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Court of Criminal Appeal 14 February 2024

Wells v R

[2024] NSWCCA 8

HomicideTraffic & driving
SENTENCING APPEAL AGAINST SENTENCE AGGRAVATING FACTORS DANGEROUS DRIVING OCCASIONING DEATH MORAL CULPABILITY OBJECTIVE SERIOUSNESS

Citation: Wells v R [2024] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 14 February 2024
Judges: Ward P (primary judgment); Button J and Ierace J (agreeing)

Background

The applicant pleaded guilty in the District Court to dangerous driving occasioning death in circumstances of aggravation, contrary to s 52A(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was exceeding the speed limit by more than 45 km/h. On the evening of 16 October 2020, he was driving his new Subaru WRX at 138 km/h in an 80 km/h zone on the Pacific Highway, having told his passenger "We'll go fast" and switched the vehicle to sport mode. He collided with a Toyota LandCruiser turning at an intersection, killing the driver. A separate offence of causing bodily harm by wanton driving under s 53 was dealt with concurrently on a s 166 certificate.

The District Court sentenced the applicant to 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months, after applying a 25% guilty plea discount. The sentencing judge assessed the primary offence as above midrange in objective seriousness and found the applicant's moral culpability to be high. A three-year licence disqualification was imposed, with a direction to Roads and Maritime Services to consider the suspension period from the date of arrest.

The applicant sought leave to appeal out of time on three grounds: that the assessments of objective seriousness and moral culpability were erroneous; that good character and the absence of criminal history were not properly treated as mitigating factors; and that the licence disqualification calculation contained an error.

  • Whether the sentencing judge erred in finding the offending was above midrange in objective seriousness, given the applicant was "showing off" his vehicle rather than driving for any other purpose
  • Whether the sentencing judge erred in characterising the applicant's moral culpability as high, on the basis that he abandoned responsibility in a "gross fashion"
  • Whether the sentencing judge failed to treat the applicant's good character and lack of criminal history as mitigating factors
  • Whether the sentencing judge erred in directing Roads and Maritime Services to calculate the licence disqualification period from the date of arrest rather than from the date of the actual licence suspension

Decision

Ground 1: Objective seriousness and moral culpability. The Court of Criminal Appeal held the sentencing judge's findings were open on the evidence. The applicant's speed (reaching 138 km/h through hard acceleration in a short distance), his aggressive driving manner, his deliberate choice to drive at that speed in a residential area, and his awareness that other road users might be entering the road at that location all supported the above-midrange and high-moral-culpability findings. The "showing off" context was not merely marginal; it formed part of a deliberate course of conduct.

The Court distinguished two cases raised by the applicant (R v Shashati and R v Bortic) on their facts, finding they did not establish that the sentencing judge's assessment was outside the available range. The combination of circumstances here, including the residential surroundings and the degree of acceleration involved, justified the findings made below.

Ground 2: Good character and absence of criminal history. The Court found no error. A sentencing judge is not required to make an explicit positive finding on the absence of prior criminal history where it is clear from the judgment that the factor was accepted as mitigating. The sentencing judge's observation that "the tragedy falls on both sides" indicated acceptance of the applicant's good character, and nothing in the judgment suggested this was overlooked.

Ground 3: Licence disqualification period. The Crown conceded error on this ground. The sentencing judge had directed Roads and Maritime Services to count the suspension period from the date of arrest rather than from the date of the actual licence suspension. The sentencing judge was also required to make that calculation himself rather than delegating it to Roads and Maritime Services. Both errors were acknowledged, and the parties agreed on the corrected disqualification period. The Court quashed the original disqualification order for the primary offence and substituted a period of 1 year and 92 days.

Orders Made

  • Time for filing the notice of appeal extended to 29 September 2023; leave to appeal against sentence granted
  • Ground 3 of the appeal upheld
  • The sentencing judge's disqualification order for the primary offence (sequence 4) quashed
  • Applicant disqualified for 1 year and 92 days for the primary offence
  • Disqualification period for the s 166 matter (sequence 3) confirmed, to run concurrently
  • Appeal otherwise dismissed

Key Takeaways

  • A sentencing judge's finding of high moral culpability for dangerous driving can be supported by the combined weight of speed, manner of driving, deliberate decision-making, and knowledge of the surrounding road environment, even where the broader context involves showing off rather than racing or escaping police.
  • The "showing off" or "impressing a passenger" context for dangerous driving is not automatically a factor that reduces objective seriousness; its significance depends on how it combines with other features of the offending conduct.
  • Where a sentencing judge's reasons make clear that good character and absence of criminal history were accepted as mitigating, the absence of an explicit positive finding on those matters will not ordinarily constitute error on appeal.
  • Under s 206B of the Road Transport Act 2013 (NSW), a sentencing court must itself take into account the correct period of licence suspension already served when setting a disqualification period. The calculation runs from the date of actual suspension, not the date of arrest.
  • In dismissing the bulk of the appeal, the Court of Criminal Appeal confirmed the House v The King standard: a sentence will not be disturbed simply because a different outcome might have been open; error must be demonstrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 53
- Crime (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), ss 205, 206B

Cases:
- House v The King (1936) 55 CLR 499
- Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Bortic [2021] NSWCCA 138
- R v Shashati [2018] NSWCCA 167
- Moodie v R [2020] NSWCCA 160
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Battersby v R [2018] NSWCCA 141
- R v Borkowski [2009] NSWCCA 102
- Baumer v The Queen (1988) 166 CLR 51