Citation: R v Collins [2003] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 1 September 2003
Judge(s): Dunford J; Greg James J
Background
The appellant pleaded guilty in the District Court at Gosford to one count of dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900, which carries a maximum sentence of seven years. The offending arose from a late-night confrontation on the Central Coast in January 2002, when a crowd of twenty-five or more people from a nearby party approached the appellant's home following an earlier altercation involving a baseball bat.
The appellant got into his car, reversed at high speed from the driveway, mounted the footpath on the wrong side of the road, hit a water main, then turned the vehicle around and drove back at speed along the same street. A man named Mr McQuarrie was struck by the vehicle and suffered a fractured left tibia and fibula broken in seven places, with an uncertain prognosis at the time of sentencing. The appellant was a disqualified driver at the time and failed to stop after the collision.
The sentencing judge imposed a head sentence of four years and six months with a non-parole period of three years and four and a half months. The appellant sought leave to appeal, arguing the sentence was manifestly excessive, that guideline judgments had not been properly applied, and that the discount for his early guilty plea was insufficient.
Legal Issues
- Whether the original sentence was manifestly excessive in light of the relevant guideline judgments on dangerous driving offences
- Whether the sentencing judge erred by failing to apply the guideline judgments in R v Jurisic and R v Whyte
- Whether the 10 per cent discount allowed for the early plea of guilty was adequate, given the principles on utilitarian value established in R v Thomson
- Whether special circumstances existed to justify a non-parole period shorter than three-quarters of the head sentence
Decision
The Court of Criminal Appeal found that the sentencing judge had erred in two related respects. First, he made no direct reference to the guideline judgments of R v Jurisic, R v Whyte, or R v Thomson, and the judgment gave no indication that the relevant criteria in those guidelines had been fully appreciated. Second, the 10 per cent discount allowed for the early guilty plea was insufficient; the Court considered approximately 20 per cent was appropriate in the circumstances.
Dunford J characterised the offending as a serious "rage" incident involving an abdication of responsibility. The driving was aggravated by the fact the appellant was disqualified, by the presence of many people in the vicinity, and by the fact that the appellant turned around and returned toward the crowd after already mounting the footpath and striking the water main. The element of provocation from the approaching group was noted but did not diminish those aggravating features.
Notwithstanding the seriousness of the offence and the appellant's extensive criminal record, including prior dangerous driving convictions, the Court recognised genuine mitigating factors. These included the early guilty plea, testimonial support from the appellant's partner and others, an offer of employment, the harsh impact of serving time in protective custody, and assessed prospects of rehabilitation.
The Court identified special circumstances justifying a non-parole period shorter than the statutory three-quarter ratio, finding that at least twelve months on supervised parole would better facilitate rehabilitation. Taking a starting point of four years and discounting by approximately 20 per cent for the guilty plea, the head sentence was reduced to three years and three months, with a non-parole period of two years and three months.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Original sentence quashed
- Appellant re-sentenced to imprisonment for three years and three months, commencing 7 September 2002
- Non-parole period fixed at two years and three months, with parole eligibility from 6 December 2004
- Period of disqualification from driving confirmed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge's failure to engage with the guideline judgments in R v Jurisic, R v Whyte, and R v Thomson can constitute error, even if those cases are not required to be cited by name, where the judgment gives no indication the guidelines were applied.
- A discount of approximately 20 per cent for an early guilty plea was held to be appropriate in this case, rather than the 10 per cent allowed at first instance, consistent with the utilitarian value principles set out in R v Thomson.
- Rage or panic-induced dangerous driving that involves an abdication of responsibility behind the wheel remains a serious category of offence, and provocation from third parties does not necessarily reduce the gravity of such conduct.
- Special circumstances justifying a non-parole period below the three-quarter statutory benchmark may exist where a period of supervised parole is assessed as materially beneficial to an offender's rehabilitation prospects.
- An offender's extensive prior record, including similar offences, bears heavily on sentence, but the Court will still weigh genuine prospects of rehabilitation and the harsher conditions of protective custody as relevant mitigating considerations.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
Cases:
- R v Jurisic (1998) 45 NSWLR 209
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146