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Court of Criminal Appeal 27 October 2000

R v Turner

[2000] NSWCCA 455

Traffic & driving

Citation: R v Turner [2000] NSWCCA 455
Court: NSW Court of Criminal Appeal
Date: 27 October 2000
Judge(s): 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, contrary to s 52A(4) of the Crimes Act. The offence arose from an incident in Armidale on 4 November 1997, when the applicant drove a Ford Falcon utility after a lengthy drinking session with a companion. He lost control of the vehicle, which mounted the kerb and demolished approximately 25 metres of fence. His companion sustained a chin laceration and a fractured humerus requiring later surgery.

At hospital, the applicant recorded a blood alcohol reading of 0.194. He was an unlicensed driver at the time, having previously been disqualified following high range PCA convictions. He also had a subsequent unlicensed driving matter dealt with before this incident occurred.

District Court Judge Kirkham sentenced the applicant to three years imprisonment with a non-parole period of two years and three months. The applicant sought leave to appeal against the severity of that sentence.

  • Whether leave to appeal against sentence severity should be granted, given that the sentencing judge's reasons contained a misstatement of the principles in Jurisic
  • Whether, on a fresh review, the sentence was excessive having regard to the objective seriousness of the offence
  • Whether the applicant's subjective circumstances warranted any tempering of the sentence

Decision

The Court of Criminal Appeal granted leave to appeal because the sentencing judge's reasons contained the same misstatement of the decision in Jurisic identified in the companion case of Khan, decided the same day. The Court therefore undertook a fresh review of the sentence.

On objective seriousness, the Court identified multiple aggravating features: a very high level of intoxication, the speed at which the vehicle must have been travelling, the wet road conditions demanding extra caution, and the number of people potentially at risk. The Court held it was not satisfied that the sentence was set too high given the seriousness of the applicant's criminality, particularly as the offence was charged under the more serious form in s 52A(4).

On subjective circumstances, the Court acknowledged the applicant's plea of guilty, contrition, employment, family support, and his post-offence treatment for alcohol and aggression. However, the Court found that the sentencing judge had already given full and sympathetic weight to those factors. The applicant's prior driving record, including high range PCA convictions, previous disqualification, and a further unlicensed driving appearance before this offence, meant those subjective matters did not justify further reduction.

The Court also noted that general deterrence necessarily assumes prominence in cases of this kind, which limits the weight to be given to evidence of rehabilitation. Comparing the sentence with that in Khan, the Court found the difference between the two sentences sufficiently accounted for the lesser injuries suffered in this case. No error of the kind discussed in Dinsdale by the High Court was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a misstatement of Jurisic principles in sentencing reasons is sufficient to warrant granting leave and conducting a fresh review, even where the resulting sentence is ultimately upheld.
  • General deterrence assumes particular prominence in aggravated dangerous driving cases under s 52A(4) of the Crimes Act, which limits the mitigating weight available to evidence of post-offence rehabilitation and good character.
  • A combination of aggravating factors, including very high blood alcohol, excessive speed, wet road conditions, and multiple persons at risk, can together support a custodial sentence at the higher end even where significant subjective factors are present.
  • Prior convictions for high range PCA, prior disqualification, and a subsequent unlicensed driving matter were treated as evidence of scant regard for motoring responsibilities, reducing the force of the applicant's subjective case.
  • No error of the type identified in Dinsdale (High Court of Australia, 2000 HCA 54) was established, confirming that appellate intervention requires demonstration of identifiable legal error, not mere disagreement with the weight given to sentencing factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4) (aggravated dangerous driving occasioning grievous bodily harm)
- Crimes Act 1900 (NSW), s 556A (conditional discharge)

Cases
- R v Jurisic (principles on sentencing for dangerous driving offences, misapplied in the court below)
- R v Khan [2000] NSWCCA (companion appeal decided the same day)
- McKinney (qualification to Jurisic in the context of s 52A(4) offences)
- Dinsdale v The Queen [2000] HCA 54 (High Court authority on the threshold for appellate interference with sentence)