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Court of Criminal Appeal 5 June 2013

Stanyard v R

[2013] NSWCCA 134

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL MORAL CULPABILITY PRINCIPLE OF TOTALITY

Citation: Stanyard v R [2013] NSWCCA 134
Court: Court of Criminal Appeal of NSW
Date: 5 June 2013
Judge(s): Bathurst CJ, Fullerton J (with reasons), Campbell J

Background

The applicant was convicted after a judge-alone trial on two counts of driving in a manner dangerous to the public occasioning grievous bodily harm, contrary to s 52A(3) of the Crimes Act 1900. The offending arose from an incident on 7 February 2009 at a private park at Kurnell, where recreational four-wheel driving over sand dunes was permitted. The applicant drove his four-wheel drive convertible over a steep sand dune, causing the vehicle to become airborne at the crest. On landing and rolling, two rear-seat passengers were seriously injured: one was rendered a tetraplegic and the other suffered broken arms. The vehicle had no roll bars fitted.

At the sentencing in the District Court, the applicant received partly accumulated sentences totalling an effective term of 5 years and 6 months, comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years. Special circumstances were found on both counts. The sentencing judge assessed the applicant's moral culpability as high.

The applicant sought leave to appeal that sentence to the Court of Criminal Appeal on three grounds.

  • Whether the sentencing judge wrongly characterised the applicant's moral culpability as high
  • Whether the sentencing judge failed to apply the principle of totality when accumulating the individual sentences
  • Whether the individual sentences, and the overall sentence, were manifestly excessive

Decision

On the question of moral culpability, Fullerton J found that the sentencing judge had made a limited error by treating the risk posed to the passengers as a standalone aggravating circumstance, when that risk was already an inherent element of the offence itself. However, the Court was not satisfied that this error had materially affected the sentences ultimately imposed, given the weight of other uncontested aggravating factors. No lesser sentences were warranted in law under s 6(3) of the Criminal Appeal Act 1912.

On totality, Fullerton J accepted that the sentencing judge's reasons were brief on this point, but found no failure to apply the principle. The partial accumulation of sentences was a deliberate sentencing choice that reflected the objective gravity of two distinct episodes of dangerous driving causing serious harm to two different victims. The court was not persuaded that the overall sentence was disproportionate to the totality of the criminality involved.

On manifest excess, the Court found that the sentences fell within the available range, noting that the maximum penalty for each count was 7 years imprisonment. Fullerton J confirmed that guideline judgments, including the numerical guidance in R v Whyte, are not prescriptive minimum or standard sentencing regimes. They are persuasive tools aimed at achieving consistency, not absolute benchmarks. The finding of special circumstances on both counts had already reduced the custodial component and extended the parole period considerably.

The Court granted leave to appeal but dismissed the appeal on all grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that guideline judgments, such as that in R v Whyte, are persuasive guides aimed at sentencing consistency, not prescriptive minimums or standard sentencing regimes binding on sentencing judges.
  • Where a sentencing judge treats an element intrinsic to an offence as a separate aggravating factor, that constitutes an error, but it will not lead to resentencing if the error is not reflected in any material way in the sentence actually imposed.
  • In dismissing the appeal on totality grounds, the Court found that partial accumulation of sentences for offences involving two distinct victims and two serious injury outcomes was an appropriate exercise of the sentencing discretion, not a failure to apply the totality principle.
  • A sentence is not manifestly excessive simply because the Court of Criminal Appeal might have exercised its sentencing discretion differently; the applicable test is whether the sentence was unreasonable or plainly unjust.
  • Findings of special circumstances on individual counts, which alter the statutory ratio between non-parole period and balance of term, are a relevant consideration when assessing whether an overall sentence is excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Read [2010] NSWCCA 78
- R v Stanyard [2012] NSWDC 78 (the trial decision under appeal)
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Wilson [2005] NSWCCA 219