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Court of Criminal Appeal 4 July 2012

Spark v R

[2012] NSWCCA 140

HomicideDrugsTheft & propertyTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE MANSLAUGHTER RECKLESS DRIVING STOLEN VEHICLE POLICE PURSUIT

Citation: Spark v R [2012] NSWCCA 140
Court: Court of Criminal Appeal, NSW
Date: 4 July 2012
Judges: Macfarlan JA, Fullerton J, Grove AJ

Background

The applicant pleaded guilty in the Local Court to two counts of manslaughter arising from events on 6 September 2008. He drove a stolen Mazda RX8 at extreme speed on wet roads in the Windsor area, under the combined influence of methylamphetamine and amphetamines, and having not slept for approximately two days. Police activated a pursuit, which was terminated after 54 seconds and 2.2 kilometres, but the applicant continued driving at speeds well in excess of the applicable limit.

The applicant crossed onto the incorrect side of the road and collided head-on with a vehicle being driven by a mother who was transporting her 18-year-old daughter to work. Both died instantly. The applicant had never held a driver's licence and had been using approximately 3.5 grams of amphetamine daily in the month preceding the offences.

In the District Court, the sentencing judge imposed an effective total sentence of 15 years imprisonment, comprising a non-parole period of 11 years and 3 months with a parole period of 3 years and 9 months. Two further offences (aggravated break and enter, and taking and driving a conveyance) were taken into account on a Form 1. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by failing to give effect to a finding of special circumstances when structuring the non-parole and additional term portions of the sentence
  • Whether the sentencing judge erred in characterising the offending as reflecting a higher degree of criminality than comparable cases
  • Whether extra-curial punishment (harm suffered by the applicant as a result of the collision and his injuries) was given sufficient weight
  • Whether the overall sentence was manifestly excessive

Decision

The Court, with Fullerton J writing the principal judgment (Macfarlan JA and Grove AJ agreeing), granted leave to appeal but dismissed the appeal on all grounds.

On the special circumstances ground, the Court accepted that the sentencing judge had made a finding of special circumstances but found that her Honour had not in fact failed to give effect to it. The ratio of parole period to non-parole period across the combined sentence demonstrated that the sentencing judge had adjusted the additional term accordingly, and no error was established in that exercise.

On the comparative criminality ground, the Court reviewed a range of manslaughter cases involving vehicle pursuits and dangerous driving. It found that the sentencing judge was entitled to distinguish the applicant's offending on the basis of its particular features: sustained high-speed driving across a distance of more than five kilometres, multiple instances of overtaking on the incorrect side of the road, wet conditions, extreme drug impairment, the absence of any licence, and the continuation of dangerous driving well after police terminated the pursuit. The sentencing judge's assessment that the offending sat at the higher end of seriousness was open on the evidence.

Regarding extra-curial punishment, the Court accepted that the applicant's injuries and hospitalisation had been acknowledged by the sentencing judge, and no error in the weight attributed to that factor was demonstrated. On the question of remorse and its relationship to the guilty plea discount, the Crown submitted that remorse could only operate as a mitigating factor insofar as it coincided with a positive finding that the offender was unlikely to reoffend and had good prospects of rehabilitation. The Court accepted that submission, noting that the sentencing judge had expressed herself in qualified terms on rehabilitation and that no more lenient sentence was warranted in all the circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not intervene in a sentencing exercise unless error of the kind described in House v R (1936) 55 CLR 499 is established; questions of weight given to individual factors remain for the sentencing judge.
  • A finding of special circumstances does not automatically produce a fixed outcome in sentence structure; the Court examined the overall sentence to determine whether the sentencing judge had in fact given effect to the finding, rather than focusing on whether she had expressly stated she was doing so.
  • Where an offender's criminality involves multiple aggravating features taken together (drug impairment, unlicensed driving, extreme speed, wet conditions, continuation after pursuit termination), a sentencing court is entitled to place that offending above comparable cases in terms of objective seriousness.
  • Remorse operates as a mitigating factor most effectively when it is accompanied by a positive finding of reduced likelihood of reoffending and genuine rehabilitation prospects; without such a finding, its weight in reducing an otherwise appropriate sentence may be limited.
  • Extra-curial punishment suffered by an offender (injuries sustained in the same incident giving rise to the offence) is a recognised sentencing consideration, but its weight is a matter for the sentencing court and will not readily ground appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1), 112(2), 154A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Case Conferencing Trial Act 2008 (NSW)

Cases:
- House v R [1936] HCA 40; 55 CLR 499
- Markarian v R [2005] HCA 25; 228 CLR 357
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
- Butters v R [2010] NSWCCA 1
- Caristo v R [2011] NSWCCA 7
- Kalache v R [2011] NSWCCA 210
- Jackson v R [2010] NSWCCA 162
- Maglis v R [2010] NSWCCA 247
- Lawler v R [2007] NSWCCA 85; 169 A Crim R 415
- Whybrow v R [2008] NSWCCA 270
- R v Cameron [2005] NSWCCA 359; 157 A Crim R 70
- R v Swan [2005] NSWCCA 252
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Cramp [2004] NSWCCA 264
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v Young [2009] NSWCCA 298
- R v Falzon [2000] NSWCCA 530