Citation: R v Gleeson [2000] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 20 March 2000
Judge(s): Abadee J; James J
Background
The applicant pleaded guilty in the District Court to two charges of dangerous driving occasioning grievous bodily harm under s 52A(3) of the Crimes Act 1900. The offences arose from a single collision on 11 October 1997, in which the applicant lost control of his vehicle, causing it to collide with an oncoming car. His stepbrother (a passenger in his vehicle) and the driver of the other car both sustained serious injuries.
The sentencing judge found that the applicant had been driving at excessive speed, on tyres he knew had little tread, and with a blood alcohol concentration of 0.149 grams per 100 mls. This level of impairment fell just below the 0.15 threshold that would have elevated the offences to the more serious aggravated form under s 52A(4).
Judge Sides in the District Court sentenced the applicant to two years' imprisonment (minimum term of 18 months, additional term of 6 months) on each charge, served concurrently, and disqualified him from driving for three years. The applicant sought leave to appeal the sentences, appearing unrepresented.
Legal Issues
- Whether the sentencing judge correctly applied the guideline judgment in R v Jurisic (1998) 45 NSWLR 209 in imposing a custodial sentence
- Whether the sentences imposed were manifestly excessive given the applicant's personal circumstances, including his guilty plea, remorse, and his young daughter's welfare
- Whether post-sentencing events (the fostering out of his daughter and his former partner's imprisonment) could be considered by the Court of Criminal Appeal in reviewing the sentence
Decision
The Court found that the sentencing judge had correctly applied the guidelines in Jurisic. Those guidelines state that a non-custodial sentence for a s 52A offence should be exceptional and almost always confined to cases of momentary inattention or misjudgment. This case was plainly not in that category.
The guidelines further indicate that, where a plea of guilty is entered and aggravating factors are present to a material degree, a custodial sentence of less than two years (for dangerous driving causing grievous bodily harm) should itself be exceptional. The Court held that the sentencing judge was entitled to find that multiple aggravating factors, namely alcohol, excessive speed, and known tyre defects, were present to a material degree, placing the case well outside any exceptional category.
The Court acknowledged that the sentencing judge had taken the applicant's relationship with his daughter into account at first instance. As for the post-sentencing developments concerning his daughter and former partner, the Court noted that it sits as a court of error and is generally confined to the evidence that was before the sentencing judge. Those subsequent events could not be considered in the appeal.
Leave to appeal was refused.
Orders Made
- Leave to appeal against sentence refused
Key Takeaways
- The Court of Criminal Appeal confirmed that the Jurisic guidelines applied directly: a non-custodial sentence for dangerous driving occasioning grievous bodily harm is reserved for cases of momentary inattention or misjudgment, not cases involving deliberate risk-taking such as drink-driving.
- Where multiple aggravating factors are present to a material degree, a custodial sentence at or near the two-year mark is consistent with the Jurisic guidelines, even with a guilty plea and demonstrated remorse.
- A blood alcohol concentration below the statutory aggravation threshold of 0.15 g/100 mls does not prevent a sentencing court from treating alcohol as an aggravating consideration, provided the court does not treat the offence as an example of the more serious aggravated form.
- In dismissing the application, the Court reaffirmed that it sits as a court of error and cannot consider events occurring after the original sentencing when reviewing the sentence on appeal.
- Personal hardship flowing from imprisonment, such as the impact on a dependent child, is a relevant but not necessarily decisive consideration in sentencing, and its weight is a matter for the sentencing judge's discretion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A(3) (dangerous driving occasioning grievous bodily harm, maximum 7 years) and s 52A(4) (aggravated form)
Cases
- R v Jurisic (1998) 45 NSWLR 209 (NSW Court of Criminal Appeal guideline judgment on dangerous driving offences)