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7
Court of Criminal Appeal 3 March 1999

R v Errington

[1999] NSWCCA 18

Assault & violenceTraffic & driving
SENTENCING JURISIC FOLLOWED.

Citation: R v Errington [1999] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 3 March 1999
Judge(s): Grove J, Dunford J, Greg James J

Background

The respondent pleaded guilty in the District Court to aggravated dangerous driving causing grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900, which carries a maximum penalty of eleven years imprisonment. The offence arose from a collision in December 1995 at Mount Druitt, in which the respondent drove at approximately 90 km/h in a 60 km/h zone while heavily intoxicated, with a blood alcohol reading of 0.278 g per 100 mL taken at hospital shortly after the crash.

The respondent lost control of his vehicle while attempting to change lanes, mounting a kerb and colliding with a street sign post and power pole. His de facto wife, who was a passenger, suffered traumatic injuries including the amputation of her lower left arm. Although she died several weeks later from complications, the respondent was not charged in relation to her death. His daughter, also a passenger, sustained leg injuries.

The sentencing judge in the District Court imposed a fixed term of eighteen months imprisonment, which was then directed to be served by way of home detention. The Crown appealed on the ground that the sentence was inadequate.

  • Whether the sentence of eighteen months fixed term, served by home detention, was manifestly inadequate for an offence of aggravated dangerous driving causing grievous bodily harm
  • Whether the sentencing judge gave sufficient weight to general deterrence and the guidelines established by the Court of Criminal Appeal in R v Jurisic
  • Whether home detention was an appropriate sentencing disposition in the circumstances
  • What sentence, taking into account the principle of double jeopardy applicable in Crown appeals, should be substituted

Decision

The Court of Criminal Appeal found the original sentence was manifestly inadequate and inconsistent with the sentencing approach affirmed in R v Jurisic, which had established that full-time custodial sentences are ordinarily required for serious offences of this kind. The sentencing judge had placed excessive weight on mitigating factors, including the respondent's rehabilitation, remorse, delay in proceedings, and the hardship a custodial sentence would cause to his family.

The Court acknowledged the respondent's genuine mitigating circumstances: an early guilty plea, frank co-operation with police, demonstrated sobriety since the accident, and the considerable personal consequences he had already suffered, including social ostracism and grief. Nonetheless, the Court held that these matters did not justify a departure from the expectation that offences of this gravity attract full-time imprisonment.

The Court further held that home detention is not equivalent to a sentence of imprisonment for the purposes of the Jurisic guidelines, compounding the error in the original sentencing. On the question of sentence structure, Dunford J found that special circumstances existed, given the respondent's longstanding alcohol dependency and the need for meaningful supervision and treatment during parole. This justified a longer additional term relative to the minimum term.

Because the matter was a Crown appeal, the principle of double jeopardy applied, meaning the substituted sentence was set at the lower end of the appropriate range rather than at the full measure the offending might otherwise attract.

Orders Made

  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • Respondent sentenced to imprisonment comprising a minimum term of twelve months, deemed to have commenced on 6 November 1998, and an additional term of eighteen months
  • Earliest parole eligibility date fixed at 5 November 1999
  • On that date, the respondent to be released on parole subject to regulatory conditions, including supervision by the Probation and Parole Service and such alcohol counselling and treatment as directed by his Probation Officer
  • Disqualification from holding a driver's licence confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that R v Jurisic applies to offences of aggravated dangerous driving causing grievous bodily harm under s 52A(4) of the Crimes Act 1900, and that the guidelines established in that decision ordinarily require full-time custodial sentences for serious offending of this type.
  • Home detention is not to be treated as a sentence of imprisonment for the purposes of the Jurisic guidelines, and directing that a custodial term be served by home detention does not satisfy the requirement for full-time custody in such cases.
  • Mitigating factors, including genuine remorse, rehabilitation, early plea, and hardship to innocent family members, remain relevant considerations but do not of themselves displace the need for a custodial term in cases involving high-range alcohol, excessive speed, and serious injury.
  • In Crown appeals, the principle of double jeopardy operates to limit any substituted sentence to the lower end of the appropriate range, rather than the sentence the offending might fully warrant.
  • A longstanding alcohol dependency, combined with the need for supervised rehabilitation following release, can constitute "special circumstances" under s 5(2) of the Sentencing Act 1989, justifying a longer additional term relative to the minimum term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4)
- Sentencing Act 1989 (NSW), s 5(2)

Cases Applied
- R v Jurisic (CCA, unreported, 12 October 1998)
- R v Byrne (CCA, unreported, 5 August 1998)
- R v Tiki (CCA, unreported, 24 August 1994)
- R v Niga (CCA, unreported, 13 April 1994)

Cases Referred To
- The Queen v De Simoni (1981) 147 CLR 383
- R v Brendan Smith (1997) 95 A Crim R 373
- R v Boswell (1984) 79 Cr App R 277
- R v Lambrinos (CCA, unreported, 17 July 1998)
- R v Edwards (1996) 90 A Crim R 510
- R v Wirth (1976) 14 SASR 291
- R v Maslen (1995) 79 A Crim R 199
- R v Day (CCA, unreported, 23 April 1998)
- R v Musumeci (CCA, unreported, 30 October 1997)
- R v Rose (CCA, unreported, 23 May 1996)