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Court of Criminal Appeal 17 June 2004

R v Melas

[2004] NSWCCA 198

Traffic & driving
SEVERITY APPEAL NO LESSER SENTENCE WARRANTED

Citation: R v Melas [2004] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 17 June 2004
Judge(s): Grove J, Dowd J, Sperling J

Background

The appellant, a 23-year-old man, pleaded guilty to driving in a manner dangerous occasioning death under s 52A(1)(c) of the Crimes Act 1900, an offence carrying a maximum penalty of ten years' imprisonment. The offending occurred on 10 September 2001 when he drove along Constitution Road, Meadowbank at between 90 and 100 kilometres per hour in broad daylight and struck a 17-year-old pedestrian who was crossing at a marked pedestrian refuge. The victim died instantly, his body thrown approximately 50 metres from the point of impact.

The appellant saw the victim before the collision and braked, leaving skid marks estimated at between 38 and 51 metres. The conditions were clear and the road dry. The District Court found no erratic or aggressive driving in the conventional sense, but characterised driving at over 90 kilometres per hour through a pedestrian refuge with fatal consequences as itself aggressive.

In August 2003, Shadbolt DCJ sentenced the appellant to three years' imprisonment with a non-parole period of 15 months. The appellant sought leave to appeal on the basis that the sentence was excessive.

  • Whether the sentencing judge gave sufficient credit for the appellant's guilty plea, which the Crown had conceded was entered at the first opportunity
  • Whether the sentencing judge placed excessive weight on the appellant's prior driving record
  • Whether, taking all grounds together, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

Dowd J, with Grove J and Sperling J agreeing, acknowledged that the grounds of appeal were properly put and that some had real substance. The Court accepted that the sentencing judge's treatment of the guilty plea was problematic. His Honour had noted the submission that the plea was entered at the first reasonable opportunity but then added a cryptic qualification suggesting doubt about that fact, despite a clear Crown concession to the contrary.

Grove J specifically identified this as an error: the sentencing judge had failed to give proper weight to the agreed concession that the plea was entered at the earliest opportunity. Grove J also accepted that the weight given to the appellant's prior driving record may have been greater than was warranted.

Despite those findings, the Court concluded unanimously that no lesser sentence was warranted. Applying s 6(3) of the Criminal Appeal Act 1912, the Court must only substitute a sentence where a different one "should have been passed." Even taking all of the appellant's grounds at their highest, the Court found the circumstances of the offending, namely the speed, the visibility, the presence of pedestrian refuge barriers and the loss of a young life, justified the sentence imposed.

The Court also affirmed that offences under s 52A are not merely about dangerous driving but about dangerous driving resulting in the taking of human life, a factor that carries significant weight when determining the appropriate penalty.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only substitute a sentence where a different sentence is actually warranted in law, not merely where individual errors in reasoning are identified.
  • A sentencing judge's failure to properly credit a guilty plea entered at the first opportunity constitutes an error, but that error alone will not necessarily lead to a reduced sentence if the objective seriousness of the offending independently supports the penalty imposed.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that s 52A offences are aggravated by their fatal consequences, reflecting the legislature's recognition of the fundamental value placed on human life.
  • Driving at 90 to 100 kilometres per hour through a marked pedestrian refuge in broad daylight, with fatal results, was treated as a serious example of the offence notwithstanding the absence of conventionally erratic or aggressive conduct.
  • Decisions including R v Jurisic, R v Thompson and R v Whyte formed part of the framework the Court applied in assessing the appropriate range for dangerous driving causing death under s 52A.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Jurisic (1999) 101 A Crim R 259
- R v Thompson (2000) 49 NSWLR 383
- R v Whyte [2002] NSWCCA 343