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54
Court of Criminal Appeal 7 October 2016

Kerr v R

[2016] NSWCCA 218

Assault & violenceTraffic & driving
CRIMINAL LAW APPEAL SENTENCING DANGEROUS DRIVING WHETHER ERROR IN AGGREGATION WHETHER MANIFESTLY EXCESSIVE

Citation: Kerr v R [2016] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 7 October 2016
Judges: Bathurst CJ; Hoeben CJ at CL; Price J

Background

The appellant driver was travelling at approximately 70 km/h in the first lane of a three-lane highway when he drove into the back of a group of seven cyclists travelling in the same lane and direction at 32 km/h. The road was straight at the point of impact, and the cyclists had been visible for approximately 300 metres. Multiple witnesses reported that the driver took no action to slow down or avoid the collision before impact.

Four cyclists suffered grievous bodily harm and three suffered bodily harm. The driver pleaded guilty to four counts of dangerous driving causing grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW) and three counts of causing bodily harm by misconduct under s 53 of the same Act.

At the time of the offences, the driver was subject to a two-year intensive corrections order arising from an earlier aggravated robbery conviction. He also had a prior driving record that included a mid-range drink driving offence and a mobile phone offence, for which he had been disqualified in 2010. The sentencing judge imposed an aggregate sentence of 27 months, and the driver sought leave to appeal.

  • Whether the sentencing judge erred by taking into account the applicant's unrelated prior criminal history
  • Whether the sentencing judge erred in finding moral culpability was above the lowest end of the range
  • Whether the sentencing judge erred in treating a speed of 70 km/h (below the speed limit) as excessive
  • Whether the sentencing judge erred in treating the length of the journey during which the driver was inattentive as an aggravating factor
  • Whether the sentencing judge erred in finding the accident was not the result of momentary inattention
  • Whether the sentencing judge erred in applying specific and general deterrence
  • Whether the sentencing judge erred in accumulating portions of the sentences for Counts 1 to 4
  • Whether the overall sentence was manifestly excessive

Decision

Criminal history and conditional liberty. The Court of Criminal Appeal confirmed that prior convictions and traffic history may properly inform where a sentence falls within the range set by the objective seriousness of the offence, even where they do not constitute formal aggravating factors. Committing an offence while on conditional liberty (here, an intensive corrections order) is itself an aggravating circumstance. The prior offence need not be similar to the current offence, though similarity will generally increase the weight given to this factor. The sentencing judge was also entitled to observe that previous non-custodial sentences had not deterred the applicant, as relevant to personal deterrence.

Inattention, speed, and moral culpability. Given that the cyclists were visible for some 300 metres and multiple witnesses observed no braking or evasive action, the sentencing judge had two findings open: either the driver was inattentive for at least 17 seconds (long enough to cover that distance at 70 km/h), or he was aware of the cyclists and simply failed to respond until a moment of final inattention caused the crash. The first finding was open on the evidence, given the driver's own indication that he did not see the cyclists. Speed below the posted limit may still be excessive in the circumstances, and once prolonged inattention is established, its duration is a legitimate aggravating factor. In those circumstances, a finding of moral culpability above the lowest end of the spectrum (though closer to the lower end) was open.

Guideline judgments and deterrence. The Court confirmed that guideline judgments, such as R v Whyte, operate as a check or sounding board rather than a ceiling. Aggravating circumstances beyond those described in the guideline may properly be taken into account. The application of both general and specific deterrence was appropriate, particularly given the need to emphasise that cyclists lawfully using the road are entitled to do so without risk from dangerous driving, and given the applicant's prior traffic record.

Accumulation and manifest excess. Accumulation, concurrence, and totality are matters within the sentencing judge's discretion, and an appellate court will only intervene on grounds of error of principle or manifest injustice. A degree of accumulation was warranted to reflect the separate injuries sustained by different victims. The measure was moderated by the finding of special circumstances (adjusting the ratio of non-parole to head sentence) and the concurrent structure applied to Counts 5 to 7. The Court found the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Committing an offence while on conditional liberty is an aggravating circumstance in sentencing, regardless of whether the prior offence is similar in nature to the offence before the court.
  • A driver's speed may be treated as excessive for the purposes of sentencing for dangerous driving even where it does not exceed the posted speed limit, provided the speed was unreasonable in the surrounding circumstances.
  • Where a court finds that inattention was not momentary, the duration of that inattention over distance becomes a relevant aggravating factor in its own right.
  • Guideline judgments do not set a ceiling on the factors a sentencing court may treat as aggravating; they serve as a check on the sentence ultimately imposed.
  • In dismissing the appeal, the Court reaffirmed that appellate intervention on grounds of manifest excess requires more than a different view of the appropriate sentence; the sentence must be unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Harrison [2001] NSWCCA 79; (2001) 121 A Crim R 380
- R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299
- Frigiani v The Queen [2007] NSWCCA 81
- Gonzalez v The Queen [2006] NSWCCA 4
- Stanyard v The Queen [2013] NSWCCA 134
- R v Tzanis [2005] NSWCCA 274
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Lowndes v The Queen (1999) 195 CLR 665
- R v Jurisic (1998) 45 NSWLR 209
- JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528