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6
Court of Criminal Appeal 19 November 2004

R v Takai

[2004] NSWCCA 392

Also reported as (2004) 149 A Crim R 593
Traffic & driving
APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY SUBJECTIVE CIRCUMSTANCES REMARKS ON SENTENCE APPLICATION OF GUIDELINE JUDGMENTS LEVEL OF MORAL CULPABILITY

Citation: Takai v R [2004] NSWCCA 392
Court: NSW Court of Criminal Appeal
Date: 19 November 2004
Judge(s): Dunford J, Simpson J, Hidden J

Background

The applicant, a 21-year-old bar attendant with no prior criminal history, pleaded guilty to aggravated dangerous driving causing grievous bodily harm under s 52A(4) of the Crimes Act 1900. In the early hours of 11 January 2003, after consuming eight to ten bourbons at a Parramatta hotel, she drove her colleague as a passenger. She lost control and struck a power pole on the Cumberland Highway. Her passenger sustained multiple leg and back injuries requiring prolonged hospitalisation, use of a wheelchair, and further surgery, with an uncertain prognosis for return to work.

The applicant's blood alcohol reading was 0.169g per 100mL, more than three times the legal limit. In sentencing proceedings, evidence was led about the applicant's personal circumstances, including a period of emotional distress following a discovery within her household that had contributed to increased alcohol consumption in the months before the offence.

Sorby DCJ in the District Court sentenced the applicant to three years and six months imprisonment with a non-parole period of 21 months. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge misapplied the guideline judgments in R v Jurisic and R v Whyte when assessing the offence
  • Whether the sentencing judge gave adequate consideration to s 5 and s 21A of the Crimes (Sentencing Procedure) Act 1999 (which govern the threshold for imprisonment and the use of aggravating and mitigating factors)
  • Whether the sentencing judge erred in characterising the applicant's moral culpability as "high"
  • Whether the sentencing judge took into account a victim impact statement that was improperly before the court

Decision

Simpson J, with whom Dunford J agreed, found that the sentencing judge had erred in the application of the guideline judgments and in his assessment of the applicant's moral culpability. The combination of a strong set of mitigating factors, including an early guilty plea, genuine remorse, no prior convictions, and evidence of rehabilitation, had not been adequately weighed against the aggravating circumstances. The Court accepted that a custodial sentence was warranted, but concluded the head sentence and non-parole period imposed were excessive.

The Court reduced the sentence to two years and six months, with a non-parole period of one year and three months. In reaching this result, the Court noted the applicant's cooperation with an alcohol programme in custody and gave credit for the positive steps she had taken since the offence.

Hidden J agreed with the orders but expressed a reservation on a subsidiary point concerning the "length of journey" aggravating factor identified in Whyte. He questioned whether that factor, as originally formulated by Spigelman CJ, was intended to refer to the intended journey or only to the actual journey completed before the collision. He noted that the distinction may carry particular significance in cases involving detection-based offences (such as prescribed concentration of alcohol offences with no collision) compared with dangerous driving causing death or injury. Hidden J expressly declined to resolve the question, as it was not necessary for the outcome of this application.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed by Sorby DCJ quashed
  • Applicant re-sentenced to imprisonment for two years and six months, commencing 29 January 2004 and expiring 28 July 2006
  • Non-parole period of one year and three months, commencing 29 January 2004 and expiring 28 April 2005

Key Takeaways

  • The Court of Criminal Appeal confirmed that, even where an offence of aggravated dangerous driving causing grievous bodily harm warrants full-time custody, the weight accorded to compelling mitigating factors (early guilty plea, genuine remorse, absence of prior convictions, and post-offence rehabilitation) can materially reduce both the head sentence and non-parole period.
  • A characterisation of "high moral culpability" must be supported by a proper application of the relevant guideline judgments; an error in that characterisation may itself justify appellate intervention on severity.
  • The Jurisic and Whyte guideline judgments continue to frame the sentencing exercise for dangerous driving offences, and departures from their analytical framework require explicit justification.
  • Hidden J left open, without deciding, whether the "length of journey" aggravating factor from Whyte refers to the journey actually completed before a collision or the journey the driver intended to complete, noting the question may bear differently on driving offences that involve no collision.
  • Post-sentence conduct, including participation in custodial rehabilitation programmes, was treated as a relevant consideration in re-sentencing, reflecting credit for demonstrated efforts toward rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 37A, 44, 54A

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252; 134 A Crim R 53
- R v McKinney [1999] NSWCCA 51; 29 MVR 355
- Attorney General's Application for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol [2004] NSWCCA 303