Bathurst CJ, Beazley P, Hulme J, Schmidt J, Wilson J
Catchwords
[2002] NSWCCA 518
Baxter v R [2007] NSWCCA 237
(2007) 173 A Crim R 284
Bombardieri v R [2010] NSWCCA 161
[2012] HCA 55
Daniels v R [2016] NSWCCA 35
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54
Haines v R [2016] NSWCCA 90
Hili v The Queen (2010) 242 CLR 520
Source
Original judgment source is linked above.
Catchwords
[2002] NSWCCA 518
Baxter v R [2007] NSWCCA 237(2007) 173 A Crim R 284
Bombardieri v R [2010] NSWCCA 161[2012] HCA 55
Daniels v R [2016] NSWCCA 35
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Haines v R [2016] NSWCCA 90
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Hutchen v R [2015] NSWCCA 101
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Kentwell v R (No 2) [2015] NSWCCA 96
Markarian v The Queen (2005) 228 CLR 357[2014] HCA 38
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534
R v ThomsonR v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309
R v Whyte (2002) 55 NSWLR 252[2002] NSWCCA 343
R v Wright [2013] NSWCCA 82(2013) 229 A Crim R 245
Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671[1998] HCA 17
Re Minister for Immigration and Multicultural Affairs
Ex parte Miah (2001) 206 CLR 57
[2001] HCA 22
Re Refugee Review Tribunal
Ex parte Aala (2000) 204 CLR 82
[2000] HCA 57
Smith v R [2011] NSWCCA 290
Stead v State Government Insurance Commission (1986) 161 CLR 141
Judgment (14 paragraphs)
[1]
The applicant's subjective circumstances
The applicant was aged 24 years at the date of the offence. He had a criminal record, which the sentencing judge described as, though not extensive, not one entitling him to leniency. He was convicted in the Children's Court in 2005 of two charges of armed robbery for which he received 18 months control orders. In 2009, he was fined for possession of a prohibited drug and for stealing in a dwelling house and received a good behaviour bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act). In 2010, he was fined for possessing a prohibited drug and placed on a s 9 bond for shoplifting. In 2011, he was convicted of common assault and damaging property and again received s 9 bonds.
Tendered at the hearing was the report of a forensic psychologist, Mr Patrick Sheehan, who interviewed the applicant on 2 October 2014. Mr Sheehan stated that the applicant believed he was raised by his natural parents until aged 15 when he was told his father was in fact his stepfather, a discovery he found painful and bewildering. The applicant told Mr Sheehan he had no contact with his biological father, who he heard was a chronic drug addict. The applicant described his mother as "sweet natured and loving" but that his stepfather was a strict disciplinarian who "flogged" him up to three times a day. He told Mr Sheehan he remained in close contact with his mother, who visited him weekly, and his sister, who visited him intermittently.
The applicant told Mr Sheehan that he had difficulties from a young age. He said he frequently ran away from home. He said that aged 13 he was placed in a "Youth off the Streets" residential home in the Southern Highlands, where he was exposed to violence and illicit drug use. He told Mr Sheehan his conduct pattern worsened thereafter and, since the age of 13 years, he did not reside consistently with his family.
The applicant was diagnosed with ADHD during kindergarten. So far as his education was concerned, he said that he obtained Year 9 equivalence. He mainly held "cash in hand jobs", the longest period of continuous employment being 13 months as an assessor and detailer.
The applicant told the psychologist that his most significant intimate relationship lasted for 6 years with a fellow drug user and homeless person he met in his late teens. He said his partner overcame her substance problem. He said that he had fathered a child and that he tried to take parenthood seriously. He said his partner left him after he was charged with the offences the subject of these proceedings. However, he told the psychologist that his relationship with his former partner remained reasonable and his mother brought his daughter to see him every weekend.
So far as his drug use was concerned, the applicant told Mr Sheehan that he used cannabis but escalated to amphetamines by the age of 15. He said he started using heroin from the age of 18, although he abstained from heroin between the ages of 18 and 20 years, during which time he commenced methylamphetamine use.
The psychologist stated the applicant's drug history met the diagnostic threshold of substance use disorder. He stated that in his view the culmination of anxiety, substance use disorder and personality disorder played the dominant role in sustaining the applicant's community maladjustment and criminality.
The applicant gave evidence at the sentencing hearing. He expressed remorse and read a letter to the sentencing judge in which he reiterated that remorse and stated that he resolved to do whatever he had to do to rehabilitate himself.
[2]
The remarks on sentence
The sentencing judge referred to the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte), which he said set out a number of aggravating factors for this type of offence, whilst recognising that they operated as a guide, not a checklist. He referred to the fact that the applicant was driving at an excessive speed and in a manner which caused his passenger to scream at him to slow down when he started showing off. He noted that the applicant's driving was substantially impaired by the use of illicit drugs.
The sentencing judge pointed to the fact there was a significant potential for adult and child pedestrians to be put at risk. He concluded that the applicant had abandoned his responsibility to other users of the road and therefore his moral culpability was high.
Dealing with the objective seriousness of the offence, the sentencing judge stated that, while the circumstances in question did not perhaps fall into the worst case category, they fell within the upper end of the range.
The sentencing judge referred to the subjective circumstances of the applicant which I have set out above. He noted that the applicant intended to work through the prison classification system to obtain a work release program. He accepted that the applicant had time to reflect on the enormity of his conduct and that his expressions of remorse were genuine. He stated that he was satisfied that, provided he remained drug free, he had reasonable prospects of rehabilitation.
The sentencing judge concluded that both general and specific deterrence were significant factors. In relation to the accumulation of the sentences, his Honour stated that, although the offences occurred on the same day they were separate and distinct. He noted that the applicant always contemplated the destruction of the motor vehicle and thus, it was his intention to permanently deprive the owner of its possession. In those circumstances, he considered partial accumulation was called for.
With respect to the Form 1 offences, the sentencing judge noted what was said by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 that the essence of the process is to impose a longer sentence than would be imposed if the primary offence stood alone: at [18].
[3]
The grounds of appeal
The grounds of appeal are:
"1 The sentencing judge erred in applying only a 20 per cent utilitarian discount for the applicant's plea of guilty entered at the earliest opportunity in the Local Court.
2 The sentence imposed on the applicant was manifestly excessive."
[4]
Ground 1
The Crown accepted that the judge had erred in giving a discount for the utilitarian value of the plea of 20% rather than 25%. The Crown stated that it had made no submission that anything less than a 25% discount was appropriate and the sentencing judge gave no indication of his intention to grant a lesser discount. It was accepted, in those circumstances, that procedural unfairness had occurred.
The issue which divided the parties was the consequence of the error. The Crown submitted that it did not vitiate the entire sentencing discretion but only a discrete component, namely the discount for the plea and thus only required a re-exercise of the discretion so far as it concerned the discount to be applied for the plea of guilty. The applicant, on the other hand, contended that once error had been established, the Court was required by s 6(3) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to resentence the applicant, taking into account any additional material placed before the Court for that purpose. Having regard to the importance of this issue, a five judge bench was convened to consider it.
It is convenient to deal with this issue prior to dealing with Ground 2. This is because, if the Court has to form an independent view of whether a lesser sentence is warranted in law, it will be necessary for it to form a view as to the appropriate sentence as distinct from determining whether the sentence imposed by the sentencing judge was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59]. Thus, if the Court is required to resentence, Ground 2 will fall away.
