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12
Court of Criminal Appeal 3 August 2018

R v Shashati

[2018] NSWCCA 167

DrugsTraffic & driving
SENTENCING MANIFEST INADEQUACY SENTENCING SENTENCE MANIFESTLY INADEQUATE DISCRETION TO INTERVENE

Citation: R v Shashati [2018] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 3 August 2018
Judges: Basten JA; Wilson J; Lonergan J

Background

The offender was convicted of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). On the afternoon of 21 January 2015, he drove a Nissan Pathfinder along the gravel shoulder of Medowie Road at approximately 80 km/h, passing slow-moving traffic, while carrying his teenage son and three nephews. The vehicle struck a drainage ditch, became briefly airborne, and stopped abruptly. One of the passengers, a young boy, suffered fatal head and neck injuries. The offender's blood sample returned a reading of 0.32 mg/L of methylamphetamine, and the jury found his ability to drive was very substantially impaired by the drug.

The District Court sentenced the offender to a total term of 4 years 6 months imprisonment, with a non-parole period of 2 years 3 months. The sentencing judge assessed the offending as being at the mid-range of objective seriousness.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate. Three additional grounds were later added, contending the sentencing judge had erred by excluding evidence of prior erratic driving, by failing to account for the duration of the dangerous journey, and by placing the offending only at mid-range objective seriousness.

  • Whether the sentencing judge erred by excluding from consideration the offender's episodes of erratic and dangerous driving in the hours before the fatal accident
  • Whether the sentencing judge erred by failing to account for the length of the journey during which other road users were exposed to risk
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending as being at the mid-range only
  • Whether the original sentence of 4 years 6 months was manifestly inadequate

Decision

The Court of Criminal Appeal upheld the Director's appeal on two specific errors and on the ground of manifest inadequacy. The sentencing judge had declined to take into account the witnesses' accounts of the offender's erratic driving in the hours before the fatal crash, treating that evidence as having been admitted at trial only to assist the expert witnesses. The Court of Criminal Appeal found this was an error: the prior driving episodes were directly relevant to objective seriousness and to the circumstances of the offence, and the sentencing judge was entitled to have regard to them.

On the question of objective seriousness, the Court held the offending warranted a higher assessment than mid-range. The offender had consumed methylamphetamine earlier that afternoon, had been driving erratically for an extended period before the accident, and had exposed multiple road users to risk over a sustained distance. The combination of very substantial drug impairment, prolonged dangerous driving, and the fatal outcome placed the conduct above the midpoint of the range.

The Court acknowledged the "double counting" principle: a sentencing court must be careful not to punish separately for the prior driving episodes as if they were independent offences. However, that principle did not preclude the sentencing court from treating the prior conduct as part of the overall circumstances bearing on the seriousness of the offence for which the offender was sentenced.

After considering the relevant sentencing principles, including the guidance in R v Whyte (2002) and subsequent decisions of this Court, the Court of Criminal Appeal concluded the original sentence was manifestly inadequate and that intervention was warranted. It resentenced the offender to a total term of 6 years imprisonment, with a non-parole period of 3 years 3 months.

Orders Made

  • The Director's appeal was allowed and the District Court sentence was set aside.
  • The offender was resentenced to imprisonment for 6 years, comprising a non-parole period of 3 years 3 months and a balance of term of 2 years 9 months.
  • The sentence commenced on 6 April 2018 and expires on 5 April 2024.
  • The non-parole period expires on 5 July 2021, being the date of first eligibility for release on parole.

Key Takeaways

  • Evidence of an offender's driving prior to a fatal accident is not automatically limited to the purpose for which it was admitted at trial. A sentencing court may treat such evidence as relevant to the objective seriousness of the charged offence, provided it does not punish the offender separately for the earlier conduct as if it were a distinct offence.
  • Where an offender drives dangerously over a prolonged period before a fatal crash, exposing multiple road users to risk across a substantial distance, the duration and extent of that conduct is a relevant factor in assessing objective seriousness at sentence.
  • The combination of very substantial drug impairment, sustained dangerous driving before the crash, and a fatal outcome can collectively lift an assessment of objective seriousness above the midpoint of the range for aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900.
  • In allowing the Director's appeal, the Court of Criminal Appeal reinforced the importance of adequate and consistent sentencing for dangerous driving offences, consistent with principles affirmed in R v Whyte and R v Jurisic.
  • A sentence for aggravated dangerous driving causing death in circumstances such as these, assessed by the Court as above mid-range, resulted in a total term of 6 years imprisonment with a non-parole period of 3 years 3 months.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Jurisic (1998) 45 NSWLR 209
- Regina v Manok [2017] NSWCCA 232; 81 MVR 427
- Hei Hei v R; R v Hei Hei [2009] NSWCCA 87; 52 MVR 473
- Bombardieri v R [2010] NSWCCA 161
- Smith v R [2011] NSWCCA 290
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Scott [2003] VSCA 55; 141 A Crim R 323
- R v Ryan [2003] NSWCCA 202; 141 A Crim R 403
- Regina v Ammar Elrifai [2002] NSWCCA 496
- Regina v David Berg [2004] NSWCCA 300; 41 MVR 399
- R v Millwood [2012] NSWCCA 2
- Gommesen v R [2012] NSWCCA 226; 62 MVR 196
- R v Elkassir [2013] NSWCCA 181; 233 A Crim R 411
- R v Wright [2013] NSWCCA 82; 229 A Crim R 245