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Court of Criminal Appeal 17 September 2003

R. v. ZELUKIN

[2003] NSWCCA 262

Traffic & driving
AGGRAVATED DRIVING OCCASIONING DEATH DANGEROUS DRIVING OCCASIONING DEATH EXTENSION OF TIME TO APPEAL APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE WITHDRAW GUILTY PLEA

Citation: R v Zelukin [2003] NSWCCA 262
Court: New South Wales Court of Criminal Appeal
Date: 17 September 2003
Judge(s): Beazley JA; Hidden J; Carruthers AJ

Background

The appellant had pleaded guilty in the District Court to aggravated dangerous driving occasioning death under s 52A(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was a blood alcohol concentration of 0.156 grams per 100 millilitres, well above the prescribed concentration of 0.15 grams. His blood sample also returned readings positive for cannabis, and a small quantity of cannabis leaf was found on his person at the scene.

The accident occurred on 2 September 2000 on the Federal Highway at Sutton, north of Canberra. The appellant had been travelling southbound but crossed into the northbound lane, where his vehicle collided head-on with an oncoming car. The driver of that car was killed instantly. The section of road involved was subject to active roadworks with clear signage, and a witness had described the appellant's vehicle nearly striking her vehicle in the same stretch of road approximately 10 to 20 minutes before the fatal collision.

Morgan DCJ sentenced the appellant to five years imprisonment with a non-parole period of three years. The appellant subsequently sought an extension of time to appeal against conviction, contending that his guilty plea should be permitted to be withdrawn, and also sought leave to appeal against sentence.

  • Whether the Court should grant an extension of time to appeal against conviction
  • Whether the appellant's guilty plea had been entered in circumstances amounting to a miscarriage of justice, warranting its withdrawal
  • Whether there was sufficient evidence to substitute a verdict of the lesser offence of dangerous driving occasioning death under s 52A(1)
  • Whether the sentencing judge erred in her approach to the facts and the imposition of sentence

Decision

The Court of Criminal Appeal, with Beazley JA delivering the principal judgment and Hidden J and Carruthers AJ agreeing, dismissed the application for an extension of time to appeal against conviction. Applying Maxwell v The Queen (1996) 184 CLR 501, the Court found that the evidence the appellant sought to rely upon was not sufficient to establish that his guilty plea had been entered in circumstances amounting to a miscarriage of justice.

The Court also rejected the argument that there was sufficient evidence to substitute a verdict on the lesser charge of dangerous driving occasioning death under s 52A(1). Even if the matter had proceeded to trial on the evidence the appellant wished to adduce, the Crown could have charged him under an alternative limb of s 52A(2), alleging that his ability to drive was very substantially impaired by cannabis, alone or in combination with alcohol, under s 52A(7)(d). That alternative basis for the aggravated charge remained available on the evidence.

On the sentencing appeal, the Court found no error in the trial judge's approach. The sentencing judge had extensively addressed the appellant's subjective circumstances, including the serious injuries he sustained in the crash, his ongoing physical pain, and his alcohol and drug dependency. The Court rejected submissions that the judge had engaged in double punishment or had failed to give adequate weight to the appellant's injuries. Leave to appeal against sentence was granted, but the appeal was dismissed.

Orders Made

  • Application for extension of time to bring the appeal against conviction is dismissed
  • Leave to appeal against sentence is granted
  • Appeal against sentence is dismissed

Key Takeaways

  • A guilty plea will only be permitted to be withdrawn on appeal where the evidence establishes that the plea was entered in circumstances amounting to a miscarriage of justice, as set out in Maxwell v The Queen (1996) 184 CLR 501. Evidence falling short of that threshold will not suffice.
  • Where an accused seeks substitution of a lesser verdict, the availability of an alternative aggravated charge on the same evidence is a material consideration. Here, the cannabis readings meant the Crown could have pursued aggravation under s 52A(7)(d) even had the blood alcohol argument succeeded.
  • Under ss 52A(2) and 52A(7) of the Crimes Act 1900 (NSW), multiple distinct circumstances of aggravation may apply to the same set of facts, preserving the Crown's ability to frame an aggravated charge in more than one way.
  • No error was established in a sentencing judge's remarks where she considered the appellant's subjective physical and psychological circumstances across approximately seven pages of her remarks, even if those matters were not repeated in the specific passage addressing the sentence itself.
  • In dismissing the sentence appeal, the Court noted that the sentence imposed was within an appropriate discretionary range, a concession the appellant's own written submissions had acknowledged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 52AA
- Criminal Appeal Act 1912 (NSW), s 10

Cases:
- Maxwell v The Queen (1996) 184 CLR 501
- Osland v The Queen (1998) 197 CLR 316
- R v Davies (1993) 19 MVR 481
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Whyte (2002) 55 NSWLR 252