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Court of Criminal Appeal 7 March 2017

Costello v R

[2017] NSWCCA 32

HomicideTraffic & driving
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE DANGEROUS DRIVING OCCASIONING DEATH LEAVE TO LEAD FRESH EVIDENCE GRANTED EXCEPTIONAL CIRCUMSTANCES ESTABLISHED

Citation: Costello v R [2017] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 7 March 2017
Judge(s): Macfarlan JA, Harrison J, Schmidt J

Background

The appellant was a truck driver sentenced in June 2016 to 3 years and 3 months' imprisonment, with a non-parole period of 1 year and 10 months, after pleading guilty to dangerous driving occasioning death under s 52A(1) of the Crimes Act 1900 (NSW). The offence arose from a 2013 collision in which his rigid truck struck a cyclist riding in a dedicated cycling lane, causing fatal injuries. The sentencing judge found the driving involved aggressive merging behaviour lasting several seconds, a failure to keep a proper lookout, and a failure to take evasive action. The offence was assessed as falling below the mid-range of objective seriousness, but not at the lower end.

In January 2017, the appellant filed an unusual application seeking leave to appeal on a single ground: that the sentencing proceedings had miscarried because evidence that could not have been available at the time of sentencing was now available. That evidence concerned the unexpected diagnosis of terminal cancer in his partner, who was 43 years old and the mother of their two young children, aged 4 and 7. She had begun experiencing symptoms only in August 2016 and was by the time of the appeal receiving palliative care.

The appellant himself accepted that the original sentence was entirely appropriate on the evidence before the sentencing judge. The appeal was brought solely to allow him to assist his terminally ill partner and their children.

  • Whether fresh evidence, not available at the time of sentencing, should be received on appeal
  • Whether the fresh evidence, relating to the terminal illness of the appellant's partner, established exceptional hardship of a kind capable of warranting a reduction in sentence
  • Whether, in light of that evidence, a lesser sentence should be imposed as a matter of mercy

Decision

The Court confirmed its power to receive fresh evidence on appeal where that evidence could not have been obtained at the time of sentencing by the exercise of reasonable diligence, relying on Betts v The Queen (2016). The Court also confirmed that medical evidence relating to the health of a family member, bearing on exceptional hardship to an offender's partner and children, may be received and considered on appeal, consistent with Stumbles v R [2006] NSWCCA 418. The Crown did not oppose the receipt of the evidence.

The Court accepted that the diagnosis of terminal cancer in a relatively young woman, and its consequences for both her and the couple's two young children, constituted circumstances of a truly exceptional nature. There was a real risk that the partner might not survive until the appellant's earliest parole eligibility date of December 2017. The Court found that the evidence materially altered the appellant's subjective circumstances as known at the time of sentencing.

Drawing on the principle in R v Edwards (1996) that wholly exceptional circumstances may require a court to impose a lesser sentence as a matter of simple mercy, the Court held that the sentence otherwise appropriate to meet the community's expectations of punishment, retribution, and deterrence had to be ameliorated. Both the head sentence and the non-parole period were reduced, and the appellant was released on parole on the day of the appeal hearing.

Orders Made

  • The appellant was granted leave to lead fresh evidence
  • Leave to appeal was granted
  • The appeal was upheld
  • The original sentence was quashed
  • The appellant was resentenced to a term of imprisonment of 3 years commencing 21 February 2016, with a non-parole period of 1 year and 14 days
  • The appellant was released on parole on the day of the hearing (7 March 2017)

Key Takeaways

  • Fresh evidence of post-sentencing events may be received on appeal where it was not available at the time of the sentencing hearing and could not have been obtained by reasonable diligence: the Court applied Betts v The Queen (2016).
  • Medical evidence concerning the health of a family member, going to exceptional hardship caused by an offender's incarceration, is a recognised category of fresh evidence available for consideration on a sentence appeal, confirmed in Stumbles v R.
  • A serious criminal sentence may, in wholly exceptional circumstances, be reduced as a matter of mercy, even where the original sentence was accepted as appropriate on the evidence available at the time: the Court applied the principle from R v Edwards (1996).
  • The terminal cancer diagnosis of the appellant's relatively young partner, combined with the impact on their two young children's care and welfare, satisfied the high threshold of "truly exceptional circumstances" required to enliven the mercy jurisdiction.
  • In Mokhaiver v R [2011] NSWCCA 10, the Court had previously accepted that fresh evidence of exceptional family hardship can lead to resentencing in cases involving serious offences, and the present decision confirms that approach remains available.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25
- Stumbles v R [2006] NSWCCA 418
- Mokhaiver v R [2011] NSWCCA 10
- R v Edwards (1996) 90 A Crim R 510