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Court of Criminal Appeal 1 October 2014

R v Williams

[2014] NSWCCA 200

HomicideTraffic & driving
CRIMINAL LAW SENTENCE APPEAL CAUSING DEATH BY DANGEROUS DRIVING CROWN APPEAL RESPONDENT ENGAGED IN STREET RACING EXCESSIVE SPEED

Citation: R v Williams [2014] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 1 October 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J

Background

The respondent pleaded guilty on the morning of his trial to causing death by dangerous driving under s 52A(1) of the Crimes Act 1900, an offence carrying a maximum of 10 years' imprisonment. The plea arose from events on the night of 19 July 2012, when the respondent drove his Holden Commodore at speeds between 105 and 110 km/h on a wet, 80 km/h road in Newcastle, engaged in competitive driving with at least one other vehicle. He lost control on a sweeping left-hand bend and struck a vehicle driven by Ms Joanne Warburton, who died at the scene from her injuries. Her son, travelling behind her, witnessed the collision.

The District Court at Newcastle sentenced the respondent to a total term of 2 years and 3 months, with a non-parole period of 1 year and 4 months. The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate.

  • Whether the sentence imposed by the District Court was manifestly inadequate given the objective seriousness of the offending and the level of moral culpability found
  • Whether the guideline judgment in R v Whyte [2002] NSWCCA 343 had been properly applied
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to re-sentence, given the respondent's mental health deterioration during the appeal period

Decision

The Court of Criminal Appeal found that the sentence was manifestly inadequate. The sentencing judge had correctly assessed the respondent's moral culpability as towards the higher end of the continuum, finding competitive driving at excessive speed on a wet, populated road. However, the Court concluded the sentence failed to give sufficient weight to general deterrence, which the guideline in Whyte identifies as a primary consideration in cases of this kind.

The Court acknowledged the respondent's favourable subjective circumstances: he was 20 at the time of the offence, had no prior convictions, had been continuously employed, showed genuine remorse, and had the support of his family. Significant weight was also given to his guilty plea, although its utilitarian value was limited by the late timing. Nonetheless, these matters did not justify a sentence as low as that imposed.

On the question of residual discretion, the Court considered the respondent's deteriorating mental health during the appeal period. Applying the approach taken in R v Reeves [2014] NSWCCA 154, the Court determined that the mental health evidence warranted some moderation of the extent of intervention, but not a refusal to re-sentence altogether. The factors in this case were substantially less compelling than those in Reeves, and both specific and general deterrence required that the sentence be increased.

Orders Made

  • Appeal allowed
  • Sentence imposed by Judge Wilson SC on 14 May 2014 quashed
  • Respondent re-sentenced to imprisonment with a non-parole period of 1 year and 9 months, commencing 14 May 2014 and expiring 13 February 2016, with a balance of term of 11 months expiring 13 January 2017

Key Takeaways

  • The Court of Criminal Appeal confirmed that general deterrence is a primary sentencing consideration in cases of causing death by dangerous driving, consistent with the guideline in R v Whyte, and a favourable subjective case does not displace that principle.
  • Competitive driving at excessive speed on a public road in wet conditions, resulting in the death of an innocent driver, was assessed as falling towards the higher end of the moral culpability continuum, even where not of the very highest level.
  • A deterioration in the respondent's mental health during a Crown appeal period may justify moderation of the extent of re-sentencing intervention, but does not automatically enliven the residual discretion to decline re-sentencing altogether.
  • Late guilty pleas, entered on the morning of trial, carry limited utilitarian value and cannot be treated as attracting the full discount ordinarily available for an early plea.
  • Under s 5D of the Criminal Appeal Act 1912, a Crown appeal targets manifest inadequacy; the Court's primary purpose is to provide sentencing guidance, but the sentence actually imposed on the respondent retains independent significance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A(1)

Cases:
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Reeves [2014] NSWCCA 154
- R v O'Connor [2014] NSWCCA 53
- R v Nguyen [2008] NSWCCA 13
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Regina v Paul Musumeci (Court of Criminal Appeal, unreported, 30 October 1997)