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Court of Criminal Appeal 29 September 2003

REGINA v. ROYAL

[2003] NSWCCA 275

Traffic & driving
CRIMINAL LAW CROWN APPEAL SENTENCE AND PARTICULARLY NON SEVERELY AGGRAVATING CIRCUMSTANCES SENTENCE AND NON PAROLE PERIOD MANIFESTLY INADEQUATE

Citation: [2003] NSWCCA 275
Court: New South Wales Court of Criminal Appeal
Date: 29 September 2003
Judge(s): Wood CJ at CL, Greg James J, Howie J

Background

The respondent pleaded guilty in the District Court to dangerous driving occasioning grievous bodily harm under s 52A(3)(c) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment. The offending occurred in June 2001 when she crossed double unbroken centre lines on the Pacific Highway while driving with a blood concentration of methamphetamine described by a pharmacologist as within the "toxic to fatal range." The collision caused critical injuries to the oncoming driver, who was trapped in his vehicle for over an hour before being airlifted to hospital.

The respondent had no prior criminal record, entered an early guilty plea, and placed before the sentencing judge detailed psychological and psychiatric evidence describing exceptional personal circumstances. Judge Coolahan sentenced her to 16 months imprisonment with a non-parole period of only four months, commencing 20 May 2003.

The Director of Public Prosecutions appealed, contending that both the head sentence and, in particular, the non-parole period were manifestly inadequate when measured against the guideline judgment in Jurisic (1998) 45 NSWLR 209 and the seriously aggravating circumstances of the offence.

  • Whether the sentence of 16 months imprisonment fell within the range established by the guideline judgment for dangerous driving offences
  • Whether the non-parole period of four months was manifestly inadequate given the objective seriousness of the offence
  • Whether the trial judge erred in treating the matter as falling outside the guideline on the basis that it could have been dealt with in a lower court
  • Whether, even if errors were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene in a Crown appeal

Decision

The Court unanimously identified error in the sentencing discretion exercised by Judge Coolahan. The trial judge had proceeded on a mistaken basis that the matter fell outside the guideline because it could have been dealt with in a lower court. That reasoning was wrong: the presence of severely aggravating circumstances, including a blood drug level in the toxic-to-fatal range and the critical injuries inflicted, plainly placed the offence within the guideline's reach.

The non-parole period of four months was found to be manifestly inadequate. Wood CJ at CL and Howie J were emphatic that a minimum period of imprisonment of four months could not be supported on any view of the facts. They reiterated the principle from Power v The Queen (1974) 131 CLR 623 that a non-parole period represents the minimum time a sentencing judge considers the crime demands by way of detention, and that rehabilitation cannot be pursued by reducing the non-parole period to a level that fails to punish the offender adequately.

The Court also identified a further problem in the disproportionate gap between the head sentence and the non-parole period. The trial judge appeared to have reduced the non-parole period in order to extend the parole period and thereby facilitate rehabilitation, but the Court held that this approach conflicted with basic sentencing principles applicable under s 44 of the Crimes (Sentencing Procedure) Act 1999.

Notwithstanding those findings, the Court exercised its residual discretion to dismiss the Crown appeal. By the time of the appeal, the respondent had already served the bulk of her non-parole period. Greg James J noted the exceptional and unusual personal circumstances, and took the view that the community's interests were better served by allowing the respondent to complete an extended parole period in which rehabilitation could be reinforced. All three judges were clear, however, that the dismissal of the appeal was not to be taken as any endorsement of the sentence.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • A non-parole period represents the minimum period of imprisonment a sentencing judge considers the crime demands, and cannot be reduced to a level that fails to reflect the objective seriousness of the offence, irrespective of rehabilitation considerations.
  • The Court of Criminal Appeal confirmed that the trial judge's reasoning that the matter fell outside the dangerous driving guideline judgment (Jurisic) because it could have been dealt with in a lower court was an error of principle.
  • In dismissing the appeal on discretionary grounds, the Court emphasised that such a dismissal carries no implication that the sentence was correct: the judgment expressly states the sentence was wrong.
  • A pronounced disparity between a head sentence and its non-parole period will rarely, if ever, be justified under the sentencing regime governing the relationship between those two components, and extending parole time cannot be achieved by compressing the non-parole period below an adequate minimum.
  • Crown appeals remain subject to a residual discretion, and the Court may decline to intervene even where errors and manifest inadequacy are established, particularly where an offender has already served the relevant custodial component and exceptional personal circumstances exist.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- R v Jurisic (1998) 45 NSWLR 209 (dangerous driving guideline judgment)
- R v Whyte (2002) 55 NSWLR 252
- Engert (1995) 84 A Crim R 67
- Power v The Queen (1974) 131 CLR 623