[5]
Submissions
The Crown, in its original submissions, placed reliance on the decision of R A Hulme J in Application by Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 561. In that decision, his Honour referred to some errors as only affecting a discrete component of the sentencing outcome, giving examples which included the extent of the discount for a plea of guilty. His Honour expressed the view that, in those circumstances, there was a persuasive argument in favour of the view that all that was required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) was to re-exercise the discretion in respect of the discrete component of the sentence infected by error.
The Crown submitted that that approach was consistent with the approach taken by this Court in O'Connell v R [2016] NSWCCA 43 (O'Connell) at [29] and Daniels v R [2016] NSWCCA 35 (Daniels) at [61].
At the hearing, the Crown accepted that the grant of a discount for a plea was not entirely a matter of arithmetic, as it was necessary to ask whether the sentence derived after the application of any discount was reasonably proportionate or disproportionate to the offending the subject of the sentence to be imposed.
In supplementary submissions filed after the hearing, the Crown, whilst noting that the High Court in Kentwell adopted the analysis of Spigelman CJ in Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 (Baxter), submitted that both Kentwell and Baxter were dealing with error that vitiated the sentencing process. It submitted that, by contrast, this appeal was concerned with an error in respect of a discrete part of the process. Reliance was placed on what was said by R A Hulme J in Martin v R [2016] NSWCCA 104 (Martin) to the effect that all a court should do in circumstances such as the present is re-exercise the discretion so far as it concerns, in the words of the Crown, "the discount for plea". The Crown placed particular reliance on the statement in Kentwell that not every error vitiates the exercise of the sentencing discretion: at [42].
The Crown emphasised that the only error in the present case was in respect of a discrete component of the sentence, which, it said, referring to the remarks of R A Hulme J in Martin, had no potential bearing on the whole sentence.
The Crown submitted that the judgment of R A Hulme J in Martin accepts that the correction of a "discrete component" error does enliven the discretion of the Court of Criminal Appeal but only to the limited extent of that error. It submitted that s 6(3) of the Criminal Appeal Act is capable of facilitating the exercise of the discretion limited to a component of the sentencing outcome. It submitted that this was the approach taken by Fullerton J in O'Connell.
[6]
Consideration
In my opinion, the Court having found error, it is necessary for it to exercise its discretion to resentence the applicant, rather than to focus on correcting the discrete component of the sentence which was the subject of the error. That this is so can be demonstrated by consideration of the nature of the error, a consideration of the text of s 6(3) of the Criminal Appeal Act and the authorities which have dealt with the issue.
[7]
The nature of the error
It is important to bear in mind that the error in the present case was not, for example, a mistake in the calculation of the discount to be granted for the early plea, nor a mistake as to when the plea was entered. By contrast, the sentencing judge expressly noted that the plea was entered at the earliest opportunity but he considered that a 20% discount was appropriate so as not to reduce the sentence below that which would reflect the Court's assessment of the objective gravity of the offence.
In that context, it must be emphasised that the grant of the utilitarian discount of 25% for a plea entered at the earliest possible opportunity is not mandatory. Section 22(1A) of the Sentencing Procedure Act provides that a lesser penalty imposed under that section must not be unreasonably disproportionate to the nature and gravity of the offence. Although it is well accepted, consistent with the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (Thomson), that a utilitarian discount of 25% will generally be granted for a plea entered at the earliest possible opportunity, it remains a matter for the discretion of the sentencing judge: Thomson at [153]; see also Marrow at [39].
This is not to suggest that the instinctive synthesis approach in sentencing is inconsistent with the award of a discount for a factor which can be seen to relate to a purpose distinct from a sentencing purpose, as is the case with a discount solely related to the utilitarian value of the plea. So much was made clear by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [74]:
"[74] Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of 'discounts' on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice. That said, I think the use of discounts should be reserved for only one - maybe two - factors in a particular sentence that serve some goal other than a sentencing goal."
[8]
The relevant legislation
Whether or not it is necessary to re-exercise the sentencing discretion generally, as distinct from the discrete component of the sentence affected by the error, depends ultimately on the construction of s 6(3) of the Criminal Appeal Act. The subsection is predicated on error of the nature of that described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. The subsection is in the following terms:
"6 Determination of appeals in ordinary cases
…
(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
As was stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context which includes the general purposes and policy of the provision: at [47]; see also Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. The text of the section under consideration in this case, where it applies, requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence.
That seems to me consistent with what is evidently the purpose of the section, namely to ensure that a person whose sentence is affected by error is sentenced according to law.
Further, there are difficulties with the alternative approach. The instinctive synthesis approach to sentencing is now well-established. As explained by McHugh J in Markarian, it involves identifying all factors relevant to the sentencing discretion, discussing their significance and making a value judgment as to what is the appropriate sentence: at [51]. A separate adjustment of a particular component of a sentence infected by error does not seem consistent with this approach.
[9]
The authorities
What I have stated, in my view, is consistent with the authorities which have dealt with this issue, subject to two exceptions. In Simpson, Spigelman CJ noted that the appellant's submission in that case proceeded on the assumption that if he could identify some error then the Court would proceed to resentence: at [74]. He made the following remarks at [79]:
"[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense."
Spigelman CJ explained these remarks in Baxter. In that case, his Honour made the following remarks concerning the construction of s 6(3):
"[8] The dominant and active verbs in s 6(3) are both in the present tense, ie if the Court of Criminal Appeal 'is of opinion' and 'some other sentence … is warranted in law'. The employment of the past tense in the phrase 'should have been passed' is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence.
[9] This interpretation is consistent with the reference in s 6(3) to s 5(1). That section permits an appeal 'against the sentence passed on the person's conviction'. The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s 6(3) should not be understood as saying 'should have been passed by the sentencing judge'. It should be understood as an institutional reference, ie 'should have been passed by the Court'.
[10] When the Court of Criminal Appeal turns its mind to forming the opinion which s 6(3) requires, it must do so by reference to the facts as they exist at that time, insofar as the Court permits evidence of those facts to be placed before the Court."
In a passage approved by the High Court in Kentwell, his Honour made the following remarks concerning [79] of his judgment in Simpson:
"[19] The import of [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides." (Emphasis added)
[10]
Is a lesser sentence warranted in law?
The parties were in agreement that their submissions on Ground 2 of the grounds of appeal could be treated as submissions on this issue.
In addition, the applicant relied on an affidavit sworn by him on 13 May 2016 and an affidavit of his solicitor, Stephen Eccleshall, affirmed on 13 May 2016. In his affidavit, the applicant repeated his remorse for what had occurred and indicated that, since his sentence, he has not breached any prison disciplinary rules. This was confirmed by the Corrective Services records annexed to Mr Eccleshall's affidavit.
The applicant stated in his affidavit that being on a methadone program has reduced his desire for illegal drugs and that he has been taking Zyprexa, the antipsychotic medication prescribed for him.
The applicant also stated in his affidavit that he wants to participate in programs to help him with his drug problem, but has, as yet, been unable to enrol in them. This was confirmed by the prison records annexed to Mr Eccleshall's affidavit.
