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Court of Criminal Appeal 13 November 2002

R v BURKE

[2002] NSWCCA 456

Traffic & driving
SENTENCE APPEAL DELIBERATE AND GRAVE CONDUCT NO AUTOMATIC FULL DISCOUNT.

Citation: R v Burke [2002] NSWCCA 456
Court: Court of Criminal Appeal, New South Wales
Date: 13 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The applicant, a nineteen-year-old learner driver, pleaded guilty in the District Court to dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c) of the Crimes Act 1900. On the night of the offence, he drove with three passengers, without a licensed supervising driver, at approximately 80 km/h in a 50 km/h zone on a wet and rough road, having consumed three schooners of beer in under an hour. He lost control after overtaking another vehicle on the wrong side of the road, colliding with a power pole, a rock wall, and a tree.

One passenger, Ms Turnbull, suffered severe facial lacerations requiring plastic surgery and pelvic fractures requiring bed rest. At the time of sentencing, visible facial scarring remained, and further revisionary surgery was possible. The applicant sustained only minor injuries.

English DCJ in the District Court sentenced the applicant to 18 months imprisonment with a non-parole period of 13 months and two weeks, together with a 12-month driving disqualification. The applicant sought leave to appeal on four grounds, contending the sentence was manifestly excessive.

  • Whether the sentencing judge incorrectly applied the principles from R v Khatter [2000] NSWCCA 32 regarding gradations of moral culpability in dangerous driving offences
  • Whether the sentencing judge erred in applying only a 17 per cent discount for the guilty plea rather than the 20 to 25 per cent the applicant contended was appropriate
  • Whether the sentencing judge erred in declining to find "special circumstances" to reduce the statutory minimum non-parole period below three-quarters of the head sentence
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

Application of Khatter: The Court found no error in the sentencing judge's application of Khatter. The offence was not one of momentary inattention. The applicant made a deliberate decision to drive while intoxicated and unlicensed, at excessive speed in poor conditions, with passengers. The sentencing judge correctly identified a high degree of moral culpability and correctly emphasised general deterrence, noting an escalation in such offences before the courts.

Discount for guilty plea: The Court acknowledged that a discount of up to 25 per cent could have been available, and the Crown conceded as much. However, a 17 per cent discount remained within the available range. Importantly, the Court reiterated that the two-year starting point from R v Jurisic is the starting point after a plea of guilty, not before. Because the conduct was deliberate and grave, the sentencing judge was not required to apply the maximum available discount. No error was established on this ground.

Special circumstances: The Court found no error in the refusal to find special circumstances justifying a reduction below the statutory three-quarter ratio between non-parole period and head sentence. The sentence was relatively short (actual time to be served of approximately 13.5 months), and reducing it further would have produced a period of actual imprisonment inadequate to reflect the objective seriousness of the offence. Special circumstances are not assessed automatically; there must be something specific to the individual case that justifies departure from the statutory minimum ratio.

Manifest excess: The sentence was found to be within the guidelines set by Jurisic and reformulated by R v Whyte [2002] NSWCCA 343. The Court confirmed that favourable subjective factors, including youth and good character, must not be permitted to give inadequate weight to the objective circumstances of the offence. A custodial sentence was plainly required, and the sentence imposed was reasonably proportionate to those circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The two-year starting point from R v Jurisic for dangerous driving occasioning grievous bodily harm applies after a guilty plea has been taken into account, not before the discount is applied.
  • A discount for a guilty plea is not automatic at the maximum rate of 25 per cent. Where the conduct is deliberate and grave, a sentencing court retains discretion to apply a lesser discount within the established range of 10 to 25 per cent.
  • Favourable subjective circumstances, such as youth, good character, genuine remorse, and absence of prior convictions, carry limited weight when the objective seriousness of the offence is high, as confirmed by R v Muscumeci.
  • Special circumstances justifying a reduction in the non-parole period below three-quarters of the head sentence are not established merely because an offender is serving their first term of imprisonment. The shortness of a sentence may itself be a reason to decline such a finding.
  • In dismissing the appeal, the Court confirmed that general deterrence remains a significant sentencing consideration in dangerous driving cases characterised by deliberate risk-taking rather than momentary inattention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedures) Act 1999 (NSW), s 44
- Road Transport (General) Act 1999 (NSW), s 25(1)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Khatter [2000] NSWCCA 32
- R v Whyte [2002] NSWCCA 343
- R v Muscumeci (NSWCCA, unreported, 30 October 1997)