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Court of Criminal Appeal 9 August 2012

WW v R

[2012] NSWCCA 165

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL

Citation: WW v R [2012] NSWCCA 165
Court: Court of Criminal Appeal, New South Wales
Date: 9 August 2012
Judges: Hoeben JA (lead judgment); Johnson J and Button J (agreeing)

Background

The applicant was convicted following a jury trial of driving in a manner dangerous occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). He had pleaded guilty before trial to a related charge of failing to stop after occasioning death, contrary to s 52AB(1) of the same Act. Both offences carry a maximum of 10 years' imprisonment.

The offences arose from a collision on the morning of 17 October 2009, when the applicant struck and killed an experienced cyclist on a straight, clear, rural road with visibility of up to 800 metres. Telephone records indicated the applicant had sent a text message shortly before the collision. Despite pleas from his passenger, the applicant drove approximately 7.2 kilometres from the scene before crashing into a tree. He called emergency services only after a series of phone calls with family members.

At sentencing, the District Court imposed a non-parole period of 4 years (with a balance of term of 3 years) for the dangerous driving count, and a fixed term of 2 years and 9 months for the failure to stop, producing an overall non-parole period of 5 years. The applicant sought leave to appeal on eight grounds.

  • Whether the sentencing judge erred in finding, to the criminal standard, that the applicant sending a text message was causally connected to the collision.
  • Whether the applicant's ADHD diagnosis was properly taken into account as a contributing factor to the offending.
  • Whether the applicant's ADHD was properly considered in relation to the likely hardship of imprisonment.
  • Whether the applicant's youth was given adequate weight as a mitigating factor.
  • Whether the sentencing judge properly applied the guideline judgment in Regina v Whyte [2002] NSWCCA 343, which provides guidance on sentencing for culpable driving causing death.
  • Whether the sentence for dangerous driving causing death was manifestly excessive.
  • Whether the sentence for failing to stop was manifestly excessive.
  • Whether the overall sentence was manifestly excessive.

Decision

Text message and causation. The Court held that the sentencing judge was entitled to find beyond reasonable doubt that the applicant's use of his phone to send a text message was causally connected to the collision. The road was straight with clear sight lines extending hundreds of metres, the day was sunny, and no other explanation for the collision was apparent. The finding of causal connection was open on the evidence.

ADHD and the psychological report. The Court found no error in the sentencing judge's treatment of the applicant's ADHD. The psychological report was considered, but its conclusions did not establish that ADHD materially contributed to the commission of the offences or that the applicant's likely experience of imprisonment would be significantly harder because of the condition. The sentencing judge was not obliged to accept the report's characterisations uncritically.

Youth. The Court accepted that youth is a recognised mitigating factor, but found the sentencing judge had addressed it. The applicant's youth did not, in the circumstances of this case, outweigh the gravity of the offending or justify a lesser sentence.

The Whyte guideline and manifest excess. The Court confirmed that the guideline in Regina v Whyte remained relevant but could not be applied mechanically by reference to sentence statistics from other cases. Consistent with the High Court's guidance in Hili v The Queen, past sentencing patterns provide a useful yardstick but do not fix the permissible range for future sentencing. The sentencing judge's focus on the particular facts before him, including high moral culpability, was appropriate. The Court was not persuaded that either the individual sentences or the overall sentence were manifestly excessive, and all eight grounds of appeal failed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is entitled to make adverse factual findings to the criminal standard (beyond reasonable doubt) during sentencing, including findings about causal factors not formally proved at trial, provided the evidence supports them.
  • Where a psychological report raises a diagnosis such as ADHD, the sentencing judge is not required to accept its conclusions about the extent of that condition's contribution to offending or to the experience of imprisonment without critical assessment.
  • Under the approach confirmed in Hili v The Queen (2010) 242 CLR 520, past sentencing patterns in comparable cases provide guidance and a yardstick, but they do not define mandatory upper or lower limits for a future sentence.
  • The Court of Criminal Appeal confirmed that the Regina v Whyte guideline judgment for culpable driving causing death is not to be applied by counting statistics; the sentencing judge must focus on the actual facts and moral culpability in the case at hand.
  • In dismissing the appeal, the Court affirmed that a total non-parole period of 5 years for a combination of dangerous driving causing death and failure to stop was not manifestly excessive where moral culpability was found to be high.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c) and 52AB(1)

Cases
- Regina v Whyte [2002] NSWCCA 343; 33 NSWLR 202
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
- Aoun v R [2011] NSWCCA 284
- Hedges v Regina [2011] NSWCCA 263
- Preston v Regina [2011] NSWCCA 25
- R v AB [2011] NSWCCA 229
- TG v Regina [2010] NSWCCA 28
- R v Shumack [2008] NSWCCA 313; 191 A Crim R 513
- Regina v Errington [2005] NSWCCA 348; 147 A Crim R 553
- Regina v Berg [2004] NSWCCA 300
- R v Gardiner [2004] NSWCCA 365
- R v Woodland [2007] NSWCCA 29
- R v Khatter [2000] NSWCCA 32
- R v Scott [1999] NSWCCA 233
- R (Cth) v Petroulias (No 36) [2008] NSWSC 626