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Court of Criminal Appeal 28 November 2016

R v Crumpton

[2016] NSWCCA 261

Traffic & driving
CRIMINAL LAW APPEAL SENTENCING CROWN APPEAL PLANE HIT POWER LINES WHETHER SENTENCES MANIFESTLY INADEQUATE

Citation: R v Crumpton [2016] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 28 November 2016
Judges: Beazley P, Davies J, Garling J

Background

The respondent, a private pilot, flew his light aircraft at extremely low altitude along the Clarence River in April 2014, carrying two passengers: an adult male friend and the friend's eleven-year-old daughter. Flying at between 16 and 25 metres above the water, the aircraft struck power lines. The plane stalled, inverted, and crashed into the river.

The child died from a cervical spine injury sustained in the crash. The adult passenger suffered serious injuries including lacerations, burns, and a crush fracture to his vertebrae. The respondent had been aware that power lines existed in the area and had not previously flown over that exact stretch of river.

The respondent was acquitted of manslaughter but convicted by a jury of two offences under Commonwealth law: operating an aircraft recklessly so as to endanger life (maximum five years) and operating an aircraft recklessly so as to endanger a person (maximum two years). The sentencing judge in the District Court imposed terms of 15 and 9 months' imprisonment respectively, but immediately released the respondent on a recognisance under s 20(1)(b) of the Crimes Act 1914 (Cth). The Crown appealed on the ground that those sentences were manifestly inadequate.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the sentencing judge erred in his approach to general deterrence
  • Whether a wholly suspended sentence was appropriate for offences of this nature
  • Whether ordering the sentences to be fully concurrent was an error
  • Whether the sentences were, in all the circumstances, manifestly inadequate
  • Whether a residual discretion should be exercised to decline to re-sentence, notwithstanding any errors found

Decision

The Court of Criminal Appeal upheld all grounds of appeal and found the sentences manifestly inadequate. Davies J (with Beazley P and Garling J agreeing) identified multiple errors in the sentencing judge's approach.

On objective seriousness, the sentencing judge failed to conduct any proper assessment. The respondent deliberately flew at very low altitude knowing power lines might be present in the region, having not previously flown that precise stretch of river. Death and serious injury resulted. The Court found this placed the offending above the mid-range of seriousness.

On general deterrence, the Court found it was a significant sentencing consideration for this type of offending. The sentencing judge gave it insufficient weight, contributing to an outcome that did not adequately reflect the gravity of the conduct. The Court also found that a fully suspended sentence was not appropriate for offences above the mid-range that resulted in a child's death and serious injury to another person.

On full concurrency, the Court found that ordering the sentences to run entirely concurrently was an additional error. The two offences had different victims, and the principle of accumulation applied in those circumstances. Taking into account the respondent's genuine remorse, very good rehabilitation prospects, limited prior offending (though a similar earlier infringement was noted), and the fact that this was a Crown appeal where the respondent had not originally served any custodial time, the Court re-sentenced him to 21 months on count 2 and 12 months on count 3, with the latter commencing 12 months after the start of the first sentence, to be served by way of Intensive Correction Order if he was found suitable.

Orders Made

  • Appeal allowed
  • Sentences imposed in the District Court on 28 April 2016 quashed
  • Respondent referred for assessment as to suitability for an Intensive Correction Order in the community pursuant to Division 3 of Part 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Proceedings adjourned for that purpose

Key Takeaways

  • A sentencing judge's failure to conduct any proper assessment of objective seriousness constitutes a legal error that can justify appellate intervention, even where other aspects of sentencing are otherwise defensible.

  • General deterrence carries significant weight for offences involving reckless endangerment in the operation of aircraft, particularly where death or serious injury results.

  • A wholly suspended sentence will not ordinarily be adequate for serious recklessness offences above the mid-range that produce fatal or gravely injurious outcomes.

  • Where two counts of a single course of reckless conduct involve different victims, the Court of Criminal Appeal confirmed that full concurrency is not automatically appropriate.

  • On a Crown appeal, the fact that a respondent was not originally sentenced to actual custody is a significant but not determinative factor in the exercise of the residual discretion: the Court may still impose a more substantial sentence where the original sentence was manifestly inadequate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 3, Pt 5
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Betts v The Queen [2016] HCA 25; (2016) 90 ALJR 758
- Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
- CMB v Attorney-General for New South Wales [2015] HCA 9
- Colomer v R [2014] NSWCCA 51
- DPP (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145
- Gallagher v The Queen (1986) 160 CLR 392
- House v The King (1936) 55 CLR 499
- R v Mulligan [2016] NSWCCA 47
- R v Saleh [2015] NSWCCA 299
- Regina v Janceski [2005] NSWCCA 288; 44 MVR 328
- Richards v R [2006] NSWCCA 262; 46 MVR 165
- Silvestri v R [2016] NSWCCA 245
- TG v R [2010] NSWCCA 28; 55 MVR 180
- Zaky v R [2015] NSWCCA 161