Citation: Regina v Berg [2004] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 25 August 2004
Judge(s): Spigelman CJ; Wood CJ at CL; Howie J
Background
The applicant pleaded guilty to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900, carrying a maximum penalty of 14 years' imprisonment. The offence occurred in the early hours of 24 February 2003, when the applicant drove with a blood alcohol reading of 0.2, lost control of his vehicle in wet conditions, and his passenger was killed after being partially ejected as the vehicle rolled.
The applicant was 45 years old at the time of sentencing. He had prior convictions for dishonesty and traffic offences, but also a substantial record of community service, including recognition as Citizen of the Year in 2000. Psychological evidence indicated he was deeply traumatised and guilt-ridden over the death.
At first instance, Judge Phelan in the District Court sentenced the applicant to a total of five years' imprisonment with a non-parole period of three years. The applicant appealed, contending that the sentencing judge had incorrectly treated certain matters as aggravating factors, resulting in a sentence that was excessive.
Legal Issues
- Whether the sentencing judge erred by taking into account, as aggravating factors, circumstances not properly established on the evidence or not permitted under s 21A of the Crimes (Sentencing Procedure) Act 1999
- Whether the impact of an offence on third parties (beyond the direct victim) can constitute an aggravating factor under s 21A(2) of that Act
- Whether the reasoning in R v Previtera (1997) 94 A Crim R 76, concerning the limited role of victim impact statements in sentencing, should be reconsidered in light of s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 and the purpose of recognising harm done to the community
Decision
Howie J, with whom Wood CJ at CL and Spigelman CJ agreed, held that the sentencing judge had erred by treating certain matters as aggravating factors without a proper evidentiary foundation. The Court found that the sentence was excessive in all the circumstances and allowed the appeal.
On the question of third-party impact as an aggravating factor, the Court noted that s 21A(2) refers to injury, emotional harm, loss or damage caused by the offence. The Court considered whether this provision could extend to harm suffered by persons beyond the immediate victim, including family members and the broader community. Howie J concluded that no evidence in this case was capable of satisfying the statutory test, so the issue did not need to be determined definitively.
Spigelman CJ observed that the sentencing purpose in s 3A(g), recognising harm done to the community, is a purpose not acknowledged in Previtera, which was decided under earlier legislation. His Honour considered it strongly arguable that this purpose could encompass matters contained in victim impact statements, and that Previtera may need to be revisited. However, because there was no victim impact statement in the present case, the Court left that question open.
Wood CJ at CL added a note of caution about fact-finding in relation to community or victim impact. His Honour emphasised that victim impact statements raise fairness concerns because their makers are not ordinarily available for cross-examination, and that a proper evidentiary basis must always underpin any factual finding that goes to aggravation or mitigation.
Orders Made
- Leave to appeal granted and the appeal allowed
- Judge Phelan's orders quashed
- The applicant sentenced to a non-parole period of two years and three months, commencing 19 December 2003 and expiring 18 March 2006
- Balance of term: one year and nine months, commencing 19 March 2006
Key Takeaways
- Aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 must be supported by a proper evidentiary foundation; a sentencing court cannot treat matters as aggravating without evidence capable of satisfying the relevant statutory test.
- The Court of Criminal Appeal left open whether R v Previtera, which restricted the role of victim impact statements in sentencing, remains good law following the introduction of s 3A(g) of the Crimes (Sentencing Procedure) Act 1999, which identifies recognition of harm to the community as a purpose of sentencing.
- Spigelman CJ considered it strongly arguable that s 3A(g) could, in appropriate cases, support consideration of victim impact statement material, a purpose not available under the legislation considered in Previtera.
- Extreme care is required in prosecuting and defending dangerous driving causing death matters to ensure findings on aggravation or mitigation rest on admissible, tested evidence, particularly where harm to third parties is alleged.
- Where a victim impact statement is relied upon to establish aggravating harm, fairness considerations arise because the maker of such a statement is ordinarily not available for cross-examination.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2), 21A(4), 28
- Road Transport Safety and Traffic Management Road Rules 1999, s 47B
Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Whyte (2002) 55 NSWLR 252
- R v Way [2004] NSWCCA 131
- R v Wickham [2004] NSWCCA 193
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Re Attorney General's Application under s 32 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) (2002) 136 A Crim R 196