Which case won?

The case for the prosecution
  • Given the extent and nature of the injuries inflicted and the number of people the driver put at risk, the sentences imposed are so manifestly inadequate that they are likely to undermine public confidence in the proper administration of criminal justice.
  • The judge failed to take important points into account – the fact that the driver failed to stop at a stop sign just before the accident and that he intentionally accelerated to 104 km/h in a 60 km/h zone in circumstances where he knew that none of the passengers were wearing seatbelts, that one passenger was in the rear tray, that the surface of the road was in poor condition and that the vehicle had soft suspension which caused it to handle poorly.
  • For these reasons, the driver’s moral culpability in committing these offences is in the high range.
  • The terms and non-parole periods of the sentences are each manifestly inadequate and “plainly unjust”. They should be increased.
The case for the defence
  • The driver entered an early plea of guilty and has shown deep and genuine contrition.
  • The driver is young and this is his first custodial sentence.
  • Taking all the circumstances into account, the driver’s moral culpability is not in the high range.
  • The driver has been diagnosed by a psychologist as having major depression (recurrent type) and chronic post-traumatic stress disorder (PTSD), both of them triggered by the accident. He has not received treatment for these conditions since he went to prison and his symptoms continue unabated.
  • There is a real risk that an increase in the driver’s sentence would cause further significant deterioration of his already fragile mental state, so the sentence should be allowed to stand.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a58%
case b42%

Expert commentary on the court's decision

Brigette Lawrence
Brigette LawrenceSolicitor
“While the Court of Appeal found that the sentencing judge had been erroneously lenient, it nonetheless exercised its residual discretion not to intervene and left the sentence unchanged.”
Appeal dismissed and lenient sentence allowed to stand

The case R v Barker [2016] NSWCCA 193 represents a paradox of sorts, because while the NSW Court of Criminal Appeal accepted the prosecution’s case that the sentence imposed by the District Court was manifestly inadequate, it dismissed the appeal, choosing not to intervene and resentence the driver.

The driver, Mr Barker, was convicted under section 52A(1)(c) of the Crimes Act 1900 (NSW) – two counts of dangerous driving occasioning death – and section 52A(3)(c), one count of dangerous driving occasioning grievous bodily harm.

Moral culpability for dangerous driving seen as continuum between two extremes

Both the District Court and the Court of Criminal Appeal noted that moral culpability under section 52A(1) and 52A(3) must be seen not as falling into one of two categories – “high”, representing the driver’s abandonment of responsibility, or “low”, representing momentary inattention – but as a continuum between these two extremes.

The prosecution argued that the driver’s moral culpability was above the midrange of this continuum, approaching abandonment of responsibility, and that no proper assessment of objective seriousness could rationally place the driver’s culpability below mid-range, or as involving merely a moment of inattention.

Driver’s sentence a fraction of maximum sentences for his offences

According to the prosecution, the District Court judge failed to give appropriate weight to two aggravating factors – the extent and nature of the injuries inflicted and the number of people put at risk.

In arguing for a longer sentence and longer non-parole period, the prosecution also pointed out that the maximum sentences for the driver’s offences were ten and seven years – far more than the sentence that Mr Barker had received.

Appeal court agrees that driver’s sentence manifestly inadequate

The prosecution’s argument was that a longer sentence was needed to denounce the wrongfulness of the driver’s conduct in irrationally speeding while transporting passengers who were not wearing seatbelts and being aware of the state of disrepair of the road and the poor handling of the vehicle.

The Court of Criminal Appeal agreed with the prosecution that the District Court failed to take all relevant aggravating factors into account, made an excessive reduction for special circumstances and set an unjustifiable ratio of almost 50% between the non-parole period and the head sentence.

Combining these factors, the court agreed that the driver’s sentence was manifestly inadequate.

Court’s residual discretion to dismiss the appeal

However, it was not sufficient for the prosecution to prove that the driver’s sentence was inadequate for Mr Barker to be resentenced. In order to achieve this, the prosecution also had to overcome the hurdle of the court’s “residual discretion”.

This is a term which refers to a judge’s general discretion to exclude evidence. It this case, it meant that the court could dismiss the Crown’s appeal, even though the prosecution had proven the sentencing error and the court had acknowledged that the sentence was “erroneously lenient”.

The court’s decision to exercise its residual discretion to dismiss the appeal was due in large part to the driver’s poor mental health, the self-blame and guilt he continued to experience and the lack of treatment available in prison for his condition.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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