

Manifest excess: The Court upheld this ground. Blanch J reviewed the guideline in R v Whyte, sentencing statistics from the Judicial Commission, and a table of 16 comparable cases from 2003 to 2010. That review revealed the eight-year sentence to be the highest imposed for a single count under s 52A(2), with only seven per cent of offenders receiving a sentence as high as eight years and only two per cent receiving a non-parole period as high as five years. While statistics do not define the available range and each case turns on its own facts (as affirmed in R v Vaeila and consistent with Muldrock v The Queen [2011] HCA 39), the Court found that consistency of approach in sentencing for these offences warranted a reduction.

The Court nonetheless emphasised the seriousness of the offending. McClellan CJ at CL observed that persons who drive heavily intoxicated can expect a severe penalty, and that the Court's intervention was justified solely by the discrepancy with the established range of sentences, not by any diminished view of the conduct itself.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant re-sentenced to a total term of seven years imprisonment, comprising a non-parole period of five years and three months from 19 September 2009, with a balance of term of 21 months; eligible for parole release on 18 December 2014
  • Conviction for driving while unlicensed confirmed
  • Disqualification from driving for five years from 18 September 2015 confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that remorse arising from the death of an intimate partner is a recognised mitigating factor in sentencing for dangerous driving causing death, but the weight to be given to it remains a matter of judicial discretion rather than a prescribed quantum.
  • Road signs and traffic signals, including advisory speed signs and red traffic lights, can properly be characterised as "warnings" for the purpose of identifying an aggravating factor under the principles established in R v Whyte and Preston v R.
  • Sentencing statistics and comparative cases serve as guides to the range previously imposed but do not define the range available to a sentencing court; that range is defined by the statutory maximum and the gravity of the offence, consistent with Muldrock v The Queen.
  • Where a sentence for a single count under s 52A(2) is the highest on record and departs substantially from the established pattern of comparable cases, the Court of Criminal Appeal may intervene to maintain consistency, even where the offending itself is objectively serious.
  • Under the R v Whyte guideline, multiple concurrent aggravating features, including high speed, significant intoxication, showing off, and ignoring warnings, justify a substantial custodial sentence for aggravated dangerous driving occasioning death, particularly where the offender lacks good character.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(2)

Cases
- Hughes v R (2008) 185 A Crim R 155
- Preston v R [2011] NSWCCA 25
- R v Whyte (2002) 55 NSWLR 252
- R v Vaeila [2010] NSWCCA 113
- Muldrock v The Queen [2011] HCA 39
- Markarian v The Queen (2006) 228 CLR 357
- Bombadieri v The Queen (2010) 203 A Crim R 89
- R v Ryan (2003) 141 A Crim R 403
- R v Woodward [2001] NSWCCA 90
- R v Cousins [2002] NSWCCA 81
- Thompson v The Queen [2007] NSWCCA 299
- Regina v Rayner [2002] NSWCCA 309