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Court of Criminal Appeal 18 September 2020

Norouzi v R

[2020] NSWCCA 237

Traffic & driving
CRIME APPEALS A PPEAL AGAINST SENTENCE MANIFEST EXCESS EXTENSION OF TIME RANGE

Citation: Norouzi v R [2020] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 18 September 2020
Judge(s): Payne JA, Walton J, Fullerton J

Background

The appellant pleaded guilty in the Parramatta District Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). The offence arose from an incident in the early hours of 21 October 2017, when the appellant drove a Holden Maloo utility along Victoria Road, Gladesville, at speeds recorded between 136 and 141 kilometres per hour in a 60 km/h zone. The vehicle struck a pedestrian who was crossing the road, causing injuries from which the pedestrian died at Royal North Shore Hospital shortly after the collision.

The appellant's blood alcohol concentration was 0.066 grams per 100 millilitres of blood, and cannabis was also detected. A pharmacologist gave evidence that some degree of alcohol-related impairment was likely and may have contributed to the appellant's failure to see or react to the pedestrian. The speed of the vehicle exceeded the applicable limit by more than 45 kilometres per hour, satisfying the aggravating element of the charge.

The sentencing judge imposed a head sentence of 6 years 4 months' imprisonment with a non-parole period of 4 years 6 months, applying a 20% discount for the utilitarian value of the guilty plea and finding special circumstances due to the appellant's depression and anxiety. The appellant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether an extension of time should be granted to bring the appeal, given the Notice of Application was filed approximately seven months after the Notice of Intention to Appeal.
  • Whether the sentence of 6 years 4 months' imprisonment was manifestly excessive, having regard to the objective seriousness of the offence, the appellant's subjective circumstances, comparable decided cases, and sentencing statistics.
  • The correct role of sentencing statistics and comparative cases in assessing a manifest excess ground on a sentence appeal.

Decision

The Court of Criminal Appeal unanimously granted the extension of time and leave to appeal, but dismissed the appeal. There was no opposition to the extension of time, and the Court considered the principles raised by the appeal justified granting leave.

On the core ground, Walton J found that the objective seriousness of the offence was above the mid-range. The driving was sustained, extremely fast, and occurred at night in a populated pedestrian area where multiple people were in the immediate vicinity. The presence of alcohol and cannabis further aggravated the circumstances, even though the precise degree of impairment could not be established.

Walton J assessed the appellant's subjective features, including his depression, anxiety, remorse, and prior good character, but found these were not out of the ordinary or particularly substantial. Comparing the sentence to cases including Conte v R and R v Shashati, the Court found those decisions did not support a conclusion that the sentence was excessive. In particular, the driving in Shashati involved materially less inherent risk than the appellant's conduct.

On the role of comparative cases and statistics, Payne JA and Fullerton J both endorsed the approach articulated by Bell P in Moodie v R, confirming that prior sentences can serve as a useful yardstick against which to examine a challenged sentence, provided the full circumstances of each case are examined. Neither the sentencing statistics nor the cases cited by the appellant demonstrated that the sentence fell outside the legitimate reach of the sentencing discretion exercised by the District Court.

Orders Made

  • Extension of time granted to bring the appeal out of time.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that comparative cases and sentencing statistics retain a legitimate and useful role in assessing manifest excess grounds on sentence appeals, consistent with the approach endorsed in Moodie v R and the authorities preceding it.
  • Driving at more than twice the speed limit through a populated pedestrian area at night, with likely alcohol-related impairment, placed the objective seriousness of an aggravated dangerous driving occasioning death offence above the mid-range.
  • Subjective features such as depression, anxiety, remorse, and good character did not, in this case, reduce the sentence below the range warranted by the objective gravity of the offending.
  • In dismissing the appeal, the Court found that neither the comparable decided cases nor the JIRS statistics supported a conclusion that the sentence of 6 years 4 months was outside the sentencing judge's legitimate discretion.
  • A prior case offered as a sentencing comparator may be distinguished where material differences in the nature and degree of risk created by the driving render the comparison unreliable.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 52A(1)(b), 52A(2)

Cases:
- Bombardieri v R (2010) 203 A Crim R 89; [2010] NSWCCA 161
- Conte v R [2018] NSWCCA 209
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Moodie v R [2020] NSWCCA 160
- Obeid v R [2017] NSWCCA 221
- R v Shashati [2018] NSWCCA 167
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Williams [2014] NSWCCA 200
- Small v R [2020] NSWCCA 181
- Smith v R [2011] NSWCCA 290
- Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154
- Vuni v R [2006] NSWCCA 171
- Wong v R (2001) 207 CLR 584; [2001] HCA 64