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Court of Criminal Appeal 29 September 2014

Aitken v R

[2014] NSWCCA 201

HomicideTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE DANGEROUS DRIVING OCCASIONING DEATH

Citation: Aitken v R [2014] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 29 September 2014
Judges: Hoeben CJ at CL, Adams J, R A Hulme J (with Hulme J delivering the principal judgment)

Background

An 18-year-old learner driver was sentenced in the District Court at Dubbo to 4 years and 1 month imprisonment, with a non-parole period of 2 years and 6 months, after pleading guilty to driving under the influence of alcohol occasioning the death of a passenger. The offence occurred on the night of 25 November 2011 when the applicant lost control of a utility on a bend near Mudgee, killing a close friend who was travelling with him.

The applicant had spent the afternoon drinking and drove with two passengers from Wellington to Gulgong, stopping for several hours, before continuing toward Mudgee. His blood alcohol level was 0.109, well above the zero limit applicable to learner drivers, and he was travelling at an estimated 76 to 93 km/h in a 50 km/h zone in rain and reduced visibility. A fuel tanker driver who had been dangerously overtaken was so concerned by the applicant's driving that he attempted to contact police.

The applicant sought leave to appeal his sentence, raising two grounds: that the sentencing judge wrongly treated the length of the journey as an aggravating factor, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the journey from Wellington to Gulgong (prior to the fatal leg from Gulgong to Mudgee) as part of the aggravating "length of journey" factor.
  • Whether the sentence of 4 years and 1 month imprisonment was manifestly excessive in all the circumstances.

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. The applicant had intended Mudgee as his destination from the outset, and the stop at Gulgong for several hours did not break the journey into two wholly separate trips. It was open to the judge to treat Wellington to Mudgee as one overall journey when considering how long others had been exposed to the applicant's dangerous driving.

Regarding the consumption of alcohol between Wellington and Gulgong, the Court noted that in any event this factor had little independent bearing on the sentence. The alcohol consumed during that leg was directly relevant to the applicant's level of intoxication at the time of the crash, which was already being treated as an aggravating matter. Any error in this respect, even if established, would not have materially affected the outcome.

On the second ground, the Court applied the established test from Markarian v The Queen, namely that a sentence is manifestly excessive only if it is unreasonable or plainly unjust. The Court accepted that the sentencing judge had taken a principled approach, correctly applied the guideline judgment in R v Whyte, and properly balanced the serious objective features of the offence against the applicant's relatively strong subjective case, including genuine remorse, good rehabilitation prospects, youth, and extra-curial punishment in the form of a fractured vertebra. While acknowledging the outcome was severe for the applicant, the Court held the sentence fell within the proper range of sentencing discretion.

The Court also affirmed, citing R v Musumeci, that the need for general deterrence ordinarily outweighs the fact that a young offender may already have learned their lesson, and that retribution remains a legitimate sentencing purpose.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A stop along a journey does not necessarily break it into separate legs for the purpose of assessing "length of journey" as an aggravating factor under the R v Whyte guideline; the intended destination from departure is relevant to characterising the journey as a whole.
  • Under the Markarian standard, an appellate court will not intervene in a sentence merely because it is severe; the applicant must establish the sentence is unreasonable or plainly unjust.
  • Where an alleged error in identifying an aggravating factor has little or no material bearing on the sentence ultimately imposed, it will not warrant appellate intervention.
  • In dismissing the appeal, the Court confirmed that general deterrence and retribution carry significant weight in dangerous driving cases, even where the offender is young and demonstrates genuine remorse.
  • The R v Whyte guideline judgment operates as a check on sentencing discretion, not as a prescriptive formula, and a sentencing judge is not required to make express findings in terms of "moral culpability" or "abandonment of responsibility" in order to apply it correctly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(a) (dangerous driving occasioning death; maximum penalty 10 years imprisonment)

Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unreported)
- WW v R [2012] NSWCCA 165