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Court of Criminal Appeal 24 May 1999

R v AUSTIN

[1999] NSWCCA 101

Traffic & driving
CRIMINAL LAW SENTENCING WHETHER SENTENCES EXCESSIVE

Citation: R v Austin [1999] NSWCCA 101
Court: New South Wales Court of Criminal Appeal
Date: 24 May 1999
Judge(s): Barr J; McInerney AJ

Background

On Christmas Day 1995, the applicant was driving a utility truck southbound on Wallgrove Road, Eastern Creek, carrying one passenger. Witnesses estimated his speed reached up to 150 kilometres per hour in a 90 km/h zone. He overtook multiple vehicles on the wrong side of the road, at one point forcing an oncoming car off the road.

The applicant lost control while overtaking a third vehicle on a bend. The utility fishtailed, veered across both lanes, and collided with a northbound car. The crash caused serious and lasting injuries to four people: the applicant's own passenger, the driver of the oncoming car, her front-seat passenger, and a child in the rear seat.

The applicant was convicted in the District Court on four counts of driving in a manner dangerous to the public occasioning grievous bodily harm. He was sentenced to a total effective term of four years, comprising a minimum term of three years and an additional term of one year. He sought leave to appeal against the sentences.

  • Whether the sentencing judge erred in apportioning the minimum and additional terms within the total four-year sentence
  • Whether the applicant's personal circumstances, including a history of supervision by the Probation and Parole Service and changed domestic arrangements, justified a longer additional term (and correspondingly shorter minimum term)
  • Whether the sentencing judge was required to make specific findings about circumstances justifying an additional term exceeding one-third of the minimum term under the applicable sentencing legislation

Decision

The applicant did not challenge the total length of his sentence. His argument was narrower: that the sentencing judge should have allocated more time to the additional term (the parole period) and less to the minimum term, giving him an earlier eligibility date for release on parole. The Court of Criminal Appeal rejected this argument.

Barr J noted that the applicant's prior contact with the Probation and Parole Service, while initially marked by criticism, had attracted more positive comments over time. The applicant relied on this history and his changed domestic circumstances to argue that extended supervision was warranted. The Court did not accept that these factors demonstrated a need for more than twelve months on parole. The applicant's claim that there was a gap in his offending history was also rejected: seven of his sixteen driving-related matters occurred after a 1989 report that had spoken positively of his motivation to reform.

Barr J observed that the sentencing judge made no explicit reference to whether special circumstances existed justifying an additional term exceeding one-third of the minimum term. The Court declined to infer from this silence that the point had been overlooked, noting that none of the circumstances raised on appeal would have justified a longer additional term in any event. The Court also expressed the view that the objective seriousness of the four offences required no less than three years of full-time detention.

Barr J stated that, in his own assessment, the offences fell into the worst category of cases, a view that was somewhat stronger than the sentencing judge's characterisation of the matter as "a very, very bad case." McInerney AJ agreed with both the reasoning and the proposed order.

Orders Made

  • Leave to appeal refused

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an applicant seeking a longer additional term must demonstrate a genuine need for extended supervision beyond what the circumstances objectively support.
  • Positive reports from the Probation and Parole Service, and changed personal circumstances, do not automatically warrant a longer parole period if the court is not satisfied that significant supervision needs exist.
  • A sentencing judge's silence on whether special circumstances justify an additional term exceeding one-third of the minimum term will not automatically lead to an inference of error on appeal, particularly where no such circumstances are made out.
  • Barr J noted that the objective facts of this case, involving high-speed overtaking, loss of control, and severe injuries to four people, placed it in the worst category of cases for this offence, even though the sentencing judge had not gone that far.
  • The Court reinforced that the total length of a sentence and the internal apportionment between minimum and additional terms are distinct questions, and a challenge limited to apportionment must be supported by identifiable factors that warrant more extensive post-release supervision.

Legislation and Cases Referenced

Legislation:
- Sentencing Act (NSW), s 5(2) (concerning the relationship between minimum and additional terms, and the circumstances justifying an additional term exceeding one-third of the minimum term)

Cases:
- No cases were cited in the provided judgment text.