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Court of Criminal Appeal 6 November 2019

Tang v R

[2019] NSWCCA 267

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL DANGEROUS DRIVING CAUSING DEATH WHETHER SENTENCE MANIFESTLY EXCESSIVE GUIDELINE JUDGMENT OF WHYTE STRONG SUBJECTIVE CASE

Citation: Tang v R [2019] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 6 November 2019
Judge(s): Hoeben CJ at CL, Walton J, Price J (all agreeing)

Background

The appellant was a 71-year-old woman who was convicted by a jury of dangerous driving causing death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). The offence arose from a fatal collision in July 2017 in which her vehicle struck a young child and his mother as they crossed an intersection in Marsfield. The child died from his injuries; his mother was also struck but survived.

The dangerous driving was found to consist of taking a right-hand turn in a manner inconsistent with the Australian Road Rules, crossing onto the wrong side of the road before reaching the intersection, failing to keep a proper lookout, and failing to take sufficient care given factors affecting her visibility. The pedestrians had been visible and on the roadway for between seven and eight seconds before impact, and the appellant had between five and eleven seconds in which she could have seen and avoided them.

At sentence in the District Court, the appellant was ordered to serve three years imprisonment with a non-parole period of 18 months. She sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the sentence of three years imprisonment (with an 18-month non-parole period) for dangerous driving causing death was manifestly excessive in all the circumstances.
  • How the guideline judgments in R v Jurisic and R v Whyte applied where an offender falls outside the common features described in those guidelines, particularly due to advanced age and a plea of not guilty.
  • What weight a strong subjective case, including the offender's age, prior good character, and psychiatric condition, could be given against the objective seriousness of the offending.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the sentence was within the legitimate exercise of the sentencing judge's discretion and was not manifestly excessive.

The sentencing judge had assessed the offending as falling "just between the low and mid-range of seriousness and moral culpability." The conduct was not characterised as momentary inattention or misjudgement. The trial judge acknowledged that the applicant fell outside the common features described in the Whyte guideline, given her age of 71 and her plea of not guilty, but the guideline remained a reference point rather than a binding formula.

The applicant's subjective case was described as strong. She had no prior criminal history, had worked for over a decade in the disability sector, was regarded as a devoted and reliable worker, and had developed major depressive disorder following the offence. Those factors were taken into account, as were her advanced age and the significant impact the offending and conviction had on her life and relationships.

The Court of Criminal Appeal confirmed that the sentencing judge had appropriately weighed the objective seriousness of the offence against the strong subjective circumstances. Notwithstanding the favourable personal factors, the sentence imposed was held to be within the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that guideline judgments such as R v Whyte and R v Jurisic serve as a "check or sounding board" in dangerous driving sentencing, not as binding rules that determine outcomes.
  • Where an offender falls outside the common features described in the Whyte guideline (for example, due to advanced age or a contested trial), the guideline still informs the exercise of sentencing discretion, but the court must weigh that against the individual's specific circumstances.
  • A strong subjective case, including good character, community contributions, psychiatric conditions arising from the offence, and advanced age, does not automatically render a sentence of three years imprisonment manifestly excessive for dangerous driving causing death.
  • In dismissing the appeal, the Court affirmed that objective seriousness assessed as falling between the low and mid-range, combined with dangerous driving that was sustained and not merely momentary, can support a full-time custodial sentence even for an elderly first offender with compelling personal circumstances.
  • The maximum penalty for an offence under s 52A(1)(c) of the Crimes Act 1900 (NSW) is 10 years imprisonment, and no standard non-parole period is prescribed for this provision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- Kerr v R [2016] NSWCCA 218
- R v McLean [2001] NSWCCA 58
- Stanyard v R [2013] NSWCCA 134
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen (2010) 242 CLR 520
- Barbaro v The Queen; Zirili v The Queen (2014) 253 CLR 58
- Wong v The Queen (2001) 207 CLR 584
- Obeid v R (2017) 96 NSWLR 155
- R v Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unreported)