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Court of Criminal Appeal 17 October 2018

Mansweto v R

[2018] NSWCCA 232

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER APPREHENDED BIAS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Mansweto v R [2018] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 17 October 2018
Judges: Meagher JA; Hoeben CJ at CL; Fagan J

Background

The appellant, a qualified motor mechanic, purchased a 1969 GT Ford Falcon XW sedan in March 2014 and spent three months restoring it, including replacing the steering system and rebuilding the brakes. On 21 June 2014, he took the unregistered and uninsured vehicle on a test drive near Windsor Downs, having forgotten that he had not secured the steering wheel to the column with its retaining nut. The brakes had only been tested at very low speeds on his private property before the drive.

Approaching a sharp left-hand bend approximately 1.7 km from his home, the appellant's brakes failed. When he pulled on the steering wheel for leverage to press harder on the brake pedal, the wheel came off the column entirely. The vehicle left the road at 60 to 80 km/h and crashed into a residential property, striking four people gathered near the front entrance.

Two of those people suffered severe injuries: Mrs Farrugia, who was 20 weeks pregnant, sustained multiple skull and facial fractures and complex leg fractures and lost her unborn child; Mrs Vella suffered a severely dislocated knee, severed Achilles tendon and other serious injuries requiring months of hospitalisation and rehabilitation. The appellant pleaded guilty in the District Court to two counts of dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900 (NSW). Two further counts involving the other two injured persons were taken into account on a Form 1. He was sentenced to an aggregate term of four years and six months with a non-parole period of two years and nine months.

  • Whether the sentencing judge should have recused himself on the ground of apprehended bias, given his criticism of a defence expert and references to a previous Court of Criminal Appeal decision unfavourable to that expert.
  • Whether the sentencing judge erred in his approach to the offences listed on the s 166 certificate (the unregistered and uninsured vehicle charges).
  • Whether the aggregate sentence of four years and six months was manifestly excessive.

Decision

Apprehended bias: The Court rejected the apprehended bias ground. The test is whether a fair-minded lay observer, with knowledge of the circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question. The sentencing judge's criticism of the defence expert's methodology and his reference to a prior Court of Criminal Appeal decision commenting adversely on that expert fell within the legitimate exercise of a judicial function. A fair-minded observer would not have perceived a real possibility of bias arising from those remarks alone.

The s 166 certificate offences: The Court found no legal error in the sentencing judge's treatment of the unregistered and uninsured vehicle charges. Those matters were properly recorded as convictions under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), with no further action taken.

Manifest excess: The Court accepted this ground. While the offences were objectively serious, the sentencing judge had erred in assessing the appellant's moral culpability too highly. The appellant had not driven recklessly or at speed for thrills; the mechanical failures resulted from genuine oversight rather than deliberate disregard for safety. The proper range for an aggregate sentence, after the 10 per cent guilty plea discount, pointed to a significantly shorter term. The Court re-sentenced the appellant to an aggregate term with a non-parole period of one year and four months and a balance of term of one year, targeting a ratio of approximately 60 per cent for the non-parole period.

Licence disqualification: The Court also corrected an error in the original sentencing remarks. The sentencing judge had stated the appellant would be disqualified from holding a driver's licence for three years from release to parole. However, the three-year automatic disqualification had in fact already been fully satisfied by the period of licence suspension running from the date of the offences on 21 June 2014 to the date of sentence on 20 June 2017. The Court made an order under s 206B(5) of the Road Transport Act 2013 (NSW) to clarify that the disqualification had ended on 20 June 2017.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Aggregate sentence imposed in the District Court on 20 June 2017 quashed.
  • Appellant resentenced to an aggregate term comprising a non-parole period of 1 year and 4 months commencing 20 June 2017 and expiring 19 October 2018, with a balance of term of 1 year commencing 20 October 2018 and expiring 19 October 2019.
  • The automatic 3-year licence disqualification under s 205 of the Road Transport Act declared to have ended on 20 June 2017, having been fully satisfied by the suspension in effect from 21 June 2014 to that date.

Key Takeaways

  • A sentencing judge's criticism of a defence expert's methodology, including reference to an earlier Court of Criminal Appeal decision that questioned that expert's work, does not automatically give rise to apprehended bias. The fair-minded observer test requires more than dissatisfaction with expert evidence before a reasonable apprehension of bias will be established.
  • Under the dangerous driving provisions of the Crimes Act 1900 (NSW), moral culpability is not assessed purely by reference to the severity of the outcome. The sentencing court must weigh how and why the dangerous conditions arose, including whether a failure was deliberate, reckless, or the product of inadvertent oversight.
  • Manifest excess as a ground of appeal operates where the sentence, viewed in light of all relevant circumstances, is unreasonably or unjustifiably severe. Here, the original sentence was found to have set the appellant's culpability too high relative to the actual circumstances of the offending.
  • Automatic licence disqualification periods under the Road Transport Act 2013 (NSW) can be satisfied by an earlier suspension running from the date of the offence. Where that suspension fully covers the mandatory disqualification period, a sentencing judge's statement that disqualification will run from release to parole is in error.
  • In resentencing, the Court of Criminal Appeal targeted a non-parole period representing approximately 60 per cent of the total term, consistent with the statutory ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(3)(c), 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 166
- Criminal Procedure Act 1986 (NSW)
- Motor Accidents Compensation Act 1999 (NSW), s 8(1)(a)
- Road Transport Act 2013 (NSW), ss 68(1), 205, 206B

Cases:
- Australian Securities and Investments Commission v Southcorp Ltd (2003) 46 ACSR 438
- Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
- House v The King (1936) 55 CLR 499
- Hughes v R [2018] NSWCCA 2
- Isbester v Knox City Council [2015] HCA 20
- Johnson v Johnson (2000) 201 CLR 488
- New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
- R v AB [2011] NSWCCA 229
- R v AB (No 2) [2011] NSWCCA 256
- R v Price [2004] NSWCCA 186
- R v Whyte (2002) 55 NSWLR 252
- Tarrant v R [2018] NSWCCA 21
- Vakauta v Kelly (1989) 167 CLR 568
- Webb v The Queen (1994) 181 CLR 41
- Wood v R [2012] NSWCCA 21