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17
Court of Criminal Appeal 11 August 2021

Byrne v R; Cahill v R

[2021] NSWCCA 185

HomicideTraffic & driving
CRIME APPEAL AGAINST SENTENCE MANIFEST EXCESS STREET RACE BETWEEN TWO MOTOR VEHICLES COLLISION WITH INNOCENT ROAD USER MANSLAUGHTER

Citation: Byrne v R; Cahill v R [2021] NSWCCA 185
Court: Court of Criminal Appeal, NSW
Date: 11 August 2021
Judge(s): Bell P; Rothman J; Button J

Background

In October 2017, two young men on a TAFE morning tea break engaged in a spontaneous street race along Coleman Street in Wagga Wagga. Both were on provisional licences and each was carrying two passengers. The race began when their cars pulled up side by side at a red light and both drivers accelerated hard when the light turned green, well beyond the 50 km/h limit in the built-up residential area.

During the race, the vehicle driven by the first applicant collided at high speed with an innocent road user, Craig Smith, who had lawfully commenced a U-turn from outside his home. Mr Smith was killed instantly. The second applicant's vehicle, travelling behind, avoided the collision and its occupants went to assist at the crash scene.

Both applicants pleaded guilty to manslaughter in the Local Court and were committed to the District Court for sentencing. Judge Lerve sentenced each to an identical term of 10 years and 6 months' imprisonment, with a non-parole period of 7 years. Both sought leave to appeal to the Court of Criminal Appeal, each arguing the sentence was manifestly excessive.

  • Whether the sentences imposed on each applicant were manifestly excessive, having regard to the objective seriousness of the offending, the applicants' subjective circumstances, and comparable cases
  • Whether the sentencing judge made any identifiable error warranting appellate intervention

Decision

The Court of Criminal Appeal unanimously dismissed both appeals. All three judges agreed that, although the sentences were stern, they were neither unreasonable nor plainly unjust, and did not rise to the level of manifest excess that would justify appellate interference with the sentencing judge's discretion.

The Court applied the well-established principle from House v The King (1936), which requires an applicant to demonstrate more than that the appellate court might have taken a different view. A sentence will not be disturbed simply because individual judges may have imposed a lighter or heavier term. No identifiable error by Judge Lerve was established.

Rothman J, delivering the leading judgment, noted that the objective seriousness of the offending was high. Two provisional licence holders raced V8 vehicles through a built-up residential area at well over the speed limit, with passengers in each car and a high school located nearby. The Court found that the limited weight generally given to youth and inexperience in dangerous driving fatality cases applied here, and that the provisional licence status of both drivers actually elevated their culpability and strengthened the case for deterrence as a significant sentencing consideration.

Bell P emphasised the broader public importance of the matter, observing that the holding of a driver's licence is a privilege carrying heavy responsibilities, and that those responsibilities were flagrantly disregarded. He noted that further tragedy had been avoided only by fortune, given the circumstances of the race.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed (in respect of each applicant)

Key Takeaways

  • Manifest excess requires more than a difference of opinion about appropriate penalty: an applicant must demonstrate that the sentence was unreasonable or plainly unjust, not merely that the appellate court would have imposed a different term.
  • Where young or inexperienced offenders cause death through dangerous driving, their youth and immaturity play only a limited and subordinate role in sentencing, as established in prior New South Wales and Victorian authority.
  • The provisional licence status of both drivers was treated as an aggravating feature, not a mitigating one, because it underscored the gravity of the responsibilities cast aside.
  • In dismissing the appeals, the Court confirmed that general deterrence carries particular weight in cases involving street racing resulting in death, especially in built-up residential areas.
  • No error was identified in the sentencing judge's approach, and identical sentences of 10 years and 6 months (with a 7-year non-parole period) for manslaughter arising from a fatal street race were held to fall within the appropriate range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 18(1)(b), 52A

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- SBF v R (2009) 53 MVR 438; [2009] NSWCCA 231
- TG v R [2010] NSWCCA 28
- Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 143
- R v Borkowski [2009] NSWCCA 102
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
- DPP v Neethling (2009) 52 MVR 422; [2009] VSCA 116
- R v Cahill; R v Byrne [2020] NSWDC 224
- R v Geddes (1936) 36 SR (NSW) 554
- R v Taufahema [2004] NSWCCA 833