Citation: Vale v R [2016] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 4 August 2016
Judge(s): Hoeben CJ at CL; Rothman J; R A Hulme J
Background
The appellant pleaded guilty to aggravated dangerous driving occasioning grievous bodily harm and engaging in a police pursuit, contrary to ss 52A(4) and 51B(1) of the Crimes Act 1900 (NSW). On 4 August 2014, he was driving with a 17-month-old child in the front passenger seat, secured only by a standard seatbelt rather than an approved child restraint. When police attempted to intercept him for speeding, he accelerated away through residential streets, reaching approximately 155 km/h in an 80 km/h zone.
After police terminated the pursuit for safety reasons, the appellant continued at speed on a dirt road. He lost control of the vehicle, which collided with a large gum tree and came to rest on its passenger side. The collision was so violent that the engine was completely dislodged and the spare tyre was found more than 30 metres into surrounding bush. The infant sustained a fractured clavicle and abdominal haematoma, was airlifted to a children's hospital, and faced uncertain long-term consequences for a pre-existing liver condition. The appellant himself suffered serious injuries including spinal fractures, a collapsed lung, and facial injuries.
At sentencing in the District Court, the appellant received six years imprisonment with a three-year non-parole period for the dangerous driving offence, and a concurrent three-year fixed term for the pursuit offence. He appealed on the ground that the sentences were manifestly excessive, pointing to the extra-curial punishment represented by his own severe injuries and to his difficult childhood, including childhood abuse and removal from his mother at three weeks of age.
Legal Issues
- Whether the sentencing judge gave adequate weight to the appellant's serious injuries sustained in the crash as extra-curial punishment.
- Whether the sentencing judge adequately took into account the appellant's childhood hardship and abuse, as required under Bugmy v The Queen [2013] HCA 37.
- Whether the sentences imposed were manifestly excessive having regard to all relevant factors.
Decision
The Court of Criminal Appeal, by a unanimous bench, granted leave to appeal but dismissed the appeal. Hoeben CJ at CL, with whom Rothman J and R A Hulme J agreed, found that no error had been established in the sentencing judge's exercise of discretion.
The Court accepted that the sentencing judge did consider both the extra-curial punishment arising from the appellant's injuries and the mitigating effect of his childhood hardship. The appellant's complaint was not that these matters were ignored, but that they were not "adequately" weighted. The Court held that such a complaint necessarily concedes the factors were taken into account, and it was not shown that the discretion miscarried so as to constitute error.
The Court identified several considerations that supported the sentences as being within the legitimate range. These included: the wholly concurrent structure of the sentences; the commencement date rendering the sentences concurrent with existing parole-related sentences; the appellant's extensive criminal record, which the sentencing judge described as among the worst he had seen; the commission of the offences while on parole; the Form 1 matters; and the very generous allowance for special circumstances, which produced a non-parole period equal to 50 per cent of the head sentence.
The Court noted that the objective seriousness and the appellant's moral culpability were high. The victim was a 17-month-old child placed in the front seat without an appropriate restraint, and the driving was at nearly double the speed limit. While the sentences were described as stern, they were not unreasonable or plainly unjust.
Orders Made
- Leave to appeal granted.
- The appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a ground of manifest excess based on the "inadequate" weight given to mitigating factors implicitly concedes the factors were considered; the appellant must show the discretion actually miscarried, not merely that a different weighting was available.
- Extra-curial punishment (serious injuries suffered by the offender in the same incident) and childhood hardship arising from abuse are recognised mitigating considerations in sentencing, but their weight remains a matter of the sentencing judge's discretion.
- Under Bugmy v The Queen, the effects of childhood deprivation on an offender's culpability must be taken into account; however, the Court here found no error in the manner in which those principles were applied.
- A non-parole period equal to 50 per cent of a head sentence represents a substantial allowance for special circumstances and is a relevant indicator that a sentence is not manifestly excessive.
- Sentencing for a police pursuit offence that is closely intertwined with a dangerous driving offence may appropriately be structured on a wholly concurrent basis, consistent with the totality principle.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 51B(1), 52A(4)
Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- House v R [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- Elyard v Regina [2006] NSWCCA 43
- R v Kyle [2014] NSWCCA 300
- Alrubae v R [2016] NSWCCA 142
- Jinnette v R [2012] NSWCCA 217
- R v Engert (1995) 84 A Crim R 67
- R v Kopacka [2005] NSWCCA 83
- R v Khan [2000] NSWCCA 454
- R v Kaliti [2001] NSWCCA 268
- R v Pates [2001] NSWCCA 142