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9
Court of Criminal Appeal 16 February 2005

Regina v McMillan

[2005] NSWCCA 28

Traffic & driving
APPEAL APPLICATION TO GO BEHIND PLEA OF GUILTY REFUSED SENTENCING SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v McMillan [2005] NSWCCA 28
Court: New South Wales Court of Criminal Appeal
Date: 16 February 2005
Judge(s): Santow JA, Bell J, Howie J (Howie J delivered the leading judgment; Santow JA and Bell J agreed)

Background

The respondent pleaded guilty in the District Court to aggravated dangerous driving occasioning grievous bodily harm, contrary to section 52A(4) of the Crimes Act 1900. The charge arose from a single incident on 26 January 2002, in which the respondent's vehicle struck the victim, Glen Charles Powell. At the time of impact, the respondent had a blood alcohol level of not less than 0.170 grams per 100 millilitres, exceeding the prescribed concentration threshold of 0.150 that elevated the offence to the aggravated category.

An alternative count of aggravated dangerous driving causing death had also been charged, but the Crown accepted the guilty plea to the lesser count because causation between the impact and Mr Powell's death was in dispute. The sentencing judge, Judge Payne DCJ, imposed what the Crown subsequently argued was an inadequate sentence. The respondent separately sought to go behind his guilty plea and appealed against conviction.

Three proceedings were therefore before the Court of Criminal Appeal: the respondent's out-of-time application to appeal against conviction, his application for leave to appeal against sentence, and the Crown's appeal contending the sentence was manifestly inadequate.

  • Whether the respondent should be granted an extension of time and leave to go behind his plea of guilty and challenge his conviction on grounds relating to the sufficiency of the alcohol evidence and the appropriateness of the charge under section 52A(4).
  • Whether the sentence imposed by the District Court was manifestly inadequate for an offence of aggravated dangerous driving occasioning grievous bodily harm, having regard to the circumstances of the driving, the victim's injuries, and the respondent's prior record.
  • What weight should be given to sentencing statistics for offences under section 52A(3) of the Crimes Act when assessing adequacy of sentence.

Decision

Conviction appeal dismissed. The Court refused both the application to go behind the guilty plea and the application for leave to appeal against sentence. The respondent's grounds challenged the factual basis upon which the aggravated element was established, particularly the use of an expert estimate of blood alcohol level rather than the raw blood sample reading taken some two hours and twenty minutes after the incident. The Court found no proper basis to disturb the plea or the conviction.

Crown appeal allowed. Howie J, with whom the other judges agreed, concluded that the sentence imposed by Judge Payne was manifestly inadequate. While acknowledging that the Crown could not point to a specific identifiable error in her Honour's exercise of discretion, the Court was nonetheless firmly satisfied that the sentence failed to reflect the seriousness of the driving, its consequences, and the respondent's prior offending history, including previous alcohol-related driving conduct.

Sentencing statistics considered. The Court examined statistical data concerning sentences imposed for this category of offence and used them as a moderating reference point. Howie J noted that, while an appropriate starting point would have been six years, the existing range of sentences warranted moderating that figure to five years. After applying a 20 per cent discount to reflect the guilty plea, a head sentence of four years was arrived at. Special circumstances were found to justify a non-parole period of two years and six months, though Howie J emphasised that general and specific deterrence placed a floor on how far that period could be reduced.

Respondent's personal circumstances given limited weight. The Court acknowledged that the respondent faced difficulties in custody arising from his own injuries and fear of attack. However, those matters provided little basis to moderate the head sentence to the extent Judge Payne had done. The absence of significant mitigating factors, combined with the seriousness of the offending, rendered the original sentence inadequate.

Orders Made

  • The application for an extension of time in which to appeal against conviction is granted, but the appeal is dismissed.
  • The application for leave to appeal against sentence is refused.
  • The Crown appeal is allowed; the sentence imposed by Judge Payne DCJ is quashed.
  • In lieu, the respondent is sentenced to imprisonment for four years, commencing 3 May 2004.
  • A non-parole period of two years and six months is imposed, commencing 3 May 2004, with eligibility for release to parole on 2 November 2006.

Key Takeaways

  • A Crown sentence appeal may succeed on a finding of manifest inadequacy even where no specific identifiable error in the sentencing judge's exercise of discretion can be established, provided the Court is firmly persuaded the sentence fails to reflect the objective gravity of the offending.
  • Sentencing statistics for offences under section 52A of the Crimes Act 1900 are a relevant reference point, but the Court of Criminal Appeal treated them as a moderating factor rather than a ceiling, adjusting a higher starting point downward to align with the existing range.
  • Under section 52A, the prescribed concentration of alcohol operates as the aggravating element that elevates the maximum penalty; where the actual blood sample was taken well after the incident, expert estimation of the blood alcohol level at the time of impact is an accepted means of establishing that element.
  • In dismissing the respondent's application to go behind his guilty plea, the Court confirmed the high threshold that applies to such applications, particularly where the plea was entered with the benefit of legal representation and on a factual basis that was ventilated at the sentencing hearing.
  • Personal hardship in custody, including the respondent's injuries and fear of attack, carried limited mitigating weight where the objective seriousness of the offence and a prior record of alcohol-related driving conduct were both significant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), section 52A
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 21A

Cases:
- Van (2002) 129 A Crim R 229
- R v Ganderton (NSWCCA, unreported, 17 September 1998)
- Liberti (1991) 55 A Crim R 120
- R v Whyte (2002) 55 NSWLR 252
- R v Jurisic (1990) 45 NSWLR 209
- R v Barton [2001] NSWCCA 63
- R v Royal [2003] NSWCCA 275
- Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment (High Range PCA) [2004] NSWCCA 303
- R v Baker [2000] NSWCCA 85
- R v Wall [2002] NSWCCA 42