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Court of Criminal Appeal 24 April 2002

R .v. COOK

[2002] NSWCCA 140

Traffic & driving
CRIMINAL LAW SENTENCING

Citation: R v Cook [2002] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 24 April 2002
Judge(s): Spigelman CJ, Mason P, Barr J, Bell J, McClellan J (Barr J delivered the principal judgment; all others agreed)

Background

The applicant pleaded guilty in the District Court to driving in a manner dangerous to another person, causing grievous bodily harm, contrary to s 52A(3) of the Crimes Act 1900. The offence occurred on 21 May 1998 at Quakers Hill, when the applicant drove his vehicle at close to 100 km/h in a 60 km/h zone and collided with a car that had just reversed out of a parking space. The victim suffered serious and permanent injuries including brain damage, a ruptured spleen, and a fractured pelvis, and remains permanently incapacitated.

After the collision, the applicant fled the scene but shortly afterwards attended a police station and voluntarily admitted responsibility. His blood alcohol reading was 0.052 g per 100 mL. He was initially charged with the aggravated form of the offence (carrying a maximum of 11 years), but the Crown later accepted a plea to the unaggravated offence (maximum 7 years).

Payne DCJ in the District Court sentenced the applicant to 1 year and 10 months' imprisonment with a non-parole period of 12 months. The applicant sought leave to appeal, arguing that errors in the sentencing judge's reasoning and calculation warranted a lesser sentence.

  • Whether the sentencing judge misapplied the principles in R v Jurisic (1998) 45 NSWLR 209, including the "abandonment of responsibility" concept
  • Whether R v Jurisic remained good law following the High Court's decision in Wong and Leung v The Queen [2001] HCA 64
  • Whether the sentencing judge erred in the mechanics of calculating the discount for the guilty plea, including a mathematical error in adjusting the starting point
  • Whether, even if error were established, a less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

Barr J (with whom the full Court agreed) found it unnecessary to resolve whether R v Jurisic had been implicitly undermined by Wong and Leung, or to make any final determination about the precise method used to calculate the head sentence. The Court identified one patent arithmetic error in the sentencing judge's calculation (increasing the starting point by one-tenth rather than one-ninth to account for an assumed prior plea discount), but characterised this as a minor matter.

The Court held that, even accepting every submitted error in the applicant's favour, no lesser sentence was warranted. Barr J expressed the view that the sentencing judge's conclusion that the applicant had not "abandoned responsibility" for his conduct was not open on the facts. Driving at close to 100 km/h in a 60 km/h zone near a railway station, shortly after 6:00 pm on a weekday and after sunset, was characterised as highly dangerous. Combined with the grave and permanent injuries sustained by the victim, the conduct was described as a very serious example of the offence.

The Court also clarified an important principle of appellate jurisdiction. Even where sentencing error is demonstrated, the Court of Criminal Appeal is not obliged to interfere and impose a lesser sentence. Under ss 5(1)(c) and 6(3) of the Criminal Appeal Act 1912, read in light of Neal v The Queen (1982) 149 CLR 305, the Court must dismiss a sentence appeal unless it concludes that a less severe sentence is actually warranted in law. The sentence of 1 year and 10 months was, in the Court's opinion, in fact lenient given the circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Even where a sentencing judge commits an identifiable error, the Court of Criminal Appeal will not substitute a lesser sentence unless it concludes a less severe sentence is actually warranted in law under the Criminal Appeal Act 1912. Demonstrating error alone is insufficient to compel intervention.
  • Upholding the sentence, the Court characterised 1 year and 10 months as lenient in circumstances involving driving at nearly 100 km/h in a 60 km/h zone at a busy time of day, with catastrophic and permanent consequences for the victim.
  • A finding that an offender did not "abandon responsibility" for dangerous conduct (within the Jurisic framework) does not preclude the imposition of a full-time custodial sentence, particularly where the degree of resulting harm is severe.
  • The Court left unresolved whether R v Jurisic survived the High Court's decision in Wong and Leung v The Queen, declining to decide the question where the appeal could be disposed of on other grounds.
  • Minor arithmetic errors in sentencing calculations will not necessarily produce a different outcome on appeal if the ultimate sentence falls within an appropriate range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Jurisic (1998) 45 NSWLR 209
- Wong and Leung v The Queen [2001] HCA 64
- Neal v The Queen (1982) 149 CLR 305
- R v Simpson [2001] NSWCCA 534