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Court of Criminal Appeal 27 October 2000

R v Khan

[2000] NSWCCA 454

Traffic & driving

Citation: R v Khan [2000] NSWCCA 454
Court: NSW Court of Criminal Appeal
Date: 27 October 2000
Judges: Wood CJ at CL, Whealy J

Background

The applicant pleaded guilty in the District Court to one count of aggravated dangerous driving occasioning grievous bodily harm. In the early hours of 4 June 1998, he drove at substantial speed along Grafton Road before losing control on a bend, sideswiping an Armco railing, and crashing into a stock reserve approximately 169 metres from the point where he first lost control.

His front-seat passenger suffered devastating injuries, including a below-knee amputation and multiple fractures. The applicant's blood alcohol concentration at the time of the accident was estimated at between 0.200 and 0.210 grams per 100 millilitres of blood, well over twice the legal limit. A blood sample taken at hospital approximately an hour after the crash recorded 0.182 grams per 100 millilitres.

Judge Kirkham of the District Court imposed a sentence of four and a half years imprisonment with a non-parole period of three years, four months and fifteen days. The applicant sought leave to appeal, contending the sentence was too severe.

  • Whether the sentencing judge misdirected himself by referencing the wrong threshold figure from the guideline judgment in Jurisic (1998) 45 NSWLR 209, applying a three-year benchmark rather than the two-year benchmark applicable to dangerous driving causing grievous bodily harm.
  • Whether, even allowing for any such misdirection, the sentence of four and a half years was excessive in all the circumstances.
  • How the Jurisic guidelines apply to an offence of aggravated dangerous driving causing grievous bodily harm, which carries a higher maximum penalty than the non-aggravated form.

Decision

The Court accepted that the sentencing judge may have made a slip in one passage, referring to a three-year threshold when the Jurisic guideline for dangerous driving causing grievous bodily harm specifies two years as the point below which a lesser sentence would be exceptional. That potential error was enough to warrant granting leave to appeal. The Court then reviewed the sentence afresh on its merits.

On reviewing the matter, Wood CJ at CL was not persuaded the sentence was excessive. The offence involved extremely serious injuries, a very high level of intoxication, significant speed, and a real risk to other road users despite the late hour. The applicant also had a prior conviction for high-range prescribed concentration of alcohol and multiple other traffic offences spanning four and a half years, which the Court held disqualified him from any claim to leniency.

The Court noted that the Jurisic guidelines were formulated in relation to the non-aggravated forms of dangerous driving offences, which carry lower statutory maxima. The present charge, aggravated dangerous driving causing grievous bodily harm under s 52A(4) of the Crimes Act, carries a maximum of eleven years. Following McKinney (1999), the Court confirmed the Jurisic starting points need to be proportionately increased for the aggravated versions of these offences.

The subjective factors identified by the sentencing judge, including the guilty plea, positive work history, genuine contrition, self-inflicted injuries and a drinking problem, were found to have been carefully and sympathetically considered. The Court also observed that relative youth and good character carry limited weight in serious dangerous driving cases, given the significant general deterrence component these offences must reflect.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Jurisic guideline that a sentence below two years for dangerous driving causing grievous bodily harm should be exceptional applies to the non-aggravated offence; the Court of Criminal Appeal confirmed in McKinney that starting points must be proportionately increased where the more serious aggravated form of the offence is charged.
  • A misdirection by a sentencing judge in citing the wrong Jurisic threshold figure may justify granting leave to appeal, even where the appeal is ultimately dismissed after a merits review.
  • Prior traffic convictions, including a previous high-range PCA offence, can operate to disqualify an offender from any claim to leniency at sentencing.
  • Relative youth and good character are of limited weight in serious dangerous driving cases, given the importance of general deterrence in that sentencing context.
  • Judicial Commission statistics on sentencing ranges are of limited utility where the sample size is small and there is inevitable variation in individual case circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 52A(1), (2), (3), and (4): offences of dangerous driving causing death or grievous bodily harm, and their aggravated equivalents.

Cases
- R v Jurisic (1998) 45 NSWLR 209 (NSW CCA): guideline judgment for dangerous driving offences.
- R v McKinney (1999) NSWCCA 51: application of Jurisic guidelines to aggravated offences.
- R v Howland (1999) 104 A Crim R 273: the Jurisic aggravating factors are not exhaustive.
- R v Kalanj (1997) 98 A Crim R 505: prior record and claims to leniency.
- R v Musumeci (NSWCCA, 30 October 1997): limited weight of youth and good character in dangerous driving sentencing.
- R v Bicheno (1999) NSWCCA 148: sentencing comparison case.
- R v Errington (1999) NSWCCA 18: sentencing comparison case.
- Dinsdale v The Queen (2000) HCA 54: the High Court's approach to appellate intervention in sentencing.