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Court of Criminal Appeal 1 December 2003

R v Plumb

[2003] NSWCCA 359

Traffic & driving
CRIMINAL LAW

Citation: R v Plumb [2003] NSWCCA 359
Court: NSW Court of Criminal Appeal
Date: 1 December 2003
Judge(s): Wood CJ at CL, Smart AJ

Background

The applicant was convicted in the District Court on two counts of aggravated dangerous driving occasioning grievous bodily harm following a head-on collision on the Gundaroo Road near Sutton on 13 April 2002. He was driving a Holden Commodore and crossed onto the wrong side of the road, over double unbroken lines on the crest of a hill, while travelling at approximately 100 kilometres per hour. His blood alcohol concentration at the time was between 0.205 and 0.260 grams per 100 millilitres, roughly four times the legal limit, which the evidence established would have "very significantly impaired" his driving ability.

The two occupants of the Toyota Hilux he struck suffered grave injuries. One victim sustained fractures to both arms and her right leg, as well as bowel tears requiring surgery. The other sustained multiple leg fractures, four broken ribs, facial fractures requiring surgery including replacement of an eye, a closed head wound, and abdominal injuries requiring surgery to remove his spleen and repair his bowel.

Taylor DCJ sentenced the applicant to two years' imprisonment on each count with a non-parole period of twelve months per count, directing a partial accumulation of six months. The effective overall sentence was two and a half years with an eighteen-month non-parole period. The applicant sought leave to appeal, contending the sentences should have been served wholly concurrently.

  • Whether sentences for two counts of aggravated dangerous driving arising from a single motor vehicle collision should have been directed to run wholly concurrently rather than with partial accumulation
  • Whether there is an inflexible rule that offences constituting "one enterprise" or a "single episode of criminality" must attract concurrent sentences
  • Whether the overall sentence was excessive when measured against the guideline judgment in Regina v Whyte (2002) 55 NSWLR 252

Decision

The Court rejected the submission that sentences for offences arising from a single incident must always be served wholly concurrently. Wood CJ at CL confirmed there is no inflexible rule to that effect, noting that the High Court's decision in Pearce v The Queen (1998) 194 CLR 610 requires a sentencing judge to fix an appropriate sentence for each offence and then separately consider questions of accumulation, concurrence, and totality. The earlier practice of focusing primarily on the practical effect of the overall sentence, supported by Mill v The Queen and Holder and Johnston, no longer reflects the correct approach.

The Court found that where there are multiple victims suffering serious harm, a "single discrete episode of criminality" analysis provides little assistance and does not mandate concurrence. The decision in Regina v Skrill and Regina v Wilkins had already recognised this. The Court was not persuaded that some degree of accumulation was unwarranted here, given the very serious injuries inflicted on two separate victims. Without accumulation, it was difficult to see how the full objective criminality of the conduct could be reflected within the Pearce framework.

The Court also assessed the sentence against the guideline in Regina v Whyte, which addresses dangerous driving cases more broadly. The present case fell outside the "typical case" described in that guideline, given the presence of multiple victims, the applicant's high blood alcohol reading, and several specific aggravating features. The Court was not persuaded that any sentence other than that imposed by Taylor DCJ should have been passed.

Smart AJ agreed with Wood CJ at CL without additional reasons.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • There is no inflexible rule requiring wholly concurrent sentences for multiple offences arising from a single motor vehicle incident, particularly where multiple victims have suffered serious harm.
  • Under Pearce v The Queen, sentencing courts must fix an appropriate sentence for each offence individually before turning to accumulation, concurrence, and totality. This marked a departure from the earlier approach focused primarily on the practical outcome of the total sentence.
  • The concept of a "single discrete episode of criminality" has limited utility in dangerous driving cases involving more than one victim and does not compel concurrency.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the decision to accumulate or run sentences concurrently remains a discretion, and courts can legitimately reach different views on that question in comparable circumstances.
  • A blood alcohol concentration approximately four times the legal limit, combined with driving that caused serious injury to two separate people, placed the case outside the typical sentencing range described in the Whyte guideline judgment.

Legislation and Cases Referenced

Cases:
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Bishop [2002] NSWCCA 263
- Regina v Comber NSWCCA, 11 November 1998
- Regina v Dunlop [2001] NSWCCA 435
- Regina v Hammoud (2000) 118 A Crim R 66
- Regina v Holder and Johnston [1983] 3 NSWLR 245
- Regina v Gleeson [2000] NSWCCA 108
- Regina v Jurisic (1998) 45 NSWLR 209
- Regina v McDonald NSWCCA, 12 October 1998
- Regina v Melville (1956) 73 WN (NSW) 579
- Regina v Sen [1999] NSWCCA 109
- Regina v Skrill [2000] NSWCCA 484
- Regina v Whyte (2002) 55 NSWLR 252
- Regina v Wilkins (1988) 8 MVR 404