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Court of Criminal Appeal 19 May 2004

REGINA v Warwick Ross SULLIVAN

[2004] NSWCCA 99

Traffic & driving

Citation: Regina v Warwick Ross Sullivan [2004] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 19 May 2004
Judge(s): Tobias JA, Kirby J, Bell J

Background

The applicant pleaded guilty in the District Court to dangerous driving occasioning death while under the influence of alcohol, an offence under s 52A of the Crimes Act 1900. The offence arose after the applicant, aged 36 at the time, had been drinking, slept for approximately five hours, and then drove while still highly intoxicated. A person was killed as a result.

The sentencing judge at first instance imposed a term of imprisonment of three and a half years with a non-parole period of 18 months. The judge took into account an early guilty plea entered in the Local Court and a period of close to 11 months spent by the applicant in a residential drug and alcohol rehabilitation program (treated as a form of quasi-custody).

The applicant sought leave to appeal on three grounds: that the judge failed to give a proper discount for the guilty plea, that the judge failed to give a proper discount for the quasi-custody period, and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave an adequate discount for the applicant's early guilty plea
  • Whether the sentencing judge gave an adequate discount for the time spent in residential rehabilitation (quasi-custody)
  • Whether the overall sentence of three and a half years with an 18-month non-parole period was manifestly excessive in light of the guideline judgments in R v Jurisic and R v Whyte

Decision

The Court was unanimous in rejecting the first two grounds of appeal. All three judges accepted that the sentencing judge had properly taken into account both the early plea of guilty and the period spent in rehabilitation. The non-parole period of 18 months was seen as reflecting, in part, the applicant's need for and engagement with rehabilitation.

The third ground produced a notable difference in analysis. Kirby J considered the sentence manifestly excessive, forming the view that the starting point adopted by the sentencing judge was too high given the applicant's moral culpability, even after accepting that culpability was high. Bell J took the contrary view, concluding that the sentence fell within the range of a sound exercise of sentencing discretion. Tobias JA agreed with Bell J, and went further than Bell J in characterising the applicant's moral culpability as bordering on worse than high.

On the question of moral culpability, the majority pointed to several aggravating factors drawn from Whyte: the applicant's high degree of intoxication, erratic driving, speed, and the risk posed to other road users by driving on the wrong side of the road. The Court also noted that the applicant did not fit the typical offender profile identified in Whyte, particularly because he was not a young offender. Tobias JA rejected the submission that culpability was relevantly reduced by the fact the applicant had slept before driving, concluding that a 36-year-old man must have known he remained highly intoxicated.

Bell J (with whom Tobias JA agreed) found no error in the judge's approach to the subjective factors, including the applicant's mental health history and the causal connection between his drug dependence and the offending. The structure of the sentence, with a relatively short non-parole period, was seen as already making provision for rehabilitation while giving appropriate weight to the objective seriousness of the offence. The appeal was dismissed by majority.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the majority confirmed that a sentence of three and a half years with an 18-month non-parole period for dangerous driving occasioning death while intoxicated was within the proper exercise of sentencing discretion, notwithstanding a difference of view among the judges about precisely where on the moral culpability scale the offending fell.
  • The guideline judgments in R v Jurisic and R v Whyte establish a graduated framework for assessing moral culpability in s 52A offences, recognising degrees of low, high, and worse than high culpability, with the starting point for sentences increasing as culpability rises above the abandonment-of-responsibility threshold.
  • Departure from the typical offender profile identified in Whyte (including the offender's age and the presence of multiple aggravating factors such as high intoxication, erratic driving, and speeding) can shift the assessment of moral culpability upward.
  • General deterrence carries particular weight in sentencing for s 52A offences, and subjective circumstances such as mental health history and drug dependence, while relevant, do not displace the need for sentences to maintain reasonable proportionality to the objective circumstances of the crime.
  • A sentencing court's decision to reflect rehabilitation needs through a relatively short non-parole period, rather than reducing the head sentence, is a legitimate structural choice in cases of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
- R v Way [2004] NSWCCA 131
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Cartwright (1989) 17 NSWLR 243
- R v Gorgievski [2002] NSWCCA 45
- R v Molina (1984) 13 A Crim R 76
- R v Musumeci (unreported, Court of Criminal Appeal, 30 October 1997)
- R v Eastway (unreported, Court of Criminal Appeal, 19 May 1992)