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Court of Criminal Appeal 16 October 2012

R v Winter

[2012] NSWCCA 218

Also reported as (2012) 225 A Crim R 572
HomicideTraffic & driving
CRIMINAL LAW CROWN APPEAL SENTENCE SENTENCE MANIFESTLY INADEQUATE RESPONDENT RE SENTENCED

Citation: R v Winter [2012] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 16 October 2012
Judges: McClellan CJ at CL, Johnson J, Garling J

Background

The respondent was a delivery driver who, on 7 October 2010, drove a work van and mounted a footpath, killing two pedestrians. Earlier that morning she had suffered a near-fainting episode at a medical centre and received injections of morphine and Maxolon. A nurse directed her not to drive for the rest of the day. The respondent lied to the nurse, claiming a colleague would drive her, and then drove herself home.

After arriving home, the respondent smoked cannabis and, approximately 35 to 45 minutes later, drove the van to return it to her employer. About an hour and a quarter into that journey, her vehicle failed to follow a curve in the road, mounted a footpath outside a tavern, and struck two women who were waiting to cross at a pedestrian crossing. Both women died from their injuries.

Critically, the respondent had previously lost consciousness while driving a work van and had crashed into a letterbox. She had told her housemate about that incident. Blood tests taken after the collision confirmed the presence of cannabis and a pharmacologist concluded she was impaired by cannabis, with possible additional impairment from an uncontrolled medical condition capable of producing blackouts.

  • Whether the sentencing judge erred by finding that epilepsy caused or contributed to the offences
  • Whether the sentencing judge failed to have adequate regard to all circumstances of the respondent's driving on the day of the offences
  • Whether the total sentence of 4 years imprisonment with a 2-year non-parole period was manifestly inadequate for two counts of manslaughter

Decision

McClellan CJ at CL (with Johnson and Garling JJ agreeing) upheld the Crown appeal on the ground of manifest inadequacy. The Court found that the sentencing judge had erred in treating epilepsy as a causative factor in the offences. The respondent had no established diagnosis of epilepsy, and the real significance of her medical history was that she knew she was at risk of losing consciousness while driving.

The Court placed considerable weight on the respondent's prior blackout while driving. She was fully aware of that risk when she chose to drive on the day of the offences, having already received a medical direction not to drive and having then also consumed cannabis. These circumstances pointed to a high degree of moral culpability, not a reduced one.

The Court noted the respondent's substantial mitigating factors, including her early guilty plea (attracting a 25% discount), remorse, and evidence of poor health and deterioration during custody. However, these did not bring the original sentence within an acceptable range. The original 4-year aggregate sentence was found to be so disproportionate to the gravity of the offences as to require intervention.

On resentencing, the Court imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years across the two counts of manslaughter, structured with partial concurrency to reflect the two distinct offences while acknowledging totality principles.

Orders Made

  • Appeal upheld and sentences imposed in the District Court quashed.
  • Count 1: Non-parole period of 4 years commencing 17 November 2011, concluding 16 November 2015, with an additional term of 3 years expiring 16 November 2018.
  • Count 2: Non-parole period of 4 years commencing 17 November 2013, concluding 16 November 2017, with an additional term of 3 years expiring 16 November 2020.
  • Aggregate sentence: 9 years imprisonment with a non-parole period of 6 years.

Key Takeaways

  • Moral culpability in dangerous driving manslaughter is significantly elevated where a driver knowingly proceeds behind the wheel with awareness that they may lose consciousness, particularly in the face of an express medical direction not to drive.
  • A prior blackout while driving, known to the respondent, was treated as a central aggravating feature rather than a matter that reduced her responsibility for the fatal collision.
  • The Court of Criminal Appeal confirmed that Crown appeals under s 5D of the Criminal Appeal Act 1912 serve a principled sentencing guidance function, and the Court will intervene where a sentence falls definitively outside the appropriate range for the offence.
  • Substantial mitigating factors, including an early guilty plea with a 25% discount, genuine remorse, and deteriorating health in custody, were given weight but were insufficient to justify a sentence as low as 4 years for the killing of two people.
  • Where a sentencing judge makes a factual finding unsupported by the evidence, such as attributing the driving episode to epilepsy without an established diagnosis, that error can ground appellate intervention and resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Everett v R (1994) 181 CLR 295
- Gillett v R [2006] NSWCCA 370; 166 A Crim R 419
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Griffiths v R (1977) 137 CLR 293
- R v Cramp [2004] NSWCCA 264
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Jurisic (1998) 45 NSWLR 209
- R v Wall [2002] NSWCCA 42; (2002) 71 NSWLR 692
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Woodbridge v R [2010] NSWCCA 185; (2010) 208 A Crim R 503