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Court of Criminal Appeal 19 June 2015

Colville v R

[2015] NSWCCA 149

DrugsTraffic & driving
CRIMINAL LAW APPEAL SENTENCE DANGEROUS DRIVING OCCASIONING DEATH WHETHER FINDINGS OPEN ON EVIDENCE PROCEDURAL FAIRNESS

Citation: Colville v R [2015] NSWCCA 149
Court: Court of Criminal Appeal, NSW
Date: 19 June 2015
Judge(s): Ward JA (with whom Johnson J and Garling J agreed)

Background

The appellant pleaded guilty in the Local Court to one count of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm under s 52A of the Crimes Act 1900. The offences arose from a head-on collision on 9 December 2012 in which the appellant's vehicle crossed a double centre line on a straight road into oncoming traffic. The driver of the other vehicle died, and the passenger was seriously injured.

At the time of the crash, blood samples revealed the presence of methylamphetamine, diazepam, and clonazepam in the appellant's system. The appellant had also driven a friend in the early hours of the morning before the collision occurred around 11.28am. In the District Court, the sentencing judge imposed a total effective sentence of 4 years and 7 months with a non-parole period of 3 years and 5 months.

The appellant sought leave under s 5(1)(c) of the Criminal Appeal Act 1912 to challenge the sentence on two grounds. The Crown did not oppose the grant of leave.

  • Whether the sentencing judge erred in finding, beyond reasonable doubt, that the appellant was sleep deprived and that his fatigue was exacerbated by the secondary effects of his methylamphetamine use.
  • Whether the sentencing judge erred in rejecting or giving little weight to background material concerning the appellant's deprived early childhood.
  • Whether the appellant was denied procedural fairness in relation to the treatment of his childhood background material.

Decision

Ground 1: Sleep deprivation exacerbated by drugs

The Court found that the sentencing judge's inference was open on the evidence. The pharmacological expert (Dr Perl) had explained the "biphasic" action of methylamphetamine: after the acute stimulant phase passes, a secondary stage of rebound fatigue and sedation can impair driving ability, including through drowsiness and slowed reaction times. Although Dr Perl could not form a firm opinion of impairment to the requisite standard on the available information, she did express the view that the circumstances and blood levels suggested some impairment of vigilance and reaction skills likely contributing to the collision.

The Court noted that the circumstances of the crash were consistent with driver fatigue: the vehicle drifted gradually toward the centre line, witnesses saw no braking, and the only skid marks were post-impact. The appellant's own account confirmed he had been awake since the early hours. The sentencing judge was entitled to conclude, beyond reasonable doubt, that sleep deprivation exacerbated by drug effects caused the appellant to lose control. The Court rejected the submission that the crash was either a fleeting moment of inattention or an unexplained accident.

Ground 2: Deprived early childhood background

The sentencing judge expressed caution about the weight to be given to unsworn, untested assertions in a psychologist's report concerning the appellant's childhood. The Court confirmed that caution with such material is consistent with established authority, and that it was open to her Honour to give it limited weight. The appellant argued that the Crown had effectively conceded the validity of the childhood account, thereby creating a legitimate expectation that it would be accepted. The Court rejected that argument: the Crown had acknowledged only that the personal history "pointed to" and "would suggest" significant disadvantage, not that the account was established as fact. No procedural unfairness arose.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court may infer, beyond reasonable doubt, that sleep deprivation was exacerbated by secondary drug effects even where a pharmacological expert cannot express that conclusion to the same standard, provided the broader circumstances support the inference.
  • The "biphasic" effect of methylamphetamine, including the rebound fatigue phase following the acute stimulant phase, is a recognised basis upon which a sentencing court can assess an offender's impairment at the time of an offence.
  • Where childhood background material rests on unsworn, untested self-reporting reproduced in a psychologist's report, a sentencing judge is entitled to give it limited weight without this constituting an error.
  • No denial of procedural fairness arises merely because the Crown acknowledges that background material "suggests" disadvantage, where the Crown stops short of conceding that the account is established.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the appellant's moral culpability was grave: he must have known when he commenced driving how little sleep he had obtained and what substances he had consumed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c) and s 52A(3)(c)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- House v The King (1936) 55 CLR 499
- Bugmy v R (2013) 302 ALR 192
- Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- R v Qutami [2001] NSWCCA 353
- R v Uzaabeaga [2000] NSWCCA 381
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- AB v R [2014] NSWCCA 339
- Keeley v R [2014] NSWCCA 139
- McBeth v R [2009] NSWCCA 235