AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 21 December 2020

Geagea v R

[2020] NSWCCA 350

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE DANGEROUS DRIVING OCCASIONING DEATH LEAVE TO APPEAL GRANTED APPEAL UPHELD AND APPLICANT RESENTENCED

Citation: Geagea v R [2020] NSWCCA 350
Court: NSW Court of Criminal Appeal
Date: 21 December 2020
Judges: Hoeben CJ at CL; Davies J; Fagan J

Background

The applicant pleaded guilty in the District Court at Parramatta to two offences arising from a fatal collision on 28 December 2016: dangerous driving occasioning death (s 52A(1)(c) of the Crimes Act 1900 (NSW)) and failing to stop and assist after a vehicle impact causing death (s 52AB(1)). Both offences carry a maximum of 10 years imprisonment.

The collision occurred on a straight, wide, quiet suburban street in Condell Park. The applicant drove his Toyota HiAce van at 57 to 61 km/h and struck a man who had been standing beside his parked vehicle for 13 seconds, visible from the southern end of the street for the entirety of the applicant's approach. The applicant had ample room to pass safely. After the impact, the applicant drove away without stopping.

Rather than come forward, the applicant searched the internet for news of the accident, attempted to dispose of the damaged van at a wrecking yard for $1,000, and purchased a replacement vehicle. He initially told police the van had been stolen. He was arrested on 7 January 2017 and eventually pleaded guilty, receiving an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years and 2 months. He sought leave to appeal that sentence.

  • Whether the sentencing judge erred by finding the fail-to-stop offence was "made substantially worse" by the applicant's conduct in the period following the collision, thereby elevating the objective seriousness of that offence above what the facts supported.
  • Whether the sentencing judge erred in characterising the fail-to-stop offence as "significantly above a mid-range offence."
  • Whether the sentencing judge erred by not accepting the applicant's remorse as a mitigating factor.
  • Whether the process of determining the aggregate sentence was infected by the errors in assessing the individual indicative sentences.
  • Whether the aggregate sentence was otherwise manifestly excessive.

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal on the first ground. The sentencing judge had assessed the fail-to-stop offence as significantly above mid-range by reference to the applicant's post-collision conduct, including his internet searches, his attempt to dispose of the van, and his initial lie to police. The Court of Criminal Appeal found this approach involved legal error: those subsequent acts were properly relevant to the applicant's moral culpability and subjective circumstances, but they could not legitimately increase the objective seriousness of the offence itself beyond the act of failing to stop and assist.

The court explained that s 52AB(1) is concerned with what the offender failed to do at the time of the accident. The victim had already died when the applicant drove away, and there was nothing the applicant could have done at the scene to assist him. While the failure to remain was serious, the legislature had reserved the highest penalties for cases where abandonment caused or materially worsened the victim's outcome. That was not this case. The Court of Criminal Appeal assessed the objective seriousness of the fail-to-stop offence as below mid-range, and adopted a starting point of 2 years and 8 months for that count, reducing to 2 years after the 25% early-plea discount.

On the question of remorse, the court accepted that the applicant's subsequent dishonest conduct made it difficult to accept his later expressions of remorse at full face value. However, the sentencing judge's apparent complete rejection of any remorse was inconsistent with findings that the applicant had shown some genuine contrition. Because the error on ground 1 already required resentencing, it was unnecessary to resolve ground 2 separately. Given the errors in the indicative sentences, the aggregate sentence also required reconsideration.

On resentencing, the Court of Criminal Appeal assessed the dangerous driving count at an indicative sentence of 3 years and 4 months (after a 10% late-plea discount). The fail-to-stop count attracted an indicative sentence of 2 years. A substantial degree of notional accumulation was applied to reach the aggregate figure.

Orders Made

  • Time for filing the application for leave to appeal extended as necessary.
  • Leave to appeal granted.
  • Appeal upheld.
  • Aggregate sentence imposed by Colefax DCJ on 21 June 2019 quashed.
  • Applicant resentenced to an aggregate sentence of 3 years and 10 months commencing 19 June 2019 and expiring 18 April 2023.
  • Non-parole period of 2 years and 6 months, expiring 18 December 2021.
  • Applicant eligible for parole from 19 December 2021.

Key Takeaways

  • Post-collision conduct (such as disposing of a vehicle or lying to police) bears on an offender's moral culpability and subjective circumstances, but cannot legitimately inflate the objective seriousness of a fail-to-stop offence under s 52AB(1) of the Crimes Act 1900.
  • The objective seriousness of a fail-to-stop offence is anchored to what occurred at the time of the accident and what assistance the offender could have rendered. Where the victim was already deceased and no assistance was possible, the offence does not automatically sit above mid-range.
  • Under s 52AB(1), the legislature reserved the most serious penalties for cases where abandonment of the victim caused or materially worsened their outcome. A case not involving that aggravating feature should be sentenced accordingly.
  • Errors in assessing indicative sentences for individual counts will infect the aggregate sentencing process, making resentencing necessary even where the aggregate sentence might otherwise appear proportionate.
  • The Court of Criminal Appeal reduced the aggregate sentence from 6 years and 6 months (non-parole period 4 years and 2 months) to 3 years and 10 months (non-parole period 2 years and 6 months), a substantial reduction flowing primarily from the reassessment of the fail-to-stop count's objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Delaney v R [2013] NSWCCA 150
- Hoskins v R [2020] NSWCCA 18
- Khoury v R [2011] NSWCCA 118
- R v Georgopolous [2010] NSWCCA 246
- R v Jurisic (1998) 45 NSWLR 209
- R v Pearce [2020] NSWCCA 61
- R v Pullen [2018] NSWCCA 264
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Sarikaya v The Queen [2015] VSCA 236