Citation: Nauer v R [2020] NSWCCA 174
Court: Court of Criminal Appeal, New South Wales
Date: 23 July 2020
Judges: Hoeben CJ at CL, Fagan J, Cavanagh J
Background
The applicant was a 20-year-old woman who, in November 2017, took over driving a Toyota HiAce van carrying her father and several other family members on a trip from Griffith to Sydney Airport. At the time, she held no licence and had been disqualified from driving. Her father, who had been driving, asked her to take over after experiencing cramps near Goulburn.
The applicant had slept very little in the preceding period and, despite recognising that her eyelids were growing heavy and telling her father she was tired, continued driving. Near Kemps Creek on Mamre Road, she fell asleep at the wheel. The vehicle crossed into oncoming traffic and collided heavily with another van. Two family members died from their injuries, including the applicant's father and her two-year-old niece. Two other relatives sustained serious injuries.
The applicant pleaded guilty to two counts of dangerous driving occasioning death and related offences. She was sentenced in the District Court at Campbelltown to an aggregate term of four years and six months' imprisonment, with a non-parole period of two years and six months. She then sought leave to appeal on the basis that her solicitor failed to place important subjective evidence before the sentencing judge.
Legal Issues
- Whether the failure of the applicant's legal representative to present relevant evidence of the applicant's subjective circumstances constituted a miscarriage of justice.
- Whether the omitted evidence, including psychiatric or psychological material, evidence of cultural and familial compulsion, evidence of a further family bereavement, evidence relating to separation from her infant child, evidence of pregnancy at time of sentencing, and lay evidence from family members, would have been capable of materially affecting the sentencing outcome.
- Whether the sentencing judge erred in his findings on the applicant's level of criminality, particularly regarding the significance of her father's request to drive.
Decision
Cavanagh J, with whom Hoeben CJ at CL and Fagan J agreed, dismissed the appeal. The central question was whether the solicitor's failure to adduce evidence caused an injustice. The Court applied the established test from the case law: the omitted evidence must have been capable of materially affecting the sentencing result. The Court examined the evidence read on appeal, including a forensic psychologist's report, affidavits from the applicant and her husband, and what had been placed before the sentencing judge at first instance.
On the mental health ground, the Court found that the sentencing judge had in fact made findings favourable to the applicant's psychiatric and psychological condition based on other available material, and had drawn inferences beneficial to her subjective case even without the direct evidence that was omitted. Because the sentencing judge accepted the substance of those matters anyway, the failure to adduce formal evidence of them could not have produced a different outcome.
On the cultural compulsion argument, the applicant submitted that evidence of her Samoan cultural background and her obligation to comply with her father's request would have reduced her assessed level of criminality. The Court rejected this. Cavanagh J agreed with the sentencing judge's finding that, whatever respect the applicant held for her father and whatever cultural obligations she felt, she could not claim her culpability was reduced on that basis. The applicant had known that continuing to drive was dangerous and that she risked falling asleep.
The Court also observed that the length of the parole period indicated the sentencing judge had in fact given weight to the applicant's subjective circumstances. The sentence imposed was within the range for this type of offending, given the aggravating features and the requirement for general deterrence. The applicant's submission that general deterrence played a limited role was rejected: falling asleep at the wheel is well recognised as conduct capable of causing catastrophic harm, and general deterrence is a significant consideration in such cases.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A miscarriage of justice from counsel's failure to adduce evidence at sentencing will not be established unless that evidence would have been capable of materially affecting the sentencing outcome.
- Where a sentencing judge has already made findings favourable to an offender's subjective case from other available material, the failure to adduce direct or formal evidence to support those same findings does not produce an injustice.
- Cultural or familial pressure to act in a particular way does not necessarily reduce an offender's level of criminality, particularly where the offender was aware that their conduct posed a serious danger to others.
- General deterrence remains a significant sentencing consideration for offences involving falling asleep at the wheel, even where no alcohol or deliberate recklessness is involved, given the well-known potential for catastrophic consequences.
- In assessing whether counsel's omissions infected a sentence, the Court of Criminal Appeal will look at the totality of what the sentencing judge found and whether a different evidential foundation could realistically have produced a different result.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death or grievous bodily harm)
- Road Transport Act 2013 (NSW), s 54 (driving whilst disqualified)
Cases
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Munro v R [2006] NSWCCA 350
- Tsiakas v R [2015] NSWCCA 187
- Brown v R [2018] NSWCCA 257
- Rae v R [2019] NSWCCA 284