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89
Court of Criminal Appeal 18 November 2016

Lehn v R

[2016] NSWCCA 255

Also reported as (2016) 93 NSWLR 205 (2016) 262 A Crim R 537
HomicideDrugsTheft & propertyTraffic & driving
CRIMINAL LAW APPEAL SENTENCING WHETHER APPELLATE COURT MUST RE WHETHER MANIFESTLY EXCESSIVE

Citation: Lehn v R [2016] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 18 November 2016
Judges: Bathurst CJ, Beazley P, R A Hulme J, Schmidt J, Wilson J

Background

The applicant pleaded guilty to aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900 (NSW), along with a Form 1 offence of failing to stop and assist after a vehicle impact causing death. He also faced a charge of stealing a motor vehicle and two drug possession counts on a further Form 1. The offending arose from a single incident in which the applicant stole a manual car (which he did not know how to drive), drove it while affected by methamphetamine, sleep-deprived and at grossly excessive speed, lost control, struck and killed a pedestrian on a nature strip, and then fled the scene without rendering assistance.

At sentencing, the Crown did not submit that any discount below the standard 25% utilitarian discount for an early guilty plea was warranted. Despite this, the sentencing judge applied only a 20% discount, reasoning that a larger reduction might bring the sentence below a level properly reflecting the objective gravity of the offending. Both parties accepted that the failure to raise this reasoning with them before deciding the point constituted a denial of procedural fairness.

The sentencing judge imposed an aggregate sentence of 11 years with a non-parole period of 8 years. The applicant sought leave to appeal on the basis that the procedural fairness error infected the sentence and that a lesser sentence was warranted in law.

  • Whether the procedural fairness error in determining the guilty plea discount vitiated the entire sentencing exercise or only a discrete component of it
  • Where the error affects only a discrete component, whether the Court of Criminal Appeal is required to re-exercise the sentencing discretion afresh (as opposed to correcting only the affected component)
  • Whether the applicant was required to demonstrate substantial injustice to obtain resentencing
  • Whether, on a fresh exercise of discretion, a lesser sentence was warranted in law

Decision

On the scope of the error. The Court held unanimously that the error was directly connected to a sentencing purpose, namely, ensuring the penalty reflected the objective gravity of the offence. R A Hulme J added that errors in individual offence sentences can also affect the related discretionary exercises of concurrence, accumulation, and totality, as well as any adjustment for special circumstances.

On the duty to resentence. The Court confirmed, by majority, that where an error has affected the exercise of the sentencing discretion, s 6(3) of the Criminal Appeal Act 1912 (NSW) requires the Court to form its own view of the appropriate sentence. Re-exercise is required whether the error infected the entire sentence or only a discrete component of it. Arithmetical or mechanical errors (for example, a miscalculation of a date or the quantum of an already-determined discount) are distinguished as exceptions where full re-exercise is not necessary. The majority declined to follow two recent decisions that had suggested a narrower approach to resentencing where only a discrete component was affected.

On substantial injustice. The Court held unanimously that no requirement exists, in an appeal under s 5(1) of the Criminal Appeal Act 1912, for an applicant to demonstrate substantial injustice as a precondition to resentencing. The obligation on the Court flows from s 6(3) once an error is identified and the Court forms the opinion that a different sentence is warranted.

On whether a lesser sentence was warranted. The majority (Bathurst CJ, Beazley P, R A Hulme J, and Schmidt J) held that the offending was in the upper range of objective seriousness, involving multiple aggravating features: driving without experience of the vehicle type, drug impairment, severe sleep deprivation, and grossly excessive speed in a residential area. The applicant's moral culpability was very high. Nonetheless, having re-exercised the discretion and applied the full 25% discount, the majority concluded that a lesser sentence was warranted in law and resentenced accordingly. Wilson J dissented, finding that the gravity of the criminality, the distinct criminality of the separate offences, and the applicant's criminal record did not entitle him to any reduction, and that no lesser sentence was warranted in law.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

  • Where a sentencing error affects any component of the sentencing discretion, the Court of Criminal Appeal is required under s 6(3) of the Criminal Appeal Act 1912 to re-exercise the sentencing discretion afresh, not merely to correct the isolated error. This applies equally to errors in discrete components (such as the guilty plea discount) as to errors that infect the overall sentencing exercise.
  • A narrow exception exists: purely mechanical or arithmetical errors in calculating dates or giving effect to a discount that was itself properly determined do not require a full re-exercise of the sentencing discretion.
  • No requirement of "substantial injustice" operates as a gateway to resentencing in an appeal under s 5(1) of the Criminal Appeal Act 1912. The precondition is simply that the Court forms a positive opinion that some other sentence is warranted in law.
  • A sentencing judge's failure to raise with the parties a proposed departure from the standard utilitarian guilty plea discount, where the Crown had made no submission supporting that departure, constitutes a denial of procedural fairness sufficient to ground appellate intervention.
  • Aggravated dangerous driving causing death involving drug impairment, no experience of the vehicle, sleep deprivation, and grossly excessive speed in a residential area was assessed by the majority as falling in the upper range of objective seriousness with a very high degree of moral culpability, consistent with the guideline judgment in R v Whyte (2002) 55 NSWLR 252.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 52AB, 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 22, 33, 44
- Criminal Appeal Act 1912 (NSW), s 6
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
- Road Transport Act 2013 (NSW), s 206A

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Bombardieri v R [2010] NSWCCA 161; (2010) 203 A Crim R 89
- Daniels v R [2016] NSWCCA 35 (not followed)
- Carroll v R [2015] NSWCCA 219 (distinguished)
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Kentwell v R (No 2) [2015] NSWCCA 96