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Court of Criminal Appeal 24 March 2004

Regina v Campton

[2004] NSWCCA 56

Traffic & driving
CRIMINAL PRACTICE & PROCEDURE CROWN APPEAL ON SENTENCE WHETHER INADEQUATE APPLICATION OF GUIDELINES DELAY DISCRETION ON CROWN APPEAL.

Citation: Regina v Campton [2004] NSWCCA 56
Court: Court of Criminal Appeal, New South Wales
Date: 24 March 2004
Judge(s): Simpson J, Kirby J, Bell J

Background

The respondent pleaded guilty to dangerous driving occasioning grievous bodily harm after running a red light while intoxicated (blood alcohol reading of 0.14), colliding with another vehicle and seriously injuring the other driver. The other driver was trapped in his car and hospitalised for three weeks. Both vehicles were written off.

The respondent was unlicensed, driving an unregistered and uninsured vehicle, and fled the scene before initially lying to police about who was driving. He was not sentenced until more than two years after the offence, largely because the Crown had pursued the aggravated charge and only accepted a plea to the lesser offence in March 2003. The sentencing judge in the District Court imposed 2.5 years imprisonment with a 1.5-year non-parole period, to be served by way of periodic detention.

The Crown appealed to the Court of Criminal Appeal, arguing the sentence was manifestly inadequate and that a full-time custodial sentence was required, particularly in light of the applicable sentencing guidelines for dangerous driving offences.

  • Whether the sentence of periodic detention was manifestly inadequate for the offence of dangerous driving occasioning grievous bodily harm, having regard to the sentencing guidelines.
  • Whether the sentencing judge's departure from the guidelines was justified by the respondent's rehabilitation and personal circumstances.
  • Whether the Court should exercise its residual discretion to dismiss the Crown appeal, even if sentencing error was established.
  • Whether delay between the offence, sentencing, and the Crown appeal was a relevant factor in that discretionary exercise.

Decision

Two of the three judges found that the sentencing judge had fallen into error. Both Simpson J and Kirby J considered that the accumulation of aggravating factors, including the respondent's prior drink-driving history, driving while unlicensed and unregistered, fleeing the scene, and initial dishonesty with police, pointed toward full-time custody. Kirby J concluded that the departure from the sentencing guidelines established in cases such as R v Jurisic and R v Whyte could not be justified, and that the resort to periodic detention was an error.

Despite this finding, the Court dismissed the appeal by exercising its residual discretion. The Court of Criminal Appeal has an overriding discretion to decline to intervene in a Crown appeal, even where error is demonstrated, and that discretion is partly informed by the double jeopardy element inherent in Crown appeals: a respondent is required to face sentencing a second time.

The significant delay in the proceedings was central to the discretionary exercise. The offence occurred in August 2001, sentencing was not imposed until September 2003, and the Crown's notice of appeal was not served until November 2003, by which point the respondent had already commenced serving periodic detention. Simpson J emphasised that delay need not be attributable to any party's fault to be a relevant consideration. The respondent had also relocated from Queensland to New South Wales to comply with the periodic detention order, reducing his employment prospects as a jockey.

Kirby J, with whom Bell J agreed, concluded that it would be unduly harsh to impose full-time custody at that stage, even acknowledging that any resentencing would likely have involved a non-parole period of around 12 months. Simpson J reached the same outcome via the residual discretion, noting the change in the respondent's personal circumstances and the overall passage of time since the offence.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the residual discretion to dismiss such an appeal, even where error is established, can be exercised where significant delay has occurred and the respondent's circumstances have materially changed.
  • Delay between an offence and the determination of a Crown appeal is a relevant factor in the discretionary exercise, regardless of whether any party is at fault for that delay.
  • A blood alcohol reading of 0.14, combined with driving while unlicensed in an unregistered vehicle, fleeing the scene, and providing false information to police, were identified as aggravating factors pointing strongly toward full-time custody for dangerous driving occasioning grievous bodily harm.
  • The Court found the sentencing judge's departure from the Jurisic and Whyte guidelines could not be justified, even accounting for the respondent's rehabilitation, illustrating the significant weight those guidelines carry in this category of offence.
  • Double jeopardy remains a recognised consideration on Crown appeals: the prospect of requiring a respondent to face resentencing after commencing a sentence, and having reorganised life accordingly, may support dismissal even where the original sentence is found to have been inadequate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(3)(a), s 52A(4), s 52A(7)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(2)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252
- R v Kyroglou & Tsoukatos [1999] NSWCCA 106
- Griffiths v The Queen (1977) 137 CLR 293
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Gleeson [2000] NSWCCA 101
- R v Ardron [2000] NSWCCA 412
- R v Park [2001] NSWCCA 313
- R v Romanic [2000] NSWCCA 524
- R v Allpass (1994) 72 A Crim R 561
- R v Zamagias [2002] NSWCCA 17
- R v Cromarty [2004] NSWCCA 54
- R v Howland (1999) 104 A Crim R 273
- R v Musumeci (unreported, CCA, 30 October 1997)