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Court of Criminal Appeal 9 June 1999

Regina v Bicheno

[1999] NSWCCA 148

Traffic & driving
CRIMINAL LAW AND PROCEDURE BLOOD ALCOHOL CONCENTRATION 0.263% TWO VICTIMS SENTENCE

Citation: Regina v Bicheno [1999] NSWCCA 148
Court: Court of Criminal Appeal, New South Wales
Date: 9 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant, a 45-year-old professional removalist driver, pleaded guilty in the Penrith District Court to two counts of aggravated dangerous driving occasioning grievous bodily harm. The charges arose from a single collision on 25 June 1997, in which the applicant's vehicle struck another car. His blood alcohol concentration at the time was 0.263 percent, more than five times the legal driving limit and well above the 0.15 percent threshold that elevated the offence to its aggravated form.

The two victims were a 19-year-old woman who had been driving the other vehicle, and the applicant's de facto wife, who was a passenger in his car. The young woman sustained a fractured skull and injuries to her right eye that resulted in permanent blindness. Apart from a single speeding offence in 1985, the applicant had an otherwise clear driving record, and he entered his guilty pleas at the earliest opportunity.

The District Court sentenced the applicant to four years imprisonment, structured as concurrent minimum and additional terms of two years each on each count. The applicant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentence of four years imprisonment was manifestly excessive in light of the guideline judgment in R v Jurisic, which addressed appropriate sentences for dangerous driving offences
  • Whether the aggravated form of the offence required that the Jurisic guideline be increased only by a fixed arithmetical proportion corresponding to the difference between the maximum penalties for the basic and aggravated offences
  • Whether the sentencing judge made any identifiable error warranting appellate intervention

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentencing judge's exercise of discretion. Grove J noted that the jurisdiction of the Court of Criminal Appeal is not engaged unless error by the sentencing judge is demonstrated, and no such error was identified on the facts.

The Court rejected the argument that the Jurisic guideline should be increased for aggravated offences by no more than a percentage derived from the mathematical difference between the maximum penalties for the basic and aggravated offences. Grove J characterised this as an attempt to substitute arithmetical precision for the exercise of judicial judgment. The guideline established in Jurisic sets a minimum, not an alternative to Parliament's prescribed penalty, and each case must be assessed on its own facts.

The Court also observed that the applicant's blood alcohol level of 0.263 percent was an especially serious aggravating feature, and that the existence of two victims was not a factor to be disregarded. Grove J noted in passing that the High Court's decision in Pearce v The Queen raised questions about New South Wales sentencing practice on multiple counts, though neither party had addressed this point in argument. The observation did not affect the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Jurisic guideline for dangerous driving sentences sets a minimum benchmark, not a ceiling, and does not displace Parliament's prescribed maximum penalty.
  • No arithmetical principle governs the extent to which a guideline must be increased when an offender is sentenced for the aggravated, rather than the basic, form of a dangerous driving offence. The appropriate uplift is a matter of judicial judgment applied to the specific facts.
  • A blood alcohol concentration of 0.263 percent (more than five times the legal limit) represented a highly serious aggravating circumstance, capable of supporting a sentence significantly above any guideline minimum.
  • The presence of two victims was expressly identified as a relevant factor that sentencing courts are not entitled to ignore.
  • In dismissing the appeal, the Court reiterated that appellate intervention in sentencing requires a demonstrated error by the sentencing judge; disagreement with the weight given to particular factors is insufficient.

Legislation and Cases Referenced

Cases:
- R v Jurisic (1999) 101 A Crim R 269 (guideline judgment on dangerous driving sentences)
- McKinney, NSW CCA No 51 (unreported, on proportionate increase of Jurisic guidelines for aggravated offences)
- Pearce v The Queen (1998) 72 ALJR 1416 (High Court, on sentencing for multiple counts)

Legislation:
- The relevant offence provisions prescribing aggravated dangerous driving occasioning grievous bodily harm, carrying a maximum penalty of eleven years imprisonment (specific Act not identified in the judgment text)