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Court of Criminal Appeal 13 August 2001

R v Park

[2001] NSWCCA 313

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCING S52A OF CRIMES ACT NO QUESTION OF PRINCIPLE

Citation: R v Park [2001] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 13 August 2001
Judge(s): Wood CJ at CL; Sperling J

Background

On Christmas Day 1999, the applicant lost control of his vehicle while intoxicated, colliding first with another car and then with a tree. Two passengers in his vehicle sustained grievous bodily harm as a result. The applicant's blood alcohol concentration was between 0.148 and 0.170 grams per 100 millilitres of blood, a level at which uncontradicted expert evidence confirmed all persons would suffer impaired driving ability.

The applicant pleaded guilty to two charges under section 52A(3) of the Crimes Act 1900 (NSW), one for each injured passenger. That provision concerns dangerous driving occasioning grievous bodily harm where the driver was under the influence of intoxicating liquor, and carries a maximum penalty of seven years' imprisonment.

In the District Court, his Honour Sorby DCJ sentenced the applicant to two years' imprisonment with a non-parole period of one year. The applicant sought leave to appeal to the Court of Criminal Appeal, contending that insufficient weight was given to subjective factors in his favour.

  • Whether the sentencing judge gave sufficient weight to subjective factors, particularly that a custodial sentence would be the applicant's first time in prison.
  • Whether the sentencing judge should have given weight to the fact that the injured passengers may have knowingly entered a vehicle driven by an intoxicated person.
  • Whether the sentence imposed was consistent with the guidelines established in Jurisic (1998) 45 NSWLR 209 for offences under section 52A of the Crimes Act.

Decision

The Court of Criminal Appeal applied the Jurisic sentencing guidelines, which provide that a non-custodial sentence for a section 52A offence should be exceptional and generally confined to cases of momentary inattention or misjudgment. Where an aggravating factor involving the offender's conduct is present to a material degree, a total custodial sentence of less than two years for dangerous driving causing grievous bodily harm should also be exceptional.

The sentencing judge found that the applicant's degree of intoxication indicated he had abandoned responsibility for his conduct. That finding was not challenged on appeal and could not have been. Accordingly, the Court confirmed that Jurisic guideline (2) was correctly applied by the sentencing judge.

The Court rejected the applicant's arguments about subjective factors. It observed that this type of offence is commonly committed by young men of otherwise unblemished character, that a first custodial sentence is not exceptional for this offence, and that the possibility of the passengers' awareness of the applicant's intoxication is also not exceptional. Neither that factor alone, nor all factors in combination, took the case outside the ordinary range. The Court found the two-year sentence was as lenient as the guidelines permitted, and that the non-parole period of one year already reflected a generous allowance for special circumstances.

On one technical point, the Court noted that the sentencing judge had framed the order as a "recommendation" that the applicant be released at the expiration of the non-parole period. The Court held that the order should have been framed as a direction for release, given the duration of the sentence. The sentencing order was varied accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • The sentencing order was varied: the recommendation for the applicant's release at the expiration of the non-parole period was replaced with a direction for release at that time.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Jurisic guidelines apply where the degree of a driver's intoxication indicates an abandonment of responsibility for conduct, making that factor an aggravating circumstance for sentencing purposes under section 52A of the Crimes Act.
  • A combination of favourable subjective factors (good character, first imprisonment, and the possible awareness of passengers as to the driver's condition) does not automatically render a case exceptional under the Jurisic framework if none of those factors is itself uncommon for the offence.
  • Where injured passengers may have entered a vehicle knowing the driver was intoxicated, that consideration does not, on its own or in combination with other factors, bring a case below the custodial threshold established by Jurisic.
  • Sentencing courts must direct an offender's release at the expiration of the non-parole period where the sentence length entitles the offender to release; framing such an order as a mere recommendation is an error that requires correction.
  • In dismissing the appeal, the Court signalled that two years' imprisonment for this category of offence, with a plea of guilty and a blood alcohol level in the range established here, represents the lower boundary of what the guidelines permit.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 52A (dangerous driving occasioning grievous bodily harm)

Cases:
- Jurisic (1998) 45 NSWLR 209 (NSW Court of Criminal Appeal sentencing guidelines for section 52A offences)