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6
Court of Criminal Appeal 29 September 2014

R v Greaves

[2014] NSWCCA 194

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL CROWN APPEAL SENTENCE IMPOSED MANIFESTLY INADEQUATE OTHERWISE CROWN APPEAL DISMISSED.

Citation: R v Greaves [2014] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 29 September 2014
Judges: Hoeben CJ at CL; Beech-Jones J; Hamill J

Background

The respondent pleaded guilty to dangerous driving causing grievous bodily harm, along with four related summary offences, arising from a serious crash on a rural road near Leeton in March 2011. At the time of the offence, the respondent was driving well above the speed limit on a narrow, winding road with unsecured passengers in the tray of the vehicle, while over the prescribed alcohol limit and in breach of bail conditions that prohibited him from driving. After the collision, he fled the scene and consumed alcohol before returning, in an apparent attempt to mask his blood alcohol level.

The victim, who was riding in the tray, sustained catastrophic spinal injuries and was left paraplegic. In the District Court, Jeffreys DCJ sentenced the respondent to an intensive correction order (ICO) of approximately 19 months for the principal offence, and dealt with the four summary offences by conviction only under section 10A of the Crimes (Sentencing Procedure) Act 1999, imposing no additional penalty. His Honour also reduced the automatic licence disqualification period for the main offence from three years to 18 months.

The Crown appealed against the sentence on multiple grounds, arguing that it was manifestly inadequate and that the sentencing judge had failed properly to assess the respondent's moral culpability and the objective seriousness of the offending.

  • Whether the sentencing judge correctly assessed the objective seriousness of the dangerous driving offence and the respondent's level of moral culpability
  • Whether the sentence, served by way of an intensive correction order, was manifestly inadequate
  • Whether the sentencing judge gave excessive weight to subjective matters, including rehabilitation, at the expense of punishment and denunciation
  • Whether the sentencing judge erred in failing to take into account that the respondent was on bail at the time of the offences
  • Whether disposal of the four summary offences under section 10A (conviction with no further penalty) was appropriate
  • Whether the reduction of the automatic three-year licence disqualification period to 18 months was justified
  • Whether, even if the sentence were found to be manifestly inadequate, the Court should exercise its residual discretion to decline to intervene given post-sentencing circumstances

Decision

The Court found that the sentencing judge did err in failing to properly determine the respondent's moral culpability and the objective seriousness of the offending. The combination of excessive speed, alcohol, driving while suspended and on bail, presence of unsecured passengers, and the failure to stop after the collision placed the conduct at a high level of culpability. The Court accepted that the sentence for the principal offence was manifestly inadequate, and that the application of section 10A to the summary offences was also unjustified given the gravity of those matters individually and in combination.

Despite those findings, the Court exercised its residual discretion not to resentence the respondent on the principal offence or the summary matters (other than the disqualification). A very substantial and unexplained delay in the sentencing proceedings, which was not attributable to the respondent, had allowed the respondent to achieve a remarkable degree of rehabilitation. The Court found that imposing a custodial sentence at that late stage carried a substantial risk of undoing that rehabilitation. These exceptional circumstances, considered together, justified declining to impose a more severe sentence notwithstanding the manifest inadequacy.

On the question of licence disqualification, however, the Court declined to exercise the residual discretion in the respondent's favour. The reduction of the automatic three-year disqualification for the dangerous driving offence to 18 months was not justified, and the Court set aside that order, restoring the automatic three-year disqualification period running from 4 March 2014. Beech-Jones J, with whom Hamill J agreed, noted that the various automatic disqualification periods arising from the summary offences also applied and could not be accumulated so as to extend beyond the automatic periods provided by statute.

Orders Made

  • The Crown appeal against sentence on the principal offence (dangerous driving causing grievous bodily harm) was dismissed, with the Court exercising its residual discretion not to resentence
  • The Crown appeal against the section 10A disposals for the four summary offences was dismissed, again on the basis of residual discretion
  • The court-imposed disqualification period of 18 months for the dangerous driving offence was set aside
  • The automatic disqualification period of three years for that offence was restored, running from 4 March 2014

Key Takeaways

  • A manifestly inadequate sentence does not automatically result in resentencing on a Crown appeal. The Court of Criminal Appeal confirmed that it retains a residual discretion to decline to intervene where exceptional circumstances, such as extraordinary unexplained delay in sentencing proceedings and substantial rehabilitation achieved in the interim, make resentencing unjust.
  • Where delay in sentencing is not attributable to the offender and has produced significant rehabilitative progress, those factors can weigh heavily against interference with the sentence even where the original penalty was demonstrably inadequate.
  • Automatic disqualification periods under the Road Transport legislation are not a matter of discretion. Reduction of an automatic three-year disqualification for a dangerous driving offence to 18 months was unjustified on the facts and was corrected by the Court, with the automatic period restored.
  • Application of section 10A of the Crimes (Sentencing Procedure) Act 1999 (conviction with no penalty) to serious summary traffic offences forming part of a connected course of dangerous conduct attracted criticism from the Court, though residual discretion was ultimately exercised to leave those disposals undisturbed.
  • Objective seriousness in dangerous driving cases requires express consideration of all aggravating features of the driving conduct. Failing to assess moral culpability as a discrete step in the sentencing exercise constitutes error, even if the overall sentence is ultimately left intact on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(2), 10A
- Criminal Appeal Act 1912 (NSW), ss 5DB, 5DB(5)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(2)(a)
- Road Transport (General) Act 2005 (NSW), s 188(2)(d)
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 9(3)(a), 16, 70(1)

Cases:
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Gonzales v R [2006] NSWCCA 4
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hei Hei v R [2009] NSWCCA 87
- Ngati v R [2014] NSWCCA 125
- R v Jurisic [1998] NSWSC 423; 45 NSWLR 209
- R v Muldrock [2011] HCA 39; 244 CLR 120
- R v TG [2010] NSWCCA 28
- R v Veatufunga [2007] NSWCCA 54
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- RTA v Tamara O'Sullivan & Ors [2011] NSWSC 1258
- Stanyard v R [2013] NSWCCA 134
- Tzanis v R [2005] NSWCCA 274