The applicant also stated that, whilst at Goulburn Gaol and currently at Cooma Gaol, he has worked in the textile shop and has started studying for his Year 10 School Certificate. He remains in contact with his family and daughter. He stated that in the future he hopes he can get a job and become a good father to his children.
The applicant, whilst recognising the limitations, referred to the Judicial Commission's statistics for the period from April 2008 to March 2015, which shows that the head sentence imposed by the sentencing judge was the highest recorded sentence for the offence in question over that period. He pointed out that the statistics showed that, of the 43 offenders who were sentenced to imprisonment for an offence under s 52A(2) of the Crimes Act, 25 were sentenced to head sentences ranging between 3 to 5 years, 11 to sentences of approximately 6 years, three for approximately 7 years, one to 8 years imprisonment, two to 9 years imprisonment and the applicant to 10 years imprisonment.
The applicant referred to three cases where sentences of 8 to 9 years were imposed. The first of these cases was Bombardieri v R [2010] NSWCCA 161; (2010) 203 A Crim R 89 (Bombardieri). The applicant in that case, who was 20 years of age at the time of his offence, left the Gold Coast intending to drive to South Australia. He drove 290 kms before the fatal collision, driving at a high speed and erratically, including overtaking on the nearside of the road and crossing double lines.
[11]
The offence of aggravated dangerous driving causing death
I have set out the facts surrounding the commission of the offence above. The offence was a particularly serious one of its kind. The applicant was driving a manual vehicle which, on his own admission, he had no knowledge or experience of driving, at a time when he was substantially affected by drugs and sleep deprivation. Although I cannot be satisfied beyond reasonable doubt that he was driving at a speed in excess of 45 km/h above the speed limit at the time of the offence (see Crimes Act s 52A(7)(b)), he was driving at a grossly excessive speed, having regard to the state and contours of the road at the time of the incident. The circumstances in which the accident occurred put the offence in the upper range of objective seriousness for offences of this nature. In addition, it is necessary to take into account the offence on the Form 1. Further, as the sentencing judge remarked, specific and general deterrence are of considerable importance in relation to offences of this nature.
I have also set out the applicant's objective circumstances. He was relatively young (aged 24) at the time of the offence and had a difficult upbringing, hardly assisted by his lengthy drug abuse. The sentencing judge considered that his remorse was genuine and that, if he remained drug free, his prospects of rehabilitation were reasonable, matters which were not disputed on the appeal. The evidence provided on the appeal showed that, to the extent that he was able to do so, he was seeking treatment for his drug addiction. In addition, he was complying with prison discipline and seeking to enhance his educational qualifications.
I have also set out the applicant's past criminal record above. As the sentencing judge pointed out, it disentitles him to leniency.
In the guideline judgment of Whyte, Spigelman CJ set out what he described as a typical case of an offence of dangerous driving causing death: at [204]. The applicant's offence falls generally within such a case, he was a young man with limited prior convictions. A single person was killed, the victim was a stranger and the applicant showed genuine remorse. There was a plea of guilty which had, in the present case, more than limited utilitarian value.
Spigelman CJ also set out what he described as aggravating features: at [215]-[217]. All of these, with the exception of escaping police pursuit, were present, although failing to stop should not be regarded as a separate aggravating factor having regard to the Form 1 offence. Although these factors should not be used as a checklist, they demonstrate in the present case why it is correct to say that the applicant bore a very high degree of moral culpability.
[12]
The offence of stealing a motor vehicle
No separate submissions were made in respect of the sentence imposed by the sentencing judge on this count. However, it was not contested that it was appropriate to grant a 25% discount on sentence for the utilitarian value of the plea.
[13]
Conclusion
Taking the matters referred to above into account, I am of the view that a lesser sentence is warranted in law. In the circumstances, in my opinion, the appropriate sentence for the offence of stealing a motor vehicle is a fixed term of imprisonment of 1 year and 9 months to date from 10 June 2013.
So far as the offence of aggravated dangerous driving causing death is concerned, in my opinion the applicant should be sentenced to a total term of 8 years and 3 months. As the offence the subject of that count was separate to the offence of stealing a motor vehicle, some degree of accumulation is necessary and the sentence should commence on 10 December 2013. Having regard to the need for extended supervision of the applicant on his release to parole because of his addiction difficulties, I find special circumstances and would fix a non-parole period of 5 years.
Each of the sentences has been reached after allowing a 25% discount for the utilitarian value of the applicant's pleas.
The sentencing judge also disqualified the applicant from driving for a period of 10 years expiring on 9 June 2023. The effect of this order was the applicant was disqualified effective from two years from the expiration of the non-parole period fixed by his Honour. That approach should be maintained. The appropriate order is to disqualify the applicant for a period of 2 years. By virtue of s 206A of the Road Transport Act 2013 (NSW) that period will be extended by the period the applicant is incarcerated.
In those circumstances, I would make the following orders:
1. Grant the applicant leave to appeal.
2. Appeal allowed.
3. Quash the sentence imposed on the applicant on 4 March 2015 and in lieu thereof impose the following sentence:
1. For the offence of stealing a motor vehicle contrary to s 154F of the Crimes Act 1900 (NSW), a fixed term of imprisonment of 1 year and 9 months to date from 10 June 2013 and expire on 9 March 2015.
2. For the offence of aggravated dangerous driving causing death contrary to s 52A of the Crimes Act 1900 (NSW), a non-parole period of 5 years commencing on 10 December 2013 with a balance of term of 3 years and 3 months expiring on 9 March 2022. The earliest date the applicant will be eligible for release to parole is 9 December 2018.
1. Order that the appellant be disqualified from holding a driver's licence pursuant to s 205(2)(d)(ii) and s 206A(3) of the Road Transport Act 2013 (NSW) for a period of 2 years.
[14]
Amendments
25 November 2016 - Coversheet: Counsel amended
01 June 2017 - Coversheet: Case names amended
[65]: Case names amended
[147] s 154A(2) changed to s 52A(2)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 01 June 2017
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245
Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671; [1998] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Smith v R [2011] NSWCCA 290
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Category: Principal judgment
Parties: Matthew Lehn (Applicant)
Representation: Counsel:
T Game SC (Applicant) (written submissions)
W Hunt (Applicant)
P Ingram SC (Respondent)
N Adams (Respondent) (written submissions)
[This headnote is not to be read as part of the judgment]
The applicant stole a manual vehicle, which he then drove to collect an acquaintance and purchase cannabis. While negotiating a bend at a speed in excess of 20km/h over the speed limit, the applicant lost control of the vehicle, which collided with a pedestrian on the nature strip. The applicant and his passenger got out of the vehicle and ran away without assisting the victim, who later died as a result of his injuries.
The applicant did not know how to drive a manual car. He had smoked ice half an hour before the collision. At the time of the accident, he had not slept or eaten for three to four days. The applicant stated that his intention was to burn out the vehicle. A psychiatric evaluation concluded that the applicant's drug history met the diagnostic threshold of substance use disorder.
The applicant was charged with aggravated dangerous driving causing death contrary to s 52A(2) of the Crimes Act 1900 (NSW) (Crimes Act), with a Form 1 offence of failing to stop and assist after a vehicle impact causing death contrary to s 52AB(1) of the Crimes Act. He was also charged with stealing a motor vehicle contrary to s 154F of the Crimes Act, with two counts of possessing prohibited drugs contrary to s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) on a Form 1.
