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9
Court of Criminal Appeal 8 April 2016

R v Price

[2016] NSWCCA 50

HomicideDrugsTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: R v Price [2016] NSWCCA 50
Court: Court of Criminal Appeal, New South Wales
Date: 8 April 2016
Judge(s): Gleeson JA, Button J, Fagan J (all agreeing)

Background

The respondent pleaded guilty in the Local Court to two counts of dangerous driving occasioning death, one count of dangerous driving occasioning grievous bodily harm, and three further summary and indictable offences. The three principal offences were committed to the District Court for sentence; the remaining three were placed before the sentencing judge on a certificate of related offences under s 166 of the Criminal Procedure Act 1986 (NSW). All offences arose from a single incident on 24 April 2014 at Coolangatta.

The respondent had been driving while substantially affected by methylamphetamine when his vehicle crossed almost entirely into oncoming traffic, colliding with a car carrying an elderly couple. Both died as a result. The respondent's two-year-old son, who was in the vehicle, suffered catastrophic injuries including traumatic brain injury and permanent paraplegia. Immediately after the collision, the respondent passed his drugs, cash, and wallet to an acquaintance at the scene, conduct the sentencing judge ultimately declined to treat as an aggravating feature.

In the District Court, Judge McClintock SC imposed an aggregate sentence of six years imprisonment with a non-parole period of four years, covering all six offences. The Crown appealed on two grounds: that the aggregate sentence was manifestly inadequate, and that the s 166 certificate offences could not lawfully be incorporated into an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the aggregate sentence of six years (non-parole period four years) was manifestly inadequate given the objective gravity of the offending and its consequences.
  • Whether offences placed before the District Court by way of a s 166 certificate under the Criminal Procedure Act 1986 (NSW) can lawfully be included in an aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

On the s 166 certificate issue, the Court of Criminal Appeal held that the three related offences placed before the District Court on the s 166 certificate could not be incorporated into an aggregate sentence under s 53A. Section 168(3) of the Criminal Procedure Act limits the powers of the court dealing with s 166 certificate offences to those the Local Court could exercise. Because the Local Court has no power to impose an aggregate sentence under s 53A, the District Court equally lacked that power in respect of those offences. The sentencing judge had therefore erred in including them within the aggregate.

On manifest inadequacy, the Court found the aggregate sentence of six years was manifestly inadequate when assessed against the objective seriousness of the offending. The respondent had driven while heavily drug-affected, killing two people and causing catastrophic, permanent injury to his infant son. While the sentencing judge correctly declined to treat the post-crash conduct as aggravating the principal offences, Button J conducted a detailed step-by-step analysis of the appropriate indicative sentences for each offence and the correct structuring of the aggregate.

Taking into account the guilty pleas (attracting a 25% discount), the respondent's subjective circumstances, and the need to apply the totality principle, the Court increased the aggregate head sentence to eight years and six months, with a non-parole period of five years and eight months. The Court noted that no lesser non-parole period would properly reflect the minimum term of imprisonment warranted by the totality of the offending.

On disqualification, the original order's commencement date was unclear. The Court clarified that under s 206A of the Road Transport Act 2013 (NSW), the five-year disqualification period does not begin until the respondent's release from custody, and it reissued the disqualification order accordingly.

Orders Made

  • The Crown appeal was allowed.
  • The aggregate sentence imposed on 5 June 2015 was quashed.
  • The respondent was re-sentenced to an aggregate head sentence of 8 years and 6 months, commencing 15 November 2014 and expiring 14 May 2023, with a non-parole period of 5 years and 8 months expiring 14 July 2020.
  • The disqualification period imposed on 5 June 2015 was quashed and replaced with a five-year disqualification commencing on the date the respondent is first released from custody, pursuant to s 206A of the Road Transport Act 2013 (NSW).
  • The earliest date for release to parole was set at 14 July 2020.

Key Takeaways

  • Under s 168(3) of the Criminal Procedure Act 1986 (NSW), the District Court's powers when dealing with offences placed before it on a s 166 certificate are limited to those of the Local Court. Because the Local Court cannot impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), certificate offences cannot be included in an aggregate sentence in the higher court.

  • A sentence for multiple counts of dangerous driving causing death and grievous bodily harm, where the driving was caused by illicit drug intoxication and resulted in two fatalities and catastrophic injury to an infant, will attract a substantial aggregate term. An aggregate of six years with a four-year non-parole period was held to be manifestly inadequate on these facts.

  • Declining to treat a respondent's post-offence conduct as aggravating the principal offences does not shield that conduct from independent sentencing consideration through the related certificate offences.

  • Section 206A of the Road Transport Act 2013 (NSW) operates to delay the commencement of a disqualification period until the offender's release from custody, regardless of the terms in which a disqualification order is expressed at the time of sentence.

  • In applying the totality principle to an aggregate sentence, the Court of Criminal Appeal confirmed that step-by-step analysis of individual indicative sentences remains the appropriate methodology before arriving at an adjusted aggregate reflecting the overall criminality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(2), 52A(3)(c), 52A(4), 154A(1)(a), 527C(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), Div 7, ss 166, 168(3), 168(4), 267(2), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 49, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 12(1), 25(1)
- Road Transport Act 2013 (NSW), s 206A

Cases
- JM v R [2014] NSWCCA 297
- King v R [2015] NSWCCA 99
- R v Harris [2015] NSWCCA 81
- R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
- R v Pham [2015] HCA 39; (2015) 90 ALJR 13
- R v Sward [2014] NSWCCA 259
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252