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Court of Criminal Appeal 9 February 2005

Regina v Smith

[2005] NSWCCA 19

HomicideTraffic & driving
CRIMINAL LAW AND PROCEDURE DANGEROUS DRIVING CAUSING DEATH SENTENCING PATTERNS PARTICULAR IMPOSITION EXCESSIVE RESENTENCE APPROPRIATE

Citation: Regina v Smith [2005] NSWCCA 19
Court: New South Wales Court of Criminal Appeal
Date: 9 February 2005
Judge(s): Grove J; James J

Background

The appellant pleaded guilty in the District Court at Lismore to aggravated dangerous driving occasioning death. In the early hours of 8 August 2003, he drove a vehicle in which his partner was a passenger. After a prolonged evening of drinking at two hotels, he entered a 100 kph speed zone and overtook another vehicle before losing control. The car struck a fence and rolled into a paddock, turning over at least six times.

The passenger died from her injuries. A blood sample taken from the appellant approximately 45 minutes after the incident showed a blood alcohol concentration of 0.208 grams per 100 millilitres, together with indicators of recent cannabis use. A pharmacologist's report confirmed that the appellant's driving ability was very substantially impaired, with alcohol identified as the primary source.

The District Court sentenced the appellant to seven years' imprisonment with a non-parole period of four years. The appellant sought leave to appeal on the grounds that the sentencing judge applied a superseded statutory structure and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by announcing the total term before the non-parole period, contrary to the current form of section 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence of seven years with a four-year non-parole period was manifestly excessive when measured against comparable cases of aggravated dangerous driving causing death

Decision

On the first ground, the Court accepted that the sentencing judge had announced the total term before the non-parole period, which did not conform to the current structure required by section 44. However, the Court followed the approach in R v Cramp [2004] NSWCCA 264, finding that this was a technical error that did not affect the exercise of the sentencing discretion. Standing alone, it did not entitle the Court to resentence the appellant.

On the second ground, the Court conducted a comparative survey of cases involving aggravated dangerous driving causing death, drawing particularly on R v Vukic [2003] NSWCCA 13 and R v Ryan [2003] NSWCCA 202. In Vukic, an identical sentence had been imposed where the offender drove at high speed in a suburban street, crossed to the wrong side of the road, and had a blood alcohol reading of 0.172, along with two prior PCA convictions and eight speeding convictions. The Court found that Vukic warranted a significantly greater sentence than the present appellant.

The Court concluded, on reviewing the range of comparable cases, that the sentence imposed was excessive. It also took into account the appellant's strong progress in prison rehabilitation, the low assessed risk of reoffending, and the fact that the child in his care had been accommodated by family during his imprisonment. Special circumstances were found, consistent with the approach taken by the sentencing judge below.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to a non-parole period of three years commencing 27 February 2004 and expiring 26 February 2007, with a total sentence of six years expiring 26 February 2010
  • First date of eligibility for parole specified as 26 February 2007
  • Disqualification ordered in the District Court to stand

Key Takeaways

  • A technical error in announcing total term before non-parole period, contrary to section 44 of the Crimes (Sentencing Procedure) Act 1999, does not of itself justify resentencing unless the error affected the exercise of the sentencing discretion.
  • Comparative sentencing analysis across decided cases remains a legitimate tool for assessing whether a particular sentence is manifestly excessive, even though direct comparison must be approached with caution.
  • The Court of Criminal Appeal found that a sentence identical to one upheld in a case involving a more serious offending profile (higher speed, wrong-side driving, worse prior record) indicated that the present sentence was excessive.
  • Post-sentence rehabilitation, low reoffending risk, and family circumstances can be taken into account on resentencing by the Court of Criminal Appeal.
  • Where a high blood alcohol reading grounds the aggravated form of a dangerous driving offence, the sentencing framework established in R v Jurisic and R v Whyte continues to provide the relevant principled foundation, with comparable cases supplying contextual calibration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Berg [2004] NSWCCA 300
- R v Cousins [2002] NSWCCA 81
- R v Cramp [2004] NSWCCA 264
- R v Hawkins [2002] NSWCCA 280
- R v Jaworoski (1999) 108 A Crim R 489
- R v Jurisic (1998) 45 NSWLR 209
- R v Morgan (1993) 70 A Crim R 368
- Pearce v The Queen (1998) 194 CLR 610
- R v Reeves [1999] NSWCCA 269
- R v Ryan [2003] NSWCCA 202
- R v Sen [1999] NSWCCA 199
- R v Sutton [2004] NSWCCA 225
- R v Vukic [2003] NSWCCA 13
- R v Whyte (2002) 55 NSWLR 252