A guilty plea was entered at the earliest opportunity. The Crown made no submission that less than the full 25% utilitarian discount should be applied. Nonetheless, the sentencing judge applied a discount of 20% noting that "care must be taken not to attribute a discount that would have the effect of reducing a sentence to below that which would be recognised to accurately reflect the Court's assessment of the objective gravity of the offending conduct". It was accepted by both parties that the failure of the sentencing judge to raise this with the parties at the hearing was a denial of procedural fairness.
The sentencing judge imposed a sentence of 10 years with a non-parole period of 7 years for the s 52A(2) offence and a fixed term of 2 years for the s 154F offence, taking into account the respective Form 1 offences. The aggregate sentence imposed was 11 years with a non-parole period of 8 years.
The issues on appeal were:
Whether the failure to accord procedural fairness in determining the utilitarian discount vitiated the entire sentencing discretion or only a discrete component;
Where the error affects only a discrete component, whether the Court of Criminal Appeal must re-exercise the sentencing discretion generally or only in respect of the component affected by error; and
If the Court was required to re-exercise the sentencing discretion, whether the Court was of the opinion that a lesser sentence was warranted in law.
Did the failure to accord procedural fairness in determining the utilitarian discount vitiate the entire sentencing discretion or only a discrete component?
(i) The discount given for the guilty plea was directly connected to a sentencing purpose, namely, ensuring that the penalty reflected the objective gravity of the offence: [64] (Bathurst CJ); [118] (Beazley P); [128] (Schmidt J).
(ii) (R A Hulme J) An error in determining the sentence of an individual offence will, at least potentially, affect the exercise of discretion in determining questions of concurrence and accumulation and in applying the principle of totality. Furthermore, where there has been a finding of special circumstances and subsequent reduction of the non-parole period, this discretionary exercise will be affected by an error in the determination of an individual sentence: [120] (R A Hulme J).
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 applied
If the error affects only a discrete component of the sentence, is an appellate court required to exercise the sentencing discretion afresh?
(iii) If there is an error which affects the exercise of the sentencing discretion, s 6(3) of the Criminal Appeal Act 1912 (NSW) requires the Court to form its own view of the appropriate sentence, although not necessarily to resentence. It is an essential pre-condition to resentencing that the Court forms a positive opinion that some other sentence is warranted in law: [68], [73]-[74] (Bathurst CJ); [118] (Beazley P); [119] (R A Hulme J); [128]-[129] (Schmidt J); [141]-[142] (Wilson J).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 applied
(iv) There is no requirement in an appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) that the applicant demonstrate substantial injustice: [77], [79] (Bathurst CJ); [118] (Beazley P); [123] (R A Hulme J); [128]-[129] (Schmidt J); [141]-[142] (Wilson J).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 applied
(v) Where the discretion has miscarried in respect of a discrete component of the sentencing process, as where it has miscarried generally, it is the duty of the Court of Criminal Appeal to exercise the discretion afresh: [68]-[71], [75]-[78], [80]-[87] (Bathurst CJ); [118] (Beazley P); [125] (R A Hulme J); [128]-[129] (Schmidt J); [141]-[142] (Wilson J).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 applied
MD v R [2015] NSWCCA 37; Hutchen v R [2015] NSWCCA 101; Arsiotis v R [2015] NSWCCA 275; Marrow v R [2015] NSWCCA 282; Alpha v R [2015] NSWCCA 225 cited
Carroll v R [2015] NSWCCA 219 distinguished
Daniels v R [2016] NSWCCA 35; O'Connell v R [2016] NSWCCA 43 not followed
(vi) (R A Hulme J, obiter) The High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 did not expressly deal with error in sentencing that only affects a discrete component and where there is no conceivable impact upon the overall sentence. Nonetheless, the words used in the judgment were not vague or ambiguous and must be applied faithfully: [124]-[125] (R A Hulme J).
(vii) There may be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the date of commencement, end date or expiration of non-parole period or in the calculation of the effect of a discount for a plea or assistance to authorities, the extent of which was properly determined: [72] (Bathurst CJ); [118] (Beazley P); [125] (R A Hulme J); [129] (Schmidt J); [141]-[142] (Wilson J).
Was a lesser sentence warranted in law?
(viii) The offence of dangerous driving causing death was in the upper range of objective seriousness taking into account the fact that the applicant was driving a manual car which he had no knowledge or experience of driving, was under the influence of drugs, subject to sleep deprivation and driving at a grossly excessive speed: [106] (Bathurst CJ); [118] (Beazley P); [119] (R A Hulme J); [128] (Schmidt J).
(ix) The applicant's case fell generally within the typical case described in the guideline judgment. The presence of multiple aggravating features identified in the guideline judgment confirmed that the applicant bore a very high degree of moral culpability: [109]-[110] (Bathurst CJ); [118] (Beazley P); [119] (R A Hulme J); [128] (Schmidt J).
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 applied
(x) Comparable cases could be taken into account to ensure consistency and to demonstrate the approach taken by courts to serious offences where there is a high degree of moral culpability: [111] (Bathurst CJ); [118] (Beazley P); [119] (R A Hulme J); [128] (Schmidt J).
Bombardieri v R [2010] NSWCCA 161; (2010) 203 A Crim R 89; R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245; Smith v R [2011] NSWCCA 290 considered
(xi) A lesser sentence was warranted in law: [113] (Bathurst CJ); [118] (Beazley P); [119] (R A Hulme J); [128] (Schmidt J).
(xii) (Wilson J in dissent) No lesser sentence was warranted in law. Each of the subject offences was serious with distinct criminality, requiring some level of accumulation. It was necessary for there to be some substantial appreciation in the penalty to reflect the Form 1 offences. The grave criminality demanded the imposition of a stern sentence and nothing in the applicant's subjective circumstances or criminal record entitled him to any amelioration of penalty or leniency. While the cases relied upon by the applicant were of some assistance, none were truly comparable: [145]-[154] (Wilson J).
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 applied
In relation to the discount for the utilitarian value of the plea, the sentencing judge made the following remarks:
"The offender is entitled to have his plea of guilty taken into account in mitigation of penalty. This is done on two bases, to reflect the utilitarian benefit to the criminal justice system and also to reflect contrition. The plea was entered in the Local Court on 27 August 2014, accordingly it can be regarded as a plea at the earliest opportunity. In such circumstances a court may consider a discount of up to 25% to reflect the utilitarian benefit of the plea. However care must be taken not to attribute a discount that would have the effect of reducing a sentence to a level below that which would be recognised to accurately reflect the Court's assessment of objective gravity of the offending conduct. In the exercise of my discretion I intend to reflect the utilitarian benefit by a discount of about 20%."
The Crown submitted that the limited approach suggested by R A Hulme J in Martin should be adopted in the present case.
The applicant referred to the approach taken by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 (Simpson), as modified by his remarks in Baxter, which were approved by the High Court in Kentwell at [42]. Counsel for the applicant submitted that, where there has been a miscarriage of discretion, the Court will need to reconsider the sentence and, in order to determine whether a lesser sentence is warranted in law, the sentencing exercise needs to be carried out afresh.
