Citation: Regina v Sharon Maree Buchanan [2004] NSWCCA 141
Court: New South Wales Court of Criminal Appeal
Date: 12 May 2004
Judge(s): McColl JA, Levine J, Hidden J
Background
The applicant was convicted of aggravated dangerous driving under the influence of intoxicating liquor causing grievous bodily harm, contrary to s 52A(4) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 11 years imprisonment. The offence occurred on 1 June 2001, when the applicant crossed double unbroken centre lines while driving and collided with an oncoming vehicle. The victim was a 19-year-old driver who sustained permanent dental damage.
Expert evidence placed the applicant's blood alcohol concentration at the time between 0.25 and 0.28 grammes per 100 millilitres of blood, a level the sentencing judge found caused very significant impairment of driving ability. The applicant's explanation for entering the vehicle was that she was fleeing domestic violence perpetrated by her partner.
At sentencing before Sides DCJ in the Campbelltown District Court, the applicant received a 25 per cent discount on her sentence for her guilty plea, despite some delay in entering it. His Honour imposed a term of 2.5 years imprisonment with a non-parole period of 15 months, along with a three-year licence disqualification. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred in characterising the applicant's moral culpability as "very high", given her evidence of fleeing domestic violence and the relatively modest severity of the grievous bodily harm sustained by the victim
- Whether the circumstances of domestic violence constituted a sufficient mitigating factor to reduce the finding of moral culpability
- Whether the sentence imposed was otherwise affected by error
Decision
The Court of Criminal Appeal rejected the argument that the sentencing judge had fallen into error by finding very high moral culpability. Levine J, with whom McColl JA and Hidden J agreed, described the submission as completely misconstruing the sentencing judgment. The sentencing judge had accepted that the applicant entered the vehicle to escape her partner's violence, but expressly found that this did not explain why she then drove it, however briefly, in that extreme state of intoxication.
The Court noted that no evidence was before the sentencing judge showing that the violent partner had pursued the applicant to the car, attempted to enter it, or continued to attack her once she was inside. The sentencing judge's refusal to fill those evidentiary gaps in the applicant's favour was held to be correct.
The Court also confirmed that the offence, being an aggravated offence under s 52A(4), was more serious than the offences addressed in the guideline judgment in R v Whyte. Because the circumstances were not those of momentary inattention or misjudgement, but rather a collision directly attributable to an extreme level of intoxication, a custodial sentence exceeding two years was consistent with the sentencing principles in Whyte. The decision in R v Dandachli was distinguished on the basis of differing charges and facts.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A finding of very high moral culpability in aggravated dangerous driving cases is not negated merely because a defendant entered their vehicle to escape domestic violence, where no evidence establishes that the violence continued once inside the vehicle or explained the decision to drive.
- Under s 52A(4) of the Crimes Act 1900, an aggravated dangerous driving offence is treated as more serious than the offences addressed in the R v Whyte guideline judgment, which concerned ss 52A(1) and (2).
- Where the driving conduct is attributable to extreme intoxication rather than momentary inattention or misjudgement, the Court of Criminal Appeal confirmed that a custodial sentence exceeding two years is appropriate, consistent with the principles articulated by Spigelman CJ in Whyte.
- In dismissing the appeal, the Court found the sentence of 2.5 years with a 15-month non-parole period was unaffected by error, notwithstanding that the grievous bodily harm suffered was at the lower end of the scale for the offence category.
- A guilty plea discount of 25 per cent may still be granted in full even where the plea was delayed, provided the delay arose from a genuinely live legal issue rather than mere tactical considerations.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(4) (aggravated dangerous driving under the influence causing grievous bodily harm)
Cases:
- R v Whyte (2002) 55 NSWLR 252 (guideline judgment on dangerous driving offences)
- R v Dandachli [2004] NSWCCA 100 (distinguished on charges and facts)