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Court of Criminal Appeal 16 November 2001

R v Dunlop

[2001] NSWCCA 435

Traffic & driving
CRIMINAL LAW APPEALS CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY LENIENT DANGEROUS DRIVING CAUSING DEATH DRIVING WHILST INTOXICATED

Citation: R v Dunlop [2001] NSWCCA 435
Court: NSW Court of Criminal Appeal
Date: 16 November 2001
Judge(s): Wood CJ at CL; Studdert J; Bell J

Background

The respondent, a 21-year-old horse trainer with no prior criminal history, pleaded guilty to dangerous driving causing death and dangerous driving causing grievous bodily harm, both offences committed while under the influence of alcohol. The charges arose from a morning collision on a rural road near Harden in June 2000, in which an 11-year-old passenger was killed and the driver of the other vehicle suffered serious injuries including a fractured sternum and fractured pelvis.

The respondent had been drinking the previous evening and had arranged for his vehicle to be left elsewhere so he would not drive. He collected it the following morning after sleeping for several hours and eating. His blood alcohol concentration at the time of the collision was estimated at no less than 0.126 grams per 100 millilitres, more than twice the legal limit. The agreed statement of facts indicated he probably fell asleep at the wheel and that there was no evidence he had abandoned responsibility for his conduct.

The District Court sentenced the respondent to three years imprisonment with a non-parole period of twelve months on each count, to be served by way of periodic detention. The Director of Public Prosecutions appealed, contending the sentences were manifestly lenient.

  • Whether the sentences imposed were manifestly lenient given the objective seriousness of the offences and the guideline judgment in R v Jurisic
  • Whether the sentencing judge gave undue weight to the respondent's favourable subjective circumstances at the expense of general deterrence and moral culpability
  • Whether periodic detention was a legally available sentencing option for offences of this nature
  • Whether the statutory ratio between the non-parole period and the head sentence was correctly applied, and whether special circumstances had been properly identified
  • Whether, given the principles of double jeopardy and the respondent's conduct during sentence, the Court of Criminal Appeal should exercise its discretion to intervene

Decision

Wood CJ at CL (with whom Studdert J and Bell J agreed) held that the sentencing judge had erred in a number of respects. The sentencing judge's assessment of the respondent's objective criminality was considered inappropriately benign: a person with a blood alcohol level more than twice the legal limit could not credibly be unaware of his unfitness to drive, regardless of whether he had taken steps earlier in the evening to avoid driving. The sentences failed to adequately reflect either the gravity of the offending or the need for general deterrence, which carries particular weight in dangerous driving cases.

The Court also found error in the sentencing judge's treatment of special circumstances. The reason given for departing from the statutory ratio between the non-parole period and head sentence was that the respondent would need extra support if serving time in full-time custody. Wood CJ at CL noted that this reasoning was logically inconsistent with a periodic detention order, since the respondent was not in fact serving a full-time custodial sentence. Favourable subjective circumstances are not properly deployed to reduce the non-parole period by way of a special circumstances finding; they are better addressed in fixing the head sentence or determining the mode of serving it.

On the question of whether periodic detention was available at all for these offences, the Court found that the sentencing judge had indeed erred in imposing periodic detention, a point that supported intervention. However, the Court then considered the principles of double jeopardy and the additional material showing that the respondent had responded admirably to periodic detention and community service. The Crown also made concessions relevant to the exercise of the Court's discretion.

Balancing these factors, the Court declined to impose full-time custody or to increase the head sentence. Instead, it intervened to the limited extent of restoring a proper ratio between the non-parole period and the head sentence, increasing the non-parole period from twelve months to two years (reduced from the two years and three months otherwise indicated, to reflect community service already performed). The Court observed that even this limited intervention would underscore the general deterrence element that had been lacking in the original sentence.

Orders Made

  • Appeal allowed
  • Non-parole period increased to two years, to date from 11 April 2001
  • Respondent to be released on parole at the end of the two-year non-parole period

Key Takeaways

  • A blood alcohol concentration more than twice the legal limit is a significant objective factor in assessing moral culpability for dangerous driving offences, and prior steps taken to avoid driving do not eliminate that culpability once the decision to drive is made.
  • General deterrence carries considerable weight in sentencing for dangerous driving causing death and grievous bodily harm, and sentences that insufficiently reflect this element may be found manifestly lenient.
  • Under the statutory framework considered in this decision, periodic detention was not a properly available sentencing option for offences of this character, constituting an error of law that grounded appellate intervention.
  • Favourable subjective circumstances are not a proper basis for invoking special circumstances so as to reduce the non-parole period; they are more appropriately reflected in the head sentence or in determining how it is served.
  • In dismissing the possibility of a more substantial increase, the Court of Criminal Appeal applied double jeopardy principles and took into account the respondent's conduct during sentence, limiting its intervention to correcting the non-parole period ratio rather than imposing full-time custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(1)(a), 52A(3)(a)
- Crimes (Sentencing Procedure) Act (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Jurisic (1998) 45 NSWLR 19 (guideline judgment on dangerous driving sentencing)
- Everett v The Queen (1994) 181 CLR 295 (double jeopardy on Crown appeals)
- Dinsdale (2000) 74 ALJR 1538 (double jeopardy principles)
- Lett (NSW Court of Criminal Appeal, 27 March 1995) (special circumstances and non-parole periods)