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Court of Criminal Appeal 6 May 2016

R v Tuhakaraina

[2016] NSWCCA 81

Traffic & driving
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SUBSTANTIAL REDUCTION IN NON PAROLE PERIOD WHETHER THE NON PAROLE PERIOD IS MANIFESTLY INADEQUATE

Citation: R v Tuhakaraina [2016] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 6 May 2016
Judge(s): R A Hulme J, Garling J, Wilson J

Background

The respondent pleaded guilty in the District Court to aggravated dangerous driving causing grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900 (NSW). The aggravating circumstance was the presence of alcohol in his blood at the time of the offence. On the day in question, he drank a substantial quantity of beer across the afternoon before driving, with an estimated blood alcohol concentration of approximately 0.194 grams per 100 millilitres at the time of impact, nearly four times the legal limit.

The respondent failed to give way to an oncoming motorcyclist while making a right turn, colliding with the motorcycle. The rider suffered serious injuries including multiple fractures to his right leg. After the collision, the respondent drove to a nearby street and walked home without checking on the injured rider or summoning help.

District Court Judge Sweeney imposed a total sentence of 2 years and 6 months. Having found that special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), primarily relating to the ill health of the respondent's partner, her Honour reduced the non-parole period substantially to only 6 months. The Director of Public Prosecutions appealed, arguing the non-parole period was manifestly inadequate and that the sentencing judge had erred in the weight given to the partner's ill health.

  • Whether the sentencing judge erred in reducing the non-parole period to an impermissible extent by reference to the ill health of the respondent's partner as a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the overall sentence was manifestly inadequate
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene despite finding error, given the respondent's proximity to his release date

Decision

The Court unanimously dismissed the appeal, though the three judges arrived at that outcome through different paths of reasoning.

On manifest inadequacy of the head sentence: The Crown conceded during argument that it would face difficulty arguing the total sentence of 2 years and 6 months was manifestly inadequate. Both Garling J and Wilson J found the head sentence fell within the range properly available to the sentencing judge, and this ground was not upheld.

On the non-parole period: Wilson J (with whom Hulme J agreed) found that the 6-month non-parole period was erroneously lenient. Her Honour concluded the sentencing judge had placed excessive weight on the partner's illness in reducing the non-parole period, and that the period fixed failed to meet the requirements of denunciation and general deterrence, and fell below the minimum the respondent ought to have been required to serve. Wilson J considered that an adequate non-parole period would have been approximately three times the one imposed. Garling J, while accepting the non-parole period was lenient, was not satisfied it fell below the minimum justice required and would not have upheld the first ground of appeal at all.

On residual discretion: Despite Wilson J's finding of error, the Court declined to intervene and re-sentence the respondent. The appeal had been filed promptly and prosecuted without delay by the Crown, but the Court had not given the matter sufficient priority and the hearing was significantly delayed. By the time of the appeal, the respondent had served nearly the entirety of his non-parole period and was due for release on 26 May 2016. Wilson J held that tripling the non-parole period at that late stage would work an unfairness on the respondent, and accordingly exercised the residual discretion to dismiss the appeal.

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • A non-parole period is the minimum period of actual incarceration which justice requires an offender to serve, having regard to all circumstances of the offence, as confirmed by reference to Power v The Queen (1974) and Muldrock v R (2011).
  • The Court of Criminal Appeal is slow to interfere with a sentencing judge's finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), given the evaluative and fact-dependent nature of that determination.
  • In dismissing the appeal, the Court confirmed that the primary purpose of a Crown appeal is the enunciation of sentencing principles for future guidance, not simply the correction of an individual sentence.
  • Appellate courts retain a residual discretion to decline to resentence even where error is found. Proximity to release, particularly where the delay in hearing the appeal was attributable to the court rather than any failure by the Crown, is a legitimate basis for exercising that discretion against intervention.
  • No error arises in a head sentence merely because a special circumstances finding has substantially altered the ratio between the non-parole period and the overall term; the absence of a standard non-parole period for this offence gives sentencing judges broader, though not unlimited, discretion in fixing the non-parole component.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(4), 52A(7)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 54A

Cases
- Allen v R [2015] NSWCCA 113
- Delaney v R [2013] NSWCCA 150
- Dipangkear v R [2010] NSWCCA 156
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Mitrevski v R [2015] NSWCCA 137
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- R v Edwards (1996) 90 A Crim R 510
- R v Fidow [2004] NSWCCA 172
- R v Girard [2004] NSWCCA 170
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704