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Court of Criminal Appeal 27 February 2003

Regina v Vukic

[2003] NSWCCA 13

Traffic & driving

Citation: Regina v Vukic [2003] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 27 February 2003
Judge(s): Adams J; Smart AJ

Background

The appellant was convicted of aggravated dangerous driving causing death following an incident involving a blood alcohol reading of 0.172, excessive speed, and crossing double yellow lines. He had a poor traffic record but presented with strong subjective features, including genuine remorse, steps taken to address alcohol and drug dependency, and serious ongoing physical injuries. The sentencing judge in the District Court imposed a head sentence of 8 years' imprisonment.

The Crown appealed on sentence, and the matter came before the Court of Criminal Appeal. The central question was whether the sentence of 8 years was consistent with the established pattern of sentencing for offences of comparable gravity.

  • Whether the sentence of 8 years imposed by the District Court was manifestly excessive for an offence characterised as a bad case but not the worst type of aggravated dangerous driving causing death.
  • Whether sentencing judges are required to have regard to the prevailing pattern of sentences for comparable offences when exercising their discretion.
  • Whether special circumstances justified a modified ratio between the non-parole period and the head sentence.

Decision

The Court of Criminal Appeal found the 8-year head sentence to be manifestly excessive and out of kilter with the established pattern of sentences for this category of offence. Reviewing comparable cases decided by the Court, Smart AJ concluded that a head sentence of 7 years appropriately reflected the combination of aggravating factors, including the high blood alcohol level, the dangerous manner of driving, and the poor traffic history, balanced against the appellant's strong subjective case.

Adams J used the occasion to address a view that had apparently been circulating: that reference to sentencing patterns by sentencing judges is wrong or contrary to the public interest. His Honour emphatically rejected that view. Quoting from the High Court in Wong v The Queen and the Court of Criminal Appeal in R v Jurisic, Adams J reaffirmed that consistency in sentencing is a fundamental element of equal justice and the rule of law. Idiosyncratic sentencing, unchecked by reference to comparable decisions, risks producing arbitrary and capricious outcomes that undermine public confidence in the administration of justice.

Adams J also addressed a second misconception: that reference to sentencing patterns operates to lower sentences overall. His Honour rejected this as both logically and factually wrong, noting that a sentence below the established range should be increased just as readily as an excessive sentence should be reduced. The factual record demonstrated that sentences across most offences in NSW had risen substantially over recent decades.

On special circumstances, the Court accepted that the appellant's ongoing medical problems, the uncertainty around his physical recovery, and the need for extended rehabilitation provided sufficient basis to adjust the non-parole period. This was the appellant's first custodial sentence.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; sentence quashed.
  • The appellant sentenced to 7 years' imprisonment commencing 18 July 2002 and ending 17 July 2009, with a non-parole period of 4 years commencing 18 July 2002 and ending 17 July 2006.

Key Takeaways

  • Consistency in sentencing is a fundamental principle of equal justice, not a technicality. The Court of Criminal Appeal confirmed that sentencing courts are not only permitted but required to have regard to the established pattern of sentences for comparable offences.
  • A sentence that sits outside the prevailing range for offences of equivalent culpability is liable to correction on appeal, whether it is too high or too low.
  • The Court of Criminal Appeal rejected the proposition that reference to sentencing patterns depresses sentences, finding it wrong both logically and as a matter of empirical fact about sentencing trends in NSW.
  • Where a case is serious but does not represent the worst category of an offence, the sentence must be calibrated accordingly, with careful attention to both aggravating factors and strong subjective features.
  • Special circumstances justifying a modified non-parole period can include ongoing medical conditions, physical rehabilitation needs, and the fact that a sentence is the offender's first period of full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Justices Act 1902 (NSW)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- Wong v The Queen; Leung v The Queen (2002) 76 ALJR 79
- Griffiths v The Queen (1977) 137 CLR 293
- Lowe v The Queen (1984) 154 CLR 606
- The Queen v de Simoni (1981) 147 CLR
- R v Whyte [2002] NSWCCA 343
- R v Cousins [2002] NSWCCA 81
- R v Hawkins [2002] NSWCCA 380
- R v Rayner [2002] NSWCCA 309
- R v Woodward [2001] NSWCCA 90
- R v Kalati [2001] NSWCCA 268
- R v Tadman [2001] NSWCCA 225
- R v Khan [2000] NSWCCA 454
- R v Hanlon [2000] NSWCCA 55
- R v Jaworowski (1999) 108 A Crim R
- R v McKinney [1999] NSWCCA 51
- R v Sen [1999] NSWCCA 199
- R v Black CCA (unrep) 23/7/98
- R v Hill CCA (unrep) 4/12/98
- R v McDonald CCA (unrep) 12/10/98
- R v Kalanj 98 A Crim R 505
- Nydam v The Queen [1977] VR 430
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Buttsworth [1983] 1 NSWLR
- Attorney General v Bindoff (1953) 53 SR (NSW)