Counsel for the applicant, whilst not conceding that the approach in Daniels was correct, referred to the fact that the ground of manifest excess in that case was not made out on the appeal and, in those circumstances, resentencing was limited to effectively striking down an impermissible condition on parole and otherwise confirming the sentence. He submitted that the approach adopted in Marrow v R [2015] NSWCCA 282 (Marrow), where the Court resentenced, having found error by the sentencing judge in allowing only a 20% discount for an early plea, was the correct approach.
In supplementary submissions filed after the hearing, the applicant submitted that the tentative view I expressed in Martin, namely that it was not appropriate to adjust that part of a sentence affected by a discrete error as distinct from resentencing, was correct. He submitted that, once a court found error, it was not for the court to speculate as to how such error affected the sentence, as distinct from proceeding to resentence.
The applicant referred to the following passage from the judgment of R A Hulme J in Martin at [95]:
"This indicates to me that it was not held that any error in sentencing requires a fresh exercise of the sentencing discretion. Arguably, it was held that only an error that potentially had an effect on the sentencing outcome invokes that requirement. Put another way, it is what has been held to have been affected by House v The King error that should be the subject of the 'fresh exercise'."
He submitted that this passage was a restatement of the requirement of a material error rejected in Kentwell. He also pointed to the difficulty of identifying what could be classified as a limited error.
In the present case, the approach the sentencing judge took meant that the discount for the plea was directly connected to a sentencing purpose in that he declined to grant a further utilitarian discount because the resulting sentence would not reflect the objective seriousness of the offence. It was not debated at the hearing whether the reason for the reduction of the discount conflicted with the provisions of s 22(1A) of the Sentencing Procedure Act, but whether it did or not, the question of the extent of the discount directly related to a sentencing purpose, namely, ensuring that the penalty reflected the objective gravity of the offence.
Further, the error which was made was that the applicant was denied procedural fairness in circumstances where, during the sentencing hearing, the Crown did not contend that anything less than a 25% discount should be awarded and the sentencing judge gave no indication that he contemplated giving a lesser discount. It was not disputed that such a denial of procedural fairness constituted an error. A denial of procedural fairness has been held to be an error of law which can be classified as jurisdictional: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Aala) at [41], [169]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [26], [213]. In the context of court proceedings, such a denial of procedural fairness will entitle the aggrieved party to a rehearing, unless a particular breach would not have affected the outcome: Aala at [104]; Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 at 145. Put another way, where there has been a denial of procedural fairness, a miscarriage of justice has occurred in respect of which the person affected is entitled to relief.
I have dealt with the nature of the error in order to demonstrate that it is not open to conclude that the error was not connected with the sentencing process or did not affect the sentencing discretion. The question remains whether, assuming the error only affected the discretion to a limited extent, it is appropriate to exercise the discretion only in relation to that particular component.
There is a further difficulty. Assume an error affecting only a discrete component is established so that the power conferred on the Court, and the corresponding duty imposed on it under s 6(3) of the Criminal Appeal Act, is invoked. Is the Court, in those circumstances, entitled to resentence generally, having regard to all the material before it, or is its power limited to re-exercising the discretion in respect of the discrete part of the sentence infected by error? The section provides no assistance on this question.
That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles.
The portion of the passage which I have emphasised seems to me directly contrary to the proposition that adjustment can be made to a discrete component of the sentence in respect of which an error of discretion occurred.
The High Court in Kentwell rejected the proposition that a court could dismiss an appeal unless the applicant could demonstrate substantial injustice. The plurality stated that the passage from the judgment of Spigelman CJ in Baxter, which I have set out above, correctly stated the law. The plurality made the following remarks at [42]:
"[42] Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion."
These remarks, in my opinion, are equally appropriate to circumstances where the discretion miscarried in respect of a discrete component of the sentencing process as where the sentencing discretion generally miscarried.
In O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 38 (O'Grady), the High Court again emphasised the importance of the offender being sentenced according to law. The Court made the following remarks at [13]:
"[13] For the reasons given in Kentwell, it was an error to confine the discretion conferred under the Criminal Appeal Act 1912 (NSW) (s 10(1)(b)) and the Criminal Appeal Rules (NSW) by requiring the appellant to demonstrate that refusal of the application would occasion substantial injustice. The application was to be determined by consideration of the interests of justice. The statement that no matter advanced by the appellant established that substantial injustice was occasioned by the sentence is best understood as a conclusion that, upon summary review, the sentence did not impress as excessive. The appellant is entitled to be sentenced according to law. The issue for the Court's consideration was whether upon the hearing of the appeal it might conclude, taking into account the full range of factors including the evidence of the appellant's progress in custody, that a lesser sentence is warranted in law."
The authorities since Kentwell and O'Grady, with perhaps two exceptions, are not inconsistent with this approach. They have been helpfully reviewed by R A Hulme J in Martin. A number of these have adopted the approach which I suggest is appropriate without considering the alternative: MD v R [2015] NSWCCA 37; Hutchen v R [2015] NSWCCA 101; Arsiotis v R [2015] NSWCCA 275; Marrow; Alpha v R [2015] NSWCCA 225. In the latter case, R A Hulme J expressed doubts that complete resentencing was required where an arithmetical error is the sole basis for the Court's intervention in a sentencing appeal: at [53]. To the extent his Honour was referring to a mere error of calculation, this is not inconsistent with what I believe to be the correct approach.
In Carroll v R [2015] NSWCCA 219, the re-exercise of the discretion was confined to determining the degree of concurrence/accumulation. However, this was the result of a concession by counsel for the applicant that that was all that was necessary in the circumstances of that case: at [40].
There have been two cases in which a contrary approach to that which I have suggested was taken. In Daniels, the relevant error was the imposition by the sentencing judge of a condition that, on the offender's release to parole, he enter a residential rehabilitation program. It was conceded that the imposition of such a condition was beyond the power of the sentencing judge.
Fullerton J, with whom Hoeben CJ at CL and R S Hulme AJ agreed, referred to the fact that in Kentwell, at [42], the plurality noted that not all errors affected the sentencing judge's discretion. Her Honour went on to make the following remarks:
"[28] In my view, the error in the sentencing exercise the subject of the second ground of appeal is an example of an error of the kind to which the High Court in Kentwell was referring. After setting aside the parole condition (it being of no legal effect being made beyond power), the sentencing judge's appointment of a non-parole period of 3 years as the minimum period the applicant is to spend in custody is unaffected. Although his Honour clearly intended that the applicant's release at the expiration of three years should be subject to the further condition that he be willing to comply with the restrictions on his liberty that would result from his participation in a residential rehabilitation program, it was also treated as a special circumstance for the purposes s 44 of the Crimes (Sentencing Procedure) Act giving the applicant the benefit of a shorter period in full-time custody.
[29] I do not regard the error in imposing a parole condition as part of the sentencing order as vitiating the exercise of the sentencing judge's discretion in this case. I would order that the parole condition be set aside but I would not move to re-sentence the applicant."
That decision is explicable on the basis that the invalid condition was something entirely discrete from the sentencing process or the exercise of the sentencing discretion. As such, it does not provide support for the contrary view to that which I consider to be correct. However, if in fact the imposition of the condition formed part of the discretion, even if it could only be said to affect the non-parole period, then, in my respectful submission, the Court was in error in failing to resentence the applicant.
