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7
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: Crane v R [2024] NSWCCA 87
Court: Court of Criminal Appeal
Date: 05 June 2024
Judge(s): Stern JA at [1]; Rothman J at [2]; Yehia J at [4]

Background

The applicant pleaded guilty in the Local Court to one count of aggravated dangerous driving occasioning death, contrary to s 52A(2) of the Crimes Act 1900 (NSW). In the early hours of 20 January 2022, he was driving at 112 km/h in a 60 km/h zone at Wentworth Falls when his vehicle failed to navigate a bend and struck a concrete safety barrier. The front-seat passenger sustained fatal internal injuries and died at hospital. The sole cause of the collision was the applicant's driving.

The statutory element of aggravation was excessive speed, specifically driving more than 45 km/h above the posted limit. Although the applicant had methylamphetamine in his blood at a level described as within the toxic and potentially fatal range, the expert evidence established only "significant" impairment rather than the "very substantial" impairment required to constitute a second statutory element of aggravation under s 52A(7)(d). Intoxication was therefore treated as a circumstance of aggravation relevant to sentencing, not as an additional statutory element.

The District Court sentenced the applicant to 6 years and 6 months imprisonment, after a 25% discount for an early guilty plea, with a non-parole period of 4 years and 6 months. The applicant sought leave to appeal, contending the sentencing judge had conflated the statutory element with the intoxication circumstance, had wrongly assessed the mental health evidence, and had failed to give practical effect to a finding of special circumstances.

Legal Issues

  • Whether the sentencing judge conflated the statutory element of aggravation (excessive speed) with the non-elemental aggravating circumstance of driving under the influence of methylamphetamine
  • Whether the sentencing judge erred in finding that the applicant's mental health conditions did not materially contribute to the offending, and in failing to address ADHD and PTSD specifically in that analysis
  • Whether the sentencing judge erred in finding special circumstances but then imposing a non-parole period only four months below the statutory ratio, thereby failing to give practical effect to that finding

Decision

Ground 1: Conflation of statutory element and aggravating circumstance

The Court found no error. Read as a whole, the remarks on sentence consistently distinguished between excessive speed as the statutory element of aggravation and intoxication as a non-elemental aggravating circumstance under the Whyte guidelines (at [57]). The sentencing judge addressed intoxication on multiple occasions, but each time in the context of the Whyte framework rather than as a second statutory element (at [50]-[58]). The applicant's own counsel at first instance had conceded that the applicant's driving was "substantially" affected, and both parties agreed the objective seriousness was above the mid-range (at [58]-[59]). Ground 1 was not made out (at [60]).

Ground 2: Mental health and causal connection to offending

The Court confirmed that the question is not whether a formal causal link exists, but whether the mental health conditions materially contributed, directly or indirectly, to the offending (at [72]). The sentencing judge found an indirect link through the well-known association between schizophrenia and methamphetamine addiction, and mitigated the applicant's moral culpability "to some extent" on that basis (at [83]-[84]). No submissions on direct causal connection had been made at first instance, and neither expert report squarely addressed whether the applicant's ADHD, PTSD, or schizophrenia materially contributed to the offence (at [67], [80]-[81]). It was entirely open to the sentencing judge to find no greater causal contribution was established (at [82], [85]). Ground 2 was not made out (at [88]).

Ground 3: Practical effect of special circumstances finding

This ground succeeded. The sentencing judge expressly found special circumstances, justifying adjustment of the non-parole/parole ratio to allow rehabilitation, Mental Health Plan compliance, and community reintegration (at [101]). Despite those findings, the non-parole period was reduced by only four months, producing a parole period of two years and a ratio of 69% (at [103]). The Court held that where special circumstances are found at least partly to address rehabilitation needs, any variation to the statutory ratio must meaningfully reflect the parole period required to achieve that purpose (at [100]). A variation so modest as to give no practical effect to the finding constitutes an error (at [104]). On resentencing, the Court found that a non-parole period of 3 years and 9 months, producing a parole period of 2 years and 9 months, appropriately reflected the applicant's complex psychiatric and substance abuse profile and his need for extended supervised parole (at [129]-[130]).

Resentencing: head sentence

Having identified error on Ground 3, the Court conducted a resentencing exercise. It upheld the head sentence of 6 years and 6 months as within the appropriate range, noting the seriousness of the offending, the applicant's extensive traffic history, his conditional liberty at the time, and the weight of general deterrence for offences of this kind (at [116]-[127]). Ground 4 (manifest excess) was not separately determined, having been subsumed by the resentencing exercise (at [106]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 16 August 2023 quashed
  • Applicant resentenced to 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 (total sentence: 6 years and 6 months imprisonment)
  • Earliest eligible parole date: 9 November 2025

Key Takeaways

  • A finding of special circumstances obliges a sentencing court to give that finding meaningful practical effect. Where the finding is made at least in part to allow for rehabilitation, the resulting variation to the non-parole/parole ratio must genuinely reflect the period of supervised parole needed to address that purpose. A reduction of only four months fell so short as to constitute an error (at [100], [104]).

  • The Court of Criminal Appeal confirmed that the test for mental health bearing on moral culpability is not whether a formal causal link exists, but whether the conditions materially contributed, directly or indirectly, to the offending. The sentencing task should not be approached as though deciding civil causation (at [70], [72]).

  • Where no submissions are advanced at first instance on the causal contribution of specific mental health diagnoses to offending, and neither expert report addresses that issue, it is open to a sentencing judge to find that those conditions did not materially contribute to the offence (at [67], [81]-[82]).

  • Remarks on sentence must be read as a whole, without minute scrutiny in search of error. A sentencing judge who consistently distinguishes between a statutory element of aggravation and a non-elemental aggravating circumstance does not err merely because the language used to describe the aggravating circumstance is strong (at [57]-[59]).

  • Under s 52A(7)(d) of the Crimes Act 1900 (NSW), intoxication by drugs qualifies as a statutory element of aggravation only where the offender's ability to drive was "very substantially impaired." Evidence of "significant" impairment falls short of that threshold and is properly treated as a circumstance of aggravation rather than a statutory element (at [6], [46]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 ( NSW), ss 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
- Carl v R [2023] NSWCCA 190
- CM v R [2013] NSWCCA 341
- 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
- Foaiaulima v R [2020] NSWCCA 270; 285 A Crim R 222
- Grant v R [2014] NSWCCA 67
- Hawat v R [2020] NSWCCA 121
- Hili v R (2010) 242 CLR 250; [2010] HCA 45
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Khorami v R; R v Khorami [2021] NSWCCA 228
- Luque v R [2017] NSWCCA 226
- MD v R [2015] NSWCCA 37
- Moiler v R [2021] NSWCCA 73
- Norouzi v R [2020] NSWCCA 237
- R v Bortic [2021] NSWCCA 138
- R v Crane [2023] NSWDC 315
- R v Ferguson [2022] NSWCCA 147
- R v Fidow [2004] NSWCCA 172
- R v Meakin [2019] NSWSC 1555
- R v Moffitt (1990) 20 NSWLR 114; (1990) 49 A Crim R 20
- R v Munro [2019] NSWDC 743
- R v Pickard [2023] NSWCCA 7
- R v Polutele [2020] NSWDC 33
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Sutton [2004] NSWCCA 225
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Ryan v R [2017] NSWCCA 209
- Sevastopoulos v R [2011] NSWCCA 201
- Tuncbilek v R [2020] NSWCCA 30
- Wong v R (2001) 207 CLR 584; [2001] HCA 64
- Woods v R [2020] NSWCCA 219
- Young (a pseudonym) v R [2021] NSWCCA 163