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Court of Criminal Appeal 9 December 2002

Regina v Ammar Elrifai

[2002] NSWCCA 496

HomicideTraffic & driving
SEVERITY APPEAL IMPACT OF R V WHYTE UPON R V JURISIC APPLICANT SUFFERED SEVERE INJURIES DECEASED WAS HIS BEST FRIEND.

Citation: Regina v Ammar Elrifai [2002] NSWCCA 496
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 2002
Judge(s): Bell J, Buddin J

Background

The applicant pleaded guilty in the District Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900. The aggravating circumstance was that he was driving to escape a police pursuit at the time of the fatal impact. The maximum penalty for the offence is fourteen years' imprisonment.

The circumstances were serious. Late at night in a 60 km/h residential zone, the applicant accelerated away from police, ran two red lights, and reached speeds exceeding 111 km/h. His vehicle became airborne for approximately 26 metres before he lost control and collided with a tree. His front-seat passenger, who was also his best friend, suffered fatal injuries.

The applicant himself sustained grave injuries, including a skull fracture, brain bruising, a fractured cervical vertebra, post-traumatic amnesia, deep vein thrombosis, and lasting psychological harm including post-traumatic stress disorder. He was sentenced in the District Court to four years' imprisonment with a non-parole period of two years, plus a three-year driving disqualification. He appealed on the ground that the sentence was excessive.

  • Whether the sentencing judge gave adequate weight to the applicant's severe personal injuries and ongoing medical and psychological conditions when determining the sentence.
  • Whether the death of the applicant's best friend, and the accompanying personal grief, warranted greater leniency.
  • Whether the decision in R v Whyte [2002] NSWCCA 343 had materially altered the numerical guideline established in R v Jurisic (1998) 45 NSWLR 209 in a way that required a reduction of the sentence in this case.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's exercise of discretion. The trial judge had expressly and carefully considered the applicant's serious physical and psychological injuries, finding that they would make the experience of imprisonment more onerous than for the general prison population. Her Honour had also taken account of the personal tragedy of the passenger's death and the applicant's other mitigating circumstances, including his youth, family situation, and the significant personal consequences of the accident.

On the question of the guideline judgments, Buddin J held that Whyte had not introduced any meaningful change to the numerical guideline in Jurisic that would affect the outcome in this case. The reformulated guideline in Whyte did not cease to apply simply because one or more of the factors commonly present in such cases was absent. The guideline remained a proper part of the sentencing process.

The Court also noted that the sentencing judge had explicitly described the case as "a very serious case indeed," given the applicant's decision to flee police and the manner of his driving. The substantial amelioration of the sentence, reflected in the ratio of the non-parole period to the head sentence, demonstrated that the sentencing judge had given appropriate weight to the mitigating factors. No miscarriage of the sentencing discretion was demonstrated.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that guideline judgments under s 37A of the Crimes (Sentencing Procedure) Act 1999 are "indicative only" and do not constrain the proper exercise of sentencing discretion in individual cases.
  • R v Whyte was found not to have made any meaningful alteration to the numerical guideline in R v Jurisic for aggravated dangerous driving causing death, at least in circumstances involving the aggravating feature of escaping a police pursuit.
  • A sentencing court is not required to depart significantly from guideline ranges merely because the offender suffered serious personal injuries in the same incident, provided those injuries are expressly taken into account as a mitigating consideration.
  • In dismissing the appeal, the Court treated the ratio between the non-parole period and the head sentence as a useful indicator that the sentencing judge had genuinely applied mitigating factors, rather than treating the total sentence as the only relevant measure.
  • Escaping a police pursuit at excessive speed, running red lights, and causing a passenger's death remained conduct warranting a sentence that adequately reflected community disapproval, even where several mitigating factors were present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37A

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343