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17
Court of Criminal Appeal 27 September 2017

Regina v Manok

[2017] NSWCCA 232

Traffic & driving
CRIME SENTENCE CROWN APPEAL FATIGUE WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v Manok [2017] NSWCCA 232
Court: Court of Criminal Appeal, NSW
Date: 27 September 2017
Judge(s): Payne JA; McCallum J; Wilson J

Background

The respondent pleaded guilty in the District Court to two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm, arising from a late-night motor vehicle accident. The offences carried maximum penalties of 10 years and 7 years imprisonment respectively. The respondent had been awake since approximately 4:15am on the day of the accident, having slept only four to five hours on each of the prior two nights after returning from an international flight, and had worked through to midnight before beginning a roughly 1.5-hour drive from Pyrmont to Mangrove Mountain.

The sentencing judge in the District Court imposed an aggregate sentence of 2 years, served by way of an Intensive Correction Order (ICO) rather than full-time custody, after applying a 25% discount for the respondent's early guilty plea. His Honour characterised the respondent's moral culpability as "very low" and "a little above momentary inattention," finding that the respondent only became tired from the point at which he turned onto Peats Ridge Road, approximately 12 kilometres before the accident.

The Crown appealed on the grounds that the sentencing judge had erred in assessing the objective seriousness of the offending and that the resulting sentence was manifestly inadequate.

  • Whether the sentencing judge erred in his assessment of the respondent's moral culpability by focusing on the respondent's subjective feelings of tiredness rather than the objective circumstances of fatigue
  • Whether the sentencing judge erred in finding that the respondent was not suffering from "sleep deprivation" within the meaning of the guideline judgment in R v Whyte
  • Whether the sentence of 2 years served by ICO was manifestly inadequate
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion to decline to interfere with the sentence

Decision

Two of the three judges (Payne JA and McCallum J) agreed the Crown appeal should be dismissed, though for somewhat different reasons. Wilson J's reasons are not reproduced in the provided text.

On the sentencing error: Payne JA found that the sentencing judge erred by limiting his consideration of objective seriousness to the period after the respondent first reported feeling tired. The objective evidence, including the respondent's recent international travel, severely restricted sleep, and the decision to embark on a 1.5-hour night drive after an extended working day, pointed to a state of sleep deprivation from the outset of the journey. Payne JA held that this evidence did not permit a finding of no sleep deprivation, and that characterising the respondent's moral culpability as "very low" or akin to momentary inattention was not open on the facts. The respondent's subjective belief that he was not tired when he began driving was treated as carrying little weight, analogised to the subjective beliefs of drivers who genuinely but incorrectly consider other forms of dangerous conduct to be safe.

On objective seriousness and the appropriate sentence: McCallum J agreed error was established and indicated that, had she proceeded to resentence, she would have imposed an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months. Both Payne JA and McCallum J agreed the offending warranted a sentence of full-time custody, not a community-based order.

On the residual discretion: Despite identifying error, both Payne JA and McCallum J exercised the residual discretion to decline to interfere. The key factor for McCallum J was that the respondent had already completed a significant portion of the unpaid community work required under his ICO in the short period since sentencing, demonstrating diligent compliance. Payne JA also emphasised the respondent's strong subjective case and genuine progress toward rehabilitation. Both judges acknowledged that re-sentencing the respondent to full-time custody at that stage would exact too high a cost in justice to the individual, relative to any broader sentencing guidance the intervention would provide.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the objective seriousness of fatigue-related dangerous driving must be assessed by reference to the full circumstances preceding the drive, not merely from the point at which a driver subjectively reports feeling tired.
  • A driver's genuine belief that they are not impaired when beginning a journey is not, by itself, a basis for reducing the objective gravity of the offending. The court drew an explicit analogy with drivers who genuinely but incorrectly believe they are driving safely in other dangerous circumstances.
  • Under R v Whyte, "sleep deprivation" as an aggravating factor does not require extreme or total sleep loss. The combination of recent international travel, severely restricted sleep over multiple nights, and an extended working day before a late-night drive was sufficient, in the Court's view, to establish sleep deprivation for sentencing purposes.
  • In Crown appeals, error and manifest inadequacy do not automatically lead to resentencing. The court retains a residual discretion to decline to intervene, and the onus rests on the Crown to persuade the court to exercise it. Significant post-sentence rehabilitation progress can be a powerful factor favouring non-intervention.
  • Where the Court of Criminal Appeal declines to resentence, it may nonetheless indicate the sentence it would have imposed, so that later sentencing courts receive some guidance without an individual offender bearing the full cost of that guidance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7, 53A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (guideline judgment on dangerous driving, including sleep deprivation as an aggravating factor)
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (residual discretion in Crown appeals)
- CMB v Attorney-General for New South Wales [2015] HCA 9 (onus in Crown appeals)
- Carroll v The Queen [2009] HCA 13
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Begbie [2001] NSWCCA 206
- R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489
- R v Janceski [2005] NSWCCA 288
- R v Whelan [2012] NSWCCA 147
- R v Merillo [2017] NSWCCA 173
- Mulato v R [2006] NSWCCA 282
- Silvestri v R [2016] NSWCCA 245
- Taylor v R [2006] NSWCCA 7
- R v Khatter [2000] NSWCCA 32
- R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep)