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Court of Criminal Appeal 9 December 2016

Westaway v R

[2016] NSWCCA 281

Assault & violenceDrugsTraffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL

Citation: Westaway v R [2016] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 9 December 2016
Judge(s): Macfarlan JA (with whom Hulme J and Bellew J agreed)

Background

The appellant pleaded guilty in the District Court to four offences arising from events on 21 November 2014: driving in a police pursuit in a manner dangerous to others, resisting a police officer, supplying a prohibited drug (methylamphetamine), and damaging property. The offences arose from a high-speed pursuit that ended when the appellant's vehicle struck road spikes, rolled, and came to rest, after which he physically struggled with arresting officers.

Police found methylamphetamine and cocaine in the vehicle, along with digital scales, used syringes, multiple mobile phones, and what appeared to be a drug supply tick list. The quantity of methylamphetamine (16.42 grams at 78.5% purity) was more than three times the indictable quantity but well below the commercial quantity.

The District Court imposed an aggregate sentence of 4 years' imprisonment under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), comprising a non-parole period of 2 years and 3 months and a balance of term of 1 year and 9 months. The appellant sought leave to appeal on the ground that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge failed to give appropriate regard to the principles of accumulation, concurrency, and totality in arriving at the aggregate sentence.
  • Whether the aggregate sentence of 4 years was manifestly excessive, having regard to the indicative sentences imposed for each offence and the partial concurrency the sentencing judge applied.

Decision

The appellant did not challenge any of the individual indicative sentences, nor the sentencing judge's findings on the relative seriousness of each offence. His argument was confined to the overall result: that the degree of accumulation was beyond the proper exercise of the sentencing discretion. The Court of Criminal Appeal rejected that submission.

Macfarlan JA examined the indicative sentences and the relationship between them. The indicative sentences (2 years for the pursuit offence, 18 months for drug supply, 9 months for resisting police, and 6 months for property damage) totalled 4 years and 9 months if fully cumulative. The aggregate sentence of 4 years reflected partial concurrency, as the sentencing judge had expressly recognised that the offences arose from the same incident. The Court found the aggregate sentence was comfortably within the sentencing judge's discretion.

The Court emphasised the objective seriousness of the police pursuit offence, which the sentencing judge had placed above the mid-range. The appellant drove at speeds exceeding 150 km/h over a considerable distance, crossed unbroken lines, and drove on the wrong side of the road around a blind corner. Only good fortune prevented death or serious injury. Against the appellant's background of prior driving convictions and a persistent attitude of disobedience to the law, the Court found that a substantial penalty was clearly warranted.

The Court also noted that the drug supply and resist police offences were sufficiently distinct from the pursuit offence to justify meaningful, rather than purely nominal, accumulation. The appellant's submission that the Crown's indication at sentencing that it took "no issue" with the written submissions could not be taken to constrain the judge's sentencing discretion, and the Court found that exchange of no assistance to the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) may be assessed for manifest excess by examining both the individual indicative sentences and the overall result, without needing to identify a specific arithmetic accumulation error.
  • Where indicative sentences are unchallenged, the focus of a manifest excess argument falls squarely on whether the aggregate sentence itself falls outside the range of a proper exercise of discretion.
  • The principle of totality does not require wholly concurrent sentences for offences arising from the same incident; where each offence reflects additional and distinct criminality, meaningful accumulation remains appropriate.
  • A co-accused's indication at sentencing that it does not contest the other party's written submissions does not constrain the sentencing judge's discretion to impose the sentence the judge considers appropriate.
  • Aggravating factors such as committing offences while on conditional liberty, an extensive relevant criminal history, and the grave objective danger created by the primary offence can together justify a substantial aggregate sentence even where all offences arise from a single episode.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A
- Crimes Act 1900 (NSW), ss 51B(1), 58, 195(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- JM v R [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218