AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 29 October 1999

REGINA v JAWOROWSKI

[1999] NSWCCA 430

Also reported as (1999) 108 A Crim R 489
HomicideTraffic & driving

Citation: [1999] NSWCCA 430
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judge(s): Simpson J; Kirby J

Background

The applicant pleaded guilty in the District Court to dangerous driving causing death in circumstances of aggravation, under s 52A(2) and (4) of the Crimes Act 1900, which carries a maximum penalty of fourteen years' imprisonment. The offence occurred on 15 October 1996, when the applicant drove his four-wheel drive vehicle out of his driveway and struck a motorcyclist. The motorcyclist died as a result.

The aggravating circumstance was the applicant's blood alcohol reading: a roadside test returned 0.240 grams per 100 millilitres of blood, and a later breath analysis produced a reading of 0.270. Critically, the applicant had appeared in the Local Court just thirteen days before the offence on a separate high-range prescribed concentration of alcohol (PCA) charge, and had been disqualified from driving for two years. He was therefore a disqualified driver at the time of the fatal collision.

Goldring DCJ sentenced the applicant to a total term of eight years' imprisonment, structured as a minimum term of six years and an additional term of two years, declining to find special circumstances that would justify departing from the statutory ratio under s 5(2) of the Sentencing Act 1989.

  • Whether the total sentence of eight years was manifestly excessive, having regard to the applicant's subjective circumstances, including alcoholism and a history of major depressive illness
  • Whether Goldring DCJ erred in declining to find special circumstances justifying an extended additional term (and correspondingly reduced minimum term) under the Sentencing Act 1989

Decision

The Court of Criminal Appeal rejected the argument that the total sentence was manifestly excessive. Simpson J acknowledged that the applicant's subjective circumstances were significant: he was a first-time prisoner, suffered from alcoholism and major depressive illness, had expressed genuine contrition, and had ceased drinking in the period between the offence and sentencing. However, the Court held that while this material warranted some sympathy, it did not compel leniency given the objective seriousness of the conduct.

The Court noted that the offence was more serious than the conduct considered in the guideline judgment of R v Jurisic, and that the applicant's decision to drive while both heavily intoxicated and disqualified for a materially similar prior offence was a significant aggravating feature. The total eight-year sentence, while heavy, was found to sit within the range properly available to the sentencing judge.

On the second ground, the Court upheld the appeal. Simpson J found that Goldring DCJ had not approached the special circumstances question in the manner required, focusing only on remorse rather than turning his mind to the features more particularly relevant to that inquiry. Those features included the applicant's status as a first-time prisoner, his alcoholism, his history of depression, and the length of the total term. The Court found that special circumstances did exist, and restructured the sentence accordingly, extending the additional term from two to three years and reducing the minimum term from six to five years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Substituted sentence of eight years' total imprisonment, comprising:
  • Minimum term of five years commencing 14 August 1998, expiring 13 August 2003
  • Additional term of three years commencing 14 August 2003, expiring 13 August 2006

Key Takeaways

  • Strong subjective circumstances, including alcoholism and depressive illness, may warrant sympathy in sentencing for aggravated dangerous driving causing death, but do not necessarily mandate a reduction in the total term where the objective conduct is sufficiently serious.
  • A sentencing judge who confines the special circumstances inquiry to remorse alone, without turning to other relevant factors such as first-time imprisonment, mental illness, and the length of the total term, does not approach that question in the legally required manner.
  • Under s 5(2) of the Sentencing Act 1989, the existence of special circumstances permits a court to restructure the ratio between the minimum and additional terms, even where the total sentence remains unchanged.
  • Prior disqualification for a materially similar drink-driving offence, committed only days before a fatal crash, constitutes a significant aggravating feature in the sentencing exercise.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the eight-year total term, though described as among the heaviest imposed for this offence at the time, was within the range properly open given the particular circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1), 52A(2), 52A(4)
- Sentencing Act 1989 (NSW), s 5(2)
- Motor Traffic Act (NSW) (PCA provisions)

Cases:
- R v Sen (CCA, 11 June 1999)
- R v Jurisic (1998) 45 NSWLR 209
- R v Veen (No 2) (1987) 164 CLR 465