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Court of Criminal Appeal 19 June 2002

Regina v LEE

[2002] NSWCCA 236

Also reported as (2002) 131 A Crim R 209
Traffic & driving
CRIMINAL LAW WHERE PLEA OF GUILTY

Citation: Regina v LEE [2002] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 19 June 2002
Judge(s): Spigelman CJ, Mason P, Barr J, Bell J, McClellan J

Background

The applicant pleaded guilty in the District Court to one charge of aggravated dangerous driving occasioning grievous bodily harm under s 52A(4) of the Crimes Act 1900. The aggravating circumstance was a blood alcohol concentration of 0.190 g per 100 mL, well above the prescribed threshold. In the early hours of 2 October 2000, he drove through a red light on Canterbury Road, Sydney, and collided with a motorcyclist who suffered serious injuries including a broken pelvis, leg, elbow, and wrist.

The applicant had two prior high-range drink-driving convictions, but both were more than a decade old. Significantly, his only child had been murdered in a gang attack in October 1998, and psychiatric evidence indicated the applicant was suffering from a Bereavement Reaction with Abnormal Features, including depression. The sentencing judge at the District Court accepted that the resumption of his drinking habits was causally connected to that tragedy, and described the subjective circumstances as compelling.

The District Court sentenced the applicant to three years' imprisonment with an 18-month non-parole period. The applicant sought leave to appeal on the basis that the sentencing judge had failed to apply a discount for the utilitarian value of his guilty plea.

  • Whether the sentencing judge took into account the utilitarian value of the guilty plea when imposing the sentence
  • Whether the three-year head sentence was an appropriate starting point given the subjective circumstances
  • Whether the non-parole period, set at 50 percent of the head sentence, was justified

Decision

The Court of Criminal Appeal found that the sentencing judge had not applied any discount for the utilitarian value of the guilty plea. Spigelman CJ concluded that a 25 percent discount was appropriate, reducing the head sentence from three years to two years and three months. The Court noted that failing to factor in the utilitarian value of a plea where one has been entered constitutes a sentencing error that warrants appellate intervention.

On the starting point of three years, the Court agreed this was appropriate given all the circumstances, particularly the high degree of intoxication and the need for general deterrence in offences of this character. The applicant's compelling subjective case, including the tragic loss of his son and his prospects for rehabilitation, had already been factored into that starting point by the original sentencing judge.

Regarding the non-parole period, the Court observed some uncertainty as to whether all of the matters cited by the sentencing judge truly constituted special circumstances sufficient to justify the degree of departure from the statutory ratio. However, the Court declined to alter the proportion, invoking the principle of double jeopardy, which cautions against imposing a harsher outcome on a re-sentencing that is unfavourable to the applicant in any respect.

The Court also noted that additional material before it on appeal, including the particularly harsh circumstances of the applicant's incarceration (he had been held in proximity to a person charged with his son's murder), reinforced the appropriateness of the reduced sentence.

Orders Made

  • Leave to appeal against sentence granted and appeal allowed
  • Original sentence quashed; applicant re-sentenced to imprisonment for two years and three months, commencing 10 May 2001 and expiring 9 August 2003, with a non-parole period of one year, one month and two weeks, expiring 24 June 2002
  • Three-year driving disqualification from 17 May 2001 affirmed

Key Takeaways

  • A sentencing court's failure to apply any discount for the utilitarian value of a guilty plea constitutes an error justifying appellate intervention, even where the court has otherwise engaged in detailed and careful sentencing reasoning.
  • The Court of Criminal Appeal confirmed that a 25 percent discount for the utilitarian value of a plea was appropriate on the facts, reducing a three-year starting point to two years and three months.
  • Under the Jurisic guideline, the two-year custodial starting point for dangerous driving offences is a floor, not a ceiling, and must be proportionately adjusted upward for aggravated offences under s 52A(4), where the maximum penalty is eleven years.
  • Compelling subjective circumstances, including serious psychiatric illness causally connected to a profound personal tragedy, can influence the sentencing starting point but do not displace the need to separately account for a guilty plea discount.
  • The principle of double jeopardy operates on re-sentencing to prevent the Court from imposing a result that is, in any respect, more adverse to the applicant than the original sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4) (aggravated dangerous driving occasioning grievous bodily harm)

Cases
- R v Jurisic (1998) 45 NSWLR 209 (NSW CCA guideline judgment on dangerous driving sentences)
- R v Thomson (2000) 49 NSWLR 383
- R v Sharma [2002] NSWCCA 142
- Wong v The Queen [2001] HCA 64; 76 ALJR 79
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Dodd (1991) 57 A Crim R 349