Citation: R v Smith, Jarad [2016] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 28 April 2016
Judges: McCallum J at [1]; R A Hulme J at [2]; Schmidt J at [81]
Background
The respondent, a 22-year-old P2 licence holder, attended a work Christmas party in December 2014 where he consumed large quantities of alcohol and illicit drugs over several hours. The following morning, with a blood alcohol concentration estimated between 0.201 and 0.210, he drove along Victoria Road, Rozelle. After approximately one kilometre, the sentencing judge found he fell asleep at the wheel and his car mounted the kerb, killing two pedestrians.
The respondent fled the scene but was found nearby shortly afterwards. He immediately admitted the offences to police, disclosed his drug and alcohol consumption, and expressed remorse. He was charged with two counts of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW), and asked the sentencing court to take into account a further offence of failing to stop and assist after a vehicle impact causing death.
In the District Court, Judge McClintock SC imposed an aggregate sentence of seven years with a non-parole period of four years, backdated to account for pre-sentence custody. The Crown appealed to the Court of Criminal Appeal, contending the sentence was manifestly inadequate.
Legal Issues
- Whether the aggregate sentence of seven years (non-parole period of four years) for two counts of aggravated dangerous driving occasioning death was manifestly inadequate
- Whether the sentencing judge gave sufficient weight to the high objective seriousness of the offences, the need for general deterrence, and the fact that two lives were lost
- Whether the sentencing judge was entitled to place significant weight on the respondent's favourable subjective circumstances, including his age, lack of prior offending, genuine remorse, and prospects of rehabilitation
Decision
R A Hulme J (with whom McCallum J and Schmidt J agreed) identified the central tension as one between the undeniable severity of the offending and the respondent's genuinely favourable subjective circumstances. The offending was objectively serious: the respondent had driven in a grossly intoxicated state on a public road on a P-plate licence, fell asleep, and killed two people. The additional offence of fleeing the scene compounded the criminality. General deterrence was of particular importance in this category of offence.
However, the Court noted that the sentencing judge was fully alive to all of those aggravating features and stated them plainly. The judge was also required to weigh the respondent's age, complete absence of prior criminal or driving history, genuine and immediate remorse, complex personal background (including the early death of his father by suicide, an antisocial upbringing, and a diagnosis of ADHD), and strong prospects of rehabilitation. These matters could not simply be set aside.
The Court observed that for a Crown appeal to succeed on the ground of manifest inadequacy, it must be established that the sentence was "unreasonable or plainly unjust." No specific or patent error was identified in the sentencing judge's reasoning, and the judge's careful treatment of both objective and subjective considerations could not be so characterised. The Court also examined comparable cases and sentencing statistics, concluding these confirmed the sentence fell within an available range.
The Court reaffirmed the High Court's recognition that there is no single correct sentence and that sentencing judges are to be allowed appropriate flexibility, consistent with principle and the applicable statutory regime. The Crown appeal was dismissed.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that manifest inadequacy requires a sentence to be shown as "unreasonable or plainly unjust," not merely less than another available option.
- Favourable subjective circumstances, including youth, absence of prior offending, genuine remorse, and strong rehabilitation prospects, remain relevant and weighty considerations even where the objective seriousness of the offending is high.
- A sentencing court dealing with multiple fatalities from a single episode of dangerous driving must balance the need for general deterrence and denunciation against the full range of personal circumstances, consistent with the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Comparable cases and sentencing statistics can confirm, though not mechanically determine, whether an aggregate sentence falls within an available range.
- Where no specific or patent error is identified in a sentencing judge's reasoning, and where the judge has expressly addressed all relevant aggravating and mitigating factors, an appellate court will be slow to intervene.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 52A(2), 52AB(1)
- Crimes (Appeal and Review) Act 2001 (NSW) s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 44(2B)
- Criminal Appeal Act 1912 (NSW) s 5D
- Road Transport Act 2013 (NSW) Ch 7 Pt 7.4 Div 1, s 206A
Cases:
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v McKeown [2013] NSWDC 22
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
- CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
- Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- R v Wright [2013] NSWCCA 82; 229 A Crim R 245
- R v GWM [2012] NSWCCA 240
- R v Millwood [2012] NSWCCA 2
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Gommesen v R [2012] NSWCCA 226
- R v Smith [2005] NSWCCA 19
- Lawrence v R [2007] NSWCCA 349
- R v Pevy [2004] NSWCCA 414
- Berg v R [2004] NSWCCA 300
- R v Skrill [2002] NSWCCA 484
- R v Morrow [2009] NSWDC 78