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Court of Criminal Appeal 23 October 2000

Regina v Vitasovic

[2000] NSWCCA 323

Traffic & driving
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE AGGRAVATING FACTOR SPEED.

Citation: Regina v Vitasovic [2000] NSWCCA 323
Court: Court of Criminal Appeal, New South Wales
Date: 23 October 2000
Judge(s): Adams J, Bell J

Background

The applicant, a 27-year-old plasterer with no prior criminal record, pleaded guilty to dangerous driving occasioning grievous bodily harm after a collision at an intersection in Marayong on 14 March 1999. He had been driving at approximately 90 kilometres per hour in an 80 km/h zone when he crested a rise and struck a vehicle that had entered the intersection to make a right-hand turn. The collision caused catastrophic injuries to an 11-year-old child in the other vehicle, including severe diffuse brain injury, a fractured femur, a fractured pelvis, and abdominal injuries, leaving her with likely permanent cognitive and behavioural impairment.

In the District Court at Penrith, the applicant was sentenced to a minimum term of 22.5 months imprisonment with an additional term of 7.5 months. The applicant sought leave to appeal on the ground that the sentence was excessive. Leave to appeal was granted on 14 July 2000, and the Court of Criminal Appeal allowed the appeal the same day, with reasons published on 23 October 2000.

  • Whether the sentencing judge erred in characterising the applicant's driving as falling at the more serious end of the dangerous driving spectrum, thereby producing an excessive sentence.
  • Whether the total sentence of 30 months (22.5 months minimum plus 7.5 months additional) was appropriate given the circumstances of the offending and the applicant's subjective case.
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period shorter than the statutory proportion.

Decision

The Court found that the sentencing judge had overstated the seriousness of the dangerous driving. The court accepted that the applicant was speeding, and that the speed was what rendered the driving dangerous. However, the road was a dual carriageway through an industrial area, other traffic was travelling at around 80 km/h, the applicant had right of way, and there was no erratic driving, racing, or lane-weaving. The court held it was not open to conclude that the applicant had deliberately accepted the risk of a collision.

On the strength of the applicant's subjective case, the court noted his genuine remorse, good employment history, disrupted upbringing, psychological vulnerabilities, and the absence of any prior criminal record. The court drew on the sentencing principles outlined in Regina v Jurisic (1998) 45 NSWLR 209, which provides guidance on the appropriate range of sentences for dangerous driving offences in New South Wales.

On the question of special circumstances, the court accepted that the combination of factors, including the applicant's youth, his history of psychological difficulties (including past sexual abuse), his vulnerability in the general prison population, and the need for community support after release, together justified a departure from the standard non-parole proportion.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • The applicant sentenced to 2 years imprisonment with a non-parole period of 12 months, commencing 15 October 1999.
  • The applicant directed to be released at the end of the non-parole period (14 October 2000) pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Speeding alone, without additional aggravating conduct such as racing or erratic lane changes, does not automatically place a dangerous driving offence at the higher end of the sentencing range.
  • A strong subjective case, encompassing remorse, good character, employment history, and psychological vulnerability, carries genuine weight in dangerous driving sentencing even where the consequences for the victim were severe.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances can be established where a combination of factors, including youth, vulnerability, and the need for post-release support, indicates that a longer parole period is warranted.
  • The Court of Criminal Appeal reaffirmed that Regina v Jurisic remains the applicable guideline for calibrating sentences for dangerous driving offences in New South Wales.
  • Where a sentencing court significantly overstates the objective gravity of an offence, that constitutes error sufficient to warrant appellate intervention and a full resentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3) (dangerous driving occasioning grievous bodily harm; maximum 7 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (standard non-parole proportion), s 50(1) (direction for release)

Cases:
- Regina v Jurisic (1998) 45 NSWLR 209
- R v Boswell [1984] 3 All ER 353
- Regina v Mansour [1999] NSWCCA 180