Citation: R v Dutton [2005] NSWCCA 248
Court: New South Wales Court of Criminal Appeal
Date: 20 July 2005
Judge(s): Studdert J, Kirby J, Howie J (reasons delivered by Howie J)
Background
The respondent pleaded guilty to dangerous driving causing grievous bodily harm under s 52A(3) of the Crimes Act 1900, an offence carrying a maximum penalty of seven years' imprisonment. The offending occurred on the night of 10 December 2003 when, driving under the influence of alcohol, she allowed her vehicle to strike a parked utility on Pittwater Road, Mona Vale. Her front-seat passenger had her arm extended from the window, and the collision severed the passenger's left hand. Attempts to re-attach the hand were unsuccessful.
A blood sample taken approximately two and a half hours after the impact recorded a blood alcohol concentration (BAC) of 0.145. At the scene, attending officers noted the respondent was slurring her words and smelled heavily of alcohol. She told police, "I'm well over."
In the District Court, Judge Dodd sentenced the respondent to two years' imprisonment with an 18-month non-parole period, but then suspended the entire sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999. The Crown appealed on the ground that the suspended sentence was manifestly inadequate and that the sentencing judge had made a material error of fact regarding the respondent's culpability.
Legal Issues
- Whether the sentencing judge made an erroneous finding of fact when assessing the respondent's culpability, specifically in his treatment of the blood alcohol reading taken two and a half hours after the collision
- Whether the suspended sentence was manifestly inadequate for an offence of this seriousness
- Whether the respondent was entitled to a finding of special circumstances affecting the ratio of non-parole period to head sentence
Decision
The Court found that the sentencing judge had erred in his approach to the blood alcohol evidence. The judge treated the 0.145 BAC reading as though it reflected the respondent's condition at the time of the impact, without accounting for the fact that the sample was taken two and a half hours later. Depending on the rate at which the respondent's BAC was declining, her actual BAC at the time of the crash may have been considerably higher. This was a material error that infected the judge's assessment of her culpability and caused his sentencing discretion to miscarry.
The Court held that the suspended sentence was not warranted on the facts. The offending was serious: the respondent had knowingly driven after drinking, her passenger suffered a permanent and catastrophic injury, and there was no sufficient basis to withhold any period of actual custody. Absent any compelling reason to suspend the sentence, the leniency of the order was unjustified.
On re-sentencing, the Court quashed the suspension order but, applying the double jeopardy principle, declined to impose full-time custody. The respondent had already served five months on the bond attached to the suspended sentence and had been exposed to a sentence requiring no custody at all. The Court instead ordered the sentence to be served by way of periodic detention, describing the outcome as a "markedly lenient" one that was nonetheless appropriate given those circumstances.
The Court also found that special circumstances existed, a conclusion the Crown had effectively conceded before the original judge. The psychological and psychiatric material, particularly the need for continued counselling for post-traumatic stress disorder, justified a reduction in the non-parole period from 18 months to 15 months.
Orders Made
- The appeal is allowed and the original sentence is quashed
- The respondent is re-sentenced to imprisonment for 2 years with a non-parole period of 15 months
- The sentence is to be served by way of periodic detention, commencing 23 July 2005
- The respondent is to be released to parole on 22 October 2006
- The respondent is to attend the Detention Centre for Women at Parramatta by 8 am on 23 July 2005, and thereafter every Friday at 7 pm
- The existing disqualification from holding a driver's licence for three years from 10 December 2003 remained in place
Key Takeaways
- A sentencing judge's reliance on a blood alcohol reading taken two and a half hours after an impact, without adjusting for the likely higher BAC at the time of the offence, constitutes a material error of fact capable of vitiating the entire sentencing exercise.
- Suspending a sentence for a serious offence involving permanent and catastrophic injury to a victim, in the absence of compelling justification, may render that sentence manifestly inadequate and warrant appellate intervention.
- Where a Crown appeal succeeds, the double jeopardy principle requires a marked reduction from the sentence that would otherwise have been imposed, particularly where the respondent had already served time on conditions attached to the original (suspended) order.
- Special circumstances affecting the non-parole period must be determined independently of any decision to suspend a sentence; the two questions are distinct, and a finding of special circumstances may become critically important if a suspension order is later revoked.
- Under s 52A(3) of the Crimes Act 1900, dangerous driving causing grievous bodily harm carries a maximum of seven years' imprisonment, and sentences for that offence must reflect the gravity of the harm caused and the deliberate nature of the conduct involved.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 52A(2), 52A(3), 52A(4), 52A(7), 52A(9), 52AA
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 12
Cases:
- Markarian v The Queen (2005) 215 ALR 213
- R v Khouzame [2000] NSWCCA 505
- R v McMillan [2005] NSWCCA 28
- R v Zamagias [2002] NSWCCA 17
- R v Taylor [2000] NSWCCA 442
- R v Foster [2001] NSWCCA 215
- R v Whyte (2002) 55 NSWLR 252
- R v Errington [1999] NSWCCA 18
- R v Berg [2004] NSWCCA 300