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Court of Criminal Appeal 25 June 2015

Primmer v Regina

[2015] NSWCCA 155

Traffic & driving
CRIMINAL LAW SENTENCING HORRENDOUS INJURY TO YOUNG VICTIM OFFENDER WITH INTELLECTUAL DISABILITY EVIDENCE NOT DISPUTED ERROR ESTABLISHED

Citation: Primmer v Regina [2015] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 25 June 2015
Judges: Basten JA; Garling J; Hamill J

Background

The applicant pleaded guilty in the District Court at Wollongong to one count of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of seven years' imprisonment. The victim, a 14-year-old female passenger, suffered serious and permanent brain damage as a result of the collision on 6 December 2013.

The sentencing judge, Conlon DCJ, imposed a total sentence of three years and six months, comprising a non-parole period of two years and six months and an additional term of twelve months. A 25% discount was applied to reflect the utilitarian value of the early guilty plea entered in the Local Court. The applicant was also disqualified from driving for ten years.

The applicant sought leave to appeal, arguing that the sentencing judge had wrongly disregarded psychological evidence about his intellectual disability, had misapplied the finding of special circumstances, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by rejecting or disregarding undisputed psychological evidence that the applicant's intellectual disability contributed to the commission of the offence
  • Whether the sentencing judge erred in applying the finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the total sentence was manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal upheld the first ground of appeal, finding that the sentencing judge had erred by dismissing the psychologist's opinion. The psychologist, Ms Durkin, had provided evidence that the applicant's cognitive difficulties affected his ability to moderate his conduct while driving and to effectively manage any issue that arose. This evidence was not contradicted by any other evidence and was not inherently implausible. The majority found it was not legitimate to dismiss that explanation simply because it sought to explain the very conduct in question.

Basten JA identified a distinction between different elements of the psychologist's report. The judge was entitled to reject Ms Durkin's acceptance of the applicant's claim that he had been distracted by passengers, as that was not supported by the evidence. However, the finding that his cognitive limitations reduced his capacity to moderate and regulate his own conduct remained uncontradicted and could not be legitimately set aside on the same basis.

The Court acknowledged the serious nature of the offending and the tragic consequences for the victim. Denunciation and specific deterrence justified a substantial sentence, particularly given the applicant's history of driving without a licence in a dangerous manner. However, the intellectual disability should have been accepted as significantly lowering the applicant's moral culpability, warranting a reduced sentence.

The majority (Garling and Hamill JJ) re-sentenced the applicant to a total term of three years, with a non-parole period of one year and seven months and an additional term of one year and five months. This reflected a starting point of four years, reduced by 25% for the plea, with a finding of special circumstances to accommodate the applicant's difficulties in custody and the need for extended supervised release on parole. Basten JA, in a minority view, would have imposed a non-parole period of two years within a total sentence of three years.

Orders Made

  • Application for leave to appeal granted
  • Appeal allowed
  • The sentence for the s 52A offence is quashed and replaced with a non-parole period of 1 year and 7 months commencing 6 December 2013 and expiring 5 July 2015, with an additional term of 1 year and 5 months commencing 6 July 2015 and expiring 5 December 2016
  • The 10-year driving disqualification is confirmed
  • All other sentences imposed in the District Court on 25 June 2014 are confirmed
  • The applicant is directed to be released at the expiration of the non-parole period pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • Undisputed psychological evidence that an offender's intellectual disability reduced their capacity to moderate their own conduct cannot be dismissed simply because that evidence seeks to explain the offending behaviour itself.
  • A sentencing court may legitimately reject discrete aspects of a psychologist's report that are unsupported by the evidence, such as an applicant's self-reported distraction, without using that rejection to discredit the psychologist's broader, unchallenged findings about cognitive impairment.
  • Intellectual disability that reduces moral culpability is a recognised mitigating factor in sentencing, though the Court of Criminal Appeal cautioned against automatically equating intellectual disability with mental illness or importing principles developed in mental illness cases without proper analysis.
  • Where an offender's intellectual disability is accepted as genuine, it can be relevant both to the assessment of moral culpability (affecting the head sentence) and to the finding of special circumstances (affecting the ratio of non-parole period to additional term), particularly for a first-time custodial sentence.
  • Denunciation and specific deterrence remain weighty considerations in dangerous driving cases involving catastrophic injury, even where mitigating personal circumstances are established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(f), 9, 10, 44, 50
- Criminal Appeal Act 1912 (NSW)

Cases
- Baxter v R [2007] NSWCCA 237
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Cramp [2004] NSWCCA 264
- R v Engert (1995) 84 A Crim R 67
- R v Israil [2002] NSWCCA 255
- R v Latouf (CCA (NSW), Mahoney ACJ, 12 December 1996, unreported)
- R v Tuala [2015] NSWCCA 8
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- RL v R [2015] NSWCCA 106
- Stanyard v R [2013] NSWCCA 134
- Vakauta v Kelly [1989] HCA 44; 167 CLR 568
- WW v R [2012] NSWCCA 165