AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 17 August 2018

Ul-Hassan v R

[2018] NSWCCA 177

Traffic & driving
SENTENCING APPEAL AGAINST SENTENCE MITIGATING FACTORS NO RECORD OF PREVIOUS CONVICTIONS WHETHER APPLICANT SUFFERED EXTRA APPLICANT RE

Citation: Ul-Hassan v R [2018] NSWCCA 177
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2018
Judge(s): Fullerton J, Davies J, Lonergan J (Davies J delivering the leading judgment)

Background

The appellant, a Pakistani national residing in Australia on a student visa, pleaded guilty to three counts of aggravated dangerous driving occasioning grievous bodily harm, arising from a single incident in the early hours of 22 March 2015 in Merrylands. He had been driving three friends home when he accelerated through a 40 km/h zone, failed to negotiate a left turn at a red light, skidded approximately 30 metres, and drove into the front of an apartment building. All four occupants, including the appellant himself, sustained serious injuries.

The three passengers who formed the subject of the dangerous driving charges suffered severe trauma. One sustained a ruptured diaphragm, multiple rib fractures, vertebral fractures, and a torn intestine requiring emergency surgery. Another suffered compound femoral fractures to both legs, facial fractures, and multiple small brain haemorrhages. The third passenger also sustained significant injuries. All three ultimately made a complete recovery, though each required multiple surgeries and extended hospitalisation.

In the District Court, the appellant was sentenced by Judge McLennan SC to an aggregate term of six years imprisonment with a non-parole period of three years. He sought leave to appeal against the severity of that sentence on six grounds.

  • Whether the sentencing judge erred by failing to consider the appellant's Major Depressive Disorder, for which he was taking medication at the time of the offences
  • Whether the sentencing judge erred in characterising the appellant's conduct as an "abandonment of responsibility" and finding his moral culpability was high
  • Whether the sentencing judge erred by failing to account for the degree of permanent injury to the victims, given they all made a complete recovery
  • Whether the sentencing judge erred by failing to give adequate weight to extra-curial punishment suffered by the appellant, including his own injuries and the impact on his relationships with the victims
  • Whether the sentencing judge erred by failing to take into account the appellant's unblemished criminal and driving record
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal found error in the sentencing below and resentenced the appellant. On the question of moral culpability, the Court accepted that the trial judge's characterisation of the conduct as an "abandonment of responsibility" overstated the position. The Court also accepted that the absence of certain aggravating factors, such as an intention to evade police or prolonged dangerous driving, could not itself reduce moral culpability, but was relevant to the overall assessment of objective seriousness.

The Court found that the sentencing judge had erred by failing to advert to the appellant's unblemished criminal and driving record, a matter expressly prescribed as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999. This omission constituted error warranting intervention. The Court also accepted that the appellant's own significant injuries, his ongoing care for the victims after the accident, and his financial support for them were properly characterised as extra-curial punishment warranting some mitigation.

The question of whether the victims' full recovery was a mitigating factor was assessed carefully. The Court confirmed that the absence of permanent injury is a relevant consideration, as the maximum penalty contemplates the most serious cases, and a case where victims fully recover is, to some degree, less serious than one where permanent injury results. The appellant's depression, which predated the offending, was also relevant both to culpability at the time of the offence and to the harshness of the custodial experience.

The Court granted leave to appeal, allowed the appeal, and resentenced the appellant. Applying a 25 per cent discount for early guilty pleas and finding special circumstances, including first-time custody, distance from family, imperfect English, and pre-existing depression, the Court imposed an aggregate sentence of five years with a non-parole period of two years and six months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge McLennan SC in the District Court on 15 December 2016 quashed
  • Appellant resentenced to an aggregate term of five years imprisonment, commencing 15 December 2016 and expiring 14 December 2021, with a non-parole period of two years and six months expiring 14 June 2019
  • Indicative sentences of two years and six months imposed for each of the three dangerous driving counts; four months for the prescribed concentration of alcohol offence (placed on a s 166 certificate)

Key Takeaways

  • A sentencing judge's failure to advert to an offender's unblemished criminal and driving record, a factor expressly listed as mitigating under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999, constitutes identifiable error warranting appellate intervention.

  • Where victims of dangerous driving offences make a complete recovery, that fact is relevant to the objective seriousness of the offending, given that the maximum penalty is calibrated to the most serious cases involving permanent consequences.

  • Characterising dangerous driving conduct as an "abandonment of responsibility" may overstate moral culpability where the circumstances do not involve deliberate or prolonged risk-taking; the absence of particular aggravating features does not lower culpability, but remains relevant to the overall assessment of objective seriousness.

  • Extra-curial punishment, in the form of an offender's own injuries sustained in the same crash and the ongoing emotional and financial burden of caring for victims, can constitute a mitigating factor on sentence.

  • Special circumstances justifying a departure from the standard non-parole period ratio may be established by a combination of factors, including first-time custody, geographic and cultural isolation from family, language difficulties, and a pre-existing mental health condition that will make the custodial experience more severe.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3), 21A(3)(e), 166

Cases
- Bravo v R [2015] NSWCCA 302
- GW v R [2018] NSWCCA 79
- Mills v R [2017] NSWCCA 87
- Mulato v R [2006] NSWCCA 282
- Pereira v R [2018] NSWCCA 171
- Priovolidis v R [2016] NSWCCA 201
- R v Baker [2000] NSWCCA 85
- R v Howcher [2004] NSWCCA 179
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Wright [2013] NSWCCA 82
- Vaiusu v R [2017] NSWCCA 71
- Vale v R [2016] NSWCCA 154
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44