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District Court 22 May 2020

R v CAHILL; R v BYRNE

[2020] NSWDC 224

HomicideTraffic & driving
VEHICULAR MANSLAUGHTER STREET RACE VASTLY EXCESSIVE SPEED IN BUILT UP AREA YOUNG OFFENDERS NEED FOR GENERAL DETERRENCE VALUE OF PLEA OF GUILTY

Citation: R v Cahill; R v Byrne [2020] NSWDC 224
Court: District Court of New South Wales
Date: 22 May 2020
Judge: Lerve CDJ

Background

On 23 October 2017, two young men engaged in a street race on a public road in Turvey Park, Wagga Wagga. One of the offenders lost control of or collided with a vehicle driven by Craig Ian Smith, an innocent road user, killing him. The other offender was a willing participant in the race, driving alongside at vastly excessive speed in a built-up area.

Both offenders were initially charged with Dangerous Driving Occasioning Death under s 52A of the Crimes Act 1900. After the Office of the Director of Public Prosecutions assumed carriage of the matter, the charges were elevated to manslaughter under s 18(1)(b). Both offenders were committed for sentence from the Wagga Wagga Local Court in September 2019 following pleas of guilty.

The court acknowledged the layered tragedy of the case: a husband and father was killed, the deceased's family suffered devastating loss, and both offenders, though young, faced lengthy periods of imprisonment that would consume what should have been the prime years of their lives.

  • What was the appropriate sentence for each offender for manslaughter, having regard to the objective seriousness of the offending, the need for general deterrence, and each offender's individual circumstances?
  • How should moral culpability be assessed where only one offender physically impacted the deceased's vehicle?
  • What discount for the utilitarian value of a plea of guilty applied, where the pleas were entered in the Local Court but the proceedings included a defended committal, and the manslaughter charge was introduced after the original charge?
  • Did special circumstances exist to justify a non-parole period greater than one-third of the total sentence?
  • What credit, if any, should be given for onerous pre-sentence bail conditions?

Decision

Lerve CDJ treated manslaughter as the clearly appropriate charge in the circumstances, noting that the deliberate engagement in a street race at vastly excessive speed in a built-up residential area reflected a high degree of moral culpability on the part of both offenders. The need for general deterrence carried significant weight given the prevalence of street racing and its catastrophic potential consequences. The court acknowledged, however, that neither offender was the worst class of manslaughter offender, and that youth, prospects of rehabilitation, remorse, and the absence of prior relevant criminal history were mitigating factors.

On the question of differing moral culpability, the court recognised that only one offender, Byrne, physically collided with the deceased's vehicle. Cahill, as a willing participant in the race who was not involved in the impact, still bore serious criminal responsibility for the death, but the court took into account the distinction between the two in calibrating their sentences.

Regarding the plea discount, the Crown sought to reduce the standard 25% utilitarian discount on the basis of the defended committal and the manner in which proceedings were conducted in the Local Court. The court undertook a careful review of the authorities, including R v Borkowski and De Angelis v R, and ultimately concluded that a 25% discount was appropriate in the circumstances, notwithstanding the Crown's submissions. The court noted that the charge itself had changed during the Local Court proceedings, which bore on how the history of the matter should be assessed.

Special circumstances were found to exist for both offenders, principally because of their youth and the length of the sentences imposed. The court structured each sentence so that the non-parole period represented two-thirds of the total term rather than the standard three-quarters, to allow for a longer period of supervision on parole. The court also gave credit to both offenders for the burden of stringent pre-sentence bail conditions.

Orders Made

Mathew Thomas Cahill
- Convicted of manslaughter (s 18(1)(b), Crimes Act 1900)
- Non-parole period of 7 years, commencing 4 June 2019, expiring 3 June 2026
- Parole period of 3 years 6 months, commencing 4 June 2026, expiring 3 December 2029
- Release to parole at expiry of non-parole period recommended
- Automatic 3-year driving disqualification (s 206B Road Transport Act 2013 applied)
- Psychiatric report directed to be annexed to the warrant to the Department of Corrective Services

Joshua Aaron Byrne
- Convicted of manslaughter (s 18(1)(b), Crimes Act 1900)
- Non-parole period of 7 years, commencing 18 September 2019, expiring 17 September 2026
- Parole period of 3 years 6 months, commencing 18 September 2026, expiring 17 March 2030
- Release to parole at expiry of non-parole period recommended
- Automatic 3-year driving disqualification (s 206B Road Transport Act 2013 applied)
- Psychiatric report directed to be annexed to the warrant to the Department of Corrective Services

Key Takeaways

  • The District Court confirmed that deliberate participation in a street race causing death can properly be charged and sentenced as manslaughter under s 18(1)(b) of the Crimes Act 1900, rather than the lesser offence of dangerous driving occasioning death under s 52A, where the circumstances warrant it.
  • Both participants in a street race may bear serious criminal responsibility for a death caused by the collision of only one of the vehicles, though the court may differentiate their moral culpability accordingly.
  • A 25% discount for the utilitarian value of a plea of guilty entered in the Local Court is generally the appropriate starting point, even where proceedings in that court were contested, provided the plea was maintained on committal for sentence. The court declined to reduce the discount to 15% despite Crown submissions and reviewed the relevant authorities in detail to resolve what it described as a recurring controversy.
  • General deterrence carries significant weight in sentencing for vehicular manslaughter arising from street racing, reflecting the serious risk to public safety such conduct poses.
  • Special circumstances justifying a non-parole period exceeding one-third of the total sentence may be found where the offenders are young and the total sentence is lengthy, with the aim of ensuring adequate supervised reintegration upon release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Road Transport Act 2013 (NSW), s 206B

Cases
- Makarian v The Queen (2005) 208 CLR 357
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 302
- De Angelis v R [2015] NSWCCA 197
- R v AB [2011] NSWCCA 229
- R v Anderson [2012] NSWCCA 175
- Aslan v R [2014] NSWCCA 114
- Bae v R [2020] NSWCCA 35
- R v Barnett [2016] NSWDC 302
- Conte v R [2018] NSWCCA 209
- R v Despotovski [2020] NSWDC 110
- R v Dib [2003] NSWCCA 117
- Hijazi v R [2020] NSWCCA 97
- Hoskins v R [2016] NSWCCA 157
- Imbornone v R [2017] NSWCCA 144
- Lehn v R [2016] NSWCCA 255
- Locke v R (2010) 207 A Crim R 34; [2010] NSWCCA 296
- R v Magro [2019] NSWSC 343
- Marrow v R [2015] NSWCCA 282
- McNaughton (2006) 66 NSWLR 566
- R v Tristan Lee [2019] NSWDC 59