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Court of Criminal Appeal 20 December 2004

Regina v Vale

[2004] NSWCCA 469

Traffic & driving

Citation: Regina v Vale [2004] NSWCCA 469
Court: NSW Court of Criminal Appeal
Date: 20 December 2004
Judge(s): Santow JA; Bell J; Howie J

Background

The applicant pleaded guilty in the District Court to dangerous driving occasioning death, an offence under s 52A(1) of the Crimes Act 1900 (NSW). The charge arose from a fatal accident involving prolonged erratic driving over approximately 50 kilometres in heavy rain, during which the applicant drove on the wrong side of the highway on multiple occasions and narrowly avoided additional collisions. A urine sample established that he was affected by amphetamines at the time.

English DCJ sentenced the applicant to five years' imprisonment with a non-parole period of two years and six months, commencing 14 August 2003. The applicant had received a 25 per cent reduction in sentence reflecting his guilty plea, and was found to be genuinely remorseful. He was also disqualified from driving for five years.

The applicant sought leave to appeal against the sentence on the basis that the sentencing judge had erred in the way aggravating circumstances were identified and weighed.

  • Whether the sentencing judge improperly treated the death of the victim as an aggravating factor, when death was actually an element of the offence charged rather than an additional circumstance.
  • Whether the sentencing judge took into account a circumstance of aggravation that would have warranted conviction for the more serious offence of aggravated dangerous driving occasioning death under s 52A(2), contrary to the principle in The Queen v De Simoni (1980-81) 147 CLR 383.
  • Whether the sentence imposed was manifestly excessive.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in treating the death of the victim as an aggravating feature. Death is an element of the offence of dangerous driving occasioning death; it cannot simultaneously be treated as a circumstance that aggravates the sentence for that same offence.

The Court also found error in how aggravating factors beyond the offence as charged had been approached, engaging the principle in De Simoni. That principle holds that a sentencing judge may consider all of an offender's conduct, but cannot treat as an aggravating circumstance something that would have warranted a conviction for a more serious offence. Here, the applicant had been charged with the basic offence under s 52A(1), not the aggravated version under s 52A(2), and the sentencing had to proceed accordingly.

Having identified error, the Court re-sentenced the applicant. In doing so, it acknowledged the seriousness of the offending, including the prolonged dangerous driving, the drug use, and the high degree of moral culpability. It also recognised the applicant's first time in custody and evidence of depression as special circumstances warranting an adjusted ratio between the non-parole period and the total term.

The Court reduced the total sentence to four years and three months, comprising a non-parole period of two years followed by a balance of term of two years and three months, and maintained the five-year driving disqualification.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; orders of English DCJ quashed.
  • The applicant sentenced to imprisonment comprising a non-parole period of two years, commencing 14 August 2003 and expiring 13 August 2005 (the date of eligibility for parole).
  • Balance of term of two years and three months, commencing 14 August 2005 and expiring 13 November 2007.
  • Disqualification from driving for five years, commencing 14 August 2003, maintained.

Key Takeaways

  • Under s 52A of the Crimes Act 1900, death is a definitional element of the offence of dangerous driving occasioning death; a sentencing court cannot also treat that death as an aggravating circumstance when determining penalty.
  • The principle in De Simoni prohibits a sentencing court from treating as an aggravating factor any circumstance that would have warranted conviction for a more serious offence. Where an offender is charged with the basic dangerous driving offence under s 52A(1) rather than the aggravated version under s 52A(2), the sentencing exercise must remain within that statutory boundary.
  • Both errors identified by the Court of Criminal Appeal were sufficient to vitiate the original sentence and require re-sentencing.
  • Special circumstances justifying an extended balance of term (relative to the non-parole period) were established by evidence that the applicant was a first-time custodial offender experiencing depression.
  • In re-sentencing, the Court treated the prolonged duration of dangerous driving, the number of people placed at risk, and the drug use while driving as legitimately serious features of the offending, without crossing into territory reserved for the more serious aggravated offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death and aggravated variants)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- The Queen v De Simoni (1980-81) 147 CLR 383