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Court of Criminal Appeal 11 June 2021

Director of Public Prosecutions v Abdulrahman

[2021] NSWCCA 114

HomicideDrugsTraffic & drivingPublic order & justice offences
SENTENCING CROWN APPEAL MANSLAUGHTER OFFENDER ON ICO FOR DANGEROUS DRIVING CONSUMES ICE OFFENDER RE ‑ SENTENCED

Citation: Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 11 June 2021
Judge(s): Garling J, Beech-Jones J, N Adams J

Background

The respondent was serving an Intensive Correction Order (ICO) for driving under the influence of drugs when, on the morning of 6 September 2019, he drove a car in a school zone near Hurstville Public School while significantly affected by methylamphetamine and while disqualified from driving. He ran a red light at approximately 65 km/h in a 40 km/h school zone and struck a 12-year-old boy who was crossing the road at a pedestrian crossing. The boy died from his injuries. The child's 12-year-old friend witnessed the collision.

After the impact, the respondent got out of his car, looked at the victim's body, collected his belongings, deleted messages from his phone, smoked a cigarette, and spoke with family members. He subsequently concocted a false account for police. The victim's blood was found on his hands.

The respondent pleaded guilty to manslaughter and driving while disqualified, with two drug possession charges taken into account on a Form 1. In September 2020, the District Court imposed an aggregate sentence of 6 years and 10 months with a non-parole period of 4 years and 6 months. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate and that the sentencing judge had failed to address specific deterrence and community protection.

  • Whether the sentencing judge erred by failing to meaningfully address specific deterrence and community protection as sentencing considerations
  • Whether the aggregate sentence of 6 years and 10 months with a non-parole period of 4 years and 6 months was manifestly inadequate for the manslaughter and associated offences
  • Whether error being established, the Court of Criminal Appeal should exercise its residual discretion to resentence the respondent

Decision

The Court of Criminal Appeal upheld both grounds of the Crown appeal. Beech-Jones J (with whom Garling J agreed) found that the sentencing judge had failed to address, in any meaningful way, the need for specific deterrence and the protection of the community from the respondent. These were described as matters that "loomed large" given the respondent's age, criminal record, driving history, and the circumstances of the offending.

The Court also upheld the manifest inadequacy ground. The manslaughter indicative sentence carried such predominant weight within the aggregate sentence that errors in relation to it infected the overall result. The Court characterised this as a very serious example of vehicular manslaughter: the respondent was on an ICO for prior drug-affected driving, was disqualified, drove at nearly twice the permitted speed through a red light in a school zone, and had a level of methylamphetamine in his blood described as within the "reported toxic to potentially fatal range."

On the question of remorse, the Court accepted that the sentencing judge's finding of genuine remorse was not sufficiently challenged by the Crown to be set aside. However, the Court noted the remorse was "somewhat belated," given the respondent's failure to render any assistance to the dying child and his conduct in deleting texts and lying to police immediately after the collision.

The Court exercised its discretion to resentence the respondent. The indicative sentence for manslaughter was increased, producing a higher aggregate sentence than that originally imposed. The precise quantum of the new sentence is not reproduced in the excerpts provided.

Orders Made

• Appeal allowed
• Set aside the sentence imposed by Williams SC DCJ on 25 September 2020 but not the orders disqualifying the respondent from driving
• Impose an aggregate sentence of 10 years and 2 months imprisonment to commence on 6 October 2019 and expire on 5 December 2029
• Set a non-parole period of 6 years and 8 months pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999
• Specify that the earliest date the respondent will be eligible to be released on parole is 5 June 2026
• Record that an aggregate sentence is imposed and indicate the sentences that would have been imposed for each offence under separate sentences: Manslaughter – 10 years and 1 month imprisonment; Drive while disqualified – 3 months imprisonment

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge's failure to meaningfully address specific deterrence and community protection constitutes an error of principle capable of grounding a successful Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW).

  • Manifest inadequacy in an indicative sentence for the principal offence will, where that offence dominates the aggregate, demonstrate manifest inadequacy in the overall aggregate sentence.

  • On a Crown appeal, establishing error of the House v The King kind is necessary but not sufficient: the Crown must also negate any basis for exercising the residual discretion against resentencing, and the inadequacy of the sentence remains a significant factor in that assessment.

  • A finding of remorse made at first instance is not automatically displaced on resentencing simply because post-offence conduct was callous; the Court here accepted the finding but noted its limitations in the context of the sentencing exercise overall.

  • Driving while under the influence of methylamphetamine, in breach of an existing ICO imposed for equivalent conduct, in a school zone, and while disqualified, placed this manslaughter at the very serious end of the range for that offence.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)(i)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- CMB v Attorney General for the State of NSW (2015) 256 CLR 346
- DPP v Burton [2020] NSWCCA 54
- Hili v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- R v Abdulrahman [2020] NSWDC 731 (decision under appeal)
- R v Blake Davis [2021] NSWSC 235
- R v Dong [2021] NSWCCA 82
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- R v Winter [2012] NSWCCA 218
- Smith v R [2020] NSWCCA 181
- Spark v R [2012] NSWCCA 140
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wong v The Queen (2001) 207 CLR 584