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Court of Criminal Appeal 8 February 2001

R v King

[2001] NSWCCA 18

Traffic & driving
CRIMINAL LAW AND PROCEDURE APPEAL BY CROWN AGAINST SENTENCE CRIMES ACT 1900, S52A(4) CRIMINAL APPEAL ACT 1912, S5D

Citation: R v King [2001] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 8 February 2001
Judge(s): Sheller JA, Grove J, Kirby J

Background

The respondent pleaded guilty to aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900. The aggravating circumstance was a blood alcohol reading well within the high range, recorded at .273 approximately one hour after the collision. The maximum penalty for the offence is eleven years imprisonment.

The incident occurred on a narrow bridge in Taree. While driving across it, the respondent bent down to retrieve a lit cigarette he had dropped, taking his eyes below dashboard level. His vehicle struck the kerb, veered, and collided head-on with an oncoming car. The passenger in that car suffered severe and lasting injuries; the driver was also injured but less seriously.

The respondent had prior drink-driving convictions from 1988 and 1989, though none since. He had voluntarily attended a residential alcohol treatment course and had strong employment references. The District Court sentenced him to two years imprisonment to be served by periodic detention. The Crown appealed, contending that sentence was manifestly inadequate.

  • Whether a sentence of periodic detention was appropriate for an offence of aggravated dangerous driving causing grievous bodily harm, given the aggravating features present
  • Whether the sentencing judge correctly characterised the driving as involving "momentary inattention or misjudgment" within the meaning of the Jurisic guideline judgment
  • Whether, if error were established, the Court of Criminal Appeal should exercise its discretion to re-sentence

Decision

The Court of Criminal Appeal held that the sentencing judge had erred by categorising the respondent's conduct as mere momentary inattention or misjudgment. The conduct went beyond that category. The respondent drove while carrying a very high blood alcohol level, and then compounded that by taking his eyes off the road on a narrow bridge with oncoming traffic. The combination of these factors placed the offence in a more serious class.

The Court found that the sentencing judge had not given adequate weight to general deterrence, which is a particularly important consideration in offences of this kind. The Jurisic guideline makes clear that non-custodial sentences should be exceptional and almost always confined to cases of momentary inattention or misjudgment. Even within that category, full-time custody is not automatically excluded, and here the offending carried additional aggravating features that called for a custodial response.

The Court exercised its discretion to re-sentence, taking into account the respondent's subjective circumstances, including his employment record, alcohol treatment efforts, the double jeopardy inherent in a Crown appeal, and his early guilty plea. The Court also found special circumstances justifying a departure from the standard ratio of non-parole to total sentence, noting that the respondent had never previously been imprisoned and would benefit from an extended period of supervised parole to support rehabilitation.

Orders Made

  • Appeal allowed
  • Sentence imposed below quashed
  • Respondent sentenced to two years imprisonment commencing 8 September 2000, with a non-parole period of twelve months
  • Respondent to be released on parole on 7 September 2001
  • Disqualification order made by the sentencing judge affirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Jurisic guideline requires non-custodial sentences for dangerous driving offences to be exceptional, and that driving with a very high blood alcohol level cannot readily be treated as mere "momentary inattention or misjudgment."
  • A combination of aggravating factors, here serious intoxication and inattention on a narrow bridge, can take an offence outside the limited category where periodic detention remains appropriate.
  • Insufficient weight given to general deterrence is a recognised basis for appellate intervention in sentencing for offences of this nature.
  • Special circumstances justifying a reduced non-parole period may exist where an offender has never previously served a custodial sentence and is actively engaged in rehabilitation programs.
  • In re-sentencing following a successful Crown appeal, the double jeopardy suffered by the respondent in being sentenced twice for the same offence is a relevant factor to be weighed in the overall assessment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Jurisic (1998) 45 NSWLR 209 (guideline judgment for dangerous driving offences)
- R v Tomson [1999] NSWCCA 308
- R v Guilfoyle (1973) 57 Cr App R 549
- R v Wegener [1999] NSWCCA 405
- R v Khatter [2000] NSWCCA 32
- Dinsdale v The Queen (2000) 74 ALJR 1538
- Everett v The Queen (1994) 181 CLR 295
- Howland (1999) 104 A Crim R 273
- R v Pelho (unreported, NSWCCA, 1 August 1997)
- House v The King (1936) 55 CLR 499