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121
Court of Criminal Appeal 6 February 2012

R v Millwood

[2012] NSWCCA 2

HomicideDrugsTraffic & driving
CRIMINAL LAW CROWN APPEAL SENTENCING SENTENCING GUIDELINES PLEA OF GUILTY DANGEROUS DRIVING OCCASIONING DEATH

Citation: R v Millwood [2012] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 6 February 2012
Judges: Bathurst CJ, Simpson J, Adamson J

Background

The respondent pleaded guilty in the District Court at Lismore to one count of aggravated dangerous driving occasioning death and one count of aggravated dangerous driving occasioning grievous bodily harm, both arising from the same incident in the early hours of 18 July 2010. The single circumstance of aggravation in each count was that the respondent's driving ability was very substantially impaired by a combination of alcohol and cannabis. At the time, the respondent held only a provisional licence, which prohibited him from driving with any alcohol in his bloodstream at all, and from driving high-performance vehicles.

The incident occurred in Byron Bay when the respondent, after being removed from a hotel for intoxication and aggressive behaviour, drove a turbocharged Volvo at speeds estimated between 91 and 109 km/h in a 50 km/h zone. He picked up two hitchhikers, lost control on a bend, and collided with a tree. One passenger, Ben Donohoe, was thrown through the rear window and died from his injuries. The other passenger, Dylan Garft, sustained serious injuries including fractured ribs, a punctured lung, fractures to his shoulder blade and ankle, and an eye injury requiring surgery. The respondent's blood alcohol level at the time of the crash was estimated at between 0.150 and 0.176 mg per 100 ml, and his blood also contained ecstasy, cannabis, and diazepam.

Black DCJ in the District Court sentenced the respondent to an aggregate term of five years' imprisonment with a non-parole period of three years and nine months. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate.

  • Whether the aggregate sentence of five years' imprisonment with a non-parole period of three years and nine months was manifestly inadequate for the two aggravated dangerous driving offences.
  • Whether the sentencing judge gave insufficient weight to the objective seriousness and criminality of the offences, including the need for general deterrence.
  • Whether the sentencing judge gave excessive weight to the respondent's personal circumstances, including his Indigenous background, dysfunctional upbringing, and prior trauma.
  • Whether the reduction allowed for the early plea of guilty was incorrectly assessed by reference to the strength of the Crown case rather than purely on the utilitarian value of the plea.

Decision

The Court of Criminal Appeal dismissed the Crown appeal. Simpson J (with whom Bathurst CJ and Adamson J agreed) accepted that the offences were objectively very serious and that lengthier individual and aggregate sentences could have been imposed without error. However, the Court distinguished between a sentence that could have been longer and one that was manifestly inadequate. The threshold for a successful Crown appeal on inadequacy grounds is high, and that threshold was not met here.

On the question of personal circumstances, the Court rejected the DPP's submission that the sentencing judge had devoted disproportionate attention to the respondent's background. A fair reading of the remarks on sentence showed that both the objective seriousness of the offences and the respondent's personal circumstances were addressed with considerable economy. The relevance of an offender's tragic and dysfunctional upbringing as a mitigating factor, albeit a limited one, is well established, including for Indigenous offenders, consistent with the approach taken in R v Fernando.

The Court also noted a potential error in the plea discount calculation. The sentencing judge appeared to have reduced the discount for the guilty plea partly on the basis that the Crown case was strong. The strength of the Crown case may be relevant to whether a plea reflects genuine remorse, but it is not relevant to the utilitarian value of the plea, which is the proper basis for identifying the percentage reduction. The Court observed this may have resulted in a lesser discount than the respondent would otherwise have received, which weighed against a finding of manifest inadequacy.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the threshold for a successful Crown appeal on grounds of manifest inadequacy is demanding. The fact that a longer sentence could have been imposed without error does not, by itself, establish that the sentence actually imposed was manifestly inadequate.
  • A dysfunctional and traumatic personal background remains a relevant mitigating consideration in sentencing, including for offenders with an Indigenous background, consistent with the long-standing principle in R v Fernando. Its weight is limited, but it is a legitimate factor for a sentencing court to take into account.
  • Under the principles established in R v Thomson; R v Houlton, the utilitarian value of an early guilty plea is assessed independently of the strength of the Crown case. The strength of the evidence may inform whether a plea reflects remorse, but it is not the correct basis for reducing the quantum of the plea discount.
  • In dismissing the appeal, the Court observed that the plea discount may actually have been calculated too conservatively, which reinforced the conclusion that the overall sentence was not manifestly inadequate.
  • Aggravating circumstances for dangerous driving offences under s 52A of the Crimes Act 1900 include driving under the combined influence of drugs and alcohol, holding a provisional licence, and breaching vehicle restriction conditions, all of which the Court recognised as relevant to objective criminality and the need for general deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death and grievous bodily harm; aggravated offences)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44
- Criminal Appeal Act 1912 (NSW), s 5D (Crown right of appeal against sentence)
- Criminal Procedure Act 1986 (NSW), s 166 (back-up charges)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Fernando (1992) 76 A Crim R 58
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Berg [2004] NSWCCA 300
- R v AB [2011] NSWCCA 229