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Court of Criminal Appeal 2 August 2013

R v Elkassir

[2013] NSWCCA 181

HomicideTraffic & driving
CRIMINAL LAW SENTENCING CROWN APPEAL HIGH MORAL CULPABILITY STRONG SUBJECTIVE CASE SELF PUNISHMENT

Citation: R v Elkassir [2013] NSWCCA 181
Court: Court of Criminal Appeal, New South Wales
Date: 2 August 2013
Judge(s): Emmett JA; R A Hulme J; R S Hulme AJ

Background

The respondent, an 18-year-old at the time of the offence, pleaded guilty to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 14 years' imprisonment. The aggravated form of the charge applied because the respondent was driving at more than 45 km/h above the speed limit.

The offence occurred after the respondent and his passenger left a hotel in Condell Park in the company of two friends travelling in a separate car. The respondent attempted to incite the other driver into a street race at a roundabout. When that challenge was declined, the respondent accelerated and overtook the other vehicle just before the crest of a hill, travelling at between 110 and 115 km/h in a 60 km/h zone. He lost control of his vehicle, which mounted the footpath and struck a bus shelter and a utility pole. The respondent's passenger, who was also his close friend, died from the injuries sustained. The respondent himself suffered multiple serious injuries.

In the District Court, Judge Flannery sentenced the respondent to three years' imprisonment with a non-parole period of only 12 months, commencing on the date of sentence. The Crown appealed, contending the sentence and in particular the non-parole period were manifestly inadequate.

  • Whether the sentencing judge erred by double counting speed as both an element of the aggravated offence and an aggravating factor going to moral culpability.
  • Whether the non-parole period of 12 months was manifestly inadequate for an offence of this seriousness.
  • Whether, even if manifest inadequacy were established, the Court should exercise its residual discretion to dismiss the Crown appeal in light of the respondent's strong subjective circumstances, including a subsequent worsening of his psychiatric condition.
  • Whether general deterrence retains importance in sentencing young offenders for serious traffic offences, having regard to the guideline judgment in R v Whyte.

Decision

The Court accepted the Crown's submission that the sentencing judge had engaged in a degree of double counting. The speed at which the respondent drove was already an element of the aggravated offence, so treating speed again as a factor raising moral culpability was erroneous. However, the judges differed slightly on the competitive driving element: Emmett JA considered the respondent's act of overtaking the other car after his race challenge was refused was a genuinely distinct aggravating factor, while R A Hulme J regarded it as adding little beyond the speed component itself.

The Court found the non-parole period of 12 months was manifestly inadequate. R A Hulme J acknowledged the offence involved high moral culpability, that general deterrence carries particular weight in aggravated dangerous driving cases under the Whyte guideline, and that the principle applies even to young offenders. The total head sentence of three years was not separately challenged as inadequate.

Despite finding manifest inadequacy in the non-parole period, R A Hulme J exercised the Court's residual discretion to dismiss the Crown appeal. The respondent presented a strong subjective case, including genuine remorse, deep and ongoing self-punishment arising from the death of his best friend, serious physical injuries suffered in the same collision, and significant pre-existing psychiatric symptoms. Critically, fresh evidence adduced on appeal from a psychologist demonstrated that the respondent's mental health had deteriorated markedly since sentencing, with depression, anxiety and stress reaching "extremely severe" levels. The Court concluded that doing justice in the particular circumstances of this case required the appeal to be dismissed.

All three judges agreed on the dismissal. Emmett JA and R S Hulme AJ each agreed with R A Hulme J's reasons and the proposed order.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • A sentencing judge errs by treating the speed of a vehicle as an aggravating circumstance of moral culpability where that speed was already an essential element establishing the aggravated form of the offence charged; that approach constitutes double counting.
  • Under the R v Whyte guideline, general deterrence carries significant weight in sentencing for aggravated dangerous driving causing death, and this principle is not displaced simply because the offender is young.
  • In dismissing the Crown appeal, the Court confirmed that its residual discretion to decline relief remains available even where manifest inadequacy is established, provided the circumstances of the individual case require it to do just to the offender.
  • A subsequent and material worsening of an offender's psychiatric condition after sentence is a relevant consideration that may be taken into account when a Court exercises its residual discretion on a Crown appeal.
  • Sufficient grounds to exercise the residual discretion existed here because of the combination of factors: the respondent's youth, genuine remorse, the self-punishing nature of having caused the death of his closest friend, serious personal injuries from the same collision, and a significantly deteriorating mental health condition.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases:
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (guideline judgment on dangerous driving)
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Bugmy v The Queen (1990) 169 CLR 525
- Power v The Queen (1974) 131 CLR 623
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Simpson (2001) NSWCCA 534; (2001) 53 NSWLR 704
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Duncan v R [2012] NSWCCA 78
- R v Hamieh [2010] NSWCCA 189
- Director of Public Prosecutions v Neethling [2009] VSCA 116; 52 MVR 422
- R v AEM Snr [2002] NSWCCA 58
- R v Baker [2000] NSWCCA 85; R v Dhanhoa [2000] NSWCCA 257
- R v Fidow [2004] NSWCCA 172; R v Ryan [2003] NSWCCA 202
- Deakin v The Queen (1984) 58 ALJR 367