Stanton v R

Citation: Stanton v R [2021] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 18 June 2021
Judges: Harrison J, Beech-Jones J (principal judgment), Cavanagh J

Background

The applicant pleaded guilty in the District Court to two counts of dangerous driving occasioning grievous bodily harm while under the influence of an intoxicating drug, contrary to s 52A(3)(a) of the Crimes Act 1900 (NSW). The offending arose from a serious collision on Picton Road, Picton on 8 May 2018, in which the applicant's vehicle crossed into oncoming traffic. Two people were severely injured: a passenger in the applicant's car, who suffered spinal fractures and bowel injuries, and a young woman driving an oncoming vehicle, who sustained scarring, bowel damage and a condition called dumping syndrome, and who required numerous surgical operations.

Blood testing taken after the accident revealed methylamphetamine and amphetamine in the applicant's system. He claimed to have inhaled the drug passively the previous evening. The Crown's pharmacologist rejected that explanation, and the sentencing judge accepted the Crown's expert evidence beyond reasonable doubt.

At sentencing, the applicant received an aggregate term of 4 years and 6 months imprisonment with a non-parole period of 3 years. He sought leave to appeal on three grounds: a material factual error in the sentencing judge's findings, failure to apply the guideline judgment in R v Whyte, and manifest excess.

Legal Issues

• Whether the sentencing judge's finding that the applicant had a "very significant quantity of methylamphetamine" in his blood, and was "significantly affected" by the drug, was open on the evidence.
• Whether the sentencing judge failed to properly apply the guideline judgment in R v Whyte (2002) 55 NSWLR 252 when determining the appropriate sentence.
• Whether the aggregate sentence of 4 years and 6 months was manifestly excessive.

Decision

On ground 1, the Court found that the sentencing judge's characterisation of the drug level as "very significant" was problematic. The pharmacological evidence established that the applicant's impairment at the time of driving arose primarily from the withdrawal or "crash" phase of methylamphetamine use, which produces rebound sedation and fatigue, rather than from active stimulant intoxication. The dashcam footage, showing the applicant's vehicle weaving across lanes for several minutes before impact, was consistent with severe fatigue rather than stimulant intoxication. The Court accepted there was a factual error in the sentencing judge's characterisation of the quantity and its effect on the applicant's culpability.

On ground 2, the Court examined whether the sentencing judge had given sufficient attention to the Whyte guideline, which addresses dangerous driving offences and identifies relevant factors going to objective seriousness. The Court found that the sentencing judge's approach did not properly reflect the guideline's framework in the context of this specific factual finding about the nature of the drug's effect.

On ground 3, the Court concluded that the indicative sentences for each offence were too high and that the aggregate sentence exceeded what was warranted by the totality of the criminality involved. Accepting all other findings of the sentencing judge, including the 20% plea discount (reduced from 25% because the applicant contested the facts and lost), the finding of special circumstances, and the different gravity of injury caused to each victim, the Court resentenced the applicant to a reduced aggregate term.

Orders Made

• Appeal allowed.
• Sentence imposed by Colefax SC DCJ on 30 June 2020 set aside.
• Aggregate sentence of 3 years and 4 months imprisonment imposed, commencing 30 June 2020 and expiring 31 October 2023.
• Non-parole period of 2 years and 3 months set, commencing 30 June 2020 and expiring 30 September 2022.
• Earliest eligible parole date recorded as 30 September 2022.
• Indicative sentences recorded as: 2 years and 8 months for the offence involving Ms O'Regan; 2 years and 2 months for the offence involving Mr Clarke.

Key Takeaways

• A sentencing judge's factual characterisation of drug intoxication must be grounded in and consistent with the expert evidence tendered, particularly where the pharmacological mechanism (here, withdrawal-phase sedation rather than active stimulant effect) affects the nature and degree of impairment attributed to the offender.
• The R v Whyte guideline judgment remains a binding reference point for sentencing dangerous driving offences in NSW, and a failure to apply its framework correctly can constitute error warranting appellate intervention.
• Where an offender contests the facts at sentencing and loses, the Crimes (Sentencing Procedure) Act 1999 (NSW), s 25F(4) permits a reduction in the guilty plea discount, as occurred here with a reduction from 25% to 20%.
• In resentencing, the Court of Criminal Appeal adopted all unchallenged findings from below, including the finding of special circumstances arising from the offender's care responsibilities, his status as a first-time prisoner, and the effects of the pandemic.
• Aggregate sentences must reflect the totality of criminality involved; an aggregate that effectively exceeds that totality is a distinct ground of manifest excess, separate from the assessment of individual indicative sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25F(4), 44(2A), 44(2B), 53A(2)(b)

Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- R v Stanton [2020] NSWDC 454 (decision below)
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Moodie v R [2020] NSWCCA 160
- Hordern v R [2019] NSWCCA 138
- Colville v R [2015] NSWCCA 149
- BJS v R [2013] NSWCCA 123
- JM v R [2014] NSWCCA 297
- PD v R [2012] NSWCCA 242
- WW v R [2012] NSWCCA 165
- R v O'Donoghue (1988) 34 A Crim R 397