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53
Court of Criminal Appeal 15 July 2020

Moodie v R

[2020] NSWCCA 160

Also reported as (2020) 284 A Crim R 87
Traffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL DENIAL OF PROCEDURAL FAIRNESS MANIFEST EXCESS

Citation: Moodie v R [2020] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 15 July 2020
Judges: Bell P; Davies J; N Adams J

Background

The applicant, a professional truck driver, pleaded guilty to dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW). The offence occurred in September 2016 at Deniliquin, when the applicant's prime mover struck and killed a pedestrian on a straight, flat road in fine daytime conditions. Agreed Facts before the sentencing judge described the cause as a momentary distraction caused by the applicant glancing in his rear vision mirror, with that distraction said to have been "intensified" by methylamphetamine and amphetamine present in his blood.

The applicant was sentenced in October 2019 to 4 years and 9 months imprisonment with a non-parole period of 3 years, together with a 5-year licence disqualification. He also received a conviction but no further penalty for a separate charge of driving with an illicit substance in his blood.

The applicant sought leave to appeal, contending that the sentencing judge committed several errors, including departing from the Agreed Facts without notice, failing to apply the relevant guideline judgment, and incorrectly assessing objective seriousness.

  • Whether the sentencing judge denied the applicant procedural fairness by departing from the Agreed Facts, without notice to the parties, and finding that the dangerous driving involved more than a "momentary distraction"
  • Whether the sentencing judge erred by failing to have regard, in substance, to the guideline judgment in R v Whyte (2002) 55 NSWLR 252
  • Whether the sentencing judge's finding that the offence fell "above the midrange" of objective seriousness was supported by the evidence
  • Whether the sentence imposed was manifestly excessive
  • Whether the 5-year licence disqualification period was erroneously imposed due to a misapprehension of the Road Transport Act 2013 (NSW)

Decision

Procedural fairness. The Court held that the sentencing judge erred by departing from the Agreed Facts without giving the applicant notice or a meaningful opportunity to respond. The Agreed Facts identified the cause of the collision as a momentary distraction. The sentencing judge proceeded on a different and more adverse factual basis, finding the distraction was not merely momentary, without alerting counsel to that intended departure. The Court confirmed that clear notice is required before a sentencing judge proceeds on a different factual basis to agreed facts.

Guideline judgment. The Court found that the sentencing judge failed, in substance, to have regard to the guideline judgment in Whyte. While a failure to formally cite a guideline judgment is not automatically determinative, it is not insignificant. The Court held that a judge who genuinely applied Whyte would have been expected to advert to the aggravating and mitigating factors that judgment identified as relevant to moral culpability, even without naming it. The sentencing judge's failure to do so amounted to error.

Objective seriousness. The Court found that the finding of "above the midrange" objective seriousness was not supported by the evidence or the Whyte framework. This was not a case involving excessive speed, erratic driving, competitive driving, or fleeing police. Critically, expert evidence did not establish beyond reasonable doubt that the methylamphetamine in the applicant's blood actually impaired his driving. Without that established impairment, the drug use could not properly be treated as an aggravating factor going to objective seriousness.

Manifest excess and re-sentencing. The combination of the procedural fairness error, the failure to apply Whyte, and the erroneous objective seriousness assessment led the Court to conclude the sentence was manifestly excessive. The Court also noted the relevance of properly comparable sentences involving truck drivers convicted of similar offences, affirming that careful use of comparative sentencing promotes consistency, which is a core element of criminal justice and the rule of law. The licence disqualification of 5 years was also set aside as having been influenced by the erroneous objective seriousness finding.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence set aside
  • Applicant re-sentenced to a total term of imprisonment comprising a non-parole period of 1 year and 8 months and a balance of term of 1 year and 2 months, dating from 17 October 2019
  • Applicant to be released to parole on 17 May 2021, with the total sentence concluding on 17 August 2022
  • Original 5-year licence disqualification set aside
  • In lieu thereof, a disqualification period of 5 months from the applicant's release to parole imposed

Key Takeaways

  • A sentencing judge who proposes to depart from agreed facts in a manner adverse to the offender must give clear notice of that intention and provide the parties with a meaningful opportunity to address the proposed departure; failure to do so constitutes a denial of procedural fairness.
  • Whether a sentencing judge has followed a guideline judgment is a matter of substance, not mere form. Failure formally to cite the guideline is relevant but not determinative; what matters is whether the judge applied the framework it established.
  • Under the Whyte guideline, the absence of features such as excessive speed, erratic or competitive driving, or fleeing police is material to assessing objective seriousness in dangerous driving cases; a court must advert to the presence or absence of those factors.
  • Where illicit drug use is relied upon as an aggravating factor going to impairment and objective seriousness, impairment must be established beyond reasonable doubt; a significant blood level alone, without evidence of actual driving impairment, does not satisfy that standard.
  • The Court of Criminal Appeal affirmed that careful and proper use of comparative sentences plays an important role in achieving consistency of sentencing, describing that consistency as a fundamental element of both criminal justice and the rule of law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 52A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 10, 10A, 44
- Criminal Procedure Act 1986 (NSW) s 166
- Road Transport Act 2013 (NSW) ss 111(1)(a), 205(2)(d), 206A, 206B

Cases
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- DL v R (2018) 265 CLR 215; [2018] HCA 32
- FL v R [2020] NSWCCA 114 (disapproved in part)
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Barnett v R [2014] NSWCCA 296
- Costello v R [2017] NSWCCA 32
- Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
- Markham v R [2007] NSWCCA 295
- Morabito v R [2007] NSWCCA 126
- Mina Nashed v R [2010] NSWCCA 282
- McKinnon v R [2020] NSWCCA 106
- Magro v R [2020] NSWCCA 25
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Betts v R (2016) 258 CLR 420; [2016] HCA 25