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Court of Criminal Appeal 21 March 2002

Regina v Justin Cram

[2002] NSWCCA 83

Assault & violenceTraffic & driving
FORM 1 MATTERS OPERATION OF R V JURISIC "SPECIAL CIRCUMSTANCES" EFFECT OF CUMULATIVE SENTENCE NO LESS SEVERE SENTENCE WARRANTED

Citation: Regina v Justin Cram [2002] NSWCCA 83
Court: New South Wales Court of Criminal Appeal
Date: 21 March 2002
Judge(s): Greg James J; Buddin J

Background

The applicant pleaded guilty in the District Court to two charges: driving in a dangerous manner causing grievous bodily harm under the Crimes Act, and driving a conveyance without the owner's consent. The dangerous driving charge arose from an incident on 31 March 2001 in which the applicant, driving a stolen vehicle while disqualified, entered the F6 freeway via an off-ramp travelling the wrong direction and drove approximately one kilometre against oncoming traffic, colliding with multiple vehicles. One victim, Mr Hook, suffered multiple compound fractures and had to be cut free from his car.

The applicant received a head sentence of three years and four months for the dangerous driving offence, with a non-parole period of thirty months. A further twelve months, with a nine-month non-parole period, was imposed cumulatively for the unauthorised use offence. The overall effect was a total head sentence of three years and six months, with a total non-parole period of three years and three months. Seven additional matters were taken into account on a Form 1, including prior offences of assaulting police and resisting arrest.

The applicant sought leave to appeal against the sentences, appearing in person. He had an extensive criminal history dating from age fourteen, including multiple prior convictions for dangerous driving, driving while disqualified, and vehicle theft.

  • Whether the sentences imposed were manifestly excessive given the applicant's personal circumstances, including a history of family dysfunction and recent bereavement
  • Whether a sufficient discount for the guilty pleas was applied, particularly where the Crown case was described as overwhelming
  • Whether special circumstances existed within the meaning of the relevant sentencing legislation to justify a different ratio between the head sentence and the non-parole period
  • Whether the cumulative structure of the sentences produced an overall result that was too severe

Decision

The Court granted leave to appeal but dismissed the appeal, finding no legal error in the sentences imposed by Hosking DCJ in the District Court. The sentencing judge had characterised the dangerous driving offence as alarming and of the utmost seriousness, a description the Court of Criminal Appeal did not disturb. The applicant's lengthy record, including repeat offences for dangerous driving and driving while disqualified, was a significant aggravating factor.

On the question of the guilty plea discount, the Court acknowledged that where the Crown case is overwhelming the discount available may be limited. The Court considered the application of R v Jurisic and the principles from R v Thomson and Houlton and R v Cameron, and was satisfied the sentencing judge had approached those principles correctly.

The Court also considered the applicant's personal circumstances, including the dysfunctional family background from which he had effectively raised himself from the age of fourteen, and the grief he continued to experience following his brother's death. While the Court acknowledged those circumstances with apparent sympathy, it held they did not disclose legal error sufficient to warrant intervention.

Greg James J noted that material relating to the applicant's rehabilitation efforts in custody, including participation in counselling and courses aimed at addressing alcohol dependency and anger management, had only become available after sentencing and therefore could not ground an error-based appeal. The Court observed that the existing sentence may, if anything, have been more lenient than intended, and concluded that no less severe sentence was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A discount for a guilty plea may be limited where the Crown case is overwhelming, and the Court of Criminal Appeal confirmed this principle was correctly applied at first instance in these circumstances.
  • Where mitigating factors such as personal grief and family dysfunction were already before the sentencing judge, the Court of Criminal Appeal will not intervene on appeal unless those factors were improperly weighed so as to constitute legal error.
  • Rehabilitation evidence that emerges only after sentencing cannot establish error in the original sentence, even where it appears genuinely positive.
  • In dismissing the appeal, the Court confirmed that the cumulative sentencing structure for the two charges did not produce an overall result that was manifestly excessive given the objective seriousness of the conduct.
  • Under the relevant sentencing framework, a claim of special circumstances relating to the parole period will not succeed where the overall non-parole period already reflects the particular circumstances of the offending and the offender's history.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), ss 52A(3)(c), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Cameron [2002] HCA 6
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Jurisic (cited in judgment text)