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9
Court of Criminal Appeal 2 September 2016

R v Barker

[2016] NSWCCA 193

Traffic & driving
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE FRAGILE MENTAL HEALTH CROWN APPEAL DISMISSED.

Citation: R v Barker [2016] NSWCCA 193
Court: Court of Criminal Appeal, New South Wales
Date: 2 September 2016
Judge(s): Bathurst CJ, Hoeben CJ at CL, Price J

Background

The respondent pleaded guilty to two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm, following an incident on the night of 5 December 2014 at Leeton, NSW. He was driving a Toyota Hilux utility at more than 104 km/h in a 60 km/h zone, on a road he knew to be in poor condition, with passengers unrestrained. The vehicle struck a crest, lost control, and rolled, killing two cabin passengers and injuring a third person who was seated on the rear tray.

The respondent was sentenced in the District Court by Jeffreys DCJ to a total effective sentence of 3 years and 2 months, with a non-parole period of 1 year and 8 months. The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate.

A significant feature of the case was evidence that the respondent had suffered serious psychiatric consequences from the accident, including severe anxiety, depression, self-blame, and guilt. This psychiatric condition remained untreated and unimproved during the respondent's time in custody.

  • Whether the sentencing judge failed to properly assess the objective seriousness of the offences and the respondent's moral culpability.
  • Whether the sentencing judge erred in finding that the respondent was an inappropriate vehicle for general deterrence.
  • Whether the sentencing judge erred in treating the fact that these were the respondent's first custodial sentences as a "special circumstance" justifying a reduced non-parole period.
  • Whether the sentencing judge misapplied the relevant guideline judgments for dangerous driving offences.
  • Whether the individual sentences and the total effective sentence were manifestly inadequate.
  • Whether the period of licence disqualification was manifestly inadequate.
  • Whether, even if error were established, the Court of Criminal Appeal should exercise its residual discretion to decline to resentence.

Decision

The Court of Criminal Appeal, by unanimous agreement, found that the Crown had established manifest inadequacy in the sentence imposed at first instance. The sentencing judge had made a number of errors, including in the assessment of objective seriousness and moral culpability, in the treatment of general deterrence, and in the application of guideline judgments to the facts.

Despite those findings of error, the Court declined to intervene and resentence the respondent. It exercised its residual discretion to dismiss the Crown appeal on two principal bases. The first was the Crown's own position at the original sentencing hearing, where it had accepted that the respondent's moral culpability fell in the "middle range," and had not submitted that his conduct amounted to a total abandonment of responsibility. The Court of Criminal Appeal treated the Crown's concession at first instance as a relevant consideration when deciding whether to exercise the residual discretion, consistent with the High Court's approach in CMB v Attorney General for New South Wales [2015] HCA 9.

The second and substantial basis for exercising the residual discretion was the respondent's fragile mental health. The evidence of a psychologist and the respondent's father was uncontested: the respondent was suffering severe anxiety and depression marked by profound self-blame and guilt, his symptoms had not improved in custody, and he had received no treatment while incarcerated. The Court found there was a real risk that any increase in the sentence would substantially and adversely affect his already fragile mental state. The respondent had also experienced actual distress as a consequence of the Crown appeal itself, which had delayed his classification within the prison system.

Orders Made

  • The Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, even where manifest inadequacy in a sentence is established on a Crown appeal, the appellate court retains a residual discretion to decline to resentence the offender.
  • Concessions made by the Crown at the original sentencing hearing are a material consideration when an appellate court weighs whether to exercise that residual discretion, following the approach in CMB v Attorney General for New South Wales [2015] HCA 9.
  • An offender's serious and unresolved psychiatric condition, directly connected to the offending, can constitute sufficient grounds for the residual discretion to be exercised in favour of not increasing the sentence, particularly where there is uncontested evidence of continuing distress and a real risk that resentencing would substantially harm the offender's mental health.
  • Driving at nearly twice the speed limit on a known rough road surface, with unrestrained passengers, and resulting in two deaths and a serious injury, was characterised as objectively serious offending involving significant moral culpability, notwithstanding that it was ultimately assessed in the middle range at first instance.
  • In dismissing the appeal, the Court did not endorse the adequacy of the original sentence; it found only that the particular circumstances of this case made resentencing inappropriate in the exercise of residual discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Road Transport Act 2013 (NSW), s 117(1)(c)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407
- DPP v Samadi [2006] NSWCCA 308
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v R [1936] HCA 40; 55 CLR 499
- R v Janceski [2005] NSWCCA 288
- R v Jurisic (1998) 45 NSWLR 209
- R v Tuala [2015] NSWCCA 8
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- The Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1