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Court of Criminal Appeal 22 April 2022

Moananu v R

[2022] NSWCCA 85

HomicideTraffic & drivingPublic order & justice offences
CRIME SENTENCING APPEAL AGAINST SENTENCE TWO COUNTS OF VEHICULAR MANSLAUGHTER TWO PEOPLE KILLED OFFENDER HEAVILY INTOXICATED

Citation: Moananu v R [2022] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 22 April 2022
Judges: Leeming JA at [1]; Price J at [31]; Hamill J at [55]

Background

The applicant was convicted of two counts of vehicular manslaughter and one count of dangerous driving causing grievous bodily harm, arising from a single incident of drink-driving that killed two people and seriously injured a third. The applicant was heavily intoxicated at the time and drove from a hotel despite having the means to avoid doing so. The sentencing judge in the District Court described the conduct as disgraceful and appalling, emphasising the strong need for general deterrence.

At first instance, the sentencing judge imposed an aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years. Individual indicative sentences were set at 8.5 years and 9 years for the two manslaughter counts, and 4.5 years for the dangerous driving count, each reflecting a 25% discount for the applicant's guilty plea.

The applicant sought leave to appeal on four grounds: errors in fact-finding, denial of procedural fairness, and manifest excess of the aggregate sentence. The first three grounds were dismissed unanimously. The fourth ground divided the Court, with the majority finding the aggregate sentence manifestly excessive.

  • Whether the sentencing judge made errors in finding that the applicant had always intended to drive away from the hotel
  • Whether the applicant was denied procedural fairness in the sentencing process
  • Whether the aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years was manifestly excessive
  • How to assess manifest excess where individual indicative sentences are within range but the aggregate sentence may not be

Decision

All three judges agreed that grounds 1, 2, and 3 should be dismissed. The sentencing judgment was described as thoughtful and comprehensive, and no patent error in fact-finding or procedural unfairness was established.

On the manifest excess ground, the Court divided. The majority (Leeming JA and one other) held that the aggregate sentence was excessive when viewed against comparable decisions involving driving offences resulting in multiple deaths. Leeming JA noted that while none of the individual indicative sentences would, standing alone, be manifestly excessive, the aggregate sentence of 15 years with a 10-year non-parole period sat uncomfortably high in the range established by comparable cases.

Leeming JA emphasised the particular utility, in cases involving multiple victims from the same driving incident, of comparing actual aggregate sentences rather than individual indicative sentences. He observed that the sentencing discretion in relation to notional accumulation and concurrency means that indicative sentences can vary while the aggregate remains fixed, making the aggregate sentence the more meaningful comparator.

The majority accepted that the offending approached, but did not fall within, the worst category of case. Applying the survey of comparable decisions, the majority concluded that an aggregate sentence of 12.5 years with a non-parole period of 8 years and 4 months was appropriate. Hamill J, in dissent on this ground, would have dismissed the appeal, finding no basis to interfere with the sentencing judge's exercise of discretion.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 5 November 2020 quashed
  • Applicant re-sentenced to an aggregate sentence of 12.5 years commencing 29 September 2018 and expiring 28 March 2031
  • Non-parole period of 8 years and 4 months commencing 29 September 2018 and expiring 28 January 2027
  • Applicant first eligible for parole at expiration of the non-parole period
  • Disqualification from driving order made by the District Court confirmed

Key Takeaways

  • In cases involving multiple victims arising from the same driving incident, the Court of Criminal Appeal confirmed that the more reliable comparator for manifest excess is the actual aggregate sentence, not the individual indicative sentences, because the broad discretion over notional accumulation and concurrency can produce variable indicative sentences while the aggregate remains unchanged.
  • Manifest excess does not require identification of specific error on the face of the sentencing reasons; it is established where the sentence is unreasonable or plainly unjust, permitting an inference that something has gone wrong in the application of principle even if not visible in the reasons.
  • Individual indicative sentences within an otherwise lawful range do not automatically render the aggregate sentence within range, and a court assessing manifest excess must engage with the totality of the sentence against comparable cases.
  • A survey of comparable multi-victim dangerous driving cases was central to the majority's reasoning, consistent with the approach taken in cases such as Smith v R [2020] NSWCCA 181, while acknowledging the limitations of relying on individual decisions to establish a sentencing range.
  • The offending was characterised as approaching but not within the worst category of case, a distinction that carried significant weight in calibrating the appropriate aggregate sentence against the upper end of the established range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 51B(1), 52(4), 52A(2), 52A(4)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 25D(2), 32, 53A(2)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 108

Cases:
- Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85
- Smith v R [2020] NSWCCA 181; (2020) 93 MVR 345
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Lawler v R [2007] NSWCCA 85; (2007) 169 A Crim R 415
- Duncan v R [2012] NSWCCA 78
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Crowley v R [2021] NSWCCA 45
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Dinsdale v The Queen (2002) 202 CLR 321; [2000] HCA 54
- Hilli v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Burgess v R [2019] NSWCCA 13
- Chartres-Abbott v R [2021] NSWCCA 239
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
- Day v R [2014] NSWCCA 333; 69 MVR 103
- Elsaj v R [2017] NSWCCA 124
- R v Cameron [2005] NSWCCA 359; (2005) 157 A Crim R 70