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Court of Criminal Appeal 24 March 2021

Crowley v R

[2021] NSWCCA 45

HomicideTraffic & driving

Citation: Crowley v R [2021] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 24 March 2021
Judges: Basten JA, Harrison J, Adamson J

Background

The applicant pleaded guilty in the District Court to the manslaughter of one person and three counts of aggravated dangerous driving occasioning grievous bodily harm, arising from an incident in which he drove at high speed against oncoming traffic for an extended distance before a fatal collision. Two further charges of causing bodily harm by misconduct in charge of a motor vehicle were taken into account on sentencing. The District Court imposed an aggregate sentence of 14 years and 3 months' imprisonment with a non-parole period of 10 years.

The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal. His case centred primarily on the proposition that his dangerous driving was caused or influenced by an anxiety disorder, with features of panic disorder and obsessive compulsive disorder.

The applicant's psychiatrist, Dr Nielssen, had described a panic attack as "one possible reason" for the driving behaviour, but could not go further than identifying it as a possibility. The sentencing judge found that causal connection had not been established and proceeded to sentence on the objective facts of the driving conduct.

  • Whether the sentence proceedings miscarried due to a combination of circumstances, including alleged incompetence of defence counsel, the sentencing judge's conduct regarding adjournment, adverse inferences drawn from an electronically recorded interview without notice to defence, and failure to put inconsistencies to the applicant in cross-examination
  • Whether the applicant was denied procedural fairness when the sentencing judge drew adverse inferences from the contents of the electronically recorded interview (ERISP) without giving notice to defence counsel
  • Whether the proceedings miscarried in the absence of further evidence about the applicant's mental state
  • Whether the aggregate sentence of 14 years and 3 months' imprisonment was manifestly excessive

Decision

Grounds 1 to 3: Alleged miscarriage of proceedings

The Court rejected the argument that the proceedings had miscarried. On the question of incompetent representation, the Court was not persuaded that the conduct of defence counsel fell below the required standard in any way that caused a miscarriage. The sentencing judge's handling of the adjournment question and the ERISP material was examined in the context of what actually occurred at the hearing, and no procedural unfairness was established.

The applicant's psychiatrist could put the panic attack theory no higher than describing it as "one possible reason" for the driving behaviour. Basten JA observed that there was no science-based evidence demonstrating that the conditions diagnosed typically produced such conduct, and that a causal link could not be inferred without scientific support. The absence of further expert evidence on this point did not constitute a miscarriage.

Ground 4: Manifest excess

The Court found the aggregate sentence, while undoubtedly severe, was not unreasonable or plainly unjust. The sentencing judge had accepted the applicant's anxiety, depression, and OCD diagnoses, and acknowledged that mental conditions can reduce moral culpability. However, the judge found no evidence that those conditions impaired the applicant's capacity to choose to drive as he did, nor any evidence that they precluded an appreciation of the gravity of the conduct.

The Court noted the sentencing judge had appropriately taken into account the guilty plea, the applicant's youth, his mental conditions, his remorse, his prospects of rehabilitation, and the low likelihood of reoffending. Those favourable subjective matters were weighed against the objective seriousness of offending that demonstrated, as Basten JA put it, a flagrant disregard for the lives of other road users, with serious injury and death as consequences that were nigh on inevitable.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A psychiatric opinion that a mental health condition is "one possible reason" for offending conduct is insufficient to establish a causal link for sentencing purposes, particularly where no science-based evidence supports the connection.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that favourable subjective matters, including youth, remorse, mental health diagnoses, and rehabilitation prospects, must be weighed against the objective gravity of the offending and cannot override a properly reasoned sentence.
  • Where a sentencing judge acknowledges a diagnosed mental health condition but finds it did not impair the offender's capacity to choose their conduct or appreciate its consequences, that finding may be properly open on the evidence.
  • No error was established in the sentencing judge's treatment of the ERISP or in the conduct of the sentencing proceedings more broadly, and the claimed procedural unfairness did not survive scrutiny.
  • Sentences for unlawful homicide must reflect the taking of a human life; the Court confirmed the District Court's view that the catastrophic and foreseeable consequences of driving at speed against oncoming traffic for an extended distance justified the aggregate sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 52A
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 53A
- Evidence Act 1995 (NSW), ss 4, 79, 190

Cases:
- Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297
- Lane v R [2013] NSWCCA 317
- Markarian v The Queen (2005) 228 CLR; [2005] HCA 25
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v Forbes [2005] NSWCCA 377
- R v Peisley (1990) 54 A Crim R 42
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- WW v R [2012] NSWCCA 165