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Court of Criminal Appeal 29 October 2004

Regina v Whelan

[2004] NSWCCA 379

Traffic & driving
SUSPENDED SENTENCE PERMISSIBLE NON PAROLE PERIOD TO BE FIXED

Citation: Regina v Whelan [2004] NSWCCA 379
Court: NSW Court of Criminal Appeal
Date: 29 October 2004
Judge(s): McClellan AJA, Adams J, Smart AJ

Background

The offender was riding a motorcycle along Bank Street, Pyrmont at around 10pm with a pillion passenger when a collision occurred at the intersection of Quarry Master Drive. Another driver turned right across his path, and the motorcycle struck the passenger side of her vehicle. Both the offender and his passenger sustained serious injuries.

The offender had a blood alcohol concentration of 0.122 grams per 100 millilitres of blood. The sentencing judge in the District Court found that the primary cause of the collision was the other driver's failure to make a safe right-hand turn, and assessed the offender's culpability in relation to his actual driving as minimal, while acknowledging the alcohol as a significant separate factor.

The District Court sentenced the offender to two years' imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999, but did not fix a non-parole period or give reasons for omitting one. The Director of Public Prosecutions appealed the sentence as inadequate, and the offender separately sought leave to appeal on the ground that no non-parole period had been set.

  • Whether there was sufficient evidence to support the sentencing judge's finding that the offender's culpability, as to his driving, was minimal
  • Whether a suspended sentence was a permissible outcome for this offence
  • Whether the sentencing judge erred by failing to fix a non-parole period before suspending the sentence
  • Whether the Court of Criminal Appeal should itself fix a non-parole period

Decision

The Court of Criminal Appeal upheld the sentencing judge's assessment of minimal driving culpability. The photographic evidence, the position of impact, and the eyewitness account from Mr Diliapis all supported the conclusion that the other driver had moved onto the incorrect side of the road and that the offender had blown his horn but been unable to avert the collision. While the alcohol in the offender's blood remained a significant aggravating factor, the judge was entitled to distinguish that from the question of causation of the crash itself.

The Crown's appeal against the sentence was dismissed. Although the Court acknowledged the sentence may have been at or just below the lower boundary of the permissible range, it did not consider the departure significant enough to warrant appellate intervention.

On the offender's application, the Court agreed that a non-parole period should have been fixed. Citing the requirements of sections 12(3) and 44 of the Crimes (Sentencing Procedure) Act 1999, and the Court of Criminal Appeal's own decision in R v Tolley, the Court confirmed that under the current legislative framework a non-parole period must be determined first, before any question of suspension arises. The suspended sentence itself remained appropriate given the offender's circumstances and his demonstrated need for assistance and supervision.

The Court fixed a non-parole period of twelve months and a balance of term of a further twelve months, commencing 18 June 2004. Special circumstances were found to exist, justifying the equal division between the non-parole period and the balance of the term. The execution of the entire sentence was then suspended pursuant to section 12.

Orders Made

  • Crown appeal against sentence dismissed
  • Leave to the offender to appeal against sentence granted; appeal allowed
  • Sentence imposed in the District Court quashed
  • Offender sentenced to imprisonment comprising a non-parole period of twelve months and a balance of term of twelve months, commencing 18 June 2004, with release on parole directed from 17 June 2005
  • Execution of sentence suspended for the full term pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999, on the conditions previously specified by McLoughlin DCJ
  • Offender directed to report to the Probation and Parole Service and comply with reasonable directions and supervision
  • Automatic three-year disqualification from driving confirmed

Key Takeaways

  • A sentencing court is entitled to find minimal culpability in relation to an offender's driving even where alcohol is present, provided the evidence supports the conclusion that another party's conduct was the principal cause of the collision.
  • Under the Crimes (Sentencing Procedure) Act 1999, the two-stage process for a suspended sentence requires the court to fix the term of imprisonment, including the non-parole period, before then considering whether to suspend execution of that sentence.
  • Omitting to fix a non-parole period, without reasons, constitutes an error that the Court of Criminal Appeal will correct by fixing one itself.
  • A suspended sentence remains available even for an offence involving dangerous driving with a significant blood alcohol level, where the offender's circumstances and need for supervision support that outcome.
  • In dismissing a Crown appeal, the Court of Criminal Appeal confirmed that appellate intervention in sentencing requires more than a sentence sitting at the lower boundary of the permissible range; the departure must be material.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 12(3), 44

Cases:
- Dinsdale v R (2000) 202 CLR 321
- GAS v The Queen; SJK v The Queen [2004] HCA 32
- R v Jurisic (1998) 45 NSWLR 209
- R v Blackman [2001] NSWCCA 121
- R v Tolley [2004] NSWCCA 165
- R v Whyte (2002) 55 NSWLR 252
- R v Zamagias [2002] NSWCCA 17