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Court of Criminal Appeal 22 December 2014

Day v R

[2014] NSWCCA 333

HomicideDrugsTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE MOTOR VEHICLE MANSLAUGHTER PAROLE PERIOD AND THE OVERALL SENTENCE

Citation: Day v R [2014] NSWCCA 333
Court: NSW Court of Criminal Appeal
Date: 22 December 2014
Judges: Hoeben CJ at CL, McCallum J, Bellew J

Background

The appellant was a truck driver who, in the early morning of 10 April 2010, drove a heavily laden Mack tipper truck and trailer onto the breakdown lane of the M4 Motorway at Orchard Hills, colliding with four cyclists. One cyclist died from his injuries. Three others suffered serious physical harm, including fractures, lacerations, and in one case a brain injury.

The agreed facts established that the appellant had woken at 3:30am, commenced work at 4:30am, and had smoked cannabis within two to three hours before a blood sample was taken after the crash. Expert evidence indicated the blood concentrations of THC were associated with impairment. The appellant told police he believed he had "blacked out" at the wheel immediately before the collision.

The appellant pleaded guilty in the District Court to manslaughter under s 18(1) of the Crimes Act 1900, and to dangerous driving causing grievous bodily harm under s 52A(3)(a) of the same Act. Two further dangerous driving offences causing grievous bodily harm were taken into account on a Form 1. He sought leave to appeal his sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge erred by failing to give sufficient weight to the appellant's mental condition (the alleged blackout) when assessing his moral culpability
  • Whether the sentencing judge erred in the proportion between the non-parole period and the head sentence
  • Whether the overall sentence was manifestly excessive

Decision

The Court rejected the argument that the sentencing judge failed to account for the appellant's mental condition. McCallum J distinguished the present case from authorities where an unforeseeable medical episode reduced moral culpability. Here, the appellant chose to drive while acutely fatigued and under the influence of recently smoked cannabis. Even if a blackout occurred, its occurrence was a foreseeable consequence of those choices.

On the comparison with analogous cases, including R v Lawler and R v Winter, McCallum J found that neither decision assisted the appellant. In Lawler, the driver suffered an epileptic seizure without prior warning, a circumstance the Court there regarded as significantly reducing moral culpability. The appellant's situation was materially different: he knew he was exhausted and had recently used a drug known to cause impairment. In Winter, the Court of Criminal Appeal had in fact upheld a Crown appeal and imposed a heavier sentence in circumstances with some similarities.

The Court acknowledged the overall sentence was stern and expressed genuine sympathy for the impact of the accident on all parties. However, it concluded the sentence could not properly be characterised as erroneously excessive. No appellable error was identified in the sentencing judge's reasoning or the structure of the sentence.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a blackout at the wheel does not automatically reduce moral culpability where the driver's prior conduct made such an episode foreseeable.
  • A driver who chooses to operate a heavy vehicle while acutely fatigued and under the recent influence of cannabis assumes a significantly elevated level of moral responsibility for any resulting harm.
  • The distinction drawn in R v Lawler, where an unforeseeable epileptic seizure mitigated culpability, does not extend to cases where the impaired condition was self-induced and the risk was known to the driver.
  • Manslaughter by motor vehicle carries a maximum penalty of 25 years imprisonment under s 18(1) of the Crimes Act 1900, and the sentencing court retains considerable discretion in structuring the non-parole period relative to the head sentence.
  • No appellable error arises merely because a sentence is stern, provided the sentencing judge correctly identified and applied the relevant principles.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1) and 52A(3)(a)

Cases
- R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
- R v Do [2000] NSWCCA 459; 32 MVR 411
- R v Lawler (2007) 169 A Crim R 415
- R v Ryan [2000] NSWSC 724
- R v Winter [2012] NSWCCA 218