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Court of Criminal Appeal 17 March 2003

R v CHRISTOFF

[2003] NSWCCA 52

Also reported as (2003) 140 A Crim R 45
HomicideTraffic & driving
CRIMINAL LAW MOTOR VEHICLE WHETHER DRIVING DANGEROUS CASE PUT TO JURY CRIMINAL LAW SENTENCE

Citation: R v Christoff [2003] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 17 March 2003
Judge(s): Sheller JA; James J; Smart AJ

Background

The appellant was convicted in the District Court at Bathurst of driving in a manner dangerous to another person, causing the death of his de facto partner on Huntley Road near Orange on 26 February 2000. Judge Bellear sentenced him to three years and eight months imprisonment with a fixed non-parole period of two years and nine months. The offence carried a maximum penalty of ten years under s 52A(1)(c) of the Crimes Act 1900.

The Crown's case was that the appellant had been travelling at or above 100 kilometres per hour in a 80 kilometre per hour zone. He lost control of the vehicle on a dip in the road, causing a fatal impact. The appellant maintained he believed the speed limit was 100 kilometres per hour at that location and that he was distracted by what he thought was an approaching vehicle from a side road.

The appellant had a significant criminal history including multiple dishonesty offences and a series of driving offences. Notably, just two weeks before the fatal incident, he had been disqualified from driving for twelve months and placed on a bond following a similar offence. He appealed against both his conviction and his sentence.

  • Whether the Crown prosecutor's remarks at trial, inviting the jury to consider the resulting vehicle damage and the deceased's injuries as part of its assessment of whether the driving was dangerous, led to a miscarriage of justice.
  • Whether the sentencing judge erred in finding that the appellant ignored a speed limit sign and showed no remorse, and whether those errors warranted re-sentencing.
  • How the sentencing guidelines for dangerous driving occasioning death should be expressed, particularly regarding the threshold for full-time custodial sentences.
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory ratio.

Decision

Conviction appeal: The Court found that the Crown prosecutor's comments did not cause any miscarriage of the trial. The appellant had not objected at the time, and the complaint had not been squarely raised before the trial judge during the summing-up. The Court cited McBride v The Queen (1966) 115 CLR 44 in its consideration of the use of consequential damage and injury in assessing dangerous driving.

Sentencing errors and re-sentencing: The Court accepted that the sentencing judge had made two errors: finding that the appellant had ignored a speed limit sign (when the evidence was that he may not have seen it) and finding that the appellant showed no remorse or contrition. Those errors opened the sentence to review. However, the Court concluded that no lesser sentence than the one imposed should result, and it therefore dismissed the sentence appeal.

Guideline sentencing: The Court confirmed, following R v Whyte (2002) 55 NSWLR 252, that where an offender's moral culpability is high, a full-time custodial head sentence of less than three years would not generally be appropriate. The appellant's history of repeated and deliberate disobedience of traffic laws, including the very similar offence committed only two weeks earlier, was treated as a significant aggravating factor warranting the weight given to general and personal deterrence.

Special circumstances: The discretion to find special circumstances is constrained by the need for the non-parole period to properly reflect the criminality of the offence. The Court found no error in the sentencing judge's refusal to find special circumstances in this case, and declined to interfere with that aspect of the sentence.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted, but appeal against sentence dismissed.

Key Takeaways

  • Resultant damage and injury in a dangerous driving case may be placed before a jury as part of its assessment of whether the driving was dangerous, provided the Crown does not misrepresent those consequences as themselves constituting the offence.
  • Where a sentencing judge makes factual errors, a reviewing court may reassess the sentence but is not required to reduce it if the errors did not materially alter the overall sentencing outcome.
  • The preferred formulation of the guideline from R v Jurisic, as confirmed in R v Whyte, is that where moral culpability is high, a full-time custodial sentence of less than three years would not generally be appropriate for dangerous driving occasioning death.
  • A prior history of deliberate disobedience to traffic laws, particularly a closely related offence committed shortly before the fatal incident, is a weighty consideration in favour of both general and personal deterrence.
  • No error was established in the sentencing court's refusal to find special circumstances, consistent with the principle in R v Simpson that the non-parole period must appropriately reflect the criminality involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Jiminez v The Queen (1992) 173 CLR 572
- McBride v The Queen (1966) 115 CLR 44
- R v Cameron (2002) 76 ALJR 382
- R v Camilleri (unreported) CCA 8 February 1990
- R v Hain (1966) 85 WN (Pt 1) 7
- R v Howland (unreported) CCA 1999
- R v Jurisic (1998) 45 NSWLR 209
- R v Kalanj (1997) 98 A Crim R 505
- R v Kama (2000) 110 A Crim R 47
- R v Marlin (unreported) CCA 10 September 1997
- R v McDonald [1998] NSWCCA 60397/98
- R v Qutami (2001) NSWCCA 353
- R v Saunders (2002) NSWCCA 362
- R v Simpson (2001) 53 NSWLR 704
- R v Whyte (2002) 55 NSWLR 252
- Veen v The Queen (No 2) (1988) 164 CLR 456
- Wong v The Queen (2001) 207 CLR 584