In O'Connell, the issue was whether the sentencing judge, having found special circumstances, erred in failing to adjust the non-parole period pursuant to s 44 of the Sentencing Procedure Act. Fullerton J, with whom Hoeben CJ at CL and Adams J agreed, stated that she was satisfied the sentencing judge intended to make some adjustment to the statutory ratio and his failure to do so must have been through oversight or miscalculation or both: at [27]. Her Honour went on to make the following remarks:
"[28] That being the case, the applicant has made out a sentencing error that requires this Court to apply s 6(3) of the Criminal Appeal Act.
[29] Since the appeal is limited to the question whether the sentencing judge erred in failing to adjust the non-parole period in accordance with his conclusion that special circumstances warranted such an adjustment pursuant to s 44 of the Crimes (Sentencing Procedure) Act, it is not necessary for this Court to consider whether the non-parole period and the additional term, taken together, were affected by an error of law. The only question for this Court was the propriety of the proportion of the sentence constituted by the non-parole period. Accordingly, it is necessary for this Court, in accordance with the principles in Kentwell v R (No 2) [2013] NSWCCA 96, to independently consider the application of s 44 of the Crimes (Sentencing Procedure) Act to the applicant's sentence and, in substance, if a lesser non-parole period should have been imposed, quash the sentence and pass the appropriately adjusted sentence.
…
[31] Having considered the material upon which the applicant relies on re-sentence, I am not persuaded that this Court should intervene and reduce the minimum time the applicant is to serve in custody by extending the time he will be under supervision on parole, even if only by the margin of five months the applicant proposes. That is, I am unable to come to the positive finding that some other sentence is warranted in law under s 6(3) of the Criminal Appeal Act.
[32] In my view, the evidence at the sentencing hearing, as supplemented by the evidence of re-sentence upon which the applicant relies in this Court, does not allow for a finding of special circumstances - a finding of fact that in the first instance has to be resolved in the applicant's favour if this Court is to intervene and allow for a further adjustment in the statutory ratio. I note it is not suggested by the applicant's counsel that the order for partial accumulation of one year should attract a finding of special circumstances, and neither could it have been when the measure of accumulation was so modest for two distinct courses of very serious offending separated by three years. Neither is it suggested that there is any other basis the finding other than the applicant's continued preparedness to seek treatment."
Kentwell v R (No 2) [2015] NSWCCA 96 (Kentwell (No 2)), to which Fullerton J referred, with respect, offers no support for a limited approach to a re-exercise of the sentencing discretion. By contrast, both Rothman J and I emphasised in that case that, error having being established, it was necessary to resentence the applicant: at [6], [12] (Bathurst CJ); [50]-[59] (Rothman J).
In these circumstances, in my respectful opinion, the approach adopted by the Court in O'Connell was not in accordance with the requirements of s 6(3) of the Criminal Appeal Act.
In these circumstances, it is necessary in the present case to resentence the applicant, having regard to the material presently before the Court.
After a minor accident, a police pursuit ensued. When the applicant overtook a utility, crossing double yellow lines to do so, an oncoming vehicle swerved onto a grass verge to avoid a collision and came back on to the road into the path of a semitrailer. The driver was killed instantly. The appellant showed remorse for his actions and was considered to have good prospects of rehabilitation.
The appellant was sentenced to 10 years imprisonment with a discount of 16.6% for a plea of guilty. A non-parole period of 6 and a half years was fixed. On appeal, the sentence was reduced to a term of 9 years with a non-parole period of 5 years and 9 months. In the course of her judgment, Beazley JA (as her Honour then was) made the following remarks at [20]-[21]:
"[20] The sentence imposed by the sentencing judge was recognised by all as being severe. That, of itself, is not sufficient to place it in the category of manifestly excessive. Nor is the fact that it is the highest sentence imposed for an offence under s 52A(2). However, it is the comparison with the sentences imposed for manslaughter which has satisfied me that his Honour's discretion did miscarry and that the sentence imposed was manifestly excessive. In reaching this conclusion, I am acutely aware that a person, who was doing no more than driving on the right side of the road, has been killed and that the purposes of sentencing include denunciation of the criminal conduct of the offender and the need to recognise the harm done to the victim of the crime and the community: Crimes (Sentencing Procedure) Act, s 3A(f) and (g).
[21] However, sentencing principle also demands consistency of sentencing: see Whyte especially at [146]. The seriousness of the applicant's conduct cannot be understated. It falls at the high end of objective seriousness for this offence. However, I am bound by the various principles of sentencing to which I have referred, recognising their internal tension. Had the overwhelming principle been denouncement, I would not have interfered with the sentence imposed. However, that is not an overwhelming tenet of sentencing principle. It is one purpose of sentencing that must play its appropriate role with others, including, as I have said, consistency of sentencing."
In R v Wright [2013] NSWCCA 82; (2013) 229 A Crim R 245 (Wright), a sentence of imprisonment of 9 years and 6 months with a non-parole period of 5 years and 9 months was held not to be manifestly excessive. The applicant in that case was convicted of aggravated dangerous driving causing death and a second count of aggravated dangerous driving causing grievous bodily harm. The matters of aggravation were driving the vehicle more than 45 km/h over the speed limit and having a blood alcohol level of at least 0.157 g of alcohol per 100 ml of blood. One passenger in the car, a 16 year old boy was killed whilst the other, a 14 year old girl was seriously injured. The applicant was sentenced to a fixed term of 3 years, commencing on 24 May 2012 for the second count, and 9 years with a non-parole period of 5 years and 3 months, commencing on 24 November 2012 for the first count, the overall sentence thus being 9 years and 6 months with a non-parole period of 5 years and 9 months.
The applicant had an appalling driving record. It was summarised by Price J, with whom the other members of the Court agreed, in the following terms:
"[27] The applicant was born on 28 May 1967. He was 43 years old when the offences were committed. His record as a driver in New South Wales and Queensland reveals an appalling traffic history between 1984 and 1997. He had four convictions for driving with the high range concentration of alcohol, the last conviction being on 23 May 1997 when he was sentenced to serve 9 months imprisonment by way of periodic detention and disqualified from driving for 5 years. His driving history prior to 1997 includes convictions for driving whilst disqualified (four times) driving after license cancelled, driving under the influence and driving whilst suspended. It appears that since he was re-issued with an unrestricted license in August 2002, he exceeded the speed limit in July 2007 by not more than 15 km/h and in April 2010 by more than 20 km/h, but not more than 30 km/h. These offences were dealt with by traffic infringement notices and the loss of demerit points."
In describing the offence as close to the worst kind of offence, his Honour made the following remarks:
"[86] To my mind this is a very bad case of aggravated dangerous driving causing death. Whilst it is always possible to imagine driving that might have been more outrageous, the applicant's disgracefully irresponsible conduct is close to the worst type of offence of its kind. The judge described the applicant's driving as extraordinary and correctly found that the applicant's moral culpability was high. The applicant drove his vehicle at an extreme speed along a major highway for some 38½ km whilst his driving ability was substantially impaired by alcohol. He placed not only his young passengers at great risk but also many other motorists who were travelling along the Pacific Highway. The judge did not impose the maximum penalty for the offence, but commenced with an undiscounted starting point of twelve years imprisonment. Although stern, the sentence imposed for count one was within the legitimate exercise of his Honour's sentencing discretion."
