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Court of Criminal Appeal 11 October 2021

Zreika v R

[2021] NSWCCA 243

Traffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Zreika v R [2021] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 11 October 2021
Judges: Bell P; Price J (agreeing with Bell P); Hamill J (partially dissenting)

Background

The applicant was convicted by a jury of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, following an incident in July 2017 in which a 6.5-tonne truck he was driving crossed onto the wrong side of the road, mounted a footpath, and struck two men who were gardening. One man died at the scene; the other suffered very serious injuries. A blood sample taken from the applicant at hospital revealed high levels of tramadol and other substances.

The sentencing judge found that the applicant had suffered a seizure while driving, that he had previously been warned by medical practitioners that it was unsafe for him to drive, and that his excessive use of tramadol had increased the risk of such a seizure. The applicant's driver licence was suspended at the time of the incident, though the suspension had only narrowly continued because he had not yet sat a required Driver Knowledge Test. The sentencing judge placed the offences in the middle range of objective seriousness, toward the higher end of that range, and imposed an aggregate sentence of six years' imprisonment with a four-year non-parole period.

The applicant sought leave to appeal against the sentence on the ground that the sentencing judge had erred in assessing objective seriousness.

  • Whether the sentencing judge erred by failing to adequately account for the nature and extent of the surviving victim's injuries when assessing the objective seriousness of the dangerous driving occasioning grievous bodily harm offence
  • Whether the sentencing judge erred by taking into account matters personal to the applicant (including the licence suspension) when assessing objective seriousness, thereby double-counting those factors

Decision

On the victim's injuries: The majority (Bell P and Price J) held that the sentencing judge had not overlooked the surviving victim's injuries. The judge had described those injuries as "very serious" and "grievous," and it was apparent on the evidence that they fell at the serious end of the spectrum. There was no obligation on the sentencing judge to "rate" the injuries on some notional scale. Hamill J dissented on this point, finding that merely labelling the injuries as "very serious" was insufficient, and that some evaluative engagement with their nature and extent was required to properly assess objective seriousness.

On double-counting personal factors: All three judges agreed that the sentencing judge erred in this respect. The structure of the sentencing remarks indicated that certain personal factors, most notably the applicant's licence suspension, had been considered in assessing objective seriousness as well as under other sentencing considerations. The Court held that the licence suspension had no causative connection to the manner of driving and, following the earlier decision in Rosenthal v R [2008] NSWCCA 149, could not be treated as elevating objective seriousness. That error justified intervention and resentencing.

On resentencing: The majority (Bell P and Price J) resentenced the applicant to an aggregate term of five years and six months' imprisonment, with a non-parole period of three years and eight months. Hamill J, having also found the injuries error, would have imposed a lower sentence of four years and nine months with a non-parole period of three years and three months. The orders ultimately made reflect the majority's resentencing.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence quashed and replaced with an aggregate sentence of four years and nine months' imprisonment (commencing 4 June 2019, expiring 3 March 2024), with a non-parole period of three years and three months (expiring 3 September 2022)
  • Applicant eligible for release to parole at the expiration of the non-parole period
  • Orders under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to the licence suspension and unsecured load offences confirmed
  • Automatic three-year driving disqualification to commence upon release to parole

Note: The orders as made appear to reflect Hamill J's resentencing figures rather than those of the majority. Readers should consult the full judgment to confirm the precise basis on which the final orders were settled.

Key Takeaways

  • A sentencing court assessing objective seriousness must confine its analysis to the objective circumstances of the offence itself; personal circumstances of the offender, such as a licence suspension, are not appropriately considered at that stage unless they bear a causative connection to the dangerous driving.
  • The Court of Criminal Appeal confirmed the approach in Rosenthal v R: where a licence suspension has no causative relationship to the manner of driving, it cannot be used to elevate objective seriousness.
  • Double-counting, where a factor is taken into account both in assessing objective seriousness and under other sentencing considerations, is a recognised sentencing error capable of vitiating the exercise of discretion.
  • In assessing objective seriousness for dangerous driving offences, a sentencing court is not required to rank or grade the victim's injuries on any notional scale; describing them by reference to the evidence, using language consistent with the statutory criterion, may be sufficient (per the majority).
  • Hamill J's dissent signals some tension within the Court on the degree of evaluative engagement with victim injuries that is required; his Honour considered that bare characterisation, without some qualitative assessment, fell short of what the task demands.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 52A(1)(c), 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 21A, 53A, 166
- Criminal Appeal Act 1912 (NSW) s 5(1)(c)
- Criminal Procedure Act 1986 (NSW) s 166
- Road Transport Act 2013 (NSW) ss 43A, 54(3)(a)
- Road Rules 2014 (NSW) r 292(a)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Rosenthal v R [2008] NSWCCA 149
- Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Jurisic (1998) 45 NSWLR 209
- Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
- Fisher v R [2021] NSWCCA 91
- Kelley v R [2021] NSWCCA 173
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Gillett v R (2006) 166 A Crim R 419; [2006] NSWCCA 370
- Markham v R [2007] NSWCCA 295
- Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
- R v Harris [2015] NSWCCA 81
- Haoui v R [2008] NSWCCA 209