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Court of Criminal Appeal 20 March 2002

Regina v Meyers

[2002] NSWCCA 116

Traffic & driving
SENTENCE APPEAL DANGEROUS DRIVING NO QUESTION OF PRINCIPLE.

Citation: Regina v Meyers [2002] NSWCCA 116
Court: New South Wales Court of Criminal Appeal
Date: 20 March 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant, a 21-year-old man from rural NSW, was convicted by a jury of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900, following a fatal collision on Kangarooby Road, Gooloogong. The jury found that he had been driving significantly on the wrong side of the road as he approached the crest of a hill, without any view of oncoming traffic. A motorcyclist travelling on the correct side of the road was killed in the resulting collision when the applicant's evasive action came too late.

The applicant had a prior driving record that weighed against him. He had previously been convicted of dangerous driving in the Cowra Children's Court in 1997, and the subject offence was committed only two months after his provisional licence was restored following that earlier disqualification.

At the District Court, Gibson DCJ sentenced the applicant to four years' imprisonment with a non-parole period of two years. The applicant sought leave to appeal that sentence in the Court of Criminal Appeal, while separately abandoning a related appeal against conviction.

  • Whether the head sentence of four years and the non-parole period of two years were within the sentencing discretion available to the District Court judge.
  • Whether the applicant's youth, psychological profile, and other personal circumstances warranted a reduction in the sentences imposed.
  • Whether the applicant's lack of remorse or acceptance of the jury's verdict was a factor properly considered in sentencing.

Decision

The Court of Criminal Appeal described the appeal as "troublesome" and one demanding "anxious consideration," particularly given the applicant's youth. Carruthers AJ acknowledged that the statistical material placed before the Court showed the sentences were towards the high end of the range for this offence, particularly in respect of the non-parole period.

The applicant's personal circumstances were examined carefully. A psychologist's report described him as having marked schizoid attributes, compulsive behavioural elements, and symptoms consistent with post-traumatic stress disorder, and raised concern about his vulnerability in custody. These matters were noted, but they did not displace the sentencing outcome.

The Court found that the applicant had not accepted the jury's verdict and maintained, even during sentence proceedings, that he had been driving safely and would not change how he drove that day. Although he expressed regret for the victim's death, the sentencing judge concluded he was sorry, and the Court did not disturb that finding. The applicant's prior bad driving record, while not a basis for increasing the sentence, meant he received no mitigation from a good driving history.

Having considered all submissions and the evidence, the Court was not persuaded that either the head sentence or the non-parole period fell outside the discretion available to Gibson DCJ. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.
  • Notice of abandonment of appeal against conviction noted; appeal against conviction dismissed.

Key Takeaways

  • A sentence at the high end of the range for dangerous driving occasioning death is not, without more, outside the proper exercise of sentencing discretion.
  • Under s 52A(1)(c) of the Crimes Act 1900, a prior bad driving record does not justify increasing a sentence, but it does deprive the offender of any mitigation that a good record would otherwise attract.
  • Where an applicant maintains after conviction that their driving was not dangerous and would not change their conduct, that attitude is a relevant consideration at sentencing, even where some degree of regret for the victim's death is also expressed.
  • Statistical sentencing data for comparable offences has a role in assessing whether a sentence is within range, but it is subject to the well-recognised qualifications that individual circumstances vary significantly between cases.
  • In dismissing the appeal, the Court confirmed that personal vulnerability in custody, youth, and psychological hardship, while matters warranting "anxious consideration," do not automatically bring a sentence outside the available discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c) (dangerous driving occasioning death; maximum penalty 10 years' imprisonment)

Cases:
- Regina v Jurisic (1998) 45 NSWLR 209