Citation: Regina v Koosmen [2004] NSWCCA 359
Court: New South Wales Court of Criminal Appeal
Date: 30 September 2004
Judge(s): Wood CJ at CL; Hislop J; Smart AJ
Background
The appellant had spent an afternoon drinking with a close friend at a hotel, with each man consuming approximately five schooners of beer across two sessions. After being asked to leave, the appellant drove south along Gresford Road, Paterson, with his friend as an unbelted front-seat passenger.
The driving rapidly became dangerous. The appellant crossed onto the wrong side of the road at excessive speed, forcing an oncoming driver onto the grass verge to avoid a head-on collision. Shortly afterwards, the vehicle swerved erratically, left the road, struck a roadside sign, and rolled approximately 20 metres before coming to rest. The passenger was ejected and died at the scene.
The appellant was sentenced in the District Court to five years imprisonment with a non-parole period of two years and six months for driving under the influence of intoxicating liquor occasioning death, with two lesser offences taken into account on a Form 1. He sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to give proper weight to the appellant's subjective circumstances, including genuine remorse, early guilty plea, significant personal hardship, and the impact of his friend's death upon him.
- Whether the sentencing judge failed to properly apply the principle established in Regina v Dhanhoa, which addresses the mitigating effect of an offender's grief and self-punishment arising from a fatal accident.
- Whether the overall sentence of five years with a two-and-a-half-year non-parole period was manifestly excessive having regard to comparable cases, including Regina v Berg.
Decision
The Court of Criminal Appeal granted leave to appeal primarily because the Dhanhoa point warranted consideration, but ultimately dismissed the appeal. Smart AJ, with Wood CJ at CL and Hislop J agreeing, found that the sentencing judge had in fact taken the Dhanhoa principle into account and specifically acknowledged the impact of the passenger's death on the appellant.
The Court accepted that the appellant had significant subjective factors in his favour. These included genuine remorse, an early guilty plea attracting a 25 per cent discount, diagnosed major depressive disorder and post-traumatic stress disorder, the grief flowing from his brother's earlier death, a strong bond with his three sons in his care, and positive character evidence. The sentencing judge had carefully considered each of these matters.
Against those factors, the Court emphasised the serious combination of aggravating circumstances: a high level of intoxication, speed well in excess of the limit, violent and erratic driving that endangered at least one other motorist, and the passenger travelling without a seat belt. The Court described the appellant's acts as exhibiting gross moral culpability. His post-offence conduct, including refusing to provide blood and urine samples and assaulting a police officer, did not assist his case for greater leniency.
The Court distinguished this case from Regina v Jurisic, which addresses the lower end of the sentencing range for this type of offence. The sentencing judge's approach of concentrating on the combination of the appellant's conduct was found to be correct. The sentence was not manifestly excessive given the overall objective seriousness of the offending.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that the Dhanhoa principle, which recognises the mitigating effect of an offender's grief and self-punishment following a fatal accident, does not operate as a free-standing ground to reduce an otherwise appropriate sentence where the judge has already taken it into account.
- A combination of aggravating factors, including serious intoxication, excessive speed, erratic and dangerous driving, and an unbelted passenger, can collectively justify a sentence toward the higher end of the range even where substantial subjective matters favour the offender.
- In dismissing the appeal, the Court noted that statistical sentencing data provides only a general guide and may have limited utility where a judge has properly relied on a specific combination of aggravating circumstances.
- Comparable cases such as Berg did not compel a different result, as differences in the offender's background and the precise combination of facts distinguished them from the present matter.
- Post-offence conduct, including refusing to cooperate with a police investigation and assaulting an officer, was treated as a factor that did not advance the appellant's claim to leniency, even where some allowance was made for the stress of the circumstances.
Legislation and Cases Referenced
Legislation:
- No specific legislation cited in the judgment (the offence carries a maximum penalty of 10 years imprisonment).
Cases Cited:
- Regina v Berg [2004] NSWCCA 300
- Regina v Dhanhoa [2002] NSWCCA 257
- Regina v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343