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Court of Criminal Appeal 10 March 2005

Regina v Wayne Mark Kopacka

[2005] NSWCCA 83

Traffic & driving
CRIMINAL LAW SENTENCING BAD RECORD OF DRINK DRIVING OFFENCES

Citation: Regina v Wayne Mark Kopacka [2005] NSWCCA 83
Court: New South Wales Court of Criminal Appeal
Date: 10 March 2005
Judge(s): Wood CJ at CL, Hislop J, Johnson J

Background

The applicant pleaded guilty in the Parramatta District Court to one count of aggravated dangerous driving occasioning grievous bodily harm, contrary to section 52A(4) of the Crimes Act 1900. The aggravating circumstance was the presence of alcohol in his blood at a concentration of 0.281 grams per 100 millilitres, nearly double the 0.15 gram threshold required for the aggravated offence.

The offending occurred in the early hours of 23 November 2001. The applicant, who held no valid licence and was driving an unregistered vehicle on cancelled plates, overtook another car on double unbroken lines at high speed. He lost control of the vehicle, which struck a tree. A front-seat passenger suffered fractures to his left forearm and left leg requiring surgery.

Judge Ellis in the District Court sentenced the applicant to four years and six months imprisonment, with a non-parole period of two years and six months, and a seven-year licence disqualification. The applicant sought leave to appeal out of time, arguing the sentence was excessive and that his guilty plea discount should have been 25% rather than 15%.

  • Whether the overall sentence of four years and six months was manifestly excessive given the circumstances of the offence and the applicant's personal circumstances
  • Whether the sentencing judge erred in allowing only a 15% discount for the utilitarian value of the guilty plea, rather than the 25% upper end of the guideline range established in R v Thomson and Houlton

Decision

On the question of manifest excess, the Court found no error. The sentencing judge had correctly identified the applicant's blood alcohol level and prior criminal record as significant aggravating factors. The applicant had eight prior drink-driving convictions spanning from 1980 to 2001, including multiple high-range and disqualified-driving offences, and the sentencing judge found his moral culpability to be extremely high. The victim's injuries, while at the lower end of the scale for grievous bodily harm, were still serious, and the maximum penalty for the offence is eleven years imprisonment.

On the guilty plea discount, the Court confirmed that the 15% reduction was within the permissible range set by R v Thomson and Houlton, which identifies a guideline range of 10% to 25%. The applicant had not pleaded guilty at an early stage. He had spent several months attempting to withdraw his plea before ultimately confirming it shortly before sentencing. The sentencing judge also found the applicant showed very little remorse or insight into his offending, and on those findings there was no basis for any additional discount.

The Court emphasised that the 10% to 25% guideline creates no presumption or entitlement to any particular discount within that range. A sentencing judge retains a discretion to fix the discount based on the specific circumstances, including the timing of the plea and the presence or absence of genuine contrition. No error was established in the exercise of that discretion.

The applicant also raised personal hardship since imprisonment, including the deaths of family members and concerns about his son. The Court noted these matters did not assist on appeal.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 5 November 2004
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The 10% to 25% guideline discount range for guilty pleas established in R v Thomson and Houlton creates no presumption or entitlement to any particular figure within that range; the appropriate discount depends on the circumstances of each case, including the timing of the plea and the degree of genuine remorse.
  • A sentencing court may limit the guilty plea discount to 15% where the defendant delayed confirming the plea, attempted to withdraw it, and demonstrated little or no remorse or insight into the offending.
  • Where a conviction was, on the evidence, practically inevitable (here, given a blood alcohol reading of 0.281), the utilitarian value of the plea is correspondingly reduced and may justify a discount toward the lower end of the guideline range.
  • A prior record of repeated drink-driving offences spanning more than two decades is a legitimate and significant aggravating factor in sentencing for an alcohol-related dangerous driving offence.
  • Personal hardship experienced during imprisonment, such as family bereavements, does not constitute a ground of appeal against sentence in the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A (aggravated dangerous driving occasioning grievous bodily harm; prescribed concentration of alcohol threshold)
- Criminal Procedure Act 1986 (NSW), s 168
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v F (1957) 57 SR 543
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guideline judgment on guilty plea discounts)
- R v Scott [2003] NSWCCA 286 (no presumption of entitlement to a particular discount within the guideline range)