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Court of Criminal Appeal 15 April 2020

You, Jae Bok v R

[2020] NSWCCA 71

HomicideTraffic & driving

Citation: You, Jae Bok v R [2020] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 15 April 2020
Judges: Basten JA at [1]; Rothman J at [24]; Cavanagh J at [33]

Background

The applicant was sentenced in the District Court at Parramatta in June 2019 following a serious motor vehicle accident on 22 December 2017. He drove dangerously and collided with a parked car, fatally injuring one occupant and seriously injuring another. He was convicted of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW), and of furious driving causing bodily harm under s 53 of the same Act.

For the s 52A offence, the sentencing judge imposed 4 years 1 month imprisonment (after a 25% discount for an early guilty plea), with a non-parole period of 2 years 7 months. For the s 53 offence, a sentence of 10 months with a 7-month non-parole period was imposed, with 5 months of the non-parole period accumulated on the more serious sentence, producing a combined effective term of 4 years 6 months.

The applicant sought leave to appeal the sentence for the dangerous driving occasioning death offence, arguing the sentencing judge had misapplied the guideline judgment in R v Whyte, had breached the principle in R v De Simoni, and had imposed a manifestly excessive sentence.

  • Whether the sentencing judge misapplied the guideline judgment in R v Whyte (2002) 55 NSWLR 252 by misunderstanding the criterion relating to an "early plea of guilty of limited utilitarian value"
  • Whether the sentence breached the principle in R v De Simoni (1981) 147 CLR 383 by taking into account circumstances of aggravation not proven or charged
  • Whether the sentence was manifestly excessive, including whether the judge failed to have adequate regard to the applicant's subjective circumstances
  • Whether a clerical error in the record of the s 53 sentence required correction

Decision

Guideline misapplication: The Court rejected the argument that the sentencing judge had mistakenly applied the Whyte guideline as though an "early plea of limited utilitarian value" was present. The written reasons clearly showed the judge understood the guideline did not neatly apply because the case had several distinguishing features. The applicant's counsel had attempted to establish error by pointing to an exchange during the sentencing hearing, but the Court firmly rejected that approach. Judicial error cannot be established by importing ambiguous remarks made in oral exchanges with counsel into the written judgment, particularly where the written reasons were comprehensive and clear.

De Simoni ground: The Court found no breach of the De Simoni principle. That principle prevents a sentencing court from taking into account, as an aggravating circumstance, conduct that would itself constitute a more serious offence than the one charged. The Court was satisfied the sentencing judge did not cross that line.

Manifest excess: The Court compared the sentence with those in comparable cases and found no established sentencing pattern that the judge had ignored. The differences in relevant factors, including age, blood alcohol level and degree of moral culpability, were adequately accounted for. The sentence was not shown to be manifestly excessive.

Clerical error: The Court identified a clerical error in the JusticeLink record of the s 53 sentence. An officer of the court had added words directing the applicant's release to parole on a specified date, but those words formed no part of the orders pronounced in open court and were inconsistent with the judge's remarks on sentence. The provision formerly requiring such an order (s 50 of the Crimes (Sentencing Procedure) Act 1999) had been repealed in February 2018, before sentence was imposed. Leave was granted in relation to the s 53 sentence solely to remove that erroneous entry. The Court also noted the irregularity was troubling and indicated that an inquiry should be made in the District Court as to how it occurred.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentence appeal cannot be established by pointing to ambiguous remarks made during oral exchanges at a sentencing hearing. The Court of Criminal Appeal confirmed that error must appear in the written judgment, particularly where those reasons are comprehensive and were delivered after consideration.
  • The R v Whyte guideline for offences under s 52A of the Crimes Act 1900 does not operate as a rigid formula. A sentencing judge who recognises that several guideline characteristics are absent and adjusts accordingly has not erred in its application.
  • No error was established under the De Simoni principle, which prohibits a sentencing court from treating uncharged, more serious conduct as an aggravating circumstance.
  • In dismissing the manifest excess ground, the Court emphasised that differences in sentences across comparable cases do not of themselves demonstrate error, provided the sentencing court has applied correct principle and acted within the available range.
  • Court records must accurately reflect the orders actually pronounced in open court. An entry added by a court officer that contradicts the pronounced orders, and that relies on a provision repealed before sentencing, carries no legal effect and warrants correction by the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 53
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 42A, 50
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 126, 158, Div 2
- Parole Legislation Amendment Act 2017 (NSW), Sch 3.2[1]

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hughes v R [2018] NSWCCA 2
- Woodward v R [2014] NSWCCA 205
- Aitken v R [2014] NSWCCA 201
- R v Nguyen [2008] NSWCCA 113
- Hughes v The Queen [2008] NSWCCA 48
- Legge v R [2007] NSWCCA 244
- R v Karacic [2001] NSWCCA 12
- R v Kennedy [2000] NSWCCA 527
- R v Van Hong Pham [2005] NSWCCA 94