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Court of Criminal Appeal 30 March 2001

R v Kilborn

[2001] NSWCCA 116

Traffic & driving
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SENTENCE IMPOSED MANIFESTLY EXCESSIVE

Citation: Kilborn v R [2001] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 30 March 2001
Judge(s): Wood CJ at CL; Greg James J

Background

The appellant pleaded guilty in the District Court to dangerous driving occasioning grievous bodily harm under s 52A(3)(a) of the Crimes Act 1900, on the basis of intoxication. The offence arose from an early morning incident in Sydney during which the appellant's vehicle struck a pedestrian standing in the roadway, causing catastrophic and permanent brain injury, as well as injuring at least one other driver before the vehicle came to rest. The appellant fled the scene but later surrendered to police.

Judge Shadbolt of the District Court sentenced the appellant to three years imprisonment with a non-parole period of two years. The appellant sought leave to appeal, challenging both the factual basis on which the sentence was imposed and the overall length of the sentence.

  • Whether the sentencing judge erred by taking into account a witness's speed estimate that had been deliberately excluded from the tendered statement of facts and was not in evidence before him.
  • Whether the resulting sentence of three years imprisonment with a two-year non-parole period was manifestly excessive, having regard to the sentencing framework for dangerous driving offences established in Jurisic and the appellant's subjective circumstances.

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had impermissibly relied on a witness statement estimating the appellant's speed at 100 km/h. That statement had been expressly removed from the tendered statement of facts, and both counsel had drawn this to the judge's attention during proceedings. The statement of facts recorded the appellant travelling at 70 km/h in a 60 km/h zone, and the dangerous driving charge was prosecuted on the basis of intoxication rather than dangerous speed. The appellant was entitled to be sentenced on the version of events actually in evidence.

The sentencing judge's remarks during proceedings suggested he disbelieved the lower speed figure, yet he made no clear finding on the point when imposing sentence. The Court held this was unsatisfactory. Where reliance on the higher speed could not be supported by the evidence before the judge, proceeding as though it were established constituted error.

On the second ground, the Court held the sentence was manifestly excessive when assessed against the Jurisic guideline framework, which required close attention to the presence or absence of identified mitigating and aggravating factors. The Court found that special circumstances existed warranting a greater portion of the sentence being served on parole, pointing to the appellant's high degree of remorse, his young age, a complex personal history including exposure to sexual abuse and susceptibility to reactive depression, justifiable concerns about his safety in custody, and the need for psychological treatment and rehabilitation.

The Court also noted a technical error: for sentences not exceeding three years, s 50 of the Crimes (Sentencing Procedure Act) 1999 required the judge to direct the offender's release at the end of the non-parole period, which had been overlooked.

Orders Made

  • Appeal allowed.
  • Original sentence quashed.
  • New sentence imposed: two and a half years imprisonment commencing 22 May 2000, with a non-parole period of 15 months expiring 21 August 2001, with a direction that the appellant be released at the end of that non-parole period.

Key Takeaways

  • A sentencing court cannot act on factual material that has been excluded from evidence, even where that material was available in an untendered statement, and even where the judge expresses scepticism about the offender's own account of the same facts.
  • Where competing versions of a material fact exist, the sentencing judge must make an explicit finding rather than leaving the position unresolved, particularly where the discrepancy could significantly affect the sentence.
  • The Jurisic guideline judgment requires sentencing courts dealing with dangerous driving offences to identify and weigh each listed mitigating and aggravating factor with precision; a failure to do so adequately may ground a finding that the sentence is manifestly excessive.
  • Subjective factors, including remorse, personal history, psychological vulnerability, and rehabilitation prospects, can collectively constitute special circumstances justifying a longer parole period relative to the non-parole period.
  • Under s 50 of the Crimes (Sentencing Procedure Act) 1999, a court imposing a sentence of three years or less must make an order directing the offender's release at the expiration of the non-parole period; omitting this order is an error requiring correction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment on sentencing for dangerous driving offences, applied)
- R v Boswell (referred to within Jurisic for the list of mitigating and aggravating factors)