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Court of Criminal Appeal 14 June 2019

Director of Public Prosecutions v Andonakis

[2019] NSWCCA 123

HomicideDrugsTraffic & driving
SENTENCING APPEAL DANGEROUS DRIVING CAUSING DEATH MANIFEST INADEQUACY HIGH RANGE OBJECTIVE SERIOUSNESS FINDING OF SPECIAL CIRCUMSTANCES

Citation: Director of Public Prosecutions v Andonakis [2019] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 14 June 2019
Judges: Basten JA; Adams J; Ierace J

Background

In the early morning of 3 September 2016, a truck driver crossed double unbroken lines on the Pacific Highway near Dirty Creek, NSW, and collided head-on with a northbound semi-trailer. The semi-trailer driver died. Blood tests taken from the offender at hospital revealed a high level of methylamphetamine described by a pharmacologist as "well within the toxic to potentially fatal range."

The offender's conduct after the crash compounded the circumstances. He initially admitted being the driver at the scene, then repeatedly denied it to police and courts, breached bail by returning to Queensland, committed further offences there, and later produced a fabricated letter purporting to place responsibility on another person. He admitted being the driver only in November 2017, more than a year after the collision.

On 7 September 2018, the offender pleaded guilty in the District Court to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW). He was sentenced to a total term of 3 years 8 months, comprising a non-parole period of 2 years 3 months and an additional term of 1 year 5 months. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate.

  • Whether the total sentence imposed was manifestly inadequate, having regard to the objective seriousness of the offence
  • Whether the sentencing judge failed to adequately reflect the numerous aggravating features of the offending, including drug impairment, the offender's prior driving record, and post-offence conduct
  • Whether the sentencing judge gave inappropriate weight to the offender's subjective circumstances, including hardship to family members
  • Whether the finding of special circumstances (which reduced the non-parole period relative to the additional term) was justified in the circumstances
  • Whether this was a case warranting the Court of Criminal Appeal's intervention in the exercise of its supervisory sentencing jurisdiction

Decision

The Court of Criminal Appeal found the sentence manifestly inadequate and allowed the appeal. The guideline judgment in R v Whyte (2002) established that, with a plea of guilty where any aggravating factor is present to a material degree, a total custodial sentence of less than three years for dangerous driving causing death should be exceptional. The original sentence here was only marginally above that threshold, yet the Court found that multiple aggravating factors of significant intensity were present.

The aggravating features identified included the offender's high-range methylamphetamine use at the time of driving, an extensive and very poor traffic and criminal record across two states spanning some 60 traffic offences from 1991 to 2017, repeated dishonest conduct after the collision including fabricating an alibi and obtaining bail on false pretences, and breach of bail. The Court found the sentencing judge had not adequately reflected these cumulative circumstances in the sentence imposed.

On the question of family hardship, the Court confirmed the established principle that hardship to an offender's family is generally not a relevant mitigating factor in sentencing, except in rare cases involving wholly exceptional circumstances. The Court found no such exceptional circumstances existed here, and that giving weight to family hardship in this case was an error.

The Court also found the finding of special circumstances (which allowed a longer additional term beyond the two-thirds non-parole ratio ordinarily applicable under s 44 of the Crimes (Sentencing Procedure) Act 1999) was not warranted. The public interest in achieving consistency in sentencing for dangerous driving causing death offences was identified as a determinative factor in favour of intervention.

Orders Made

  • The appeal was allowed and the District Court sentence of 20 September 2018 was set aside
  • The offender was resentenced to a non-parole period of 3 years 10 months and an additional term of 16 months, giving a total sentence of 5 years 2 months
  • The sentence was directed to commence on 25 September 2017
  • The offender's first eligibility for parole was noted as 24 July 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed that where multiple aggravating factors of significant intensity are present in a dangerous driving causing death case, a total sentence only marginally exceeding three years is likely to be manifestly inadequate, consistent with the guideline in R v Whyte.
  • Post-offence conduct, including sustained dishonesty, fabrication of evidence, and breach of bail, constitutes a relevant aggravating circumstance that a sentencing court must adequately reflect in the sentence imposed.
  • Family hardship is not generally a mitigating factor in sentencing; the Court reaffirmed that only wholly exceptional circumstances can justify treating it as relevant, citing R v Edwards and Huynh v R.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, which extends the additional term beyond the standard ratio, requires proper justification; it was found to be unwarranted on the facts of this case.
  • In dismissing the original sentence, the Court emphasised the public interest in consistency in sentencing for s 52A offences as a weighty consideration supporting appellate intervention, noting variability in sentencing practice across cases of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (guideline judgment, dangerous driving)
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment, dangerous driving)
- Huynh v R [2018] NSWCCA 237 (family hardship as mitigating factor)
- R v Edwards (1996) 90 A Crim R 510 (family hardship)
- R v GWM [2012] NSWCCA 240
- R v Fidow [2004] NSWCCA 172
- Jiang v R [2010] NSWCCA 277