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Court of Criminal Appeal 19 February 2014

R v Stafford

[2014] NSWCCA 6

Assault & violenceTraffic & drivingPublic order & justice offences

Citation: R v Stafford [2014] NSWCCA 6
Court: Court of Criminal Appeal, NSW
Date: 19 February 2014
Judges: Hoeben CJ at CL, Schmidt J, Barr AJ

Background

Following a road rage incident near Willbriggie in April 2011, the applicant drove his vehicle into another car, causing it to roll multiple times. Two occupants of the other vehicle suffered bodily harm. After the crash, the applicant fled the scene, then called police and falsely identified a learner-licensed passenger as the driver. A co-passenger provided a matching false statement to police the next day.

Four days after the incident, the applicant attended a recorded police interview and admitted he had been driving and that his earlier identification of the other person as the driver was false. Police had already gathered independent witness statements that pointed to the applicant as the driver before his admission.

The applicant was committed to the District Court for sentence on two counts of wanton and furious driving causing bodily harm, one count of doing an act with intent to pervert the course of justice (under s 319 of the Crimes Act 1900), and a further offence of failing to stop and assist. He received an aggregate sentence of two years with a one-year non-parole period. He sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge failed to take into account, or gave insufficient weight to, the applicant's voluntary disclosure to police that he had been the driver
  • Whether the sentencing judge failed to give sufficient weight to the applicant's mental illness as a factor reducing the role of general deterrence
  • Whether the sentencing judge proceeded on the mistaken basis that full-time custody was the only available sentencing option, thereby failing to exercise a proper discretion
  • Whether, in all the circumstances, a lesser sentence was warranted

Decision

Disclosure to police: The Court acknowledged that the sentencing judge had noted the applicant's admission before police took any action against the person he falsely named. However, the Court found no error in how the judge treated this factor. The perverting of justice offence lay in the false statements themselves, and the applicant's admission came only after police had already gathered independent evidence identifying him as the driver. The disclosure did not fall into the category of a genuinely voluntary confession made before police were close to the truth.

Mental illness and general deterrence: The Court confirmed the principle from R v Engert (1995) that mental illness may reduce the role of general deterrence in sentencing, but only where there is a causative link between the illness and the offending. The Court found no such link on the facts. The applicant's conduct in lying to police and procuring a false statement was a deliberate, calculated attempt to avoid consequences, not behaviour driven or influenced by mental illness. The sentencing judge's treatment of this issue disclosed no error.

Sentencing discretion and full-time custody: The applicant argued that the judge had treated full-time custody as inevitable and had given excessive weight to the maximum penalty of fourteen years under s 319. The Court rejected this characterisation. A fair reading of the remarks on sentence showed the judge had listened to submissions from both parties and had exercised a proper discretion in accepting the Crown's submission that full-time custody was appropriate. The cases cited by the applicant, mostly from other jurisdictions, did not establish any sentencing range, let alone that the sentence fell outside the available discretion.

Overall: The Court granted leave to appeal but dismissed the appeal. A sentence of one year and ten months, reached after a 25 per cent discount for an early guilty plea, was within the proper exercise of the sentencing discretion given the objective seriousness of the offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A defendant's admission to police will carry limited mitigating weight in a perverting-justice offence where police have already gathered independent evidence pointing to the accused before the admission is made.
  • Under the principle in R v Engert, mental illness reduces the significance of general deterrence in sentencing only where there is a demonstrated causal connection between the illness and the offending conduct.
  • Deliberate and calculated conduct designed to deflect a police investigation, such as falsely naming another person as the driver and procuring a supporting statement, is unlikely to qualify as behaviour influenced by mental illness.
  • In dismissing the appeal, the Court confirmed that citing non-custodial sentences from other jurisdictions does not, of itself, establish a sentencing range or demonstrate that a custodial term falls outside the sentencing discretion.
  • The objective seriousness of an offence under s 319 of the Crimes Act 1900, which carries a maximum of fourteen years imprisonment, can support a full-time custodial sentence even for an offender with subjective factors in their favour.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 53 and 319
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Church v R [2012] NSWCCA 149
- R v Engert (1995) 84 A Crim R 67
- R v Giang [2011] NSWCCA 276
- R v Letteri, Court of Criminal Appeal, NSW, 18 March 1992 (unreported)
- R v Nguyen (2004) 149 A Crim R 343