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8
Court of Criminal Appeal 17 June 2015

Casey v R

[2015] NSWCCA 142

HomicideTraffic & driving
CRIMINAL LAW SENTENCE APPEAL DELAY ADEQUATELY TAKEN INTO ACCOUNT SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Casey v R [2015] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 17 June 2015
Judge(s): Hoeben CJ at CL; Hidden J; Adams J

Background

The applicant was convicted after a jury trial in the Newcastle District Court of driving in a manner dangerous occasioning death, contrary to s 52A(1)(a) of the Crimes Act 1900. On Anzac Day 2011, he rode an unregistered Suzuki dirt bike, belonging to his brother, on a public road at night with his close friend as a pillion passenger. Both men had been drinking heavily since midday. The motorcycle had no headlight, no indicator lights, no mirrors, no pillion footrest, and tyres unsuitable for road use. Neither rider wore a helmet. The bike collided with a parked car, fatally injuring the pillion passenger from head injuries. The applicant's blood alcohol reading, taken approximately two hours after the accident, was 0.124 grams per 100 millilitres of blood.

The applicant was sentenced by Wilson SC DCJ in the District Court on 30 July 2014 to a non-parole period of 2 years and 7 months, with a balance of term of 11 months, and a 4-year driving disqualification. He had been aged 18 at the time of the offence, had no prior convictions, and presented a strong subjective case including genuine remorse, stable employment, and strong community and family support.

The applicant sought leave to appeal against the sentence on four grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence
  • Whether the sentencing judge erred in failing to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (which allows a court to vary the standard ratio of non-parole period to total sentence)
  • Whether the sentencing judge erred in limiting the discount for prosecutorial delay
  • Whether the sentence was manifestly excessive

Decision

On objective seriousness, the Court of Criminal Appeal found no error in the sentencing judge's assessment. The judge had correctly identified the combination of dangerous features: significant intoxication with substantially impaired driving ability, an unregistered and inherently unsuitable motorcycle, a dark and rainy night, no headlight, no helmets, and a pillion passenger travelling on a bike with no footrests and no capacity to safely carry two riders. The sentencing judge had applied the guideline judgment in R v Whyte [2002] NSWCCA 343, and her conclusion that the applicant's moral culpability was very high was well supported by those features.

On special circumstances, the Court confirmed there is no obligation on a sentencing judge to find special circumstances merely because a first-time custodial sentence is involved or because a supervision period on parole might be beneficial. The applicant's strong subjective case had already been taken into account in setting the overall sentence, and no error was established in declining to make the finding.

The Court rejected the argument that the sentencing judge gave insufficient weight to delay in the prosecution, accepting that her Honour had acknowledged the delay but was entitled to limit its ameliorating effect given the assessed level of criminality. The Court also dismissed the manifest excess ground, noting that sentencing is not a mathematical exercise and that the purposes of general deterrence and retribution carry particular weight where alcohol is involved in a fatal driving offence. The applicant's grief over the death of his close friend, while genuinely considered as part of his subjective case, did not qualify as extra-curial punishment (punishment suffered outside the formal sentencing process) because the death was a direct and integral consequence of the applicant's own conduct rather than something inflicted upon him by external forces.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's characterisation of moral culpability as very high where multiple simultaneous dangerous features combined, including serious intoxication, an inherently unsafe and unregistered motorcycle, night-time riding with no headlight, and carrying a pillion passenger without appropriate equipment or helmets.
  • A sentencing court is not obliged to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 simply because the offender is a first-time prisoner or would benefit from extended supervision on parole; strong subjective factors may already be reflected in the overall sentence.
  • Where prosecutorial delay exists, the degree of amelioration available to an offender may legitimately be limited by reference to the seriousness of the criminality involved.
  • The doctrine of extra-curial punishment applies to hardship caused by external forces, not to consequences that are a direct and integral part of the offending itself; the applicant's grief over a death he caused did not attract the doctrine, though the sentencing judge appropriately took that grief into account as part of his subjective case.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that general deterrence and retribution carry particular weight in sentencing for fatal driving offences involving alcohol, even where the offender has already learned a personal lesson from the tragedy.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (guideline judgment on dangerous driving)
- Alameddine v Regina [2006] NSWCCA 317
- R v Allpass (1993) 72 A Crim R 561
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Caristo v R [2011] NSWCCA 7
- Jiang v R [2010] NSWCCA 277
- MD v R [2015] NSWCCA 37
- R v Blanco [1999] NSWCCA 121; 106 A Crim R 303
- R v Cramp [2004] NSWCCA 264
- R v Errington [1999] NSWCCA 18
- R v Fidow [2004] NSWCCA 172
- R v Howcher [2004] NSWCCA 179; 146 A Crim R 371
- R v Janceski [2005] NSWCCA 288
- R v Musumeci (unreported, NSWCCA, 30 October 1997)
- R v Whelan [2004] NSWCCA 379