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Court of Criminal Appeal 18 February 2005

R v NILSSON

[2005] NSWCCA 34

DrugsTraffic & driving

Citation: R v Nilsson [2005] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 18 February 2005
Judge(s): Ipp JA, Hulme J, Hislop J

Background

The applicant was convicted in the District Court of two offences of driving in a manner dangerous to the public causing grievous bodily harm, contrary to s 52A(3) of the Crimes Act. The offences arose from a single incident on 10 July 2001 on Victoria Road, West Ryde, when the applicant crossed a raised cement median strip during heavy peak-hour traffic and collided head-on with an oncoming vehicle. A passenger in the applicant's car and the driver of the other vehicle both sustained serious injuries.

Blood and urine analysis revealed the applicant had cannabis, flunitrazepam (rohypnol), diazepam, methadone, and morphine in his system at the time. Expert evidence established that his driving ability was impaired by cannabis and rohypnol. The applicant was also driving without a licence, which had been cancelled following a prior court disqualification, and was on a good behaviour bond and bail at the time.

District Court Judge Blackmore sentenced the applicant to five years' imprisonment for each offence, to be served concurrently, with a non-parole period of three years and nine months commencing 19 May 2003. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge correctly applied the principle of totality when imposing concurrent sentences for two serious driving offences
  • Whether the total sentence was excessive having regard to the guilty plea discount, the objective seriousness of the offences, and the applicant's personal circumstances
  • Whether the 10-year driving disqualification was properly imposed and reasoned

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding error in the construction of the sentence below. While the sentencing judge had correctly identified the offences as falling at the top of the range of seriousness, the Court found that the structure and length of the sentence required correction.

Hulme J (with whom Hislop J agreed, and Ipp JA agreed save for one qualification) noted that the sentencing judge had acknowledged a 25% discount for the guilty plea and had identified an appropriate starting point of seven years had the matter proceeded to trial and resulted in accumulated sentences. On that basis, the resulting term after the discount was to be recalculated and restructured as two consecutive, rather than concurrent, sentences that together reflected the totality principle.

On the disqualification order, Hulme J observed that the trial judge gave no reasons for imposing a 10-year disqualification when the automatic statutory disqualification period under the Road Transport (General) Act was five years. His Honour expressed doubt about the utility of the extended order, noting it could impede rehabilitation. However, because no argument was advanced on behalf of the applicant challenging the disqualification period, the Court declined to interfere with it. Ipp JA expressly made no comment on the utility of the disqualification order.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Judge Blackmore on 19 May 2003 quashed
  • In respect of the offence involving grievous bodily harm to Donna Maxfield: sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 9 months, both commencing 19 May 2003
  • In respect of the offence involving grievous bodily harm to Jennifer Thompson: sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 9 months, both commencing 19 May 2004
  • Parole eligibility date recorded as 18 February 2007

Key Takeaways

  • The Court of Criminal Appeal confirmed that, when sentencing for multiple serious driving offences, the totality principle governs the structure of concurrent or consecutive terms, and the sentence must accurately reflect the discount afforded for a guilty plea.
  • A cocktail of impairing substances, driving on a cancelled licence, and exposing large numbers of road users to risk during peak-hour traffic were all treated as significant aggravating features under the framework set out in R v Whyte (2002) 55 NSWLR 252.
  • Where a sentencing court imposes a driving disqualification beyond the automatic statutory period without giving reasons, the appellate court may express doubt about the order's utility, but will decline to interfere if no argument was directed to the point by the applicant.
  • Under s 50 of the Crimes (Sentencing Procedure) Act, a sentencing court has no power to direct release at the end of a non-parole period or impose parole conditions where the total sentence exceeds three years; those matters fall to the Parole Board under Part 6 of the Crimes (Administration of Sentences) Act.
  • Victim impact evidence detailing lasting physical, psychological, and financial consequences for injured parties was treated as directly relevant to the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 48, 50
- Crimes (Administration of Sentences) Act 1999 (NSW), Part 6
- Road Transport (General) Act 1999 (NSW)

Cases:
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- R v Kay [2000] NSWSC 716