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Court of Criminal Appeal 5 June 2024

Crane v R

[2024] NSWCCA 87

HomicideTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE DANGEROUS DRIVING CAUSING DEATH APPEAL UPHELD SENTENCE

Citation: [2024] NSWCCA 87
Court: Court of Criminal Appeal, NSW
Date: 5 June 2024
Judges: Stern JA, Rothman J, Yehia J

Background

The applicant pleaded guilty to one count of aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). In the early hours of 19 January 2022, he drove a vehicle at Wentworth Falls at 112 km/h in a 60 km/h zone. The vehicle failed to navigate a gentle bend, struck a concrete safety barrier, and the passenger died from the resulting injuries.

At the time of the collision, the applicant was under the influence of methylamphetamine to a degree that significantly impaired his driving. The Crown relied on excess speed (more than 45 km/h above the posted limit) as the statutory element of aggravation under s 52A(7)(b). Methylamphetamine intoxication was treated as a circumstance of aggravation, but the evidence did not establish the higher threshold of "very substantially impaired" needed to make intoxication an independent statutory element of aggravation under s 52A(7)(d).

The applicant was sentenced in the District Court to 6 years and 6 months imprisonment with a non-parole period of 4 years and 6 months, after a 25% discount for an early guilty plea. He had diagnosed schizophrenia, PTSD, and ADHD. The sentencing judge found special circumstances but adjusted the statutory parole ratio downward by only four months.

  • Whether the sentencing judge erroneously conflated the statutory element of aggravation (speed) with the circumstance of aggravation (methylamphetamine intoxication), contrary to the Crown's concession on the s 52A(7)(d) issue
  • Whether the sentencing judge erred in finding no causal connection between the applicant's mental health conditions and the offending
  • Whether the finding of special circumstances was given practical effect through the adjustment to the non-parole period
  • Whether the overall term of imprisonment was manifestly excessive

Decision

Ground 1 (statutory aggravation and intoxication): The Court of Criminal Appeal dismissed this ground. Reading the sentencing remarks as a whole, the sentencing judge did not treat methylamphetamine intoxication as the statutory element of aggravation. The judge's references to the degree of intoxication were made in the context of identifying aggravating circumstances, not in substituting intoxication for speed as the s 52A(7)(d) element.

Ground 2 (mental health and causal connection): This ground also failed. The sentencing judge had turned his mind to the issue and acknowledged an indirect link between the applicant's schizophrenia and his methamphetamine addiction, which reduced his subjective moral culpability to some extent. It remained entirely open to the sentencing judge to conclude that the mental health conditions did not materially contribute to the offending itself.

Ground 3 (practical effect of special circumstances): This ground succeeded. Where a sentencing court finds special circumstances, at least partly on the basis of a need for extended rehabilitation, any adjustment to the statutory parole ratio must meaningfully reflect the period of parole required to address that rehabilitation. The downward adjustment of only four months provided no real practical effect, and the sentencing judge gave no explanation for limiting the adjustment to that extent. This constituted error.

Ground 4 (manifest excess): Because Ground 3 succeeded and necessitated re-sentencing, the Court found it unnecessary to consider whether the overall head sentence was manifestly excessive. The head sentence of 6 years and 6 months was maintained on re-sentence. The non-parole period was reduced to 3 years and 9 months, resulting in a parole period of 2 years and 9 months to allow for extended supervision addressing the applicant's mental health conditions, substance abuse, and rehabilitation needs.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 16 August 2023 quashed
  • Applicant re-sentenced to a total term of 6 years and 6 months imprisonment, comprising a non-parole period of 3 years and 9 months commencing 10 February 2022 and expiring 9 November 2025, with a balance of term of 2 years and 9 months expiring 9 August 2028
  • Earliest date of eligibility for release to parole: 9 November 2025

Key Takeaways

  • A sentencing court's finding of special circumstances must be given meaningful practical effect through an appropriate adjustment to the non-parole period. A nominal reduction (here, four months) that does not reflect the extended parole period required for rehabilitation will constitute sentencing error.
  • Where special circumstances are found partly on the basis of rehabilitation needs, the variation to the statutory non-parole period ratio must be proportionate to the time actually required on supervised parole to address those needs.
  • No error arises simply because a sentencing judge describes the degree of a drug's effect on a driver's capacity in the context of identifying circumstances of aggravation, provided the remarks as a whole do not treat that intoxication as a separate statutory element of aggravation.
  • Establishing a causal connection between an offender's mental health conditions and the offending requires more than a general or indirect link. An indirect connection between a mental illness and a drug addiction may reduce moral culpability to some extent without constituting a material contribution to the offence itself.
  • Under s 52A(7)(d) of the Crimes Act 1900 (NSW), drug intoxication qualifies as a statutory element of aggravation only where the evidence establishes that the driver was "very substantially impaired"; a finding of "significant" impairment falls short of that threshold.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(2), 52A(7)(b), 52A(7)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37A, 44
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- AM v R [2020] NSWCCA 101
- C v R [2022] NSWCCA 285
- DC v R [2023] NSWCCA 82
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El-Ahmad v R [2015] NSWCCA 65
- Moiler v R [2021] NSWCCA 73
- R v Crane [2023] NSWDC 315 (decision under appeal)
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Sevastopoulos v R [2011] NSWCCA 201
- Woods v R [2020] NSWCCA 219