Citation: Regina v Stephen Joseph Scott [1999] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 6 August 1999
Judge(s): Levine J; Carruthers AJ
Background
The applicant, a bus driver, finished a night shift and spent several hours at a club where he consumed approximately six to eight schooners of beer. He then drove his vehicle along a road near Menai, travelling close to four kilometres at estimated speeds of between 120 and 160 kilometres per hour, weaving between lanes and tailgating other vehicles.
The applicant's vehicle clipped the rear of another car while attempting to overtake, causing a three-vehicle collision. The driver of one of those vehicles suffered a fractured pelvis, a fractured spine, and a punctured lung. The applicant returned a blood alcohol reading of 0.160, placing him in the high range.
The applicant pleaded guilty in the Local Court to dangerous driving occasioning grievous bodily harm under section 52A of the Crimes Act 1900 (NSW). In the District Court, Christie DCJ sentenced him to a total term of four years imprisonment with a minimum term of two years, commencing 12 November 1998. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in applying the guideline judgment in Regina v Jurisic when arriving at a sentence of four years.
- Whether the sentencing judge improperly "doubled up" on aggravating factors already embedded in the Jurisic two-year threshold when imposing a sentence that exceeded that threshold.
- Whether too much weight was given to the erratic and dangerous nature of the driving in the context of the charge as framed.
Decision
The applicant's central argument was that the judge had effectively doubled up on aggravating factors: those factors already accounted for in the Jurisic guideline's two-year starting point were then used again to increase the sentence to four years. The Court rejected this argument. Levine J held that such an approach would not accord with Spigelman CJ's reasoning in Jurisic, which expressly preserved an independent sentencing discretion and identified the two-year figure as a starting point, not a ceiling.
The Court accepted that the sentencing judge was entitled to assess the objective facts as significantly more serious than those in Jurisic itself. While Levine J noted he might not personally have reached the same comparison, he held that this did not expose any legal error. The judge's characterisation of the facts as approaching the worst category of the offence was open on the evidence.
The Court also noted the applicant's prior driving record and gave particular weight to general deterrence. Levine J emphasised that section 52A offences are inherently public in nature, occurring in an environment where every member of the community participates as a driver, passenger, or pedestrian. Sentences for such offences must reflect that public dimension.
Having found no error in the sentencing judge's approach to either the objective gravity of the offence or the relevant subjective considerations, the Court declined to grant leave to appeal.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The Jurisic guideline of two years for dangerous driving occasioning grievous bodily harm operates as a starting point, not a ceiling; the presence of additional or more intense aggravating factors justifies a sentence above that threshold.
- No error was established by the mere fact that a sentence exceeded the Jurisic two-year minimum. The argument that this necessarily reflected a doubling of factors was rejected.
- A sentencing court's comparison of the objective facts before it with those in Jurisic is a legitimate part of the exercise of sentencing discretion, and appellate intervention is not warranted simply because the comparison might be drawn differently.
- Under section 52A of the Crimes Act 1900 (NSW), general deterrence carries particular weight because dangerous driving on public roads exposes the entire community to risk and is widely understood as serious criminal conduct.
- In dismissing the application, the Court confirmed that an extensive prior driving record, including multiple prior traffic offences, is a relevant consideration in assessing the appropriate sentence for this class of offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), section 52A (dangerous driving occasioning grievous bodily harm; maximum penalty seven years imprisonment)
Cases:
- Regina v Jurisic (1998) 45 NSWLR 209 (guideline judgment on sentencing for section 52A offences, Spigelman CJ)
- R v Boswell (referenced within Jurisic for the list of mitigating and aggravating factors)