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Court of Criminal Appeal 1 May 2015

R v Harris

[2015] NSWCCA 81

HomicideTraffic & driving
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE S 5D CRIMINAL APPEAL ACT 1912 (NSW) EXTENT TO WHICH LONG

Citation: R v Harris [2015] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 1 May 2015
Judge(s): Basten JA, R A Hulme J, Adamson J (reasons by Adamson J)

Background

The respondent pleaded guilty in the District Court to four charges arising from a single collision on 4 June 2013 near Stratheden in northern NSW. He drove a vehicle belonging to his partner without her consent, while affected by a combination of prescription medications, cannabis and alcohol, all while subject to a lengthy driving disqualification and on parole for prior driving offences. The collision killed a father and his two young children (aged six and five), and caused serious injuries, including a traumatic brain injury, to a third child.

At sentencing, the District Court imposed an aggregate effective sentence of four years and seven months with a non-parole period of three years and three months. The individual sentences for each of the three dangerous driving causing death offences ranged from two years (fixed terms) to three years and four months.

The Crown appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending the sentences were manifestly inadequate and that the sentencing judge had misapplied relevant guideline and appellate authority.

  • Whether the sentencing judge erred by failing to apply the guideline judgment in R v Whyte [2002] NSWCCA 343 and the decision in R v Gillett [2006] NSWCCA 370
  • Whether the judge took irrelevant matters into account as mitigating factors
  • Whether the judge's assessment of the respondent's moral culpability as "mid-range" was the only finding available on the evidence
  • Whether the individual sentences and the total effective sentence were manifestly inadequate
  • Whether the commission of the offences while on parole was treated as a sufficiently serious aggravating factor
  • Whether, if error were established, the residual discretion against re-sentencing should be exercised

Decision

The Court of Criminal Appeal found that the original sentences were manifestly inadequate. Adamson J (with whom Basten JA and R A Hulme J agreed) concluded that the sentencing judge had erred in characterising the respondent's moral culpability as only mid-range. The respondent had made a deliberate decision to drive despite knowing he was affected by drugs that could induce an epileptic seizure, while also disqualified from driving, on parole, and taking a vehicle without his partner's consent. These factors placed the offending well above the typical case contemplated by the Whyte guideline.

The Court accepted that the respondent's longstanding frontal lobe injury, caused by a prior serious accident, was a relevant matter going to his capacity for rational judgment. However, this did not reduce his culpability to mid-range. Even accounting for that impairment, the decision to drive in those circumstances remained a seriously culpable act. The Court also found that the judge had failed to give adequate weight to the fact that the offences were committed while the respondent was on parole, which was a statutory aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

On the question of the residual discretion (the court's power, even after finding error, to decline to re-sentence), the Court held the Crown had discharged its onus of establishing that re-sentencing was warranted. The original sentences so substantially departed from the appropriate range that it would have been wrong to allow them to stand.

On re-sentencing, Adamson J imposed an aggregate term of seven years and six months with a non-parole period of five years and six months, commencing on 15 August 2013. The indicative individual sentences, after a 25% discount for guilty pleas, were four years and six months for each of the three dangerous driving causing death counts, and three years for the dangerous driving causing grievous bodily harm count.

Orders Made

  • Appeal allowed
  • Sentences imposed by Wells DCJ on 19 August 2014 quashed
  • Respondent re-sentenced to an aggregate term of 7 years 6 months with a non-parole period of 5 years 6 months, commencing 15 August 2013
  • Earliest eligible release date: 14 February 2019

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's characterisation of moral culpability must be anchored in all available evidence; on these facts, mid-range culpability was not a finding open to the sentencing court.
  • A deliberate decision to drive while knowingly affected by epilepsy-inducing substances, combined with a lengthy disqualification, active parole, and an unlicensed vehicle, placed the offending substantially beyond the typical case in the Whyte guideline for dangerous driving causing death.
  • Neurological impairment affecting judgment capacity is a relevant sentencing consideration, but it does not automatically reduce an offender's culpability to mid-range where that impairment was known and the risk was foreseeable.
  • Under the Whyte guideline framework, sentencing courts are required to identify features that move a particular case above or below the typical case upon which the guideline sentence is predicated; failure to do so can constitute legal error.
  • In a Crown appeal, once error is established, the residual discretion against re-sentencing is not exercised lightly; where original sentences fall substantially below the appropriate range, the Court of Criminal Appeal will ordinarily re-sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 154A(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 37A
- Drug Misuse and Trafficking Act 1985 (NSW), s 12(1)

Cases
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (guideline judgment for dangerous driving)
- R v Gillett [2006] NSWCCA 370
- CMB v Attorney-General (NSW) [2015] HCA 9
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- R v Dodd (1991) 57 A Crim R 349
- R v Campbell [2014] NSWCCA 102
- Khoury v R [2011] NSWCCA 118
- Georgopolous v R [2010] NSWCCA 246
- R v Sivell [2009] NSWCCA 286
- R v Hernando [2002] NSWCCA 489
- R v Geddes (1936) 36 SR (NSW) 554