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9
Court of Criminal Appeal 22 April 2013

R v Wright

[2013] NSWCCA 82

Also reported as (2013) 229 A Crim R 245
Traffic & driving
CRIMINAL LAW APPEAL SENTENCE S 52A EFFECT ON OFFENDER MENTAL ILLNESS

Citation: R v Wright [2013] NSWCCA 82
Court: Court of Criminal Appeal, New South Wales
Date: 22 April 2013
Judge(s): Macfarlan JA, Price J, Hulme AJ

Background

The appellant pleaded guilty in the District Court at Grafton to two offences under the Crimes Act 1900: aggravated dangerous driving causing death (s 52A(2)) and aggravated dangerous driving occasioning grievous bodily harm (s 52A(4)). Both charges carried aggravating factors: driving more than 45 km/h over the speed limit and driving with a blood alcohol concentration of at least 0.157 g/100 mL.

In the early hours of 5 January 2011, the appellant drove at speeds estimated between 163 and 197 km/h along the Pacific Highway near Tyndale, New South Wales, with two young passengers: a 14-year-old girl and her 16-year-old boyfriend. After travelling approximately 38.5 kilometres in an extreme and erratic manner witnessed by multiple motorists, the appellant lost control on a bend. The 16-year-old died from massive head injuries; the 14-year-old sustained multiple fractures and suffered ongoing severe psychological harm.

The appellant was sentenced to 9 years imprisonment with a non-parole period of 5 years 3 months for count one (partially accumulated with a 3-year fixed term for count two), producing an overall sentence of 9 years 6 months with a non-parole period of 5 years 9 months. The sentencing judge applied a 25 per cent discount for the utilitarian value of the guilty pleas.

  • Whether the sentencing judge impermissibly confined the relevance of the appellant's mental illness to the question of moral culpability, rather than considering its broader effect on the appellant.
  • Whether the sentences imposed were manifestly excessive, having regard to comparable cases, the appellant's personal circumstances, and the principle that extra-curial suffering (punishment experienced outside the formal sentence) may reduce the appropriate sentence.

Decision

Ground 1: Mental illness confined to moral culpability

The Court of Criminal Appeal rejected this ground. Citing Engert (1995) and R v Vachalec [1981], the Court confirmed that mental illness is relevant to sentencing in multiple ways: it may reduce moral culpability, affect the appropriateness of general deterrence, and bear on the offender's experience of custody. Price J reviewed the sentencing remarks and found the judge had not impermissibly narrowed the inquiry. The judge had expressly considered the psychiatric evidence, acknowledged the appellant's mental illness, and addressed the impact of the sentence on the appellant.

Ground 2: Manifest excess

The Court also dismissed this ground. Price J characterised the case as "a very bad case of aggravated dangerous driving causing death," describing the appellant's conduct as "disgracefully irresponsible" and "close to the worst type of offence of its kind." The starting point of 12 years (before discount for pleas) was found to be within the legitimate exercise of the sentencing judge's discretion. The Court noted that statistical sentencing ranges are a significant guide but do not fix mandatory boundaries; Parliament, not sentencing statistics, defines the outer limits of a penalty.

The Court acknowledged the appellant sustained serious injuries in the crash and that his psychiatric condition and extra-curial suffering were mitigating factors. These had been taken into account. The partial accumulation of only 6 months on the count two sentence was also noted as itself generous to the appellant, given the seriousness of the grievous bodily harm offence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Mental illness is relevant to sentencing on multiple bases simultaneously, including moral culpability, the utility of general deterrence, and the offender's experience of imprisonment. A sentencing judge's consideration of mental illness is not impermissible merely because the judgment addresses it primarily in the context of moral culpability, provided the overall approach is lawful.
  • Statistical sentencing ranges carry significant weight as an expression of accumulated judicial experience, but they do not operate as fixed ceilings or floors. Parliament's prescribed maximum remains the authoritative outer boundary.
  • Upholding the sentence, the Court of Criminal Appeal affirmed that an undiscounted starting point of 12 years for aggravated dangerous driving causing death (maximum: 14 years) fell within the proper exercise of sentencing discretion where the circumstances were among the worst of their kind.
  • Extra-curial suffering, including serious physical injuries sustained by an offender in the same incident, is a recognised mitigating consideration in New South Wales sentencing. Its weight depends on the specific facts.
  • In dismissing the appeal, the Court treated the combination of extreme speed sustained over a lengthy distance, a blood alcohol level causing very substantial impairment, and the presence of vulnerable young passengers as placing this offending at the most serious end of the s 52A spectrum.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(2), 52A(4)

Cases
- Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161
- Director of Public Prosecutions (Cth) v De La Rosa [2010] 79 NSWLR 1; [2010] NSWCCA 194
- Duncan v R [2012] NSWCCA 78
- Engert (1995) 84 A Crim R 67
- Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Cameron (2005) 157 A Crim R 70; [2005] NSWCCA 359
- R v Cousins [2002] NSWCCA 81
- R v Howcher (2004) 146 A Crim R 371; [2004] NSWCCA 179
- R v Jaworowski (1999) 108 A Crim R 489; [1999] NSWCCA 430
- R v Koosmen [2004] NSWCCA 359
- R v Vachalec [1981] 1 NSWLR 351
- R v Vukic [2003] NSWCCA 13
- R v Woodward [2001] NSWCCA 90
- Rosenthal v R [2008] NSWCCA 149
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Thompson v R [2007] NSWCCA 299