Price J distinguished Bombardieri in that the applicant did not have the benefit of Mr Bombardieri's youth, Mr Bombardieri was the sole occupant of the vehicle, alcohol was not a factor and the totality principle did not apply. Price J pointed out that although manslaughter was a more serious case, sentences imposed for that offence do not provide the upper limit of sentences for offences under s 52A(2), the upper limit being the maximum penalty fixed by the statute.
The third case referred to by the applicant was Smith v R [2011] NSWCCA 290 (Smith). In that case, the offender, who was aged 30 at the time of the offence, was sentenced to imprisonment for 8 years with a non-parole period of 6 years. On appeal, the sentence was reduced to 7 years with a non-parole period of 5 years and 3 months. The offender had driven his utility at speeds of between 80 and 100 km/h in a 60 km/h zone. The vehicle went through a red light and shortly thereafter was found upturned in a ditch. The applicant's girlfriend was trapped in the vehicle and died at the scene. The applicant had a blood alcohol reading of 0.188.
Blanch J, who delivered the judgment of the Court, noted that the sentence was significantly higher than that specified in the guideline judgment of Whyte and, after referring to a number of cases including Bombardieri, reduced the sentence to "maintain a consistency of approach".
The Crown submitted that, without more, statistics relied upon by the applicant were meaningless and the objective and subjective circumstances in the particular cases referred to were not related to the particular circumstances of the present case. The Crown submitted that it was unarguable that the applicant's offending constituted a high level of moral culpability. It pointed out that the guideline judgment referred to the minimum sentences that might be imposed and is of little utility unless considered with the maximum penalty. The Crown pointed out that of the 11 aggravating factors identified in the guideline judgment, the only one that did not apply was "escaping police pursuit".
At the hearing, counsel for the Crown pointed to the inability of the applicant to drive a manual car, submitting also that the objective seriousness was elevated substantially by the fact that the applicant was driving a motor vehicle well in excess of 50 km/h in a residential area and that what occurred was illustrative of precisely the danger that could be expected. He emphasised that the applicant was drug affected and sleep deprived.
In a case such as the present, consistency in sentencing is important. It is helpful to take into account sentences which have been imposed where there has been a high degree of moral culpability. I have referred above to Bombardieri, Wright and Smith (see [95]-[103] above). Although the facts and subjective circumstances in each of those cases were different to the present, they demonstrate the approach taken by courts to serious offences of this nature.
BEAZLEY P: I have had the advantage of reading in draft the reasons of the Chief Justice. I agree with the Chief Justice's reasons and with the orders his Honour proposes.
R A HULME J: I have had the advantage of reading in draft the judgment of Bathurst CJ. In relation to what I might term the "Kentwell issue" I express my own views in what follows. Otherwise, I agree with his Honour's reasons and the orders he proposes.
It is common ground that there was error in the sentencing judge's reduction of the sentence by 20 rather than 25 per cent to reflect the utilitarian benefit flowing from the applicant's plea of guilty entered in the Local Court. This is not, however, an error that only affected a discrete component of the sentence. It was necessary for the judge to determine the sentence for the individual offences before considering the question of concurrence or accumulation and the application of the principle of totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. If there is error in the former it will, at least potentially, affect the exercise of the discretion as to the latter. Further, the judge found that there were special circumstances whereby he reduced the non-parole component of the primary sentence to 70 per cent of the total term and achieved an effective non-parole component that is 73 per cent of the total effective sentence. This was a discretionary exercise that was also informed by the assessment of the individual sentences.
Nevertheless, the Crown has squarely raised the application of the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and has contended that this Court should confine the re-exercise of the sentencing discretion to either (a) determining that no higher discount than 20 per cent was appropriate pursuant to s 22(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or (b) reducing the sentence(s) by 25 per cent. (In its further written submissions the Crown suggested that the reduction only apply to the sentence for the offence of aggravated dangerous driving causing death but in accordance with principle it should apply to both sentences.)
In Martin v R [2016] NSWCCA 104 I raised a question about whether taking the approach the Crown now advocates was appropriate. I made the observation that Kentwell v The Queen (and Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237) were cases in which the overall sentencing discretion was vitiated by error and queried whether what was said in the High Court should also apply when the error clearly only affected a discrete component of the sentence. I gave some examples of the approach taken by this Court, which has not been entirely consistent. They are discussed in the judgment of Bathurst CJ in this matter at [81]-[88].
Contrary to the further written submissions for the applicant, I did not suggest in Martin v R that this Court should engage in an assessment of whether an error was material in the assessment of the overall sentence. Such an approach was clearly disapproved by the High Court in Kentwell v The Queen with the endorsement of the judgment of Spigelman CJ in Baxter v R in preference to those of Kirby and Latham JJ. I suggested (at [111]) that there was a "persuasive argument" that:
"Where there is error that does not entail vitiation of the entire sentencing discretion, but is an error that only affects a discrete component of the sentence that could have no potential bearing on the whole, the discretion should be re-exercised but only in relation to that particular component." (Emphasis added)
I reiterate what I said in Martin v R (at [96]) about the High Court in Kentwell v The Queen not expressly dealing with error in sentencing that only affects a discrete component and where there is no conceivable impact upon the overall sentence. I gave examples, such as an error in the commencement date of the sentence; the proportion of the sentence represented by the non-parole period; or the extent of the discount for a plea of guilty or assistance to authorities. The present case is of the latter type but it does not fall within the type of case I was speaking about in Martin v R because, as I have indicated above, it is complicated by virtue of the fact that the primary judge was required to impose sentences for multiple offences and that brought into play other aspects of the sentencing discretion. I gave other examples in Martin v R (at [98]): an error in failing to take into account a period of pre-sentence custody by backdating the sentence; or post-dating a sentence to an extent that was beyond the statutory power to do so.
Having said all of this, I have come to the conclusion that the applicant's submissions as to the application of Kentwell v The Queen should be accepted. I maintain misgivings as to whether what was said by the plurality was contemplated and intended to apply to each and every error that may occur in the sentencing process (aside from a "legal error" that is clearly inconsequential such as the example given at [42]), no matter how minor and confined to an easily identifiable component of the sentence they may be. But on their face, the words used in [42] of the judgment are not in any sense vague or ambiguous. It is the role of this Court to faithfully apply them and not to qualify or quarantine their application; that is a matter for the High Court itself if a litigant seeks to persuade it to do so: Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671; [1998] HCA 17 at [3].
The applicant's further written submissions suggest that some errors are amenable to adjustment "to correct the discrete error" which "is, in effect, done with the agreement of the parties, and by convention". Experience suggests that this does, on occasions, occur. Further, there are cases in which counsel for appellants make concessions to the effect that the Court may confine the exercise of its sentencing discretion to the subject matter of the error: Carroll v R [2015] NSWCCA 219 (which is referred to by Bathurst CJ) is one example and Haines v R [2016] NSWCCA 90 would appear to be another.
Simple and readily-correctable errors can easily occur in the now (regrettably) complex environment of sentencing law and practice. One would hope that such a practical and efficient approach will be adopted in the cases where there is error of the type I raised in Martin v R.
