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Court of Criminal Appeal 22 December 2022

R v Russell

[2022] NSWCCA 294

Assault & violenceHomicideTraffic & driving
CRIME APPEALS CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE GROSSLY OVERLOADED CARAVAN APPEAL ALLOWED

Citation: R v Russell [2022] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 22 December 2022
Judge(s): Kirk JA; N Adams J; McNaughton J (reasons by McNaughton J; Kirk JA and N Adams J agreeing)

Background

The respondent was convicted by jury in the District Court at Tamworth of two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm, all arising from a single vehicle collision on 3 January 2019 near Yarrowitch on the Oxley Highway. He had been driving a Toyota Prado towing a Jayco Heritage caravan loaded well beyond its maximum specified weight of 2,387 kilograms. The caravan and its contents weighed 3,200 kilograms at the time of the collision, an overload of 813 kilograms. The respondent had personally supervised and directed the loading.

The respondent was travelling with three family members from Tamworth to Wauchope, a journey of approximately 250 kilometres, when the caravan began to sway on a descent into the Yarrowitch Valley. The collision resulted in the deaths of the respondent's wife and stepson, and grievous bodily harm to the stepson's partner. A fourth count alleging perversion of the course of justice was returned not guilty.

The District Court sentenced the respondent to an aggregate term of 4 years imprisonment with a non-parole period of 2 years, commencing 5 May 2022. The Director of Public Prosecutions appealed that sentence to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act 1912 (NSW).

  • Whether the sentencing judge erred in finding that the dangerous driving only arose from the moment the caravan first began to sway, rather than from the point the respondent set out on the journey towing a grossly overloaded caravan.
  • Whether the aggregate sentence of 4 years imprisonment with a 2-year non-parole period was manifestly inadequate, having regard to the totality of the criminality, the indicative sentences, the degree of accumulation, and the sentencing purposes of general deterrence, specific deterrence, punishment, and denunciation.

Decision

Ground 1: Assessment of the length of journey during which others were exposed to risk

The respondent conceded, and the Court accepted, that the sentencing judge erred in confining the period of dangerous driving to the time from when the caravan first swayed. The dangerousness arose not from the swaying itself but from the respondent's deliberate decision to commence a journey of approximately 250 kilometres while towing a caravan overloaded by more than 800 kilograms. Passengers and members of the travelling public were exposed to risk for the entire length of the journey. The Court found the relevant exposed distance to be 130 kilometres (the distance actually travelled), while noting that the intended journey of 250 kilometres was also relevant to assessing culpability.

Ground 2: Manifest inadequacy

The Court held that the aggregate sentence of 4 years failed to reflect the totality of the criminality involved in the deaths of two people and the grievous bodily harm of a third. The indicative sentences were themselves infected by error, and the degree of notional accumulation applied by the sentencing judge compounded that error, producing a wholly inadequate result. The Court also found that the non-parole period departed significantly from the statutory ratio (between 75% and 50% of the head sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW)), and that this departure contributed to a non-parole period that did not reflect the seriousness of the offending. General deterrence, specific deterrence, and denunciation were not properly reflected in the sentence.

Residual discretion and resentencing

The Court declined to exercise its residual discretion to refrain from intervening. It noted that the appeal was swiftly instituted, that the appellant succeeded on both grounds, and that the gravity of the offending warranted an increase. The Court resentenced the respondent to an aggregate term of 6 years and 6 months imprisonment, with a non-parole period of 4 years. A finding of special circumstances was made, having regard to the respondent's physical and mental difficulties in custody and the effect of COVID-19 on his custodial conditions.

Orders Made

  • Appeal allowed.
  • Sentence imposed in the District Court on 5 May 2022 quashed.
  • Respondent resentenced to a term of imprisonment of 6 years and 6 months with a non-parole period of 4 years, commencing 5 May 2022.
  • First eligible date for release to parole: 4 May 2026.

Key Takeaways

  • The commencement of dangerous driving is not necessarily the moment a vehicle first begins to behave dangerously. Where a driver deliberately sets out towing a grossly overloaded load, the dangerousness arises from the decision to begin the journey, and the period of exposure to risk runs from that point.
  • Under s 5D of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may intervene in a Crown appeal against sentence where both grounds of appeal are established and the gravity of the offending is such that the sentence fails to reflect proper sentencing purposes.
  • Indicative sentences in an aggregate sentencing exercise carry real significance. Error in those indicative figures, when combined with excessive notional accumulation, can produce an aggregate sentence that is manifestly inadequate even if each step appears individually defensible.
  • A non-parole period that departs substantially from the statutory ratio specified in the Crimes (Sentencing Procedure) Act 1999 (NSW) may itself contribute to manifest inadequacy, particularly in cases involving serious offending where general and specific deterrence and denunciation are prominent considerations.
  • Special circumstances sufficient to justify a departure from the standard non-parole ratio can be found in a combination of the offender's physical and mental difficulties in custody and the impact of COVID-19 on custodial conditions, even in cases involving serious offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(1)(c), 52A(3)(c), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 36, 37A, 42A, 44(2B), 52A
- Criminal Appeal Act 1912 (NSW), s 5D
- Road Transport Act 2013 (NSW), s 206B

Cases
- Caristo v R [2011] NSWCCA 7
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Foaiaulima v R [2020] NSWCCA 270
- Gibson v R [2019] NSWCCA 221
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hall v R [2021] NSWCCA 220
- Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151
- Hordern v R [2019] NSWCCA 138
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155
- Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kliendienst v R [2020] NSWCCA 98
- Ladas v R [2022] NSWCCA 160
- Maglis v R [2010] NSWCCA 247
- Martinez v R [2022] NSWCCA 12
- McBride v The Queen (1966) 115 CLR 44; [1966] HCA 22
- Mina Nashed v Regina [2010] NSWCCA 282
- Moodie v R [2020] N