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11
Court of Criminal Appeal 3 August 2020

Smith v R

[2020] NSWCCA 181

HomicideTraffic & driving
APPLICANT HEAVILY INTOXICATED BUGMY V THE QUEEN (2013) 249 CLR 571 [2013] HCA 571

Citation: Smith v R [2020] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 3 August 2020
Judges: Simpson AJA; Rothman J; Bellew J

Background

The applicant pleaded guilty to the manslaughter of a woman killed when the applicant's vehicle crossed into oncoming traffic on Old Bar Road near Taree on 30 January 2018. At the time, the applicant's blood alcohol concentration was approximately 0.261 grams per 100 millilitres, well above the high-range prescribed concentration. Cannabis was also present in her blood.

The applicant's driving in the period leading up to the collision was described by one witness as the worst she had ever seen. The applicant struck a pole and hedge leaving a supermarket car park, ignored two offers from an acquaintance to drive her home, nearly struck a child crossing the road, and collided with a speed sign that snapped a steel post at its base, tearing away part of her car door. Despite these events, she continued driving at speed before crossing into oncoming traffic and striking the deceased's vehicle. The victim was airlifted to Newcastle Hospital and died that evening.

The applicant had prior convictions for high-range prescribed concentration of alcohol offences in 1998 and 2016. She also had a difficult personal history, including a dysfunctional childhood, bullying, abusive adult relationships, and diagnosed conditions including alcohol dependence, post-traumatic stress disorder, and persistent depressive disorder. In the District Court at Port Macquarie, she was sentenced to 9 years' imprisonment with a non-parole period of 6 years and 3 months on the manslaughter count, reflecting a 25% discount for her early guilty plea.

  • Whether the sentencing judge failed to properly assess the applicant's moral culpability in light of her background, as required by the principles in Bugmy v The Queen (2013) 249 CLR 571
  • Whether the sentence imposed for manslaughter was manifestly excessive, having regard to the established pattern of sentencing in comparable cases

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had in fact been aware of the Bugmy principles and had properly considered the applicant's deprived background in relation to moral culpability. However, the Court confirmed that an assessment of diminished moral culpability does not override the objective gravity of the offence. Even accounting for the applicant's background, the Court found her moral culpability remained high given the extreme objective seriousness of the conduct.

On the second ground, the Court accepted that a sentence can be demonstrated to be manifestly excessive by comparing it against the established pattern of sentencing in comparable cases, while acknowledging that such comparisons have limits. Prior decisions are a yardstick rather than a mathematical formula, and what sentencing consistency requires is consistent application of legal principles, not numerical equivalence.

The Court concluded that the starting point of 12 years (before applying the 25% guilty plea discount to arrive at the 9-year head sentence) was so far out of line with comparable manslaughter sentences in New South Wales as to be manifestly excessive. The appropriate pre-discount starting point was 10 years, producing a final head sentence of 7 years and 6 months.

Orders Made

  • Leave to appeal against sentence granted
  • The appeal allowed and the sentence imposed in the District Court quashed
  • In lieu thereof, the applicant sentenced to a non-parole period of 5 years commencing 13 June 2019 and expiring 12 June 2024, with a balance of term of 2 years and 6 months expiring 12 December 2026

Key Takeaways

  • The Bugmy principles require a sentencing court to consider how an offender's deprived background affects their moral culpability, but that assessment does not displace the weight given to the objective gravity of the offence. Where the objective seriousness is extreme, moral culpability may remain high even after accounting for background disadvantage.

  • Comparable decisions of the Court of Criminal Appeal can demonstrate manifest excess by showing a sentence is out of line with established sentencing patterns. The exercise requires care: consistency in sentencing means consistency in applying legal principles, not achieving mathematical equivalence across cases.

  • A pre-discount starting point of 10 years' imprisonment was found appropriate for a manslaughter arising from grossly intoxicated driving that involved multiple prior warning signs, a prior relevant criminal history, and the death of an innocent road user. This produced a final sentence of 7 years and 6 months after a 25% guilty plea discount.

  • Appellate intervention on manifest excess grounds requires more than showing the sentence was arguably heavy. The sentence must be so far out of line with the established pattern as to be demonstrably excessive, a threshold the Court found was met here given the gap between the 12-year starting point and comparable cases.

  • Where a sentencing judge varies the statutory proportions between the head sentence and the non-parole period under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that adjustment remains subject to appellate review as part of the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1), 24, 52A
- Crimes (Appeal and Review) Act 2009 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 21
- Road Transport Act 2013 (NSW), ss 110(5)(a), 111(1)(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 571
- Dang v R [2014] NSWCCA 47
- Day v R [2014] NSWCCA 333
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Duncan v R [2012] NSWCCA 78
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lawler v R [2007] NSWCCA 85
- Pham v R [2014] NSWCCA 115
- R v Cameron [2005] NSWCCA 359
- R v Cramp [1999] NSWCCA 324
- R v Gordon (No 8) [2017] NSWSC 574
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Woodbridge v R [2010] NSWCCA 185