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Court of Criminal Appeal 27 November 2020

Wraydeh v R

[2020] NSWCCA 309

HomicideTraffic & driving
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE POOR SUBJECTIVE CASE VERY ADVERSE CRIMINAL RECORD APPEAL DISMISSED

Citation: Wraydeh v R [2020] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 27 November 2020
Judges: Hoeben CJ at CL, Button J, N Adams J

Background

The applicant pleaded guilty in the District Court to two offences arising from a single incident in Punchbowl on 7 August 2016: dangerous driving occasioning death (s 52A, Crimes Act 1900) and failing to stop and assist after a vehicle impact causing death (s 52AB, Crimes Act 1900). The victim was his romantic partner, who was seated in the front passenger seat of a stolen vehicle he was driving while disqualified.

The applicant lost control of the vehicle while crossing double unbroken lines into oncoming traffic. The collision caused catastrophic injuries to the passenger, who died in hospital later that day. Rather than remaining to assist her, the applicant wiped his fingerprints from the driver's door, retrieved his wallet, and fled the scene before emergency services arrived.

At sentence, the District Court imposed an effective head sentence of 7 years with a non-parole period of 5 years and 3 months. The applicant sought leave to appeal, arguing the overall sentence was manifestly excessive.

  • Whether the overall sentence was manifestly excessive, having regard to the sentencing judge's own finding that the dangerous driving offence was only of moderate objective gravity
  • Whether the degree of accumulation between the two sentences was justified
  • Whether the stern starting point for the driving offence was open to the sentencing judge, given the 10-year maximum and the limited objective gravity finding

Decision

Button J (with Hoeben CJ at CL and N Adams J agreeing) acknowledged that the dangerous driving offence was placed towards the middle of the range of objective gravity. The sentencing judge had found the driving fell between "momentary inattention" and "complete abandonment of responsibility," characterising it as a gross failure to responsibly manage the vehicle. Excessive speed was not alleged, and the collision resulted from the applicant crossing into oncoming traffic on a narrow suburban street in daylight.

Despite that limited objective gravity finding, the Court found that the stern overall sentence was open, given the very adverse subjective case. The applicant had four prior dangerous driving convictions and two convictions for driving recklessly during a police pursuit spanning almost two decades. The fatal crash occurred while he was on parole for one of those pursuits. The Court described the death as the culmination of "a wilful refusal to obey the rules of the road over many years."

On the failure to stop offence, the Court upheld the sentencing judge's finding of callous disregard for the victim's welfare. The applicant had wiped down the vehicle for fingerprints and taken his wallet rather than rendering any assistance to his gravely injured partner, whom he must have known was seriously hurt. The Court accepted that both offences were serious, carried the same maximum penalty, and engaged distinct criminal and moral culpability even though they were closely connected in time.

The Court acknowledged the overall sentence was stern and that the starting point for the driving offence was also stern relative to the maximum. However, it found that neither the starting point, nor the discounted sentence, nor the overall sentence was patently beyond the discretion of the sentencing judge so as to establish the error of manifest excess.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a limited finding about objective gravity does not preclude a stern sentence where subjective features, particularly a very adverse criminal history, substantially aggravate the overall assessment.
  • A prior record of repeated dangerous and reckless driving convictions spanning nearly two decades was treated as a powerful factor in the instinctive synthesis, given those prior convictions represented the exact harm the sentencing regime was designed to prevent.
  • The two offences under ss 52A and 52AB of the Crimes Act 1900 were treated as engaging distinct criminal liability and distinct moral culpability, supporting significant accumulation of sentences even where the offences arose from the same incident.
  • Where an applicant on parole for a driving offence subsequently causes a death while driving dangerously, that context bears directly on specific deterrence and the protection of the community as sentencing considerations.
  • No error was established merely because a sentence is stern relative to the maximum penalty, provided it falls within the available range having regard to all objective and subjective features of the matter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A (dangerous driving occasioning death) and 52AB (failing to stop and assist after vehicle impact causing death)

Cases:
- R v Whyte (2002) 55 NSWLR 252