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Court of Criminal Appeal 21 February 2020

Hoskins v R

[2020] NSWCCA 18

Traffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE LASTING AND CONTINUING MAKING CONSISTENT WITH OFFENDING CRIME APPEALS

Citation: Hoskins v R [2020] NSWCCA 18
Court: Court of Criminal Appeal, New South Wales
Date: 21 February 2020
Judge(s): Basten JA; R A Hulme J; N Adams J

Background

The appellant was convicted of an offence under s 52AB(1) of the Crimes Act 1900 (NSW): failing to stop and render assistance after his vehicle struck a pedestrian, causing her death. Although he left the scene, he surrendered to police the following day and was arrested. He had no prior history of imprisonment.

At sentencing in the District Court at Wollongong on 14 June 2019, the appellant received a three-year term of imprisonment with a non-parole period of 18 months, backdated to the date of arrest on 7 September 2018. The sentencing judge allowed a 25 percent discount for the utilitarian value of his early guilty plea but declined to treat the plea as separately evidencing remorse, characterising that step as double-counting. No explicit submission on remorse was made by the defence, and the judge made no finding on it.

The appellant sought leave to appeal on the grounds that the sentencing judge erred in his approach to the guilty plea, failed to take remorse into account as a mitigating factor, and misapplied the principles from Bugmy v The Queen (2013) 249 CLR 571 concerning the relevance of a deprived background to sentencing.

  • Whether the sentencing judge erred by declining to treat the guilty plea as separately evidencing remorse and contrition, on the basis that doing so would constitute double-counting
  • Whether the failure to make an explicit finding of remorse amounted to a failure to consider a relevant mitigating factor, given the strong evidentiary basis and the prosecutor's concession
  • Whether the sentencing judge properly applied the Bugmy principles regarding the ongoing relevance of a disadvantaged upbringing to the offender's moral culpability
  • Whether the sentence imposed was appropriate given the distinction in moral culpability between failing to stop after an accident and causing death by dangerous driving, even where the statutory maximum penalties are identical

Decision

The Court of Criminal Appeal allowed the appeal on all three grounds and imposed a reduced sentence at the conclusion of the hearing, directing the appellant's immediate release on statutory parole.

On grounds 1 and 2, the Court held that the sentencing judge fell into error in two related respects. First, the discount for the utilitarian value of a guilty plea under Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999 reflects only that utilitarian value: a plea may separately and legitimately evidence remorse and contrition without any double-counting arising. Second, a positive finding of remorse was clearly warranted on the material before the sentencing court. The forensic psychologist's report recorded genuine remorse and full acceptance of responsibility; the Departmental Sentencing Assessment Report demonstrated insight into the impact on the victim's family and on bystanders; the appellant had surrendered promptly and cooperated fully; and the prosecutor had expressly conceded that a finding of remorse was open. In those circumstances, it was not open for the sentencing court to disregard remorse entirely.

On ground 3, the Court found that the sentencing judge had not adequately applied the Bugmy principles. Those principles recognise that the impact of a deprived and dysfunctional childhood on decision-making does not diminish simply because an offender has since moved toward a prosocial life. The Court accepted that a link existed between the appellant's disadvantaged background and the poor decision-making reflected in the offending, and that this should have moderated the assessment of his moral culpability. The Court also noted that the appellant's prosocial progress since the offence strongly supported the primary judge's findings of good rehabilitation prospects and low likelihood of reoffending, which the Crown did not challenge.

Basten JA added a broader observation about sentencing disproportion. The maximum penalty for failing to stop after an impact causing death (s 52AB(1)) is identical to that for dangerous driving occasioning death (s 52A(1)). Despite identical maxima, these offences occupy different positions on the spectrum of moral culpability. The Court observed that a sentence for failing to stop should not be of the same order as one that would be imposed for causing the death itself, and that the sentence as imposed had in effect placed the appellant in that range inappropriately.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part; the original sentence of three years imprisonment with a non-parole period of 18 months set aside
  • Resentenced to imprisonment comprising a non-parole period of 1 year and 3 months (from 7 September 2018, taken to have expired on 6 December 2019), with a balance of term of 1 year expiring on 6 December 2020
  • Appellant entitled to immediate release on statutory parole under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW)
  • The 12-month licence disqualification period directed to run from 6 December 2019 and expire on 5 December 2020
  • All other aspects of the District Court sentencing orders confirmed

Key Takeaways

  • A guilty plea discount under Part 3 Division 1A of the Crimes (Sentencing Procedure) Act 1999 reflects only the utilitarian value of the plea. Taking a plea into account separately as evidence of remorse does not constitute double-counting, and conflating the two is a sentencing error.

  • Where strong evidence of remorse is placed before the sentencing court and the prosecutor concedes that a finding of remorse is open, the court is required to address that factor. Failure to do so constitutes a failure to take a relevant consideration into account.

  • The Bugmy principles require a sentencing court to recognise that the effects of a deprived or dysfunctional upbringing on decision-making are not erased by subsequent prosocial progress. A reduction in moral culpability based on background remains available even where an offender has improved their circumstances.

  • Identical statutory maximum penalties do not mean that two offences attract the same sentencing range. The Court of Criminal Appeal confirmed that failing to stop after a fatal collision and dangerous driving occasioning death carry the same maximum penalty but occupy different positions on the scale of moral culpability, and sentences must reflect that distinction.

  • Under the Road Transport Act 2013 (NSW), a licence disqualification period can be ordered to commence at the expiration of the non-parole period, rather than running concurrently with imprisonment in a way that renders it practically ineffective.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 52AB
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(3)(k), 22, 25D(2)(a), Pt 3 Div 1A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Rules 2014 (NSW), r 59(1)
- Road Transport Act 2013 (NSW), ss 54(3)(a), 205(2)(d), 206A, 207A

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Imbornone v R [2017] NSWCCA 144
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152
- R v Jurisic (1998) 45 NSWLR 209
- R v Pullen [2018] NSWCCA 264
- R v Shashati [2018] NSWCCA 167
- R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Whyte (