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Court of Criminal Appeal 21 February 2000

Regina v Everett

[2000] NSWCCA 439

Traffic & driving
CRIMINAL LAW SENTENCE APPEAL DANGEROUS DRIVING OCCASIONING DEATH X 2

Citation: Regina v Everett [2000] NSWCCA 439
Court: Court of Criminal Appeal, New South Wales
Date: 21 February 2000
Judge(s): Hidden J; Carruthers AJ

Background

The appellant pleaded guilty in the Newcastle District Court to two counts of dangerous driving occasioning death under s 52A(1) of the Crimes Act 1900, carrying a maximum penalty of 10 years imprisonment. The offences arose from a motor vehicle accident on 18 December 1997, when the appellant lost control of her vehicle on the F3 freeway while under the influence of morphine and cannabis, described by toxicological evidence as within a "toxic to lethal range." Two passengers were killed: her newly married husband and her two-year-old son from a previous relationship. Her four-year-old daughter survived.

The appellant had a lengthy history of driving without a licence, having never held one, and appeared before courts on at least ten occasions for that offence between 1992 and 1997. She also had a history of heroin addiction. After the accident, she falsely denied to police that she had administered heroin prior to driving.

Judge McGuire sentenced the appellant to a minimum term of two years imprisonment on the first count, with an additional term of two years, and a concurrent fixed term of two years on the second count. The appellant applied out of time for leave to appeal against that sentence, appearing in person.

  • Whether the sentencing judge made errors of fact in relation to the circumstances of the accident
  • Whether adequate weight was given to the appellant's attempts at rehabilitation
  • Whether the sentencing judge placed insufficient weight on the impact of incarceration on the appellant's four-year-old daughter, who was living in Queensland with her maternal grandmother
  • Whether too much weight was given to the appellant's prior criminal record
  • Whether the sentences imposed fell within the appropriate discretionary range in light of the guidelines established in R v Jurisic

Decision

The Court of Criminal Appeal granted leave to appeal out of time but dismissed the appeal. Carruthers AJ, with Hidden J agreeing, examined each of the appellant's grounds of challenge and found none of them to have substance. Even taking the subjective factors at their highest, the Court held that they were "overwhelmed by the seriousness of the criminal conduct" that resulted in two deaths.

The Court noted that the sentences imposed were consistent with the guidelines laid down in R v Jurisic (1998) 45 NSWLR 209, which were established precisely because of public concern about the frequency and inadequate sentencing of dangerous driving offences. Carruthers AJ went further, observing that it would have been open to the sentencing judge to impose a higher sentence.

On the question of the appellant's daughter, the Court acknowledged the hardship caused by the mother's imprisonment but identified several administrative and legislative mechanisms capable of ameliorating the separation. These included the possibility of interstate transfer to Queensland under the Prisoners (Interstate Transfer) Act 1982, discretionary absence from custody for humane reasons under s 29 of the Correctional Centres Act 1952, and the "Occasional Residential Programme" available at facilities such as Mulawa, which permits limited residential time for children under 14 with their incarcerated mothers.

Hidden J agreed with Carruthers AJ's reasoning, noting that while the sentencing judge expressed considerable sympathy for the appellant, the length of the sentence was not open to challenge. No error in the exercise of the sentencing discretion had been demonstrated.

Orders Made

  • Leave to apply out of time granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that objective seriousness and general deterrence must generally prevail over subjective hardship factors in sentencing for dangerous driving occasioning death.
  • The guidelines in R v Jurisic (1998) 45 NSWLR 209 continue to govern sentencing for this class of offence, and sentences consistent with those guidelines will be difficult to disturb on appeal.
  • A sentencing court's compassion for an offender's personal circumstances, including the welfare of a dependent child, does not ordinarily reduce a sentence that reflects the objective gravity of a fatal driving offence.
  • Administrative mechanisms exist under New South Wales and Commonwealth legislation to reduce the practical hardship of a mother's imprisonment on dependent children, including interstate transfer provisions and programmes allowing children limited residential time with incarcerated parents.
  • No error of fact or principle was found in the sentencing judge's treatment of the appellant's prior record, rehabilitation efforts, or the impact of custody on her daughter.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)
- Prisoners (Interstate Transfer) Act 1982, Part 2
- Correctional Centres Act 1952 (NSW), s 29

Cases:
- Regina v Jurisic (1998) 45 NSWLR 209