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19
Court of Criminal Appeal 24 October 2018

Conte v R

[2018] NSWCCA 209

Traffic & driving
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE MANIFEST EXCESS OBJECTIVE SERIOUSNESS SPECIAL CIRCUMSTANCES

Citation: Conte v R [2018] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 24 October 2018
Judges: Payne JA and Button J (joint judgment); Schmidt J (separate judgment)

Background

The applicant was convicted of aggravated dangerous driving occasioning death, aggravated dangerous driving occasioning grievous bodily harm, and a related driving offence under the Crimes Act 1900 (NSW). The circumstances were described by the Court as an atrocious abandonment of responsibility, producing two horrific outcomes for the victims. Colefax DCJ in the District Court imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years and 6 months, which was at or near the top of the range for such offences.

The applicant sought leave to appeal against sentence on three grounds: that the aggregate sentence was manifestly excessive, that the sentencing judge had erred in assessing the objective seriousness of the offences, and that the judge had erred in not finding special circumstances warranting a variation to the standard non-parole period ratio.

The Court granted leave to appeal but was divided on the outcome of the manifest excess ground. Payne JA and Button J found the sentence manifestly excessive; Schmidt J found it was within the available range. The majority view prevailed, and the appeal was dismissed.

  • Whether the aggregate sentence of 14 years imprisonment was manifestly excessive for aggravated dangerous driving occasioning death and grievous bodily harm
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences by using language associated with the standard non-parole period regime
  • Whether the sentencing judge erred in declining to make a finding of special circumstances

Decision

Ground 2 (Objective seriousness): All judges agreed this ground failed. The use of language associated with standard non-parole period assessments is not inherently erroneous and does not demonstrate that the sentencing process was improperly constrained. The sentencing judge's characterisation of the death offence as towards the upper end and the grievous bodily harm offence as slightly over mid-range was open and explicable: grievous bodily harm spans an enormous range of consequences, from a broken leg through to a permanent vegetative state.

Ground 3 (Special circumstances): All judges agreed this ground also failed. A finding of special circumstances was open to the sentencing judge but was not compelled. The absence of such a finding was not an error.

Ground 1 (Manifest excess): This ground produced a divided court. Payne JA and Button J accepted that there was no identifiable error of legal principle in the remarks on sentence. However, applying the principle that intervention is warranted where a sentence is so far outside the available range that error can be inferred, they concluded the aggregate sentence crossed that line. Schmidt J disagreed, reasoning that the indicative sentences for each individual offence were not erroneously high and that the sentencing judge had applied considerable concurrency when arriving at the aggregate figure of 14 years. Her Honour noted that the indicative sentences totalled 21 years and 6 months before the totality principle was applied, demonstrating significant leniency in the aggregate.

The majority view was that the appeal should be dismissed despite the manifest excess finding, because the orders proposed by the majority are not reproduced in the available text. The formal orders granted leave but dismissed the appeal, consistent with Schmidt J's proposed orders. Practitioners should read the full judgment for the precise reasoning of each member of the Court on the interaction between these conclusions and the final orders.

Orders Made

  • Leave to appeal allowed
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not prohibited from using terminology associated with the standard non-parole period regime when assessing objective seriousness, and such usage does not of itself indicate a flawed sentencing process.
  • Appellate intervention on the ground of manifest excess is only warranted where the sentence is so far outside the available range that error can be inferred, even if that error is not apparent from the reasons: a markedly different result alone does not justify intervention.
  • Comparing sentences for aggravated versions of dangerous driving offences with sentences for the simple versions of those offences is of limited utility when assessing manifest excess.
  • The Court confirmed that statistical analysis of sentencing patterns provides only limited assistance, particularly because aggregate sentences and total cumulative sentences are not directly comparable.
  • A finding of special circumstances is available to a sentencing judge where the evidence supports it but is not compelled merely because such a finding was open on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(2), 52A(4), 52AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Procedure Act 1986 (NSW)

Cases:
- Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 25
- Mulato v R [2006] NSWCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Obeid v R [2017] NSWCCA 221
- R v Shashati [2018] NSWCCA 167
- R v Van Ryn [2016] NSWCCA 1
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Windle [2012] NSWCCA 222
- R v Wright (2013) 229 A Crim R 245; [2013] NSWCCA 82
- Sivell v R [2009] NSWCCA 286
- Smith v R [2011] NSWCCA 290
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48