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Court of Criminal Appeal 7 October 2020

Thornton v R

[2020] NSWCCA 257

Traffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE TWO VICTIMS NOTIONAL ACCUMULATION APPEAL DISMISSED

Citation: Thornton v R [2020] NSWCCA 257
Court: Court of Criminal Appeal
Date: 7 October 2020
Judges: Hoeben CJ at CL; Beech-Jones J (primary reasons); N Adams J

Background

The applicant pleaded guilty in the District Court to two counts of dangerous driving occasioning grievous bodily harm, arising from a single incident on 16 February 2018. While driving south on Campbelltown Road, the applicant was distracted by his mobile phone for an estimated 10 to 20 seconds and failed to see a roadside RBT operation ahead. His vehicle collided with a stationary police car, trapping two officers between the two vehicles.

The injuries to both officers were severe. One officer lost his leg below the knee (later requiring a through-knee amputation), suffered extreme pain, and required 24-hour supervision on discharge. The other officer sustained significant injuries including fractures, deep lacerations, and permanent ongoing physical and psychological impacts.

District Court Judge Hatzistergos imposed an aggregate sentence of 3 years and 8 months, with a non-parole period of 2 years. The indicative sentences were 2 years and 1 month for the first offence and 2 years and 7 months for the second. The applicant sought an extension of time and leave to appeal, arguing the aggregate sentence was manifestly excessive.

  • Whether the applicant should be granted an extension of time to seek leave to appeal, given delays partly attributable to the applicant pausing proceedings to pursue a Reintegration Home Detention Order
  • Whether the aggregate sentence of 3 years and 8 months was manifestly excessive
  • Whether the "notional accumulation" discernible from the aggregate sentence was disproportionate, even if the individual indicative sentences were not themselves challenged as excessive

Decision

On the extension of time, the Court accepted uncontested evidence that the applicant had initially abandoned his appeal on legal advice that the outstanding proceedings made him ineligible for a Reintegration Home Detention Order. When that application was rejected in June 2020, he revived the appeal. The Court considered this explanation sufficient to warrant the extension.

On manifest excess, the applicant's case rested on a narrow but distinct argument: he did not challenge the indicative sentences individually, but contended that the degree of accumulation built into the aggregate sentence was disproportionate. Beech-Jones J rejected that argument. The difference between the aggregate and the longer of the two indicative sentences represented the degree of accumulation, and the Court found that level of accumulation was appropriate given the severity of injuries sustained by each officer.

The Court reviewed comparable decisions, including R v AB and Stanyard v R, both involving dangerous driving causing serious injury to multiple victims. In Stanyard, this Court had affirmed an accumulation of one year where one victim was rendered a tetraplegic and another suffered broken arms, expressly recognising that serious harm to each victim should be individually reflected in the overall sentence. The sentencing outcomes in those cases were broadly consistent with the indicative sentences imposed in the present matter.

The Court concluded that, when the severity of the injuries to both officers was taken into account, the aggregate sentence was not excessive and disclosed no error. The appeal was dismissed.

Orders Made

  • Extension of time granted for the applicant to seek leave to appeal against sentence
  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 requires the sentencing court to specify the indicative sentence for each constituent offence; the degree of accumulation embedded in the aggregate is a legitimate subject of appellate review.
  • A challenge to "notional accumulation" within an aggregate sentence can be pursued even where the individual indicative sentences are not themselves challenged as excessive, but the Court of Criminal Appeal confirmed this is a high bar to meet.
  • Where dangerous driving causes grievous bodily harm to more than one victim, the totality principle does not preclude meaningful accumulation; the seriousness of harm suffered by each victim is a proper basis for reflecting separate periods of mandatory custody in the overall sentence.
  • In dismissing the appeal, the Court applied the principle from Stanyard v R that catastrophic or serious injury to each victim should be "appropriately reflected" in the effective sentence imposed, not simply absorbed into a single undifferentiated term.
  • Delays in pursuing a sentence appeal attributable to an offender pausing proceedings to remain eligible for a Reintegration Home Detention Order, which was ultimately refused, can ground a grant of extension of time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)

Cases
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lee v R [2020] NSWCCA 244
- Kliendienst v R [2020] NSWCCA 98
- R v AB [2011] NSWCCA 229
- R v AB (No 2) [2011] NSWCCA 256
- Stanyard v R [2013] NSWCCA 134
- R v Thornton [2019] NSWDC 56 (decision under appeal)