Citation: Regina v Pates [2001] NSWCCA 142
Court: New South Wales Court of Criminal Appeal
Date: 6 April 2001
Judge(s): O'Keefe J; Smart AJ
Background
The applicant pleaded guilty in the District Court to driving in a manner dangerous causing grievous bodily harm in circumstances of aggravation, an offence carrying a maximum penalty of 11 years imprisonment. He had stolen a car and, when followed by police, accelerated through a give-way sign and a red light at a busy suburban intersection at high speed, colliding heavily with another vehicle. The victim was trapped for 45 minutes and sustained a broken shoulder, five broken ribs, internal organ damage, and lacerations requiring 17 sutures.
Judge McGuire of the District Court sentenced the applicant to four years and six months imprisonment with a non-parole period of three years. The applicant sought leave to appeal that sentence on six grounds, appearing in person before the Court of Criminal Appeal.
Legal Issues
- Whether legal aid counsel had failed to present the case as instructed
- Whether the sentencing judge had improperly taken into account the applicant's failure to appear
- Whether an alleged defect in the stolen vehicle was relevant to the sentence
- Whether hardship to the applicant's three-year-old child and girlfriend warranted a reduction in sentence
- Whether alleged police tampering with video evidence was relevant to the sentencing appeal
- Whether the sentence was, in any event, excessive or failed to reflect an adequate discount for the guilty plea
Decision
The Court rejected each of the six grounds in turn. On the legal aid ground, no evidence was filed and the sentencing judge had expressly noted that counsel had comprehensively placed the applicant's instructions before the court. The grounds relating to the failure to appear were equally unsupported: the sentencing judge's reasons did not refer to any such failure adversely. The vehicle defect ground was dismissed as irrelevant, since the collision resulted from the applicant driving at high speed through a red light to evade police, not from any mechanical fault.
On the hardship ground, the Court confirmed that third-party hardship can reduce a sentence only where it is shown to be extreme or exceptional, and the onus rests on the applicant to establish that standard. Citing Gleeson CJ's observations in Queen v Edwards, the Court noted how difficult it is to meet that test, given how commonly imprisonment causes hardship to third parties. No evidence of exceptional hardship was presented, and the sentencing judge had already acknowledged the situation of the child and the child's mother. The video evidence ground was rejected as irrelevant to a severity appeal.
Although not raised expressly, the Court considered whether the sentence was disproportionate or whether the guilty plea discount was insufficient. The Court was satisfied the judge had acknowledged the plea and applied a discount, and that the sentence was substantially below the maximum. Describing the offending as involving a total disregard for the safety of bystanders, passengers, and other road users, the Court adopted the language from Queen v Jurisic that the applicant had "abandoned responsibility for his own conduct." The additional matters on the schedule were also not trivial and confirmed the sentence was not excessive.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Hardship to third parties, such as a child or partner, will justify a reduction in sentence only where that hardship is extreme or exceptional; the onus of establishing this lies on the applicant.
- Regrettably common hardship, such as the ordinary impact of imprisonment on family members, does not meet the exceptional threshold confirmed in Queen v Edwards.
- In dismissing all six grounds, the Court of Criminal Appeal found no identifiable error in the sentencing judge's approach to penalty, discount for a guilty plea, or treatment of mitigating factors.
- A sentence of four and a half years for dangerous driving causing GBH, where the offender had no current licence, was evading police, and caused serious injuries at a busy intersection, was held to be proportionate to the gravity of the offending.
- Unsupported assertions about legal representation, procedural irregularities, or evidentiary matters will not ground a severity appeal without evidence filed in support.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 51A
Cases:
- Queen v Edwards (1996) 19 ACR 510
- Queen v Jurisic (1998) 45 NSWLR 209