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Court of Criminal Appeal 9 August 2000

R v McAskill

[2000] NSWCCA 350

Traffic & driving
SENTENCE APPEAL GUIDELINE JUDGMENT BLOOD ALCOHOL LEVEL SPECIAL CRCUMSTANCES

Citation: R v McAskill [2000] NSWCCA 350
Court: NSW Court of Criminal Appeal
Date: 9 August 2000
Judge(s): Dowd J; Bruce James J

Background

The appellant was convicted in the Campbelltown District Court of two counts of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900. The offences arose from an early morning collision in July 1998, when the appellant drove a tip-truck with a blood alcohol reading of 0.155 grams (more than three times the legal limit) and drifted into oncoming traffic, striking a car carrying two young women.

The appellant had consumed ten to twelve schooners of beer the previous evening, taken a taxi home, and then been telephoned by a workmate shortly after 2.30am to fill in for a shift starting at 4am. He chose to drive rather than arrange alternative transport. Both occupants of the other vehicle suffered multiple fractures and required prolonged recovery.

The appellant had a significant prior driving history, including four PCA (prescribed concentration of alcohol) offences between 1985 and 1991 and a driving whilst disqualified offence. Ford DCJ sentenced him to a minimum term of three years' imprisonment with an additional term of one year. The appellant sought leave to appeal on the grounds that the sentence was manifestly excessive and that special circumstances warranted adjustment of the ratio between the minimum and additional terms.

  • Whether the sentence of three years minimum and one year additional was manifestly excessive in the circumstances
  • Whether His Honour at first instance applied the guideline judgment in R v Jurisic correctly, particularly in light of comparable cases
  • Whether the fact that this was the appellant's first custodial sentence constituted "special circumstances" under s 5(2) of the Sentencing Act 1989, warranting an adjustment to the minimum-to-additional term ratio

Decision

The Court of Criminal Appeal rejected the manifest excess ground. Dowd J found that the comparison the appellant drew with R v Gleeson was not apt, as the sentencing judge had correctly identified the differences between that case and the present one. The appellant's blood alcohol level was more than three times the legal limit, two people were seriously injured, and the decision to drive at all after being woken in an intoxicated state went beyond a mere error of judgment.

The appellant's history of repeat drink-driving offences, spanning five years from 1985 to 1991, further weighed against him. The Court noted that having two victims exacerbated the gravity of the offences, applying the principle from R v Hallocoglu. The Jurisic guideline factors, including the nature and extent of injuries and the number of people put at risk, pointed toward the sentence imposed being within range.

On the special circumstances ground, Dowd J held that the fact of a first custodial sentence does not, in itself, constitute special circumstances. To treat it as automatically doing so would mean every first-time imprisoned offender was entitled to that consideration. Referring to R v Brindley, the Court acknowledged that the sentencing judge should have referred expressly to s 5(2) of the Sentencing Act 1989, but found that on the particular facts no case for special circumstances had been made out.

Bruce James J agreed with Dowd J and concurred in refusing leave to appeal.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A first term of imprisonment does not, without more, constitute "special circumstances" under s 5(2) of the Sentencing Act 1989; the Court confirmed that accepting this argument as a general proposition would effectively grant the benefit to every first-time prisoner.
  • In applying the Jurisic guideline to aggravated dangerous driving offences, the number of victims injured and the severity of those injuries are relevant factors that increase the gravity of the offending.
  • A history of repeated drink-driving convictions over a period of years remains a significant aggravating feature at sentencing, even where the offences are not recent.
  • No useful comparison was established between this offence and cases involving lower blood alcohol levels or less serious prior records; the Court of Criminal Appeal confirmed that the sentencing judge was correct to distinguish R v Gleeson.
  • Refusing leave to appeal, the Court treated the appellant's decision to drive while still substantially intoxicated from the previous evening as conduct exceeding a mere error of judgment, particularly given the prior PCA history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4)
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Jurisic (1988) 45 NSWLR 209 (guideline judgment on dangerous driving sentencing)
- R v Gleeson [2000] NSWCCA 101
- R v Hallocoglu (1992) 29 NSWLR 67
- R v Bo Too (Unreported, NSWCCA, 16 July 1992)
- R v Brindley (1993) 66 A Crim R 204