SCHMIDT J: I also agree with the Chief Justice, for the reasons he discusses, that the appeal must be upheld. Given the failure to afford Mr Lehn procedural fairness and the miscarriage of the exercise of the sentencing discretion, under s 6(3) of the Criminal Appeal Act, this Court must exercise the sentencing discretion afresh to arrive at the sentence which is warranted in law. I also agree with the orders which his Honour proposes.
I consider that Kentwell requires that in any appeal where it is established that the exercise of the sentencing discretion miscarried, correction of the error found will require the discretion to be re-exercised by this Court, to determine whether some other sentence is warranted in law, rather than by way of correction of a "discrete error". That includes error in relation to entry of a plea, given the requirements of ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act and the need to undertake the instinctive synthesis discussed in Markarian, in arriving at the sentence. The parties' agreement to some different course cannot relieve the Court of the obligation to exercise the discretion afresh. It is only if the error does not affect the exercise of the sentencer's discretion, that its "discrete" correction can be undertaken.
WILSON J: The grounds of appeal advanced by the applicant complain of error in the application of a discount on sentence to reflect an early guilty plea, and manifest excess. The hearing of the appeal proceeded on the basis of a concession from the Crown that ground 1 was made out. The consequences of the conceded error have been the principal focus of the parties and of the Court.
Ground 1 as pleaded is set out at [44] in the judgment of Bathurst CJ. The applicant contends that, his plea of guilty having been entered in the Local Court, he was entitled to a discount on the sentence that would otherwise have been imposed of 25%, rather than the 20% granted by his Honour Judge Conlon SC. Although the sentencing judge did not raise the question of the quantification of the discount with the parties prior to sentence, or warn the appellant that a discount of less than 25% was contemplated, the appellant's complaint is not one of denial of procedural fairness.
The Crown's concession was on the basis that there had been procedural unfairness to the applicant. During the sentencing proceedings both parties had submitted to the sentencing judge that a discount of 25% on sentence was appropriate to reflect the early plea of guilty.
In allowing a discount of 20% on sentence, the sentencing judge accepted that the applicant's plea of guilty had been entered at the earliest opportunity. His Honour said,
In such circumstances a court may consider a discount of up to 25% to reflect the utilitarian benefit of the plea. However, care must be taken not to attribute a discount that would have the effect of reducing a sentence to a level below that which would be recognised to accurately reflect the court's assessment of [the] objective gravity of the offending conduct. In the exercise of my discretion I intend to reflect the utilitarian benefit by a discount of about 20%.
In declining to award a discount of 25%, his Honour was mindful of s 22(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides:
A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
Clearly, his Honour concluded that, having regard to the objective gravity of the offence, which was very high, a discount of 25% on sentence would have had the effect of reducing the sentence to one which was unreasonably disproportionate to the nature and circumstances of the offence.
As the Chief Justice observed at [62] above, a discount on sentence of 25% to recognise the utilitarian value of a plea of guilty entered at the earliest opportunity is not mandatory. The quantification of the discount within the range considered in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, is a matter for the discretion of the sentencing judge (see Thomson at [152] - [153]; [160]).
There is no principle or rule of law, and there should be no expectation, that a plea of guilty entered at the earliest opportunity will always result in a discount on sentence of 25%. The conclusions of this Court in Thomson at [157] - [158] and [160(iv)] should not be overlooked.
In the circumstances of this case, where the objective gravity of the offence and the moral culpability of the appellant were very high, it was in my view well open to the sentencing judge to conclude, as he did, that a discount of 25% would result in a sentence that would fail to properly reflect the gravity of the offence.
The Crown's concession as to error in the quantification of the discount must be taken to refer to the omission of the sentencing judge, hearing sentence proceedings in a busy suburban court dealing with a large list of matters, to warn the applicant that a lesser discount than 25% may be awarded.
On that basis, there is error.
An error of that nature is one contemplated in House v The King (1936) 55 CLR 499 at 505 and this Court is bound by what was said in the High Court in Kentwell v The Queen (2014) 252 CLR 601 at [42], to "exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Crimes (Sentencing Procedure) Act 1999 (NSW)] and any other Act or rule of law, require or permit".
I respectfully agree with the Chief Justice in that regard, and with the observations of R A Hulme J at [125].
In that there is a need to re-exercise the sentencing discretion, ground 2 falls away.
Bathurst CJ has set out all of the relevant objective circumstances of the offence, together with the features of the case personal to the applicant, and I gratefully refer to his Honour's account of those matters.
Each of the offences for which sentence must be imposed is serious. As the criminality encompassed by each is distinct, there must be some level of accumulation of the penalties imposed for each.
The s 154F offence, which carries a maximum penalty of 10 years imprisonment, reflects the applicant's theft of a car from the residential property of its owner for no better reason than to drive it and thereafter destroy it by setting it alight. It is a grave example of such an offence.
The s 52A(2) offence carries a maximum sentence of 14 years imprisonment, with an automatic disqualification from driving.
Three other offences must be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act when sentence is imposed for it, including an offence of failing to stop and assist contrary to s 52AB(1) of the Crimes Act 1900 (NSW), an offence which carries a maximum penalty of 10 years imprisonment when prosecuted on indictment. In accordance with the guideline judgment of Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146, there should be some appreciation in that penalty, to reflect the need for personal deterrence, and the community's entitlement to exact retribution relevant to the offences on the Form 1 document. It is wrong to suggest that the increment must be small; indeed, in the present case, it should in my view be substantial.
The applicant, a man with neither the ability nor the authority to drive a manual car, drove it when very affected by the drug "ice", having smoked the drug about half an hour prior to the fatal crash. He must have appreciated that he was intoxicated, having regard to both his own comments about the impact of the ice he had consumed had upon him, and by reference to the expert opinion as to the level of impairment to his driving ability. The appellant had a passenger in the car, and he drove in a highly reckless and dangerous way in residential streets to which a speed limit of 50km/hour applied. The appellant's driving was so markedly dangerous that his passenger called out to warn him. Ignoring the warning, the appellant continued to drive, and collided at some speed with Harry McCarroll, killing Mr McCarroll. He then fled the scene, doing nothing to check Mr McCarroll's condition, or to get aid for him (that conduct being charged as the s 52AB(1) offence).
Such grave criminality demands the imposition of a stern sentence, to punish the applicant and make him accountable for his actions, to denounce the offence, to recognise the great harm done, to protect the community, and to deter the applicant and others from like conduct.
The applicant's criminal record shows a regular pattern of criminal conduct, and disentitles him to leniency.
Although the applicant appears to be genuine in his remorse for his crimes, and he has some prospects for rehabilitation if he pursues drug rehabilitation, nothing in the applicant's subjective case allows for any marked amelioration of penalty.
The cases relied upon by the applicant to demonstrate that a lesser sentence than that imposed at first instance should be fixed are of some assistance but none are truly comparable, not least because of the three offences against the applicant to be taken into account on sentence for the s 52A offence, including an offence with a maximum penalty of 10 years imprisonment. Additionally, none of the cases cited involved a driver significantly impaired, as was the applicant, by his use of a prohibited drug.
Taking all of those matters into account, I do not conclude that a sentence less severe than that imposed by Conlon SC DCJ is warranted in law: s 6(3) Criminal Appeal Act 1912 (NSW). Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.