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Court of Criminal Appeal 6 December 2021

Nealon v R

[2021] NSWCCA 286

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE APPLICABLE PRINCIPLES USE OF SENTENCING STATISTICS LIMITATIONS OF COMPARABLE CASES

Citation: Nealon v R [2021] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 6 December 2021
Judges: Leeming JA (principal judgment); Fullerton J and R A Hulme J (agreeing)

Background

The appellant was convicted by jury after a trial in the District Court on a single charge of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act 1900 (NSW), which carries a maximum sentence of 14 years imprisonment. The offending occurred on 14 December 2016, when the appellant drove a V8 utility along the Princes Highway at Wolli Creek after consuming alcohol for approximately four hours. His blood alcohol concentration was at least 0.15g/100ml, and most likely around 0.162.

The appellant drove erratically and at excessive speed through heavy peak-hour traffic. At a large T-intersection, he crossed at least three lanes before colliding with a fence protecting a traffic island, killing a 22-year-old woman who was waiting there for a pedestrian signal. The sentencing judge characterised the offending as "a serious and grave example" of the offence and assessed the appellant's moral culpability as amounting to "a total abandonment of responsibility."

The District Court imposed a sentence of 8 years and 6 months imprisonment with a non-parole period of 6 years and 4 months, together with a 6-year driving disqualification from release on parole. The appellant sought leave to appeal to the Court of Criminal Appeal on a single ground: that the sentence was manifestly excessive.

  • Whether the sentence of 8 years and 6 months imprisonment for aggravated dangerous driving occasioning death was manifestly excessive.
  • How sentencing statistics and comparable cases should be used when assessing manifest excess, particularly where most comparable offenders pleaded guilty but the appellant was convicted after a trial.
  • Whether the favourable subjective findings made at first instance (remorse, rehabilitation prospects, personal history) were sufficient to bring the sentence outside the acceptable range.

Decision

Leeming JA, with whom Fullerton J and R A Hulme J agreed, dismissed the appeal. The Court granted leave to appeal but found that the appellant had not established manifest excess.

On the use of comparable cases and sentencing statistics, Leeming JA observed that the appellant's sentence appeared higher than most comparable sentences in isolation. However, the Court held that this comparison was misleading. The overwhelming majority of offenders charged with this offence plead guilty and thereby receive a utilitarian discount on their sentence. When that discount is factored in and the comparison is made on an adjusted, like-for-like basis, the sentence imposed after trial fell well within the accepted range for serious instances of this offence.

The Court found that the individual cases relied upon by the appellant did not support a conclusion of error. Most of the comparable cases, when examined in context, confirmed the sentence was justified rather than undermining it. The Court reiterated the well-established principle that for an appeal on manifest excess to succeed, error must be inferred from the sentence itself. The ground does not invite a de novo sentencing exercise.

The favourable subjective findings, including remorse, low reoffending risk, good rehabilitation prospects, and a difficult personal background, were acknowledged. However, they were insufficient to displace the conclusion that the sentence was appropriate given the primary judge's unchallenged assessment of the objective gravity of the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • When assessing whether a sentence for aggravated dangerous driving occasioning death is manifestly excessive, raw comparisons with other sentenced offenders are unreliable unless adjusted to account for the utilitarian discount applied to guilty pleas, which most offenders in this category receive.

  • No error was established merely because the sentence appeared higher than most comparable cases; the appropriate comparison is with sentences imposed following a trial, or with plea-based sentences adjusted upward to strip out the discount.

  • In dismissing the appeal, the Court confirmed that favourable subjective findings, including remorse and good rehabilitation prospects, do not automatically reduce a sentence that is otherwise proportionate to a high level of objective seriousness and moral culpability.

  • Under the manifest excess ground of appeal, an appellate court does not resentence from scratch. The appellant must demonstrate that error is inferable from the sentence imposed, consistent with the principle in House v The King (1936) 55 CLR 499.

  • The District Court's unchallenged finding that the offending constituted "a total abandonment of responsibility" and was "a serious and grave example" of the offence provided a sound foundation supporting the sentence, even in the presence of a sympathetic subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Bail Act 1978 (NSW), s 51(2)
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- Hili v The Queen (2010) 242 CLR 520
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Loveridge [2014] NSWCCA 120
- R v Blacklidge (NSWCCA, unreported, 12 December 1995)
- Tabbah v R [2019] NSWCCA 324
- Norouzi v R [2020] NSWCCA 237
- R v Bortic [2021] NSWCCA 138
- Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
- Kane v R [2021] NSWCCA 250
- Hall v The Queen [2021] NSWCCA 220
- Conte v R [2018] NSWCCA 209
- R v Shashati [2018] NSWCCA 167
- Bombardieri v R [2010] NSWCCA 161
- Smith v R [2011] NSWCCA 290
- Williams v R [2012] NSWCCA 286
- R v Wright [2013] NSWCCA 82
- Hei Hei v R; R v Hei Hei [2009] NSWCCA 87
- R v Meakin [2019] NSWSC 1555