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Court of Criminal Appeal 11 June 1999

Regina v Sen

[1999] NSWCCA 199

HomicideTraffic & driving
CRIMINAL LAW AND PROCEDURE SENTENCE DANGEROUS DRIVING CAUSING DEATH RESENTENCE

Citation: Regina v Sen [1999] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 11 June 1999
Judge(s): Grove J, Carruthers AJ

Background

The applicant was sentenced in the Liverpool District Court in December 1998 on two counts of aggravated dangerous driving occasioning death. The offence was aggravated because the applicant's blood alcohol concentration was 0.219 per cent, well above the 0.15 per cent threshold that elevates the offence to its more serious form. He had also driven through a red traffic light, killing two women aged 26 and 80.

The sentencing judge was told that the applicable speed limit at the accident site was 60 kilometres per hour. That information was wrong. The actual limit was 80 kilometres per hour. His Honour treated the speed differential as a significant aggravating feature, and his reasons on sentence reflected that view.

The applicant sought leave to appeal against the severity of the sentence of nine years imprisonment (divided into a minimum term of six years nine months and an additional term of two years three months, imposed concurrently on each count). The Crown conceded that the speed limit information was incorrect.

  • Whether the incorrect factual material placed before the sentencing judge enlivened the Court of Criminal Appeal's resentencing jurisdiction.
  • What sentence was appropriate for two counts of aggravated dangerous driving occasioning death in the circumstances, having regard to the guideline judgment in R v Jurisic and comparable cases.

Decision

The Court accepted that the misinformation about the speed limit, though not an error by the sentencing judge himself, had infected the factual basis on which sentence was imposed. That was sufficient to invoke the Court's jurisdiction to resentence, and leave to appeal was granted.

On resentencing, Grove J surveyed the relevant landscape. He noted that Jurisic established a clear upward trend in sentencing for dangerous driving causing death, though that decision addressed the basic form of the offence rather than the aggravated form that applied here. The applicant's blood alcohol level was more than five times the legal limit. Two people had died, making the offending more serious than cases involving a single death.

Comparison with McDonald, decided on the same day as Jurisic, was instructive. In that case, involving a blood alcohol level of 0.195 per cent and one death (with grievous bodily harm to another), the Court on Crown appeal had substituted a six-year total sentence. Grove J acknowledged that McDonald had a prior drink-driving conviction, which the applicant did not. Against that, two people had died in the present case rather than one.

The Court took into account factors in the applicant's favour, including his early guilty pleas, genuine remorse, and absence of significant prior convictions. It found no special circumstances warranting a departure from the standard minimum-to-additional-term ratio. A total term of seven years was imposed on each count, to be served concurrently. Carruthers AJ agreed, emphasising that the reduction made necessary by the factual error should not be read as any retreat from the courts' recognition of the serious criminality involved in driving while heavily intoxicated.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences imposed in the District Court quashed.
  • In lieu of those sentences, on each count: a total term of seven years imprisonment, divided into a minimum term of five years three months (commencing 10 December 1998, expiring 9 March 2004) and an additional term of one year nine months (commencing 10 March 2004), both counts to be served concurrently.
  • Applicant specified eligible for release on 9 March 2004.

Key Takeaways

  • Incorrect factual material provided to a sentencing judge, even without any fault on the judge's part, can enliven the Court of Criminal Appeal's resentencing jurisdiction.
  • The Court of Criminal Appeal confirmed that R v Jurisic signalled a clear upward trend in sentencing for dangerous driving causing death, with prior sentences for that offence widely regarded as having been unduly lenient.
  • Where the offence involves a blood alcohol concentration exceeding 0.15 per cent, it falls into the aggravated category and attracts a maximum of 14 years imprisonment, distinguishing it from the basic offence addressed in Jurisic.
  • The multiplicity of deaths was treated as a feature making the present offending more serious than comparable cases involving a single fatality.
  • A sentence reduction made necessary by a factual error at first instance does not, in the Court's view, signal any diminution in the judiciary's recognition of the serious criminality involved in heavily intoxicated driving.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW) (aggravated dangerous driving occasioning death provisions, including the 0.15 per cent blood alcohol threshold)
- Justices Act (NSW), s 51A (committal for sentence)
- Sentencing Act (NSW), s 5(2) (minimum and additional term formula; special circumstances)

Cases:
- R v Jurisic (1998) 101 A Crim R 259 (guideline judgment on dangerous driving causing death)
- R v McDonald, CCA, unreported, 12 October 1998
- The Queen v Pearce (1998) 72 ALJR 1416 (High Court guidance on sentencing for multiple offences)