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Court of Criminal Appeal 11 August 2000

R v Hawkins

[2000] NSWCCA 380

Traffic & driving
SEVERITY APPEAL ALCOHOL PROBLEM

Citation: R v Hawkins [2000] NSWCCA 380
Court: NSW Court of Criminal Appeal
Date: 11 August 2000
Judge(s): Dowd J; Bruce James J

Background

The applicant pleaded guilty in the District Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 14 years imprisonment. The offending occurred in February 1996, when the applicant drove at least 100 km/h in a 70 km/h zone with a blood alcohol concentration of not less than 0.216 (more than four times the legal limit). He collided with another vehicle, killing the 85-year-old driver.

Ford DCJ sentenced the applicant to a minimum term of four years imprisonment, with an additional term of one year, together with a four-year licence disqualification. The applicant's history between the offence and sentencing was troubled: he failed to appear for trial twice, had two bench warrants issued against him, and was not taken into continuous custody until June 1999.

The applicant sought leave to appeal the sentence as excessive, raising two grounds: that the sentencing judge erred in setting the ratio between the minimum and additional terms, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by setting the additional term at only 20% of the total sentence (rather than the conventional 25%), given the applicant's alcohol problem and need for supervision.
  • Whether the total sentence of five years (four years minimum, one year additional) was manifestly excessive for the offence of aggravated dangerous driving occasioning death.

Decision

On the first ground, the Court rejected the argument that any fixed ratio between the minimum and additional terms is required by law. Dowd J confirmed that the restriction imposed by legislation is only that the minimum term must not fall below three-quarters of the total sentence. There is no statutory or common law requirement for additional terms to represent any particular proportion above that floor. The need for a supervision period is assessed by reference to the applicant's individual needs, not by mechanically adjusting term lengths to reach a preferred ratio.

Dowd J also rejected the submission that the applicant's alcohol problem justified artificially extending the additional term. The argument that increasing the additional term from 12 months to 15 months would better address the problem was described as an unsound basis for interfering with the sentencing discretion. The applicant's alcohol difficulties were longstanding and would require sustained work regardless of supervision arrangements.

On the second ground, the Court applied the guideline judgment in R v Jurisic (1998) 45 NSWLR 29, which indicated that a minimum of three years' custody is appropriate for this type of offence, subject to mitigating and aggravating factors. Here, multiple aggravating features were present: catastrophic injury, speed well above the limit, intoxication more than four times the legal threshold, and erratic driving. The applicant's criminal record, including prior mid-range PCA convictions, provided no assistance to his case. The limited utility of the guilty plea in these circumstances meant the sentence was not manifestly excessive.

Bruce James J agreed with Dowd J's reasoning and the proposed orders.

Orders Made

  • Application dismissed.
  • Leave to appeal refused.

Key Takeaways

  • No error was established in setting an additional term at 20% of the total sentence. The Court of Criminal Appeal confirmed there is no legal principle requiring additional terms to meet or exceed 25% of the total, and that the only statutory restriction governs the minimum floor for the non-parole period.
  • A sentencing court's discretion on the length of additional terms is not constrained by any fixed ratio, as confirmed by the Court's application of GDR (1994) 35 NSWLR 376.
  • Under the Jurisic guideline, a sentence above the three-year minimum benchmark is appropriate where multiple aggravating factors are present, including extreme intoxication, excessive speed, and fatal consequences.
  • In dismissing the appeal, the Court emphasised that general deterrence is a significant consideration for offences of this kind, a point the applicant's counsel conceded.
  • A prior criminal record that includes offences of the same character (here, prior PCA convictions) will weigh against an applicant who argues their sentence is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- GDR (1994) 35 NSWLR 376
- R v Jurisic (1998) 45 NSWLR 29