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Court of Criminal Appeal 9 November 2016

Silvestri v R

[2016] NSWCCA 245

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL APPEAL IN RESPECT OF ONE COUNT ONLY

Citation: Silvestri v R [2016] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 9 November 2016
Judges: Gleeson JA, Price J, Hidden AJ (judgment by Hidden AJ, with whom Gleeson JA and Price J agreed)

Background

The appellant was sentenced in the District Court on three counts of dangerous driving occasioning grievous bodily harm, following guilty pleas entered in the Local Court. All three offences arose from a single incident in September 2013, in which the appellant drove onto the wrong side of a bridge near Dapto and collided head-on with an oncoming vehicle. All three occupants of that vehicle were seriously injured.

The most severe consequences fell on one of the passengers, who was approximately 32 weeks pregnant at the time of the collision. She suffered a ruptured uterus, multiple fractures, an emergency laparotomy and a sub-total hysterectomy, and lost her baby. She was left permanently infertile. The sentencing judge assessed the gravity of her injuries as falling at the very top end of the range.

The District Court imposed fixed terms of two years each for the counts relating to the driver and the male passenger, and a five-year sentence (non-parole period of three years, balance of term of two years) for the count relating to the pregnant passenger, made wholly accumulative on the earlier two sentences. The aggregate was eight years with an effective non-parole period of six years. The appellant sought leave to appeal against the sentence on the third count only.

  • Whether the sentence imposed on the count relating to the pregnant passenger was manifestly excessive
  • Whether the 20% discount allowed for the early guilty plea to that count was adequate, given that a 25% discount was applied to the other two counts
  • Whether ordering that sentence to be served entirely cumulatively upon the other two sentences was appropriate
  • Whether there was a denial of procedural fairness in relation to the finding of special circumstances

Decision

Manifest excess. The Court of Criminal Appeal accepted that the sentencing judge had correctly identified the appellant's moral culpability as high, applying the guideline in R v Jurisic as revisited in R v Whyte. However, the Court found the resulting sentence to be modestly excessive when measured against comparable cases and the guideline framework. The Court set a starting point of six years for the third count, rather than the figure implicitly adopted below.

Plea discount. The Court found error in reducing the guilty plea discount from 25% to 20% for the third count. The sentencing judge's stated rationale, that a higher discount would reduce the sentence below the level needed to reflect the offence's objective gravity, was held to be an impermissible approach. A uniform 25% discount was applied on resentencing.

Accumulation. The Court found it was not appropriate to make the third sentence wholly accumulative on the first two. Instead, it directed that the third sentence run concurrently with the second for a period of six months. Because of the remaining degree of accumulation, the Court found special circumstances justifying departure from the statutory ratio between the head sentence and the non-parole period.

Procedural fairness. The written judgment does not record a separate determination on the fourth ground concerning procedural fairness, as the appeal was resolved on the other grounds.

Orders Made

  • Extension of time to appeal granted
  • Leave to appeal granted
  • Appeal allowed
  • Sentences on the counts relating to Mr McNamara and Mr Sparks left undisturbed
  • Sentence on the count relating to Ms Sparks quashed and the appellant resentenced on that count to:
  • Non-parole period of 2 years and 6 months, commencing 1 April 2017 and expiring 30 September 2019
  • Balance of term of 2 years, commencing 1 October 2019 and expiring 30 September 2021
  • Overall aggregate sentence: 7 years imprisonment with a non-parole period of 5 years, commencing 1 October 2014
  • Parole eligibility date: 30 September 2019

Key Takeaways

  • A sentencing judge cannot justify a reduced guilty plea discount on the basis that applying the full utilitarian discount would produce a sentence too low to reflect the objective seriousness of the offence. The Court of Criminal Appeal confirmed that the discount for a utilitarian plea must be assessed consistently across counts arising from the same event, absent a specific reason tied to the plea itself.

  • Under the Jurisic/Whyte guideline, findings of high moral culpability engage a starting point framework that the Court will apply rigorously on appeal, and departures from comparable outcomes require clear justification.

  • Total accumulation of a sentence upon other sentences for offences arising from the same incident requires careful justification. The Court reduced the period of full accumulation here, in part to comply with the principle of totality.

  • Where a substantial degree of accumulation remains after adjustment, that can constitute special circumstances warranting departure from the standard ratio between the non-parole period and the head sentence.

  • In dismissing a Crown application to tender updated victim-impact evidence on resentencing, the Court noted that additional Crown evidence on resentence is an exceptional course and left the permissibility of that practice for another occasion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment for dangerous driving offences)
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (revisiting the Jurisic guideline)
- Thomson and Houlton v R (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Black v R [2010] NSWCCA 321
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48
- Harrigan v R [2005] NSWCCA 449
- R v Janceski [2005] NSWCCA 288
- R v AB [2011] NSWCCA 229; R v AB (No 2) [2011] NSWCCA 256
- Stanyard v R [2013] NSWCCA 134
- Primmer v R [2015] NSWCCA 155
- R v Price [2016] NSWCCA 50