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Court of Criminal Appeal 15 December 2005

Harrigan v Regina

[2005] NSWCCA 449

Traffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCE GUILTY PLEAS OFFENCES OF TOTALITY PRINCIPLE

Citation: Harrigan v Regina [2005] NSWCCA 449
Court: NSW Court of Criminal Appeal
Date: 15 December 2005
Judge(s): James J (primary judgment), Grove J, Simpson J (both agreeing)

Background

The appellant pleaded guilty in the District Court to two offences arising from events on and shortly after 28 November 2001: dangerous driving occasioning grievous bodily harm, and doing an act intending to pervert the course of justice. The dangerous driving occurred on Henry Lawson Drive, where the appellant drove aggressively, tailgated multiple vehicles, crossed into oncoming traffic, and ultimately struck the rear of another car at excess speed, causing it to veer into a telegraph pole and seriously injure a passenger.

After the collision, the appellant drove away from the scene. He later gave a false account to police, claiming he had not been the driver at the time of the accident. That conduct formed the basis of the perverting the course of justice charge.

At sentencing, Judge Tupman imposed an 18-month fixed term for the perverting the course of justice offence, followed by a fully cumulative total sentence of four years and nine months (with a three-year-three-month non-parole period) for the dangerous driving offence. The appellant sought leave to appeal against that sentencing structure, arguing the sentences should have been made at least partly concurrent.

  • Whether the sentencing judge erred by making the sentence for perverting the course of justice wholly cumulative on the dangerous driving sentence, rather than concurrent in whole or in part
  • Whether the sentencing judge failed to apply the totality principle (the principle requiring a court to step back and assess whether the combined sentence is proportionate to the overall offending)

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. The Court accepted the Crown's submission that her Honour had expressly turned her mind to the question of concurrency versus accumulation, and to the totality principle, before deciding to impose fully cumulative sentences.

The Court reasoned that the two offences were distinct in character. The dangerous driving and the subsequent false account to police were separate acts with separate criminality, and the perverting the course of justice offence was not simply part of the same criminal episode as the driving.

The Court drew an analogy between offences under section 319 of the Crimes Act (doing an act to pervert the course of justice) and the offence of bribing a police officer, describing both as interferences with the criminal justice system. Relying on the principle in R v Duong, the Court noted that save in the most exceptional circumstances, such offences call for a significant term of imprisonment imposed cumulatively, or at least substantially cumulatively, on the sentence for the primary offence.

The Court concluded that her Honour was not merely entitled, but was in fact required, to impose sentences that were at least substantially cumulative. Full accumulation was therefore not an error of discretion. The appeal was dismissed.

Orders Made

  • Extension of time to make application for leave to appeal against sentence granted
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offence of doing an act to pervert the course of justice under section 319 of the Crimes Act carries a strong presumption in favour of cumulative (rather than concurrent) sentencing, particularly where the offence involves interference with the administration of criminal justice.
  • Drawing on R v Duong, the Court affirmed that offences which obstruct or interfere with the criminal justice system will ordinarily attract a significant custodial term imposed cumulatively on the sentence for the underlying offence, except in the most exceptional circumstances.
  • Upholding the sentence in full, the Court found that the sentencing judge's explicit engagement with the concurrency question and the totality principle was sufficient to demonstrate she had not fallen into error.
  • No error was established merely because the aggregate sentence was substantial. Where two offences are distinct in character and criminality, full accumulation can be not only permissible but required.
  • The Court extended time to appeal despite the Crown's opposition, on the basis that the application was not entirely without substance and a reasonable explanation had been offered for the delay.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), section 52A(3) (dangerous driving occasioning grievous bodily harm)
- Crimes Act (NSW), section 319 (doing an act intending to pervert the course of justice)

Cases:
- R v AEM [2002] NSWCCA 58
- R v Duong (1999) 109 A Crim R 60
- R v Giang [2001] NSWCCA 276
- R v Hammoud (2000) 118 A Crim R 66
- R v Ruane (1979) 1 A Crim R 284
- R v Weldon (2002) 136 A Crim R 55