The Facts
Vehicle driven with three passengers, none wearing seatbelts
A case heard in the NSW Court of Criminal Appeal in 2016 concerned a dangerous driver.
On an evening in 2015, a 19-year-old man was driving the streets of a small country town in a single cab utility motor vehicle, with two passengers in the cabin not wearing seatbelts and a third passenger seated on a toolbox in the back tray.
The driver did not own the vehicle, but had driven it several times and was familiar with it and with the road he was driving along. The driver was the designated driver and had not been drinking that evening.
Driver accelerates to 104 km/h and loses control of vehicle
The driver had accelerated to a speed of 104 km/h in a 60km/h zone and when the ute hit a crest in the road its front suspension lifted and the vehicle began swaying from side to side. The driver lost control of the vehicle and it rolled four or five times until it stopped upside down and slid on its roof into an irrigation canal.
The accident resulted in the death of two passengers and serious injury to the third.
Driver sentenced to non-parole period of 20 months
The driver was charged and pleaded guilty to two counts of dangerous driving occasioning death and one count of dangerous driving occasioning grievous bodily harm. The maximum sentences for these offences was ten and seven years respectively.
The sentencing judge in the District Court imposed a total term of imprisonment of three years and two months for all three charges, with a non-parole period of one year and eight months.
The driver was also sentenced for two related offences of negligent driving under section 117(1)(c) of the Road Transport Act 2013 (NSW), which related to the driver having driven with a person on the back tray on two separate occasions that same night.
In relation to these charges, the sentencing judge imposed convictions without further penalty and disqualified the respondent from driving for the automatic period of three years.
Crown appeal brought by DPP against leniency of sentence
The Director of Public Prosecutions on behalf of the Crown brought an appeal under section 5D of the Criminal Appeal Act 1912 (NSW) against the leniency of the sentence imposed on the driver.
Expert commentary on the court's decision
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.